When Rain Hurts by Mary Evelyn Greene

WE WON!


October 4, 2010.  The decision regarding our Due Process Hearing was issued this morning and we won on all counts and in all regards. The Independent Hearing Officer (IHO) concluded that the Red Hook Central School District (RHCSD) failed to provide Peter a free and appropriate education for the past 3 years (i.e., since we moved to the District). The RHCSD tried to discredit our son’s neuropsychologist, Dr. Ronald Federici, to no avail.  Although the opinions and recommendations of Dr. Federici, the leading expert on post-institutionalized children, may have been disregarded by the school, the IHO took a different view. The entire order is pasted below.  I don’t know what tomorrow brings, but today we celebrate.  Finally, at age 9, it looks like Peter will get the kind of help he needs and deserves.  Thank you so much for the support and encouragement.

Mary :-)


———————————————————-X

In the Matter of the Application of the Parents and

Guardians of P.L.

and

The Red Hook Central School District.

———————————————————X

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer

James McKeever, Esq.

October 4, 2010

FINDINGS OF FACT AND DECISION

Student’s Name:                                                P.L.

District:            The Red Hook Central School District

Hearing Requested by:                                    Parents

Hearing Officer:                                               James McKeever, Esq.

Hearing Officer’s Findings of Fact and Decision

_________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Cindy Flamenhaft:            Witness-District

Dr. Ronald Federici:            Witness-Parent

Jessica Pecker:            Non-Witness Present

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Lydia Cordier:            Witness-District

Kathleen Norton:            Non-Witness Present

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education-

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Lydia Cordier:            Witness-District

Mary Oyen:            Non-Witness Present

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Stephanie Comerford:            Witness-District

Dr. Ronald Federici:            Witness-Parent

Lindsey Leonard:                                                                    Witness-Parent

Mary Oyen:            Non-Witness Present

Salvatore Massa:            Non-Witness Present

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 21, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Witness-Parent -Mother

Patrick Lobrutto:            Witness-Parent-Father

Joan Fox-Pryeworski:            Non-Witness Present

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Witness-Parent -Mother

Patrick Lobrutto:            Parent-Father

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Dr. Ronald Federici:            Witness-Parent

Lindsey Leonard:            Witness-Parent

James Feeney, PhD.:            Witness-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Cindy Flamenhaft:            Witness-Parent

Lydia Cordier:            Witness-Parent

James Feeney, PhD.:            Witness-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Parent -Mother

Patrick Lobrutto:            Parent-Father

Stephanie Comerford:            Witness-District

Donna Vincent:            Witness-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Witness-Parent -Mother

Patrick Lobrutto:            Parent-Father

Marie Manteria:            Witness-Parent

Salvatore Massa, PhD.:            Witness-Parent

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2010

Tara L. Moffett, Esq.:            Attorney for School District

RosaLee Charpentier, Esq.:             Attorney for Parent

Joseph DeCaro:            Director of Special Education

Mary Green:            Witness-Parent -Mother

Patrick Lobrutto:            Parent-Father

Maggie Oyen:            Non-witness-Present

Hearing Officer’s Findings of Fact and Decision

—————————————————————————————

On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding the parents’ request for, among other things, placement of their son, “P.L.”, at the Dutchess County BOCES PEACE program (“BP”), for the 2010-2011 school year.

The parent’s due process complaint, dated May 10, 2010, alleges numerous issues with respect to the failure of Red Hook Central School District (“District”) to  offer P.L. a Free and appropriate education (”FAPE”).  In part, the parents allege that FAPE was denied because the district failed to incorporate any type of neuro-cognitive rehabilitation program into P.L.’s IEP as recommended by Dr. Ronald S. Federici and Dr. James Feeney, inter alia.

The parents seek compensatory educational services based on the denial of FAPE for 2007-2008, 2008-2009, 2009-2010 and 2010-2011 school years, and based on the District’s refusal to offer extended year services (ESY) during the summer of 2010.

The parent contends that placement of P.L. at a 12 month BOCES PEACE class is appropriate for P.L. for the 2010-2011 school year.

The District asserts that FAPE was offered for each of the subject school years and that any issue raised by the parents with respect to the 2007-2008 school year, or any year prior, is time barred by the statute of limitations.

The District also contends that the P’s individualized education plans (“IEP’s”) were procedurally valid and that the IEP’s substantively complied with the IDEA.   The District further asserts that the District’s proposed placements were in the least restrictive environment (“LRE”) and that the “equities” do not support the parents’ claims for relief, inter alia.

Findings of Fact

P.L. is a nine-year old student classified as “other health impaired.”  P.L.’s classification is not at issue.  P.L. was adopted by his parents from an orphanage in Russia in 2004.

In 2005, P.L. was identified by the Roundout Valley Central School District (“Roundout”) Committee on Preschool Special Education as a student with a disability.  In kindergarten, P.L. was classified as “other health impaired” and attended an inclusion program in the Roundout school district.

In first grade, the parents relocated to the Red Hook Central School District.  In September 2008, P.L. attended a BOCES PEACCE program located in the District’s elementary school, but was subsequently transferred to a District inclusion class for the spring semester of the first grade.

In May 2008, P.L. was evaluated by Dr. Ronald S. Federici, Psy.D, a board certified neuro-psychologist with board certification in clinical psychopharmacology, at parent expense.  Dr. Federici’s report, dated May 9, 2008, (District Ex. 32) indicated that the following tests were administered during the evaluation: Diagnostic clinical interview; Wechsler Intelligence Scale for Children; Childhood Autism Raging Scale; Gilliam Autism Rating Scales; Gilliam Aspergers’s Disorder Scale; Test of Visual-Perceptual Skills; beery-Buktenica Developmental Test of Visual-Motor Integration; Rey-Osterrieth Complex Figure Test of Language Development, Wide Range Achievement Test, Test of Auditory-Perceptual Skills, California Verbal Learning Test for Children, Wide Range Assessment of Memory and Learning; Nepsy; A developmental Neuropsychological Assessment, House-Tree Person Projective Drawings, Kinetic Family Drawing, Rorschach Psychodiagnostic Test, Roberts Apperception Test, Child Neuropsychological History, Caregiver Questionnaire, Conners’ Rating Scales for Attention Deficit Hyperactivity Disorder, Attention Deficit Hyperactivity Disorder Test, Differential Test for Conduct and Emotional Problems, Achenbach Child Behavior Checklist, ACTeRS Rating Scales for Attention Deficit Hyperactivity disorder, Sensory Profile and a review of records.

Dr. Federici’s evaluation indicated multiple diagnostic impressions, including, but not limited to, Pervasive Developmental Disorder, “mixed receptive-expressive language disorder, the impairments being language comprehension-auditory processing and oral expressive skills; a visual-perceptual processing disorder; and a reading, written expression and mathematics disorder.  Dr. Federici  also indicated that  P.L. has an alcohol-related neurodevelopmental disorder/Fetal Alcohol Spectrum Disorder in addition to a strong probability of a neurogentic disorder.

The testing results on the Wechsler Preschool and Primary Scale of Intelligence Fourth Edition yielded the following scores:

Verbal Comprehension:              Standard Score 95                   7th Percentile             Average

Perceptual Reasoning             Standard Score 98                   45th Percentile             Average

Working Memory:           Standard Score 80            9th Percentile      Low Average

Processing Speed:                        Standard Score 75                        5th Percentile            Below Average

Full Scale IQ Score:              Standard Score 85                   16th Percentile             Low Average

Dr. Federici reported that at the time of his evaluation, P.L. did not show any pattern of regressive or decompensating neuropsychological abilities although there were many “gaps and inconsistencies” in his overall receptive and expressive language in addition to visual-spatial and perceptual organization skills with “very severe learning disabilities” in all areas of language, language arts and mathematics.”   Dr. Federici also reported that although P.L. showed some improvement in his overall cognitive organization (since his testing in 2006), however, there were still many impairments in his executive function, attention and concentration and information processing and indications of a Mood Disorder pattern.

Dr. Federici opined that P.L. showed “quasi autistic behavior,” and that P.L. responded very well to Applied Behavior Analysis (“ABA”) strategies, inter alia.

Dr. Federici’s treatment recommendations included, among other things, 20 hours per week of ABA and Verbal Behavior Therapy (“VB”) in addition to 20 hours per week of ABA services at home.  Dr. Federici opined that traditional speech therapy would not benefit P.L. and that P.L. required language therapy by an autistic specialist in conjunction with a Lindamood-Bell and an Orton Gillingham approach. Dr. Federici advised that P.L. would best be served in a “contract school” for children with multiple disabilities in which P.L. could receive all of his services “in house.”  The program should be “language driven” and have “autistic interventional services.”  Dr. Federici concluded that an “immersion or partial mainstream” program would not be in P.L.’s best interest “(District Exhibit 32, page 31).

On June 24, 20008, the Committee on Special Education (“CSE”) convened to develop an IEP for the 2008-2009 school year as P.L. entered the 2nd Grade.  The parents do not challenge the composition of the CSE team and it appears that the required team members were present at the CSE meeting.

The IEP indicates that the CSE considered the following reports and documents in drafting this IEP: Oral reports from an Occupational therapist, a Physical Therapist, a Speech therapist, a psychologist and a teacher. The IEP also indicates that the CSE reviewed an occupational therapy evaluation, dated 6/24/08, a physical therapy evaluation, dated 1/23/08 and a speech, language & hearing therapy update.  Although the IEP referenced some of the standardized testing performed by Dr. Federici, and cited the parent’s request for ABA or VBA services at this meeting, Dr. Federici’s report is not listed as a report that the CSE relied upon in developing this IEP.  Nevertheless, the IEP listed Dr. Federici, as well as the Anderson School and the Children’s Annex as “outside” evaluators that the CSE needed to be in direct contact with in order to “enhance understanding and collaboration with the school’s personnel.” (District Exhibit “9“ and Parent’s Exhibit “NN” page 4).

Pursuant to this IEP, the District recommended an Integrated Co-Teaching class for 2 hours per day, 5 days per week, a 1:1 shared aide, counseling, OT, PT and speech and language therapies.  The CSE also recommended extended year services (ESY) during the summer of 2008 at a reading program located in the school district.

The June 24, 2008 IEP also indicates CSE considered a general education setting with related services for P.L., but  rejected this option because P.L.’s “current language processing, academic, social/emotional and physical need” indicated that a more intensive support was required to aid P.L. in learning.  (District Exhibit “9“ and parents Exhibit “NN” page 7).  The IEP does not indicate that the CSE considered a self-contained class or any more restrictive setting than an inclusion class.

The IEP did not include ABA services and/or VBA services for P.L.

Following the June 24, 2008 CSE meeting, the District arranged for P.L. to be observed for the purpose of a consult by Dr. Adrien Maier, a Board Certified Behavior Analyst from the Children’s Annex and Jennifer Cush, a Board Certified Behavior Analyst, from the Anderson Center for Autism.

On August 4, 2008, Jennifer Cush observed P in his home and spoke to P.L.’s mother and P.L.’s home based instructor, Lindsey Leonard.  Ms. Cush reported that P.L. had challenging behaviors that can include self-injury such as “gouging his face and nose, property destruction, incontinence and aggression.”  Ms. Cush reported that these behaviors increased during periods of transition.  In this report, Ms. Cush recommended, among other things, an educational program utilizing ABA techniques and a FBA to address P.L.’s challenging behaviors (District Exhibit 29).

On September 25, 2008, Dr. Maier observed P.L. in his classroom.  Dr. Maier recommended that P.L. remain in an integrated educational setting, but that P.L. would require continued academic support and modification to keep up with this peers.  Dr. Maier opined that P.L.’s educational programs should be guided “utilizing the Assessment of Basic Language and Learning Skills(“ABLL’s), which is an assessment, curriculum guide and skills tracking system for children with language delays…”  “Progress should be quantified, tracked and carefully monitored for instructional effectiveness” and new and difficult academic material should be taught in small group or 1:1 structured settings.  Dr. Maier also opined that consultation/instruction for relevant staff in ABA/VBA teaching methodology would be beneficial to assist P.L. and track his progress (District Exhibit 28).  The report indicates that Dr. Maier observed P.L. for approximately 2 hours. The report does not indicate that any formal diagnostic assessment was administered by Dr. Maier and/or whether Dr. Maier reviewed any of P.L.’s medical or educational records.  Dr. Maier was not called to testify at the hearing.

On September 26, 2008, Ms. Cush observed P.L. in his 2nd grade classroom.  The report indicated that P.L. was “well adjusted to the classroom environment and happy to be in school.” Ms. Cush opined “that may principles and support techniques from Applied Behavior Analysis are embedded into the classroom design and instructional practices.”  Ms. Cush also opined that a functional behavioral assessment was not necessary as there were “no significant behaviors occurring in school to evaluate.”  The report indicated that Ms. Cush spent approximately 30 minutes observing P.L. during his morning routine (District Exhibit 27), which was a “morning meeting” and observed P.L., briefly, in small group reading instruction (Tr.197).  Ms. Cush did not observe P.L. during a lesson with the entire class (Tr. 197).  The report does not specify what ABA principles and/or techniques Ms. Cush believed were imbedded in the classroom instructional practices and/or how P.L. responds to the observed techniques and instructional practices, except that  P.L. responds to “prompting” and “teacher/aide corrections.”  (Exhibit 27, page 2, paragraph 4). The report also does not indicate that any formal diagnostic assessment of P.L. was administered Ms. Cush.  Ms. Cush was not called to testify at the hearing.

During the school year (2008-2009), P.L. was placed in the District’s 2nd grade inclusion class with Cindy Flamenhaft, a certified special education teacher.  The inclusion class consisted of 21 students (Tr. 183).

Ms. Cush conducted a 2-hour training for District staff on how to incorporate ABA into the school-based program (Tr. 529).  Ms. Flamenhaft testified that it was an “overview” of ABA and that they were not trained on data collection and that they were not trained on the “entire scope and sequence of ABA procedures “(Tr. 205).

On October 28, 2008, the CSE reconvened and reduced P.L.’s 1:1 aide from 6 hours per day to 2 and 1/2 hours per day.  The record contains an IEP, dated June 24, 2008, offered by the District as Exhibit “9,” which indicates that P.L was assigned a 1:1 aide for 2 hours and 20 minutes per day.  The record also contains an IEP of the same date, offered by the parents at Exhibit “NN” that indicates that P.L. was assigned a 1:1 aide, for 6 hours per day.  The discrepancy was not clarified at the hearing, however, Joseph DeCaro, the District’s Director of Pupil Personnel Services, confirmed that the October 28, 2008 CSE was held, in part, to reduce the hours services of P.L.’s aide (Tr. 1417).  Mr. DeCaro also testified that the parents were made aware of the change in aide services prior to the October CSE meeting by the school’s principal and the classroom teacher (Tr. 1420).  The parents objected to the reduction in P.L.’s aide services.

With respect to instruction in the 2nd grade, Ms. Flamenhaft testified that

although P.L. appeared to make some progress, P.L. had issues with writing, fine motor and processing speed (Tr. 179).  P.L. also did not always complete his class work because of pull-outs for related services and because P.L. worked slower than other students (Tr. 179).   Ms. Flamenhaft also testified that P.L. could not tell you the “day of the week” (Tr. 155) and that  P.L. would often times “space out” during instruction.  In addition, although Ms. Flamenhaft thought P.L understood when “lunch and recess” was, P.L. “did get mixed up in terms where he was in his day sometimes” (Tr. 157).  Ms. Flamenhaft testified that P.L. did not have an individual schedule to guide him through his day, but that P.L. would sometimes refer to the schedule hanging in front of the general education classroom (Tr. 157).

In January 2009, the parties executed an amendment to P.L.’s IEP to include goals to address P.L.’s organization and motor planning as a result Sensory Processing Measure completed in December 2008 (District Exhibit 8).

On February 9, 2009, the District held a CSE meeting to discuss P.L.’s placement.  Following the meeting, the parents requested several independent educational evaluations (“IEE’”).  The District initially responded by offering to conduct a “reevaluation to determine the need for further testing” and requested consent from the parents.  The parents did not consent to further testing by the District.  In March 2009, the District advised the parents that the District would seek an impartial hearing to challenge the parent’s request for the IEE’s.  On  March 5, 2009, the parent’s filed a due process request, which challenged the appropriateness of P.L.’s program for the 2008-2009 school year and sought the above mentioned IEE’s.  On May 18, 2009, the parties entered into a resolution agreement (District Exhibit “3”).  The resolution agreement provided that a multidisciplinary evaluation would be scheduled with “Abilities First” and would include and occupational therapy evaluation, a physical therapy evaluation (including a SIPT), a physiatry examination, a classroom observation (if warranted) and a Descriptive Literacy Evaluation by Dr. James Feeney.  The agreement also provided that the parties would work together in good faith to identify a neuropsychologist to conduct a neuropsychological evaluation.

Further, the agreement provided that the District would “send referral information on P.L. [sic] to those mutually agreed upon private schools and BOCES, on the Parent’s request, with the proviso that the District’s agreement to do so shall neither imply, suggest nor otherwise bind the District’s Committee on Special Education to make any of them its formal recommendation for the 2009-2010” school year [sic]. (See, District exhibit 3).

On May 20, 2009, the District’s CSE convened and recommended a full-time summer program for P.L. at BOCES (District Exhibit 6) and developed P.L.’s program for the 2009-2010 school year which recommended continued placement in the District’s inclusion class for 3rd grade.

In June 2009, Abilities First and Dr. Feeney conducted the above referenced evaluations.  The District also sent referral packages to Dutchess BOCES and the Astor Program.  The District did not send referral packages to the Children’s Annex and the Anderson school, as requested by the parents.

The District contacted Dr. Zuffante to conduct the neuropsychological. However, in light of Dr. Federici’s evaluation, Dr. Zuffante did not believe it was necessary to conduct another neuropsychological evaluation of P.L., and one was not conducted.

Dr. Feeney’s report, dated July 15, 2009, indicated that Dr. Feeney observed P.L.  in the District’s 2nd grade inclusion class and in P.L.’s home on various dates in June 2009.  Dr. Feeney’s comprehensive report (50 pages) indicated, in summary, that P.L. was a very complex child, neurologically, who has a wide range of deficits.  Dr. Feeney observed that there were clear differences ‘between the kinds of instruction” P.L. was receiving in school and the kind of instruction P.L. was receiving in the home from his home-based teacher, Lindsey Leonard (Report page 17).  Dr. Feeney recommended balancing the instructional methodologies provided in the home and in the school to meet P.L.’s complex cognitive, academic, behavior and social needs.  Dr. Feeney stressed collaboration, in the form of communication, between P.L.’s educational team and P.L. parents. (Page 19).  Dr. Feeney’s report strongly recommended an “Executive System of Intervention” program to help guide and regulate P.L.’s thoughts and behavior.  Dr. Feeney stated that the ultimate goal of executive function intervention is to “establish regular behavior/cognitive routines to maximize independent, goal-oriented problem solving and performance.” Dr. Feeney recommended the “Goal-Plan-Do-Review System,” as the framework within which a specific executive function intervention methods and strategies can be incorporated.” (Report page 46).

With respect to academics, Dr. Feeney reported that P.L.’s was having difficulty accessing the second grade curriculum and that based on his testing, P.L.’s reading level in the 2nd grade was an early kindergarten level.

On September 3, 2009, the CSE convened to consider the IEE’s and amend the 2009-2010 IEP for P.L.’s 3rd grade placement.  By all accounts it was a contentious meeting.  The CSE along with the parents and Dr. Feeney met for approximately 7 hours to develop this IEP.  The District asserts that for an hour prior to the CSE meeting, Dr. Feeney conducted a training for the CSE team on the principles of executive functioning.  Dr. Feeney testified that it was not a training and that he only had enough time to distribute a “hand-out” on executive functioning techniques to the team.

The final IEP for the 2009-2010 school year recommended the District’s inclusion class for the 3rd grade, with the addition of a 30-minute, 1:1 reading session at the end of the day.  The CSE also agreed to consult with Dr. Feeney throughout the year and recommended a three-week sensory integration program as suggested by the Abilities First evaluation.  The IEP indicated that the general education teacher would teach Math, Science and Social Studies with approximately 21 students and that the special education teacher would teach reading and language arts in a group of 12.  P.L. would also have a 1:1 aide.

The parents initially rejected the District’s proposed program and sought to locate a placement at a BOCES PEACE program.  When the parents could not obtain a placement at any BOCES PEACE program, the parents placed P.L in the District’s 3rd grade inclusion class.

In December 2009, the District principal, Brian Boyd, advised that parents that Ms. Hall,  P.L.’s 1:1 aide since September 2009, was being reassigned and that Ms. Carmody, the classroom aide for the last 15 years, would be P.L.’s individual aide.  The parents objected.

On January 21 ,2010, the CSE convened and amended P.L.’s IEP.  The new IEP eliminated physical therapy, with the consent of the parents.  The CSE also agreed to continued sensory integration therapy outside the District and moved P.L. from a small group art class to a “full-size” art class.  The CSE also reduced P.L.’s counseling by one session per week. (District Exhibit 3).

On April 7, 2010, the parents requested a private placement for P.L.

On April 19, 2010, the CSE convened to develop a program for the 2010-2011 school year.  Prior to this meeting, some members of the CSE team toured a program at the Children’s Annex, but the CSE determined that P.L. was too high functioning for this program.  Ultimately, the CSE recommended that P.L. remain in the District’s inclusion class for the 2010-2011 school year for the 4th grade .  The CSE also did not approve ESY services for the summer of 2010.

On May 5, 2010, the parents filed the within due process complaint.

Thereafter, the District approved placement for P.L. at a BOCES PEACE program for the summer of 2010 under the pendency provision of the IDEA.

Conclusions of Law

Statute of Limitations:

As set forth in the parents due process complaint, dated May 9, 2010, and restated at the opening of the hearing, the parents alleged, among things, that P.L. was denied FAPE for 2007-2008 school year, in addition to the three subsequent school years.  The District contends that any claim asserted by the parents prior to May 2008 is timed by the applicable statue of limitations.

The Individuals with Disabilities Education Act (IDEA) was amended in 2004 with an effective date of July 1, 2005. The IDEA 2004 amendments added an explicit limitations period for filing a due process hearing request and also added explicit accrual language. IDEA 2004 requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. §1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]). Absent clear congressional intent, a newly enacted federal statute of limitations does not operate retroactively (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 [2d Cir. 2005] [holding that the limitations period in the Sarbanes-Oxley Act of 2002 did not have the effect of reviving stale claims]; Application of a Child with a Disability, Appeal No. 06-083). Prior to the IDEA 2004 amendments, the IDEA did not prescribe a time period for filing a request for an administrative due process hearing and a one-year limitations period was applied in New York (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119). A claim accrues when the complaining party knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 334 F.3d at 221). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a “specific misrepresentation” by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D][i]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]).

In this case, the parents have not offered any facts to support their initial claim for compensatory education services as a result of a denial of FAPE prior to May 2008.  In addition, as set forth in the parents’ post hearing brief, the parents are only seeking compensatory services for a denial of FAPE from “September 2008 to the present” (Parents Brief, page 22).  As such, any claims asserted by the parents prior to the May 2008 are time barred by the statute of limitations.

FAPE

Congress enacted the IDEA to promote the education of children with disabilities, “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and] . . . to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1); see Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985). A free appropriate public education “must include ‘special education and related services’ tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.'” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).

The key element of the IDEA is the development of an IEP for each handicapped child, which includes “a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Burlington, 471 U.S. at 368. The IEP is collaboratively developed by the parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311 (1988). New York has set forth regulations to implement the goals of the IDEA, which “appear to track the IDEA closely.” Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 454 (S.D.N.Y. 2005); see N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1 et seq. “‘In developing a particular child’s IEP, a [Committee on Special Education] is required to consider four factors:(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Walczak, 142 F.3d at 123 (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(kk)(2)(i) (1997)).

The School year 2008-2009:

The District contends that the P.L. was provided FAPE for this school year because the IEPs developed for P.L. were procedurally valid and because P.L.’s IEPs substantively complied with the IDEA. For the reasons set forth below, I disagree.

As indicated above, on June 24, 20008, the Committee on Special Education convened to develop an IEP for the 2008-2009 school year as P.L. entered the 2nd grade.

According to this IEP, the District recommended an Integrated Co-Teaching class for 2 hours per day, 5 days per week, a 1:1 shared aide for 2 hours and 20 minutes per day, counseling, OT, PT and speech and language therapy.  The CSE also recommended extended year services (ESY) during the summer of 2008 for reading in a program located in the school district (See, District Exhibit 10)..

The recommended inclusion class consisted a general education teacher and a special education teacher with approximately 21 students.

The IEP indicates that the CSE considered a number of reports from the District personnel and reviewed the neuro-psychological evaluation from Dr. Ronal Federici that was obtained privately by the parents.  As stated above, Dr. Federici’s extensive testing indicated that P.L. was a very complex child whose diagnostic impressions included Pervasive Developmental Disorder and a alcohol-related neurodevelopmental disorder (Fetal Alcohol Spectrum Disorder), among other things.

As stated above, Dr. Federici opined that P.L. showed “quasi autistic behavior,” and that P.L. responded very well to Applied Behavior Analysis (“ABA”) strategies, inter alia.  Dr. Federici’s treatment recommendations included, among other things, 20 hours per week of ABA and Verbal Behavior Therapy (“VBA”) in addition to 20 hours per week of ABA services at home.  Dr. Federici opined that traditional speech therapy would not benefit P.L. and that P.L. required language therapy by an autistic specialist in conjunction with a Lindamood-Bell and an Orton Gillingham approach. Dr. Federici advised that P.L. would best be served in a “contract school” for children with multiple disabilities in which P.L. could receive all of his services “in house.”  The program should be “language driven” and have “autistic interventional services.”  Dr. Federici concluded that an “immersion or partial mainstream” program  would not be in P.L.’s best interest “(District Exhibit 32, page 31).

Despite the findings and recommendations set forth in Dr. Federici’s report, the IEP did not provide for ABA or VBA services or any other type of neuro-cognitive intervention for P.L. during the 2008-2009 school year.  The record shows that the District was fully aware of P.L.’s complex intellectual and medical profile at the time the CSE was convened, yet failed to include any type of educational intervention to address P.L.’s executive functioning deficits while in the second grade inclusion class.   The District’s assertion that ABA and/or VBA services are embedded into their curriculum and, as such P.L. is receiving an appropriate education, is unpersuasive.  As indicated by Dr. Federici, ABA and VBA services are designed for the individual student’s needs and must be used in a 1:1 situation.  Dr. Federici opined that these services could not be provided in a class of 21 students, nor in a small group of 4-5 students, as suggested by the District.

Further, although Cindy Flamenhaft, P.L.’s second grade special education

teacher, testified, in summary, that P.L. was able to access the 2nd grade curriculum and make some progress toward this IEP goals, the record reveals otherwise.  With respect to instruction in the 2nd grade, Ms. Flamenhaft testified that P.L. had issues with writing , fine motor and processing speed (Tr. 179).  Ms. Flamenhaft also testified that P.L. did not always complete his class work because of pull-outs for related services and because P.L. worked slower than other students (Tr. 179).   Ms. Flamenhaft also testified that P.L. could not tell you the “day of the week” (Tr. 155) and that  P.L. would often times “space out” during instruction and that it was difficult to know what P.L. was thinking.  In addition, Ms. Flamenhaft testified that P.L. was up and down on energy and that his fatigue levels were more than other kids” (Tr. 201).   Further, although Ms. Flamenhaft thought P.L understood when “lunch and recess” was, P.L. “did get mixed up in terms of where he was in his day sometimes” (Tr. 157).  (Although the record shows that P.L. did not have an individual schedule to guide him through his day (Tr. 157)).

With respect to reading, P.L.’s DRA reading level at the beginning of the 2nd grade year was a level 4, which was a significant drop from his reading level at the end of 1st grade, when he was at a DRA level 8.  Interestingly, P.L. experienced this broad drop in reading skills during the summer of 2008, when he was enrolled in a summer reading program. At the end of the 2nd grade, the District, asserts that P.L. was a level 12, which is a 1st grade level.  Nevertheless,, Dr. Feeney, who observed and tested P.L. at the end of second grade, using the Qualitative Reading Inventory-4, among others measurements, found that P.L. was reading on a kindergarten level and that P.L. had significant challenges with respect to decoding, fluency and comprehension (Exhibit page, 17).  Dr. Feeney also stated that his findings were aligned with the testing results of Dr. Federici’s neuropsychological evaluation, which indicated P.L.’s impaired processing in relation to word attack strategies.

Ms.  Flamenhaft testified that for reading, student’s were taught in groups of 4-5 and that 1:1 instruction occurred “whenever possible” (Tr. 181). However, Ms. Flamenhaft confirmed but that it was a “busy classroom” and that P.L. was not taken out of the classroom at any time for 1:1 instruction (Tr. 182).

Moreover, Dr. Feeney, who observed P.L. in 2nd grade, testified that P.L. was not accessing the 2nd grade curriculum. Dr. Feeney’s report also indicated that the minimal academic work that P.L. did produced, was the result heavy prompting and the result of a high level of support  from his aide.

Further, although the record shows that the District retained Jennifer Cush of the Anderson School, and Dr. Adrien Maier from the Children’s Annex, to perform educational consults, respectively, the record shows that neither of these reports offered anything meaningful for P.L.  Ms. Cush’s observation of P.L. occurred during P.L.’s morning routine and lasted for approximately 30 minutes.  Dr. Maier’s observation, which found P.L. “comfortable” in his 2nd grade class, lasted about an hour. The record does not show that either Ms. Cush or Dr. Maier reviewed any of  P.L.’s academic and/or medical records prior to their observations.  The record also shows that neither party performed any testing and/or conducted any formal educational assessment of P.L.  Finally, neither party testified at the impartial hearing.  Accordingly, I give no weight to their respective reports

Additionally, the District’s position that “in response to the parent’s and Dr. Federici’s request to evaluate and consider the need for ABA/VAB services for P.L.,”  the CSE authorized these consults, is inaccurate (District brief page 18).  The record shows that Dr. Federici concluded that P.L. needed ABA/VBA services in May 2008, and that the parents requested these services at the CSE meeting in June 2008.  Nothing in the record suggests that the parents’ and/or Dr. Federici requested the consults of Ms. Cush and/or Dr. Maier to determine whether P.L. needed ABA or VBA service during the second grade.

The District’s assertion that the 2nd grade staff was adequately trained by Ms. Cush in ABA is also unpersuasive.  Again, Ms. Cush was not called to testified at the hearing, as such the record is devoid of any direct information from Ms. Cush regarding the alleged training.  However, Ms. Flamenhaft, who attended the Cush training, testified that it was an “overview” of ABA and that “they were not trained on data collection” and that they were not trained on the “entire scope and sequence of ABA procedures “(Tr. 205).

Based on the foregoing I find that the District failed to offer P.L. FAPE for this school year in that the District failed to adequately consider and/or address the results Dr. Federici’s evaluation, which was the most recent evaluation for P.L. and by far the most comprehensive at the time of CSE meeting.  Additionally, I find that the District’s failure to address P.L.’s executive functioning deficits in the subject IEP by failing to offer P.L. any direct neuro-cognitive interventions resulted in a denial of FAPE. 20 U.S.C. Secion1414(d)(3

Further, the record shows on October 28, 2008, the CSE reconvened and reduced P.L.’s  1:1 aide from 6 hours per day to 2 and 1/2 hours per day.  The record contains an IEP, dated June 24, 2008, offered by the District as Exhibit “9,” which indicates that P.L was assigned a 1:1 aide for 2 hours and 20 minutes per day.  The record also contains an IEP of the same date, offered by the parents at Exhibit “NN,” that indicates that P.L. was assigned a 1:1 aide, for 6 hours per day.  The discrepancy was not clarified at the hearing, however, Joseph DeCaro, the District’s Director of Pupil Personnel Services, confirmed that the October 28, 2008 CSE was held, in part, to reduce the hours of service for P.L.’s aide (Tr. 1417).  Mr. DeCaro also testified that the parents were made aware of the change in aide services prior to the October CSE meeting by the school’s principal and the classroom teacher (Tr. 1420). The record shows that the parents objected to the reduction in P.L.’s aide services..  Accordingly, I find the District’s action in this regard was improper and also resulted in a denial of FAPE because the decision to reduce P.L.’s aide services occurred outside the CSE progress without the consent of the parents. (Commissioner’s Regulations Section 200.4).

Further, the IEP indicates that the only other placement option considered by the CSE  for P.L. was  a general education setting with related services.  The IEP indicates that this option was rejected because P.L.’s “current language processing, academic, social/emotional and physical need” indicated that a more intensive support was required to aid P.L. in learning.  (District Exhibit “ “ page 7).  The IEP does not indicate that the CSE considered a self-contained class or any other more restrictive setting than the District’s inclusion class.  Significantly, the record shows that the District does not have a more restrictive placement than the inclusion class for 2nd grade.

Finally, contrary to the District’s assertion, I  find that  P.L did not make measurable progress during the 2nd grade.  Although the District’s report cards and the District’s IEP progress reports suggest that P.L. made some progress, in some areas, Dr. Feeney testified that P.L. was not accessing the second grade curriculum and that most of the work produced by P.L. could not be produced without a high level of support and prompts from his aide.  Lastly, no testing results and/or formal assessments were offered to confirm P.L.’s alleged progress in the second grade.

For all the reasons set forth above, I find that the District failed to offer P.L. FAPE for the 2008-2009 school year.

The 2009-2010 School Year:

On September 3, 2009, the CSE convened to consider the parent’s’  request for IEE’s and amend the 2009-2010 IEP for P.L.’s 3rdgrade placement. The CSE, along with the parents and Dr. Feeney, met for approximately 7 hours to develop this IEP..

The record shows that the evaluations conducted by Abilities First and Dr. Feeney were reviewed at this meeting.  The final IEP for the 2009-2010 school year, recommended the District’s inclusion class for the 3rd grade, with the addition of a 30-minute, 1:1 reading session at the end of the day.  The CSE also agreed to consult with Dr. Feeney throughout the year and recommended a three-week sensory integration program as suggested by the Abilities First evaluation.  The IEP indicated that the general education teacher would teach Math, Science and Social Studies with approximately 21 students and the special education teacher would teach reading and language arts in a group of 12.  P.L. would also have a 1:1 aide (District Exhibit 5, Tr. 1004).

On September 7, 2009, the parents’ advised the District that they were objecting this IEP, but enrolled P.L. in the District’s program on September 14, 2009, because they could not find an available seat at a BOCES PEACE class.

Here, the record shows that the District not only had the neuro-psychological evaluation conducted by Dr. Federici, but also had the extensive report prepared by Dr. Feeney.  Both evaluations recommended a program that would address P.L.’s significant executive function needs.  Both evaluations determined that P.L. needed 1;1 instruction and that a system of data collection regarding P.L.’s progress was critical.  Dr. Federici and Dr. Feeney also stressed the importance of collaboration between the District and the home.  Unfortunately, the record shows that these recommendations failed to materialize for P.L. during the 3rdgrade.

First, the District’s assertion that P.L.’s third grade team was trained by Dr. Feeney in belied by the record. Dr. Feeney testified at the hearing that although he was asked to conduct a “mini” training for District staff in September 2009, the “mini” training did not take place due to time constraints imposed by the CSE.  Dr. Feeney testified that there was only enough time for him to circulate out a “hand-out” on executive functioning  techniques to the CSE team.

Second, this IEP again did not provide for any neuro-cognitive rehabilitation services, such as ABA or VBA services, and nothing in the IEP or program offered to P.L. for this school year provided for 1:1 instruction or small group instruction, with the exception of the 30 minute reading session provided by Ms. Comerford.

Additionally, although Dr. Federici and Dr. Feeney strongly advised the District to develop a data collection system in order to track the effectiveness of P.L.’s program, and to determined whether P.L. was actually making any progress, P.L.’s lead 3rd grade teacher, Lydia Cordier, refused to do so.  Specifically, Ms. Cordier testified that data collection “gets in way” and that it was “too hard” (Tr. 345).

Dr. Feeney also recommended that P.L. be pull out for pre-teaching, one to one, and that review of the material should be followed by P.L.’s aide.  Ms. Cordier testified that the 1;1 pre-teaching, review and small group instruction were not implemented in P.L.’s 3rd grade inclusion class (Tr. 348).

Dr. Feeney also recommended that communication between the school and the home should be established in order for the parent to assist P.L. with recalling some of the events that occurred during his academic day.  This came about because Dr. Feeney and the parent observed that P.L. could not recall events that took place earlier in the day.  Ms. Cordier’s response to this suggestion was to tell the parent what P.L. had for lunch, or what the students did during recess.  Ms. Cordier did not relate to the parent anything about P.L.’s academic day.

In December 2009, the District informed the parents that P.L.’s aide, Ms. Hall, who was assigned to him individually, would be replaced by Ms. Carmody, the classroom aide for the 3rd grade class.  The record shows that Ms. Carmody was Ms. Cordier’s classroom aide for the last 15 years where she acted as the aide for all the students in the classroom.  The District’s “reassignment”  of Ms. Carmody and the removal of Ms. Hall reduced the adult presence in the classroom from 3 to 2.  The record shows that this was not contemplated at the CSE meeting when the IEP was developed, nor  does the record suggest that the parents consented to the reassignment of Ms. Hall.  Additionally, the District’s position that the removal of Ms. Hall was proper because the IEP indicated that the aide’s services were at the discretion of Ms. Cordier, is misplaced.  Nothing in IEP suggests that Ms. Cordier had the authority to “reassign” Ms. Hall outside the CSE process. Section 200.4(g) of the Commissioner’s Regulations mandate that any amendment to the IEP must occur at the CSE and/or with the parents consent.  Facts not present here.

Another significant issue for P.L during the third grade was P.L.’s incontinence.  Although the record shows that this was an issue for part of the second grade, the record shows that Ms. Flamenhaft developed a toileting plan for P.L. and that the situation  improved.  Unfortunately, the record shows that P.L. regressed in this area during the third grade and that Ms. Cordier failed to develop an appropriate program to address this issue (Tr. 356).  Interestingly, on one occasion, Ms. Cordier admitted that instead of telling the parents that P.L. had an accident at school, Ms. Cordier took P.L.’s soiled clothing home during the school day and washed it so P.L. could continue the rest of the day in dry clothing (Tr. 377). P.L.’s mother testified that P.L. told her that this happened on more than one occasion.

With respect to academic instruction, Dr. Feeney testified that Lydia Cordier’s opinion about special education did not match P.L.’s needs (Tr. 1319).  Dr. Feeney also testified that none of the goals set forth in his report (page 48), were incorporated into P.L.’s September 2009 IEP (Tr. 1333), and that he did not see the executive system framework that he recommended in use at school in P.L.’s third grade class (Tr.1469).

Finally, although Ms. Cordier testified that P.L. was making progress in the 3rd grade, Ms. Cordier admitted that she refused to write any comments on P.L.’s  progress reports because she did want to defend her comments in any subsequent litigation (Tr. 419).

Based on the foregoing, I find that the District failed to offer P.L. FAPE for the 2009-2010 school year.

Dr. Federici Testing:

The District assertion that the Dr. Federici’s failure to follow psychological assessment protocols on some of his testing warrants a finding that Dr. Federici’s findings are invalid, is unpersuasive.  Although the record indicates that Dr. Federici took some “short cuts” with respect to some of the testing protocols, and that he used an older version of the Connner’s and ACTeRS Rating Scales, among others, the record shows that Dr. Federici’s testing results from 2006, 2008 and 2010, were consistent.  Moreover, Dr. Feeney, whose observations and testing results regarding P.L. appeared to be accepted by the District, were aligned with Dr. Federici’s results.  As such, I give full weight to Dr. Federici’s testing results and his recommendations for P.L.

Child Protective Services:

Sometime in March 2010, a report was made to Child Protective Services (”CPS”) alleging that P.L.’s parents were not providing adequate guardianship of P.L.  The record shows that the allegations involved the “toileting” program implemented by the parents at home. The CPS investigation determined that the allegations were unfounded.  The parents believe that the District called CPS in an effort to retaliate against them for demanding services for P.L.  The District denied calling CPS and contends that any conversion with CPS was confidential.  As such, the record is insufficient for me to make a ruling on this issue.

2010-2011 School Year:

In April 19, 2010, the CSE convened and developed and IEP for fourth grade.

This IEP, with minor modifications, was essentially the same program recommended for P.L. in second and third grade.  For the reasons set forth above, I find that this IEP also failed to offer P.L. FAPE.

ESY Services 2010:

At the CSE meeting held of April 19, 2010, the District determined that P.L. was not eligible for  ESY services because there has was no showing that P.L.’s skills would have significantly regressed over the course of an extended school break.

The guidelines published by New York State Office of Vocational and Educational Services for Individuals with Disabilities (VESID) provide the following:

A student is eligible for a twelve month services or program when the period of review or reteaching to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for the purpose at the beginning of the school year.  The typical period for review or reteaching ranges between 20 and 40 school days.  As a guideline for determining eligibility for extended school year program a review Period of eight weeks or more would indicate that substantial regression had occurred.

(www.vesid.nysed.gov/sPed/2009QA.com)

After the parents’ filed their due process complaint in May 2010, the District offered P.L. summer services under the pendency provisions of the IDEA.  As such, the issue of summer services for 2010 is moot.  Nevertheless, Ms. Cordier, P.L.’s special education teacher at the time the decision was made not to offer summer services, testified that she was not part of this decision.  The record also shows that P.L.’s reading skills significantly decreased between first grade and second grade, even with reading services during the intervening summer.  Accordingly, I find the District’s decision not to include summer services for 2010 was improper.  I also find that P.L.’s educational needs warrant a 12-month placement.

Compensatory Services:

Compensatory education is a permissible remedy under the IDEA when the student has been excluded from school or denied appropriate educational services for an extended period of time (Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir. 1986]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

Here, the parents request placement of P.L. in a 12 month BOCES PEACE class for the 2010-2011 school year, among other things.  I find that the parents are entitled to compensatory services based on the denial of FAPE for the 2008-2009, 2009-2010 and 2010-2011 school years.  As indicated above, despite the overwhelming evidence that P.L. is a very complex child, with significant educational needs, the District failed to offer P.L. an appropriate program for three consecutive  school years.  For all the reasons set forth above, I find the District’s inclusion class is not the appropriate educational setting for P.L.

Marie Manteria, P.L.’s special education teacher at the BOCES PEACE class in the summer of 2010, testified that her class is a very structured environment where students are taught 1:1 in all academic areas using the Treatment and Education of Autistic and Communication Handicapped Children program (TEACCH).  Ms. Manteria testified that she  works along side with related services staff such as speech and language pathologists, occupational therapists, physical therapists and counselors to provide a full education for students on the autism spectrum (Tr. 1849). Ms. Manteria described her class as a 6:1:1 with students functioning on different academic levels.  Ms. Manteria described P.L. as being in the middle of the class academically with respect to her other students.  Ms. Manteria also testified that within two weeks of P.L. of using a simple schedule and a reward system, P.L. was no longer incontinent during the day.  She also testified that P.L. made progress in writing, his most difficult subject, in the short amount of time he was in her class.  Finally, Ms. Manteria testified that P.L. has done well in her program and that P.L. was a good “fit” in her class (Tr. 1858).

Based on the record before me, I find that placement in a 12-month BOCES PEACE class is an appropriate remedy that is tailored to meet the circumstances of this case.  As indicated above, the BOCES PEACE class provides 1:1 instruction in all academic areas and the classroom teacher works side by side with the student’s related services providers. Significantly, the record shows that that during the short time P.L. was placed in this class, P.L. made academic progress and controlled his incontinence.

LRE:

The District’s asserts that any placement more restrictive than their inclusion class would not be in P.L.’s least restrictive environment.  Again, I disagree.

The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). “[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student’s] needs” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).

Federal courts have long recognized that IDEA’s requirement that disabled students be educated in the LRE was not an issue before the Court in Rowley and consequently, the test for determining the provision of FAPE set forth therein offers little guidance for determining whether a student is being educated in the LRE (20 U.S.C. § 1412[a][5][A]; see Daniel R.R., 874 F.2d at 1045 [recognizing that the analysis in Rowley “is [ill-suited to] evaluating compliance with the LRE requirement”]; A.W. v. Northwest R-1 Sch. Dis., 813 F.2d 158, 163 n.7 [8th Cir. 1987], cert. denied, 484 U.S. 847 [1987] [FAPE analysis set forth in Rowleyassumes compliance with the other requirements of IDEA, including the LRE requirement]; Roncker v. Walter, 700 F.2d 1058, 1062 [6th Cir. 1983], cert. denied, 464 U.S. 864 [1983] [holding Rowley test was not dispositive of LRE requirement]; Mavis, 839 F. Supp. at 982 [Rowley test is “not particularly useful” in LRE cases]; Application of a Child with a Disability, Appeal No. 03-009).

The Supreme Court has not yet established a standard for evaluating whether a school district has complied with the IDEA’s LRE requirement. However, several district courts within the Second Circuit have adopted the Daniel R.R./Oberti analysis for determining whether a school district has complied with IDEA’s LRE mandate (see Warton, 217 F. Supp.2d 261; A.S. v. Norwalk, 183 F. Supp.2d 534; Mavis, 839 F. Supp. 968; Application of a Child with a Disability, Appeal No. 03-009). The State Review Officers have also followed Daniel R.R./Oberti and their progeny (Application of a Child with a Disability, Appeal No. 03-009;Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24;Application of a Child with a Disability, Appeal No. 98-12; Application of a Child with a Disability, Appeal No. 95-15;Application of a Child with a Disability, Appeal No. 94-27; Application of a Child with a Disability, Appeal No. 94-23;Application of a Child with a Disability, Appeal No. 94-21).

The Daniel R.R./Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services, and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R., 874 F.2d at 1048;Oberti 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985;Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors include, but are not limited to: “(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class” (Oberti, 995 F.2d at 1217-18; see also, Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-990; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093;Application of a Child with a Disability, Appeal No. 94-21).

Here, the record shows that the District could not implement Dr. Feeney and/or Dr. Federici’s recommendations into their inclusion class. Specifically, the record shows that there was no opportunity for 1:1 instruction in the core academic subjects, and that the classroom teachers could not perform the recommended data collection, which the records suggest is critical in understanding whether P.L. is accessing his education and whether he is making any academic progress.  Additionally, the record shows that the inclusion class was too large and too “busy” to implement the “Goal, Plan-Review” program recommended by Dr. Feeney.  Moreover, instead of implementing additional supplementary aids and services to  address P.L.’s significant academic needs, the District terminated the services of his1:1 aide outside the CSE process.

Finally, although Dr. Feeney testified that P.L. would benefit from interaction with his typical peers, in this case, the record shows that P.L.’s academic needs were not being met in the District’s inclusion class and that P.L. was not accessing the curriculum.  Accordingly, I find the BOCES PEACE class is appropriate for P.L. and that the placement is in the least restrictive environment.

Prospective Public Placement:

The District’s position that the parent’s requested for prospective placement in a public program is not permissible under the IDEA is unpersuasive (Application of a CHILD WITH A DISABILITY, 07-070).

In SRO 07-070, the State Review Officer held that in the absence of controlling legal authority that limits tuition reimbursement claims to unilateral placements in private school, in appropriate circumstances, the IDEA permits an award of tuition reimbursement for the unilateral placement of a child in a public school (see 20 U.S.C. § 1415(i)(2)(C)(iii); Educ. Law § 4404[2];Burlington, 471 U.S. at 370-7. I find that the circumstances of this case warrant that P.L. be placed in the BOCES PEACE class, as the record is devoid of any evidence that a private day program is available in the subject geographical area to meet the academic and social/emotional needs of P.L.  As such, the parents’ request for placement at the BOCES PEACE class for the 2010-2011 is granted.

The Equities:

The District contends that parent’s requested relief must also be denied on equitable grounds.  I find nothing in the record to suggest that the parents failed to cooperate with the District and/or with the CSE process.  As such, I find the equities do not warrant a denial of the requested relief.

ORDERED

The District shall place P.L. in a 12 month BOCES PEACE class for the 2010-2011 school year.

Dated: New York, New York

October 4, 2010

James McKeever, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO RECORD PY THE DISTRICT

  1. Due Process Complaint with attachments 5/4/10 297 pages
  2. Prior Notice 5/19/10 10 pages
  3. Resolution Agreement 5/19/10 3 pages
  4. IEP with Prior Written Notice 4/19/10 18 pages
  5. IEP 9/3/09 15 pages
  6. IEP 5/20/09 11 pages
  7. IEP 2/9/09 14 pages
  8. IEP 1/28/09 2 pages
  9. IEP 10/28/08 13 pages
  10. IEP 6/24/08 13 pages
  11. IEP Progress Reports 2009-2010 7 pages
  12. Report Card 2009-2010 1 page
  13. Occupational Therapy Review 3 pages
  14. Speech and Language Summary 3 pages
  15. OT Consultation Report-Abilities 5 pages
  16. OT Sensory Integration Plan-Abilities  2 pages
  17. Physiatry Evaluation-Abilities 3 pages
  18. OT Eval. Abilities 8 pages
  19. OT Eval. Abilities J. Leipham 5 pages
  20. Literary Assessment Dr. Feeney 50 pages
  21. PT Eval. Abilities 3 pages
  22. Report Card 2008-2009 1 page
  23. IEP Progress Report 2008-2009 7 pages
  24. Classroom Observation OT-Abilities 2 pages
  25. Classroom Observation PT-Abilities 2 pages
  26. Progress Report-Flamenhaft 1 page
  27. Autism Consultation-Anderson Center- J. Cush 2 pages
  28. Educational Consult-Children’s Annex-A Maier 2 pages
  29. Autism Consultation-Anderson Center-J.Cush 2 pages
  30. Physical Education Teacher Summer-K. Terris 1 page
  31. OT/PT Update M. Cayea and J. Rossi 1 page
  32. Neuropsychological Evaluation Dr. Federici 32 pages
  33. IEP 1/14/10 15 pages
  34. IEP 4/19/10 11 pages
  35. Class Schedule 09-10 1 pages
  36. Spelling Samples 09-10 13 pages
  37. Progress Report 99 pages
  38. Attendance Records 09-10 2 Pages
  39. Medical and Health Records undated 5 Pages
  40. Email correspondence 2008-2010 68 pages
  41. District Correspondence 2009-2010 28 pages
  42. Evaluation and Interpretation Guide undated 1 page
  43. District OT Evaluation 200802009 11 pages
  44. Connors Protocols-Dr. Federici Testing undated 4 pages
  45. TAPS-3 subtest Protocol 1 Page
  46. Parent PRIEF raw date form Dr. Federici Testing 3 pages
  47. GORT-4 Appendix C- undated1 Page
  48. (1-24) Protocol Data from Dr. Federici 2010 Evaluation 184 pages

DOCUMENTATION ENTERED INTO RECORD PY THE PARENT

  1. Due Process request 5/4/10 29 294 pages
  2. B1-4 Neuropsychological Report 6/4/10  66 pages
  3. Letter 3.19.09 1 Page
  4. Letter 4/14/10 3 Pages
  5. Letter 4/20/10 1 Page
  6. Letter 4//22/10 5 Pages
  7. Letter 5/14/10 5 Pages
  8. Letter 1 page
  9. Letter 8 pages
  10. NYS Math Assessment 11 Pages
  11. 3rd Grade Schedule 1 page
  12. Fetal Alcohol Syndrome info 8 Pages
  13. Email January 20080May 2010 94 Pages
  14. Letters 6/2/10 2 Pages
  15. Letter 6/7/10 16 Pages
  16. Letter 11/4/09 1 Page
  17. 3rd Grade Progress Report 1 Page
  18. DRA Reading Levels 1 Page
  19. 3rd Grade Agenda 7 Pages
  20. Neuropsychological Report 6/18/10 28 Pages
  21. Letter  Student 6/15/10 1 Pages
  22. Guide on Fetal Alcohol Spectrum Disorder undated 36 Pages
  23. Journal Entries 3 Pages
  24. Skills Data Sheets 3 Pages
  25. IEP Jan 2010 Goal Achievement 6/11,6/15, 6/21/10 9 Pages-
  26. Math Skills Assessment undated 9 Pages Home Program 1 Page
  27. Home Teacher Logs undated 9 Pages
  28. IEP Progress Report 2009-2010 1 Page
  29. Progress Report 2009-2010 1 Page
  30. Reading Progress Report 2009-2010 1 Page
  31. Raw Data Neuropsychological Eval. 6/4/10 9 Pages
  32. Educational Records Part A undated 29 Pages
  33. NYS Ed. Dep’t. Autism indicators undated 15 Pages
  34. Educational Records Part P 29 Pages
  35. Info located by District re NACD’s Efficacy undated 19 Pages
  36. JJ.              OT and PT Scripts 9/4/09 1 Page
  37. Counseling Sessions Materials undated 32 Pages
  38. Emails Non-Public schools 3 Pages
  39. Letter 6/23/10 1 Page
  40. IEP 2008-2009 6/24/08 12 Pages
  41. Toileting Charts 2008-2009 8 Pages
  42. S. Comerford’s Notes undated 3 Pages
  43. Letter 9/8/09 2 Pages
  44. Class work samples POCES PEACCE 8/10 5 Pages
  45. ID only
  46. Affidavit Dr. Federici 8/12/10 3 Pages
Gale Prol 

71.33.67.214

Wow!What a lot of work and totally worth it. Congratulations!

kate 

76.120.237.75

I have been following your blog..found it one night as I was researching autism. I have an adopted little one ,now 4, just beginning pre-school and “spectrum of autism” keeps coming up from those that work with him. I have been invited to our first meeting to address concerns next week. Here we go…..I am ready. I am strengthened for my journey ahead to read about your family. I am delighted that your little boy is with his forever family that will fight to give him the opportunity to grow with love, nurturing and security and now he will have the opportunity to learn in the manner best suited to his needs. You set the bar as an example of loving concerned devoted adoptive parents.

ani 

70.45.41.0

Wooo hooo!!!!! So excited for Peter and all of you! May this be a spectacular school year for Peter!

Tamara Grant 

108.56.185.200

I am so thrilled for you…coming late to the party as I hadn’t read your blog for a week or so, but my heart leaps for you and your family, and especially Peter! God bless and godspeed to all of you! With love -

jennifer
jbatten@kc.rr.com
75.87.180.163

when does the civil suit start? I want a front row ticket for that !!!

Errin Weigel 

216.197.254.25

Wonderful news! I hope that this case has set a precedent that will assist other parents in securing the appropriate support services for their children.

Maria 

65.217.214.3

Congratulations to you and your family and I am so happy that all of your hard work and efforts paid off! I hope this outcome will force the school district to reevaluate its conduct in your case and to behave in the best interests of the child in the future and without any resentment or hostility towards the parents. I’ve been following your blog for months now and am constantly amazed by your patience, perseverance and good heart. Good luck to you!

Shawn 

204.210.152.166

Congratulations! I applaud you and your family’s perseverance in the face of such daunting opposition by RHCSD. BRAVO!!!!!!!!

Melissa 

68.194.181.100

Been following your blog for a while. I am thrilled that you got what your son (and your family) deserve. I hope Peter flourishes! Congratulations! When does he start?

Kerrie Andrews 

58.179.79.253

Very pleased to see your efforts were not in vain. And very pleased to see that Peter will now get the help he has always deserved and needs.

Janet 

71.251.209.73

Hooray!! Finally some sanity. I hope Peter gets to start this week!

Sherrie 

173.55.207.189

Congratulations to one and all. God does answer prayer and I will continue to pray for your entire family. Loving hugs from California

NotTheMama 

206.53.157.1

I did a little dance in the car when I read this! (Don’t worry, hubby was driving lol)
Now Peter can get the education he needs and deserves, in an environment fitting for him. I know it’s such a load off of ALL of you. Congratulations!

lauri 

99.76.14.190

congrats

so happy for your family, praying peter finally gets the education he deserves

Christopher Duncan 

204.210.138.197

Congratulations to you and your husband, Mary. Well done. May Peter get the appropriate education! And will any of this get into the newspapers? I hope so.

Chris

Soper 

98.93.108.181

Congratulations! I hope that Peter now gets the help he needs, and that it will bring a long overdue spell of calm to your home so you can focus on Sophie’s emerging needs. So relieved for you all…

moroccanadian 

64.180.85.46

Congratulations! I’m so pleased for you. What wonderful news. :)

Tami 

76.99.196.72

WONDERFUL! This is the best news; I am so happy for all of you! We’ll be celebrating with you in our hearts tonight. Blessings to you -

Nan 

173.76.203.55

Woo Hoo! Not only does Peter win, but there has to be a sense of sweet vindication for you and Pat, given the fact that the school district, staff, policies, procedures and documentation were found so thoroughly lacking. I truly hope that Peter can continue on his new path toward his best possible future, and that your family can have at least the momentary calm of knowing you’ve fought the good fight and won!

Bradley St Paul 

213.255.230.131

There is nothing better than seeing good things happen to good people. Congratulations. This will have a ripple effect that will spread joy and ease throughout your entire family. Enjoy the sunshine.

Brad

Kimberly 

76.174.4.63

I and my book team rejoice with you and for you all, Mary, Pat, Peter and Sophie, and for the ones to follow! This whole situation is proof positive that with God, the impossible is possible….
Blessings and congratulations for perservering

Beth B 

188.223.42.255

My god, I’ve just read through the conclusions, what sweet sweet vindication. Fail. Fail. Fail. They failed Peter at every turn. You kicked some arse there. Glorious. Today you celebrate in the full knowledge that you have done the right thing by your son, even though the cost was high both in financial and emotional currency this was the right path to take. Well done.

Karen 

99.35.12.240

Great News I am so glad to see justice prevail!!

Karen

Desiree 

70.76.131.248

Wow…I have to admit I didn’t read all that but am astonished at how many court dates you’ve had to attend. Congrats! I’m glad that battle is over for you!

Sheryl 

173.86.66.168

Mary, The sun really did come out ! Congratulations ….what wonderful news for Peter and your family ! I am so happy for all of you !

Kristine (Mommy Needs Therapy) 

68.45.176.131

I can’t adequately express how happy I was to see this in my email box! I’ve had to fight just a fraction of the fight you have had and I know how overwhelming and exhausting it is. Congratulations! You are an amazing woman to fight so hard and so long. So many families would have given up well before this, not for lack of love and caring for their child, but because they had no more strength to go on.

It just amazes me that the school district would try to discredit Dr. Federici.

Again congratulations!!

Claire 

166.137.140.210

Yes yes yes! Humanity and good sense prevails! Take some time to enjoy this beautiful news and to congratulate yourselves on such a wonderful job. It’s ridiculous that you had to go through all this and I’m sorry that you did. But I’m glad that goodness and right prevailed

Cathy 

75.80.135.184

Wow! Great news, Peter is so lucky to have a mom like you!

Meg Coldwells 

69.231.32.93

I was BEYOND THRILLED to read this headline this morning! Congrats to you all for standing your ground for your son. (and others like him who do not have their own voice) Your tenacity and perseverance PAID OFF big time!!! You must be elated. Wishing you all the best, and hoping you take some time to really celebrate this victory.
With blessings,
Meg

Anne 

70.88.216.97

Just delurking to say congratulations, that is such great news!

Lauren 

76.184.228.120

Ahhhh!!!! I’ve been following your story for months. I am just so happy for you and your family! Yay for Peter!!! Yay for you!!! Here’s to a great school year in a program that works for Peter! This put such a big smile on my face this morning!!!

Kathleen 

64.12.116.10

Hallelujah! What a relief. I can’t believe that I feel a great weight has been lifted off of ME, LOL. If that’s the case, YOU must be delerious with joy. Congratulations and blessings to you all.

laurie 

69.126.32.74

I am so happy for you and your family….. have been reading your posts since I read the article in the Poughkeepsie Journal….shame on Red Hook School district…..again congrats

Elizabeth 

65.123.19.62

YAYAYAYAYAY!!! This made my day! I am SO happy for Peter and the whole family!

Loraine 

68.41.169.150

I am ecstatic for Peter and your family. Finally, some much deserved peace of mind for you.

Nancy Crenshaw
67.164.180.231

Dearest Mary,

You’re accomplishments are too great to list. What you and Pat have done for your children is immeasurable. I am very concerned for Sophie. Her life has been both blessed and so unfair. She will be the focus of my prayers. Never doubt yourself. You give the gift of life to your children on a daily basis. No one could do more.

ani 

70.45.41.0

no words, just hugs for you (and pat and sophie and peter).

4 Comments »

  1. I can relate to so much of your story with your children – for worse and for better. Thank you for having the courage to share so honestly all of your experience. You are helping me to do the same. And congratulations on every one of your family’s victories, including this latest one.

    BTW, I run a nonprofit organization, SPOON Foundation, that works to improve nutrition for orphaned and adopted children. I think we can help each other help more people. Please be in touch. You can find me through our website: http://www.spoonfoundation.org or http://www.adoptionnutriiton.org

    Best,
    Cindy

    Comment by cindy kaplan — January 12, 2011 @ 12:10 am | Reply

  2. wow, I am in such a similar situation and would love to be able to access some of the info you submitted during the due process hearing relating to FAS and orphanages. Any way to access as I start my trail down the same path?
    thanks
    Arlene

    Comment by arlene mccoy — June 26, 2011 @ 5:45 pm | Reply

    • Arlene – much of my strategy centered around trying to reproduce at home what his teachers said he could do
      at school, and carefully documenting the discrepancies. It no doubt helped that we had a certified special
      ed. teacher who worked with him privately at home and was able to testify and show his “real” work. Plus,
      we insisted on outside evaluations for OT, PT, speech/language, and even neuropsychological testing. All
      of those results contradicted what the school was claiming. That seemed to carry the most weight. All of
      the articles we submitted on educating those with FAS, etc., seemed to carry little to no weight with the hearing officer. Last hint: I documented, mostly through emails, every single IEP wrongdoing along the way and was able to introduce all of that into evidence. Good luck!

      Comment by whenrainhurts — July 4, 2011 @ 11:14 am | Reply

  3. thank you, I also have contracted with Dr Federici to conduct a neurological evaluation on my oldest son, but not until end of August. I have 3 adopted sons from Eastern Europe with possible FAS, varying degrees. I would love to email with you if that is possible?
    arlene

    Comment by arlene mccoy — July 6, 2011 @ 11:53 pm | Reply


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