Decisions

DJ v. Alden

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In Re The Alden Central School District
and K.J.

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FINDINGS OF FACT AND DECISION

Impartial Hearing Officer
James McKeever, Esq.

June 12, 2006
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FINDINGS OF FACT AND DECISION
   NYS Case Identifier No.: 19344
   Student’s Name: K. J.
   District:   The Alden Central School District
   Hearing Requested By: Parent
Dates Of Hearing: April 10, 2006 and April 25, 2006

   Hearing Officer: James McKeever, Esq.

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Hearing Officer’s Findings of Fact and Decision
Case No. 19344
__________________________________________________________________
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2006
DJ:      Parent
H. Jeffrey Marcus, Esq.:   Attorney for parent
Jeffrey J. Weiss, Esq.    Attorney for School District
Elizabeth D. Carlson, Esq:   Attorney for School District
Kenneth Condrell:      Psychologist
Hillary Bowen:    CSE Chairperson
Arthur Becker-Weidman:   Psychologist
Ann Terranova Gaca:    Tutor
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2006
DJ:      Parent
H. Jeffrey Marcus, Esq.:   Attorney for parent
Jeffrey J. Weiss, Esq.    Attorney for School District
Elizabeth D. Carlson, Esq:   Attorney for School District
Susan Biller:     Guidance Counselor
Adam Stoltman:    Principal
Jule Tomm: Care Coordinator-New Directions for Youth
and Family Services

Laura Kelemen: Child and Family Therapist- New Directions for
Youth and Family Services


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Hearing Officer’s Findings of Fact and Decision
Case No. 19344
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On April 10, 2006, and April 25, 2006, I conducted an Impartial Hearing
regarding the parent’s request for an order directing the Alden Central School District
(hereinafter referred to as “District”) to provide the following relief:
(1) Home instruction;
(2) Additional instruction to makeup for the days during which the child did
not receive instruction, and

(3) Attorney’s fees (see, Due Process Request P-B.).
The parent’s Due Process Complaint was brought pursuant Individuals with
Disabilities Education Act (IDEA), Part 200.5 of the New York State Special Education
Regulations and Section 504 of the Rehabilitation Act.
The parent alleges that the School District’s failure to provide instruction in the
home from approximately January 26, 2006, to April 5, 2006, denied the subject child a
free and appropriate education for the school year 2005-2006. The School District
contends that it has fully complied with the child’s IEP, dated January 25, 2006, which
calls for home instruction services to be provided two hours a day, five days per week,
“off site” (P-D).   The District maintains that because the home setting was inappropriate
for instruction, arrangements were made to provide the services at a neutral “off site”
location.
KJ is a thirteen-year-old girl who suffers from Reactive Attachment Disorder.
Reactive Attachment Disorder (“RAD”) is a severe developmental disorder that is caused
by chronic maltreatment in the first 18 months to three years of life. The disorder is
characterized by the lack of ability to form meaningful relationships (Tr. 189).   KJ’s
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treating psychologist, Arthur Becker-Weidman, Ph.D., a specialist in the treatment of
RAD, testified that in order to treat RAD you much address the underlying trauma and
then engage in activities to create a healthy and secure attachment with the child’s current
parent (Tr. 195). According to Dr. Weidman, the treatment involves 24 hours a day
contact between the parent and the child. Dr. Weidman, among other things,
recommended that KJ be kept home on a full-time basis until KJ was developmentally
ready to attend school (Tr. 196).
On December 15, 2005, the Committee on Special Education (“CSE”) drafted an
Individualized Education Program (“IEP”) that recommended a 6:1:1 program with a
built-in counseling component. The CSE noted that if the child’s behavior became
unacceptable during the canvassing process, home tutoring would become available (P-D
(1)). On or about December 17, 2005, the District received Dr. Weidman’s initial report
that recommended home instruction (Tr. 96). The District did not initially support Dr.
Weidman’s recommendation and continued to recommend a 6:1:1 placement (Tr. 97).
On or about January 4, 2006, the District received a letter from Hartman and
Ridall, the parent’s attorney’s at the time, requesting that the District provide instruction
in the home (Tr. 102).
On or about, January 10, 2006, the District arranged for instruction in the home.
Ann Gaca, the tutor contracted by the District to provide instruction in the home, testified
that she first went to the home on January 10, 2006, however, on this date the parent
advised that there no room in which to provide instruction in the home (Tr. 107). Ms.
Gaca drove KJ to the library and provided the instruction there. The next day the District
advised Ms. Gaca that the instruction must be provided in the home (Tr. 108). Ms. Gaca
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returned to the home on January 11, 2006, and provided instruction in the child’s
bedroom. Ms. Gaca testified that she was uncomfortable in the child’s bedroom because,
among other things, the floors were bare, there was a video camera on the wall and there
was a “senior citizens” porta-a-sand in the room that smelled of ammonia (Tr.272-273).
Ms. Gaca also testified that the room was small and not conducive to providing
instruction and that the conditions of the room raised a “red flag.” (Tr.295). On the
following day, Ms. Gaca reported what she observed in the child’s bedroom to the
District and requested that she be relieved of her assignment (Tr.109). The next day the
District superintendent, Donald Raw, directed that home instruction would not be
provided in the home but at a neutral site (Tr. 110-111). At this time the District advised
the parent via a telephone message and emails that instruction would take place at the
Lancaster Public Library and that the parent was required to transport KJ to the library
(Tr. 113).
On or about January 26, 2006, the CSE reconvened and generated a new IEP,
which indicated that home instruction would be provided “off-site” (see, IEP dated
1/26/06 at P-D).
Hillary Bowen, the Director of Special Education and the CSE chairperson for the
Alden Central School District, testified that a CSE meeting was held on January 26,
2006, to modify the IEP to reflect the superintendent’s direction that home tutoring would
occur “off-site” (Tr. 111).   Ms. Bowen also testified that tutoring at the Lancaster
Library was arranged because the Alden Library was not open every day (Tr. 117). Ms.
Bowen was aware that the parent objected to tutoring at the Lancaster Library because it
was not consistent with Dr. Weidman’s recommendation and because the parent could
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not transport KJ to the library and/or be present during the time of instruction (Tr. 126).
Ms. Bowen testified that the District was aware that two other tutors were available and
willing to provide instruction in the home (Tr. 176).   In addition, the parent provided the
district with the name of her own tutor who was also available and willing to provide
home instruction (Tr.139). According, to the District the issue was not one of willingness,
but whether it was appropriate to provide instruction in the home. The District sent tutors
to the Lancaster library on January 30th, January 31st, February 1st and February 2nd.
Thereafter, the District ceased sending the tutors because KJ did not appear at the library
for instruction (Tr. 122).
Subsequent to the CSE and the IEP, dated January 26, 2006, the parent requested
to home school KJ and home instruction by the parent was granted by the superintendent
on March 13, 2006 (Tr. 144). On April 4, 2006, the request for home schooling was
withdrawn by the parent and on April 5th, tutoring resumed in the home. (Tr. 156).
Adam Stoltman, the school principal, testified that he was aware of the report
made by Ms. Gaca concerning her impression of KJ’s bedroom and that the decision to
discontinue instruction in the home was made by himself and Ms. Bowen (Tr. 330, 331).
Jule Tomm, who is employed as the care coordinator for the wrap around program
at New Directions for Youth and Family Services, a nonprofit agency that works with
families, testified that she has been in the home on occasions both before and after Ms.
Gaca entered the home. Ms. Tomm stated that she observed KJ’s room and was aware
that the clothing was taken out for a time because KJ would use her clothing to help her
jump out of the bedroom window (Tr. 424). Ms. Tomm also testified that she found the
child’s home to be neat and clean (Tr.419).
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Laura Keleman, a social worker, testified that she is in the subject home every
Monday to provide family therapy and stated that she also found the home to be warm
and clean (Tr. 510). Ms. Keleman 1testified that she did not observe KJ’s room until
February 2006, which is after Ms. Gaca’s report, but found the there was nothing in the
room to suggest that it was inappropriate for tutoring (Tr. 513, 517).
Kenneth N. Condrell, Ph.D., a psychologist, testified that he was retained by the
District to offer a second opinion to Dr. Weidman’s recommendation of providing
instruction in the home. Dr. Condrell’s report2, dated February 9, 2006, indicates that his
evaluation of KJ included the following:
A home visit to interview KJ and the parent;
A meeting with Dr. Weidman;
A phone interview with Robert Sandgrund, LMSW, the social worker for the Law Guardian
Department; and
A phone interview with Kim Cedeno from CPS.

Dr. Condrell also indicated that he reviewed the following reports and evaluations:
Report from the Committee on Special Education;
Psychological evaluation by Marci A. Drake, M.S., M.Ed., Ed.S
Dr. Arthur Weidman’s evaluation of KJ
Dr. Eloise O’Brien’s evaluation of KJ.

Dr. Condrell indicated in his report that as a mandated reporter he was compelled to
report suspicions he may have regarding the abuse and/or neglect of a child. Dr. Condrell
indicated that he had serious concerns regarding the welfare of KJ in the home and

1

The parent argued that Dr. Condrell’s report and testimony should be excluded because
the parent alleges that the District and Dr. Condrell failed to secure the parent’s consent
to review the child’s records and/or interview the family. The parent’s objection was
overruled on relevancy grounds and it was agreed that the hearing officer would not rule
of the issue of consent.
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therefore reported his concerns to Janet De Loach at CPS. Dr. Condrell also indicated
that he related his concerns to Dr. Weidman and urged Dr. Weidman to visit the home.
In a supplemental report, dated February10, 2006, Dr. Condrell stated that in his
opinion KJ’s bedroom was “unfit for any teacher to provide home instruction.” (see, D-7).
At the hearing, Dr. Condrell testified that his mission for the district was not to
evaluate thethe conditions of the home, but to offer a second opinion to Dr. Weidman’s
recommendation for instruction in the home (Tr. 38).
Dr. Condrell stated that when he arrived at the home he observed a dog tied to the
barn eating a deer carcass. He also stated that the parent was not very pleasant to him
when he walked in to the house. Dr. Condrell testified that when he visited the home he
spoke to the parent for approximately 15-20 minutes and then asked if he could see KJ’s
bedroom (Tr. 43.) Dr. Condrell stated that he asked to see the bedroom because he finds
bedrooms to be “revealing” in terms of how children are cared for (Tr. 43.)    Dr.
Condrell testified that when he saw the bedroom it was a “big red flag” to him (Tr. 43).
Dr. Condrell described the bedroom as small and that the child’s clothing was piled up in
the hallway. There was a beat up bunk bed with no pillow or bedspread and there was
like a “senior citizen toilet wedged between the wall and the bed.” There was also a
child’s desk opposite the bed with a wooden chair and there was also chicken wire on the
left and right of the window and holes in the walls. Dr. Condrell stated that there was
“no, color, no decals, no poster, “nothing cute,” “nothing female.” It looked like a cell to
him (Tr. 45). Dr. Condrell further testified that Hillary Bowen told him that the District
had sent a tutor to the home before his visit and that instruction took place in the bedroom
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(Tr. 44.). Dr. Condrell testified that he knew that the teacher refused to go back but that
wasn’t the reason why we wanted to see the bedroom (Tr. 44).
Dr. Condrell also testified that he met KJ who appeared pleasant, friendly, clean
and well-dressed (Tr. 48.). Dr. Condrell stated that he only had a little “chitchat” with KJ
because he wasn’t about to “put the youngster in any kind of spot” (Tr. 52).
Dr. Condrell testified that based on the youngster’s age and because of the history
that the parent had with Child Protective Services, and because of Dr. Weidman’s initial
reservation about whether the parent could carry out the treatment program, he concluded
that KJ was better off in school (Tr. 52).
In April 2006, Dr. Condrell was asked to return to the home specifically to inspect
another room that was made available for home instruction to determine if the
environment was appropriate. This time Dr. Condrell concluded that it was appropriate
and instruction was resumed.
The parent testified that she is the adoptive mother of KJ and two other children
who reside in the home, which is a farm in the Alden school district. The mother
described KJ as severely emotionally disturbed and that because of KJ’s condition, KJ
often attempts to run away from home by jumping out her bedroom window, urinates on
the floor and punctures holes the walls. The mother explained that the holes in the walls
were caused by KJ and that as part of the KJ’S treatment, she was encouraged not to
repair the walls because it would only make KJ feel ashamed (Tr. 358). The mother also
testified that the camera in the room was a monitor, which she installed to determined
that whether KJ was attempting to run away from home in the middle of the night (Tr.
371-372. The mother stated that it does not record and that Ms. Gaca’s tutoring session
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was not recorded (Tr. 372). The mother also explained that for a time KJ’s clothing was
stored in the hallway because KJ would use her clothing to help her exit the home
through the second story bedroom window. The mother testified further that the porta-
sand or “commode” was in the room because KJ would often state that the she needed to
used bathroom when if fact she was attempting to leave the home (Tr. 370).
The parent testified that she was told by the District that home tutoring by Ms.
Gaca would no longer continue because Ms. Gaca had family obligations (Tr. 349). The
parent claims that she was not advised that there was an objection to the condition of the
KJ’s bedroom.   The parent objected to the “off-site” location because it did not comply
with Dr. Weidman’s course of treatment and because of the parent’s employment, which
involved providing day-care and piano lessons in the home, the parent would not be able
to accompany KJ to the library for instruction (Tr. 346). The parent also complained that
the off-site location was the library in Lancaster and not the library in Alden, the child’s
hometown (Tr. 347).
The board of education must show that the recommended program is reasonably
calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson
CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least
restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An
appropriate program begins with an IEP which accurately reflects the results of
evaluations to identify the child's needs, provides for the use of appropriate special
education services to address the child's special education needs, and establishes annual
goals and short-term instructional objectives which are related to the child's educational
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deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a
Child with a Disability, Appeal No. 93-12).
In this case, the record shows that the child suffered from several disorders one of which
is Reactive Attachment Disorder (“RAD”). RAD, as described above, is a severe
developmental disorder that is caused by chronic maltreatment in the first 18 months to
three years of life. KJ’s treating psychologist, Arthur Becker-Weidman, Ph.D., a
specialist in the treatment of RAD, testified that in order to treat RAD you much address
the underlying trauma and then engage in activities to create a healthy and secure
attachment with the child’s current parent (Tr. 195). According to Dr. Weidman, the
treatment involves 24 hours a day contact between the parent and the child. Dr.
Weidman, among other things, recommended that KJ be kept home on a full-time basis
until KJ was developmentally ready to attend school. The District was in contact Dr.
Weidman and was aware of his the recommendation for home instruction in December
2005. Although the District initially did not adopt Dr. Weidman’s recommendation, after
receiving a letter from the parent’s attorney, the District initiated home instruction in
January 2006. As indicated above, Ann Gaca, the tutor sent to the home, was unwilling
to continue providing services in the home because of the conditions she observed in the
child’s bedroom. The District, upon hearing of Ms. Gaca’s report, and at the direction of
the superintendent, immediately ceased providing instruction in the home.
Thereafter, the record shows that the District reconvened the CSE and generated a
new IEP, dated January 26, 2006, that incorporated the superintendent’s directive and
provided for tutoring “off-site.” The District admitted that they knew the parent would
not accept tutoring outside the home because Dr. Weidman stated that it must take place
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in the home (Tr. 126). The District also conceded that they did not make any effort to
determine whether there were any other suitable locations in the home to provide
instruction before deciding to not to provide instruction in the home (Tr. 158).
Additionally, the District’s admitted that the parent, although a required member of the
CSE, was not involved in the decision to terminate instruction in the home (Tr. 164).
Finally, the District conceded that the CSE did not consider whether KJ could benefit
from instruction at the library (Tr. 170).
Based on the foregoing, I find that the IEP of January 26, 2006, is invalid to the
extent that the IEP called for instruction “off-site.” Although the District claimed at one
point that the CSE determined that instruction should occur off-site (Tr. 119), the record
is clear that the decision not to provide instruction in the home was not made at the CSE
but in the office of the superintendent (Tr. 164). Accordingly, I find the CSE’s decision
to amend the IEP on January 26, 2006, to reflect the decision made by the superintendent,
was improper inasmuch as the superintendent was not a member of the CSE.
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]).
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I find that the parent is entitled to compensatory services for the loss of instruction
for the period of January 12, 2006, to April, 2006.3 The record shows that Dr. Condrell’s
conclusion not to provide instruction in the home was based his review of the records in
the custody of the District and on a 15-20 minute interview with the parent and a brief
conversation with the child. The record also shows that Dr. Condrell is not qualified as
an expert in the field of Reactive Attachment Disorder. While I understand that District
did not follow Dr. Condrell’s recommendation of a 6:1:1 placement, it is clear that the
District called Dr. Condrell to support their position not to provide instruction in the
home. In addition, I also understand that the conditions in the home observed by Ms.
Gaca and Dr. Condrell, while in dispute, may have been unsettling, the record shows that
the parent was not provided the opportunity to explain the circumstances before the
District terminated the child’s instruction in the home. Accordingly, the parent’s request
for “make up” instruction is granted.
Finally, the issue of counsel fees is beyond the jurisdiction of this hearing officer.

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Although there was a period of time when the parent requested to home-school the
child, the request was prompted by the District’s decision not to provide instruction in the
home. As such, the child is entitled to make services during this period.
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ORDERED
The District is directed to continue providing instruction in the home. The
District is also directed to compensate the family in the form of additional instruction
equal to the amount of instruction that was not provided from the period form January 12,
2006 until April 5, 2006.
Dated:   Brooklyn, New York
June 12, 2006
______________________
      James McKeever, Esq.
      Impartial Hearing Officer

PLEASE TAKE NOTICE
Within 30 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. Failure to file the notice of
intention to seek review is a waiver of the right to appeal this decision.
Directions and forms for filing an appeal are included with this decision.
Directions and forms can also be found in the Office of State Review website:
www.sro.nysed.gov/appeals.htm.
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DOCUMENTATION ENTERED INTO RECORD BY THE PARENT
P-A     Disclosure letter to J. Weiss from HJ Marcus
P-B    Due Process Request
P-C    CSE Recommendation Notice
P-D    IEP 2005-2006   1/26/06
P-D (1)   IEP 2005-2006   12/15/05
P-D (2)   IEP 2005-2006   5/16/05
P-D (3)   IEP-draft 2005-2006   5/16/05
P-D (4)   IEP 2004-2005   5/17/04
P-D (5)   IEP 2003-2004   5/12/03
P-D (6)   IEP 2002-2003   5/2/02
P-D (7)   IEP 2001-2002   12/19/01
P-D (8)   IEP 2001-2002   6/4/01
P-D (9)   IEP 2000-2001   6/12/00
P-D (10)   IEP 2000-2001   5/2/00
P-D (11)   IEP 1998-1999   10/20/98
P-E    Family Therapy Update
P-E (1)    Advanced Psychiatric Nurse Practitioner Report
P-E (2)    Psychological Eval/home visit Script-Dr. Meyer
P-E (3)    Teacher Report Form
P-E (4)    Occupational Therapy/Sensory Processing Eval
P-E (5)    Home Tutoring Script-Dr. Varma
P-E (6)    Evaluation Team Report
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P-E (7)    Neuropsychological Evaluation
P-F    2005-2006 Student Report Card
P-F (1)    TerraNova Home Report
P-F (2)    TerraNova Individual Profile Report
P-F (3)    TerraNova Performance Level Report
P-G     Dr. Weidman letter to D. Caster
P-G (1)    Dr. Weidman letter to D. Raw. Jr.
P-G (2)    Dr. Weidman Evaluation w/cover letter
P-G (3)    Dr. Weidman Overview for Teachers
P-G (4)    Dr. Weidman Resume
P-G (5)    Dr. Weidman List of Publications
P-G (6)    Dr. Weidman Excerpt
P-H    Emails between HJ Marcus & J. Weiss
P-H (1)   Letter to Judge Maxwell form J. Tomm
P-H (2)   Letter to D. Hartman from J. Weiss
P-H (3)   Letter to K. Condrell from H. Bowen
P-H (4)   Letter to H. Bowen from D. Hartman
P-H (5)   Letter to A. Weidman from H. Bowen
P-H (6)   Letter from A. Stoltman to Parent re: ISS
P-H (7)   Emails between school personnel
P-I    Recording of CSE Meeting
P-I (1)    Recording of CSE Meeting
P-J    Pictures of DJ Residence
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DOCUMENTATION ENTERED INTO RECORD BY THE SCHOOL DISTRICT
D-1    Letter dated 3/23/06
D-2    Letter dated 3/15/06
D-3    Hearing Request dated 3/10/06
D-4    Report dated 3/10/06
D-5    E-mail dated 3/6/06
D-5 (a)    Log dated 1/30/06
D-6    Letter dated 2/15/06
D-7    Letter dated 2/10/06
D-8    Evaluation dated 2/9/06
D-9    Letter dated 2/6/06
D-10    E-mail dated 1/27/06
D-11    E-mail dated 1/27/06
D-12    IEP dated 1/26/06
D-13    Meeting minutes dated 1/26/06
D-14    E-mail dated 1/19/06
D-15    E-mail dated 1/18/06
D-16    Letter dated 1/4/06
D-17    IEP dated 12/15/05
D-19    Notice dated 9/13/05
D-20    E-mail dated 3/23/06
D-20 (a)   E-mail dated 3/23/06
D-20 (b)   E-mail dated 3/24/06
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D-20 (c)   E-mail dated 3/27/06
D-20 (d)   E-mail dated 3/27/06
D-20 (e)   E-mail dated 3/28/06
D-20 (f)   E-mail dated 3/28/06
D-20 (g)   E-mail dated 3/29/06
D-20 (h)   E-mail dated 3/29/06
D-20 (i)   E-mail dated 3/30/06
D-20 (k)   E-mail dated 3/30/06
D-20 (l)   E-mail dated 3/30/06
D-21    Letter dated 1/30/06
D-21 (a)   Notice dated 2/1/06
D-21 (b)   Cover Sheet dated 2/1/06
D-21 (c)   IHIP
D-21 (d)   Letter dated 3/13/06
D-22    Report dated 4/3/06
D-23    E-mail dated 4/4/06