State upholds order to compensate special needs student

By Connor Linskey
Posted 3/10/21

After appealing to the state education department’s office of state review, the McKelvey family obtained a favorable decision from the State Review Officer (SRO).

The impartial hearing …

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State upholds order to compensate special needs student

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After appealing to the state education department’s office of state review, the McKelvey family obtained a favorable decision from the State Review Officer (SRO).

The impartial hearing officer (IHO) indicated that the student should be awarded $288,500 in services and evaluations. Evaluations totaling approximately $7,500 and related services totaling around $281,400.

On Nov. 18, 2020, the State Review Officer concluded that the Wallkill Central School District (WCSD) did not meet their burden of proof by providing evidence in the record to show they provided any semblance of a free and appropriate public education and advised Wallkill that the aversive restraints and interventions they were using on the child were illegal and banned for over 10 years. The SRO also noted that the WCSD left out one, very incriminating, page of an affidavit when submitting the evidence and stated the SROs themselves will not make the district’s arguments for them.

In addition, on Nov. 18, 2020, the SRO granted a small, proportionate reduction in the IHO’s decision on related services for the time the student was in the district schools. The SRO left the award of evaluations intact and also preserved the time frame in which the student’s family can access these services as well as the fee rate. The SRO decision still provides the student with 185 hours of occupational therapy, 74 hours of physical therapy, 113 hours of speech, 654 hours of academic tutoring and 181 hours of supervision services which can occur in conjunction with the academic tutoring totaling approximately $211,475.

“While this is an incredible win for our daughter, it is also a solemn one,” said Amanda McKelvey, the student’s mother. “Even considering the financial expense of attorney fees, lost wages, gas expense as we spent three hours daily driving back and forth to her program before busing commenced, private tutoring, etc., our sacrifice has really just begun. To bring her to where she should have been academically should the abuse and neglect by the district and Abilities First have never happened, we will have to sacrifice more. We will lose those moments families spend together going to parks, taking walks, going on vacations; our children will lose the opportunity to join sports teams or clubs; we will give up time with friends and family so that we can fit in another service to recoup the loss. And the critical window where children develop the necessary skills for higher learning is closed so the fight will be even greater.”

The McKelvey’s have four months from the date of the SRO ruling to file a federal appeal, as does Wallkill.

“It being our position that the SRO’s reduction was not based on any evidence in the record, we believe we have strong grounds to appeal this decision to gain back the hours the IHO saw as having restorative value.”

This situation has been a tough fight for the McKelvey family. The WCSD refused to comply with a New York State Education Department Impartial Hearing Officer’s orders to provide the equivalent of almost two years worth of education to a 10-year-old Wallkill student with disabilities to make up for the education it should have provided to her in previous years.

At their meeting on Aug. 19, the WCSD Board of Education voted unanimously to not comply with the order and to appeal it to the New York State Education Department’s Office of State Review, despite knowing that doing so would not be in the best interest of the student.

The student carries the diagnosis of a rare genetic disorder that has significantly impacted her motor skills and muscle tone, causing delays in the typical acquisition of speech, reading and writing abilities. WCSD’s refusal to comply with the hearing officer’s order to provide the student the education she was due years ago means her skills and education level will fall even further behind those of her peers.

Vanessa Gronbach, the hearing officer for this case, found that the district consistently failed to implement the student’s Individualized Education Program (IEP) by failing to frequently assess and then develop a plan to address her difficulties with reading, speaking and writing. She also found that the district consistently ignored her parents’ requests for such assessments. The hearing officer noted that the WCSD placed the student in learning environments that did not support her needs, which led to her educational goals not being worked on and no meaningful progress being made towards those goals. Independent evaluators indicated that the student actually regressed in her abilities during the school years in question.

“I am appalled by what our district is doing,” said Amanda McKelvey, the student’s mother. “Instead of providing our daughter with compensatory educational services to make up for the education she should have received in the first place, WCSD continues to use taxpayer funds to pay its outside lawyers to drag this case out and inflict as much hardship as possible on our family.”

According to the hearing officer, WCSD’s failure to comply with federal law and provide the student with a legally required free appropriate public education is due in large part to WCSD placing the student from Dec. 2017 until Feb. 2019 at Abilities First in Cornwall and then at its New Windsor location. Abilities First provides programs and services for students with intellectual and developmental disabilities.

“Not only did WCSD fail to comply with federal and state law and fail to provide a free appropriate public education to a student with a disability, but for roughly two-and-a-half years, WCSD failed to provide this child any semblance of a meaningful education thanks to its placing her at Abilities First,” said Gina DeCrescenzo of the Gina DeCrescenzo, P.C. law firm and the attorney for the student and her family. “Worse than simply failing to educate the student, the record here shows that Abilities First, which was endorsed by WCSD, harmed her, causing academic and functional regression, as well as psychological damage.”

The federal Individuals with Disabilities Education Act (IDEA) ensures that students with disabilities are afforded a free appropriate public education. If school districts receive federal funding, they must comply with the IDEA. Two purposes of the IDEA are to ensure that students with disabilities have available to them a free appropriate public education that provides them special education and related services to help them transition to adulthood and to ensure that their legal rights and the legal rights of their parents are protected. Under the IDEA, if a school district fails to implement a student’s IEP, that failure legally functions as the denial of a free appropriate public education.

Tom Frisbie, vice president of the WCSD Board of Education, declined to comment when contacted by the Times. He noted that he could not comment on the district’s ongoing litigation. Kevin Castle, WCSD superintendent of schools, also declined to comment, stating that he was unable to discuss the case due to confidentiality laws.

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