New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.

SED ID No.

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: April 6, 2011

Record Close Date: April 22, 2011

Hearing Officer:

On December 21, 2010, the parent (the “Parent”) of [Student] (the “Student”) filed a request for an impartial hearing under the Individuals with Disabilities Education Improvement Act (the IDEIA)^[1] , 20 U.S.C. section 1415(f) and Section 4404(1) of the New York State Education Law (Parent Exh. FF). I was appointed as impartial hearing officer on December 22, 2010. The due process complaint was subsequently amended (Parent Exh. A), and the matter came on for a hearing on April 6, 2011.

The time for initiating the hearing or pre-hearing conference and the compliance date for issuing a decision were both extended in this proceeding. 2 Lists of the persons who appeared at the hearings and the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

[Student] is seven years old and is classified as a student with a disability having a . She received home-based Early Intervention (“EI”) services, from Volunteers of America, starting at about the age of eighteen months. She was classified as a Preschool Student with a Disability shortly before turning five, and received preschool special education services at two different schools. Her most recent Individualized Education Program (“IEP”) recommends placement in a 12:1 special class in a community school district school, with the following related services: group (3:1) speech and language therapy for two 30-minute sessions per week, individual counseling for two 30-minute sessions per week, and individual occupational therapy for two 30minute sessions per week (Parent Exh. D). [Student] is presently placed in a collaborative team teaching (“CTT”) class at P.S.[XX] in the Bronx. She also receives three periods per day of instruction in a 12:1 setting. At some point in February or March of 2011, the DOE began to provide her with a paraprofessional pending a evaluation. Several different paraprofessionals have, reportedly, been assigned to her.

The Parent contends that the New York City Department of Education (the “DOE” ) failed to provide [Student] with a free, appropriate public education (“FAPE”) during the 2008-2009, 2009-2010, and 2010-2011 school years. The Parent requests the following relief: an independent educational evaluation (“IEE”), including a evaluation, performed by the a reconvened Committee on Special Education (“CSE”) meeting to consider the results of the IEE and make new classification, program, and placement recommendations; deferral to the DOE’s Central Based Support Team (“CBST”) for placement in a New York State approved Non-Public School (“NPS”); a P-1 Letter to allow the Parent to place the Student in a NYS-approved private school at the DOE’s expense for the present and subsequent school year; one-to-one private tutoring from [Redacted] (either as direct funding or compensatory services) for two hours per day for three years, at a rate not to exceed $110.00 per hour; and additional therapy and (an extra session per week added to the Student’s IEP) as compensatory services.

DOE contends that [Student] is properly classified as having a , that she is properly placed in a 12:1 class at P.S.[XX] and that she is receiving all of her related services. Prior to the hearing date, the CSE had requested an independent evaluation, however the evaluation had not yet been scheduled. The DOE acknowledges that [Student] missed an entire year of school (the school year) due to issues. The DOE also acknowledges that she was placed in CTT classes during the 2009-2010 and 2010-2011 school years. The DOE representative explained that P.S.[XX] is a “Phase One” school, which means that even though P.S.[XX] did not have any 12:1 classes, [Student] had to remain at the school rather than be placed at a school with a 12:1 program. As a Phase One school, P.S.[XX] was responsible to fashioning an appropriate program onsite. She could not be placed in a 12:1 program at another community school district school. As a result, [Student] was placed in CTT classes at P.S.[XX] for the 2009-2010 and 2010-2011 school years. At some point during the present school year, P.S.[XX] began providing [Student] with 12:1 instruction for a portion of the school day.

Although it took the position that it was presently providing [Student] with a FAPE, the DOE did not dispute the Parent’s contention that there was a failure to provide FAPE during the 2008-2009 and 2009-2010 school years. The DOE representative indicated that the DOE is “more than willing to provide the compensation of the services lost for this school year and would also issue a summer RSA for the services that were missed during the past school year” (Tr. 4/6/11 at 135).

The testimony and documentary evidence will be discussed more fully below.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique special education needs, provided in conformity with a written Individualized Education Program (“ IEP”) (34 C.F.R. § 300.13). A FAPE is offered when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive meaningful educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). The Parent requests a variety of different remedies for the alleged FAPE deprivation. The Request for a P-1 Letter

A P-1 Letter (also known as a “Nickerson Letter”) is a procedural remedy. A student is entitled to a P-1 Letter when the Department of Education fails to timely evaluate and offer an appropriate program and placement to the student. A P-1 Letter is a written authorization from the Department of Education allowing the parent of a child with a disability to place the child, at the Department of Education's expense, in a private school which has been approved as a school for children with disabilities by the New York State Education Department (see Jose P. et al. v. Ambach et al., [79 C 270, U.S. D.C., E.D. NY, 1982]).

The Parent requests that I direct the DOE to issue a P-1 Letter to allow her to place her child in a private school for the 2010-2011 and 2011-2012 school years. The Parent is entitled to a P-1 Letter for the 2010-2011 school year. Despite the IEP mandate for placement in a 12:1 class for the 2010-2011 school year, the DOE placed her in a CTT class. The provision of three periods per day of 12:1 instruction does not render the CTT placement appropriate. The failure to offer her placement in accordance with her IEP mandate constitutes a failure to offer her an appropriate placement and entitles her to a P-1 Letter for the present school year.

The Parent is not, however, entitled to a P-1 Letter for the 2011-2012 school year as the time to offer a program and placement for that year has not yet passed. The request for a P-1 Letter for the 2011-2012 school year is therefore denied without prejudice to seeking such relief in the future in the event that the DOE fails to offer [Student] a timely and appropriate placement for the 2011-2012 school year. Compensatory Services The Parent seeks compensatory education/services in the form of 1:1 tutoring and additional related services. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “there has been a gross violation of the [IDEA] resulting in the denial of, or exclusion from, educational services for a substantial period of time. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir. 1988)].

Compensatory services, which is a similar remedy, does not require that a student be ineligible for instruction due to age or graduation. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. A finding that there has been a deprivation of FAPE is necessary for an award of compensatory services. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08-054).

Compensatory education is not an appropriate remedy because [Student] is not “ineligible for instruction due to age or graduation.” Compensatory services is, however, an appropriate remedy.

There is no dispute about the fact that [Student] did not receive any special education instruction or services for the 2008-2009 school year. At the beginning of the school year, the Parent was told that [Student] could not be provided with special education services because her IEP had expired (Tr. 4/6/11 at 113). An IEP for the 20082009 school year was ultimately prepared on November 24, 2009 (Parent Exh. B). The IEP included special education was never provided . As a result, [Student] was not able to

There is also no dispute about the fact that [Student] was not placed in accordance with her IEP for the 2009-2010 and 2010-2011 school years. Despite her IEP mandate for placement in a 12:1 special class (Parent Exhs. B, C, and D), she was continuously placed in CTT classes. In addition to the inappropriate classroom placement, the DOE failed to provide her with related services for most of this time. [Student] did not receive any related services during the 2009-2010 school year. She did not receive her related services for the 2010-2011 school year until March 30, 2011, or thereabouts (Tr. 4/6/11 at 120-121).

The DOE who testified at the hearing opined that [Student]’s cogntive functioning level (IQ) decreased as a result of the missed of instruction and subsequent inappropriate placement. It is undisputed that she showed no improvement in academic functioning, and in fact showed regression in some areas, over the course of the 2008-2009, 2009-2010, and 2010-2011 school years.

[Student] was thus denied appropriate services for an extended period of time. Based upon the testimony of the Parent’s expert witness, Emily Levy, Ed.D., I find that the deprivation of services can be remedied through the provision of additional services before she becomes ineligible to receive services by reason of age or graduation. Dr. Levy evaluated [Student] on March 22, 2011. Based on that evaluation, and based on her experience in providing tutoring services to students with similar needs and abilities, she opined [Student] would have the potential of reaching grade level performance with hours ( hours per week over approximately a year and a half) of 1:1 remediation (Tr. 4/6/11 at 31-32). [Redacted] uses the “Orton-Gillingham methodology, which is specific to her decoding and spelling skills . . . along with multisensory methodologies for her reading comprehension, writing and math skills” (Tr. 4/6/11 at 31). Dr. testimony was credible, convincing, and uncontroverted. Based on that testimony, I find that [Student] should receive hours of 1:1 tutoring from [Redacted] as compensatory services for the DOE’s failure to provide her with an appropriate placement for the 20082009, 2009-2010, and 2010-2011 school years. [Redacted] charges $110.00 per hour for 1:1 tutoring, which can be provided either in the Student’s home or at its in Manhattan (Tr. 46/11 at 32).

The DOE agreed to provide additional related services as compensation for its failure to provide related services during the 2009-2010 and 2010-2011 school years (Tr. 4/6/11 at 135). [Student] missed a year and a half of services during these two school years. [Student] was entitled to two 30-minute sessions per week of occupational therapy, speech/language therapy, and counseling during this time. Based on a 40week (ten month) school year that would be one hundred and twenty (120) 30-minute sessions (2 sessions per week for 60 weeks) of each of these related services. The Parent’s compensatory services requested included a request for additional related services to compensate for the DOE’s failure to provide related services during the 2008-2009 school year. However, the Record does not support a finding that an additional “year’s-worth” of missed services is necessary to remedy the deprivation of instruction. The year and a half of services offered by the DOE is sufficient. Therefore, the compensatory services awarded herein will be limited to the related services missed during the 2009-2010 and 2010-2011 school years.

The Parent has also requested that the DOE provide the Parent with transportation to and from [Redacted] and the related service providers. That request is granted. Without transportation, [Student] will not be able to receive the services. The Request for Independent Evaluations

A school district is obligated to perform an evaluation that is “sufficiently comprehensive to identify all of [a] the student's special education needs” (8 NYCRR 200.4(b)(6)(ix). The District must utilize “technically sound instruments” to “assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (8 NYCRR 200.4(b)(6)(x). The purpose of the comprehensive evaluation is to “provide relevant information that directly assists persons in determining the educational needs of the student” (8 NYCRR 200.4(b)(6)(xi). An evaluation must include a physical examination, a psychological evaluation, and educational evaluation, a social history, a classroom observation and “other appropriate assessments or evaluations” 8 NYCRR 200.4(b)(1).

An independent educational evaluation (an “IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student. 8 NYCRR § 200.1(z). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense, 8 NYCRR § 200.5(g)(1) An IEE may be requested by parents, 8 NYCRR § 200.5(g)(1), or by an impartial hearing officer, 8 NYCRR § 200.5(g)(2). If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv). The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.

The Parent requests that the IEE include a neuropsychological evaluation and that it be performed by the International Center for the Disabled. The CSE is responsible for obtaining appropriate and sufficient evaluations. The DOE has the burden of proving, in this proceeding, that the CSE’s evaluation was appropriate. By its own admission, additional testing is necessary. On September 14, 2010, a CSE school psychologist recommended that [Student] receive a full neurological or psychiatric evaluation (Parent Exh. T). On January 21, 2011, the CSE recommended that [Student] be provided with a full time 1:1 crisis paraprofessional pending completion of a psychiatric evaluation (Tr. 4/6/11 at 60). The CSE did not take any steps to arrange for either a neurological or psychiatric evaluation. Instead, it inappropriately deferred the obligation to obtain appropriate evaluations to the Parent. The Parent, although willing to obtain a neurological or psychiatric evaluation on her own, was unable to do so because her was cancelled.

[Student]’s IQ substantially declined from her initial evaluation at the age of three. Her full scale IQ score in January 2009 was 63 (Parent Exh. O). This reflected a substantial decrease from her initial testing, which had revealed an IQ of 87 (Tr. 4/16/11 at 44). Although the psychologist who testified at the hearing credited this drop to the missed year of school and subsequent inappropriate placements, an IQ decrease of this magnitude warrants further examination. Either the 63 was inaccurate, the 87 was inaccurate, or there are other factors operating which are drastically impacting [Student]’s cogntive functioning. The neuropsychological evaluation requested by the Parent is both necessary and appropriate. I note that the CSE “requested” an independent psychoeducational evaluation at some point prior to the hearing. However, the mere requesting of the evaluation is not sufficient; it is not the same as actually obtaining it.

The psychologist who performed the 2009 evaluation testified that it was “very rare” for an IQ score to drop like that, and that he had “never seen a case like this before where a child starts out with an 83 IQ when she’s three and then . . . takes a dip and everything goes . . . downhill from there” (Tr. 4/6/11 at 85).^[3] There was no showing on the Record a that a psychoeducational evaluation (as opposed to a neuropsychological evaluation) would include the types of assessments needed to determine the basis for the substantial decrease in [Student]’s IQ score, her protracted failure to make educational progress in any domain, and the increasing behavioral/emotional issues that are adversely effecting her ability to benefit from instruction. The CSE’s evaluations were not adequate, and the Parent is entitled to the requested IEE. In addition to a neuropsychological evaluation, [Student] needs to have the psychiatric evaluation that the CSE determined that she needed as of January 21, 2011. After the evaluations are completed, the CSE will need to convene a meeting to review the IEE results and to make appropriate program and placement recommendations. Deferral to the CBST

The Parent’s request that the CSE be directed to defer placement to the CBST for placement in a NYS-approved nonpublic school (“NPS”) is denied without prejudice. The Record does not support a finding that deferral to the CBST for an NPS placement is warranted at this time. That issue can be revisited after completion of the IEE. Tuition Reimbursement/Direct Payment

I need not address the Parent’s request that the DOE be directed to fund 1:1 tutoring at [Redacted] as tuition reimbursement. I have already found that the Student is entitled to the tutoring as a form of compensatory services. It is not necessary to address whether the Student is entitled to the tutoring as a form of tuition reimbursement as well.

ORDER

IT IS HEREBY

ORDERED that the New York City Department of Education is directed to issue a P-1 Letter to allow the Parent to place the Student in a state-approved nonpublic school at the DOE’s expense; the P-1 Letter shall be issued no later than May 11, 2011; and it is further

ORDERED that the New York City Department of Education shall fund the following compensatory services: (a) ) hours of 1:1 tutoring from [Redacted], at a rate not to exceed $110.00 per hour; (b) one hundred and twenty 30-minute sessions of 1:1 speech/language twenty 30-minute sessions per week of occupational therapy; and (d) one hundred and twenty 30-minute sessions per week of counseling; and it is further

ORDERED that the foregoing services shall be provided from the current date through December 31, 2012 and that Related Service Authorization forms be provided to the Parent no later than May 11, 2011; and it is further

ORDERED that the New York City Department of Education shall provide the Parent and Student with transportation to and from [Redacted] and to and from related service providers; and it is further

ORDERED that the New York City Department of Education shall fund an Independent Educational Evaluation, consisting of a neuropsychological evaluation and a psychiatric evaluation, to be performed by the International Center for the Disabled, or other duly licensed provider(s) selected by the Parent. Dated: May 4, 2011

MINDY G. WOLMAN

Impartial Hearing Officer Hearing Office Distribution Date: _________

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board of Education of the City of New York has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample 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.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2011

[Mother]* Mother

Nelson Mar, Esq. Attorney — Parents

[Redacted], Ed.D.* Director, [Redacted] (by telephone) — Parents

Lorraine Estrada DOE Representative Department of Education

Joe Preval* Bilingual Department of Education (by telephone)

Francisco Fonseca Interpreter — DOE

* Testified at Hearing

DOCUMENTS ADMITTED INTO EVIDENCE

Exh. Document Description Party

1. Final Notice of Recommendation, 1/21/11, 1 p. Department of

Education

2. Individualized Education Program, 11/10/10, 13 pp. Department of

Education

3. Individualized Education Program, 1/21/11, 16 pp. Department of

Education

4. Functional Behavioral Assessment and Behavior Intervention Plan, Department of Education

12/15/10, 2 pp.

A. Amended Due Process Complaint, 1/6/11, 3 pp. Parent

B. Individualized Education Program, 11/24/09, 13 pp. Parent

C. Individualized Education Program, 11/10/10, 13 pp. Parent

D. Individualized Education Program, 1/21/11, 16 pp. Parent

E. Psychoeducational Re-evaluation, 1/4/11, 8 pp. Parent

F. Functional Behavior Assessment & Behavior Intervention Plan, Parent

12/15/10, 2 pp.

G. Behavior Sheets, 2/2/11 - 3/4/11, 3 pp. Parent

H. Teacher Report, 12/2/10, 3 pp. Parent

I. Progress Report, 12/13/10, 1 p. Parent

J. School Report, 12/1/10, 1 p. Parent

K. Teacher Report, 10/5/09, 3 pp. Parent

L. Kindergarten Progress Report, 2009-2010, 1 p. Parent

M. Structured Observation Report, 11/23/09, 2 pp. Parent

N. Social Work Report, 10/7/09, 4 pp. Parent

O. Psychoeducational Evaluation, 11/19/09, 9 pp. Parent

P. Waiver of IEP Meeting to Amend IEP after Annual Review, 11/15/10, Parent

2 pp.

Q. Letter from Eastside , 11/12/10, 1 p. Parent

R. Letter from Ms. [Parent], 11/15/10, 1 p. Parent

S. Letter from Ms. [Parent], 11/12/10, 1 p. Parent

T. Letter from Mr. Preval, 9/14/10, 1 p. Parent

U. Annual Goals Progress Reports for 2010 IEP, undated, 2 pp. Parent

V. Annual Goals Progress Reports for 2009 IEP, undated, 2 pp. Parent

W. Turning Five Summary Report, 4/3/08, 10 pp. Parent

X. Speech and Language Assessment, 11/12/09, 6 pp. Parent

Y. Student Historical Profile Report, 1/31/11, 5 pp. Parent

Z. Occupational Therapy Evaluation, 2/24/07, 4 pp. Parent

AA. Brochure from [Redacted], undated, 2 pp. Parent

BB. Letter from [Redacted], 3/23/11, 1 p. Parent

Footnotes

[1] In 2004, Congress reauthorized the Individuals with Disabilities Education Act ("IDEA") as the IDEIA. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. Throughout this decision, statutory references will be to the IDEIA, except when quoted in opinions as the IDEA. The extended compliance date for issuing a decision in this case is May 6, 2011.

[3] The who testified at the hearing variously referred to the Student’s initial IQ score as being either 83 or 87. The actual evaluation was not included in the Hearing Record, so it is unclear as to which of these figures is correct.