New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.

SED ID No.

Students Name:

Date of Birth:

District: 11

Hearing Requested by: Parent

Dates of Hearings: March 28, 2011

April 1, 2011

May 12, 2011

May 31, 2011

Record Close Date: July 1, 2011

Hearing Officer: Mindy G. Wolman

On February 7, 2011, the mother (AParent@) of . (the AStudent@) filed a request for an impartial hearing under the Individuals with Disabilities Education Improvement Act (the AIDEIA@),^[1] 20 U.S.C. section 1415(f) and Section 4404(1) of the New York State Education Law. I was appointed as impartial hearing officer on February 8, 2011 and the matter came on for hearings on March 28, 2011, April 1, 2011, May 12, 2011, and May 31, 2011.

The compliance date for issuing a decision in this proceeding was extended on several occasions. The extended compliance date is July 15, 2011. Lists of the individuals who appeared at the hearings and the documentary evidence submitted are appended to this Order. The Parent submitted a post-hearing written AClosing Brief.@ The DOE waived its right to submit a posthearing closing statement or brief.

BACKGROUND AND POSITIONS OF THE PARTIES

is a year old female student who is classified as a student with a disability having . Her classification and eligibility for education instruction and services are not in dispute. She is presently enrolled in and attending a class at , a school that is part of the New York City Department of Educations ( DOE s ) District 75 (city-wide) school district. s Individualized Education Program (IEP) for the 20092010 school year, which was prepared on December 17, 2009, recommended that she be placed in an class in a school with therapy and therapy as related services (Parent Exh. D). As of the beginning of the 2009-2010 school year, was placed in an class at at School. Her educational program included a work-site component. She was assigned to a work-site at a retail store as of the beginning of the 2009-2010 school year. Following an incident with another student in her class during January of 2010, the assistant principal removed from her class and put her in a class instead. Her worksite was also changed from the New York Public Library. s IEP was not updated to reflect the more restrictive setting. The Parent was not provided with any written notice that s placement had been changed.

On December 7, 2010, the CSE convened a meeting and prepared a new IEP which Case No. 132064 terminated s therapy and recommended that she be placed in a class in a school., with and therapy as a related service (Parent Exh. C). After the new IEP was prepared, remained in the class in which she had previously been placed.

The Parent raises a variety of issues in this proceeding. She maintains that the DOE failed to provide with a free appropriate public education ( FAPE ) during the 2009-2010 and 2010-2011 school years, and that was improperly placed in an overly restrictive setting that did not meet her education needs. The Parent maintains that the classes in which was been placed did not provide her with sufficient academic instruction, and that the DOE failed to provide with all of her mandated related services. The Parent seeks nullification of the December 7, 2010 IEP, a new IEP recommending placement in an class, and compensatory services ( therapy and private tutoring). The Parent maintains that s IEP needs to accurately describe her current functional and instructional levels, and include appropriate goals, parent training and , and an appropriate transition plan. She also maintains that the CSE needs to perform a Functional Assessment ( FBA ) and develop a new Intervention Plan (ABIP@) for . The Parent challenges the December 7, 2010 IEP on a variety of procedural and substantive grounds.

The Parent argues that s placement was improperly changed from an class to a class. She maintains that a, class is mu h too restrictive, and that the change in placement was not warranted by any evaluations or progress reports. She notes that placement in a class has resulted in s being prohibited from participating in lunches, assemblies, and in school trips with non-disabled peers. The Parent maintains that the CSE s program and placement were not calculated to address her specific needs or to prepare her for transitioning from the school to community environment, and that s IEP goals and objectives are neither meaningful nor measurable. The Parent maintains that needs to be in a program that will provide her with the skills and training that she needs in order to transition from school to postgraduate independent living. The Parent also maintains that s IEP needs to provide for parent training and in accordance with Commissioner’s Regulation ' 200.13. Case No. 132064

The DOE maintains that is appropriately placed in her present program, and that it provided her with a free appropriate public education ( FAPE ) during the 2009-2010 and 20102011 school years. It also asserts that was provided with all appropriate related services, and that she was properly removed from the class and placed in a class. The DOE argues that is being provided with a FAPE in her current placement and that she is receiving educational benefits. The DOE requests that the Parent’s request for relief be denied in its entirety.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEIA 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 education and related services designed to meet a students unique needs, provided in conformity with a comprehensive written an IEP (34 C.F.R. ' 300.13). A school district has offered a student a FAPE 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 educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. ' 300.320[a][1]; 8 NYCRR 200.4[d][2][I]; establishes annual goals related to those needs (34 C.F.R. ' 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. ' 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7].

A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]. In addition, a student's recommended program must be provided in the least restrictive environment (LRE) (20 U.S.C. ' 1412[a][5][A]; 34 C.F.R. '' 300.114[a][2][I], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1];

Educational programs for students with should include parent training and (8 NYCRR '' 200.1(kk) and 200.13(d). Case No. 132064

In New York State, school districts bear the burden of proof in IDEIA hearings, including the burden of persuasion and burden of production, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement Educ. Law ' 4404[1][c]. The 2009-2010 School Year s IEP for the 2009-2010 school year mandated placement in an class with therapy and therapy as related services. Although she was placed in an class for the period September 2009 through January 2010, she was placed in a class for the period January 2010 through June 2010. The sole reason for the change in placement was the incident involving another student in the class. had been pushed into a closet by another student and was afraid to return to the classroom. Instead of removing the other student or placing in another class, the school assistant principal moved into a class. The placement was not in accordance with her IEP mandate, and was inappropriate both procedurally and substantively. The class was overly restrictive, and did not include academic instruction suitable to s needs and abilities. The other students in the class were all performing at much lower academic levels. She was not appropriately grouped for instructional purposes.

s educational placement was thus inappropriately changed without CSE input, without parent consent, and without prior written notice. This constituted a gross violation of due process rights and a deprivation of s right to a FAPE.

The DOE aknowledged that did not receive therapy during the 20092010 school year. The failure to provide IEP-mandated related services also constitutes a deprivation of FAPE. The 2010-2011 School Year s IEP for the first few months (September through December) of the 2010-2011 school year mandated placement in an class with therapy and therapy as related services. During this period of time, she did not receive therapy and was improperly and inappropriately placed in a class. The DOEs continued failure to place in accordance with her IEP and to provide her with mandated related services Case No. 132064 constitutes a deprivation of FAPE. The placement was inappropriate and overly restrictive placement.

On December 7, 2010, the CSE convened a review meeting and prepared an IEP which recommended that s therapy services be terminated, and that she be placed in a class in a school. The Parent requests that the December 2010 IEP be annulled on both procedural and substantive grounds. The DOE bears the burden of proving that the CSE complied with IDEIA procedural requirements and that the recommended a program and placement was substantively appropriate and in the least restrictive environment ( ) for . It did not meet that burden.

As per the testimony of the DOE teacher who participated in the December 2010 CSE meeting, the IEP was actually prepared prior to the meeting. The teacher and school psychologist met prior to the CSE meeting to discuss . The teacher prepared the goals and the psychologist prepared other parts of the IEP. The Parent was completely excluded from this process.

In light of s demonstrated success in her placement, the placement was not in the . The Parent is correct in her assertion that the IEP goals developed by the CSE were neither appropriate nor sufficiently detailed and objectively measurable. The Parent was not provided with the opportunity to participate in the development of program recommendations, goals and objectives, related service recommendations, the transition plan, etc. The IEP also did not adequately describe s present levels of performance (either cognitively, or in terms of academic function). The CSE did not obtain or consider an educational evaluation or any current assessment of s academic skills. The IEP describes s reading comprehension ability according to her teacher and lists alternate performance indicators as her instructional level for reading, mathematics and writing. This description is woefully inadequate.

The Parent is also correct in her assertion that the CSE should have performed an FBA and developed a new BIP, that the IEP should have included therapy and parent training and , and a transition plan tailored to s individual needs. The BIP included as part of the December 2010 IEP is identical to the BIP that had been included in the December 2009 IEP. The CSE does not appear to made an effort to prepare an updated BIP based upon s current needs. In addition, the transition plan included in the December 2010 was adapted to fit the class in which was being placed. It should have been based on her needs, goals, and strengths, etc.

Based on the foregoing factors, the December 7, 2010 IEP must be annulled and a new IEP developed. The new IEP must be based on current data regarding s academic performance levels, and must include appropriate goals and objectives, appropriate related services, an appropriate transition plan, etc. Additional evaluations and assessments need to be performed prior to development of a new IEP. Relief Requested

The Parent has requested several different types of relief. As noted above, the request that the December 7, 2010 IEP be annulled has been granted. The matter must therefore be remanded to the CSE for new program and placement recommendations. The CSE needs to obtain current data regarding s academic performance. Although s psychological evaluation and data regarding her cognitive functioning is sufficiently current, the CSE needs to perform a new educational evaluation, therapy evaluation, FBA, and an updated social history. Pending development of the new IEP and a new placement offer, needs to be returned to an appropriate class at at School, with the related services mandated by her prior IEP ( therapy and therapy). She should also be returned to the retail worksite (or similar) program.

A key area of concern raised by the Parent was s transition plan and worksite program. The DOE repeatedly changed s worksite program. Each time it was changed, it was changed to comport with the worksite program attended by the other students in the class in which had been placed. During the 2009-2010 and 2010-2011 school years has had a variety of worksite placement and classroom skills curriculums. She has had an office skills curriculum, and a food skills curriculum. Her worksite programs have been at a s retail site and at a site. The CSE changed s transition goal, without parental input, from working in a store like to working at a public . needs continuity and stability in terms of the work skills training. Moreover, her transition services and goals should be based on her needs and interests. Based on the testimony presented at the hearing, I find that finding a job in a public library is not an appropriate transition goal for . I further find that the transition goal of working in a retail store is appropriate. Her transition plan and worksite placement, need to be changed accordingly.

The Parent has requested additional services to compensate for the DOEs failure to provide with appropriate services during the 2009-2010 and 2010-2011 school year. As per her IEP, was entitled to receive two 30-minute sessions per week of : therapy from September of 2009 through December of 2010. She was not provided with any therapy services during this time, and is entitled to receive make up services for the missed therapy.

The Parent also requested : tutoring as compensatory services for instruction missed during the year and a half in which she was improperly placed in a class. Compensatory services may be awarded in situations in which a student has been denied appropriate services for an extended period of time and are appropriate 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. 07109; Application of a Child with a Disability, Appeal No. 08-054).

Although it is clear that experienced a prolonged (nearly two year) FAPE deprivation, the Hearing Record does not support a finding that the 200 hours of tutoring requested by the Parent will remedy the deprivation. Moreover, even though was not appropriately placed in the class, she did continue to receive instruction during the 2009-2010 and 2010-2011 school years. As such, the Parents request for tutoring as a form of compensatory services is denied.

ORDER

IT IS HEREBY

ORDERED that the Students December 7, 2010 Individualized Education Program is hereby nullified; and it further

ORDERED that unless the Parent consents to a different worksite placement in writing, s worksite program for the twelve month 2011-2012 school year shall be at a retail, or similar retail, site; and it is further

ORDERED that the New York City Department of Education is directed to place the Student in an class at at School and at a retail worksite, or similar retail worksite, no later than August 1, 2011; and it is further

ORDERED that the New York City Department of Education is directed to issue a related service authorization (RSA) form for the Student to receive sixty-four hours of : therapy, to be provided between August 1, 2011 and July 31, 2012; and it is further

ORDERED that the Parents request for tutoring as a form of compensatory services is denied; and it is further

ORDERED that the New York City Department of Education Committee on Education is directed to perform a functional assessment, social history, educational evaluation, and therapy evaluation by August 15, 2011 and to convene a CSE review meeting to prepare a new Individualized Education Programthat includes the following: comprehensive description of the Students present levels of performance, comprehensive and objectively measurable goals and objectives, placement in an class in a school, parent training and services, a transition plan and services that are based on the Students individual needs and goals, and a intervention plan; and it is further

ORDERED that the New York City Department of Education Committee on Education is directed to take whatever steps are necessary to ensure that the Parent is afforded the opportunity to actively participate in the development of the Individualized Education Program described above; and it is further

ORDERED that the aforementioned CSE meeting shall be convened and the new IEP prepared no later than September 1, 2011.

Dated: July 15, 2011

MINDY G. WOLMAN

Hearing Office Impartial Hearing Officer Distribution Date: _________

DOCUMENTS ENTERED INTO THE RECORD

Department of Education Exhibits

1. MARKED FOR IDENTIFICATION ONLY

2. Transition Meeting Notices, 3/13/09 and undated, 2 pp.

3. Level One Vocational Assessment Student Interview, 1/20/10, 18 pp.

4. Level One Vocational Assessment Student Interview, 10/20/10, 18 pp.

5. MARKED FOR IDENTIFICATION ONLY

6. MARKED FOR IDENTIFICATION ONLY

7. Student General Employment Certification, 10/2009, 1 p.

8. Parent Notification Consent Form, 10/3/09, 2 p.

9. Appointment Forms, illegible date and 10/26/09, 2 pp.

10. MARKED FOR IDENTIFICATION ONLY

11. Parental Authorization for Release of Education Records, 1/21/11, 1p .

12. Guardianship list, undated, 1 p.

13. MARKED FOR IDENTIFICATION ONLY

14. MARKED FOR IDENTIFICATION ONLY

15. OT Evaluation tracking form, 11/24/10, 2 pp.

16. Report to Families, October 2010, 4 pp.

17. MARKED FOR IDENTIFICATION ONLY

18. MARKED FOR IDENTIFICATION ONLY

19. Level One Vocational Assessment Parent/Guardian Interview, 3/23/09, 3 pp.

20. Level One Vocational Assessment Parent/Guardian Interview, 10/12/10, 3 pp.

21. MARKED FOR IDENTIFICATION ONLY

Parents Exhibits

V. Demand for Due Process Hearing, 2/7/11, 5 pp.

W. DOE Due Process Response, 2/9/11, 4 pp.

X. Individualized Education Program, 12/7/10, 19 pp.

Y. Individualized Education Program, 12/17/09, 13 pp.

Z. Notice of Recommendation of IEP Meeting, 12/18/09, 1 p.

AA. Notice of IEP Meeting, 12/7/09, 2 pp.

BB. Notice of Transition Planning Meeting, undated, 1 p.

CC. Therapy School Function Evaluation, 11/24/10, 2 pp.

DD. Psychoeducational Evaluation, 11/16/10, 4 pp.

EE. Two-Hour Comprehensive Psychological Evaluation, 9/4/10, 5 pp.

FF. Individualized Education Program, 12/22/08, 13 pp.

GG. Individualized Education Program, 12/3/07, 13 pp.

HH. Individualized Education Program, 3/6/07, 14 pp.

II. Individualized Education Program, 3/6/06, 15 pp.

JJ. Notice of Recommendation of IEP Meeting, 3/15/07, 2 pp.

KK. Notice of IEP Meeting, 2/8/07, 2 pp.

LL. Notice of IEP Meeting, 2/17/06, 2 pp.

MM. Psycho-Educational Evaluation, 11/29/07, 3 pp.

NN. Social History Update, 11/21/07, 2 pp.

OO. Classroom Observation, 11/20/07, 1 p.

PP. Neurological Consult Report, 12/10/10, 2 pp.

QQ. Report to Families, October 2009, 4 pp.

RR. Report to Families, March 2009, 8 pp.

SS. Report to Families, Fall 2007, 4 pp.

TT. Related Service Report, Summer 2007, 3 pp.

UU. Progress Report, June 2007, 3 pp.

VV. Cluster Progress Report, Summer 2006, 2 pp.

WW. , Spring 2010, 5 pp.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2011

Mother

Esq. Attorney District Representative Department of Education District Representative Department of Education * Assistant Principal Department of Education (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2011

Mother

Attorney Observer District Representative Department of Education * Teacher Principal Department of Education * / Pathologist Department of Education (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011

Mother

Esq. Attorney District Representative Department of Education * Assistant Principal Department of Education Transition Linkage Coordinator Department of Education * School Psychologist Department of Education (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2011

* Mother

Esq. Attorney District Representative Department of Education — Parents

*Individuals who gave testimony.

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.

AThe 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.

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 quoting or referring to case law in which it was cited as the IDEA.