New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 19 Hearing Requested By: Parent Date of Hearing: May 10, 2011 Hearing Officer: Michael Kennedy Lloyd, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 10, 2011

Esq. Attorney — Parents

Esq. Attorney — Parents

Chairperson Designee NYCDOE CPSE Administrator NYCDOE — Parents

HEARING OFFICERS FINDINGS OF FACT AND DECISION

The matter of . came before me on May 10, 2011. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1415(f)(1) was March 2,2011. The hearing was convened at the request of the parent, which was received on February 28, 2011. The hearing was held on May 10, 2011. The parties made requests to submit post-hearing memorandum, which the Parent submitted a brief and the NYCDOE has not submitted. The compliance date is not extended. Appended to the record are the lists of persons in attendance and evidentiary submissions and no documents were submitted into evidence by the NYCDOE.

Parent has requested this Hearing seeking compensatory services after the student aged out of early intervention services October 2009 thru and including June 17, 2011 and was deprived of services. Parent alleges an intentional long-term failure of the NYCDEOE to provide educational services to this severely handicapped child.

BACKGROUND

This student is currently . years old and classified by the NYCDOE CPSE as a preschool student with a disability (Exhibits 'C'; 'D'; 'E'). The student participated in early intervention beginning January 2009 (age years months). In October 2009, the student turned years old and parent was informed by -school program that services would no longer be available but that the CPSE would be responsible for educational services thereafter. Tr. p.90-

94. Early intervention terminated its services to the student on October 7, 2009 (two days prior to its 3rd birthday). Parent testifies that a consent to evaluate along with other documents were executed immediately in October 2009 (Exhibits U; V; W and X). The student was evaluated in November 2009 by the CPSE at (concluding the student suffered from (1) a severe delay (2) delay and (3) delay) but Parent was unable to obtain a CPSE meeting until March 22/23 2010 despite attempts and contacts with the CPSE Administrator. See Exhibit M. There appears some attempted adjusting/editing of two IEPs that has occurred (Exhibits D and E). Exhibit 'E' p. 2 indicates the CSE meeting was held on March 22 and carries Parent's signature. Parent testified convincingly that she did not attend any IEP meeting that day (as she had a Doctor appointment) notwithstanding her signature appearing on page 2 of the March 22, 2010 IEP. Tr. p. 102. Further, it is clear that implementation of the IEP was scheduled for April 21, 2010 which appears as some six months after Parent executed a consent/request to evaluate. It appears that Exhibit D an IEP dated March 23, 2010 (conducted one day later) schedules implementation to commence on July 1, 2010. Parent is emphatic that she attended an IEP meeting only on March 23 and not March 22, 2010.

Parent testifies credibly that the student received no services from October 7, 2009 through and including mid-June 2010 when Parent was able to locate and identify an available seat in the approved placement on her own. The NYCDOE testified that previously there had been no available seat for the student. Tr.p. 60-61 and 67. The NYCDOE claims to have proscribed some related services to the student ( and therapy) at the May 14, 2010 IEP (Exhibit C) but cannot state with certainty if any or how many services were delivered. Tr. p. 80-85. Parent acknowledges receipt of one session of Therapy and no and Therapy until September 2010. See also Exhibit IHO 1.

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a “ -school student” is not entitled to a free and appropriate public education (FAPE). Tr. p. 28. Further, the NYCDOE challenges the various physicians and licensed service providers' proscriptions recommended therapies and services as being beyond their competence and areas of expertise. Tr. p. 15-28. The NYCDOE opposes the Parent service provider's recommendations that PROMPT methodology be employed (as contrary to the NYCDOE's responsibility and purview to select any alternative methodology) and further states that the NYCDOE was never advised that ABA services were necessary as recommended by the student's physician. Tr. p.18-19. The NYCDOE also takes the position that the NYCDOE is not responsible for identifying the student's . The evaluation that identified ABA services as appropriate therapy to enable the student to compensate for his handicapping conditions was completed on January 4, 2011. See Exhibit H.

The Parent alleges that when Early Intervention services were terminated on October 7, 2009 going forward the student was denied any and all educational services until the Parent herself was able to identify an available seat in the -school Program (June 17, 2010) and placed the student (he currently attends this placement). The Parent alleges non-receipt (except one session of O.T.) of any related services until September 2010 (from October 2009). Parent alleges that for all intents and purposes the student missed minimally one academic year of critical services all despite her frequent contact with the CPSE Administrator her requests to obtain a program a placement and services for the student were unanswered. The Parent recounts the resentment she encountered with the CPSE Administrator as she sought services for the student (Tr. p. 94-95). The Parent sought a variety of evaluations independently as well as in cooperation with requests of the NYCDOE (several of which recommend increased sessions of therapy) obtained same yet the NYCDOE denies receipt of the results. Exhibits H; I; J; K; L; M; N; O and P. The denial of receipt (by the NYCDOE) of the several reports is difficult to reconcile given the proactive level of engagement by the Parent to secure them. Parent alleges that in conjunction with these evaluations she requested increases in services which were discredited by the NYCDOE as not having been initiated by the school. Tr.p. 44-46

THE NYCDOE CASE

The NYCDOE did not submit any evidence in this matter and proffers no explanation why the student was not serviced for greater than 6 months after the Parent requested an evaluation when the student turned years old. The NYCDOE called its CPSE Administrator witness who (in defense of her sparse testimony) indicated her lack of preparedness and vague memory of many specific details and timeline occurrences at the hearing. Tr. p. 52-56. The NYCDOE CPSE Administrator represented that services were programmed for the student and acknowledged the lack of a placement for the student due to lack of a classroom seat. The NYCDOE witness' specific memory was vague (and unrefreshed prior to this alleged unanticipated hearing) as to whether services proscribed in the IEPs (Exhibit C; D; and E.) were actually being received or under what specific circumstances and time sequence events happened referencing this child. Tr. p. 76-83.

THE PARENT’S CASE

The Parent alleges it did all it could do, inquired and interacted with all of the decision makers as best she could and essentially was ignored in her search for educational services for the student by the NYCDOE for a significant period of time. It is to be noted that the evidentiary record show a pattern of persistent activity by the Parent to diagnose her child's handicap and seek services/ therapies from the NYCDOE to which the child is entitled. Parent alleges the student is owed;

{1} 2009-2010: 80 therapy sessions to be provided by a qualified therapist at a duration of 30 minutes per session (individual). This number represents 40 weeks without therapy at two sessions per week.

{2} 2010-2011: 32 therapy sessions to be provided by a qualified therapist at a duration of 30 minutes per session (individual) for the failure to provide J.B. with therapy services from December 23, 2010 to April 27, 2011. This represents 16 weeks without therapy multiplied by two sessions per week.

{3} 2009–2010 through August 2010: 111 to 144 sessions of therapy to be provided by a qualified therapist at aduration of 30 minutes per session (individual). This represents 48 weeks without / therapy at 2 to 3 sessions per week. The CSE changed its recommendation from 2 to 3 times per week, when J.B. transitioned from the temporary recommendation to the School. The lower number (111) represents 2x/week from October through May 14, 2010 when the DOE issued a FNR recommending increasing to 3x/week. The higher number (144) represents 48 weeks 3x/week.

{4} 50 hours of SEIT instruction. This represents 25 school days without SEIT instruction at 2 hours per day; the CSE recommended SEIT as a temporary measure until he could be placed in a center based program (Ex. D at 1 and 11, Ex. S). The IEP is silent as to the frequency of SEIT services, but the testimony at hearing establishes that it was meant to be two hours per day (Tr. at 105, 63). The District failed to provide SEIT services, however, from March 23, 2010 (when they were first recommended on his IEP Ex. D) until May of 2010 (when the SEIT services began). Tr. At 105.

{5} For the failure to provide J.B. with a center-based program from October 9, 2009 to June 16, 2010, J.B. could and perhaps should be awarded 5 hours per day of SEIT services, less the amount of SEIT services actually received during that time period. This time period covers approximately 32 weeks of school at 25 hours per week, yielding a total of 800 hours, less 60 hours (SEIT services received month of May and June to June 16) and less 50 hours assuming the IHO rules as requested above, yielding a total of 690 hours. Alternatively, the CSE first recommended a center based program on or about March 23, 2010 (Ex. D). J.B. should have, at a minimum, received 2 hours per day SEIT services from October 9 to March 23, 2010 and a full day program from that point forward. The evidence establishes that J.B., in fact, received no SEIT services from October 9 until May, 2010 (Tr. 113). Thus, for the period of October 9 to March 23, 2010, we are requesting 2 hours per day SEIT services–a total of 240 hours (24 weeks at 10 hrs. per week).

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially for purposes of determining the jurisdictional basis for this matter it must be determined who is eligible for services as a handicapped child. The NYS Commissioner has promulgated regulations which clearly define those eligible. Part 200.1(mm) is instructive; (mm) Preschool student with a disability is a school child as defined in section 4410(1)(i) of Education Law who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence pursuant to section 3202 of the Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from special programs and services approved by the department. Eligibility as a school student with a disability shall be based on the results of an individual evaluation which is provided in the student's native , not dependent on a single procedure, and administered by a multidisciplinary team in accordance with all other requirements as described in section 200.4 (b)

(1) through (5) of this Part.

(1) Commencing July 1, 1993, to be identified as having a disability a preschool student shall either:

(i) exhibit a significant delay or disorder in one or more functional areas related to , and communicative, adaptive, socio-emotional or motor development which adversely affects the student's ability to learn. Such delay or disorder shall be documented by the results of the individual evaluation which includes but is not limited to information in all functional areas obtained from a structured observation of a student's performance and behavior, a parental interview and other individually administered assessment procedures, and, when reviewed in combination and compared to accepted milestones for child development, indicate:

(a) a 12-month delay in one or more functional area(s); or

(b) a 33 percent delay in one functional area, or a 25 percent delay in each of two functional areas; or

(c) if appropriate standardized instruments are individually administered in the evaluation process, a score of 2.0 standard deviations below the mean in one functional area, or a score of 1.5 standard deviations below the mean in each of two functional areas; or

(ii) meet the criteria set forth in paragraphs (1), (2), (3), (5), (9), (10), (12) or (13) of subdivision (zz) of this section.

(2) Commencing July 1, 1991, in the calendar year in which such school student becomes three years of age, a student shall be first eligible for school programs and services on January 2nd of such calendar year, if the student's birthday falls before July 1st, otherwise a student shall be first eligible on July 1st of the calendar year; except that a student who, as of his or her third birthday, is already receiving services pursuant to section 236 of the Family Court Act or its successor, or section 4204-a of the Education Law, may, if the parent so chooses, continue to receive such services through August 31st of the calendar year in which the student first becomes eligible to receive services pursuant to section 4410 of the Education Law. A student shall be deemed to be a preschool student with a disability through the month of August of the school year in which the student first becomes eligible to attend school pursuant to section 3202 of the Education Law.

The student was entitled to continue receiving Early Intervention services at its continuing placement thru the current school year. Additionally, the NYCDOE CPSE Administrator had a duty to facilitate a CPSE meeting within 60 days of receiving notice that a student was suspected of having a disability was aging into the CPSE domain. Here the student was pre-identified and classified as a -school student suspected of having a disability and the CPSE was on notice by the admitted contacts with the Early intervention school staff and Parent. The evidence clearly indicates that the Early Intervention placement notified the CPSE (and provided necessary consents and referrals Exhibits U, V and W) by fax on October 21, 2009. Several evaluations were completed by mid-November 2009 (Exhibits N, O and P) and the comprehensive and evaluation was completed at the end of November. The evaluations were completed within 6o days of request yet the NYCDOE CPSE allowed this student to languish without any program or placement for an additional 100 days before convening the first of a series of IEP meetings and then determined not to implement a program (or placement) for the student until July 2010 a deprivation of an additional 100 days (except for the persistence of the Parent securing the placement on June 17, 2010). The related services allegedly included for the remainder of the 2009-2010 school year and the forthcoming year either failed to actualize or were terminated during the 2010-2011 school year. The NYCDOE CPSE Administrator (when given a opportunity to refute the circumstances alleged by the Parent) had neither documentation nor knowledge or memory or any evidence to substantiate that the services had been delivered. For these reasons each separately and combined I find that the NYCDOE CPSE did not offer a free and appropriate public education to this student for the 2009-2010 and 2010-2011 school years. There was an affirmative acknowledgment by the NYCDOE witness “that there was no seat available”.

A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 USC sec. 1401[d][1][A]. The core of the statute is the collaborative process between parents and schools primarily through the IEP process.

“A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. DB. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F.3d 377, 381 [2d Cir.2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H.

v. DB. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir.

1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

Nonetheless, 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the 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]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388[S.D.N.Y.

2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Application of a Child with a Disability, SRO Appeal No. 07-10.

In requesting a remedy of compensatory services for therapies and services not received by this young student the Parent has identified and tabulated those services and therapeutic sessions the student has been deprived of (see Exhibit IHO-1). I hereby ORDER the NYCDOE to provide this student compensatory services as follows: {1} 112 30 minute sessions : Therapy

{2} 200 30 minute sessions : and Therapy

{3} 240 hours SEIT support services (at his current placement for the coming 2011-2012 school year) in addition to the 2011-2012 IEP provisions yet to be determined by the NYCDOE. Clearly this represents a tremendous amount of compensatory services that will take careful management by the Parent at several levels. It is recommended that Parent integrate these services (with proscribed current services) over a period of two years (weekends, evenings and holiday services permitted) as the severity of handicap experienced by this student will necessarily mandate current proscribed services which ought not to be reduced/conflict due to this compensation ruling. Parent is to be mindful of over taxing this handicapped student and should this arbitrary deadline (two years) be reached prior to the exhaustion of these compensatory services Parent is directed to commence another hearing (as needed) to obtain an extension of time to complete the compensatory services owed. Parent is directed to maintain exact records to account for the receipt of the services.

It is further ORDERED that the CPSE reconvene within 15 days of receipt of this Decision (if it has not done so already) to develop an IEP for the 2011-2012 school year to provide an appropriate program and placement with all necessary and required related services appropriate for this student. DATED: June 14, 2011

_________________________________

MICHAEL LLOYD KENNEDY, ESQ.

Impartial Hearing Officer

MLK:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department 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.

“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.

DOCUMENTATION ENTERED INTO THE RECORD

For the NYCDOE NONE

For the Parents

A Demand for Hearing, 2/22/11 4pgs

B NYCDOE Due Process Reply, 3/16/11 4pgs

C IEP, 5/14/10 13pgs

D IEP, 3/23/10 13pgs

E IEP, 3/22/10 13pgs

F Final Notice of Recommendation, 5/14/10 1pg

G NYCDOE Notice of IEP Change, 5/14/10 1pg

H Evaluation, 1/4/11 3pgs

I Pediatric Developmental Assessment, 5/19/10 7pgs

J Educational Evaluation, 1/28/11 16pgs

K Therapy Prescription, 3/23/10 1pgh

L Child Outcomes Summary, 3/23/10 9pgs

M Sp and Evaluation, 11/30/09 13pgs

N Evaluation, 11/12/09 3pgs

O Social History Update, 11/9/09 2pgs

P -school Student Evaluation, 11/9/09 2pgs

Q school Acceptance Letter, 5/10/10 1pg

R Authorization for Preschool Sp Ed Svcs, 4/20/10 1pg

S Final Notice Recommendation, 3/23/10 1pg

T Declination Letter, 3/23/10 1pg

U Consent to Evaluate 10/2/09 1pg

V NYC Early Interv. to NYCDOE CPSE, 10/2/09 1pg

W CPSE Transition Form, 10/2/09 1pg

X Consent for CPSE, 10/2/09 1pg

Y Subpoena/ , 4/18/11 2pgs

Z Subpoena/ , 4/18/11 2pgs

AA Therapy Letter, 2/14/11 1pgs

IHO-1 Parent Closing Brief, 6/1/11 12pgs