New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District: 11

Hearing Requested By: Parent

Date of Hearing: June 9, 2011

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEAREDON JUNE 9, 2011

Attorney — Student

Parents

Program Coordinator, School — Student

(via telephone) — Student

District 75 Representative — DOE

Assistant Principal, (via telephone) — DOE

Education Teacher, (via telephone) — DOE

— DOE

INTRODUCTION

On March 54/26/2011, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education‟s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New York.

On June 9, 2011, the impartial hearing was conducted. The hearing commenced at 9:30 a.m. and concluded at 12:53 p.m. Appended to the record are lists of persons in attendance and the documents received in evidence.

BACKGROUND

is a year old student classified with whose family relocated from School District (“ ”) to the where he began attending . On March 18, 2010 the Committee on Education (“CSE”) of created an Individualized Education Program (“IEP”) for the 2010–2011 school year which recommended placement in a class with an student to teacher ratio, teaching assistant for five and a half hours per school day, adaptive education, once a week for thirty minutes in a group of five students, therapy twice weekly for thirty minutes one on one, and therapy services for thirty minutes twice weekly one on one. Student was found eligible for extended school year services which continued related services one on one of therapy two thirty minute sessions per week, and therapy two thirty minute sessions per week and teaching assistant services five and a hal f hours per school day. The educational program included Instruction and Clues daily, and Assistive Technology Support Services of Picture Exchange Communication System (“PECS”), throughout the school day. (Exhibit 5)

Upon moving to the , the parent is reported to have contacted the local CSE and provided them with a copy of the 3/18/2010 IEP. The parent was advised that the CSE interpreted that IEP as not requiring the teaching assistant as indicated thereon. Additionally, the CSE was not able to provide the PECS, or some related services as indicated on the IEP. (Exhibit 1)

On 5/6/2010 and 5/11/2011 the CSE met to develop an IEP for the student, which removed the assistive technology support services of PECS, added a Intervention Plan, recommended a student teacher ratio, individual once a week for thirty minutes, individual therapy twice weekly for thirty minutes, individual and therapy services for thirty minutes twice weekly, added group parent services for thirty minutes weekly, and added an individual service of a crises management paraprofessional daily, full time. The projected initiation of these services was noted as 5/11/2011. (Exhibit 8)

On 5/17/201 the Department of Education (“DOE”) issued a P1-R, Nickerson letter notice, to the parent. This letter advised the parent of a legal right to place the student in an appropriate education program in a New York State Education Department approved private day school. (Exhibit 11)

The District acknowledges a failure to provide services for the student and has issued a variety of documents to enable the student to receive these services via Related Service Authorizations (“RSA”) for: sixty four Therapy (“ ”) sessions obtainable in two weekly sessions of thirty minutes each, twelve and Therapy sessions obtainable in two weekly sessions of thirty minutes each. (Exhibits 12-13-14-15) Parent has also questioned the delivery of services, which DOE states have been received by the student. (T 29) The District has offered entered into evidence a Nickerson P-1 letter which they offer to resolve the issue of failing to deliver appropriate services to the student and failure to place the student within the appropriate timeline. (Exhibit 11)

The Impartial Hearing Request asserts the parent claim for compensatory education from the DOE based upon its failure to provide a Free Appropriate Public Education (“FAPE”) during the 2010-2011 school year, during which the student has attended in the . Specifically, the parent asks for placement of the School, Annex, a state approved non-public school, be placed upon the IEP to facilitate and ensure appropriate services are provided. The parent also takes the position that the proposed remedy of the DOE, RSAs and Nickerson Letter, are insufficient. (Exhibit 1 & Parent‟s Closing Argument)

THE DEPARTMENT OF EDUCATION‟S POSITION

The DOE contends that by issuing a Nickerson Letter allowing the student to attend a New York State Approved Non Public School for the remainder of the 2010 2011 school year and the upcoming 2011-2012 school year and by issuing relative RSA documents to authorize the parent to obtain the missed therapy sessions, the DOE has met any obligation, if any, placed upon them for failing to provide timely services. Additionally, the DOE contends that their standard operating procedures do not require the IEP to indicate the name of any specific school. The DOE sets forth that the current placement offered to the student has been providing educational benefit and remains the least restrictive environment for the student. (DOE Closing Argument)

While the DOE does not agree with placing any particular school on the IEP, the DOE does not object to the student attending the School, Annex, by utilizing the Nickerson Letter it has issued. (T 19)

It should be noted that the RSA services must be utilized by the 24th, of June, or an extension must be requested to obtain services after that date. (T 25)

, the student‟s teacher at , was the DOE‟s witness. Ms. testified that the student‟s program has TEACCH and PECS components, utilizes some Applied Analysis (“ABA”) methodology, and uses Assessment of Basic and Skills (“ABLLS”) as an assessment twice during the school year. (T 56) The witness testified that the student has made progress, by attending to task more, being verbal, and reading sight words. (T 57 & 65-66) Ms. describes the student as: attending to task for a couple of minutes at a time, being verbal, being able to read sight words, penmanship, and needing redirections to task. (T 60) Ms. confirmed she was at the 5/20/2011 IEP meeting and that the para was initiated at that time. (T 61) Witness testified that she believes student is appropriately placed at this time. (T 64)

On cross examination the witness testified that the para was initiated to address s in the classroom such as getting out of his seat and pushing chairs back. (T 68) When asked to explain how the TEACCH methodology works the witness only able to provide minimal information to reflect her understanding of the program, stating “What the system does is they do whole group instruction. Teach a small group instruction. Then they do independent work, independent and they have their own student schedule.” (T 70)

When asked to describe the PECS portion of the program she could offer no information. (T 70)

The next DOE witness was , the student‟s education teacher. Mr. testified to receiving TEACH and ABA training, but not PECS training. (T 77) Mr. testified that the student engages in a lot of self , has a good memory for rote , and has leaned to read about 300 sight words while in his class. (T 77) Testimony was given that the student is weak in the area of communication, stays to himself, and just does his own thing unless somebody is right on top of him directing him what to do. (T 78) Mr. described briefly the TEACCH methodology as consisting of a schedule for the students they can check, one on one , work stations, and group lessons. (T 79) Mr. testified that ABA is utilized with sight words and data is collected weekly. (T 80) Mr. testified that progress has been made relative to the students self stimulating . (T 81) Mr. testified that the student‟s reading level was to grade, and that student could not read a single word when he began the class and progress has been made in his reading. (T 82-83)

Mr. testified that the student is making progress as is indicated by his improvement in fine skills, increased participation in circle time and group instruction, and he has become more engaged since the beginning of the year. (T 91)

When asked if the student is appropriately placed in his current program Mr. stated:

“I see as having more severe s than most kids as far as the self-

. However, academically, he can do a lot more than a lot of other students.

So couldn‟t it be a better place for him? Possibly” (T 92)

THE PARENT‟S POSITION

The Impartial Hearing Request (Exhibit 1) asserts the parent claim for compensatory education from the DOE based upon its failure to provide a free appropriate public education during the 2010-2011 school year, during which the student has attended in the . The parent contends that by failing to provide services comparable to those indicated on the student‟s 3/18/2010 IEP the student is entitled to compensatory education. The parent states that the record reflects that the DOE failed to provide the student with a much-needed crisis intervention paraprofessional; failed to provide therapy, failed to provide therapy, failed to provide sessions and failed to implement the PECS. The parent proposes the proper remedy is to have the matter deferred to CBST and have the School, Annex placed on the IEP as a proper placement. (Exhibit 1 and Parent Closing Argument)

Dr. , was the parent‟s witness. Dr. testified to being a Doctor of Philosophy in Education and Board Certified Analyst (“BCBA”) doctorate level. Witness is the program coordinator for the School. (T 95)

In describing ABA methodology in her school the witness testified as follows:

“Essentially, we start with the basis of positive procedures in place in all of our classrooms throughout the day. So that means that we provide high rates of reinforcement. We have token boards. A system that's built in the ability for students to earn reinforcement throughout the school day.

We have teachers who are trained in those procedures.

In addition to that, we provide both discrete trial teaching, which is intensive instruction, 1-on-1; as well as small group instruction in groups of two and three for students who are a little more academically advanced or require and skills in a group in order to improve their ability to perform and function in more inclusive settings.” (T-99)

Dr. testified that data is collected daily in her program so that changes can be made quickly in order to provide the most effective instruction. (T 101 -102) The program also trains staff in the area of analysis, implements intervention plans, and has a full related service program for , and therapy. (T 103-109)

Dr. testified that the school is an approved New York State non-public school, and that the student and parent went through the admission process. (T 110-

112) The witness testified that based upon the student‟s diagnoses, how he presents, his s, and skill, that he would be appropriate for the program offered by her school. (T 113)

, the parent, was the final witness to appear. Ms. testified that while in her son was receiving all the services delineated on the IEP. (T 143) Ms. testified that she moved to the and placed her son at , where several of his services were not implemented, including, the one to one teaching assistant (para), and the therapy. (T 144-145) Ms. testified that she did not receive information regarding the RSAs until after the impartial hearing request was filed. (T 147)

Ms. testified about her son‟s difficulties, including problems with fine skills for daily living tasks such as tying , his shirt, , and himself. (T 148) Specifically she testified that her son was able to himself, but since not receiving his therapy he has lost this skill. (T 148) Ms. continued to testify that as far as she knew was not being provided. (T 149-

150) Ms. testified that she does seek out parent training session, however, they do not always address needs related to her son. (T 151) Ms. believes that her son made the greatest gains while receiving ABA services, however, she testifies that she was not aware of any data collection regarding her son and has not received any information about ABA progress from the school. (T 153-154)

Regarding the most recent IEP, Ms. , testified that the meeting consisted only of the education teacher, despite the fact that the meeting notice indicated others would be at the meeting. On that day she testifies that she was shown the IEP on a computer screen, but it was incomplete. She testifies to seeing goals on the proposed IEP, but it was not finished. (T 155-156) Ms. testified that the second IEP meeting date was held after the resolution session and on that day she was shown the completed IEP on the computer screen, and showed her they were adding and parent education. (T 158) At the meeting Ms. testified that she thought it would be better for her son if he were in a more structured environment. (T 159)

Testimony indicates that the dates of the IEP meeting were 5/4/2011 and 5/11/2011. (T 161)

Ms. testified that she asked for placement in a private school at the IEP meeting because her son was not receiving services, such as therapy and , and he was losing fine skills as reflected in his loss of the ability to himself. The parent does indicate that his has improved, though he is not initiating conversation, and not improving . (T 166) MS. continued to testify that her son was still not able to and keep his , and that she was informed by the school nurse that he himself one day in school during stimulating . (T 167-168)

Ms. testified that she has lost trust in the DOE and the school since they have not provided services to her son, failed to advise her of the lack of services and has a lack of communication with the school professionals. Additionally, the mother testified that she was told PECS are not used in the classroom (T 168-169)

Ms. testified to the use of the PECS system in the previous program and how it alleviated some of her son‟s stress with transitions. (T 170)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Education v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE 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. School Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

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). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but 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). 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 v. Pawling Cent. School Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Education, 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Education, 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 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]; Gagliardo v.

Arlington Cent. School Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City School Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

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]; Tarlowe v. Dep't of Educcation, 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), 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]; see Application of the Dep't of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]; School Comm. of Burlington v. Dep't of Education, 471 U.S. 359, 369-70 [1985]).

The DOE acknowledges failing to provide a FAPE, and violating the students rights. (T 37) The DOE admitted that as a result of the failure to provide a FAPE the student suffered regression in some areas, and stagnated growth in other areas. (T 47)

Testimony by the DOE witnesses indicates that there may be progress in some areas. However, the DOE submitted into evidence a P1-R letter dated 5/17/2011 (Exhibit

11) that states clearly:

“At this time, The New York City Department of Education is not able to provide the education services recommended for your child. Therefore, you now have the legal right to place your child in an appropriate education program in a New York State Education Department (“SED”) approved private day school. All tuition and transportation charges will be paid by the DOE and the SED if the placement is appropriate, and there will be no cost to you. ” The letter continue to state that the DOE “…will continue to make every effort to find an appropriate public education program for your child. If an appropriate public school program is found, we will telephone you and send you a final notice of recommendation with the placement site being offered.”

No notice was issued after the date of the P1-R letter and no indication was given that any effort was undertaken to locate a school that could provide the services required to appropriately implement the IEP.

The DOE failed to provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. The DOE acted in violation of the most recent 3/18/2011 IEP and failed to provide the services indicated thereon. The 3/18/10 IEP, which was agreed to by the parent, was specifically designed to meet the needs of the student and contained appropriate services. (Exhibit 5) Specifically, the DOE failed to provide the teaching assistant, therapy, therapy, , and PECS services. DOE testimony regarding the provision of PECS services at the current program site do not reconcile with the fact that the IEP meetings which resulted in the creation of the 5/11/11, removed the PECS service entirely. (Exhibit 8)

Although services were changed at the 5/11/2011 IEP, that IEP does not contain, nor were any evaluations submitted, to reflect why services were altered. Exhibit 8.4 states that no particular service is needed to address communication needs (such as PECS) while the functional assessment states that a planned intervention is “continued use of communication devices in order to expand use of .” (Exhibit 8.22)

For present levels of performance the 5/11/11 IEP states broadly that “ is functioning at the level.” (Exhibit 8.2) There is no basis for the statement and nowhere in the IEP is there a more specific reading or math level or instructional level noted.

The DOE attempts to remedy their failure in the instant case by issuing a Nickerson Letter. A Nickerson letter is a letter from the Department of Education to a parent authorizing parental placement of the child, at no cost to the parent, in an appropriate education program in any state-approved private school. (See Jose

P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) Additionally, this remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. Again, the parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)

The DOE presentation of a Nickerson Letter is not the proper remedy in the instant case. The DOE cannot willfully deny services to a student, for any length of time, and rely on issuing a Nickerson Letter to cure its failure. As indicated in the record, services are not fungible, and cannot be piled up in an effort to make up for past DOE failure to appropriately educate the student. In the instant case the student was potentially placed properly, however, the DOE failed to act in accordance with the IEP in effect and properly deliver the services as directed therein.

I conclude that the Department of Education failed to provide a FAPE to the student and failed to provide therapy, therapy, services, a required teaching assistant, and a proper PECS. This denial resulted in student regression.

The parent requests a remedy relying on compensatory education. Generally, compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction, and may be awarded if 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 (Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir. 1990]; Application of a Child with a Disability, Appeal No. 01-094). Because petitioner's son is only years old and because the deprivation of services was of a limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, this is not a proper case for an award of compensatory education. This does not mean that the parent is barred from receiving a remedy to address the DOE failure to provide services.

The record does indicate that the School can appropriately meet the needs of the student. The DOE confirms this by their issuance of a Nickerson Letter which would allow the student to attend the school at DOE expense. Additionally, the record indicates that the school does utilize Applied Analysis throughout the day, a methodology shown to properly address the student‟s needs. Appropriateness of ABA as a methodology is confirmed by the testimony of the parent and that of Mr. , who testified that that was able to make gains in reading sight words under Mr. ‟s direction which was taught by the use of ABA-like teaching practices.

The program coordinator at the school testified that would be appropriate for a class with a crisis intervention paraprofessional based upon the school‟s review of the record and the student. Additionally, testimony was given that The School will be able to provide related therapies and utilize PECS during the upcoming school year.

Equities do not prevent the parent from a remedy. The parent acted in accordance with all requests of the DOE and acted prudently to communicate with the school. Her testimony reflected that she was knowledgeable able her child‟s disability, educational history and educational needs.

ORDER

The DOE is ordered to reconvene and place the School, Annex on the student„s IEP as the appropriate placement for the student for the 2011-2012 school year.

The DOE is ordered to keep contained in the IEP the current related services and paraprofessional services at the IEP meeting adding the School, Annex.

The DOE is ordered to include current and instructional math and reading levels for the student on the IEP.

The DOE is ordered to add the PECS service to the IEP.

The DOE is ordered to issue an RSA for the following services and include on the face of each RSA that the parent has one year from the parent„s receipt of the RSA to obtain the services without the need to ask for an extension prior to the expiration of said year:

: thirty, thirty minute sessions, to be delivered individually or in a group of not more than five.

therapy: sixty four, thirty minute sessions, to be delivered individually.

Therapy: twelve, thirty minute sessions, to be delivered individually.

The DOE is ordered to take the above action by 7/22/2011. Dated: June 24, 2011

________________________________

DANIEL AJELLO, ESQ

Impartial Hearing Oficer

DA:dl

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 ON JUNE 9, 2011

PARENT

A Closing Argument, 6/20/11, 20 pages

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 4/20/11, 5 pages 2 Notice of Scheduled Resolution Meeting, 4/26/11, 2 pages 3 Resolution Session Response Form, 5/3/11, 1 page 4 Due Response, 4/26/11, 4 pages 5 IEP, 3/18/10, 12 pages 6 Authorization to Attend, 9/23/10, 1 page 7 FNR, 9/22/11, 1 page 8 IEP, 5/17/11, 25 pages 9 IEP Meeting Invite, 5/6/11, 1 page 10 FNR, 5/11/2011, 1 page 11 Nickerson Letter/P1, 5/17/11, 1 page 12 RSA for , 5/9/11, 1 page 13 RSA for / Therapy, 11/19/10, 1 page 14 RSA for Missed Sessions, 5/11/11, 2 pages 15 RSA Packet, Undated, 7 pages 16 RSA for / Therapy Missed Services, 5/19/11, 2 pages