New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 8

Hearing Requested By: Parent

Date of Hearing: June 24, 2011

June 30, 2011

July 11, 2011

Hearing Officer: Michael Kennedy Lloyd, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 24, 2011

Esq Attorney — Parents

Esq Attorney — Parents

Parents

CSE 2 Representative NYCDOE — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 30, 2011

Esq Attorney — Parents

Esq Attorney — Parents

Parents

CSE 2 Representative NYCDOE — Parents

Dr. Director Clinical Svcs NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 11, 2011

Esq Attorney — Parents

Esq Attorney — Parents

Parents

Parents

Education Director School CSE 2 Representative NYCDOE — Parents

The matter of. came before me on June 24, 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 May 20,2011. The hearing was convened at the request of the parent, which was received on May 18, 2011. The hearings were held on June 24, 2011; June 30, 2011 and July 11, 2011. The parties made no request to submit post-hearing memorandum; the Parent prepared a Motion for Summary Judgment (which was never received by the New York City Department of Education (NYCDOE) Impartial Hearing Office Case Manager and which was not entered into the system) to which the NYCDOE has not responded. The Motion is not addressed as the evidentiary matters complained of therein were resolved during the course of the hearings to allow for a complete record. Tr. p. 55-76. The parent submitted a researched letter brief on the point of compensatory, retroactive and prospective tuition reimbursement (Exhibit IHO-4). The compliance date has been extended. Appended to the record are the lists of persons in attendance and the evidentiary submissions considered in this matter. The Parent has preserved its objection as to the adverse ruling to accept any and all alleged late filed documents submitted by the NYCDOE allegedly in violation of the five day rule. Tr.p.60-61.

Parent has requested this Hearing seeking compensatory services ( , and therapies) for proscribed related services unreceived (July 2010 thru June

2011) in addition to a prospective non-public school placement at the School (in ) for failure to provide the student with a 'free and appropriate public education' in 2009-2010 and 2010-2011. Parent alleges an intentional and “feckless” long-term failure of the NYCDOE to provide educational services to this severely handicapped child. Tr.p.146-148.

BACKGROUND

This student is currently . years old and classified by the NYCDOE Committee on Preschool Education (CPSE) (2009-2010) as a student with a disability (Exhibits 23) and a Committee on Education (CSE) student (2010- 2011) on the (Exhibit 16). The student participated as a CPSE student commencing November 16, 2009 after transfer from a placement which concluded in August 2009. This effectively is an acknowledgment that the student did not receive educational services nor related services in September 2009 thru and including November 15, 2009. There is no indication the parents received any parent training throughout any of the times in question (2009-2011).

The NYCDOE has acknowledged that for the 2010-2011 school year the student was not provided a free appropriate public education (FAPE) except it maintains that the services/program received in the summer months July and August of 2010 were proper.

The child attended Howard Haber (where she had been programmed to attend for the 2008-2009 year as a student with a disability. There were difficulties with this placement (Exhibit GGG).

In November 2010 the student began attending (the Association in the Metro Area for Children) with the additional education itinerant teacher (SEIT) service of 5 hours per week supplied by the NYCDOE) and Therapy from an additional service provider (Exhibit 23) 2X30: . The student is recognized as needing “a lot of intensive intervention”. Tr. p. 225-227. The Director of Clinical Services testified that this placement provided the proscribed services as indicated on the October 15, 2009 Individualized Education Program (IEP) commencing November 16, 2009. It is to be noted that the June 2, 2009 IEP (Exhibit A) proscribed 7 hours of SEIT services at home reduced to 5 hours in the October 2009 IEP (compare Exhibit 23 against Exhibit A).

The Clinical Director witness opined that the student was analyzed as being on the more severely impacted end of the . Tr. p. 227.

The School is an Applied Behavioral Analysis (ABA) based institution appropriately designed to provide services to severely impacted students. This student is identified as non-verbal, with (eating of foreign objects) and biting tendencies and leg prosthesis and is in need of intense attention and services. Due to the severity of the handicapping condition the student was proscribed additional home services in both the June 2009 IEP (Exhibit A) and the October 2009 IEP (Exhibit 23). Both proscribed IEPs provided for door to door ized transportation services and neither IEP made provisions for parent training services. The student did attend from November 2009 thru July 210 when the parent removed the student. It is unchallenged that the student received no services from August 2009 thru and including November 16, 2009.

On May 25, 2010 the NYCDOE authored an IEP (Exhibit 16) which has been acknowledged by the NYCDOE as failing to provide the student with a FAPE. The parent (then represented by prior counsel) was tendered a Nickerson letter (by the CSE Chairperson) in or about September 2010 (Exhibit F) and proceeded to apply to more than 50 NYS approved non-public schools of which not one was able to accept the student (Exhibits G thru GGG). Essentially the effectiveness of the provided Nickerson letter was obviated by these many schools rejecting the student for a variety of reasons (Exhibit GGG). Result being that the student was offered a failed FAPE (by admission of the NYCDOE) and was thereafter unable obtain an approved non-public placement despite significant efforts on its own.

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a “ student” is not entitled to a free and appropriate public education (FAPE).

The NYCDOE takes the position that a FAPE was provided the student from November 16, 2009 until August 2010.

The NYCDOE acknowledges a FAPE has not been provided thru the totality of the 2010-2011 12 month proscribed school year commencing August 2010. Tr.p.109.

The Parent alleges that the NYCDOE has failed to provide a free and appropriate education for the 2009-2010 and 2010-2011 12 month school years. It further alleges that related services of , and therapy were not delivered.

Parent has identified an appropriate educational facility that is able to provide the intense educational program needed by this severely handicapped student and requests prospective direct funding (with transportation) at the School in for the 2011 thru the 2013 school years as compensation for the missed year of school.

THE NYCDOE CASE

The NYCDOE submitted evidence and testimony that the student was provided a proper placement and services from November 16, 2009 up until the parents removed the student in mid-July 2010. There is an acknowledgment that no placement or related services were provided from August 2009 thru and including November 15, 2009.

The NYCDOE opined that a better course of action would have been for the Parent to have enrolled the student into its recommended placement notwithstanding the acknowledged failure of a FAPE.

During the first day of hearing the Parent and NYCDOE jointly concluded that the student did not receive a total of 254 related services properly proscribed by the CSE. Those proscriptions were 72 sessions (30 minutes ) of therapy; 72 sessions (30 minutes ) of therapy; and 108 sessions (30 minutes ) of therapy. Tr.p.118-122.

The NYCDOE made no complaint that the Parent have failed to cooperate with the NYCDOE in any respect in assessing, evaluating and placing the student. It is clearly acknowledged between the parties that this student is severely handicapped and needs intense services and a high degree of attention and supervision.

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 and placement from the NYCDOE to which the child is entitled. Parent alleges the student is owed;

{1} 2010-2011: 72 therapy sessions to be provided by a qualified therapist at a duration of 30 minutes per session (individual). .

{2} 2010–2011: 108 sessions of therapy to be provided by a qualified therapist at a duration of 30 minutes per session (individual).

{3} 72 therapy sessions by a qualified therapist at a duration of 30 minutes per session (individual)

{4} Direct tuition ($58,000 for ten month program) at the School ( ) for the 2011-2012 school year.

{5} Summer session attendance at the School for the summer 20112012 school term ($1300 per week of attendance pro-rated according to the student's attendance) to complete the 12 month program for 2011-2012 school year.

{6} Transportation (door to door to and from) to the School with a crisis para skilled/trained in managing non-verbal severely children.

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 preschool 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, , or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from programs and services approved by the department. Eligibility as a preschool 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 cognitive, 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 preschool student becomes three years of age, a student shall be first eligible for preschool 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 NYCDOE is of the belief that children are not entitled to a FAPE. All children ages 3-21 who are identified as having a handicap are entitled to a FAPE.

A FAPE includes 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 for therapies and services not received by this young handicapped student the parties have identified and tabulated those services and therapeutic sessions of which the student has been deprived. I hereby ORDER the NYCDOE to provide this student compensatory related services as follows:

{1} 72 30 minute sessions Therapy

{2} 108 30 minute sessions and Therapy

{3} 72 30 minute sessions Therapy

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 thru 2013 (weekends, evenings and holiday service delivery permitted) as the severity of handicaps experienced by this student will necessarily mandate the proscribed services be integrated with the out of state non-public day placement at the School ( ).

It is further ORDERED that the NYCDOE fund the student placement at the School ( ) for the 2011-2012 12 month school year commencing on or before July 12, 2011. The funding/placement is to be pro-rated during the summer session according to the student's actual attendance. As of the issuance date of this decision I am informed by the NYCDOE School Psychologist that transportation has been arranged and scheduled to commence on July 17, 2011.

I note for the record that although Parent's ninety item Demand for an Impartial Hearing is silent as to any mention of parent training services my observation is that the parents of this severely handicapped student would benefit from parent training and are so entitled as parents of an student. As the demand is silent on this point I am constrained from ordering services beyond that which are identified/requested within the Demand, however it is my studied opinion that such service would be beneficial to this student and I leave it to the parties to negotiate a successful result. Dated June 19, 2011

MICHAEL KENNEDY LLOYD, ESQ

Impartial Hearing Officer

MKL:gc

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

PARENT EXHIBITS

A IEP 2009-2010 dated 6/2/09 26pgs

B IEP 2010-2011 dated 7/14/10 19pgs

C Social History dated 10/8/07 2pgs

D Education Evaluation dated10/8/07 5pgs

E School Acceptance 6/18/10 1pgs

F Nickerson letter 8/31/10 1pg

G School Rejection 10/12/10 1pg

H Rejection 10/13/10 1pgs

I Rejection 10/5/10 1pgs

J School Rejection 9/27/10 1pgs

K Rejection 10/10/10 1pgs

L Center Rejection 11/9/10 1pgs

M . Ed. Program Rejection 9/23/10 1pgs

N School Rejection 11/9/10 1pgs

O Rejection 11/1/10 1pgs

P School Rejection 9/28/10 1pgs

Q School Rejection 10/7/10 1pg

R Lighthouse Center Letter 9/27/10 2pg

S E-mail re: Dee Payton 10/8/10 1pg

T Prime-Time Rejection 10/22/10 1pg

U Letter re: 9/30/10 1pg

V Community School Rejection 10/6/10 1pg

W School Rejection 10/5/10 1pg

X School Rejection 10/15/10 1pg

Y Hospital Rejection 9/30/10 1pgs

Z Rejection 9/28/10 2pgs

AA . Center Rejection 10/25/10 1pgs

BB Rejection 10/13/10 1pgs

CC School Rejection 10/8/10 1pgs

DD School Rejection 1-/12/10 1pgs

EE Rejection 10/12/10 1pgs

FF School Rejection 10/1./10 1pgs

GG School Rejection 10/8/10 1pgs

HH Rejection undated 1pgs

II School Rejection 9/24/10 1pgs

JJ Rejection 10/21/10 1pgs

KK School Rejection 9/23/10 1pgs

LL School Rejection 10/20/10 1pgs

MM Center Rejection 11/1/10 1pgs

NN School Rejection 10/6/10 1pgs

OO School 9/23/10 1pgs

PP Sp. Children 10/15/10 2pgs

QQ School Rejection 9/27/10 1pgs

RR School Rejection 9/27/10 1pgs

SS School Westchester Rejection 10/5/10 1pgs

TT School Rejection 10/20/10 1pgs

UU JGB Education Services Inquiry letter 9/22/10 2pgs

VV School Inquiry letter 9/28/10 1pgs

WW School Rejection 9/28/10 2pgs

XX School Inquiry Letter 10/7/10 1pgs

YY Inst. Inquiry letter 10/13/10 2pgs

ZZ . of Applied Learning 10/7/10 1pgs

AAA for Progress 10/5/10 3pgs

BBB Letter School undated 1pgs

CCC Letter Center 9/18/10 1pgs

DDD NY Center for Charter Wait-List 5/14/10 1pgs

EEE Letter to & 10/7/10 1pgs

FFF Notice of CSE Meeting & Final Notice of

Recommendation 2pgs

GGG Letter to CSE Chair Beatty 11/17/10 3pgs

HHH Montefiore Hosp. Report 3/17/10 & 10/7/09 5pgs

III Howard Haber Letter 10/7/09, 10/7/09 1pgs

JJJ Neuro-Psych Eval 6/24/ 10 & letter 10/8/09 7pgs

KKK PROMPT Eval 5/20/10 2pgs

LLL Voicemail Recording 4/8/1

MMM Eval 1/10 thru 3/10 18pgs

NNN Vineland Report 4/22/10 7pgs

IMPARTIAL HEARING OFFICER EXHIBITS

IHO-1 Assessment 5/19/10 2pgs

IHO-2 Assessment 6/30/10 1pgs

IHO-3 Therapy Assessment 6/28/10 1pgs

IHO-4 Letter Brief 6/29/11 6pgs

NYCDOE EXHIBITS

4. Month Rationale 5/15/09 2pgs 5 and Progress Rpt 5/27/09 4pgs 6 Report various 4pgs 7 Consult 2/17/09 3pgs 8 Consult 2/17/09 1pgs 9 Annual Review 4/15/09 4pgs 10 Therapy Report 3/30/09 2pgs 11 Exam 8/31/09 2pgs 11a Exam 10/11/07 2pgs 11b Psychological Eval 10/8/07 4pgs 12 CPSE Meeting Notice 5/13/09 1pgs 13 Final Notice of Review 6/2/09 1pgs 14 CPSE Meeting Notice 10/8/09 1pgs 15 Final Notice of Review 10/15/09 1pgs 16 IEP 5/25/10 18pgs 17 Parent Letter 6/10/10 1pgs 18 Final Notice of Recommendation 6/3/10 1pgs 19 Parent Letter 5/14/10 1pgs 20 Psychiatric Appt. letter 3/11/10 1pgs 21 Final Notice of Review 7/28/10 1pgs 22 Contact Notes 3/5/10 thru 7/14/10 4pgs 23 IEP 10/15/09 30pgs 24 Aging Out Report 1/15/10 4pgs 25 Preschool Authorization IEP Change 2pgs 26 Therapy Vacancy Notice 9/09 thru 11/09 5pgs (12 pages; DOE)