New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 15

Hearing Requested By: Parent

Date of Hearing: July 18, 2011

August 9, 2011

Actual Record Close Date: August 17, 2011

Hearing Officer: Laura Fieber, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2011

District 75 Representative — DOE

Mother — Parents

Aunt — Parents

Assistant Principal (via telephone) — Parents

Counselor (via telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2011

District 75 Representative — DOE

Mother — Parents

On May 26, 2011, the parent of (“Student”) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 United States Code, Section 1415 (f)(1), claiming a denial of a free appropriate public education (“FAPE”) for the 2011-2012 school year. I received an appointment as Impartial Hearing Officer on May 27, 2011. A hearing took place on the dates indicated above, with the timeline to render a decision extended accordingly. A list of people who attended the hearings and documents received in evidence are attached to this decision. represented the New York City Department of Education (“DOE”); the parent represented herself.

Background

This case concerns a -year-old student who attended @ during the 2010-2011 school year. Her Individualized Education Program (“IEP”), dated February 10, 2011, identified a educational classification of disability of , and recommended a twelve-month program in a class in a District 75 school, with related services of for thirty minutes once a week in a group of : ; therapy (“ ”) for thirty minutes two times per week in a group of : ; therapy (“ ”) for thirty minutes once a week in a group of : and twice a week in a group of : ; and and therapy for thirty minutes once a week in a group of : and once a week in a group of : . Ex. 3. The parent accepted the program and services provided by this IEP. Ex. 4.

On May 26, 2011, the parent requested an impartial hearing, seeking a residential placement for her daughter. Ex. 1. Department’s Case

Ms. stated that the Student’s school indicated that she was able to flourish and be educated in her current setting, which the DOE believed to be the most appropriate setting for her, not a residential setting. Tr. 15.

, the Assistant Principal at testified. The mother faxed two letters, on April 14, 2011 and May 12, 2011, about having the Student placed in a more restrictive setting. Tr. 44-49; Ex. F. She let the mother know that the Student wasn't exhibiting any of the in school that the mother described. She also referred the mother to Ms. , their on-school counselor, and put in her request to the schoolbased support team (“SBST”). The SBST was supposed to log in the case, open it, and then evaluate the Student to see if she was in the right setting or not. She discovered that the SBST somehow did not have the fax, which was why they requested the second fax. She believed Ms. has been working with the mother and an agency to provide outside services for the family. She did not know the status of the interventions. She believed the Student was properly placed in the most appropriate and least restrictive environment. If the student had exhibited issues, her teacher, Ms. , would have kept logs on them. Tr. 55-56. She also knew of no incident of where the Student or the any of the other children in the class hurt themselves or somebody else, which would have been reported through the Online Reporting System. Tr. 58

, the school counselor, testified that she had not really observed any issues, either in her sessions or in class, regarding the Student’s social or emotional interactions with her peers. She has a good team she works with, and her teachers and paraprofessionals had her structured. Tr. 75-77. She noted that the Student had to be redirected quite a few times, but she was always able to get back on task.

She stated that Ms. shared with her the mother’s frustration with the Student’s at home, and her wanting to find a residential placement. Tr. 78. She called the mother to offer assistance and asked her to contact her when she could get to the school. The mother had transportation issues, so they never met one on one. They did have a meeting with the mother, aunt, ACS worker, and coordinator, Ms. , about the kinds of services that ACS was going to try to offer to the family. Tr. 80. When she was informed at the meeting that was involved in outreach, Ms. s stated she made sure to let them know that when they left the school that day, she would contact all the people connected with who were supposed to be offering services to the mother, which included going to the home, intervention team, and family . Tr. 83. She has learned that the parent and Student were receiving family , and that the Student was doing a little better.

Ms. s believed the school placement met the Student’s needs. Tr. 85-87. She would not say that a residential setting was more appropriate. Most of the difficulties occurred at home, so the mother would benefit from whatever supports she could get that could help the Student to grow , , and academically, and be able to interact positively in . She also believed that the parent and Student could benefit if the child received services at home, such as respite services, and parent and training to better understand her daughter's disability. Tr. 88-90.

On the second day of hearing, Ms. gave an update on what had been discussed previously. She confirmed through , senior clinician at , and the Medicaid service provider for the family from 's services, that the mother was participating in family therapy with Ms. . Tr. 101-103. The Medicaid service coordinator confirmed that ’s had submitted an interim service plan (ISP) to

Care. confirmed to Ms. that the date following this hearing, Care would begin respite care three days per week, Wednesday, Thursday and Friday. Tr. 132-33. Ms. also confirmed there were no logs for the Student. Tr.

103. The only parent training and given to the parent was on Thursdays with . The student had not gotten a paraprofessional to accompany her on the bus to school. She also described ’s Project Intervention, a home-based program that could provide modification in the home. Tr. 111, 115. Parents’ Case The mother testified that she believed that the Student needed a more restrictive program than the class at @ . Tr. 14-15. She believed the student to be a danger to herself and others in the school, although moreso at home. Tr. 69. She also described how the Student had scratched the bus matron. Tr. 104. When she attended the February 2011 IEP meeting, she did not ask for a residential placement, although she had when the Student attended her previous school. Tr. 123. She produced letters from two of her daughter’s doctors, which the Committee on Education (CSE) did not receive. Exs. A, B, C. The doctors diagnosed the Student with Disruptive Disorder and disorder (“ ”). Both recommended a placement in a residential treatment center “to better address her and treatment issues.”

Findings of Fact and Conclusions of Law

The IDEA requires that a FAPE be available for all children with disabilities between the ages of three and 21 (20 U.S.C. § 1412[a][1][A]; Application of a Child with a Disability, Appeal No. 04-030). The IDEA also sets forth procedural safeguards with respect to the provision of a free and appropriate public education which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (20 U.S.C. § 1415[b][6]). These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 [1988]). Application of a Child with a Disability, Appeal No. 05-131.

Two purposes of the IDEA (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 Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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. Bd. 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. Bd. 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 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]; 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]). Also, a FAPE must be available to an eligible student "who needs education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

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 Educ., 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 Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

Because the parent did not advise the CSE when it met in February 2011 that she wanted the Student placed in a residential setting, the CSE did not have the opportunity to consider the request. The mother wrote her first fax in April 2011, and then re-faxed the request in May 2011. She obtained the doctor’s letters in June 2011. Further, until that time, the parent had accepted the DOE’s placement at - and the program and services detailed in the February 10, 2011 IEP. Therefore, I am returning the case to the CSE for it to evaluate the Student to determine whether she has been properly placed and then for it to reconvene a legally constituted team to consider the results of the evaluation and any additional information provided by the parent to support her placement position. Further, there are certain measures that the DOE must take to ensure the safety of the student, and the carryover of skills learned at school into the home and community. DOE must provide the parent with and training. It must also implement a home-based program, such as the Project Intervention described by Ms.

, in concert with the parent training, to enable the parent to learn and implement strategies and methodologies to address the Student’s issues. If school begins prior to the convening of the CSE, the CSE must provide the Student with a travel paraprofessional to address the significant that are impeding her ability to travel to and from school. The CSE must then consider continuing the services of the travel paraprofessional throughout the year.

Further, the DOE must work in collaboration with the parent to ensure that her requests are acknowledged and considered in a timely manner.

Order

I hereby order as follows:

1. The case is remanded to the CSE for it to evaluate the Student to determine whether she has been properly placed and also to consider the provision of the daily services of a travel paraprofessional. The CSE shall then convene a legally constituted CSE to consider the results along with any documents and information provided by the parent, and make its recommendations;

2. The DOE shall provide the parent with appropriate training and to ensure that she learns strategies specific to the Student to address her issues.

3. The DOE shall implement a home-based program for the Student, which may also incorporate the parent training referred to in paragraph 2.

4. If the CSE does not convene before the start of school, it shall temporarily provide the Student with a round-trip travel paraprofessional to ensure her safety and the safety of other until the CSE makes its recommendation.

5. The DOE shall work in collaboration with the parent to ensure that her requests are acknowledged and considered in a timely manner. Dated: August 22, 2011

_____________________

LAURA FIEBER ESQ.

Impartial Hearing Officer LF:nn

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’s

#

Exhibit Subject Date

Pages

s

A Doris Fine MD letter 6/14/11 1

B MD letter Undated 1

C MD letter Undated 1

D Comprehensive Psychological Evaluation 10/30/09 7

E Liability Notice 07/07/10 5

F Letters to Ms. 4/14/11 4

DOE’s

#

Exhibit Subject Date

pages

s

1 Impartial Hearing Request 5/26/11 5

2 IEP 12/17/09 13

3 IEP 2/10/11 19

4 Final Notice of Recommendation 2/10/11 2 5 Teacher’s Report 1/4/11 1 6 Teacher’s Report 6/1/11 1 7 School Counselor’s Report 6/7/11 1 8 Therapy Report 6/1/11 1 9 Individual Student Attendance Reports – RISA Various 1 10 Comprehensive Psychological Evaluation 10/30/09 7 11 Psychological Evaluation 10/21/09 4 12 Parent Communication Log Various 1 13 Summary of Family Offerings SY 2010-2011 Various 2 14 Summary of Family Offerings SY 2009-2010 Various 2 15 Report to Families – Report Card, Winter Session 2010-2011 4 16 Assessment of Common Core Standards Various 6

17 ABLLS 3/11/11 3

18 ABC Data Collection Sheet 6/2011 10