New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 18

Hearing Requested By: Parent

Date of Hearing: July 8, 2011

July 11, 2011

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 8, 2011

Attorney — Student

Mother — Student

CFN-211 Education Administrator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 11, 2011

ESQ., Attorney — Student

Parents

Parent Advocate — Student

District Representative — DOE

Services Manager — DOE

District Representative — DOE

Principal 135 (Via Phone) — DOE

By Complaint dated June 13, 2011, the matter of A. came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This expedited hearing was requested to review ’s program in view of a series of incidents during the 2010-2011 school year. The parent seeks a non-public school, a reclassification to “other health impaired,” a finding of a free appropriate public education (FAPE) denial, home instruction, a P1 Letter, a P3 Letter, Compensatory Tutoring, a Private Neutral to comprise a Positive Intervention Plain, expungement of suspension records.

TESTIMONY AND EVIDENCE

, Principal of , indicated that was in for 2010-2011. (67) He was transferred to her school on April 11, 2011 and was placed in a class. (68)

She is not directly with him since she is in the “main building” and he was placed in the “annex.” (68)

There were incidents including an attempt to the teacher. (69) He her and on her. (69) He also several staff members. (70)

He received at the school. (70)

He was transferred from the suspension site. (75) He was accepted without an Individualized Education Program (IEP). (75) They put him in a general education class initially, and then he was put in a classroom. (79)

He was suspended for three days on May 23. (85) He was sent to the main building in the “safe room” with one teacher and 8-10 students. (107-109) Work was sent over to him. (108)

He was also given a superintendent’s suspension on June 3 or 4. (85, 89) This was a 5 day suspension. (90) He was sent back to school before he was reinstated. (90-91)

They got documentation from his doctor indicating that he needed a paraprofessional. (98)

They needed additional information to see if the transition would work; they ultimately decided that he needed the para. (100) When the year ended, he did not have a paraprofessional. (101)

He did not get during his suspension. (113)

He came from a bigger classroom; they wanted to wait to see if the smaller classroom worked for him. (120)

challenges increased during the time he was at her school. (130)

She was notified of the need for a paraprofessional maybe a week after Easter break. (138)

At a “reconvene” in May, she was told that there was a recommendation for a paraprofessional. (139) She was told that the placement was deferred to September. (140)

The parent testified that attended at the start of the 2010-2011 school year. (145) There were many complaints about his , including obscene

. (145-147)

He was in a collaborative team teaching class, with a general education teacher. (147-148)

There were 2-3 complaints per day. (148) Then there were calls 5-7 times a day. (152)

She spoke to the school about opening a Committee on Education (CSE) case in December, 2010. (151) She wrote a letter to this purpose in January, 2011. (151)

He got a new class, Ms. . (160) They decided to truncate his day so that he would be dismissed at 12 noon. (160)

He was out of class many different times. (163) He was suspended too many times to count. (165) He missed over 20 school days at . (165) This includes three superintendent’s suspensions. (165) He never had a manifestation determination. (167168)

He had been suspended immediately before he changed schools. (169) There was never any request to revise the Functional Assessment (FBA). (170)

She was told that the paraprofessional would be denied at the reconvene meeting.

(170) said that a paraprofessional would make no sense because the paraprofessional would simply be running after him. (170)

He goes to therapists. (178) He is also seeing a psychiatrist once a month. (178, 195) He has disorder ( ). (179) The psychiatrist says the current setting is inappropriate. (195)

There were three complaints a day at . (183) She asked the District to call her less because she was getting in trouble at work. (183)

He showed improvement in his for half the day in late June. (184-185)

He was offered a in March, 2011. (188) He was then placed back in and then to , the suspension site. (190)

Grades were 1 until the resolution session, then he received grades of and . (196-197)

, a parent advocate, testified that a District represented indicating during resolution that OHI would be a better classification. (203) They felt that he needs a ist and a neuropsychiatric evaluation. (204-205)

Evidence includes a document from the principal of indicating that was placed on a truncated day effective December 8, 2010. (Exh. 3.2)

The IEP for 2011-2012 recommends a program with ,a paraprofessional. (Exh. 8) IQ was in the low average range; difficulties were noted. It indicates that has a low frustration tolerance; when there is correction, he tends to leave the room and stop his work. He appeared to benefit less from closer individual than from a strong and consistent reinforcement and reward system. A BIP is recommended.

The FBA and BIP (Exh. 9) dated 3/18/11 suggests interventions including close parent contact, constant communication between student and teacher, a daily log, peer identification, a feelings log, a seat designated for misbehaving, constant verbal praise. Reinforcers include tangible rewards, adult , compliments.

A letter from , a Psychiatric Social Worker, indicates that is diagnosed with . (Exh. 12) He has a history of poor impulse control, poor anger management, oppositional . He has recently shown improvement in terms of communicating his feelings.

A Psychoeducational Evaluation by dated 3/11 assessed issues. (Ex. E) The report indicates that is motivated by positive , enjoys being seen in a positive light, has demonstrated a growing ability to respond to incentives. He has significant difficulties with , , , withdrawal. issues have begun to affect his daily life activities. Skills were in the above average to average range in testing.

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The parent contends that the record indicates that the child did not receive a FAPE for 2010-2011. After the parent sought CSE intervention in December, 2010, the child continued to engage in serious incidents during the school year. There is no dispute that such s negatively impacted on his academic performance. There was no clear showing of any positive developments after the program and school location were changed. Though the District has the burden, the District did not call any teachers who were familiar with ’s performance in the classroom. The District also did not provide with a paraprofessional though a “reconvene” in May, 2011 indicated that such was appropriate.

The parent also contends that the child didn’t receive an MDR in connection to suspensions during the 2010-2011 school year. The record shows that the parent first sought CSE intervention in December, 2010. As a result, at that time, the District should be deemed to have knowledge that the student had a disability for incidents occasioned thereafter. 8 NYCRR Sect. 201.5(b)(2). Thereafter, the child engaged in a pattern of that resulted in more than ten days of removal or suspension. See Exh. 5, 10. However, no manifestation review was conducted in connection with such removal or suspension. Accordingly, the removals or suspensions were improper and denied the child rights pursuant to 8 NYCRR Sect. 201.4 (d)(2) which provide, among other things, a return to placement and a modification of existing plans.

As a result of the foregoing deprivations, I agree that was denied a FAPE for 2010-2011.

The parent contends that a 2011-2012 “Nickerson letter” is in order for these violations. A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate education program in any state-approved private school, at no cost to the parent. Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298. The remedy of a “Nickerson letter” is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE. Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092.

Here, there was an evaluation of the student for 2011-2012 and there is a placement for the student for 2011-2012. Accordingly, I do not agree that “Nickerson relief” should issue here. The record also does not support the contention that there is no placement within the entire New York City Department of Education that might be suitable for this child. However, I agree with the parents that the proposed placement for 2011-2012 does not promise this student a FAPE. The program is the same program as was unsuccessful during the latter portion of the 2010-2011 school year. The record does not establish that the addition of a paraprofessional will turn that inappropriate placement into an appropriate one. I agree with suggestions from the parent’s advocate that the child should benefit from a thorough neuropsychiatric evaluation with corresponding recommendations for placement. I should note that hearing officers have discretion to fashion remedies in IDEA proceedings. I will issue an order requiring such evaluation within 10 days and such report within 20 days. Thereafter, the parties will attend a CSE review to create a new placement and program for this child.

The parent also claims that the student should be reclassified to “other health impaired” from disturbance.” The parent bases this claim on a statement by a social worker that has . However, this social worker did not testify. Moreover, the record does support the classification of disability through a form (Exh. S). This form reflects that the District went through all the factors in the regulations to establish a classification of disability. This claim must be denied.

The parent also seeks home instruction for this student. However, home instruction is a restrictive placement option. There is no evidence or testimony in the record to the effect that no school placement anywhere could be a good fit for this child. This claim should be denied.

The parent also seeks private tutoring for the student, also stating that the child is due compensatory education services. The claim for tutoring is properly analyzed as a request for “additional services.” The SRO will award “equitable relief in the form of additional services” to students who “remain eligible to attend and have been denied appropriate services.” Application of the Board of Education of the Hyde Park Central School District, Appeal No. 03-075 (missed after-school sessions). Here, the record indicates that the student did not receive his paraprofessional during the last two months of the 2010-2011 school year. The record also reflects that the District did not implement an MDR procedure and did not modify the child’s BIP after a March, 2011 BIP did not resolve all issues. Accordingly, I agree that additional services are due to this student. I will order that the District provide the student with 100 hours of individualized tutoring to make up for the lack of a paraprofessional and the lack of appropriate MDR procedures in May and June, 2011.

Finally, the parent seeks expungement of suspension records. In regard to the parent's request for expungement, I have found no authority in the law or the regulations which allows Impartial Hearing Officers such as myself to hear expungement proceedings under the auspices of the Individuals with Disabilities Education Act. There is, however, very clear authority in regulations promulgated by the United States Secretary of Education allowing parents to seek an expungement hearing through the offices of the educational agency itself. See 34 C.F.R. Sect. 99.20 et seq. Accordingly, the proper course for this parent, who evidently believes that her child's educational records contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, is to ask the educational agency directly to amend the record and to thereafter, if need be, request an hearing at the agency pursuant to 34 C.F.R. Sect. 99.22, which hearing may be conducted by any individual who does not have a direct interest in the outcome of the hearing. 34 C.F.R. Sect. 99.22(c). Dated: July 28, 2011

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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 DESCRIPTION

1 Request for Hearing and Resolution Attendance Sheet 2 Parent Communications, 3 pages 3 No Exhibit Listed 4 Student Removal Records, 5 pages 5 DOE Occurrence Reports, 27 pages 6 Transfer Records, 3 pages 7 Student Anecdotals, 33 pages 8 IEP, 12 pages 9 FBA, 4 pages 10 Suspension Records, 24 pages 11 Teacher Evaluation, 1 page 12 Report of Psychiatric Social Worker, 1 page 13 Fax Cover Sheet with FNR, 2 pages 14 504 Request, 1 page

DEPARTMENT OF EDUCATION DESCRIPTION

A Omitted B Due Process Response, 6/22/11, 3 pages C Letter Requesting Evaluation, 1/7/11, 1 page D IEP, 3/24/11, 11 pages E Psycho Educational Evaluation, 3/24/11, 6 pages F Classroom Observation, 3/23, 2 pages G Social History Evaluation, 3/3/11, 4 pages H IEP Attendance page, 3/25/11, 1 page I Student Attendance Report, 6/24/11, 1 page J Medical Accommodation Form, 4/13/11, 1 page K Notice of IEP Amendment/Reconvene, 5/4/11, 2 pages L Reconvened IEP, 5/25/11, 12 pages M IEP Attendance Page, 5/25/11, 1 page N Omitted O Omitted P SOHO E-mail Correspondence, 6/20/11, 7pages Q Class Details, 7/8/11, 1 page R FBA, 3/18/11, 2 pages S Disability Justification, 3/25/11, 2 pages T BIP, 3/25/11, 2 pages U Omitted V Occurrence Report, 3/20/11, 2 pages W Occurrence Report, 5/4/11, one page X Occurrence Report, 5/17/11

HEARING OFFICER DESCRIPTION

I Hearing Request dated 6/13/11, 2 pages