New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 14, 2011

September 21, 2011

Record Close Date: October 4, 2011

Hearing Officer: Diane R. Cohen, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2011

Attorney — Student

Attorney's Intern — Student

Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2011

Attorney — Student

Parents

Educational Director,, — Student

(via telephone) — Student

Supervisor, Center (via telephone) — Student

CSE District Representative — DOE

Background and Pendency Order — DOE

On June 27, 2011, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parents request that the Student be provided with ”) therapy sessions, including during school breaks, in order to provide him with Free Appropriate Public Education (“FAPE”) and to avoid regression. They assert that the Student can not make adequate progress on his Individualized Education Program (“IEP”) goals without such services. (See Exh. I, p.2)

In their hearing request, the Parents requested that I order that their child continue to receive (“ ”) services as a pendency placement. The hearing request asserts that the child had been receiving such services in accordance with a decision of a hearing officer which was not appealed by the New York City Department of Education (the “DOE”). The Parents requested that an immediate order of pendency be issued. We convened during the resolution period, on July 14, 2011, to address the pendency issue. At the hearing on that date, the Parents submitted documentary evidence to support their position that pendency included the as set forth in the hearing officer’s decision, dated January 24, 2011 (Exh. A). The Parents also submitted two individualized education programs (“IEP’s), both dated March 15, 2011. The first IEP (exh. B), indicated on the first, second, and fifteenth pages that the Committee on Special Education (the “CSE”) was recommending 15 hours of Special Education Teacher Support Services (“SETSS”) per week as per impartial hearing decision 129863. The District did not disagree with the Parents’ assertions regarding pendency and did not offer additional evidence.

The Hearing Officer’s Decision, dated January 24, 2011, ordered that the student should receive fifteen hours of per week, three hours per day, Monday through Friday, through the end of the school year. The Decision further provided that the provider have a Board Certified Behavior Analyst (“BCBA”), and be paid not more than $115 per hour.

The IEP (Exhibit B) does not make clear that the services were to be services, or that they were to be provided by a provider chosen by the Parents rather than directly provided through the District. However, the IEP (Exhibit B), sets forth that the 15 hours of SETSS were to be “as per impartial hearing decision 129863”. I confirmed with both parties, by email after the hearing, that the services had been provided by a provider chosen by the Parents at the rate set forth in the January 24, 2011 decision. I include that email as hearing officer Exhibit II.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415(j); Education Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5(m). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 (1987); Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985)). Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 (S.D.N.Y.

2000) aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent (IEP)" (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). A prior unappealed impartial hearing officer's decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep't of Educ., Appeal No. 07-134).

In the instant case, there is no disagreement that the hearing officer’s decision, dated January 24, 2011 is unappealed, that the IEP, dated March 15, 2011 (Exh. B) intended to implement the hearing officer’s decision, and that the services actually provided were in accordance with the hearing officer’s decision. Thus, the pendency placement includes 15 hours of services (three hours per day, Monday through Friday) provided by a provider with a BCBA; payment to be not more than $115 per hour.

I therefore issued an order on July 27, 2011, ordering such pendency services to be provided during the pendency of these proceedings.

The hearing on the merits was scheduled for September 21, 2011. The District indicated that witnesses would not be available until September. The Parent requested an extension of the decision date. I granted that request after weighing all factors, and extended the decision date for thirty days, to October 6, 2011. On September 21, 2011, we convened for a hearing on the merits. At the hearing, the parties requested another extension of the decision date to allow time for the submission of additional evidence, and also due to the prior delay for witness availability. I granted that request in order to allow time for the submission of additional evidence and to be sure that there was time to receive a transcript and write a decision. I again weighed all relevant factors. I extended the decision date for thirty days, to November 5, 2011. I received the transcript on October 4, 2011. My decision is therefore due on October 18, 2011.

Evidence

A review of the evidence indicates that the Student was evaluated in 2009. The Evaluation indicates that the Student was then attending a general education setting with a , receiving special education teacher support services and related services. He had been diagnosed with and was experiencing , which (See Exh. IV).

A letter from the Student’s Special Education Teacher, dated November 16, 2009, opined that the Student would benefit from being in a specialized program focusing on appropriate in a group setting rather than a in a general education class (Exh. V). A letter from , the Principal of the Student’s school at the time, indicating the school ( ) could no longer meet his needs. It further set forth that although a paraprofessional had been provided, “there has been no significant improvement in his classroom participation”. While there had been some and interactions with classmates and authority figures, his social interactions were still not at the level expected of his peers. His behavior continued to be toward his . (Exh. VI-1) Attached to the letter from was a letter from the Student’s p indicating that the Student was not able to participate in the class and complete the necessary assignments and would be unlikely to progress to the next grade (Exh. VI-2).

A letter from , from the Student’s current school, , dated November 16, 2009, indicated that the Student appeared to be overly shy, lacked age appropriate and would benefit from attending the class (Exh. VII).

The Social History Update, dated November 25, 2009, indicated the reported that the ”, was less that during the prior year, but still had difficulty. The Student was attending at the time. She reported that he is not interacting with peers and has very little with . It was also reported that he sat next to a on the bus “since he perceived and . (Exh. VIII, p. 1)

The Evaluation, dated March 17, 2009, indicated that the Student obtained a and range. The evaluator noted that the Student exhibited and within the classroom environment The teacher completed the . He displayed of , . The teacher reported that the , did not , had or and did not function well in a classroom setting. He was . He had , , / . He tried to , , and was . (Exh. IX, p. 5)

A letter from the Student’ pediatrician, Dr. , dated December 14, 2009, indicated that she had diagnosed the Student with years old; that he is a boy who is , but requires placement in an classroom with a ratio, with professionals who are . She noted that he urgently requires training in (Exh. X).

On October 7, 2010, the Parents requested a hearing, and a decision was rendered on January 24, 2011. The hearing officer found that an individualized education program (“IEP”) from April 2010 was and ordered that the Student receive services per week. The hearing officer further ordered that the CSE reconvene with all required personnel within forty five days of the receipt of the decision (Exh. A).

The parties each submitted an IEP, dated March 15, 2011, recommending services for the 2011-2012 school year. (See Exh. C; the “IEP in Question”) This is to be distinguished from an IEP, dated March 15, 2011 (the same date) implementing the order of the hearing officer through June 2011 (See Exh. B).

The IEP in Question indicates that the Student can with . It shows , . It indicates that his lack of keeps him him, resulting in . It further notes that he is and on his work. The IEP in Question does not include testing indicating current levels of performance. It indicates that the to and that he to . (Exh. C, p. 2) The IEP in Question notes that the Student is with his to . His instruction is focused on . Additionally, he is working on expressing himself in place of putting his or in other when he needs . The IEP includes goals to with ; to and with . Additional goals address his needs in the areas of and . (Exh. C, P. 4-7).

The Parents submitted a letter from , from . Ms. indicates that the Student has difficulties in the area of towards following . Even when he complies, if the task is a bit , he may . She notes that this concern carries over to his home, as he and when he does, . She notes that since he has been receiving , . His skills are at an increased is observed due to a lack of (Exh. E).

The District submitted Progress Report, dated December 2010, indicating that the Student “has made progress in both his academic and social domains this semester. [The Student] has adjusted to his daily schedule...he is currently working on following even that which he dislikes of when there are changes made to his schedule...[He] participates ...We are satisfied with [his] progress and are looking forward to continued progress in the coming semester.” (Exh 9, p. 3)

, the Supervisor of School , testified for the District. She testified that the CSE based their recommendation on the progress reports submitted by the child’s school (T. 47). She testified that were not recommended because the student had just and there was not to say that he needed additional services or if it was going to be enough for him to be able to carry over that during the school year (T. 48). She initially testified that there “was no true indication that there that was going on” (T. 47 at 9-11), but upon cross examination based upon the minutes from the IEP meeting (Exh. 15), conceded that there were concerns about his behavior at school (T. 57 at 3).

, a supervisor at , which provides services for the Student, testified for the Parents. Mr. Howarth has a Masters in Special Education and ABA (T. 115). He testified that the Student’s since beginning (T. 127-128), that the services help the Student make progress toward meeting his IEP goals (T. 130 at 11-14; 121), and that he believes the Student (T. 130). He testified that the Student does services per week (T. 131 at 8-9) and would benefit from an increase in services (T. 131 at 12-14).

The Mother testified regarding the , and that the Student exhibited prior to placement at his (T. 63). She testified that prior to , the Student destroyed his homework rather than completing it (T. 69-70), and that the Student’s behavior with his

(T. 70).

, the Educational Coordinator at , testified for the Parents. She testified regarding the Student’s behavioral issues (T. 156) and his need for home-based services (T. 161162).

Findings of Fact and Decision

The testimony of Ms. makes it clear that the CSE terminated the Student’s without sufficient evidence of the Student’s needs and functioning and without determining whether he continued to need . Ms. testified that the services had just begun a month prior to the CSE review, and the CSE was not in a position to know whether such services for the duration of the remainder of the 2010-2011 school year would be sufficient. In other words, at the time of the CSE review in March, the view of the CSE was that it was too soon to know whether the Student would require such services during the 2011-2012 school year.

The District representative stated that the District was aware that the Student “has ” at school and “ at home” (T. 101 at 22-24). The District’s position is that the school could meet those needs.

The District did not meet its burden of proof that the recommendation it made was appropriate to enable the Student to generalize his learning regarding his and needs outside of the school setting. The CSE believed that it did not have data at that time upon which to base a decision. That being the case, however, the CSE should have continued the home services while it elicited data and arranged for assessments to determine the Student’s needs and functioning and to assess the effectiveness of the home services. The Parents have submitted 44 pages of data sheets relating to the home based services (Exh. D). The CSE should convene with all necessary participants, review these sheets, and review the Student’s needs, functioning and progress and reconsider its recommendation for the current school year. The CSE has also delegated its responsibility regarding the development of a (and “ ”) and a ”), and is not in possession of these items. (See T. 100-101; 179; 187). The CSE should be performing the on its own and developing a on its own, and should be in possession of all assessments so that it can make a determination regarding the Student’s functioning.

I will therefore order that the CSE reconvene to perform any necessary assessments and to reconsider its recommendation regarding home services. I will order that the Student will continue to receive the services until a new recommendation is made. I will not order an increase in services. Based upon Mr. ’s testimony, the Student is doing well with the current level of services.

I THEREFORE ORDER THAT the CSE shall reconvene within 30 days of the date hereof to review the appropriate documentation, determine whether additional assessments are necessary, and reconsider its recommendation for the 2011-2012 school year regarding home-based services;

I FURTHER ORDER THAT the CSE shall make specific findings regarding (a) the in school; (b) the at home; and (c) how the recommended program will address the Student’s need to generalize learning regarding to the home setting and elsewhere. Such findings shall be typewritten rather than handwritten so that they are legible. Minutes of the CSE meeting shall also be typewritten so that they are legible;

I FURTHER ORDER THAT until such time as a new recommendation is made, the Student shall continue to receive services, provided by a Board Certified Behavior Analyst; payment to be not more than $115 per hour.

Date: October 6, 2011

______________________________

DIANE R. COHEN, ESQ.

Impartial Hearing Officer

DC: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 JULY 14, 2011

PARENT

A Amended Findings of Fact and Decision, dated 1/24/11, 10 pp. B IEP, Recommending SETSS, dated 3/15/11, 17 pp. C IEP, Recommending Non-Public School Placement, dated 3/15/11, 17 pp.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Hearing Request, dated 6/23/11, 3 pp. II Emails among IHO and parties, dated 6/28/11 – 7/2/11, 5 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 21, 2011

PARENT

D Datasheets, dated 2/11/11 - 7/29/11, 44 pp. E Progress Report, dated 7/27/11, 1 p.

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, dated 6/23/11, 3 pp. 2 Due Process Response, dated 6/30/11, 5 pp. 3 Interim Order, dated 7/27/11, 6 pp. 4 Request Withdrawal Case Dismissal, dated 6/23/11, 1 p. 5 Request for Impartial Hearing, dated 6/1/11, 3 pp. 6 Due Process Response, dated 6/3/11, 5 pp. 7 Related Service Student Progress Report, dated 12/5/10, 2 pp. 8 Progress Note, dated 12/3/10, 1 p. 9 Progress Report, dated December 2010, 5 pp. 10 , dated 3/16/11, 1 p. 11 Patient Vaccine Administration Record, dated 4/4/11, 3 pp. 12 Amended Findings of Fact and Decision, dated 1/24/11, 10 pp. 13 IEP, dated 3/15/11, 17 pp. 14 IEP, dated 3/15/11, 17 pp. 15 IEP Conference Summary, dated 3/15/11, 2 pp. 16 Final Notice of Recommendation, dated 3/15/11, 1 p. 17 Letter from , dated 3/13/11, 1 p. 18 Notice of CSE Review Meeting, dated 3/8/11, 3 pp.

IMPARTIAL HEARING OFFICER

III Basic Evaluation, dated 9/3/09, 2 pp. IV Evaluation, dated 7/6/09, 4 pp. V Letter from , dated 11/16/09, 1 p. VI Letter from , dated 11/16/09, 2 pp. VII Letter from , dated 11/16/09, 1 p. VIII Update, dated 11/25/09, 2 pp. IX Evaluation, dated 3/17/09, 10 pp. X Letter from Dr. , dated 12/14/09, 1 p. XI IEP, dated 1/19/10, 22 pp. XII Letter from , dated 1/14/10, 1 p. XIII Final Notice of Recommendation, dated 1/19/10, 1 p.