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: August 23, 2011

November 15, 2011 Actual Record Close Date: November 30, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2011

Attorney — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2011

Attorney — Student

Mother — Student

District Representative — DOE

School Psychologist (via telephone) — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws, inter alia. The New York City Department of Education will be referred to as District, the parent as Parent and the child will be referred to as Student.

During the 2009-2010 school year, the Student was enrolled at the “ ” and, pursuant to her July 10, 2009 IEP, was entitled to for three (3) individual sessions per week for forty-five (45) minutes per session. (Ex. N) The “ ” did not have sufficient students in need of and thus, did not have a provider at the school. The Parent was unable to secure an independent provider, and the District did not make any effort to assist.

On June 14, 2011, the CSE convened to develop an educational program for the Student for the 2011-2012 school year. Despite the lack of supporting reports, evaluations, and assessments, the CSE recommended a placement in a specialized classroom in a “ ” school. The District did not present any reports, assessments, or evaluations to substantiate the decision to change the Student’s program, or which suggested that the “community” school would be appropriate. In fact, despite the Parent’s repeated requests, the District failed to appropriately evaluate the Student for purposes of recommending a program.

Finally, due to significant “glitches” in the District system, the IEP that was developed on June 14, 2011 (Ex. 2) was substantively deficient, as it failed to appropriately address the Student’s special education needs. The testimony and evidence presented reflect that the District has failed to offer a Free Appropriate Public Education to the Student.

THE PARENT’S POSITION

In the complaint notice, dated July 20, 2011 (Ex. E), the Parent alleged that the District failed to offer a FAPE, and requested that the Student receive Independent Educational Evaluations and that the CSE reconvene to develop a new, appropriate IEP, which would include placement at the Student’s current school, a state-approved, non-public school. The Parent believes that the placement which was recommended for the Student would be inappropriate (Ex. E) and testified at the hearing on November 15, 2011, that the school setting was too loud for her child (Tr. P. 201).

THE DISTRICT’S POSITION

During the hearing, on November 15, 2011, the District representative conceded several difficulties with the District case. The witnesses demonstrated concern for the Student and acknowledged the need to address the situation promptly. The advocate and the witness agreed that the Student needs new evaluations (Tr. P. 166), and that a should be conducted, and a should be developed (Tr. P. 184). They acknowledged that the CSE should reconvene and develop an appropriate IEP after the evaluations are concluded.

STUDENT HISTORY

The Student is years old and has been classified as a student with . She is attending a non-public special education school and receives the following services: 30 minutes of individual sessions four times a week, 30 minutes of individual sessions twice a week, and 30 minutes of individual sessions twice a week (Ex. D) The Student was classified by the Committee on Special Education as a with a disability during the 2009-2010 school year, and attended a (Ex. O). Neither the nor an independent agency was able to provide the Student with the necessary services, and she did not receive any of the therapies during the 2009-2010 school year (Tr. P.193).The Student was enrolled in her current placement in September 2010, at the Parent’s request and the CSE’s recommendation (Tr. 191; Ex. D).

IDEA

The (IDEA) is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE).

20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "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 [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002) In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c) With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

ANALYSIS

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20011-2012 school year. The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The IDEA requires that “An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs. . .” (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).” SRO 02-055

There were many deficiencies in the Student’s IEP, developed on June 14, 2011. The Student was not evaluated prior to its development. The school testified at the hearing that she attempted to test the Student using the , but was unable to do so, as the Student was . (Tr. PP. 84-85) She did not attempt to test the Student again, but instead interviewed the Student’s father for the . (Tr. P. 87) The documents that were used to develop the IEP of June 14, 2011, were the , a classroom observation conducted by the school , and previous documents from the Student’s file; (Tr. P. 114) those evaluations were conducted in 2009, when the Student was years old. The IEP reduced the Student’s individual sessions from four to three 30 minute sessions per week, and added one 30 minute session in a group of three; it also reduced the Student’s Therapy sessions from two 30 minute individual sessions per week to only one. These changes were made at the meeting without the service providers in attendance. The District failed to follow the Regulations that the CSE must include a special education teacher, a school psychologist, a representative of the school district and “other persons having knowledge or special expertise regarding the student, including related services personnel…” (8 NYCRR 200.3 (a) (1)). The only participants at the meeting were the school psychologist, the Parent, the special education teacher, and a parent member (Tr.

P. 55).The IEP also does not contain any goals or objectives for the 2011-2012 school year (Ex. 2-3, Tr. 99). Moreover, the District has ignored the Parent’s requests for independent educational evaluations, which were made in writing, by email, and in person (Tr. PP. 85-86). This is in violation of the Regulations which require that the NYCDOE has sixty days within which to conduct evaluations, after receiving a request for re-evaluation. (8 NYCRR 200.4(b)(1)). The FBA (Ex. 2-9) was not conducted correctly, and the BIP (Ex. 2-11) was also deficient, as it did not include intervention strategies, as required, and the Parent was not involved in developing the . The IEP did not include a provision for parent counseling and training as required in 8 NYCRR 200.13 (d), and did not recommend a twelve month program of special education transportation. Probably the most dramatic problem with the IEP was that it was not committed to writing and sent to the Parent. Rather it was the victim of a technological upgrade at the District.

It is therefore Ordered:

That the District pay for the following Independent Educational Evaluations:

evaluation; evaluation; evaluation; evaluation; and, evaluation.

It is further Ordered:

That the CSE reconvene within ten days after the evaluations are completed, and develop a new IEP for the Student. The CSE should consider a twelve month special program; adaptive physical education; Special Education transportation; therapy; therapy; and Special Education Teacher Support Services (SETSS). A should be conducted, and if needed, a should be developed and implemented. The CSE should be mindful of all services in Part 200. for Children with .

It is further Ordered:

That this matter be referred to the Central Base Support Team (CBST) so that they can determine the best immediate placement for the Student (consider the Student’s current placement.)

It is also Ordered:

That the District shall provide payment for the 141 hours of therapy sessions that the Student was supposed to receive during the 2009-2010 school year.

So Ordered Dated: December 7, 2011

____________________________________

Impartial Hearing Officer

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

A Acceptance Letter, 4/29/10, 1 p. B Board of Education Approval and Authorization of the Individualized Education Program, 4/29/10, 1 p. C IEP, 4/29/10, 22 pp. D IEP, 4/29/10, 18 pp. E Request for Due Process, 7/20/11, 8 pp. F Student Evaluation Summary Report, 3/24/09, 2 pp. G Social History, 3/24/09, 2 pp. H Evaluation, 3/24/09, 6 pp. I Evaluation, 3/24/09, 5 pp. J Terapy Evaluation, 4/21/09, 2 pp. K Evaluation, 4/21/09, 4 pp. L Classroom Observation, 4/21/009, 1 p. M Individualized Education Program, 5/11/09, 5 pp. N Final Notice of Recommendation, 7/10/09, 1 p. O Omitted P Educational Progress Report, 4/25/10, 2 pp. Q therapy Related Service Student progress Report, 4/28/10, 1 p. R Related Service Student progress Report, 4/28/10, 1 p. S Quarterly Progress Report, 12/22/10, 1 p. T Therapy Quarterly Progress Report, 12/22/10, 1 p. U Quarterly Progress Report, 12/23/10, 1 p. V Education Quarterly Progress Report, 1/13/11, 1 p. W Letter from Parent, 2/24/11, 1 p. X , 6/14/11, 1 p. Y , 6./14/11, 2 pp. Z Final Notice of Recommendation: Annual Review and Re-Evaluation,

6/15/11, 2 pp.

DEPARTMENT OF EDUCATION

1 NYC IEP, 3/24/11, 19 pp. 2 NYC SESIS IEP, 6/14/11, 11 pp. 3 Omitted 4 Acceptance Letter, 4/24/10, 1 p. 5 Final Notice of Recommendation Annual Review, 6/15/11, 1 p. 6 Social History, 3/24/09, 2 pp. 7 Classroom Observation, 4/21/09, 2 pp. 8 Evaluation, 3/24/09, 6 pp. 9 Evaluation, 3/24/09, 5 pp.

10 Evaluation, 4/21/09, 4 pp.

11 Evaluation, 4/21/09, 2 pp.

Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).