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: December 19, 2011

Actual Record Closed Date: December 19, 2011

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011

Attorney — Student

Parents

SE Teacher — Student

Principal/Teacher — Student

Representative for DOE — DOE

Psychologist — DOE

— DOE

This is New York City case #134541. On December 19, 2011, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3) and New York State Education Law Section 3602-c regarding the special education of . at the New York City Department of Education, hereinafter referred to as the “Department of Education,” Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. Dr. of Committee on Special Education (CSE) Region represented the Department of Education, and , of Educational Advocacy Service, was the advocate for the parents. A list of witnesses who testified and the documents received into evidence is attached to this decision.

ISSUE:

The sole issue in this case in chief is how many hours of “special education teacher support services” (SETTS) is appropriate for . for the 2011 – 2012 school year. (Tr. 12) Although the Student attends an unapproved private school, he receives the related services and SETTS on his “individualized education program” (IEP) pursuant to New York Education Law section 3602-c. There is also a question of pendency. (Tr. 11) PARENTS POSITION:

The parents do not challenge the classification, general education placement, or related services on the contested May 24, 2011 IEP. (Tr. 8-9) Instead, their complaint is that the IEP does not provide sufficient SETTS. (Ex. A, Tr. 8, 10) The impartial hearing complaint also requests pendency of fifteen hours of SETTS per week in addition to the related services that the Department of Education already provides for . (Id. At 2) DEPARTMENT OF EDUCATION POSITION:

The Department of Education claims that it offered a “free and appropriate public education” (FAPE) for . for the 2011 – 2012 school year, and that the May 24, 2011 IEP offers sufficient SETTS services. The Department of Education contends that the private program selected by the parents is not an appropriate setting for him and that the parents seek additional SETTS in place of basic educational services for this student. (Tr. 7) The Department of Education did not express a clear opinion on pendency. (Tr. 16-7)

FINDINGS OF FACT:

. is an year old child with an who is well known to the Department of Education “Committee on Special Education” (CSE). (Tr. 11, 81-2) has difficulties , with his peers. (Tr. 84) The CSE classified his disability as “ ” ( ) and that classification is not an issue in this impartial hearing.

The Department of Education Committee on Preschool Education (CPSE) developed a preschool IEP on June 22, 2007 that offered fifteen hours of “special education itinerant teacher services” (SEIT). (Tr. 15-6) This is the last agreed upon IEP for . (Tr. 12-3) Since then, there have been three impartial hearing complaints when turned years old, years old, and years old, and each complaint reached some form of finality. (Tr. 13-5) The current impartial hearing is based on the fourth impartial hearing complaint since preschool.

has attended the , which is an unapproved private school where English instruction does not begin until grade. (Tr. 37-8) is currently in grade for religious studies, but he is in grade for secular studies. (Tr. 60) provides religious instruction from 9:00 am to 3:00 pm, and then academic instruction from 3:00 pm to 4:30 pm. (Tr.

60) . also receives related services and ten hours of individual SETTS under New York Education Law section 3602-c. (Tr. 11) His SETTS teacher testified that:

“MS. : Sure. In Math he still

has s counting, adding, and subtracting numbers. Reading fluency and articulation, he's on grade level, however, his . He has issues, and he needs like to wait a time and then he needs to be and to be - - I have to stuff to him in order for him to . What else can I say? Typically he needs a wait time and a lot of the things is taking time for him to process. . . .

. . . . His progress is .

It takes time to accomplish and achieve some goals. . . .

He needs the time to be .”

(Tr. 52-3)

needs , and . His SETTS teacher suggested that even ten hours of SETTS might not prove sufficient. (Tr. 54-5, 58, 61)

HEARING OFFICER EBENSTEIN: Thank you.

Now you talked about his needing ten hours or more of your services, is that the nature of your testimony?

MS. : Yes, ma'am.

HEARING OFFICER EBENSTEIN: And is that

because he needs more instruction in Reading and Math?

MS. MANHEIT: Basically he needs much

more than what he's been getting. He needs, in a sense, that he - - to be told what to expect during the teaching class he'll - - afterwards I again. I do some work with him based on what we taught and then - - let's say the next day I want to see if he retained any of the information, I'll go again. Many times I see that he needs to be it again as if he hasn't see it, you know, before. Sometimes he'll look at me and say, I forgot. And then I'll have to again, and that's why I feel that he needs hours.

HEARING OFFICER EBENSTEIN: I'm not sure

that actually answered by question. What I'm

saying is, does he just need more time on academic skills.

MS. : Yes. He does. He needs

more time. (Tr. 62-3)

PENDENCY

The pendency provisions of the IDEA and the New York State Education Law require that a child remain in his then current placement, unless the child‟s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child. 20 U.S.C. § 1415[j]; N.Y. Educ. Law section 4404[4]; 8 N.Y.C.R.R. § 200.5(m). Pendency has the effect of an automatic injunction. Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982), See also Wagner v. Bd. of Educ., 335 F.3d 297 (4th Cir. 2003).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Zvi D., 694 F.2d at 906). “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 Child with a Disability, Appeal No. 01-013). The U.S. Department of Education has opined that a child'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).” (emphasis added) However, pendency is not always based upon the last uncontested IEP.

Case law establishes that pendency may be established by a final decision of an impartial hearing officer that is not appealed. 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 a Child with a Disability, Appeal No. 03-019.

“. . . once the administrative and judicial review process is complete, the final decision in that process, be it the decision of an impartial hearing officer, a state review officer, or a judge, becomes the student's current placement. Here, the hearing officer's decision in Hearing 1 was never appealed; hence, it became final, and, as such, constituted the student's then-current placement when respondent commenced the present proceedings.”

Application of a Child with a Disability, Appeal No., 07-095

Furthermore, an agreement between the parties during the proceedings, “need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement.” Evans v. Board of Education of Rhinebeck Central School District, 921 F. Supp. 1184, 1189 n.3; see also Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 (N.D.N.Y. 2001) affd, 290 F.3d 476, 484 (2d Cir. 2002); Letter to Hampden, 49 IDELR 197 (OSEP 2007). In addition, when "a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents" for purposes of establishing the student's current educational placement. See34 C.F.R. § 300.518(d); 8 NYCRR 200.5(m)(2); Application of a Student with a Disability, Appeal No. 10-083

In the matter before me, the parents contend that pendency should be based upon the last agreed upon IEP that is a preschool IEP dated June 22, 2007. (Tr. 15; Ex. B)

That IEP provides fifteen hours of preschool SEIT services per week. This is too limited a view of pendency. In the four years since the development of the June 22, 2007 IEP, there have been three due process proceedings prior to the instant impartial hearing. One impartial hearing request concluded with a final decision of an impartial hearing officer that was not appealed. The other two impartial hearing complaints concluded with stipulations of settlement.

“Although infrequent, it is not unheard of for a student to remain in a pendency placement for years, even after administrative and court decisions have been issued multiple times (see, e.g., B.J.S. v. State Educ. Dep't/Univ. of State of New York, 2011 WL 3651051, *1 [W.D.N.Y. Aug. 18, 2011] [acknowledging that the student remained in a 2003-04 pendency placement despite numerous subsequent adjudications regarding the student's educational placement]). “

Application of the (school district), Appeal No. 11-099, FN 10

In this impartial hearing, as the prior impartial hearing decision and stipulations of settlement have not been offered into evidence, I do not have sufficient information to determine pendency.

I cannot even determine why the last agreed upon IEP provided fifteen hours of SEIT services, but is now receiving ten hours of SETTS. (Tr. 55)

Furthermore, the parents‟ argument that pendency always remains based upon the last uncontested IEP despite subsequent due process proceedings suggests that parents may agree to one preschool IEP, contest every subsequent IEP, and then continue the services in the for an indefinite number of school years regardless of how each due process matter concluded and the of final orders or stipulations of settlement. This is a simplification and misunderstanding of the law.

I decline to issue a pendency order in this matter as I do not have sufficient documentary or testimonial evidence to determine pendency.

CONCLUSIONS OF LAW

The IDEA mandates the provision of “equitable services” to some children who are parentally placed in private schools. The New York State dual enrollment system established by New York State Education Law Section 3602-c far exceeds the federal mandate by providing special education services to all parentally placed children following specific procedures. School districts in New York State furnish special education and other services to students who are residents of this state and who attend nonpublic schools located within the school district upon proper parental request. New York Education Law §3602-c This state law also deems New York State students with disabilities who are to be nonpublic school students solely for the purpose of receiving special education services during the regular school year. These students must have an ) that the superintendent of schools of the school district in which the is located has to have determined it to be in compliance with section 100.10 of the Regulations of the Commissioner of Education. See New York State Memo on Special Education, Date: July 2008, Subject: New Requirements for the Provision of Special Education Services to (“ ”) Students.

In the instant case, . attends a nonpublic school, and the Department of Education provides related services and SETTS. The parents request ten hours of SETTS services per week as the student needs more academic instruction than his private school provides to students. This is not the function of equitable dual enrollment services. Equitable services supplement the non-public education provided by the parents. Here, the Student‟s parents are only providing him with a minimal academic education of one and a half hours of academic instruction per day and they want the Department of Education to provide him with two hours of academic instruction in SETTS per day. SETTS is not a substitute for a private academic education.

CONCLUSION

The Department of Education developed an IEP that offers an appropriate level of SETTS for the 2011 – 2012 school year. The parents‟ request for ten hours of SETTS is denied. The parents other contentions are without merit.

ORDER

There is no order. There is no pendency order. Dated: December 23, 2011

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE: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

Parents

A Impartial Hearing Request 8/26/11, 4 pages

B IEP 6/22/07, 13 pages

Department of Education

Ex. 1 IEP 3/24/11, 16 pages

Ex. 2 Social update 4/27/11, 2 page

Ex. 3 -education evaluation dated 3/10/11, 5 pages

Ex. 4 update, 4/11/11, 1 page

Ex. 5 update, 1 page

Ex. 6 update, dated 5/24/11, 2 pages

Ex. 7 Observation 5/5/11, 1 page

Ex. 8 CSE Notes dated 5/24/11, 1 page

Ex. 9 Final Recommendation, dated 5/24/11, 1 page

Ex. 10 SETSS Report, dated 8/15/11, 1 page

Transcript Corrections:

Page 4, line 15, “Advocacy” not “Efficacy”

Page 7, beginning line 27 with “Department of Education annual review . . .

“ was part of the opening statement by Ms. and not the impartial hearing officer

Page 14, line 12 should read “State Review Office decision”

Page 56, line 8 is 10 – 11 and line 10 is 11 – 12.