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 20, 2012 Actual Record Close Date: September 21, 2012 Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2012

Attorney — Student

Parents

District and CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2012

Parents

Attorney, Paralegal (via telephone), District and CSE Representative, Special Education Teacher (via telephone), Science Teacher- (via telephone), Mathematics Teacher-732x (via telephone), Principal- (via telephone) — Parents

The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York, first, on July 20, 2012 for a determination of Student’s Pendency placement during the course of this administrative proceeding, and thereafter, on September 19, 2012 for a hearing on the merits. At the conclusion of proceedings, Parents’ attorney requested the opportunity to submit a Post-Hearing brief, and was joined in such request by District’s Representative. The request was granted so long as all Post-hearing briefs were submitted Impartial Hearing Office Case Manager by the close of business on September 21, 2012. Each of the parties submitted a Post-Hearing brief in timely fashion and each has been considered.

Student is presently years months of age, having been born on . Student was previously classified as having . Student’s Individualized Education Program (I.E.P) for the 2011-2012 school year (Exhibit 2), mandated the provision of Special Education Teacher Support Services (SETSS), as well as Related Services of per week, minutes per session, in a group; per week, minutes per session, in a group; a Transportation Paraprofessional and Counseling, per week, minutes per session, in a group; and once per month, per session, individually. The I.E.P. also provided that Student’s program be provided in a twelve-month school year (Exhibit 2). During the 2011-2012 school year, Student transitioned to a Grade at the and Diversity Academy and was placed in an Integrated Co-Teaching program. On June 20, 2012, District’s C.S.E. convened for the purpose of conducting an Annual Review and preparing Student’s program for the 2012-2013 school year. The meeting was chaired by District Representative , who was also Student’s SETSS provider during the 20112012 school year. Parent and faculty members from the Peace and Diversity Academy, were also in attendance. The Committee recommended that Student receive his special education program in a Community School, together with SETSS and the Related Service of Counseling, per week, minutes per session, in a group (Exhibit 1). However, the Committee did not recommend that Student receive a twelve-month Extended School Year (ESY) program, nor did it recommend that Student receive (Exhibit 1).

Parents’ Due Process Complaint (Exhibit A) alleges that District failed to implement all of the required Related Services as mandated in Student’s I.E.P. for the 2011-2012 school year in that it failed to provide Student with his mandated Related Service of during the entirety of the 2011-2012 school year. Parents’ Complaint further challenges the appropriateness of the Committee’s failure to continue the provision of an Extended School Year program for Student, as had been provided Student in prior years.

As there are but two issues to be determined in this proceeding, a full review of Student’s educational background, the areas and extent of Student’s disabilities and the programs afforded to Student during the 2011-2012 and 2012-2013 school years is deemed unnecessary, except to the extent that Student’s educational performance during the 2011-2012 school year relates to a determination of those issues raised by Parents in their Complaint.

As previously noted, Student’s I.E.P. for the 2011-2012 school year (Exhibit 2) mandated that Student receive weekly, minutes per session, in a group. District conceded that it had failed to provide Student with any services throughout the 2011-2012 school year. No witnesses were called by the District to address such failure or explain why Student’s mandate had not been met. I note, however, that in an Affidavit made by Parent (Exhibit UU), Parent stated that she had asked Dr , Director of Special Education at the school, on several occasions, when for her son would start ,but was provided with no answers other than the school did not have an on staff. Indeed, District’s Representative noted that, at its Resolution Meeting, it had offered to provide Parents with Related Service Authorizations sufficient to provide Student with hours of services to address its failure. Parents have rejected that offer, noting that such arrangement would place administrative burdens upon Parents and, more notably, that such relief was incapable of implementation, due to the very real unavailability of willing to provide such services (Exhibit 15). In support of Parents’ contention, Parents offered the Affidavit of , a paralegal in the office of Parents’ attorneys, in which is detailed her effort to locate, using both the Municipality List of Independent Evaluators, as issued by the New York City Department of Education (Exhibit SS) and the New York City Department of Education Publication: Municipality List of NYC Department of Education Clinicians & Therapists Approved to Provide Related Services as Independent Providers to School-Age Students with Disabilities – Occupational Therapy, August 2012 (Exhibit TT), an willing to provide Student with his therapy. I note, however, that the search by Ms. was restricted by Parent’s insistence that such services be delivered at Parents’ home because of Parent’s assertion that care requirements of a younger child kept her from bringing Student to the (See also Exhibit UU).

It appears to be a given that some difficulty is often encountered by the District and the New York City Department of Education in securing the services of various specialists to meet the demands and requirements of providing therapy to all disabled students in need of such services. As noted by the Office of State Review, in Application of a Child with a Disability, Appeal No. 10-060, in a publication issued by the New York State Department of Education to district superintendents, it is stated that:

“School districts also have the obligation under IDEA and Article 89 of the Education Law to deliver the services necessary to ensure that students with disabilities receive FAPE.

The Department recognizes that there will be situations in which school districts will not be able to deliver FAPE to students with disabilities without contracting with independent contractor. Where a school district is unable to provide the related services on a student’s individualized education program (“IEP) in a timely manner through its employees because of shortages of qualified staff or the need to deliver a related service that requires specialized expertise not available from school district employees, the board of education has authority under Education Law §1604(30), 1709(33), 2503(3),

2554(15)(a) and 4402(2)(b) to enter into contracts to provide those related services ”

It is an acknowledged practice, when a district is unable to provide the necessary personnel to implement a disabled student’s mandate for Related Services, to have that district issue Related Service Authorizations (RSA’s), which enable a parent to secure the needed services at the district’s expense. This District offered to Parents such RSA’s to address its failure to provide Student with his mandated services during the 20112012 school year. I find Parent’s insistence on receiving such services at home to be unreasonable. However, Parents have chosen to reject District’s offer, leaving the issue what remedy, if any, is appropriate to address District’s failure, to be determined in this Decision.

It is unquestioned that District failed to provide Student with his mandated servicers per week, per session in a group of two, during the 2011-2012 school year. It is necessary that a determination be made as to the effect of that failure and the extent of remediation necessary and proper to address that failure. Such determination is difficult, as neither party has placed in the record the extent of Student’s needs and the effect such have upon Student’s educational program. While Student was entitled to receive weekly sessions of , I find there is no evidence that Student did not progress without such . Indeed, the limited description of Student’s advancement during the school year in which such services were not provided indicates that Student made remarkable progress as the year progressed, . I see no need to provide Student with equal hours of therapy to address the Student missed. Further, Student’s dependency on appears to be little, in light of the fact that such was discontinued in Student’s current I.E.P. without any contention on the part of Parents that such discontinuance was inappropriate. I have determined that both and were discontinued from an examination of the Recommended Special Education Programs and Services portion of Student’s I.E.P. (Exhibit 1 at p. 5). I have concluded that the Summary of Recommendations contained in that I.E.P. was erroneously entered (Exhibit 1 at p. 10). Further, it would appear difficult to replicate Student’s mandated in Parent’s home, as such was to be mandated to be conducted in a group of two.

It is my finding and determination that District, to address its failure to provide Student with his mandated services during the 2011-2012 school year, shall provide Student with , in a group of , minutes per session, once weekly during the school day, for the remainder of the 2012-2013 school year, if, in fact, Student’s current school has an available to provide such service. In the event that Student’s current school has no on staff available to provide such services, District shall proffer to Parents a Related Service Authorization for thirty sessions of of minutes duration. The issuance of such Related Service Authorizations shall be in full satisfaction of its obligation to Parents. \ Parents also allege, in their Due Process Complaint (Exhibit A), that District’s C.S.E., at its meeting of June 20, 2012, inappropriately deleted the provision that Student receive a twelve-month Extended School Year (ESY) program, a provision that had been a component of Student’s prior I.E.P.’s, without securing evaluative support for such removal (Exhibit A). In fact, there is no constraint upon a Committee on Special Education to continue the provisions of a prior I.E.P. or to explain why it chose not to do so. The Committee is charged with reviewing a student’s progress under his/her current I.E.P. and develop what it concludes is a proper program to meet the needs of the student in the up-coming school year.

The issue of reviewing the actions of the Committee in not including ESY in Student’s special education program for the 2012-2013 school year is also moot, as, on July 23, 2012, I issued an Interim Order on Pendency, requiring the Department of Education to continue the provisions of Student’s prior I.E.P., including the provision of

ESY. In furtherance thereof, the Department of Education issued its assignment of Student to for the period of July 27, 2012 through August 14, 2012 (Exhibit F). Any order now requiring the Committee to place ESY in Student’s I.E.P. for the 20122013 school year would be meaningless, as the period for such has passed and Parents have already secured all the relief I could order (Application of a Student with a Disability, Appeal No. 12-011). However, Parents cogently argue that such determination should be reviewed in light of the fact that the programs and services to which Student would have been entitled had such Extended school Year been included in his 2012-2013 program would have commenced earlier than July 27, 2012, thus denying Student those services that would have been available from the very first day of the ESY. Thus, in order to determine Parents claim that Student is entitled to receive “additional services to compensate for those necessary and appropriate services not provided, including … all days of ESY services missed” (Exhibit A), I shall review Parents’ claim that the special education program enacted by the C.S.E. on June 20, 2012 was inappropriate because it did not offer Student ESY services.

As the Office of State Review noted, in Application of a Student with a Disability, Appeal No. 10-060:

“According to State regulations, students shall be considered for extended school year [ESY] special services and programs “in accordance with their needs to prevent substantial regression” (8 NYCRR 200.6(k); Application of the Bd. of Educ., Appeal No 09-047;

Application of a Student with a Disability, Appeal No. 08-078;

Application of a Child with a Disability, Appeal No. 07-089; Application of a Child with a Disability, Appeal No. 07-082; Application of a Child with a Disability, Appeal No. 07-039; Application of the Dept. of Educ.

Appeal No. 07-037; Application of a Child with a Disability, Appeal No.

07-004; Application of the Bd. of Educ., Appeal No. 04-102; see 34 C.F.R. §300.106 [defining ESY]; 8 NYCRR 200.4[d][2][x] [noting that a student’s IEP shall indicate whether the student is eligible for a special service or program on a 12-monthbasis]). The State regulations define substantial regression as “the student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestabli9sh and maintain IEP goals and objectives mastered at the end of the previous school year” (8 NYCRR 200.1[aaa].”

It was noted, in a footnote to the above-cited Decision, that:

“ In February 2006, the Office of Vocational and Education Services for Individuals with Disabilities (VESID) published a guidance memorandum, dated February 2006, which states the following regarding ESY services:

A student is eligible for a twelve-month service or program when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year. The typical period of review or reteaching ranges between 20 and 40 school days. As a guideline for determining eligibility for an extended school year program a review period of eight weeks or more would indicate that substantial regression has occurred.”

At the Committee meeting of June 20, 2012, the Committee did not include ESY in Student’s proposed I.E.P. It is clear, from the testimony of Witnesses Wilson, Cohen and Johnson, that, after reviewing Student’s strong academic performance throughout the 2011-2012 school year, in which Student passed all of his courses, as well as the Algebra Regents examination, the members of the Committee determined that Student needed no summer school program because he had not failed any subject. Such was the stated testimony of each of them. Of course, such fact that Student failed none of his courses cannot properly be the basis of a determination regarding a special education student’s eligibility for Extended School Year services or programs. It was clearly error on the part of the Committee to base its determination regarding ESY solely upon the fact that Student had passed all of his courses. However, I find nothing in the record before me that is sufficient to establish that Student had suffered any regression – no less substantial regression – over the months of July and August that diminished the skills and knowledge that Student had mastered at the end of the prior school year. Parents’ counsel, in his Post-Hearing brief, cites the testimony of Student’s Math Teacher (T.R. 96-97) as evidence that Student had and needed weeks or more of her instruction before being ready to move on. I find such testimony in no way supportive of a claim that Student exhibited any regression whatsoever when Student began his studies at his new high school. The testimony of Witness dealt clearly with the hesitancy of all of her students to with a subject and with peers only recently met, so as to be willing to approach the board and complete before a new audience. I find Parent’s claim, that the fact that Student did well during the 2011-2012 school year did not mean that Student required a twelve-moth program (Exhibit UU), to be insufficient to establish her contention that such be provided to Student.

Accordingly, it is my finding and determination that the hearing record does not contain documentary or testimonial evidence to establish that Student required an Extended School Year services or program during the summer of 2012 in order to prevent substantial regression of his skills or knowledge level.

Having made such determination, Parents’ request that I order District and the Department of Education additional services to compensate Student for not receiving ESY services during a portion of the month of July 2012 is denied.

ORDER

Based upon the above, it is HEREBY ORDERED that, to address its failure to provide Student with his mandated services during the 2011-2012 school year, District and the New York City Department of Education shall provide Student with , in a group of , minutes per session, weekly during the school day, for the remainder of the 2012-2013 school year, if, in fact, Student’s current school has an available to provide such service. In the event that Student’s current school has no on staff available to provide such services, District shall proffer to Parents a Related Service Authorization for sessions of of minutes duration. The issuance of such Related Service Authorizations shall be in full satisfaction of its obligation to Parents; and it is

FURTHER ORDERED that Parents’ claim that District’s Individualized Education Program prepared for Student for the 2012-2013 school year was inappropriate for lack of Extended School Year services be, and the same is, DISMISSED.

Dated: September 28, 2012

________________________________

JAMES P, WALSH, ESQ.

Impartial Hearing Officer

JPW:jj

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 RECORD ON JULY 20, 2012

PARENT

A Student’s I.E.P. as Developed by District’s C.S.E., 7-12-11, 5 pp.

IMPARTIAL HEARING OFFICER

I Parents’ Due Process Complaint Notice, 7-12-12, 3 pp.

DOCUMENTATION ENTERED INTO RECORD ON SEPTEMBER 19, 2012

PARENT

A Parents’ Due Process Complaint Notice, 7-11-12, 3 pp. B Parents’ Response to District’s Motion to Dismiss, Undated, 3 pp. C Not Offered D Notice to Parent of Scheduled Resolution Meeting of 7-26-12, 7-18-12, 2 pp. E District’s Due Process Response, 8-12-12, 4 pp. E-1 District’s Due Process Response, 7-18-12, 3 pp. F Extended School Year School Assignment, 7-27-12, Unsigned by Parent. 1 p. G Notice to Parent of IEP Meeting of 6-20-12, 5-23-12, 1 p. H Notice to Parent of Intention to Amend IEP, 5-23-12, unsigned by Parent, 2 pp. I Final Notice of Recommendation, 7-12-12, 1 p. J Notice to Parent of DOE Request to Excuse as Members of the IEP Team at IEP Meeting, 5-30-12; With Parent’s

Statement of Non-Agreement, 1 p. K Notice to Parent of Invited Participants to IEP Meeting of 6-20-12, 2 pp. L General Letter to Parents from Principal Regarding Attendance at Summer

Program, 2 pp.

M Letter to Parent, 5-6-11, Regarding Parents Proposed Waiver of Triennial Re-

Evaluation Requirement; Together with Parent’s Rejection of Waiver,

5-17-11, 1 p. N Letter to Parent, 5-6-11, Regarding Parents Proposed Waiver of Triennial Re-

Evaluation Requirement – Same as Exhibit M, but without Parent’s Rejection of

Waiver., 1 p.

O Not Offered P Not Offered Q Not Offered R Not Offered S Not Offered T Evaluation of Student , Ph.D., 11-12-11,

11 pp. U Not Offered V Not Offered W Not Offered X Not Offered Y Social; History Update Report, 5-18-11, 2 pp. Z Not Offered AA Not Offered BB Not Offered CC Not Offered DD Not Offered EE Student Progress Report –Counseling, 6-22-11 by A. Dean, 2 pp. FF Not Offered GG Student Permanent Record – Marks for First Marking Period – 2011-2012 School year, 2 pp. HH Student’s Report Card for the 2010-2011 school Year, 2 pp. II Not Offered KK Behavior Intervention Plan, 6-22-11, 1 p. LL Functional Assessment Interview Tool – Guardian Form, dated by Parent on 6-22-11, 2 pp. MM Functional Behavioral Assessment, 5-23-11, and 6-6-11(2); Sign-In Sheet of FBA

Meeting (1), 3 pp. NN 25 OO A-B-C Chart for Period 6-6-11 to 6-17-11 (1); and 5-23-11 to 6-3-11 (1), 2 pp. PP Frequency Chart for Period 6-6-11 to 6-17-11 (1); and for Period 5-23-11 to

6-13-11 (1), 2 pp. QQ Not Offered RR Not Offered SS Municipality List of Independent Evaluators, 64 pp. TT New York City Department of Education Publication: Municipality List of NYC Department of Education Clinicians & Therapists Approved to Provide Related Services as Independent Providers to School-Age Students with Disabilities –

August 2012, 18 pp. UU Affidavit of Parent , Verified 9-11-12, 3 pp. VV Affidavit of , Verified 9-12-12, 4 pp.

DEPARTMENT OF EDUCATION

1 Student’s I.E.P. as Prepared by District’s C.S.E. on 6-20-12, 12 pp. 2 Student’s I.E.P. as Prepared by District’s C.S.E. on 7-12-11, 16 pp. 3 Psychological Update, dated 6-14-11, by , 5 pp. 4 Speech and Language Evaluation of Student by M. Cotzen, CCC-SLP,

6-21-11, 3 pp. 5 Annual Review Plan, 6-2-11, by A. Perez,

OTR, 3 pp. 6 Student Progress Report , Undated, 3 pp. 7 Student Progress Report by , Undated, 2 pp. 8 Student Progress Report by , 5-10-11, 2 p. 9 Classroom Observation, 6-21-11, by , 1 pp. 10 Letter to Parent re: Triennial Re-Evaluation, 4-29-11, 1 p. 11 Level I Vocational Interview – Student, by , 6-10-11, 1 pp. 12 Level I Assessment – Parent/Guardian Interview, 6-7-11, 2 pp. 13 Student Report Card for 2011-2012 School Year, 1 p. 14 Copy of Email from , 7-30-12, 1 p. 15 Copy of Email from , 7-30-12, 2 pp.

IMPARTIAL HEARING OFFICER

I Department of Education’s Motion to Dismiss II Parents’ Response to Motion to Dismiss