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: October 10, 2012

Nove mber 15, 2012

Record Close Date: November 30, 2012

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2012

Attorney — Student

Parents

Director of Student Services — DOE

Guidance Counselor — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2012

Attorney — Student

Parents

Student

LSCW, Psychiatric Social Worker, Friends — Student

Clinic of Visiting Nurse Services of New York (via telephone) — Student

Director of Community School Placement, Program (via telephone) — Student

Director of Student Services — DOE

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 on October 10, 2012 and, thereafter, on November 15, 2012. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City School District of the City of New York to preside over this matter on July 17, 2012. The Transcript of the November 15, 2012 hearing was not received until November 30, 2012. The Record was closed when such was received. The Record Close Date was November 30, 2012

The proceeding was initiated by Parent by the filing of a Due Process Complaint Notice, dated April 25, 2011 and received by the New York City Department of Education’s Impartial Hearing Office on July 16, 2012 (Exhibit 1).

Parent alleged in her Due Process Complaint that Student’s former school, , was depriving Student of a placement in a . Thereafter, Attorney of the Legal Services of New York City – Bronx, filed a Notice of appearance on behalf of Parent.

Student is presently . During the 2011-2012 school year, Student attended in .

The sole issue addressed by both parties in this proceeding was the Committee’s rejection of the insistence of Parent and others to have the Committee reclassify Student and recommend that Student receive his special education program in a Day Treatment setting and its determination to recommend his placement in an Integrated Co-Teaching class at for the 2012-2013 school year (T.R. 9-10).

Parent testified that, during the 2011-2012 school year, Student oftimes refused to go to school and that Parent, despite her efforts, was unable to get him to attend. It appears that, even prior to October of 2011, Student was being treated for issues. Parent testified that, since the age of four, Student has been receiving outpatient services (T.R. 165). Correspondence from , at to Student’s then-Classroom Teacher (Exhibit H), advised that Student was, at that time, being evaluated. Such correspondence noted that Student was currently ”), , and . A Report of a completed in October of 2011 – early in the 2011-2012 school year - (Exhibit G), performed by the , noted that Student had been transferred to such to continue medication management. The Report noted evidence of ”) and ”), which diagnoses had been continued from the (Exhibit G). The Report also noted that Student’s sibling was, at that time, a patient at Four Winds Hospital.

According to Parent, Student alleged that he was being bullied at school as a reason for his refusal to attend. Parent stated that there were many occasions during the 2011-2012 school year when Parent was called by school officials because of incidents occurring during the school day involving , such as , leaving the classroom to sit on stairs or sit in the classroom closet (T.R. 194). On February 1, 2012, Parent sent an Email to the school’s Parent Representative describing instances of bullying and other difficulties reported to her by Student (Exhibit K). By letter dated November 11, 2011 (Exhibit I), Parent requested of Ms. , identified by Parent as a , a re-evaluation of Student “due to his new diagnosis of ”. On May 14, 2012, Psychiatric , wrote to District’s Committee Special Education, (“C.S.E.”) reviewing Student’s diagnoses and expressing the opinion that Student needed to be placed “in a day treatment program that could provide greater therapeutic support and comprehensive onsite psychiatric services.” (Exhibit H). Parent stated that such letter was written for Parent to put it in Student’s I.E.P. (T.R.198). Parent further testified that it was her understanding that, with such letter, the Committee would amend Student’s I.E.P. so as to provide for the T.R.198).

Parent also testified that, during the 2011-2012 school year, Student had been hospitalized twice for (T.R. 132), the first in January of 2012 and the second time in March and April of 2012. According to Parent, Student’s discharge from in April of 2012 was made with the assumption that Student would go directly from the hospital into a Day Treatment program (T.R. 132-133), that the paperwork had already been sent by the , and that the school had agreed to Student’s change of placement (T.R. 133).

Parent also presented the testimony of , identified as the Director of for the described the Day Treatment program as a part of District # of the New York City Department of Education for students who are severely emotionally disturbed. Witness stated that the Program was familiar with Parent, as it had earlier accepted another child of Parent into its program. Parent expressed an interest in having Student also participate in the program and, concurrently, the program had received a referral from Friends that Friends felt a Day Treatment program was in order for Student (T.R.209). The Program did a detailed Intake Summary (Exhibit M) in early June, 2012, after which Ms. spoke with School . According to Witness School Psychologist expressed reluctance in accepting such a drastic change in program, stating that: “…for some reason they felt he did not need such a restrictive program;” (T.R. 211). Despite such response, Ms. sent an Acceptance Letter to District (Exhibit 15). Such Acceptance Letter stated that Student had been accepted into its program, but required that District’s C.S.E. prepare a revised Indivialized Education Program (“I.E.P.”) that it change Student’s Classification to Emotional Disturbance; that it recommend a Special Class in a Specialized School with a class ratio of ; that it include a twelve-month school year; that it provide for Verbal Therapy; and that it provide for Special Transportation.

District’s Committee on Special Education (C.S.E.) convened on June 21, 2012 to prepare Student’s Special Education program for the 2012-2013 school year. The results of that meeting were reflected in an Individualized Education Program (I.E.P.) (Exhibit 2). The Committee noted the results of testings completed in February of 2011, which found Student to have a Full Scale IQ of , with a Word Reading level of ; a Reading Comprehension level of ; a Numerical Operations level of and a Math Reasoning level of The Committee continued Student’s classification as having a . and recommended that Student receive his special education program in an Integrated Co-Teaching Classroom, with the Related Services of and (Exhibit 2). A Final Notice of Recommendation (“FNR”), dated June 21, 2012 (Exhibit 12) was sent to Parent, in which it was noted that Student’s then-current class was General Education with , and that his new placement would be in an Integrated Co-Teaching class at . # , with the Related Services unchanged.

District presented the testimony of two witnesses to address the decision of the Committee to recommend his placement in a Integrated Co-Teaching class. Witness , who served as a Guidance Counselor at testified that she was familiar with Student from her Lunch Duty at the school and participation in investigating an incident in which Student for having a . Witness stated that she made an effort daily to speak with Student because of her discussions with Parent regarding Parent’s concerns that Student was being bullied (T.R.41). Witness stated that she saw no and that Student appeared pleasant and personable, never arguing back or not getting along with his peers (T.R.46). Witness described one incident in which Student had brought a very to school, which Student said he had found and wanted to show it to his friends (T.R. 44). The incident resulted in an Occurrence Report (Exhibit D) being generated, but with no further disciplinary action being taken. Witness Capasso noted that Student’s behavior otherwise was perfectly acceptable (T.R. 47). The Committee received reports that Student’s academics were somewhat behind, which was attributed from school, which was the reason the Committee felt it was appropriate to substitute an Integrated Co-Teaching class for his General Education class placement - but that such was never related to his behavior, but only to his academics (T.R.44). Ms. stated that she could see no reason why Student would need any placement more restrictive that that recommended by the Committee. District Witness was a Special Education teacher who had provided Student with his mandated Special Education Teacher Support Services (“SETSS”) during the 2011-2012, as well as the 2010-2011 school years. Witness noted that Student’s progress during the 2011-2012 school year , due, in her opinion, to his absences (T.R.67- T.R.74). Ms. took part in the Committee meeting of June 21, 2012. Witness stated that she had seen correspondence from some source – perhaps Treatment - noting that Student had been receiving treatment for (T.R.77), but that Student’s conduct in school – that he was well behaved and did his work and knew what was expected of him (T.R.71). The witness stated that she had spoken to Parent about his and was advised that he had – some type – that required . Witness noted, upon crossexamination, that while she can attempt to address significant absences with a parent, it is up to the parent – at an early grade level – to get the child to school. I note that, in considering the placement Student required for his special education program, it had the information that Student’s were attributable to the Student’s claim of or the Parent’s statements that Student was out of school due to – neither of which related to Student’s claimed . Further, I note that while Student during the 2011-2012 school year, he was present (Exhibit 19).

Were it necessary to determine the appropriateness of the Committee recommendation to place Student in an Integrated Co-Teaching class for the 2012-2013 school year, I would find that the Committee’s recommendation was totally appropriate. The Committee determined that Student benefitted from his educational program while in school and that such placement offered Student his education in the Least Restrictive Environment. However, it is my finding that such determination is unnecessary, as the issue placed before me has become moot.

It was established by the testimony of Parent and Witness that Student began attendance at the program on July 5, 2012, (T.R.165) (T.R.226) and had been in attendance at that facility at the time Parent filed her Due Process Complaint. . According to the testimony of Witness , Student was placed in such program, not pursuant to an I.E.P., but because Ms had gone to the Principal of the program and simply stated that the Committee felt that the Student did not need the Day Treatment program, but that she did – and with that, the Principal and she “overrode” the Committee (T.R. 228). I have no idea how a District Principal or a Director of Community School Placement for the Astor Day Treatment program can “override” a determination of a Committee on Special Education – even if Parent were complicit. Indeed, Witness stated, when discussing her letter of June 5, 2012 to District (Exhibit 15) detailing what the C.S.E. had to do at a Committee meeting regarding the required revision of Student’s I.E.P., that it was necessary for the Committee to change Student’s classification to since “In order for him to come to our program, he has to be labeled – this is a State thing – emotionally disturbed” (T.R. 212). Clearly, the Committee has not “labeled” Student as Emotionally Disturbed. Nor does the Principal of a District school or a Director of Community School Placement for the program have the authority to change a student’s classification or program recommendation. If Student is attending the Treatment program without a classification of – and it is a “State thing” - it would appear that the District school is in violation of some New York State rule – unless, again, the Principal of the District school and the Director of Community School Placement for the program decided to “override” the Committee’s classification of Student and replace such as they saw fit. It appears that either action constitutes a violation of law.

The net result of the action taken by the Principal of the particular school into which Student has been “placed” renders any determination that I might render meaningless. Parent sought to have reviewed the determination made by the C.S.E. on June 12, 2012 as to Student’s placement in order to have the Committee ordered to change that recommendation to one of a Day Treatment program. Even were I to grant Parent’s application – which I would certainly not do – such determination has been rendered meaningless, as Student has already gained entry into the program Parent sought in this review. As has been often noted by the State Review Officer, the dispute between the parties must at all stages be “real and live’ and not simply academic. There is no requirement to make a determination that will have no actual impact upon the parties (Application of a Student with a Disability, Appeal No. 11-102; Application of a Student with a Disability, Appeal No. 08-104; Application of the Board of Education, Appeal No 08-061). When there is no real issue to be determined, the matter is moot.

It is my finding and determination that such is the present status of this proceeding. While Parent’s counsel contends that the issue before me is not moot, as a favorable determination might be available for Parent to utilize as a basis for pendency in subsequent school years, I am not persuaded by such contention.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED. Dated: December 6, 2012

______________________________

JAMES P. WALSH, ESQ

Impartial Hearing Officer.

JW: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 OCTOBER 10, 2012

PARENT

A Commissioner's Regulations, Part 200.14, Undated, 2 pages B Letter from , , dated 9/11/12,

1 page C Screening/Admission Note and Intake Summary, , dated 7/15/12, 3 pages D Occurrence Report, dated 3/14/12, 1 page E Medication Record and Progress Notes, , dated 7/31/12, 2 pages F Discharge Summary, , M.D., dated 4/20/12, 1 page G Evaluation, , dated 10/17/115 pages H Two Letters from Clinic, dated 10/27/11, 2 pages I Parent Letter to Ms. , dated 11/7/11, 1 page J Notification, dated 7/25/12, 1 page

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request/Due Process Complaint, dated 6/25/12, 1 page 2 Individualized Education Program, 2012-2013 school year, 17 pages 3 Special Education Teacher Report, dated 6/18/12, 4 pages 4 Teacher Report, dated 5/31/12, 4 pages 5 Classroom Observation Report, dated 12/12/11, 1 page 6 Progress Report, dated 1/5/12, 2 pages 7 StatusForm, dated 6/8/12, 6 pages 8 Letters from , dated 10/21/11, 2 pages 9 Authorization to Release Health Information, dated 6/18/12, 1 page 10 Request for Medical Accommodation, dated 6/7/12, 1 page 11 Parent Letter, dated 5/31/12, 1 page 12 Final Notice of Recommendation, dated 6/21/12, 1 page

IMPARTIAL HEARING OFFICER

I Notice of Subpoena to , dated 9/12/12, 2 pages

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2012

PARENT

K Copy of Emails from Parent to , Various dates, 2 pages L Letter from Parent to Mrs. , dated 4/23/2012, 1 page M Social History Summary on the Letterhead of the ,

Dated 6/5/12 & 6/8/12, 8 pages

DEPARTMENT OF EDUCATION

13 Letter directed to Ms. , from the Parent, dated 11/7/11, 1 page 14 Authorization for health information, dated 6/8/12, 1 page 15 Summer Session Acceptance Letter, dated 6/5/12, 1 page 16 Classroom Observation, dated 12/12/11, 1 page 17 Special Education Teacher Report, dated 12/22/11, 4 pages 18 Report of Enrollment Status-Period from 9/2/08 – 6/21/12, 1 page 19 Report of Student’s Attendance, dated 6/21/12, 1 page 20 Report on Student’s State Test Results in ELA and Math, dated 6/21/12, 2 pages 21 Student’s Attendance History, School year 2011- 2012, 1 page 22 ARIS Summary, dated 6/21/12, 2 pages