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: September 25, 2012

October 16, 2012

Actual Record Close Date: December 1, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2012

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2012

Attorney — Student

Mother — Student

(via telephone) — Student

District Representative — DOE

School Psychologist (via telephone) — DOE

General Education Teacher (via telephone) — DOE

Guidance Counselor (via telephone) — DOE

On July 25, 2012 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute involving the special education program of a attending a public school and the New York City Department of Education (“DOE”) - District: After adjournments were granted on consent or cause, the impartial hearing was held on September 25, and October 16, 2012. The hearing could not be completed on that date and the parties submitted written closing statements on November 16, 2012. (T-144, D-8 & P-LL) The Parent’s closing submission also contained an affidavit from the director of the , whom the DOE declined to cross examine. (D-8 & P-LL) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student in this case is classified as having an “ .” (P-KK) The Parent alleges that pursuant to the student’s Individualized Education Program (“IEP”) dated November 23, 2011, the student was mandated for Special Education Teacher Support Services (“SETSS”), which he did not receive. (Id.) The student is . (Id.) The student is currently placed in a general education class but the Parent feels that he needs a smaller classroom. (Id.) The student now requires (725) hours of compensatory tutoring services. (Id.) In sum and substance, the Parent seeks the following relief at the impartial hearing:

(a) an “appropriate” IEP for the student; and

(b) a new “appropriate’ placement for the student; and

(c) (725) hours of compensatory tutoring at the

”); and

(d) payment of the cost of the student’s testing ($100.00) and registration fee ($295.00) at and

(e) that the student be provided with a “MetroCard” to travel to and from .

THE DOE’S CASE

The DOE argues that the student is in the and is making adequate academic progress. (T-27) The student is classified as having an ” and was receiving special education services in 2009. (Id.) In November of 2011, the student’s IEP team recommended that the student receive SEETSS services and and the student’s mother agreed. (T-27-8) However, she never signed off on the IEP. (T-28) The Parent ignored all of the DOE’s outreach efforts. (Id.) The DOE provided the student with “some atrisk services” to help him transition throughout the school building. (Id.) At the Parent’s request and in “good faith”, the IEP team reconvened and deferred the student’s case to the Central Based Support Team (“CBST”) for his placement in a New York State approved non-public residential school. (Id.) However, the CBST rejected the request because the Parent never authorized it. (T-29) After the November 23, 2011 IEP meeting the DOE could not get the student’s mother to come back for a meeting. (Id.)

The DOE called (3) witnesses to testify on its behalf and submitted (7) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness tested the student in 2011. (T-34-5) He is a school psychologist. (T-37) He sat in on the student’s IEP meeting in November of 2011 along with the guidance counselor, one of the student’s teachers and the student’s mother. (T37-8) At the meeting he had the evaluation he did and a “social history” report for the student. (T-38) The student was classified as having an “ ” and was recommended for “special education” with SETSS services and counseling. (T-38-9) He “believes” that the Parent agreed with the recommendations. (T-39)

The witness stated that his evaluation is dated October 25, 2011. (T-40 & P-

EE) There are times when when he is able to relate to others. (T-40) The student can be very resistant, . (Id.) The student also has some . (T-41) They did not do an FBA or a BIP for the student because he was and they wanted to see how that would go. (Id.) The student was designated a “10-month” student. (Id.) An FNR was sent to the Parent. (T-42)

The witness stated that in the beginning of January, the student had in school and . (Id.) As a result, they reconvened an IEP meeting in January because the material they received from the that the November recommendation was no longer valid and the student needed something “more restrictive.” (T-43) The Parent requested a residential setting and that the case be deferred to the CBST. (Id.) However, the CBST denied the request. (T-43-4) The DOE could not provide the student’s SETSS’ services because the Parent never signed the recommendation. (T-44)

On cross examination, the witness testified that there is only one goal on the student’s November 23, 2011 IEP that addresses his . (T-45) They’re recommendation in that regard was to offer the . (T-45-6) He believes that an FNR was mailed out to the Parent by his “family worker” because they always bring it upstairs and then it is sent out from the office. (T-48-9)

On re-direct examination, the witness testified that after the November “27”, 2011 conference they tried to get a physical examination of the student as a part of his social history report. (T-51) The Parent did not want SETSS service, but instead wanted something more restrictive. (T-52)

On re-cross examination, the witness testified that there was a representative from one of the student’s doctors present at the meeting in January. (T-52) Both the doctor’s representative and the Parent recommended services for the student at the meeting. (Id.) The Parent wanted a residential placement at that time. (T-53) In January, the student had gotten very angry after having a fight with another student. (T-54 was . (Id.) The witness is “pretty sure” that that incident . (T-54-5) He believes that the student’s IEP dated November of 2011 was no longer valid. (T-55)

During voir dire the witness stated that the student’s IEP dated January 6, 2012 did not come from any new evaluations nor was it different from the November IEP. (T56)

The DOE’s second witness was the student’s teacher. (T-58) She has been teaching for (28) years and taught the student in . (T-62) She never gave the student a formal assessment but stated that he was . (T-63) She believes that student was about ( . (T-64) As a remedy, the student was given assignments, a reading response journal to maintain, sometimes she would do individualized work with the student and there was a paraprofessional in the room that assisted him. (T-64-5) She communicated with the Parent concerning the student’s . (T-65)

The witness stated that the student’s psychologist gave her a form to fill out regarding the student’s progress and/or performance. (T-66) The , was and had instances where . (T-67-8) He spoke with the Parent who told her that she would speak with the student and take . (T-68) Ehen the student had a paraprofessional assigned to him his performance level was better. (T-70)

On cross examination, the witness testified that she taught the student from September 2011 to June 2012. (Id.) She believes that the student’s cumulative grade was .” (T-72) She believes that the . (T-73) The student did not have plan but did have an individualized plan. (T-73) The Parent was not a part of that plan through her. (Id.) They did not collect data to track the . (T-74)

On re-direct examination, the witness testified that the student scored a level three on his New York State “ELA” score last year, indicating that he was performing at grade level. (Id.) There was no re-cross examination of the witness. (Id.)

During voir dire the witness stated that the student’s behavior was seriously interfering with his behavior. (T-75)

The DOE’s third and final witness “serviced” the student. (T-76) She has been a guidance counselor for (12) years. (T-79) The student is in at the DOE school. (T-80) She provided direct services to the student from January 2012 through June 2012. (Id.) There were times when she would see the student every day and other times when she would see him a couple of times a week. (T-81)

The witness states that the Parent told her that the student was defiant at home, defiant and oppositional at school also and at times did not come home in the evening. (T-82) They arranged that she would take the student to the lobby each afternoon so that the Parent could pick him up and take him home safely. (Id.) There was also a “children’s ” person that was involved with the family. (T-82-3) The Parent felt that perhaps the student’s grandmother . (T-83) She provided services to the student because his IEP was supposed to go into effect and she assumed that it had. (Id.) The Parent wanted a residential setting for the student and they reconvened a meeting with the school psychologist to ask that it be considered. (T-84)

The witness stated that after a residential placement was rejected, the student had improved and she thinks that the Parent agreed that he had improved. (Id.) The student was coming to school regularly and his grades improved to a level three in reading. (Id.) They made two subsequent meeting with the Parent to “ ”, but she never showed up and did not reschedule. (Id.) She does not recall seeing that Parent during parent-teacher conferences but knows that she met with the student’s teacher. (T-85) She stopped servicing the student when it came to her attention that the DOE had not received “final notice” from the Parent. (T-86) She believes that one session a week with the student would be sufficient because he has improved. (Id.)

On cross examination, the witness testified that she would teach the student to calm his breathing down and consequences of his actions, as well as tell him that he could leave the classroom and seek her assistance, all as a way of . (T-88) She did not collect any data from the student and did not do any progress reports. (T-89)

On re-direct examination, the witness testified that she did not see a need to create an FBA or a BIP for the student. (T-91) There was no re-cross examination of the witness. (Id.)

THE PARENT’S CASE

The Parent argues that the student was “declassified” as a special education student at the beginning of the and has steadily declined since then. (T-29) The student has been . (T-30) SETSS services were not enough for the student to begin with and were not even provided by the DOE. (Id.) The Parent received notice from the DOE that the student might be left back. (Id.) The DOE did not conduct a Functional Behavior Assessment (“FBA”) of the student despite all of his . (Id.) A behavior plan has never been put in place for the student and the student requires individualized teacher attention and a small classroom setting. (T-31) The Parent did not provide the DOE with written notice of her disapproval of the DOE program. (T-33)

The Parent called (2) witnesses to testify on her behalf and submitted (37) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student’s mother. (T-92) She stated that the student goes to therapy once a week for two hours, sees a and sees a two weeks or on demand . (T-94-5) Those visits are paid for by her insurance. (T-95) The student was diagnosed .” (Id.) She provided those reports to the DOE. (Id.)

The witness stated that the during the 2010-2011 school year. (T-95-6) The student received a ( and was sent to the . (T-97) No one contacted her or offered her any services. (Id.) The student got a and was sent to the . (T-98) In October of 2011 she wrote a letter to the DOE asking that the student be evaluated. (T-99) She was being called daily about the student’s . (T-100) No formal plan was developed for the . (T100-1) One day the student came home very upset that the guidance counselor had called him .” (T-101) The and the school could at school. (T-101-2)

The witness stated that she was told they were going to recommend SETSS services and counseling and make a request that the student be residentially placed. (T-

102) She understood that they reconvened in January of 2012 for the student to receive a residential placement. (T-103) They also gave her a “504” form for the student’s doctor to fill out, which he did. (Id.) The student never received SETSS services to her knowledge. (T-104) So much was going on with the student being hospitalized and keeping doctor’s appointment’s that neither she nor the school kept up with the student’s IEP. (T-105) She does not believe that the student . (Id.) She signed release forms for the DOE and the student’s providers visited the DOE school. (T-106) Towards the end of April of 2012, she had the student tested at the (T-107) and the student’s IEP stated that the student was a grade or two behind. (T-107) The student was in the but reading at about a level and was performing at the level in math. (T-108)

On cross examination, the witness testified that in October of 2010, the student hit a teacher with a door. (T-109) The student was considered a “general education student.” (T-110) There was no break in between the . (T-110-2) The student tore up his classification notice and the DOE told her that they would send another one but she never got it. (T-115) She received a copy of the student’s IEP in February of 2012 from the student’s doctor. (T-117) She did not agree with any of the services thereon. (Id.) They were speaking about SETSS at the meeting, but instead were trying to get a . (T-

118) She asked for the student to be supervised because at one point he was missing and was sitting on a staircase for two hours. (T-118-9) She submitted the 504 form with the doctor’s recommendation and was told that the paraprofessional was no longer there and that the doctor’s writing could not be read. (T-119)

On re-direct examination, the witness testified that the student was getting . (T-

122) She was not given a consent form when they reconvened and was not contacted by the DOE requesting that she sign one. (T-123-4) There was no substantive testimony developed during the witnesses re-cross examination. (T-124-32)

The Parent’s second and final witness is the director of the . (T-134-5) provides individualized instruction in basic academic skills for students from kindergarten through 12th grade. (Id.) All of their teachers are certified in some states and they are accredited by the Middle States Association on Colleges and Secondary Schools. (T-136) They also provide services to special education students. (T-136-7) They service approximately (250) to (300) students each calendar year and (25-30 %) of them are special education students. (T-137)

The witness stated that the student was tested in May of this year. (T-138) The test consisted of site word recognition, reading fluency and comprehension, silent reading comprehension, a writing sample, some open ended computation and problem solving in math. (Id.) The student received a raw score of ( ) giving him a grade equivalency of .”

(T-141 & P-A)

The witness continued her direct testimony in an affidavit submitted on November 16, 2012. (P-LL) Therein she stated that the student’s testing indicated that he has skill mastery in verbal and math skills approximately ( his current placement in the and that he has in his academic skills across all areas. (Id.) The student’s grade level in verbal and math skills is estimated to be at the level. (Id.)

The witness stated that she has been preparing student programs for over (11) years at the , has prepared programs for approximately (500) students with learning disabilities, and that she is fully familiar with the average time it takes a student, like the student in this case, to complete each piece of curriculum she has identified. (Id.) She multiplied the time it will take to teach each piece of curriculum by the number of pieces of curriculum she has identified to reach the total number of hours of tutoring the student requires and recommends that the student receive (725) hours of tutoring. (Id.) The witness concluded her affidavit by stating that the fee for the diagnostic evaluation at is $295.00, the registration fee is $100.00 and instruction is billed at a rate of $85.00 per hour for instruction. (Id.) The DOE declined to cross examine the witness. (T-134-44 & D-8)

FINDINGS OF FACTS AND DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537) As such, in this case, the Parents as the party seeking relief, have the burden of persuasion to demonstrate that the DOE has failed to offer the student a FAPE.

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985])

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

I first turn to the question of whether the DOE offered the student a FAPE on November 23, 2011 or January 6, 2012 and/or whether the services offered by the DOE were adequate or appropriate. (supra) Here, I must find that the DOE failed to meet its obligation under law.

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the school psychologist testifying for the DOE stated that he attended the IEP meeting with the guidance counselor, one of the student’s teachers and the student’s mother. (T-37-8) The IDEA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such student. (See 20 U.S.C. § 1414[d][1][B][iii], 34 C.F.R. § 300.321[a], 8 NYCRR 200.3[a][1][iii] and IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]) The student attends a “general education class.” (DPC) Thus, the IEP meeting in November of 2011 did not have a special education teacher who was or would be responsible for implementing the student's IEP.

Based on the hearing record, I find that no special education teacher or provider of the student attended the May 2007 CSE meeting. (See 20 U.S.C. § 1414 [d][1][B][iii], 34 C.F.R § 300.321[a] and 8 NYCRR 200.3[a][1][iii]) Therefore, the November 23, 2011 Committee on Special Education (“CSE”) was not properly constituted.

It is also noted that the school psychologist did not indicate that a “parent member” attended the November 23, 2011 IEP meeting. It is the duty and responsibility of the CSE to ensure that a Parent can effectively participate at the CSE review by having a “parent member” attend an IEP meeting unless a waiver is executed in writing. SRO Decision 02013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

Because the student’s November 23, 2011 IEP did not include a “special education teacher” or a “parent member”, I find that the resulting IEP in this case is a nullity because the CSE team was not properly constituted under law. Accordingly, I also find that the DOE failed to offer the student a FAPE with the November 23, 2011 IEP. It is important to note that even the school psychologist, testifying on behalf of the DOE, stated that he believes the student’s November 2011 IEP was not valid. (T-43 & 55) He also acknowledged that the student’s January 6, 2012 IEP did not come from any new evaluations and was the same as the student’s November 2011 IEP. (T-56)

While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]) The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]) In the case at bar, I believe that the IEP’s failure to a behavior intervention plan also renders the document substantively flawed.

State and federal law require that a child’s IEP be reviewed and, if appropriate, revised periodically, but not less than annually. (See 20 U.S.C. § 1414[d][4][A][i] and 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends upon the nature of the child’s disability and the nature of the change in the child’s placement. (See SRO No. 93-22) Although an FBA is required in the initial evaluation of the child, both state and federal regulations also provide that any subsequent IEP review “shall. . .in the case of a student or that of others, consider, when appropriate, strategies, including behavioral interventions, and supports to address that behavior.” (See 8 NYCRR 200.4[d][3] [emphasis added], 8 NYCRR 2004.[f][1][i], 34 C.F.R. § 300.346[a][2][i] and 34 C.F.R. § 300.346[b]) Federal regulations specify that “a failure to, if appropriate, consider and address these behaviors in developing and implementing the child’s IEP would constitute a denial of FAPE to the child.” (See Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38)

The CSE must first accurately assess the child’s behavior, drawing upon a variety of sources, including tests, parent and teacher input, and adaptive behavior, and ensure that the information obtained is documented and carefully considered. (See 34 C.F.R. § 300.535[a][1], [a][2]) In so doing, the CSE has an affirmative obligation to administer tests and other evaluation materials as needed to ascertain whether any additional modifications to the IEP are necessary in order for the child to participate in the general curriculum (8 NYCRR 200.4[b][5][iii]), including using instruments that may assess the contribution of behavioral factors, where appropriate. (See 20 U.S.C. § 1414[b][2][C] and 34 C.F.R. § 300.532[i]) These tests must be tailored to assess the particular area of need of the child, not merely provide a general intelligence quotient. (See 34 C.F.R. § 300.532[d], 34 C.F.R. § 300.536[b] and 8 NYCRR 200.4[b][6][iii])

Thus, a CSE must accurately identify a student’s needs as a first step when amending his or her IEP, which would include, where behavior is at issue, performing an FBA and/or adding a formal behavior management plan to the IEP where appropriate. (See SRO Nos. 01-094, 01-060, 00-081 & 99-56) Once the behavior is assessed, where behavioral concerns exist, any new IEP must specifically reflect which behaviors must be changed or refocused in order for the child to achieve academic success. (See SRO No. 93-15)

The record clearly evidences that the student in this case that necessitated an to address the same. First, the student is classified as having an “ (T-38-9) The student is said to . (T-54) His behavior has resulted in his . (T-54-5) The student is described as “ ” and as having instances where he would walk out of the room. (T-67-8) The guidance counselor, testifying on behalf of the DOE, said that the student’s mother told her that he was defiant at home, oppositional at school and at times did not come home in the evening. (T-82) She also testified that she , think of the consequences of his actions and seek her assistance. (T-89) The student has from school because of his . (T-95-8) His mother stated that she was being called daily about the student’s behavior. (T-100) Indeed, the student has been diagnosed with “ (T-95) On one occasion, he was . (T-118-9) On another occasion . (T-109) The student’s DOE teacher, also testifying for the agency, seriously interfered with his behavior. (T-75) Despite all of the evidence of the student’s behavioral problems, the DOE did not do an FBA or a BIP, ostensibly because the student was getting some outside assistance and they “wanted to see how that would go.” (T-41) The DOE school psychologist conceded that there is only one goal on the student’s November 23, 2011 IEP that addresses his . (T-45)

For all of the reasons stated above, I also find that the DOE’s failure to conduct an FBA and provide the student with a BIP to address his amounts to a denial of FAPE. There is also evidence is the record that the CBST rejected the CSE’s recommendation on January 6, 2012 that the student receive a residential placement. (T-43-4) I note for the record that there is no authority that I am aware of that allows the CBST to overrule the recommendation of the CSE which alone is empowered under law to produce a student’s IEP.

As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her Parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington v. Dep't of Educ., supra) Having already found that the services offered by the DOE are inadequate, I turn to the question of whether the services selected by the Parent are appropriate. Here, there is ample evidence in the record to support the Parent’s claim.

The student’s DOE teacher testified that the student level. (T-63) His cumulative grade shows was . (T-72) The teacher also stated that the student scored a “ ” on his New York State ELA score, indicating that he was performing at level. (T-74) However, the (T-107) and that he has approximately ( levels below his current placement in and that he has in his academic skills across all areas. (P-LL) The student’s in verbal and math skills is estimated to be at level. (Id.) The director multiplied the time it would take to teach each piece of curriculum by the number of pieces of curriculum she identified to reach the total number of hours of tutoring the student requires and recommended that the student receive (725) hours of tutoring. (Id.) Based on the record before me, I find that the services selected by the Parent are appropriate for the student.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. She attended the students IEP meetings and provided the DOE with the student’s hospital and private provider reports. (T-92-5) Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s receipt of (725) hours of tutoring at the at the cost of $85.00 per hour; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s diagnostic evaluation at the ($295.00) and his registration fee ($100.00) at the ; and it is further

ORDERED that the student be provided with a MetroCard for his travel to and from his residence and the ; and it is further

ORDERED that the CSE shall forthwith re-evaluate the student and reconvene to produce a new IEP for the student that incorporates an and that considers all of the student’s available evaluations and any related services which he should immediately receive. Dated: December 27, 2012

__________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED: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 THE RECORD

PARENT

A . Evaluation, 5/23/12, 3 pp. B . Program Map, Undated, 1 pp. C Slosson Test Results, 5/22/12, 16 pp. D Math Exam, 5/22/12, 39 pp. E Hospital Correspondence, 1/11/12, 1 p. F Hospital Discharge Plan, 1/12/12, 6 pp. G Hospital Discharge Plan, 3/16/12, 7 pp. H Promotion in Doubt Letter, 2/6/12, 1 p. I , 2/16/11, 4 pp. J Evaluation, 11/22/11, 4 pp. K IEP, 9/22/08, 10 pp. L Report, 6/9/08, 1 p. M , 1/25/11, 7 pp. N Mid-Quarter Progress Report, 10/7/11, 1 p. O Promotion in Doubt Letter, 2/8/12, 1 p. P IEP, 6/6/12, 10 pp. Q Historical Report, 5/7/12, 2 pp. R Report Card, 4/24/12, 1 p. S DOE Letter, 3/1/11, 1 p. T Occurrence Report, 11/10/11, 1 p. U Evaluation, 6/12/08, 3 pp. W IEP, 9/18/09, 6 pp. X Progress Report, 3/17/11, 1 p. Y Attendance Report, 2/28/11, 1 p. Z Report Card, 2/16/11, 1 p. AA , 1/14/11, 1 p. BB IEP, 9/13/06, 10 pp. CC IEP, 9/15/05, 11 pp. DD IEP, 9/12/07, 11 pp. EE , 1/18/11, 7 pp. FF Evaluation, 9/25/11, 4 pp. GG E-Mail, 7/17/12, 2 pp. HH E-Mail, 7/23/12, 2 pp. II E-Mail, 7/23/12, 2 pp. JJ E-Mail, 7/23/12, 2 pp. KK Impartial Hearing Request, 7/10/12, 4 pp. LL E-Mail w/Affidavit and Closing, 11/16/12, 16 pp.

DEPARTMENT OF EDUCATION

1 Due Process Response, 7/18/12, 4 pp. 2 School Progress Report, 6/26/12, 1 p. 3 Classroom Observation, 10/27/11, 1 p. 4 Placement Inquiry Screen, 10/10/12, 2 pp. 5 Central Response, 3/26/12, 1 p. 6 FNR, 12/21/11, 1 p. 7 IEP Contact Log, Undated, 1 p. 8 E-Mail with Closing Statement, 11/16/12, 4 pp.