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: November 21, 2011

December 23, 2011

January 10, 2012

February 7, 2012 Actual Record Close Date: March 9, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2011

Attorney — Student

Administrative Special Education — DOE

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

Attorney — Student

Parents

DOE Representative (via telephone) — DOE

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

Attorney — Student

Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012

Attorney — Student

Parents

DOE Representative — DOE

This matter came before me on November 21, December 23, 2011, January 10 and February 7, 2012, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). The parties requested that the compliance date be extended for each additional hearing day.

BACKGROUND

The student is a year old girl, who is currently attending a special class, , in a school. She is in the grade and was classified for the first time, on January 13, 2010, as ( ). In addition, the Committee on Special Education (CSE) recommended ( ) ( ). ( Exh. D) The CSE reconvened on May 4, 2010, it added ( ), a full time paraprofessional and special education transportation, door to door.(Exh. H) On June 16, 2011, the CSE convened, it recommended a classroom in a specialized school, extended school year, ( ) ( ) ( ) and ( )( ). (Exh. V) The parent disagreed with the recommendation; the DOE failed to recommend a placement. The student returned to the community school; the parent requested a pendency order for the continuation of the May, 2011 IEP recommendations, it was granted.

On September 21, 2011, the parent submitted a request for an impartial hearing; the parent alleges that the DOE failed to provide the student with a “free appropriate public education” (FAPE) on procedural and substantive grounds. The parent seeks, inter alia, special education transportation with a full time transportation paraprofessional, evaluations, parent training and make-up services for failing to provide the IEP related services. The District waived its opening statement, presented no testimonial or documentary evidence.

THE PARENT’S CASE

The mother testified that her daughter has , and . The daughter is on several for the and for . She noted that if her daughter’s , she can . She will and , any . She can become , and . Also, she can become . Her daughter is able to and needs on a . The child does not become or . (Tr. 45-47)

When the child started grade, she was placed in a general education program, in a community school. The program was for her to . In the beginning of the school year, she exhibited some in the classroom. The student had experienced some and over her to complete a task. When she was called on, as a result of her , she had an and the work or to . During the 2009-2010 school year, it was to determine what progress or if any was made due to her being . Ultimately, it was a group consensus, herself, the vice principal, social worker and her teacher decided that the child’s case be referred to the CSE. The CSE conducted its first IEP meeting, January, 2010 for her; the CSE recommended that she be placed in a classroom with related services. The mother recalled requesting that a assessment ( and behavior intervention plan (BIP) be done. She was told that the child did not need one. However, the child exhibited certain that could be predicted and heeded if there was a BIP in place. The teacher had no type of informal intervention plan for the student in place to address the . Consequently, when the came up, the mother received calls and emails from the school. (Tr.48-52; Exh. D)

The student made minimal progress from January to June, 2010; she had as well due to her . In May, 2010, another IEP meeting was held to add , however, no were available in the school. The school issued RSAs for the .(Exhs. I and J) In addition, the student was receiving her at school; she was allowed to when she opted to, resulting in her missing a lot of . Again, she was allowed to chose when she wished to participate in if she did not want to participate, she was allowed to sew for the session. The sewing consumed approximately of the sessions. The mother communicated with the school a week, via emails, communication books and telephone. The school communicated with her when there was a problem. (Tr. 53-55; 5658 and 60-61) (Exh. H)

The student returned to school in September, 2010 to begin the grade; she presented academically on a level. On November 29, 2010, the mother wrote to the school requesting that certain evaluations be done and for a new IEP meeting to reconvene, because her daughter had substantially . (Exh.M) The school responded by sending out a consent form for the evaluations to be done, dated December 6, 2010. (Exh. N)The mother signed and returned the consent form. , the school , told the mother that the student was not eligible for any new evaluations because the last evaluations had been conducted less than a year ago. The mother told the that it was almost years ago since the last evaluations were done.(Tr. 63-65 and 67-69)

The mother was seeking evaluations, a evaluation; the last one was done in December, 2009. (Exh. B) The evaluation had never been done and an evaluation was attempted in 2009, but never completed. The conducted an assessment in February, 2011; the mother was not informed about the evaluation until weeks after it had been done. In addition, the was aware that the student had been and of the , over an week period in January and February, 2011. The student was days over this period and was on when the evaluation was done. The mother requested a copy of the report; it was sent to her a month later. The mother discussed with the vice principal her concerns regarding the report; it was inaccurate and could not be used as a basis to determine the child’s services. She memorialized, by an email dated March 2, 2011, her concerns about the failure to do the requested examinations and other matters pertaining to her November, 2010 request for an IEP meeting. (Exh. P) The vice principal suggested that they proceed with the March meeting to address some matters and reconvene at a later date to complete it. (Tr. 70-73; 74-75 and 78-81)

An IEP meeting was convened in March, 2011, the only change made was to her testing format. The mother opined that her daughter had made between May, 2010 and March, 2011; the child had substantially in several areas. Her , and had diminished. The various for her a lot of and . She requested some kind of behavior plan to help her daughter to be available for learning. The mother stated that from March through June, 2011, the school acted primarily as a . The teacher sent her out of class as a means of her . The student was sent to the vice principal office, the school , guidance counselor or the school nurse. Outside of the classroom, she was . However, during these trips outside of the classroom , which comprised a good portion of her school day she was not receiving any academic instructions. In addition, to the decline in her , and , the student showed with both her and , nothing was done to address those problems. There was no recommendation for an evaluation or for an extended school year despite her raising the issue. (Tr.84-86; at 89 and 91-93) (Exh. R)

The mother had a private evaluation done; it was done on March 26 and April 11, 2011 by Dr. . He recommended that a behavior management program be set up to address her and regulation; the management program needed to be consistent across environments. Also, he recommended that she remain in her current class setting since he opined that her across various domains was resulting from her and . He opined that she was testing as a child who is , the results were clouded by her . She should remain in her class with additional supports added.(Exh. S) The report was provided to the CSE weeks before the June, 2011 meeting. In May, 2011, she received a final notice of recommendation based on the March, IEP meeting; the recommendation was for an unspecified community school. She signed and returned it believing that nothing would be changed, except the testing, until the assessments were in. (Tr. 94-97) (Exh. T)

In June, 2011, the CSE reconvened, the mother believed the meeting was to reassess her needs, placement and services based on Dr. findings. He participated by telephone. The student had not made any academic progress since the last IEP meeting. Her impression of the CSE team was that a predetermination of the student’s program had been made and that they were dismissive of Dr. findings. The mother recalled that the guidance counselor stated at the meeting that she did not think the child would ever make any progress. The CSE recommended a para and a Para, only the Para was in place in September. was reduced to a week. The Para came on board sometime in October. The CSE recommended a class over her objections and contrary to Dr. recommendations. The mother had not received a FNR by the beginning of the 2011 school year and so the student was returned to the community school she had been attending. She was in the grade in a class. (Tr. 99-101; 104-107 and 109-111) (Exh. R)

Overall, for the 2009-10 and the 2010-11school years, the student made little progress. The student needs to be properly evaluated to understand why she’s not processing information correctly and not able to read. A evaluation would shed light on the . The child needs a evaluation to understand where she is socially and developmentally. An independent evaluation is warranted because the DOE started an evaluation sometime ago and never completed it. The student needs to address some of her deficits that make her stand out conspicuously when her peers are engaged in certain activities that she struggles with. (Tr.112-114)

On cross-examination, the mother testified that Dr. report was supplemented by information from the child, her doctors, therapists, teacher, principal and anyone who came in contact with her at school as well as parental input. She noted that the make-up sessions for missed related services could be addressed via RSAs so that the student is not missing class work. (Tr. 125-126) The mother discussed why the student needs a FBA and BIP and identified some of the behaviors and referenced reports that addressed same. (Tr. 128-132 and 134-135) ( Exhs. S; W; K; L and U) The mother estimated that the student missed % of her sessions, missed % of her sessions and sessions of for the 2009-2010 school years.(Tr. 143-145) She explained that the parent training she was seeking is simply having meetings once a month with the child’s teachers and providers so that she may track her progress and support what is being taught in school.(Tr. 148-149)

FINDINGS OF FACT AND DECISION

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized educational program. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). If a student’s behavior impedes his or her learning or the learning of others, the CSE must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” when developing,, reviewing and revising an IEP ( 20 U.S.C. §1414[d][[3][B][i]; see 34C.F.R. §300.324[a][2][i]; 8 NYCRR [d][3][i]).

The burden of persuasion in an administrative hearing challenging the IEP is on the party seeking relief. Schaffer v. Weast, 126 S.Ct 528,537[2005] In New York, it is the local educational agency (the DOE) that has the burden to establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Bd. of Educ. v. Rowley, 458 US 176, at 205[“the importance Congress attached to these procedural safeguards cannot be gainsaid”]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 US at 206; M.S. v. Bd. Of Educ. of the City of Yonkers, 231 F.3d at 102).Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129[2d Cir. 1998]) These detailed procedures “lie at the heart” of the statute ( Evans v. Bd. Of Educ. of the Rhinebeck Cent. Sch. Dist., 930F. Supp.83, 93 [S.D.N.Y. 1966]) They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 24 [S.D.N.Y. 2000]; Evans, 930 F.Supp. at 93).

In the instant matter, the parent alleges procedural and substantive violations. The record clearly establishes that the parent requested that her daughter be re-evaluated due to the substantial regression she was exhibiting. The mother wrote to the school on November 29, 2010 requesting a evaluation and assessment for . (Exh.M) The parent gave her consent to do the evaluations on December 10, 2010.(Exh. N) To date the evaluations have yet to be done. The DOE is mandated, upon request for re-evaluation, to conduct said evaluations within 60 days of receipt of consent. 8 NYCRR 200.4(b) (1) The June, 2011 IEP failed to include parent counseling and training as defined under the Commissioner’s Regulations. 8 NYCRR 200.1(kk)

The January, 2010 provided for and , however, the student did not receive all of her services. The mother testified that the services were provided when the student opted to receive them. The student when she wanted to was permitted to sew during when she did not want to participate. She attended when she elected to do so. (Tr. at 56 and at 60) The student was recommended to receive the May, 2010 IEP meeting; the school had no available providers. The school issued RSAs for on June 7, 2010, none of the private providers were available; the student did not receive the . Related services of , and were not provided in accordance with the IEP. The DOE does not dispute that the aforementioned services were not provided.

The January, 2010 IEP indicates the child’s interferes with instruction. (Exh. D) The student’s behaviors have throughout the past school years, as evidenced by the mother’s testimony and reports entered into the record. Due to the student’s behavioral issues the DOE should have developed a FBA and BIP to address the behaviors so that the child would be more available for learning. (Exhs. S; W; K; and U) ( Tr.128-132 and 134-135) (8 NYCRR 200.22(b)(1). The June, 2011 IEP recommends a placement contrary to the mother’s position, Dr. report and discussion at the CSE meeting.(Exhs. S and V) The DOE failed to provide a placement for the student; she returned to the placement. The CSE's recommendation for a was made without a proper review of the student’s record, evaluations and history. ( 8 NYCRR200.4(f)(1). In addition, the IDEA mandates that the student’s program must be provided in the least restrictive environment. (20 U.S.C. §1412(a)(5)(A); 34 C.f.R.§300.114 and 8 NYCRR 200.6(a) (1). Based on the foregoing, I find that the DOE has failed to provide the student with a FAPE for the 2009-10 and 2010-11 school years.

ORDER

1) The Department of Education is directed to conduct a and evaluation, within 14 days of receipt of this Order; or fund independent evaluations;

2) The Department of Education shall fund an independent evaluation, at a cost not to exceed $ unless the parties otherwise agree;

3) The Department of Education shall conduct a Assessment and develop an appropriate Behavioral Intervention Plan to address the student’s behavior needs within 10 days of this Order;

4) The Department of Education shall provide parent counseling and training through monthly meetings with the parent and the student’s teachers and providers as well as other professionals who interact with the student at school, as defined under Part

200.1(kk);

5) The Department of Education shall provide the student with RSAs for minute sessions for individual sessions of , individual sessions of counseling and individual sessions of within days of receipt of this Order;

6) The student shall remain in her pendency placement until such time as all the evaluations are completed. The CSE shall reconvene within 10 days of the date of completion of the aforementioned evaluations, to develop an appropriate IEP that reflects the findings of the recent evaluations and that addresses the student’s academic, emotional and social needs; and

7) The Department of Education shall provide special education transportation and a full time transportation paraprofessional, for the student. Dated: March 15, 2012

_________________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Evaluation, 11/23/09, 6 pp. B Assessment, 12/2007-8/2009, 11 pp. C Evaluation, 1/5/10, 5 pp. D IEP, 1/13/10, 11 pp. E Final Notice of Recommendation, 1/13/10, 1 p. F Evaluation, 2/26/10, 6 pp. G and Evaluation, 3/11/10 H IEP dated 5/4/10, 11 pp. I RSA for Individual , 6/7/10 J RSA for dated 6/7/10, 2 pp. K 2009/2010 Class Year End Progress Report, 6/28/10, 1 p. L 2010/2011 Class Full Progress Report, 11/23/10, 5 pp. M Letter from Parent, 11/29/10, 1 p. N Notice of Request for Evaluation, 2 pp. O Evaluation, 2/1/11, 4 pp. P Email from Parent, 2/2/11, 1 p. Q Letter from Doctor, 3/25/11, 1 p. R IEP, 3/25/11, 17 pp. S Evaluation, 11 pp. T Final Notice of Recommendation, 5/2/11, 1 p. U Social History Update, 5/2/11

V IEP, 6/27/11

W 2011/12 Request for Accommodations, 6 pp. X Request for Due Process, 8 pp.