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: January 17, 2012

January 18, 2012

Record Close Date: March 27, 2012

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012

Attorney — Student

Parents

Attorney — DOE

CFN Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2012

Attorney — Student

Attorney — Student

School Psychologist (via telephone) — Student

School Psychologist (via telephone) — Student

Special Education Teacher (via telephone) — Student

Parent (via telephone) — Student

DOE Attorney — DOE

OFN Representative (via telephone) — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parent as Parent and the student will be referred to as Student. Parent’s Position

In the initial complaint notice, dated October 19, 2011 (Ex. 2), the Parent requested an impartial hearing to change the Student’s placement to fit the Individualized Education Program (“IEP”) requirements. A subsequent amended complaint notice was filed on November 17, 2011 which amplifies the original (Ex. 1). The Parent’s position is that the program and goals are inappropriate and that his evaluations are neither current nor comprehensive. (TR. 2, P. 16) The Student has but has . (TR. 2, P. 19) The Student’s has been reduced. (Ex. 12) The Parents are requesting make up services in reading, special education, and transition. (TR. 2, P. 20) The Parents also claim that the District did not follow the Commissioner’s Regulations regarding convening a resolution session within 15 days of the hearing request. (TR.2, P. 20-21) The Parent’s Attorney said the reason the Parent did not return the consent notice sooner is because the District was closed for the holidays, and said the District has not yet contacted the Parent to arrange for the evaluations. (TR. 2, P. 21) The Parent has been visiting private school but the Attorney said the District has not informed them if there is a private school placement available. (TR. 2, P. 22) The Parent has not asked for pendency. District’s Position

The District has conceded Free Appropriate Public Education (“FAPE”) “because we did not provide a timely placement for the Student. . .” (TR. 2, P. 6) However, the District maintains they did try in other ways to provide remedies to the Student. The Attorney stated the District offered a Final Notice of Recommendation (“FNR”) for a District 75 placement on November 21, 2011 and gave the Parent a Nickerson letter on December 15, for the District to pay the Student’s tuition at an approved private school. On December 8, the District sent the Parent a consent notice to have the Student reevaluated by the District or by an District approved independent evaluator, in psychoeducation and assistive technology, and then be given an amended IEP. The Parent did not return the consent form until the beginning of January; in addition, the District has been unable to evaluate the Student because of his frequent absences. The Parent has not investigated the possibility of a private school placement. (TR. 2, PP. 9-11) The Attorney said the Parent rejected the District’s placement on September 27, 2011 and the Parent requested the placement in the community school. (TR. 2, P. 9) The District is opposed to make up services because they were not part of the complaint notice (for the 2010-2011 year) and there was no specific request for the current year.

Background

The Student is . His IEP recommended a placement in a special district school; however, the Student has been going to a with more than 20 students in his class. Before the IEP recommendation, he had been in an inclusion class. He has been of the last term. (TR 2, p. 29). The School Psychologist testified that she didn’t do an evaluation for the Student’s IEP because “the teachers provided enough information.” (TR.2, P. 32) She only observed the Student in his math class for twenty minutes. (TR.2, P.29 and P. 35 See pages 40-46 for her recommendations)

INDIVIDUALS WITH DISABLITIES EDUCATION ACT

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a Committee on Special Education, (“CSE”) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (“SRO”) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

ANALYSIS

Because the District has conceded the denial of FAPE for the 2011-2012 school year, the primary issue is that of the appropriate relief. The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)1983]). The IDEA requires that “An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs. . .” (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).” SRO 02-055

The Parent is requesting the relief of: an order directing annulment of the May 23, 2011 IEP; an order directing provision of an appropriate IEP; an order directing ; an order directing a ”) and, if necessary in light of the , (“ ”) an order directing a ; an order directing an ; an order directing development of current and accurate and appropriate, measurable annual goals, as well as a transition plan to address the student's needs, with appropriate methodologies; an order directing provision of progress reports on IEP goals; an order directing a "Nickerson letter" to provide compensation for a private day school placement (December 15, 2011). The District has conceded all of the above and I endorse this relief.

However, there is an outstanding issue concerning the provision of “additional services”. The Parents argue that I should issue relief in the following areas: transitioning, . They point to the State Review Officers who have awarded "additional services" to students who remain eligible to attend school and have been denied appropriate services. SRO 06-074; see Bd. of Ed. v. Munoz, 16 A.D.3d 1142 (4th Dept.

2005) (upholding award of additional services in SRO 02-030).

According to case law of the Second Circuit, compensatory education is awarded to a student after he or she is no longer eligible to receive IDEIA services if the student has been denied or excluded from educational services for a substantial period of time and that causes a gross violation of the IDEIA. See, Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Application of a Student with a Disability, Appeal No. 10-109. A student is eligible to receive IDEIA services until he or she receives either a local or Regents high school diploma or until the end of the school year he or she turns twenty one years of age. 8 NYCRR 100.5(b)(7](iii), (vi-vii); 8 NYCRR 100.9(e); 8 NYCRR 200.1(zz); 34 C.F.R. § 300.122(a)(3)(i); NY Educ. Law §§ 3202(1), 4401[1], 4402[5][b]; Application of a Student with a Disability, Appeal No. 10109; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 04-100). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (NDNY 1997); see Application of a Student with a Disability, Appeal No. 10-109

I note:

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060; Application of the Bd. of Educ., Appeal No.

06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).

In Application of a Student with a Disability, Appeal No. 09-056, the SRO upheld the IHO’s denial of compensatory services when it was the and of services offered at school that . Again, there is an equitable element to compensatory services. (See SRO 11-027)

In the instant case the school psychologist for P?? @ P. ???, testified on behalf of the Parent and Student. Tr. 31. She first became familiar with the Student in the spring of the 2010-2011 school year. Tr. 29. That was the Student’s at P?? @ P??? and he was about to . Tr. 29, 31. The counselor and inclusion program teacher brought the student to her attention to prepare for the student’s May 24, 2011 IEP meeting. Tr. 29. She participated in the May 24, 2011 IEP meeting for the Student as district representative and . Tr. 29, 30. She said the team recommended the student attend a special class in a D school. Tr. 42. She also testified that the IEP team recommended counseling services for the student for the 2011-2012 school year to help him transition to a new school and to help him with the effects of the academic delays he was experiencing including . Tr. 40-41, 44. In other words, the recommended by the Department of Education (“DOE”) for the 2011-2012 school year would have been appropriate. She did not testify regarding whether the Student needed make up or .

See also the testimony of the Student’s guidance counselor at P??, the Student’s school during the 2010-2011 school year who was called as a witness by the Parents. She participated in the May 24, 2011 IEP meeting for the Student. Tr. 112. The last time she interacted with the Student was in June 2011. Tr. 133. She testified, because she has not worked with him or interacted with him or his current school for the six month period from June 2011 until January 2012, the date of the hearing, it would be impossible for her to know what he currently needs in terms of his educational program. Tr. 134-135. In addition, she did not testify regarding appropriate .

Again, the Student’s special education teacher at P??, the Student’s school during the 2010-2011 school year also testified for the Parents. She participated in the May 24, 2011 IEP meeting for the Student. Tr. 158. She testified that the IEP team’s program recommendation of a class in a D school was appropriate. Tr. 161. She did not testify regarding needed make up or corrective services.

At the Student’s current school he was enrolled in counseling services in accordance with the May 24, 2011 IEP. However, the student did year. Tr. 73, 179, Ex.14. The school did not exclude the student from or deny the student his .I conclude he did not receive his because he

Even if, as the Parents claim, the is directly related to the failures of the District to provide an appropriate program, I do not have sufficient, current, professional evaluative information to appropriately formulate an order of additional or corrective services. There is virtually no documentation of the Student’s current educational needs in the record. In this case, it is the role of the CSE to develop an appropriate program going forward. They will incorporate strategies to address any deficits that the Student exhibits to the evaluators. (SRO 05-041) To assist the CSE in this endeavor I order that the District conduct a that specifically assesses the factors that contribute to the student's and how his . (See Ex. 13)

I also order that the current IEP, dated May 24, 2011 be annulled. I order the District to fully and comprehensively evaluate the Student with new tests, including a reading evaluation, an evaluation, a , and an academic evaluation. I direct the CSE to reconvene as soon as practicable after the evaluations are completed and create a new IEP for the Student and assign an appropriate placement including a period of additional services to assist the Student, if warranted. The Parent testified that she does not want a placement in a District special school, (Tr. P. 172) which would have been the pendency placement, and he has not been enrolled in a private school. So, in the meantime, the Student shall remain at his current school until such time as an public or non-public placement is available. I remind the Student to be present for the evaluations.

So Ordered, Dated: March 28, 2012 Impartial Hearing Office Distribution Dtae: April 9, 2012

_________________________________

MARTIN J. KEHOE III, ESQ.

Impartial Hearing Officer

MK: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 JANUARY 18, 2012

PARENT

1 Amended Demand for Due Process Hearing, 11/17/11, 5 pp. 2 Demand for Due Process Hearing (Parent), 10/19/11, 2 pp. 3 DOE Due Process Response, 11/22/11, 3 pp. 4 IEP, 5/24/11, 11 pp. 11 Nickerson Letter, 12/15/11, 1 p. 12 Jose P, Letter from DOE to Parent, Undated, 1 p 13 Letter from , MD (Psychiatrist), 10/2/11, 1 p. 14 Classroon Observation Report, 5/24/11, 2 pp. 15 Evaluation, 3/12/09, 4 pp. 16 Social Update Format, 11/13/08, 1 p. 17 Couseling Update, 5/8/08, 1 p. 18 Teacher Report for IEP Team, 5/5/08, 3 pp. 19 Evaluation w/cover sheet, 4/29/08, 5 pp. 20 Student Report Card, 6/22/11, 1 p. 21 Student Attendance Report, 5/12/11, 1 p. 22 Request for medical Field Contact, 2/4/10, 1 p. 24 Student Report Card, 1/11/12, 1 p. 25 Student Attendance Report, 1/11/12, 1 p. 26 Student Progress Report, 5/22/11, 2 pp. 27 Intake Interview, 11/30/09, 3 pp. 28 Services Completed, September 2011, 1 p. 29 Services Completed, October 2011, 1 p. 30 Services Completed, November 2011, 1 p. 31 Services Completed, December 2011, 1 p. 32 Services Completed, January 2012, 1 p. 33 Consent for Reevaluation, 1/3/12, 1 p. 37 Records Request, 11/7/11 & 10/11/11, 2 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 10/24/11, 2 pp. 2 Amended Due Process Complaint, 11/17/11, 6 pp. 3 IEP 2011-2012, 5/24/11, 11 pp. 4 Consent for Reevaluation, 12/8/11, 1 p. 5 Assessment Authorization- Evaluation, 12/8/11, 2 pp. 6 Assessment Authorization- Evaluation, 12/8/11, 2 pp. 7 Municipality List of Independent Evaluation-Selected Pages, December 2011,

8 pp. 8 FNR, 11/2211, 1 p. 9 Jose P, Letter from DOE to Parent, Undated, 1 p. 10 Nickerson Letter & List of SED Approved Schools, 12/15/11, 14 pp. 11 Letter from Parent Counsel to DOE, 11/7/11, 1 p. 12 Request for Educational Records, 10/11/11, 1 p. 13 Cover Letter from DOE for Provision of Educational Records, 11/17/11, 1 p. 14 Attendance Records 2011-2012, 1/11/12, 1 p. 15 Completed, September 2011-January 2012, 5 pp. 16 Mid-Year Report Card, 1/11/12, 1 p.

IMPARTIAL HEARING OFFICER

I Parents Affidavit from , 1/18/12, 5 pp.

Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).