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: March 2, 2012

June 5, 2012 Actual Record Close Date: June 8, 2012 Hearing Officer: Laura Fieber, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2012

Parents

Parents

Attorney — Student

For the Board of Education: — Student

Attorney — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2012

Parents

Parents

Attorney — Student

For the Board of Education: — Student

Director of Student Services — Student

On February 29, 2012, the parents of . (“Student”) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 United States Code, Section 1415 (f)(1) claiming a denial of a free appropriate public education

(FAPE) for the 2011-2012 school year. I received an appointment as Impartial Hearing Officer on March 1st. A pendency hearing took place on March 2, 2012, followed by a hearing on the merits on June 5th. Lists of documents received in evidence and individuals who attended the hearings are attached to this decision. Esq. and appeared for the New York City Department of Education (DOE); the Student’s parents appeared with counsel, Esq.

I. Background

This case concerns a student, classified as , whose parents brought this action to continue the services of a paraprofessional to support him in his educational setting.

II. March 2, 2012 Pendency Hearing

The parties produced a series of IEPs in support of their positions. The first IEP is dated January 29, 2010. DOE Exhibit 2. It recommended, in pertinent part, a tenmonth program of five sessions per week of special education teacher support services (SETSS) in a group of up to , and related services of ) for thirty minutes once a week in the classroom and once a week in a separate location; and therapy for thirty minutes three times per week in a group of in a separate location.

The next IEP is dated November 17, 2011. DOE Ex. 1. It recommended, in pertinent part, a ten-month program in a special class, and related services of speech and language therapy for thirty minutes two times a week in a group of in the general education classroom, and one time per week in a group of in a separate location therapy room; and for thirty minutes once a week in a group of in the general education classroom, and once a week in a group of in a separate location TBD. The projected date of initiation was November 28, 2011. The parents did not accept this recommendation.

The next IEP is dated December 16, 2011. Parents Ex. B. It recommended, in pertinent part, a ten-month program of five sessions per week of SETSS, supplementary services of a temporary full-time paraprofessional for additional support in the general education classroom, and related services of for thirty minutes one time per week in a group of in a separate location therapy room; and OT for thirty minutes one time per week in a group of in the general education classroom, and one time per week in a group of in a separate location TBD. The projected date of initiation of the IEP was January 3, 2012. The end date for the paraprofessional was March 3, 2012. The DOE issued a final notice of recommendation (FNR) for this program, which the parent signed on December 23, 2011. DOE Ex. 3.

The last IEP was dated February 29, 2012, but not available for submission. It purportedly recommended removal of the paraprofessional. Position of the DOE

The DOE maintained that the January 29, 2010 IEP was the last agreed upon placement for the purposes of establishing the Student’s pendency. Because the parties agreed that there would be a limitation of two months on the services of the paraprofessional, the law does not support the parents’ position that temporary services provided by the December 16, 2011 IEP would constitute a pendency placement. See Application of a Student with a Disability, Appeal No. 08-107.

It submitted a series of emails that Mr. and exchanged between December 20, 2011 and December 22, 2011, with regard to the December 16th IEP. DOE Ex. 4. The first email reflected an agreement that resulted between the parents and the DOE for the Student to remain in a general education class with SETSS, with related services and a 1:1 aide, pending results of evaluations, convening of a Committee on Special Education (CSE) review, and development of an IEP for the balance of the school year. DOE Ex. 4-

2. The next reflected Mr. disagreement with this interpretation of the agreement, indicating that there was to be a limitation of two months to the services of the paraprofessional. DOE Ex. 4-1. Mr. responded that he agreed that the aide would remain in place for two months, and that an end date could be placed on the IEP to that effect. Mr. further explained that the parent had requested independent psychoeducational and central auditory processing evaluations. They were supposed to be completed by when the CSE was supposed to convene to develop a new IEP. Therefore, they did not fulfill their part of the agreement to have everything completed within the two-month period. Position of the Parents

The parents maintained that the December 16, 2011 IEP was the last agreed upon placement for the purposes of establishing the Student’s pendency. Mr. argued that the parents made every effort to obtain the independent evaluations. Because they had to hire the clinicians off a DOE list, they were delayed in receiving the final reports. Therefore, they could not meet the end date of March 3rd to obtain the evaluations, provide them to the DOE and convene a CSE to determine whether the services of the paraprofessional worked for the Student.

They submitted a series of emails that Mr. and exchanged between February 16, 2012 and February 22, 2012, with regard to the understanding the parties had about convening the CSE and the duration of the paraprofessional’s services. Mr. Fein urged the CSE to convene before March 2nd, whether or not they had the final reports from the evaluations. Mr. responded that they had agreed to convene if they had received all the reports before March 3rd. He further noted that the paraprofessional would be terminated on March 3rd. Mr. then indicated that “while the parents initially agreed to a two month trial period on the paraprofessional, it was always understood by all participants at the CSE… that the CSE would reconvene prior to March 2nd in order to be updated on the status of the reports, evaluations and efficacy of the paraprofessional.

In a letter brief in response to the DOE’s case law, Mr. argued that the present case is distinguishable. In the cited case, the parents were attempting to manipulate improperly the pendency rules and there was no intention of extending the program past the summer session. These are not the case in this hearing.

Findings of Fact

The issue is whether the agreement between the parents and school district to provide the Student a paraprofessional to support him in his program of general education with SETSS and related services constitutes the Student’s pendency placement. The agreement came about because the DOE had recommended a placement at its November 17th IEP meeting that was more restrictive that what the parents would accept. At a meeting on December 16th, the parties agreed to modify what was the Student’s last agreed upon placement, to include, in pertinent part, the services of a paraprofessional. A time limit of two months was placed on the agreement to enable the parent to obtain the independent evaluations they had requested, and then for the CSE to convene to make its recommendation. Unlike the case cited by the DOE, the parties had to have contemplated the possibility that the paraprofessional might continue through the balance of the school year, depending on how the results of the evaluations and opinions of the participants at CSE review played out. To believe otherwise would not be rational. Moreover, this is not a situation where the parties have entered into a stipulation that specifically precluded its application as pendency placement. The Student has already spent three months with the paraprofessional, and ostensibly is settled in his program. Pendency is about allowing the Student to stay put in a program that began with the agreement of the parties, rather than to allow the unilaterally withdrawal of his services once litigation over the issue has begun. As case law has shown, pendency is about the student. With that in mind, I find that the Student’s pendency placement is the program described in the December 16, 2011 IEP, including the services of the paraprofessional.

Order

From March 1, 2012, until such time as the issues raised in this impartial hearing complaint are resolved by final decision, or the parties agree otherwise, the student’s pendency placement shall be the program described in his December 16, 2011 IEP, including the services of the paraprofessional.

III. June 5, 2012 Hearing Position of the Parties

Mr. stated that the DOE has been waiting for the independent auditory processing and psychological evaluations obtained by the parents in order to determine whether to continue the services of the paraprofessional. Since the parent has finally provided them, the DOE would withdraw any objection to the Student retaining his paraprofessional through the end of the year, provided that the Committee on Special Education has the opportunity to convene a review to consider this new information and make its recommendations. Mr. stated that the parents would not oppose the request if ordered.

Findings of Fact

The DOE’s waiver of any further objection to the provision of the paraprofessional to support the Student in his public school placement through the end of the 2011-2012 school year, addressed the core issue of the parents’ due process complaint. However, because the parents have produced new evaluations that were not available at the time of the most recent IEP review, the case must be remanded to the CSE to consider their results and make its recommendations.

Order

I hereby order that this case be remanded to the CSE for it to convene a legally constituted review on or by June 14, 2011, at which time it will consider the results of the newly obtained audio processing and , and anything further that may inform the issues raised by the parents in their due process complaint or issues pertinent to the Student’s educational plan, and make its recommendations accordingly. Dated: June 12, 2012

_____________________________

LAURA FIEBER, ESQ.

Impartial Hearing Officer

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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 Impartial Hearing Request, 2/29/12, 3 PP. B IEP, 12/16/11, 20 PP. C Emails Between , Various Dates, 4 pp. D Statement (Substitute Paraprofessional), 2/28/12, 1 p. E Statement by (General Education Teacher), Undated, 1 p. F ’s Session Noted –SETSS , Various Dates, 2 pp.

DEPARTMENT OF EDUCATION

1 IEP, 11/17/11, 19 pp. 2 IEP, 1/29/11, 21 pp. 3, FNR, 12/21/11, 2 pp. 4, Emails Between CFN 212 Re: Temporary

Paraprofessional, Various Dates, 4 pp. 5 Omitted 6 Resolution Session Report, 3/15/12, 3 pp. 7 Omitted 8 IEP, 12/16/11, 21 pp. 9 Interim Order on Pendency, 3/2/12, 10 pp. 10 Omitted 11 Assignment of Paraprofessional, 3/26/12, 1 p. 12 Emails Between CFN 212, 12/20/11-2/16/11, 5 pp. 13 Student Progress Report, 11/16/11, 2 pp. 14, Evaluation, 11/17/11, 5 pp. 15 Substitute Paraprofessional Report, 2/28/12, 1 p. 16 SETSS Session Notes, 11/15/11, 3 pp. 17 Teacher Reports, Undated, 1 p.