New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number:

NYS Case Identifier Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: 5-21-12

6-26-12

Record Close: 7-12-12

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 21, 2012

Attorney — Student

Mother — Student

Student

DOE Representative — DOE

Principal, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 26, 2012

Attorney — Student

Parents

Student

DOE Representative — DOE

School (Via Telephone) — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is a -year-old student classified as and recommended for special education teacher support services (SETSS) in grade and for an integrated teaching class (ICT) for her placement in the 2011-2012 school year. The parent, ( ) disagreed with the recommendation and placement as not providing recommended SETSS and denying her child a free appropriate public education (FAPE), and brought this hearing seeking placement of the student in a school program to provide the needed services. The district argued that she had been provided FAPE and that it ad corrected any problems by providing SETSS in 2012. The hearing was convened on May 21 and June 26, 2012. An extension of the compliance date requested by the district was granted and entered into evidence as IHO Exhibit II.^[1] The record was closed upon receipt of the transcript on July 12, 2012.

DISTRICT CASE

, Principal at the ( School), testified that was a student at the school. She described a meeting in March 2012 concerning the possible transfer of to School. She explained that she contacted the principal, and they both thought transfer was possible, but were told by central enrollment authorities that was not eligible. Tr. 54-55, 64-67

She testified that she knew nothing about an IEP that had SETSS services on it for September 2011. Her testimony was that there was an ICT program for the child ay the school in September 2011. Tr. 91-92 Ms. stated that she didn’t see the child’s IEP at the beginning of the school year, as she was out on until October 2011; she saw it for the first time in February 2012. She saw it as a result of the annual review held in January 2012, which changed program to add SETSS. She was informed that the change was made as was , and the parent requested SETSS ay the annual review meeting. Tr. 57-58, 62, 72 She did not participate in the meeting and she conceded that she did not know what IEP entitled her to prior to February 2012. Tr. 73, 75 She stated that she knew she was saw the out, and the anecdotals of teachers. was classes. Ms. stated that it seemed was , even after being provided SETSS. Tr. 76-77

She also discussed a subsequent complaint made by that wasn’t receiving needed services, and explained that the parent rejected a P-4 letter authorizing three periods of SETSS services for . She did not know the office to which the complaint was directed. Tr. 84-86, 94 was with the child’s outcome, and explained that she wanted hours of SETSS for to be at the school. Tr. 85088 The principal at indicated to her that they had a spec for , but a principal-to-principal transfer was not possible. There was no explanation offered as t why it was not allowed. Tr. 89

,a , testified that she completed initial evaluation in the 2010-2011 school year. She was also present at the IEP meeting in April 2011, as both and district . Tr. 121-122 was classified as , and was going to get special education teacher support services (SETSS) and , individually and in a group, services to begin in May 2011. Tr. 124 There was discussion of whether this would be enough for her as she moved on to school in the following year, and that integrated co-teaching services would be a better fit for her in school. The parent thought it had helped her younger daughter a lot. Tr. 125 The members agreed to reconvene toward the end of the school year to determine what services would be appropriate for September 2011, and a meeting was held on June 17, 2011. She stated that there were revisions to the April 8, 2011 IEP, to change the recommended services from SETSS to ICT services. Tr. 128-131 She testified that she signed a final notice. Tr. 132

When asked where the IEP with a June 17, 2011 date, she stated that the original IEP was on the DOE’s SESIS system, with the revision. The witness was on the telephone and when asked to identify the IEP she was looking at, the witness described an IEP with the April 8, 2011 date and was unable to identify an IEP with a June date. There were three IEPs in evidence, and the IEP she was looking at was congruent although not identical to the IEP submitted by the district as Exhibit 4, with a recommendation of ICT four times, although without the four core subjects. There were three IEPs in evidence, and the witness’s fourth document dated April 8, 2011. Tr. 126, 132-138; Exs. 4, B, IHI She conceded that the IEP that she stated was from June did not have a June date on it. Tr. 144 She testified that , a general education teacher, was at the first meeting in April 2011, but not at the second meeting in June, conceding that the recommendation for an ICT program was made without the presence of a general education teacher. Tr. 145-146

According to the witness, the change of placement was authorized by the parent by the Notice of Deferred Placement, dated June 17, 2011. Asked to describe the change, she stated that the recommendation on the notice was for ICT, and related services of counseling once a week individually and once a week in a group of three. She stated that the document did not actually say what was changed on it. She gave it to the patent after the meeting and it was signed in her presence. Tr. 139-141; Ex. 15

On cross examination, Ms. testified that the April 8, 2011 IEP read that an ICT was considered and rejected as being too restrictive at the time. Tr. 147 Asked for the reason for a second meeting, she said that everyone agreed we would meet again “to discuss the progress” and talk about services for school in September. They also thought a collaborative team teaching (CTT) class2 would probably be more appropriate for her for school. Tr. 148-149 The only change to her program in June 2011 was from SETSS to ICT. Tr. 150

Ms. stated that the parent was given a copy of the IEP from the June 17, 2011 meeting. Asked when, she stated that “we always mail it directly to the parent,” conceding that she did not know and was only repeating general practice. Tr. 153-154 Asked by the hearing officer about assessments of progress from April to June, the witness said they had only reports from the SETSS teacher, Ms. . Ms. did not have a copy of the report, and explained that she spoke to Ms. prior to the IEP meeting; the parent was not present for that discussion. Ms. testified that the report was discussed briefly at the June 17 meeting, although she did not recall what the report said about . Tr. 155-156

, Assistant Principal at , was also scheduled to testify, but the parties stipulated agreed that her testimony would be that the school received the IEP that included a recommendation for the ICT class only and not SETSS, which was Exhibit 4, and it was that IEP that was implemented at the school. Tr. 159-160

PARENT CASE

parent, testified that she had asked for an IEP for since the . had been given the equivalent of SETSS in previous years, including in grade. She was never given CTT because

2 The terms integrated co-teaching (ICT) and collaborative team teaching (CTT) were used interchangeably by the witnesses, and they are included as used during testimony. they didn’t offer it for her grade. They took it away for grade; Ms. explained to her that she couldn’t have CTT and SETSS at the same time. At the meeting in April 8, 2011, she spoke to Ms. and told her that was to continue to receive SETSS which was the only thing that really helped her. Ms. explained to her that was to be getting the CTT program, and she was going to be getting SETSS, as well as the sessions; that nothing would change. There was “no conversation,” just Ms. repeating that would be getting the same thing that she was getting with the exception that she would be going into the CTT class. Tr. 165-170, 187-188

She stated that she didn’t believe should have an ICT class in April 2011, as she had always been in a regular class, receiving the SETSS and doing very well. Tr. 174 identified the IEP that included the SETSS recommendation and acknowledged that it was given to her, not that she had read through it. She explained that she went to the school, which is what she always did, and they gave her the IEP and explained it to her. This was sometime in May 2011. She noted that the IEP stated that ICT was rejected. She said that the CTT was not discussed at the meeting, but discussed afterwards. She was told that this IEP would follow her into school. Tr. 170-174, 203; Ex. B On further questioning, she identified IHO Exhibit I as the April 8, 2011 IEP she received from the school in February 2012, after she said she couldn’t find her original document. She stated she never received the document identified as Exhibit 4. Tr. 203 stated that she didn’t remember any meeting in June 2011. Tr. 174 She stated that she had an appointment in the school concerning , and was told that Ms. wanted to see her, Ms. told her then was to be in a CTT class as the recommendation, and she would still get her . asked about the SETSS, and Ms. told her it was going to stay the same, that would be receiving her SETSS. This was not part of an IEP meeting in June 2011. She stated that she never received a copy of the document and she never received a Final Notice concerning . Tr. 174-181; Ex. 15

When entered school, she was placed in CTT and that was it. In October 2011, called and asked about the , and was begun at that time. Tr. 182-183 explained that her main focus was the SETSS, and why hadn’t received the SETSS all that tine. She contacted Ms. , and when she reached her said she now wanted SETSS times a week for because she had not classes. SETSS were resumed for , in the z week of March 2012 and continuing to the present. She , which attributed to the absence of a SETSS teacher who would help . Tr. 184-185 acknowledged a meeting in January 2012 that promised to reinstate the SETSS services, but insisted that services were not provided until March 2012. Tr. 194 She stated that she was asking that her to School, confirming that she had talked with the school principal and offered a letter confirming the school’s ability to accept . Tr. 206-209; Ex. A

FINDINGS

A central purpose of the Individuals with Disabilities Education Act (IDEA) 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); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank

G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). The burden of proof is on the school district to show that it has provided a FAPE to the student. NY Educ. Law § 4404(1)(c); Schaffer v. Weast, 126 S. Ct. 528, 531 (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(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. 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. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child’s needs, provides for the use of appropriate special education services to address those needs, and establishes annual goals and short term instructional objectives related to the child’s educational deficits. Application of a Child with a Disability, Appeal No. 98-71; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

In this case, the district failed to sustain its burden that it had provided FAPE to .

While there was considerable confusion on the part of all parties as to the IEP from the April 2011 meeting, there was no dispute that there was no IEP with a date reflecting a June 2011 meeting. The absence of an IEP by itself constitutes a denial of FAPE. The evidence also supported the conclusion that there was no such meeting, despite Ms. testimony to the contrary. Documentary evidence confirmed the parent’s testimony that the Notice of Deferred Placement was signed after she was called into Ms. office. Ex. 15 The district introduced an attendance page that had no date on it. Ex. 5 Additionally, given Ms. explanation that further discussion of progress was the reason for a second meeting, I note the absence of any information concerning the child’s performance, despite Ms. account of a discussion with the SETSS teacher prior to the IEP meeting. The parent was not present for the discussion and Ms. could not recall what the SETSS teacher reported. That there is no record of such a meeting provides sufficient proof that was denied the opportunity to participate meaningfully in the development of an IEP for her daughter’s schooling.

Assuming arguendo there was a meeting, the DOE also failed to meet adequate standards. According to Ms. , there was no general education teacher present, even though the child was in general education and allegedly recommended for an ICT class, still in general education. I note again the absence of evaluations or assessment of progress, despite the reason advanced for the meeting. Finally, the notice the parent was asked to sign, while reflecting an ICT class, did not in fact mention any discontinuance of the SETSS the child was getting.

The district representative argued that the school had acted appropriately given the IEP it was sent by the . I agree that school personnel at the were misinformed by the CSE concerning services to which the child was entitled. The district argument, however, misunderstands the law and the values underlying the law. Nor does the excuse justify the district’s failure to provide an IEP for . The intramural wrangling did not alter the fact that did not get the SETSS services to which she was entitled.

For all the foregoing, I find the district failed to provide a FAPE for .

In regard to remedy, the parent’s request was for transfer to School. As both principals agreed to the transfer, thinking it might help the student, and there was no reason for denial of the transfer provided, I will order that she should be transferred. Ex. A I will also be ordering SETSS to be included on her IEP to ensure it is in place for her 2012-2013 school year. Finally, I am ordering a bank of SETSS services for as compensatory remedy for the services she was not provided during the 2011-2012 school year.

ORDER

1. The DOE shall transfer School for September 2012,

2. shall continue to receive special education teacher support services (SETSS), which shall be entered on IEP for the 2012-2013 school year.

3. The DOE shall provide a bank of 100 hours of special education tutoring services for . The DOE shall issue a related services authorization or other authorization as may be needed to provide up to 100 hours of services, which shall be paid for by the DOE.

Services provided under this paragraph shall be in addition to the services provided pursuant to Paragraph 2 of this Order. The bank of services shall be effective immediately and may be drawn upon for the student through the 2012-2013 school year, until June 30, 2013.

IT IS SO ORDERED. Dated: July 19, 2012

_____________________________

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 Evaluation 4/4/11, 5 pages

2 IEP, 2/10/12, 15 pages

3 Attendance Page, IEP Meeting 1/27/12, 1 page

4 IEP, 4/8/11, 10 pages

5 Attendance Page, fax date 6/24/11, 1 page

6 Related Service Authorization, SETSS, 2/29/12, 2 pages

7 Request for Impartial Hearing, undated, 1 page

8 Student Report Card, undated, 1 page

9 Student Transcript Printout, 5/14/12, 1 page

10 Letter, 1/31/12, 1 page

11 Schedule, Term 1, 2011-2012, 1 page

12 Schedule, Term 2, 2011-2012, 1 page

13 Letter, , February 2012, 2 pages

14 Application for Admission to School, 12/2/11, 2 pages

15 Notice of Deferred Placement, 6/17/11, 1 page

PARENT EXHIBITS

A Letter, School, 5/15/12, 1 page

B IEP, 4/8/11, 11 pages

IMPARTIAL HEARING OFFICER EXHIBITS

I IEP, 4/8/11, 8 pages

II Extension decision, 6/21/12, 1 page

Footnotes

[1] The transcript incorrectly reads “That’s the same thing as turning in a request.” The actual words stated were, “That’s not the same thing as joining in a request.” Tr. 100