Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: (non-expedited issues) Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: May 18, 2012

June 8, 2012 Actual Record Close Date: June 19, 2012 (for non-expedited case only) Hearing Officer: Jean Marie Brescia, Esq. Case No.: (non-expedited issues)

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

Attorney — Student

For the Board of Education: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2012

Attorney — Student

Legal Services — Student

Parents

Director- Coaching — Student

For the Board of Education: — Student

, ASE

Case No.: (non-expedited issues)

On April 16, 2012, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f), in the matter of

M. The parent requested the hearing to challenge: (1) the manifestation determination review (“MDR”) conducted on February 27, 2012; (2) the failure of the Department to convene a timely MDR; (3) the failure of the Department to implement the Individualized Education Program (“IEP”) created by the Committee on Special Education for District (the “CSE”) for on October 19, 2011 recommending that attend a program; (4) the failure of the CSE to conduct an appropriate evaluation of ; (5) the failure of the CSE to develop and implement an appropriate Behavior Intervention Plan (“BIP”) for ; and (6) the failure of the Department to provide with a free appropriate public education. The parent seeks the following relief: (1) a finding that ’s conduct is a manifestation of his disability; (2) an appropriate Functional Behavioral Assessment (“FBA”) and BIP; (3) a P-1 authorization for the remainder of the 2011-2012 school year and for the 2012-2013 school year; and (4) hours of tutoring (Parent’s Ex. E [hearing request]).

The proceeding was bifurcated.^[1] The challenge to the MDR was an expedited disciplinary issue pursuant to 8 N.Y.C.R.R. §201.11(a)(3). This issue was heard and determined pursuant to the timelines set forth in 8 N.Y.C.R.R. §201.11(b). A Findings of Fact and Decision was rendered by this hearing officer on May 17 with respect to the expedited issues set forth in the parent’s hearing request.

This decision addresses the non-expedited issues set forth in the parent’s hearing request. After the conclusion of the resolution period for the non-expedited issues on May 16, a pre-hearing conference was scheduled for, and conducted on, May 18. The hearing was conducted and completed on June 8. At the hearing, the Department provided to the parent a P-1 letter entitling the parent to place at an approved non-public for the 2012-2013 school year at Department of Education expense (trans. 193). As a result, the claims for relief remaining in this proceeding is the parent’s request for hours of tutoring as compensatory services to address the Department’s denial

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of a free appropriate public education to during the 2011-2012 school year and for an appropriate FBA and BIP.

The record was closed on June 19 upon the receipt by the hearing officer of the transcript of the hearing, and the parties were so informed by the hearing officer. The compliance date for the submission of this final written decision is July 2. Appended to the record are a list of exhibits received in evidence and the names of the persons who appeared at the hearing.

is a year-old young man. His disability is classified, for the purposes of the IDEA, as . This classification is not in dispute. He attends an integrated co-teaching class at . Undisputed Facts

The following facts are not in dispute. has attended a grade integrated co-teaching class at at all times relevant to this proceeding (see trans. 181). At the time of the hearing, he was still not enrolled in the class mandated by the October 2011 IEP.

1. Background

grade; when he was in grade, the parent requested that he be evaluated to determine his eligibility for special education (Parent’s Ex. D).^[2] At the time of the evaluation (September 2009), was functioning at the level in reading and math (Parent’s Ex. D at p. 3). The school performing the evaluation noted that was “in need of ” (Parent’s Ex. D at p. 5).

The CSE convened on October 23, 2010 for an annual review of ’s IEP (Parent’s Ex. C). Recent testing on the DRAs had indicated that , as a grader, was performing on the level in reading and math. The CSE recommended that continue to attend an integrated co-teaching class.

2 Parent’s Exhibits A through D are poor copies of documents. However, these are documents that were provided to the parent by school, and the parent offered in evidence the best copies that were available to her. Since I was able to read these documents, I accepted them in evidence, finding that the parent’s due process concerns in presenting her case with the evidence available to her outweighed the difficulties in reading the documents.

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, a school psychologist at , conducted an FBA of on October 17, 2011 (Department Ex. 1). Ms. noted in the FBA that “requires . He is sometimes in class” (Department Ex. 1 at p. 1). If “perceives a task as ,” he will “engage in ” (id). Ms. observed that the academic work in the classroom was “grades above that which is capable of completing independently” and that the “[c]lass size is too large for [him] to get the he needs to be in school” (id). The FBA suggests that the following “interventions” “be planned:” counseling, a class, a “strictly enforced” BIP; and ; and a “ ” (Department Ex. 1 at pp. 1-2). Ms. also prepared a BIP for on the same day that she conducted the FBA (Department Ex. 1 at p. 3). The BIP does not separately include intervention strategies to address ’s behaviors.

The CSE convened on October 19, 2011, to create the most recent IEP for (Department Ex. 2).^[3] The parent participated in this meeting by telephone (Parent’s Ex. F). The CSE recommended that attend a special class in a community school for ELA, Math, social studies and science and that begin this program on November 3. The IEP also recommends that receive ( minute individual session per week) (Department Ex. 2 at p. 9). The parent testified that she had wanted to be in such a class because she “was looking for help” for because he was “ years in school” (trans. 182). The parent had told school personnel starting when was in grade that the class was in was for him (trans. 182, 184). The parent also explained that she was concerned about ’s because when he was , he was (trans. 187).

The IEP states that “ can be very in class . . . . He is to start his work and is . It is felt that will thrive in a class setting, both and ” (Department Ex. 2 at p. 1). Furthermore, the team rejected continued placement in the integrated co-teaching class because was “ in Reading, Math and Writing” (which, according to the IEP, fostered his with learning and school and his ) and “his his learning” (Department Ex. 2 at pp. 2, 15). While the IEP notes

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that had “a history of in school and has been numerous ,” that he needed a BIP, and that his “ ,” the IEP does not include a BIP (Department Ex. 2 at pp. 3, 15).

The Department has not transferred to a class (trans. 182). He is not receiving the mandated by the IEP (trans. 184-185). Positions of the Parties

The Department submitted in evidence an unsigned “Final Notice of Recommendation” dated February 29, 2012 (Department Ex. 3). This unsigned document dated February 29 includes the following statement: “Mother wants child to start new school in September.” The parent testified that she never received this letter and never expressed to school personnel that she wanted to wait until September to implement the October 2011 IEP (trans. 190).^[4]

The parent testified that tutoring would help because it would be “a different setting” (trans. 187-188). Dr. , the director of Coaching, testified that she had a master’s degree in special education and a doctorate degree in education (trans. 201). provides “ tutorial support to students who have special education learning needs” that is “very much individualized according to the needs of each student” (trans. 199). Students are monitored throughout the tutoring process to ensure that they are progressing (trans. 210-211). The tutors are certified special education teachers (trans. 203). charges $110.00 per hour for tutoring (trans. 203-204).

Dr. assessed on May 31 using the WRAT and the TOWL and found that was functioning at an level for reading, a grade level for spelling, a grade level for math, and a level in written language skills (Parent’s Ex. G; trans. 202). Dr. opined that needed “specific instruction in reading and spelling” and “structured, instruction to build his mathematics and written language skills.” She recommended that he receive “intensive using the Orton-Gillingham technique as well as specific tools to build his mathematics and written language skills” (Parent’s Ex. G [emphasis in original]; see also

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trans. 207). Dr. opined that “is at risk of further and will continue to ” unless he receives support using research-based instruction (trans. 203, 205). Dr. recommended hours per week of , for a total of hours, in order to “cover all of these skill areas and really help to see a very momentum and success with ” (trans. 205, 208-209). could engage in more than hours per week of over the summer at , which, according to Dr. “would be ideal . . . to ” (trans. 207-208).

The Department contends that is not entitled to hours of private because it is “excessive to address his needs and to fill in the that he may be missing until he goes into a setting” and because he “had been offered through the school to come ” and “didn’t avail himself of that opportunity” (trans. 194, 213). The Department indicated that, in the alternative to hours of , it would be appropriate and it would provide hours of to through a P-4 letter (trans. 195).

The parent contends that the Department did not present any evidence with respect to offering opportunities to for “extra” help. Furthermore, argues the parent, the Department has not implemented any aspect of the October 2011 IEP, has , and has provided with an insufficient BIP that does not would address his (trans. 214-216).

Findings of Fact and Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d) (emphasis added).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP Case No.: (non-expedited issues)

reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007.

A. The Parent’s Claim for Compensatory Services The parent is seeking compensatory services for in the form of tutoring for the failure of the Department ever to implement the October 2011 IEP.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Application of the New York City Department of Education, Appeal No. 11-004. Compensatory educational relief may be awarded to a student with a disability who remains eligible for services under the IDEA. Application of the New York City Department of Education, Appeal No. 11-132. Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington Board of Education, 546 F. 3d 111, 123 (2nd Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option . . . to make up for” a denial of a free appropriate public education). Compensatory “additional services” have been awarded 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.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19.

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In this proceeding, there can be no dispute that the Department failed to offer a free appropriate public education because it has failed to implement the October 2011 IEP. Providing special educational services “in conformity with a written IEP” is a component of a free appropriate public education. 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). Furthermore, school districts are required to implement students’ IEPs without delay. See 8 N.Y.C.R.R. §200.4(e)(1)(i), 8 N.Y.C.R.R. §200.4(e)(7) (school districts are required to provide special education and related services “in accordance with the student’s IEP” and “there may be no delay in implementing a student’s IEP ”).

As a result of the failure to place in a , the Department did not provide with the special educational programs and services to which he was entitled under the IDEA for nearly the entirety of the 2011-2012 school year. Since the purpose of a compensatory educational services award is to remedy a denial of a free appropriate public education, such an award “should aim to place the student in the position [he] would have been in had the district complied with its obligations.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19 (internal citations omitted). In essence, has a school year’s worth of academic instruction because, as clearly indicated by the October 2011 IEP, the ICT class was not an appropriate educational setting for him. As recognized by the CSE, due to his and with his learning, could not learn in this setting. The Department proposes that—if compensatory services were to be provided to — hours of tutoring be provided to as a mechanism for remedying any deprivation of services may have experienced. This is inadequate because it does not account for nearly a school year of ’s enrollment in an inappropriate setting.

A correspondence of hours missed to hours compensated is not required in formulating a compensatory services remedy. The record in this proceeding, particularly Dr. ’s testimony concerning ’s and the methodologies appropriate to address those delays, supports the compensatory remedy of the hours of recommended by Dr. for the deprivation of a free appropriate public education to during this current school year. should start the immediately— as in today! He does not have a moment to waste in beginning to his . Case No.: (non-expedited issues)

C. Nickerson Relief

With respect to the Department’s provision of the P-1 letter, it is important to note that a P-1 letter is an automatic remedy to which a student is entitled by operation of the Jose P. consent decree. In New York City, the remedy for a violation of the timeliness requirements of the IDEA is the issuance of a “Nickerson” or P-1 letter pursuant to the settlement agreement in Jose P. See Jose P. v. Ambach, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982)[memorandum and order incorporating special master’s report]); Jose P. v. Ambach, Order dated July 8, 1982; see, e.g., Application of the New York City Department of Education, Appeal No. 10-115. A P-1 letter does not constitute “compensatory services;” it is, as described above, an automatic and “blanket” remedy. Compensatory education, on the other hand, is a remedy specifically tailored to provide a student with special education services to “make up for” missed services. Since the P-1 letter was issued after March 15, the P-1 letter will be effective, as per the Jose P. order, through June 30, 2013.

C. ’s FBA and BIP

The CSE was ordered, pursuant to the regulations pertaining to MDR determinations, in the May 17 Findings of Fact and Decision to review and to modify, if appropriate, ’s FBA and BIP. The parent, in her hearing request, challenges the appropriateness of ’s BIP. In order to consider a challenge to a BIP, one must start with an analysis of the underlying FBA.

Section 200.1(r) of the Commissioner’s Regulations define an FBA as the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment . . . and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 N.Y.C.R.R. §200.1(r). Case No.: (non-expedited issues)

The regulations describe the required sources of information and the content of an FBA:

The FBA shall, as appropriate, be based on multiple sources of data including, but not limited to, information obtained from direct observation of the student, information from the student, the student’s teacher(s) and/or related service provider(s), a review of available data and information from the student’s record and other sources including any relevant information provided by the student’s parent. The FBA shall not be based solely on the student’s history of presenting problem behaviors.

The FBA shall provide a baseline of the student’s problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day and include the information required in section 200.1(r) . . . in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement. 8 N.Y.C.R.R. §200.22(a)(2) & (3).

Based on the results of the FBA, the CSE then designs a BIP to manage the problem behaviors. 8 N.Y.C.R.R. § 200.22(b). The BIP must include a “baseline measure of the problem behavior; . . . intervention strategies; . . . [and] a schedule to measure the effectiveness of the interventions . . . .” 8 N.Y.C.R.R. § 200.22(b)(4). BIPs must contain “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences . . . .” 8 N.Y.C.R.R. § 200.22(b)(4). “Merely describing and listing several goals for improvement are not adequate substitutes for the FBA and BIP.” R.K. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 32248 at p. 54 (E.D.N.Y. Jan. 21, 2011); R.R. and M.E. v. New York City Department of Education, 785 F. Supp. 2d 28, 41 (S.D.N.Y. 2011) (FBA must include specific data on frequency, duration and intensity of behavior).

The FBA and BIP created for in October 2011 are not the detailed and descriptive documents anticipated by the regulations and do not include the required components such as reliance upon multiple sources of data; clear identification of the problem behaviors; a baseline of the frequency, duration and intensity of ’s problem behaviors; identification of antecedent behaviors; intervention strategies to alter Case No.: (non-expedited issues)

antecedent events; intervention strategies to teach alternative and adaptive behaviors; and intervention strategies to provide consequences. As a result, the CSE should conduct an FBA of, and create a BIP for, that conforms to the above regulations. The CSE may, if it so desires, conduct the FBA when returns to school in September in order for his eighth grade teachers to have input in the FBA and BIP. See S.H. v. Eastchester Union Free School District, 2011 U.S. Dist. LEXIS 141091 (S.D.N.Y. Dec. 8, 2011).

D. Evaluations

The parent, in her hearing request, also challenges the alleged failure of the CSE to conduct an appropriate evaluation of . The parties did not litigate this issue. However, a hearing officer has independent authority to order school districts to conduct evaluations. 8 N.Y.C.R.R. §§200.5(g)(2), 200.5(j)(3)(viii). As a result, since the last evaluation of consisted of the September 2009 psychoeducational evaluation, I shall direct the CSE to conduct psychological and educational evaluations of at the beginning of his grade year.

For all of the above reasons, it is ordered that:

1. The P-1 letter issued by the Department of Education shall be valid through and including June 30, 2013.

2. The Department of Education shall immediately implement the October 19, 2011 IEP by placing in an appropriate program and implement all components of the IEP, including the related service of counseling.

3. The Department of Education shall pay for tutoring for at Coaching for hours at the rate of $110.00 per hour. This tutoring shall commence immediately and shall be completed before June 30, 2013.

4. The CSE shall, by September 30, 2012, conduct an FBA and create a BIP for that comply with the provisions of 8 N.Y.C.R.R. § 200.22.

5. The CSE shall, by September 30, 2012, and educational evaluations of . Dated: June 21, 2012 Case No.: (non-expedited issues)

___________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JMB:jj Case No.: (non-expedited issues)

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.

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DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A IEP, 10/19/12, 13 pp. B BIP, 10/17/12, 1 p. C IEP, 10/21/12, 10 pp. D Psycho-Educational Report, 9/16/09, 5 pp. E Hearing Request, 4/12/12, 3 pp.

DEPARTMENT OF EDUCATION

1 FBA/BIP, 10/17/11, 3 pp. 2 IEP, 10/19/11, 15 pp. 3 FNR, 2/29/12, 1 p.

Footnotes

[1] See State Education Department Memorandum, Changes in the Impartial Hearing Reporting System, August 2011. In addition, such bifurcation was as per the instructions of the New York City Department of Education Impartial Hearing Office.

[2] The 2011-2012 School Year

[3] The parent submitted in evidence a copy of the IEP provided to the parent by the CSE (Parent’s Ex. A). This document was admitted in evidence because it consists of thirteen pages. It does not include the IEP progress report included at pages 4 through 8 of Department Ex. 2. In addition, Department Ex. 2 has a check mark “yes” in the box indicating that has a BIP (Department Ex. 2 at p. 14); Parent’s Ex. A has a check mark in the “no” box (Parent’s Ex. A at p. 11).

[4] While hearsay is admissible in this proceeding, and as a result the document is admissible, hearing officers must consider the reliability of a document and its contents in determining the weight to accord to that document and its contents. Here, I gave no weight to the document and its contents in this proceeding. It is unsigned and dated more than four months after the IEP was created.