NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: September 9, 2011
March 1, 2012
March 12, 2012
March 26, 2012
April 20, 2012
May 3, 2012
May 4, 2012
May 23, 2012 Actual Record Close Date: July 3, 2012 Hearing Officer: Leah L. Murphy, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 9, 2012
Counsel — Student
Parents
District Representative-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 1, 2012
Counsel — Student
Parents
District Representative-CSE — DOE
School Psychologist (via telephone) — DOE
School Social Worker (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 12, 2012
Counsel — Student
Parents
District Representative-CSE — DOE
School Social Worker (via telephone) — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26, 2012
Counsel — Student
District Representative-CSE — DOE
School Social Worker (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 20, 2012
Counsel — Student
Parent (via telephone) — Student
District Representative-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 3, 2012
Counsel — Student
Parents
District Representative-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 4, 2012
Counsel — Student
Parents
Ph.D. (via telephone) — Student
Speech Language Pathologist (via telephone) — Student
District Representative-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2012
Counsel — Student
Parent (via telephone) — Student
Neurologist (via telephone) — Student
Teacher (via telephone) — Student
SETSS (via telephone) — Student
District Representative-CSE — DOE
On June 23, 2011, I was appointed as the Impartial Hearing Officer (“IHO”), after the recusal of the prior IHO, to conduct a hearing pursuant to the Individual with Disabilities in Education Improvement Act (“IDEIA”) of 2004, 20 U.S.C. Section 1415(f)(1). This matter concerns a dispute involving the special education program of T.B., a ten year old learning disabled student. (Parent Exhibit F; Board Exhibit 1)[1] Both parties waived the resolution session and a hearing was scheduled for July 21, 2011. (IHO-I) The parent requested an adjournment of her hearing for the purpose of securing legal counsel. (IHO-I) Ms . amended the request on July 19, 2011, before retaining her current attorney (P-J). The request was amended again with the assistance of counsel by letter dated October 7, 2011. (D-1) The hearing was requested pursuant to the Individuals with Disabilities Education Act (IDEA), Section 1412 (a) (10) (C), its implementing regulations, the New York State Education Law and its implementing regulations, and Section 504 of the Rehabilitation Act and its implementing regulations, alleging that the New York City Department of Education (“DOE”) had failed to provide T.B. with a free appropriate education for the 2008/2009, 2009/2010, 2010/2011 and 2011/2012 school years. The request specifically states as follows:
The DOE has failed to timely and accurately evaluate him in all areas of suspected disability, failed to develop a timely, substantively and procedurally valid IEP, and subjected him to discrimination based upon his disability by, among other things, adopting and applying illegal blanket policies when making decisions about the delivery and administration of special education and related services.
(B-1) The parent seeks a finding that . was denied a free appropriate public education and a remedy which would include equitable services, transportation costs 2 and other items which would result in a “valid IEP.” (D-1)
A pre-hearing conference was held on August 25, 2011. At the pre-hearing conference a preliminary issue of whether the DOE is responsible for the implementation and provision of special education services to a resident student, such as ., who attends
2 Ms. testified that during the two years that she had sought special education services for her son, she had transported him to and from school. (R-516) Ms. also testified that the reimbursement she has received has been for only one direction. (R-517) a charter school outside of the district of residence. The parties also requested that a hearing be held to determine the student’s pendency. I scheduled the pendency hearing for September 9, 2011 where the preliminary issue and .’s pendency placement was resolved. (Pendency Order dated September 18, 2011, amended on March 26, 2012, hereinafter “Pendency Order”). At the pendency hearing, I determined that the DOE is responsible for T.B.’s special education program and the matter proceeded to hearing. (Pendency Order; IHO-I; IHO-II; IHO-III) The DOE also agreed, and I ordered, the DOE to conduct several evaluations to determine .’s functioning: a and evaluation (B-5, B-6; P-L); an evaluation (P-KKK); and a evaluation (P-III). The DOE presented evidence that some of those evaluations were reviewed at a CSE meeting held on January 14, 2012. However, the parent testified that she had no agreement with any of the conduct or recommendations made at the January meeting. (R-509). I found that as the parent had already requested an impartial hearing at the time the January CSE meeting was held, which was in progress, if she did not agree with the recommendations at the January meeting, the IEP generated from that meeting is in effect a nullity and has no legal impact on the parties or program for T.B. (R-513-14)
There have been several adjournments and extensions of the timelines, all requested jointly by the parties. I have granted the requests so that the parties would have a full and fair opportunity to present their respective cases. I found no prejudice to either party, particularly the student, who was in receipt of a pendency placement that the parent had requested during the course of these proceedings. (Pendency Order)
FINDING OF FACTS
The unrebutted evidence in this matter reveals the sad history of a mother’s futile attempts to obtain much needed special education services for her son, The student at the center of this matter is a old child who resides in . (R-335) . attended without any difficulties and in the 2006/2007 school year at his neighborhood school, in (R-
336) Because had a late birthday, it was recommended that he which he did for the 2007/2008 school year. (R-376) In February, 2008, Ms. removed . from and sent him to when the family moved to . (R-337) While at . “ ” but no were raised. (R-338) By the time was ready to begin , the family had moved back to but Ms. decided to place in the ”), a charter school located within the District. (R-338)
It was when began at that it became apparent that he might have a . (R-338) . had trouble .” (R-339) . had not been . (R-369) ’s Title I reading instructor suggested that he may need a full and explained how Ms. should arrange to have that done by her school district. (R-339)
On March 9, 2009, Ms. referred her son to District for a “ evaluation to determine any .” (R-339; P-A) Thereafter, Ms. received a call from . Ms. told Ms. that she would be contacted to schedule the requested evaluation. (R-361) Ms. . received no written documents, including any notice of her due process rights, from the DOE in response to her referral of . (R-362) After Ms. spoke to Ms. , she was not contacted to arrange the evaluation. Her went unanswered until October, 2009 when she was notified by letter that .’s evaluation would be conducted on the 29th of that month – more than seven months after the date . was initially referred. (R-362-63) Ms. . received no notice of her due process rights at that time. (R-364)
The evaluation was conducted by Mr. and Ms. . Mr. conducted the social history (R-365; P- CCC). When Ms. arrived, she signed consent for the evaluations but again she denies receipt of any notice of her rights. (P-EEE; R-364, 367) Ms. conducted the evaluation indicating in her report that was referred by both his parent and school because he was not on grade level. (R-365; P-AAA) The evaluation, dated October 29, 2009, noted that . demonstrated “very ” and “ , , and in .” (P-AAA). In her , Ms. noted that “[o]n questions pertaining to concept of words that rhyme, and for words that have the same beginning sounds and ending sounds, he was not able to fully understand what was being asked of him.” (P-AAA) . also constantly worried about his performance and often questioned when he would be finished. (P-AAA) , simply because it was and Ms. noted the following:
For each and every test question on both the cognitive and the achievement tests, . required constant encouragement to put fourth good effort, required and when there was a visual selection. Also, for almost every test question or task item . required verbal redirection and prompting to sit in the correct position, hold his paper properly, and not to touch other objects or play with his clothing. In addition, most verbal statements needed to be repeated by the examiner along with the given prompting and verbal redirection I order for . to maintain focus and complete the tasks. (P-AAA) After the evaluation was completed, Ms. . did share the results with ’s pediatrician and he diagnosed (R-370)
On an assessment of .’s , he achieved a I.Q. on the WISC-IV of which falls within the range. Ms. opined that .’s extreme impact him significantly stating:
Individual standardized cognitive testing indicates that he is a boy of at least average intellectual potential ability; however his decoding ability for group letter sounds, along with his word recognition skills are significantly delayed. . is in the 2nd grade, and he is only able to read single words at a time. At this time . also lacks motivation because it is so difficult for him to stay focused. A evaluation has also been requested due to processing difficulties that are also affected by very significant .
(P-AAA) Ms. recommended a evaluation. (R-369) While the written social history report states that Ms. . was “informed of her due process rights” she testified that she was not advised about her rights nor did she receive any documents. (R-367)
Upon completion of the evaluations, a Committee on Special Education (“CSE”) meeting was held on November 9, 2009. (R-397; P-B)[3] In addition to Ms. those present at the CSE meeting were Ms. as the District representative and school psychologist; , ’s teacher from and Ms. , the school social worker for District . (P-BR-399) While the IEP signature page references the presence of a special education teacher, Ms. . testified that if she was there, it was not at all obvious as she did not speak. (R-399) Ms. . did not have the reports available to her during the meeting and she recalls no discussion of the reports in evidence as P-AAA and P-CCC. (R-402)
The CSE classified . and recommended five periods per week of special education teacher support services (“SETSS”) which, according to Ms. . would be delivered to her son at . (R-403) No related services were recommended. (P-B) After the meeting, Ms received a request for consent for . to receive the services, but the form indicated that the SETSS would be delivered to . at . (P-C) Ms. . circled the form indicating that she consented to the services being delivered in .’s current school. (P-C;
R-405) Ms. received the consent, the IEP and both evaluations on or about November 12, 2009. She had not seen the evaluations before nor felt as if she had fully participated in the development of ’s IEP. (R-400-402, 407) Upon receipt of the IEP, social history and psych-educational report, Ms. provided those documents to the Principal of Ms. Petes-Bucher. (R-412) The special education coordinator, Ms. , thereafter sent the same documents to the District (“ ) and requested a CSE meeting “as quickly as possible to ensure there is no further delay in services.” (P-VV; R-412) The letter was dated February 9, 2010 (three months after .’s CSE meeting) and he had still not received any special education services from the DOE. (R-412)
Sometime after the CSE meeting held in November a controversy appears to have arisen concerning which agency should be delivering . the services recommended on his IEP – the DOE or District. (R-411; P-HH, P-VV; P-D) Ms. . was told by Mr. in February 2010 that because . attends a charter school in the DOE is not responsible for providing services. (R-422) That statement was not accurate, in fact, the DOE would be responsible for providing the services to Ms. was contacted by Ms. , from , who informed her that a transfer CSE meeting would have to be held. (R-417) At that time, Ms. was correctly informed that the responsibility for provision of services was the DOE by the Assistant Superintendent for Personnel, Ms. agreed to give . ten months of services according to Ms. “as a favor until they figured this whole thing out.” (R-418; P-SS) Thereafter, a “transfer” meeting was held at on March 3, 2010. (R-424) . began receiving resource room services by Mr. , from March 2010 through May 2010. (P-OO; R-430) Mr. became and all resource room services ceased for the remainder of the school year. (R-434) One full year after was referred, he received two months of resource room services, despite the fact that all agreed he was eligible and falling behind.
At the Roosevelt CSE meeting, in addition to recommending resource room five times a week, the Roosevelt CSE recommended a full speech and language evaluation. (R-425; P-P) The evaluation was conducted by a private Pathologist, , who worked for on April 23, 2010. (P-P) Ms. summarized the results of her evaluation as follows:
student who exhibits a . He also exhibited a in the area of development. It should be noted that . had difficulties and . He required and additional time to (P-P) In receptive language skills, . was deemed to be functioning at (age equivalent years old). In expressive language skills, . was also functioning at the (age equivalent years old). (P-P) And in an assessment of articulation, he similarly scored in the percentile. Based upon ’s performance, Ms. recommended that . receive and language services twice a week. (P-P)
Despite Ms. ’s recommendation, her evaluation was not reviewed by any CSE until June 21, 2010 – .’s annual review by the CSE. (P-RR; R-428) The CSE recommended that for the following 2010/2011 school year, . receive resource room five times a week for thirty minute sessions; group speech once a week and individual speech once a week. Ms. . signed consent for such services on September 17, 2010. (P-JJ; R-
434) Despite his mother’s efforts to obtain services for him, . did not receive any resource room services or speech services.[4] (R-436) Ms. . first learned that the services were not being provided in November 2010 when she was informed by the coordinator for special education, Ms. . (R-436, 438; P-U) RCA staff made numerous attempts to contact District and arrange for .’s services but the District never responded. (R-438) Ms. . contacted Ms. on November 18, 2010, the same District representative who arranged for ’s initial CSE review in November 2009. (R-439) Ms. conceded that the responsibility for providing T.B. with services was that of the DOE. Upon Ms. ’s direction, Ms. . wrote another letter to the DOE requesting that T.B. be reevaluated to obtain services. (R-439; P-GG) Ms. informed Ms. . that she would have to seek an initial evaluation, including a evaluation, because the case was “closed.” (P-HH) Ms. received Ms. ’s request on November 23, 2010. (P-HH)
Ms. received no contact whatsoever from the DOE after she requested the reevaluation. She had to go personally to the DOE which she did on January 7, 2011. (R442; P-E) When Ms. . signed consent she did not receive any information or documents from the DOE, including her notice of due process rights. (R-443) A CSE meeting was then scheduled and held on January 14, 2011. (R-447; P-F) At the meeting, in what appears to be an effort to rectify the severe delay in services, the CSE recommended thirty-five hours of SETSS for . because the did not have a special education class. (R-
448; R-464; P-G) After the January meeting, Ms. . received a copy of the IEP from the Ms. but she did not hear from the DOE. (R-450) Ms. was clearly frustrated in the DOE’s failure to provide services to . and she wrote to District 28 on May 9, 2011 to lodge her serious concerns. (R-458; P-T) In her letter, Ms states:
District has been out of compliance with the State regulations for almost four months. This student has not received legally mandated services during this time. He is He is in jeopardy of but worse than that his
(P-T) Ms. was wrong; . had not consistently received any services for more than two years since his mother had first referred him to the CSE. Ms. . still did not hear from the DOE. Ms. spoke to District 28 representative, Ms. , who admitted the DOE had been remiss in providing services. Sometime in April 2011, Ms . became aware that she had certain due process rights, including her right to request an impartial hearing. Until that time, she had never received any notice of her due process rights. (R-477) Ms. thereafter requested this impartial hearing by letter dated May 16, 2011. (P-I) From the date that Ms. . first referred her son for a determination of eligibility, . received no services for the entire 2010/2011 school year and only two months of services for the 2009/2010 school year.
Based upon the testimony of the professionals who evaluated . and those who worked directly with him, it is clear that the lack of special education services for a period in excess of two years had a profound impact on . Dr. , a neuropsychologist who evaluated . described his phonological processing as follows:
. . . inconsistent from very low in one task to – to the low end of the average level in the other. But he clearly had in being able to process the , the sound symbol relationships of reading, which was also evident in his (R-693) Dr. reported that his recommendation for training in phonetic awareness and processing is “extremely urgent as he is fast approaching the critical period needed to learn this skill.” (R-706; P-III). Dr. explained that the “critical period” for phonetic awareness is “somewhere around , where if you don’t learn the phonetic skills possible . . . you probably won’t.” (R-707) Dr. noted that ’s I.Q. went in the two year period he was not receiving any services – which shows .” (R-717) Dr. stated that demonstrated the impact in , “and that doesn’t relate to specific that are important to learn at that period in life. It is much harder to learn these things as you grow older.” (R-717) ’s regular education teacher, Mr. , testified that behavior was “ ” and attributed it to his . (R-761-62) He stated: “[ .] was and he tried to draw the attention to the fact that, you know he
During the 2011/2012 school year, . had a pendency program which included thirty-five sessions per week of special education instruction; one hour of weekly individual and . The pendency placement was stipulated by the parties based upon recommendations made at the CSE meeting held on January 14, 2011. It is clear from the testimony and documentary evidence that the recommendations at the January 2011 CSE meeting were made in part to remediate the DOE’s earlier failures to provide . with a FAPE. (B-7; P-F) The meeting was chaired by the DOE social worker, Ms. , who recommended a large amount of individual SETSS sessions for ., and (R-448) The IEP states that the recommended services were recommended “due to cognitive and communication deficits, requires (sic) and The IEP meant to state “remediation” which would account for the high number of SETSS periods. In addition, the January IEP reveals that in his academic functioning. The intentions of the CSE went unrealized when the DOE failed, once again, to implement the CSE recommendations. I find Ms. ’s testimony to be the credible description of what occurred at the January 14, 2011 CSE meeting. In fact, it was Ms. who made the recommendations for thirty-five hours of SETSS and finally gave Ms. the parent guide. She also “encouraged [Ms. .] to file a due process hearing against District ” (R-455) Ms. testified that she was satisfied with the placement and educational services T.B. received during the 2011/2012 school year, she stated “I’m happy with the way it is.” (R-559) Ms. . also testified that across all need areas, ’s functioning improved with the assistance of the intensive individualized special education services. (R-486-490)
DECISION
The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 538, 126 S. Ct. 528 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Board of Educ. Of the Hendrick Hudson Cent. Sch. Dist. V. Rowley, 458 U.S. 176, 188-189 (1982).
In order to demonstrate that FAPE is being provided, the school district must show that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The law expresses a strong preference for students to be educated to the maximum extent appropriate with nondisabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998).
The IDEA requires that the educational needs of a student with a disability and the services required to meet those needs must be set forth annually in a written Individual Education Program (“IEP”) which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, the initiation date and duration of services, and objective criteria for determining whether goals are being achieved. Walzczak, supra at 122 citing 20 U.S.C. § 1401(a)(20); Application of the Board of Education, Appeal No. 00-005. Parents play a significant role in the IEP process. They are members of the IEP team and their participation at IEP meetings must be “meaningful.” Schaffer v. Weast, 126 S.Ct. 538, 532 (2005). For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, however, must be meaningful i.e., more than mere trivial advancement. Walczak, supra. The student's recommended program must also be provided in the least restrictive environment. Application of Child with a Disability, Appeal No. 05-061.
Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(2)(E).
When determining the appropriateness of a school district IEP recommendation, Congress now requires that a hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits.[20] U.S.C. §1415 (f)(2)(E)
The DOE has raised the issue of whether the claims raised by Ms. . for a violation of her son’s right to a free appropriate public education during the 2008/2009 school year are timely. I find that they are. Ms. first initiated her request for a hearing by letter received by the DOE on or about May 16, 2011. She initiated the referral of . to the DOE by letter dated March 9, 2009. Most of her claims fall well within the two year statute of limitations for IDEA matters. To the extent that there is some portion of the 2008/09 school year outside of the statute, it would clearly fall within the statutory exceptions to the limitations period.
The 2004 IDEA amendments added an explicit limitations period for filing a due process hearing request and also added explicit accrual language. IDEA 2004 requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; N.Y. Educ. Law § 4404[1][a]). IDEA 2004 contains two statutory exceptions to the limitations period:
The timeline described in [20 U.S.C. § 1415[f][3][C]] shall not apply to a parent if the parent was prevented from requesting the hearing due to –
(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or
(ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent.
to the DOE’s actions is timely with regard to any claim after May 16, 2009. Ms. also successfully demonstrated that the DOE withheld information from the parent in its failure to provide her with any notice of her due process rights, until she was given the parent’s guide by Ms. . She thereafter immediately filed this hearing request – something she may have done in the Spring of 2009, if she knew she had that right. Given the facts in this case, the statutory exceptions set forth in the IDEA clearly apply.
There is indisputable evidence in this hearing, that the DOE failed to provide T.B. with a free appropriate public education and violated both the procedural and substantive requirements of the IDEA for the latter part of the 2008/2009 school year and the 2009/2010, 2010/2011 and 2011.2012 school years. Throughout the years in issue in this proceeding, the District failed in both complying with the procedures set forth in the act and developing a program which would be reasonably calculated to confer educational benefit upon the student. The District failed to discharge its obligation to provide with a free appropriate public education for all years at issue. The nature and number of procedural violations go to the very heart of the IDEIA and clearly resulted in a severe loss of educational opportunities to . The DOE failed to timely and thoroughly evaluate failed to create valid IEP’s for the years in question; failed to properly implement any IEP which had been created and failed to provide with transportation to and from . For the most part, the DOE did not present any evidence to refute this finding. I do not find, however, that the procedural and substantive deprivation of .’s rights is anything more than the result of incompetence of overworked professionals in the Department of Education. I do not find that blanket policies by the Department of Education violated . and .’s rights.
Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Given the overwhelming evidence that the District failed in its obligation to provide an appropriate program for compensatory and equitable services should be ordered as a remedy. While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded "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 (Application of the Bd. Of Educ., Appeal No. 05-054; Application of the Bd. of Educ., Appeal No. 02047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).
No evidence was presented that the DOE met and developed an Individual Education Program for the 2011/2012 school year, as a result it failed in its obligation to provide a FAPE to . While the DOE failed to develop a free appropriate public education for . for the 2011/2012 school year, I find that the pendency placement addressed any deficits in the DOE’s actions for the 2011/2012 school year. With regard to the latter part of the 2008/2009, 2009/2010 and 2010/2011 school years, I find that of special education services. As a result, I find that he should be afforded equitable relief to remediate the deprivation.
Since his mother has identified a preference for, and is making progress with, the thirty-five (35) sessions of individual special education teacher support services (at an enhanced rate not to exceed $125.00), I order that for the 2012/2013 and 2013/2014 school years, those services be made available to unless and until his mother determines that he has progressed sufficiently as to terminate the equitable special education services. In the alternative, I will order that the parent receive a P-1 letter for both the 2012/2013 and 2013/2014 school years, so that if she would prefer to place . in a private approved special education school, she will have the option to do so. Should Ms. opt at any time to in a private school pursuant to her P-1 letter, she will waive any right to the thirty-five weekly sessions of individual SETSS.
To remedy the deprivation of services for the latter part of the 2008/2009 school year, I order that the special education teacher support services be continued for the current summer (2012) at the same rate, thirty-five sessions per week of individual SETSS (at an enhanced rate not to exceed $125.00). I otherwise find that . is a ten month student. No evidence was presented to establish otherwise.
The CSE has not met to review the various evaluations which have been conducted in response to Ms. ’s request for this hearing. The evaluations are comprehensive and provide recommendations which should be considered by the CSE. Within forty-five calendar days of this decision, I order that the DOE arrange for a properly composed CSE meeting to review the information. The parent has requested occupational and physical therapy evaluations be conducted. I order that those evaluations be conducted post haste so that they can be available to be considered with the other evaluations at the CSE meeting. At the meeting, all evaluations shall be reviewed to determine an appropriate level of related services, including speech/language therapy, occupational and physical therapy, if needed, and develop goals and objectives for the 2012/2013 school year, properly tailored to address .’s current level of functioning.
With regard to Ms. ’s request for , to remediate any prior deprivation, I order that the recommendation of Ms. for therapy be implemented for the 2012/2013 and 2013/2014 school years, namely five times a week, two individual and three small group (not to exceed a group of three) for forty minute sessions. The DOE is ordered to issue an for these , but if the parent cannot locate a provider who will accept the rate, the parent, after ten days’ written notice, will be entitled to obtain speech services at a market rate and have the DOE fund those services directly. I further order that the Fast ForWord Computer Program be provided and implemented over the current summer, 2012. (P-L) Ms. . has indicated that she can provide the parental commitment to this program and it has the potential to address any deficits may have suffered as a result of the lack of services over the past two years. To the extent that the program must be monitored and taught by a professional therapist who is certified from the Scientific Learning Corporation, (R-597), I find that the DOE should make a certified and properly trained person in the Scientific Learning Company program Fast ForWord available to assist
With regard to Ms. ’s request to be reimbursed for the cost of transporting over the past three years to RCA, I find that she is entitled to such reimbursement. Ms. presented evidence which would substantiate 254 round trips from home to RCA for the 2009/2010 and 2010/2011 school years. (P-JJJ) The mileage was credibly determined to be 25.56 round trip. The current accepted mileage rate is .51 cents. Ms. is entitled to be reimbursed three thousand three hundred and eleven dollars ($3311.00). The DOE obligations for reimbursement for the 2011/2012 school year will remain in force until Ms. . has been properly reimbursed for all round trips.
ORDER
1. The Department of Education Failed to provide . with a free appropriate public education for the latter part of the 2008/2009 school year and the 2009/2010,
2010/2011 and 2011/2012 school years.
2. T.B. is entitled to equitable relief as a result of the two year deprivation of services and it is ordered that he receive thirty-five weekly sessions of individual special education teacher support services (at an enhanced rate, not to exceed
$125.00) for the 2012 Summer Session, 2012/2013 and 2013/2014 school years.
3. As an alternative method of providing equitable relief to ., it is ordered that he receive a P-1/Nickerson Letter for the 2012/2013 and/or 2013/2014 school years, in the event that .’s mother determines that she would prefer a private special education school to the thirty-five sessions per week of SETSS. If Ms. opts to use the P-1 letter, she will waive the right to access the thirty-five hours of weekly SETSS.
4. is entitled to services for the deprivation of speech and language therapy.
The Department of Education will provide speech and language therapy consistent with the recommendations of Ms. , at a minimum level of five times a week, two individual and three in a small group (not to exceed three) for forty minute sessions for the 2012/2013 and 2013/2014 school years. The DOE is ordered to issue an RSA for these speech services, but if the parent cannot locate a provider who will accept the RSA rate, the parent, after ten days’ written notice, will be entitled to obtain speech services at an enhanced rate and have the DOE fund those services directly.
5. The Department of Education will purchase on .’s behalf the Scientific
Learning Company computer program known as “Fast ForWord” and arrange for its implementation over the summer 2012 (and if necessary until its completion during the 2012/2013 school year). The DOE will also arrange for the assistance of a pathologist, certified in the Fast ForWord program, at the rate of a minimum of two sessions per week for the 10-12 weeks necessary to complete the program.
6. The Department of Education will arrange to have occupational and physical therapy evaluations conducted within thirty days of this decision.
7. The Department of Education will schedule .’s annual review with a properly composed Committee on Special Education within forty-five days of this decision. All evaluations conducted regarding will be reviewed, his current needs will be assessed and appropriate goals will be developed with the input of .’s mother, special education teacher, therapist and any other person with relevant information about his functioning. The CSE will identify a special education program and related services where the goals can be implemented.
The program recommendations can either be consistent with the options provided herein for equitable relief -- a program which includes thirty-five weekly sessions of special education teacher support services or a referral to the private approved special education school of Ms. ’s choice -- or not. But, if the recommendations of the CSE are not consistent with the equitable relief described herein, Ms. will have the choice of accepting one of three possible options (1) the program recommended by the CSE, (2) the thirty-five weekly sessions of SETSS or (3) a private approved special education school of her choice. This will be true for the annual review held regarding the 2013/2014 school year, as well.
8. The CSE recommendations for speech and language therapy are to be consistent with the equitable relief described herein for related services, namely a minimum of five times a week (twice individual and three times in a small group) for forty minute sessions for the 2012/2013 and 2013/2014 school years.
9. The Department of Education will reimburse Ms. for the cost of transporting
. to and from RCA for the 2009/2010 and 2010/2011 school years in the amount of three thousand, three hundred and eleven dollars ($3311.00). Dated: July 17, 2012
__________________________________
LEAH L. MURPHY, ESQ.
IMPARTIAL HEARING OFFICER
LLM:jj
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 ONSEPTEMBER 9, 2011
IMPARTIAL HEARING OFFICER
I Letter from to Parties, 8/25/11, 2 pp. II Letter from to IHO, 9/2/11, 5 pp. III Letter from DOE to IHO, 8/31/11, 8 pp. IV NYSED Publication- , 3/2009, 8 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 1, 2012
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request Letter, 10/7/11, 7 pp. 2 IEP, 1/17/12, 12 pp., ID Only 3 CSE 3 Minutes, 1/17/12, 2 pp. ID Only 4 Final Notice of Recommendation, 2/17/12, 1 p. ID Only 5 . Evaluation, 10/28/11, 24 pp. 6 Evaluation, 10/14/11, 3 pp. 7 IEP, 1/14/11, 18 pp. 8 CSE 3 Minutes, 1/14/11, 3 pp. 9 Final Recommendation Letter, 1/25/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 12, 2012
DEPARTMENT OF EDUCATION
10 CSE Conference Result Form, 1/17/12, 1 p. ID Only 11 CSE Conference Result Form, 11/9/09, 1 p. 12 IESP, 6/21/10, 6 pp. 13 Contact Sheet, 12/10/10, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ONAPRIL 20, 2012
PARENT
A Letter from to District Requesting an Evaluation for , 3/9/09, 1 p. B New York City Board of Education IEP, 11/9/09, 11 pp. C Letter from the Committee on Special Education to the Parent with the Parent’s Consent Noted on 11/16/09, 11/12/09, 1 p. D (1) Email, 2/10/10 from to with a cc to , Department of Education Chairperson; (2&3) Emails, 12/10/12 between
, , and , all
Employees of the CSE 28; (4) E-mail, 12/7/10 from to and , Multiple Dates , 4 pp. E Consent for Initial Evaluation Signed by , 1/11/11, 1 p. F New York City Board of Education EP, Dated 1/13/11, 1/14/11, 18 pp. G Log of Conversation Between Employee of the Charter School and and the Parent in 5/2011 (Needs Authentication), 5/25/11, 2 pp. H Email from , Student Support Services, of the RCACS to , 5/2/11, 3 pp. I Parent’s Due Process Complaint, 5/16/11, 3 pp. J Parent’s Amended Due Process Complaint, 7/19/11, 2 pp. K Second Amended Hearing Request, 10/7/11, 6 pp. L Processing Evaluation, 10/28/11, 24 pp. M Evaluation from Dr. , 10/28/11, 2 pp. N Placement Services Evaluation, 8/4/11, 7 pp. O Access 7 Consulting Annual Review 2010-2011, 1/5/11, 6 pp. P Access 7 Consulting Evaluation, 4/23/10, 6 pp. Q School ( ) Progress Report
2010-2011, 6/16/11, 1 p. R Report Card 2010-2011, 2 pp. S Midterm Progress Report, 5/26/11, 2 pp. T Letter, 5/9/11, 2 pp. U Log for – 2010 (Replaced), 5/2/11 to 5/10/11, 2 pp. V DOE PS 30 Letter, 4/29/11, 1 p. W RCACS Progress Report, 3/16/11, 1 p. X Withdrawn, 1 p., ID Only Y Letter to , 2/8/11, 1 p. Z Letter from Access 7 Counsulting, 1/18/11, 1 p. AA Email Correspondence, 1/7/11, 10 pp. BB DOE Appointment Letter, 1/3/11, 1 p. CC CSE 3 Office Minutes, 11/9/09, 2 pp. DD Letter to Parent, 12/6/10, 1 p. EE Contact Sheet, 12/2/10, 1 p. FF School District ( ) Letter to Parent and
CSE, 10/19/10, 2 pp. GG Fax to from Parent, 11/19/10, 2 pp. HH CSE Access Log, 2/4/10, 1 p. II Letter to Parent, 10/4/10, 2 pp. JJ Letter to Parent, 9/17/10, 2 pp. KK Report Card, 2009-2010, 2 pp. LL Letter to Parent, 6/24/10, 1 p. MM Consent for Classification and Placement, 6/21/10, 1 p. NN Home Report, 5/24/10, 2 pp. OO Access 7 Consulting Progress Report, 5/21/10, 1p. PP Individual Education Service Program, 5/21/10, 13 pp.
Footnotes
[1] Exhibits will be referred to as follows: Joint Exhibits as “J-__”; Parent Exhibits as “P-__” and Board of Education Exhibits as “B-__”. Citations to the transcript of the record in this proceeding will be referred to as “R-__” followed by the page number.
[3] Apparently a speech language evaluation was conducted on November 10, 2009, but never shared with Ms. B. (R-371) According to Ms. ., the evaluator recommended speech/language therapy three times a week. (R-373) The first time . began receiving therapy services or any services was two years after his initial evaluation, in October 2011. (R-379; R-384)
[4] Apparently in a scam beyond the scope of this matter, speech therapist reimbursement forms were submitted for speech and language services that were never actually provided. (R-435)
[20] U.S.C. § 1415[f][3][D]. Ms. . initiated her claim concerning the 2008/09, 2009/2010 2010/2011 and 2011/2012 school years on May 16, 2011. At the very least, her challenge