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: July 19, 2012

July 23, 2012

August 8, 2012

Actual Record Close Date: August 29, 2012

Hearing Officer: Israel S. Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2012

Attorney — Student

Parents

District Representative — DOE

(via telephone) — DOE

Special Ed Teacher (via telephone) — DOE

NAMES OF PERSONS WHO APPEARED ON JULY 23, 2012

For the Student: , Attorney , Parent

For the Department of Education: , Representative , (via telephone) , (via telephone) , Attendance Teacher (via telephone)

NAMES OF PERSONS WHO APPEARED ON AUGUST 8, 2012

For the Student: , Attorney , Parent , ,

For the Department of Education: , Representative

Background

On May 24, 2012, I was designated as impartial hearing officer for this matter, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter . The Law Office of requested an impartial hearing on May 22, on behalf of mother, , with regard to an appropriate program for the 2012-2013 school year. They sought , which the Department of Education had not been willing to recommend. The parent also sought compensatory additional services to compensate for what the parent maintains has been a deprivation of a free and appropriate education (FAPE). The DOE had recommended a nonresidential special education program, in a public school, which they defended at this hearing.

There were three hearing dates. After the parents presented their case and based particularly on the testimony of the witnesses who testified on the third date, August 8, 2012, this IHO issued an Interim Order to begin the process of locating a residential school and placing , since it became clear to this IHO that the situation was an emergent one requiring immediate action. The record was closed following receipt of the closing brief from the Parent’s attorney. IHO Exhibit I-I. The DOE representative opted not to submit a closing brief. IHO Exhibit I-II.

Positions of the Parties

The issue of this hearing was whether the DOE has ordered a free and appropriate education (FAPE) since December 12, 2011. This date is based upon the fact that a previous Impartial Hearing dealt with the appropriateness of the program for up until that date, as this was the date of filing of the previous request for an impartial due process hearing. As the period up until this December date has already been ruled upon by an Impartial Hearing Officer (IHO), this IHO will address the period of time since this request. (The previous IHO’s decision is found in Exhibit 9; see Exhibit I-I, where the parent’s attorney requests compensatory services for the period following this December date, for the reasons indicated above.) The parent’s position was that the doe has not provided a FAPE and that the DOE needs to fund attendance at an appropriate state approved . Also, the Parent sought an order for Compensatory education, based upon the fact that the DOE has provided no education at all to since mid-November,

2011. Exhibit I-I.

Testimony of the Witnesses DOE Witnesses

The DOE’s first witness was , . She testified that she provided services to when he attended school but that he stopped attending in October or November, 2011. Asked why stopped attending school, she said that she was “not really sure.” Tr. 45. Ms. testified that goals dealt with , Tr. 54 and that the only that she heard from were , Tr. 55. She testified that would frequently , Tr. 5960.

The DOE’s next witness was , Special Education Teacher. She testified that she was teacher in a special education class for students with , with a class ratio of (up to students, one teacher and one paraprofessional). However, in reality, there were three paraprofessionals in her classroom. She described his academic levels as prekindergarten. She explained that the Treatment for Education of (TEACCH) was the methodology utilized. In the classroom, she testified, he his was such that he was . But she did point out that he would do things like and . He was at times. She said that his time. She said that towards the end of 2011, attendance became a problem. Asked about , Ms. explained that would . She said that . She testified that he received all of his mandated services while he was attending. Asked if any effort was made to assess why eventually to or to develop a modification plan to deal with this problem, Ms. responded that there was no such effort or plan other than she had discussed . Tr. 65-114.

The DOE’s next witness was . She testified that mostly she worked with on . She also worked with on such skills as . Tr. 123-124.

The DOE’s next witness was , Attendance Teacher. Mr. testified he gets a particular form when a student is . He got this form for on November 21. He said that he called Ms. , mother, who told him that had a “ ” in front of the school, . He testified that Ms. did not tell him why would not go to school. He explained that his assistant principal told him to , because this case was going to an impartial hearing. He testified that he was made aware that had an episode at a and was . Home instruction was applied for but was denied by the DOE. Asked why it was denied, Mr. said he was never told why it was denied. Mr. mentioned a meeting was held with the former school principal, which he attended, at which the former principal asked how the school could help get to school. Ms. , he said, asked for and so the principal ended the meeting since in her judgment, the meeting was not going anywhere. Tr. 155164.

Mr. indicated that he contacted about on May 30th, after last attended school. Tr. 166. Mr. said that his first visit to the home with regard to nonattendance occurred in February, 2012. Tr. 168.

The DOE’s next witness was , . Asked about the work she did with , Ms. explained,

We do the thing here, but I don’t much on that. It’s just really for me to when he’s and , because what I really focus [on] is the that he , because he’s , and he .

Tr. 182.

The Parent’s first witness was Dr. . Dr. testified that had been referred to him for a evaluation. He testified that appeared and . Dr. , who testified that he is with children, emphasized that in more than years of practice, was the first child ever that he was . A second testing session was scheduled. At the second session, utilizing various techniques, Dr. managed to get about minutes of work out of . He also conducted a third testing session. Tr. 208-214.

The following is Dr. ’s description of what it was like at the third testing session:

Tr. 214.

Dr. described as having and . He described his findings at length. He mentioned that although he already had enough data to write a report, he has scheduled for one additional, i.e., a fourth session. Tr. 218-243.

Dr. opined that “ needs to be in a . He needs constant, one on one supervision by highly trained staff members. He needs intensive ABA, which is a form of modification.” Tr. 243.

Dr. explained that mother has done everything she can to get to go to school, but she cannot do it. He is a . He is at . has and and is not . He is . exhibits s. He has . He has . Dr. himself by . Dr. explained that needs a controlled setting to reduce . Tr. 244-245.

Dr. spoke of a recent by on his father, as he , who has a , in . In this altercation, the father then on . Tr. 248.

Dr. , being a mandated reporter, reporter the above . He said that he explained to that he with . Tr. 248-249.

With regard to the educational program that has been offered by the DOE for , Dr. explained, “… the inability to get him to school precludes the effectiveness of the program because he can’t even get there.” Tr. 251.

With regard to the place of within his overall , Dr. explained as follows:

…

Asked by this IHO about a change that may have taken place in from what was the case before, Dr. responded, “his worse.” Tr. 265.

parent’s next witness was Dr. , a child and who works in the emergency room at . She said that has been brought to or times. She indicated that can get when . At the hospital, they have had to give . They have had to use . She opined that he needs a structured setting where al techniques can be utilized to help with his . Tr. 268-276.

Asked if there was any realistic possibility that would go to school if this IHO did not order a , Dr. opined that there was not, he just She also did not believe that he could be handled by a program because of his . Tr. 276-277.

The final witness for the parent, Ms. , was Ms. . Ms. explained that began to as of September, 2011 and has continued to get . Eventually he . She explained that s beginning in the fall of 2011. She explained that he has become much . Ms. also spoke of issue with . He has now graduated to on . He manages to . He puts the . have been taken, because he has been , and they have shown that he . has also . Tr. 295-310.

Ms. discussed the recent involvement of in situation. She mentioned that the worker has been speaking of placing him into a . But she expressed concern that what really needs is a facility with expertise in handling . And a where he could have the school on site would make it so that he has no choice but to attend. She explained that is very concerned about the home form . Ms. wants a school facility for , where is educational needs could be met. Tr. 327- 343.

Findings of Fact and Conclusions of Law

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a recent second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

The IEP and placement that has been offered by the DOE cannot possibly meet educational needs since, as a result of his , as testified by the , he will not even . His symptoms, the testimony has made clear, have gotten much . It is clear that the only viable option is a . An educational program in which a student cannot actually, in reality, attend cannot be an appropriate program. (See Johnson v. Metro Davison Co. Sch. Sys. 108 F. Supp. 2d 906 at 918-919 (M.D. Tenn. 2000), which makes clear that inability to be present in school can be determinative with regard to whether a school program meets a student’s needs.)

In discussion with the DOE’s representative at the hearing, it became clear that given the time lag inherent in finding a program for a student such as is was urgent that the situation be addressed without delay. This was particularly urgent because of the dangerousness of the status quo. An interim order was therefore issued by this IHO to get the process going, to find such an educational facility as soon as possible for .

Placing in a state approved holds the possibility of providing a FAPE for , which certainly cannot be provided if the status quo remains in effect. With the status quo, there is no education at all and appears to pose a danger to himself and others.

There is also the matter of additional services as compensatory education, given that has received no educational services since he in mid November. Since, as indicated above, an IHO has ruled on the time period through December 10, 2011, this IHO will restrict the order with regard to compensatory education to the time period since then. Since mid December, as of this time, has been without educational services for approximately ten months.

In Letter to Kohn, 17 IDELR 522 (OSEP 1990), OSEP noted that “an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives a FAPE to which he/she is entitled.”

In Application of the BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF BUFFALO, SRO 06-074, SRO Paul Kelly

explained that:

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 a Child with a Disability, Appeal No. 05-

041;Application of a Child with a Disability, Appeal No. 04-

054; Application of the Bd. of Educ., Appeal No. 02-047).

In Streck v. Board of Educ. of the East Greenbush Central School District, 2010 WL 487482, 2 (2nd Cir. 2010). the second circuit explained how a prospective award of compensatory education operates:

when a court grants prospective compensatory education under the IDEA, the prevailing party's ability to utilize that award cannot turn on its ability to finance the costs of the education awarded. … To implement the SRO's award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses.

Here, I am ordering such compensatory services, to make up for the deprivation of services for approximately ten months, the funding for which shall be made available at such time when special education services would otherwise no longer be available.

Therefore, it is appropriate, here where this seriously disabled student has been left for 10 months with no services whatsoever, that additional compensatory services of ten months should be awarded. These services should be added so that will remain eligible for special education for 10 months beyond when he would otherwise be terminated from services, after reaching the age of 21.

Order

The following is hereby ordered:

1. If the DOE has not already done so, it shall reconvene an IEP conference at once. At this conference, the team shall recommend – Defer to CBST, for a nonpublic school special education program.

2. The CBST shall without delay search for an appropriate special eduation program for and shall work cooperatively with mother in this undertaking.

3. The CBST shall do what it can to effectuate placement in an appropriate residential special education program for , as soon as feasible.

4. In compensation for almost 10 months of providing no services to this man, the DOE shall provide special education services for 10 months beyond the date when would otherwise no longer be eligible for special education services, i.e., the completion of the school year when he turns 21.

Dated: September 10, 2012

_____________________________

ISRAEL S. WAHRMAN, ESQ.

Impartial Hearing Officer ISW: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

PARENT

B Due Process Response, 5/29/12, 3 pp.

IEPs

G IEP, 3/7/11, 11 pp. H IEP with Handwritten Notes no BIP, 12/20/10, 13 pp. I IEP with BIP Attached, 12/20/10, 14 pp. J IEP, 12/2/09, 16 pp.

CSE DDOCUMENTS and CORRESPONDENCE

K Letter from Parent to Whom It May Concern, 6/1/11, 1 p.

L Letter from . to Parent, 2/3/11, 2 pp.

M Referral to , 1/19/11, 1 p.

N Letter from Parent to , 1/18/11, 1 p.

O Notice of Recommendation of IEP Meeting, 12/20/10, 2 pp.

P Annual Review Cover Sheet, 12/20/10, 1 p.

Q Notice of IEP Meeting, 11/30/10, 2 pp.

R Trans-Disciplinary Meeting Agenda, 12/3/10, 1 p.

S Annual Review Cover Sheet, 12/2/09, 1 p.

T Notice of IEP Meeting, 11/15/09, 2 pp.

MEDICAL CORRESPONDENCE

U Letter to Whom It May Concern from and 2 MDs, 4/26/12, 1 p.

V Instructions- ER, 4/26/12, 2 pp.

W Letter to Whom It May Concern from , MD, 4/17/12, 1 p.

Y Letter to Whom It May Concern from , MD, 3/14/12, 1 p.

Z Instructions- ER, 3/3/12, 2 pp.

EVALUATIONS/TESTS/REPORTS

EE Communication Profile, Undated, 1 p.

FF Brigance Student Assessment Plan, Undated, 1 p.

GG Brigance Test Booklet, 9/20/11, 27 pp.

HH Vineland-II Survey Interview Report, 3/7/11, 5 pp.

II Teacher Evaluation, 3/1/11, 1 p.

JJ Student Communication Profile, 10/8/10, 2 pp.

KK Comprehensive Psychological Evaluation, 4/21/10, 5 pp.

LL Counseling Report, 12/1/09, 1 p.

MM Comprehensive Psychosocial Evaluation, 9/29/09, 6 pp.

PROGRESS REPORTS

TT Class Profile and Instructional Groups, 2011/2012, 1 p.

UU CSS Communication Profile, 2011/2012, 5 pp.

VV Annual Review Plan, 12/15/11, 2 pp.

WW Student Instructional Priority Plan Report Card, 9/2011-12/2011, 11 pp.

XX Student Instructional Priority Plan Report Card, 6/23/11, 4 pp.

YY Progress Report, 6/10/11, 2 pp.

ZZ Report Card, 5/13/11, 3 pp.

AAA Report Card, 3/18/11, 5 pp.

BBB Student Instructional Priority Plan Report Card, 2/7/11, 2 pp.

CCC Instructional Priority Data Collection Sheet, 11/2010-6/2011, 9 pp.

DDD IEP Goal Progress Report, 12/17/10, 2 pp.

EEE Report Card, 11/1/10, 10 pp.

FFF Student Strengths-Based Profile, 9/17/10, 1 p.

GGG Student Instructional Priority Plan and Chapter 683 Report Card, 8/13/10, 2 pp.

PPP Encounter Attendance Forms, 9/2011/11-11/2011, 17 pp.

QQQ Encounter Attendance Forms, 9/2011-12/2011, 21 pp.

RRR Folder, 9/2011-10/2011, 9 pp.

MISCELLANEIOUS DOCUMENTS

UUU Student Historical Profile Report, 1/11/11, 3 pp.

VVV Parent Coordinator Communication Log and Note with Information, 2011, 7 pp.

PHOTOGRAPHS

WWW 2, 1 p.

DDDD Findings of Fact and Decision, 7/10/12, 12 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 5/22/12, 8 pp. 2 IEP, 3/9/12, 13 pp. 3 IEP, 1/13/12, 11 pp. 4 Evaluation, 2/23/12, 4 pp. 5 Evaluation, 2/18/12, 4 pp. 6 Evaluation, 2/14/12, 7 pp. 7 Evaluation, 2/8/12 and 2/14/12, 7 pp. 8 Intervention Plan, 12/20/11, 1 p. 9 998, 4/18/12, 31 pp. 10 Withdrawn 11 Functional al Assessment, 12/20/11, 2 pp. 12 Evaluation, 2/27/12, 6 pp. 13 Letter from , Attorney, 3/29/12, 1 p. 14 Amended District Impartial Hearing Request 138448, 4/12/12, 2 pp. 15 Email from , Attorney, 3/12/12, 1 p. 16 RSA, 6/7/12, 2 pp. 17 RSA, 6/7/12, 2 pp. 18 RSA, 6/7/12, 2 pp. 19 Proposed Resolution Agreement, 6/5/12, 3 pp. 20 Attendance Report, 2011-2012, 2 pp.I

IMPARTIAL HEARING OFFICER

I Parent’s Closing Brief, 8/24/12, 14 pp. II DOE Declination of Option to Submit Closing Brief, 8/24/12, 1 p.