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: Parents

Date of Hearing: July 10, 2013

Actual Record Closed Date: August 1, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 10, 2013

Andrea Anna Lella Advocate — Parents

Mother — Parents

Director of Student Services — DOE

(by telephone) — DOE

On July 10, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the (“the student”).

The proceeding was initiated at the request of the parents by correspondence dated May 9, 2013. (Ex. A) I was appointed Impartial Hearing Officer on May 13, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on June 13, 2013, the hearing was scheduled for July 10, 2013, and August 6, 2013, the first mutually available dates for the parties, their witnesses and the hearing officer. (Ex. I)

The initial compliance date in this matter was July 23, 2013. The parties moved to extend the compliance date on in light of anticipated testimony, the scheduling of witnesses and the submission of evidence and consideration of the transcript and issuance of a decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint request for extension of the compliance date was granted. (T. 8, Ex. II)

The current compliance date is August 22, 2013. The record closed on August 1, 2013, upon my receipt of the transcript.

Background and Positions of the Parties

During the 2012-2013 school year, the student’s year, she was placed in a general education class. On December 17, 2012, the CSE convened and . (Ex. F)

The CSE reconvened on January 31, 2013 and issued an IEP which modified the promotional criteria but did not change the student’s program. (Ex. G)

In their hearing request the parents assert that for an extended period and that there had been consistent failure by the CSE to provide appropriate programmatic support in view of the student’s needs culminating in the January 31, 2013 IEP, challenged in this proceeding, which merely modified promotional criteria but did not alter a program which was not appropriate. (T. 7, Ex. A)

At the hearing, the parents moved to amend their complaint with regard to the relief requested to include the request that should the parents prevail with regard to the claim of entitlement to during the Summer 2013, compensatory services in the form of a “bank” should be ordered for any such services the student should have received during Summer 2013 and did not. (T. 6) The DOE agreed to the amendment and waived resolution. (T. 6)

Accordingly, the parents sought as relief:

1) Full time placement in an Integrated Co-Teaching (“ICT”) class.

2) One to be delivered outside of school and funded by the DOE at the “enhanced” rate of up to $110 per hour by issuance of authorizations for 2013-2014. 1

3) 10 hours per week the Summer 2013 term, with such services as are not provided to the student at that time to “banked” for future use at the option of the parent and funded at the “enhanced rate of up to $110 per hour.

4) services to be continued through the Summer 2013 term.

During the hearing, however, the following was agreed to by the parties:

The DOE agreed to the student’s entitlement to Summer 2013 services (2x30 (3:1)) at the authorized rate through the issuance of .2 (T. 74-76)

The parties agreed with regard to payment rate for provided pursuant to this order that the DOE, that the DOE shall have two weeks to identify a provider at the authorized rate and notify the parent and that in the event of a failure to do that the DOE does not object to payment at the “enhanced” rate of up to $110 per hour. (T. 76-79)

The DOE agreed that determined to be necessary pursuant to this order should be provided outside school. (T. 160)

1 At the hearing, the parents made clear that what was being was the delivery of after school and not during the school day and that the rate specified for was the upper limit. (T. 7) 2 The DOE representative stated that the service had been recommended by the but through an oversight had not been specified in the IEP. (T. 74-75) The parties agreed that the sole remaining claims for relief are the student’s entitlement to Summer and the ICT placement. (T. 79-80)

Cases Presented

DOE

The DOE submitted no documents.

Its sole witness was , the principal of the school the student attends. (T. 12-13) She has a Masters degree in special education but is not certified in . (T. 38)

The principal was not present at the January 31, 2013 CSE review but reviewed the IEP after it was recorded in the computer system as completed. (T. 38-41, Ex. G) She had no knowledge as what the CSE relied upon in formulating the IEP. (T. 41) She had no knowledge with regard to the student’s scores in June 2012 and after the following summer. (T. 55) With regard to whether the student regressed during the past summer, stated that a determination of regression would require a conclusion that a student lost the majority of the year’s work over the summer. (T. 23-24) She opined that the student had not met that standard and accordingly would not qualify for summer services. (T. 24) However, although she had formed the opinion this student had not regressed, she could recall the basis for it. (T. 55) She was unable to provide information as to the student’s current currently or last year but she stated had met the State’s promotional criteria without modification. (T. 42-44) acknowledged that it was not typical for students to remain at the same over the year. (T. 57-58)

She testified that the student has received mandated

It is taught by a general education teacher and is not included on a student’s IEP.

(T. 18, 25) testified that it is a pull-out program provided during the student’s nonacademic time not during classroom instruction time. (T. 16, 20, 26) The student’s eligibility for that program has not yet been determined since it depends solely on the results of the state exam with only ” being offered the service. (T, 17) During the 20122013 school year, grade, the student was eligible for the program and she was offered it.

(T. 18) did not know whether and/or to what extent the student participated in (T. 22) However, commenced in February 2013 and ended in April 2013. (T. 31)

The provides small group instruction for periods per week in at 7:30 AM, prior to the beginning of the school day. (T. 19-20) It is offered to students who performed at Level 2 on the New York State assessment exams (T. 18-19) The student was offered the during the 2012-2013 school year. (T. 18) did not know whether and/or to what extent the student utilized this program. (T. 19)

stated that physical education is mandated for per week but that services other than gym, like dance or another physical activity, could satisfy the requirement. (T. 28) However, she had no knowledge of what was provided to this student. (T. 30) Further, she had no knowledge as to whether this student was eligible for . (T. 35)

Parents

A list of the documents submitted by the parents is appended.

The parents presented the testimony of only one witness, the student’s mother (“the parent”).

The parent testified that the student , with one sibling and the other in an and receiving after school services. (T. 113, 115-116, 126, 151) The student had been attending a but in conducted and the parent was informed that the school was not able to provide the support the student needed. (T. 81-84) The student was by the CSE which concluded that she was ‘ . (T. 86, Ex. B) At that time and services were denied. (Ex. B)

However, the services she received previously were the same as those mandated pursuant to that IEP. (T. 109) By January 2013, the parent was informed that there was a concern the student would fail the standardized test and the CSE convened but the sole programmatic change was the modification of promotional criteria. (T. 109-112) The January 31, 2013 IEP is to be in effect through January of 2014. (Ex. G) It was the parent’s understanding that the sole reason for the change was to enable the student to .

(T. 110) Staff, however, advised the parent that the student needed the same program as one of her brothers, an ICT class with after school . (T. 118, 151) The student’s grade report card indicates that she entered and that she was far standard. (T. 138, Ex. J) The parent testified that the student is demonstrating . (T. 142) She has concluded that the student needs an class to provide more attention and after school so she won’t miss class instruction and activities. (T. 149)

The parent testified with regard to the appropriateness of various services available at the school, that: pull- met with great resistance by the student (T.114); the was not an option because was no longer provided because she was deemed to be too o the school and she could not get the student to school in time for the program because she had to wait for which picked up the (T. 124); and, the program took the student out of her two gym classes without offering the parent an alternative and the parent had refused to approve that (T. 118-122)

Findings of Fact and Conclusions of Law

The DOE has the burden of proof with regard to whether it provided a . N.Y. Education Law §4404[1][c]. In the instant matter, although it did not concede that failure, presented no witnesses or documentary evidence with regard to that issue. Therefore, the DOE has not met its burden to establish that it provided a .

With regard to the appropriate program for this student, the parent asserts in this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c].

Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with residing in the State between the ages of and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

The evidence in this matter does not show that at the time of the January 31, 2013 review, any basis for a conclusion that the program the CSE provided was appropriate. The testimony of the parent, which has not been rebutted, shows that provided to support the student’s general education class, which was continued in the IEP at issue, had been provided in the same degree for about two prior years and the student nevertheless continued . The promotional modifications, for which no CSE explanation has been proffered, did not provide educational support. In the instant matter, the evidence is persuasive that the student requires a substantially increased level of support within the classroom. Accordingly, an ICT class placement, the next step on the continuum, will be ordered for the 2013-2014 school year.

Further, I conclude that the student continues to require to supplement even a more supportive classroom program. The parent persuasively asserts and the DOE has not disputed that one hour a day is appropriate. (T. 160) Further, the DOE has stipulated that for this student, such services as are provided should be provided outside of the school setting. (T. 160)

The evidence in the record, which has not been contested, also supports the parent’s claim that the student regressed during the summer 2012 after a program identical to the one provided pursuant to the January 31, 2013 IEP. The principal’s claim that to demonstrate regression the student must lose at least a majority of the skills she acquired during the prior year was not supported by any regulatory or other reference or support. Rather, as the State Review Officer has noted “The State regulations define substantial regression as "the student's levels due to a loss of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]). Appeal No. 09-084. In the instant matter there was no evidence submitted indicating that any IEP goals and objectives were met at any time in the student’s school career and I note that academic goals were not added until December 2012. However, the grade report card indicating little growth supports my conclusion that the over the summer requires an inordinate period of review to return to the level at which she had been. (Ex. J) Accordingly, I conclude that summer services should have been provided. The student is entitled to 10 hours a week of for the entirety of the Summer 2013 term and the provision of a bank of makeup services to enable her to receive those services.

Finally, I note with regard to the testimony concerning the program and , that the DOE has acknowledged that those programs were not IEP driven and not mandated. (T. 33) To the extent that the DOE seeks to suggest that additional services will be provided during the 2013-2014 school year, I note that retrospective evidence is not permitted. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir. 2012) Further, there is no evidence that the student will be eligible for and/or able to utilize either program. To the extent that those programs might be argued to mitigate the results of the CSE’s denial of a , I note that the persuasive and unrebutted evidence shows that the student received virtually no benefit from them during the 2012-2013 school year.

Order

The DOE shall provide the following:

1. A full time placement for the 2013-3014 school year in an ICT class.

2. One hour per day of to be delivered outside of school for the balance of the 2013-2014 school year and funded by the DOE at the enhanced rate of up to $110 per hour if the DOE has not identified a provider and notified the parent within two weeks of the date of this order.

3. A “bank” of services equivalent to 10 hours per week for the entirety of the Summer 2013 term, to be reduced by such hours the DOE may have provided during that period to be used at the option of the parent no later than August 31, 2014. The services shall be funded by the DOE at the enhanced rate of up to $110 per hour if the DOE has not identified a provider and notified the parent within two weeks of a request by the parent to do so.

4. services through the Summer 2013 term at the same level as provided during the school to be funded at the authorized rate through the issuance of . The parent shall be entitled to a “bank” of such services not already provided by the DOE to be used at her option through August 31, 2014. Dated: April 16, 2013

___________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 5/9,2013, 4 pgs. Parents

B IEP, July 24, 2009, 9 pgs. Parents

C IEP, May 11, 2010, 12 pgs. Parents

D IEP, April 28, 2011, 11 pgs. Parents

E IEP, May 23, 2012, 14 pgs. Parents

F IEP, December 17, 2012, 12 pgs. Parents

G IEP, January 31, 2013, 13 pgs. Parents

H Card, 2010-2011 school yr., 2 pgs. Parents

I Card, 2011-2012 school yr., 2 pgs. Parents

J Card, 2012-2013 school yr., 2 pgs. Parents

K Report, June 10, 2009, 11 pgs. Parents

L Report, October 24, 2012, 2 pgs. Parents

I Prehearing Conference memo Impartial Hearing Officer

II Decision Impartial Hearing Officer