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: November 14, 2013

Actual Record Closed Date: November 15, 2013

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 14, 2013

Name Relationship On Behalf of

Parent — Parents

Esq. Attorney Associated with Attorneys for Parent Parent Advocate Associated Attorneys for Parent — Parents

District and Department of Education Representative — DOE

Department of Education Representative — DOE

Principal of (by phone) — DOE

School Psychologist at — DOE

Special Education Teacher Interpreter – IHO — DOE

The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on November 14, 2013. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to Case #147987, after the recusal of a previously-appointed Impartial Hearing Officer, on November 5, 2013, to preside over the Expedited issues raised in Parent’s Due Process Complaint, The Record Close Date was November 15, 2013.

The proceeding was initiated by Legal Services NYC-Bronx by the filing of a Due Process Complaint Notice on behalf of Parent, dated October 17, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on that date (Exhibit 1). Parent’s Complaint focused primarily on issues arising from Student’s suspension related to an incident at Student’s school and the findings of a resulting Manifestation Determination Review (MDR). Pursuant to Commissioner’s Regulations, Student was entitled to an Expedited Hearing on the matters involving Student’s suspension and the findings of the MDR (8 NYCRR 201),

Student is presently eleven years eight months of age, having been born on February 8, 2002. During the 2012-2013 school year, Student attended the Fifth Grade at a District Elementary School. The report of Evaluation performed on February 16, 2012 (Exhibit 7) noted that, when assessed utilizing the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), Student achieved a Full Scale I.Q. that fell within the upper limit of the Deficient range. When assessed using the Woodcock-Jonson Tests of Achievement-Third Edition (WJ-III), Student ability to read words fell in the Deficient range; his Math skills were similarly limited; and his Spelling and Writing skills also in the Deficient range, presenting far below expectancy levels (Exhibit 7). However, it is noted that the Report found that:

“Despite his academic challenges, he shows a positive attitude toward school and is well-behaved.”

Pursuant to an Individualized Education Program (I.E.P.) developed by District’s Committee on Special Education on January 30, 2013, Student continued to be classified as having a Speech and Language Impairment (Exhibit 4) and was recommended to receive his special education program in a Special Class in a Community School with a staffing ratio of , together with the Related Service of twice weekly, thirty minutes per session, in a group of five and twice weekly, forty-five minutes per session, in a group of five. The Committee on Special Education (C.S.E.) noted in his I.E.P. that Student was:

“… a very friendly boy, … always looking to help his peers and adults,.. and makes an effort to solve social problems appropriately. He occasionally loses his temper but has greatly improved in taking responsibility for his actions and handling the situation maturely.”

(Exhibit 4)

The C.S.E. found that Student did not need a behavior intervention plan (Exhibit 4).

In September of 2013, Student transitioned to the Academy, an Intermediate Public School, for the 2013-2014 school year. As explained by District’s Witness , the school did not have a Special Class with a staffing ratio of but did have a Special Class with a staffing ration of 12:1. Upon his arrival at , Student was placed in a 12:1 class. School began on September 9, 2013. On September 13, 2013, the School wrote to Parent proposing that Student’s Individualized Education Program (I.E.P.) be amended to change Student’s placement from a placement in a Special Class having a staffing ratio of to a Special Class having a staffing ratio of On the same day, Parent signed the proffered Consent to amend Student’s I.E.P. Student remained and remains in the same 12:1 classroom in which he was originally placed.

On October 1, 2013, at about 2:15 p.m., during transition, Student appears to have become involved in an altercation with another student. Student’s substitute classroom teacher attempted to intervene, telling the students and sit. According to the summation of the testimony of Student’s substitute teacher at the subsequent (Exhibit 2), instead of complying with such direction, Student approached his teacher, and then began to and (Exhibit 2). The substitute teacher who was attacked did not appear or testify in this proceeding. Neither did Student.

District, on October 11, 2013, conducted a Manifestation Determination Review

(MDR) to determine whether Student’s conduct was a manifestation of his disability. Present at the review were Principal Student’s Special Education Teacher School The review concluded that Student’s behavior was not a manifestation of his disability (Exhibit 3). Parent’s Due Process Complaint challenges the finding of the Review (Exhibit 1).

Witnesses and provided consistent testimony regarding the actions of the MDR. Student’s Special Education Teacher had begun as Student’s classroom teacher shortly after the commencement of the school year and so had little more than two weeks with Student, but testified that Student . However, all witnesses from the School stated that Student’s deficiencies were in the areas of academic performance and not in his behavior. Witness testified that Student would to do the work assigned and would display his frustration as anger toward himself, but not toward his peers or any adult. The MDR team had before it the (Exhibit 7) and Student’s I.E.P; as developed on January 30, 2012 (Exhibit 4). Both documents noted Student’s appropriate behavior.

It is my finding and determination that the MDR that was conducted by District on October 11, 2013 complied with all procedural requirements and was appropriately constituted. It is my further finding and determination that the MDR tea, correctly determined that Student’s actions on October 1, 2013 that led to a manifestation of his disability. Student’s disability is that he had Impairment. All documentation before the MDR team reflected that Student was a well behaved student who occasionally lost his but was able to handle the situation maturely. Without testimony from Student, it is impossible to know why Student’s actions toward a fellow student escalated to an attack on his teacher. It is, however, possible to determine that such attack was not caused by his disability. Indeed, at the time of the occurrence, Student engaged in that might have , but was in the process of transitioning.

Parent further alleged in her Due Process Complaint that the MDR team had not considered that Student had been in an improper placement. However, the MDR team specifically found that all aspects of Student’s I.E.P. were fully implemented. Parent’s challenge refers to the fact that Student’s I.E.P. had recommended Student’s placement in a Special Class, but that Student was, on the day of the incident, in a Special class. When Student reported to his new school on September 9, 2013, testimony provided by established that he was placed in a Special Class with a staffing ratio of . Clearly such placement did not conform to his mandated setting. However, as described by and confirmed by Parent, Student’s I.E.P. was amended so as to place Student in a Special Class with a staffing ratio of 12:1. This amendment was accomplished by Parent’s Consent, which Parent signed on September 13, 2013 (Exhibit 5). Amendments to an existing I.E.P. are permitted without a convening of the C.S.E. pursuant to the provisions of 34 C.F.R. §300.324(a)(4). Parent was provided, on September 13, 2013, with the proposed change of Student’s I.E.P. from a Classroom Setting of to a Classroom Setting of Upon her agreement and consent, Student’s I.E.P was changed. Thus, on October 1, 2013, Student was appropriately placed in a Special Class with a staffing ratio of Parent contended, in her testimony, that she did not understand what she was signing. However, I note that Parent had been presented with a similar document on September 4, 2013 – nine days prior to her signing her Consent to a class program – which changed Student’s I.E.P. from providing no Special Education Transportation to Special Education Transportation Recommended. Parent signed this document on September 4, 2013 (Exhibit 5). I do not accept Parent’s testimony that she did not understand the purpose of the signed Consent of September 13, 2013 (Exhibit 5). It is my determination and finding that Student was in his correct placement on October 1, 2013. However, even if my finding were otherwise, such would not change my determination in this proceeding, as I would find that Student’s behavior that resulted in the disciplinary proceeding was not a direct result of – or in any way connected to – Student’s placement in a Special Class.

It is, therefore, my finding and determination that Parent’s challenge to the actions and findings of the MDR team, when it met on October 11, 2013, is without merit and must be dismissed. Similarly, it is my finding and determination that none of the actions or determinations made by the MDR team on October 11, 2013 constituted a denial of a free, appropriate public education (FAPE) to Student.

Parent requested, in her Due Process Complaint (Exhibit 1) that District conduct a Functional Behavioral Assessment in order to develop an Behavioral Intervention Plan and, after its development, to reconvene to prepare a new I.E.P. In light of my finding herein, I find it unnecessary to do so.

Parent also sought in this proceeding that an Order be issued requiring District to issue Parent a Nickerson Letter. As noted by the State Review Officer in Application of Blank, Appeal No 12-039, the Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. 2010]; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092). Again, in light of my findings and determinations made in this Decision that Student has not been denied a free, appropriate public education, such relief is also denied

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED Dated: November 25, 2013

____________________

JAMES P. WALSH

Impartial Hearing Officer. JW:mv

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 RECORD ON NOVEMBER 14, 2013

A. Special Education Superintendent’s Suspension Parent Notice, dated 10-2-13 (10 pages; Parents)

1. Parent’s Due Process Complaint Notice, dated 10-17-13 (2); Facsimile Transmission (1) (3 pages; DOE)

2. Letter to Parent from Office of dated 10-18-13 (4 pages; DOE)

3. Notice to Parent of Referral to Conduct an MDR, and, if applicable, to Review /Conduct a Functional Behavioral Assessment and Behavioral Intervention, dated 10-3-13 (6 pages; DOE)

4. Student’s I.E.P. as Developed by District’s C.S.E. dated 1-30-13 (16 pages; DOE)

5. Letter to Parent, dated 9-12-13 and Parent Consent DOE dated 9-13-13 (1); Letter to Parent, dated 9-4-13 and Parent Consent, dated 9-4-13 (1) (2 pages; DOE)

6. Student’s I.E.P., dated 1-30-13, as modified (15 pages; DOE)

7. Evaluation of Student by, dated 2-16-12 (6 pages; DOE)

8. Vineland Survey Interview Report, date 3-5-12 by DOE (8 pages; DOE)