New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.

SED ID No.

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Dates of Hearings: October 17, 2012

January 31, 2013

March 21, 2013

April 16, 2013

April 17, 2013

June 17, 2013 Record Close Date: August 1, 2013

Hearing Officer: Mindy G. Wolman, Esq.

On September 6, 2012, the parent (the “Parent”) of . ( the “Student”) filed a due process complaint against the New York City Department of Education (the “DOE”) under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. section 1415 et. seq., Article 89 of the New York State Education Law section 4401 et. seq., and Section 504 of the Rehabilitation Act (“Section 504"). I was appointed as impartial hearing officer on September 7, 2012. The due process complaint in this matter was amended on November 26, 2012 (Parent Exh. A).

A pre-hearing conference went forward on October 17, 2012 (IHO Exh. I), and substantive hearings went forward on January 31, 2013, March 21, 2013, April 16, 2013, April 17, 2013, and June 17, 2013.

Lists of the persons who appeared at the hearing and the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding was extended several times (IHO Exh. II). The extended compliance date in this proceeding is August 12, 2013.

BACKGROUND AND POSITIONS OF THE PARTIES

old male student who is classified as a student with a disability having an “ Although the Student’s eligibility for special education supports and services is not in dispute, the Parent disputes the intellectual disability classification. The Student was previously cldassified as having a .” The Student is diagnosed as having (“ ”) and a (Parent Exhs. H and K). He also has (Parent Exh. P).

In addition to challenging the Student’s disability classification, the Parent alleges that the DOE did not provide the Student with a free appropriate public education (“FAPE”) for the 2010-2011, 2011-2012, and 2012-2013 school years. The Parent seeks compensatory education in the form of 858 hours of tutoring from ”). The due process complaint also seeks transportation to and from , make-up services for related services that were not provided during the beginning of the 2012-2013 school year, payment of assessment and registration fees, and an appropriate Individualized Education Program (“IEP”) and placement. The DOE maintains

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that it provided the Student with a FAPE for the three school years in question, that the Student is appropriately classified as having an intellectual disability, and that the Student is not entitled to compensatory education or services. The DOE requests that the Parent’s request for relief be denied in its entirety.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written an IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The DOE has the burden of proving that its Committee on Special Education (“CSE”) offered the Student a FAPE. In order to meet this burden, it must establish that the CSE’s program and placement recommendations were reasonably calculated to enable the Student to make meaningful educational progress. It must also establish that the CSE appropriately changed the Student’s classification from to . The Hearing Record includes multiple evaluations and IEPs for the school years in question.

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. . . 8 NYCRR § 200.5(j)(4)(ii).

Compensatory education and services are equitable remedies. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “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. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs.

C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir. 1988)].

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y.Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08-054). The 2010-2011 and 2011-2012 School Years

During the 2010-2011 and 2011-2012 school years, the Student was placed in a 12:1:1 special class at P.S. 308, a community school district (“CSD”) school. The IEPs that were in effect for those years (DOE Exhs. 2, 3, and 4) included counseling, occupational therapy, and speech and language therapy as related services. The DOE presented the testimony of the school psychologist from special education teachers who taught the Student and participated in his CSE meetings. The IEPs for those two school years were not perfect, and some of the Parent’s substantive and procedural challenges have merit. However, in considering the information and evaluations available to the CSE at the time that the 20101-2011 and 2011-2012 IEPs were prepared, I find that the IEPs were reasonably calculated to enable the Student to make meaningful progress. The Parent attended all of the CSE meetings and agreed with the CSE’s program recommendations. The Parent now maintains that the Student did not make meaningful progress and that his lack of progress establishes that the DOE failed to provide him with a FAPE. The Parent cannot use allegations of the Student’s subsequent lack of progress to negate the CSE’s recommendations one or two years after the fact. In determining whether or not the CSE’s recommendations for the Student were appropriate, I must look at the recommendations as of the time that they were made. In so doing, I find that the recommendations were reasonably calculated to enable the Student to make meaningful educational progress.

Even assuming, arguendo, that the Parent’s challenges to the IEP descriptions of the Student and goals were inadequate, the defects cited to not rise to the type of FAPE deprivation that would warrant compensatory services for the 2010-2011 or 2011-2012 school years. The Student was not deprived of appropriate services for a prolonged period. As of the time of that the CSE’s 2010 through 2012 recommendations were made, the CSD recommendations were appropriate. The Student was placed in a class, with related services for both school years.

The Student is not entitled to compensatory services for the 2010-2011 and 2011-2012 school years. The 2012-2013 School Year

On June 1, 2012, the CSE convened an IEP meeting at which it recommended that the Student’s classification be changed from Speech or Language Impairment to Intellectual Disability and that the Student’s program be changed from 12:1:1 in a CSD school to a 12:1:1 in a specialized (District ) school (DOE Exh. 10). The CSE also determined that the Student was eligible to receive services on a twelve-month (extended) school year basis. Prior to the meeting, the Parent had specifically requested that the Student’s program be changed to a twelve month District program (DOE Exh. 14).

As with the 2010-2011 and 2011-2012 IEPs, the 2012-2013 IEP was defective in some respects. The description of the Student in the “present levels of performance” section does not include sufficient detail. There was also a degree of “vagueness” in some of the IEP goals. In light of his delay in mathematics, the IEP should have included more math goals. That being said, the defects in the IEP do not rise to the level of the FAPE deprivation necessary to warrant a compensatory education or compensatory services award. The DOE presented witness testimony to support the CSE’s recommendations. Based on that testimony, and the documentary evidence presented at the hearing, I find that the CSE’s June 1, 2012 recommendations were reasonably calculated to enable the Student to make meaningful educational progress. The Parent participated in the IEP meeting, and the CSE recommended the specific program that the Parent requested ( special class in a District 12-month program). The Student hadn’t made appropriate progress during the prior school year, and the CSE moved him to a more restrictive setting so that he would have more individualized and specialized support.

The Student started to attend the District program (at ) in September of 2012. The due process complaint does not seek compensatory education or compensatory services for the Summer of 2012. The complaint did however seek an order directing the DOE to provide the Student’s related services as of the beginning of the 2012-2013 school year and that it provide make-up sessions for all related services that were not provided during the course of the school year. It is undisputed that the Student did not begin to receive his related services for a substantial period of time after the school year began. The Student began to receive speech and language therapy as of October 25, 2012, occupational therapy as of November 30, 2012 (the Student received some sessions before than, but did not receive his full mandate until November 30), and counseling as of mid-October of 2012 (Tr. at 192-196). He is entitled to receive compensatory services for the related services that he should have, but did not, receive during the 2012-2013 school year. Classification

Although I find that the actual program recommended by the CSE on June 1, 2012 was substantively appropriate, I find that the DOE did not establish that the CSE’s decision to change the Student’s classification to was appropriate. According to the Commissioner’s Regulations, general , existing concurrently with deficits in and manifested during the developmental period, that adversely affects a student’s educational performance” 8 NYCRR § 200.1(zz)(7). There was nothing in the evaluations or testimony to regarding the “manifested during the developmental period” component of the classification. The recent testing cited in the DOE’s witness testimony did not support the change in the Student’s classification. The Student’s varied in the assessments given over the years. It appears that his most than prior testing because the components (which had not been included in prior testing) brought his overall score down. If the working memory and processing speed scores were, as the Parent asserts, partially impacted by the Student’s the lowered full scale IQ does not warrant an intellectual disability classification. The Student has receptive and . These are key components of his educational disability. Moreover, since the Student’s prior classification was , the CSE should have obtained a full speech and language evaluation prior to changing his classification. The CSE’s decision to change the Student’s classification to intellectual disability was erroneous and must therefore be vacated. Request for New IEP and Placement

In the Due Process Complaint, the Parent also requests classification as speech or language impaired, “an appropriate IEP,” placement in a nonpublic school or in a public school with appropriate “individualized support,” a “Nickerson Letter,” and additional tutoring from Despite my finding that the IEPs were reasonably calculated to provide meaningful educational benefits at the times that they were prepared, it is clear that the Student did not in fact make much progress. He remains substantially behind in terms of his reading, writing, and math skills. The Student needs a higher level of individual support in order to make meaningful educational progress. However, the Record does not support the need for a nonpublic school. Nor does it support the Parent’s request for a Nickerson Letter.^[1]

Since the CSE’s classification of the Student as a student with a disability having an is being vacated, the Student’s classification should revert to his prior impaired. The Parent presented two witnesses regarding the Student’s need for individual support: Ph.D ) and ). Dr. testified that the Student needed tutoring , (Tr. at 560). However, she could not give an opinion as to how many hours of tutoring he needs (Tr. at 560). Ms. testified that, based on the (Parent Exh. EE), the Student should be provided with 858 hours of , and that such services will bring him from his second to third grade academic performance levels to the eighth or ninth grade level. Given his slow rate of progress in the past, it does not appear likely that 858 hours of instruction would allow the Student to increase his academic functioning by six grade levels. Moreover, Ms. recommendation was based exclusively on the assessment. She did not consider evaluations and progress reports, or any of the other information typically considered by a CSE in making program recommendations. Although I give little weight to her recommendations, I find that the Student needs to have some level of one-to-one tutoring in order to make meaningful educational progress. Since, the Student needs to have individual support on a daily basis, his IEP needs to include individualized support throughout the school day include five hours per week of tutoring. At this point, he needs a high level of individualized instruction and 1:1 support in order to make meaningful educational progress.

The Hearing Record does not support a finding would be able to provide the Student with the type of individual support that he needs to make meaningful progress. It appears from Ms. ’s testimony that one of the purposes assessments is to provide parents’ attorneys with the information that they need to present at impartial due process hearings (Tr. at 340-41). Although it is viewed as important to explain the testing results to attorneys, it is not viewed as important to explain the results to parents (Tr. 340-41). According to Ms. it is not necessary to explain the to parents unless (and until) arrangements are being made (and funding has been awarded) for a student to receive . It seems to me that in order to make an informed decision as to whether or not to seek funding for the Parent needs to understand the test results and recommendations. I find it troubling that as so little concern about a parent’s understanding of the results and that it views the parent as having a role in the process only after the impartial hearing process.

Since the purpose of the was unrelated to assisting the Parent and CSE in understanding the Student’s needs (in order to develop a special education program for the Student), I see no reason to direct the DOE to bear the cost of that assessment.

ORDER

IT IS HEREBY

ORDERED that the New York City Department of Education is directed to provide the Student with make-up sessions for all occupational therapy, counseling, and speech and language therapy sessions that the Student was entitled to but did not receive during the 2012-2013 school year; the Department of Education shall promptly issue RSA forms for the Student to receive the services; and it is further

ORDERED that the Parent’s’ request for 858 hours of compensatory services is denied; and it is further

ORDERED that the Committee on Special Education is directed to convene a CSE meeting to prepare a new Individualized Education Program that classifies the Student as a student with a disability having a , provides him with individualized support throughout the school day, and includes five hours per week of ; and it is further

ORDERED that in all other respects that Parent’s request for relief is denied.

Dated: August 12, 2013

MINDY G. WOLMAN

Impartial Hearing Officer

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2012

Esq. Attorney (by telephone) — Parents

District Representative (by telephone) — DOE

District Repesentative (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31,2013

Lisa M. Gibertoni, Esq. Attorney — Parents

Esq. Attorney — DOE

* School Psychologist (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013

Mother — Parents

Esq. Attorney — Parents

Esq. Attorney — DOE

* Special Education Teacher (by telephone) — DOE

* Assistant Principal (by telephone) — DOE

Asha Mashariki* Special Education Teacher (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2013

Esq. Attorney — Parents

Esq. Attorney — DOE

* Testified at Hearing — DOE

— DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2013

Mother — Parents

Esq. Attorney — Parents

* Center Director (by telephone) — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 17, 2013

Mother — Parents

Esq. Attorney — Parents

Ph.D.* Clinical Psychologist (by telephone) — Parents

Esq. Attorney — DOE

* Special Education Teacher (by telephone) — DOE

* Testified at Hearing — DOE

— DOE

DOCUMENTS ADMITTED INTO THE RECORD

PARENT

A. Amended Hearing Request, 11/26/12, 9 pp.

A. Individualized Education Program, 12/12/08, 8 pp.

B. Individualized Education Program, 6/10/08, 13 pp.

C. Individualized Education Program, 5/15/07, 16 pp.

D. MARKED FOR IDENTIFICATION ONLY

E. Report, Dr 7/11/12, 6 pp.

F. Report, 12/06/11 and 5/21/12, 8 pp.

G. Outpatient Evaluation, 5/1/12, 2 pp.

H. Report, Dr. , Ph.D., 6/13/11, 4 pp.

I. Child and Adolescent Heath Examination Form, 4/11/11, 1 p.

J. Evaluation, 7/27/10, 2 pp.

K. Evaluation, 11/20/09, 3 pp.

L. School Function Evaluation Tracking Form, 12/16/08, 6 pp.

M. Comprehensive Report, 2/13/07, 10 pp.

N. Social History Update, 11/20/08, 2 pp.

O. Evaluation, 3/19/07, 3 pp.

P. Classroom Observation, 3/7/07, 2 pp.

Q. Comprehensive Evaluation, 11/21/08, 5 pp.

R. Social History, 1/31/07, 2 pp.

S. WITHDRAWN

T. School Records, printed 6/6/12: 2011-2012 Attendance Record; Exam Scores Admission and Discharge History; Special Education Data; Student Historical Profile, 6 pp

U. Student Report Card, 2011-2012, to marking period 4, 2 pp.

V. Student Report Card, 2010-2011, to marking period 6, 2pp.

W. Quarterly Progress Report, 3/2011, 2 pp.

X. Student Progress Report, 10/6/10, 2 pp.

Y. Student Report Card, 2009-2010, to marking period 4, 2 pp.

Z. MARKED FOR IDENTIFICATION ONLY

AA. MARKED FOR IDENTIFICATION ONLY

BB. Pupil Progress Report, February 2006 and June 2007, 1 p.

CC. Student Academic Evaluation Results, 6/26/12, 3 pp.

DD. Student Program Map, 8/21/12, 1 p.

EE. Test Sheets, 6/21/12, 56 pp.

FF. Letter from Parent, 6/27/11, 1 p.

GG. Letter from Parent, 12/2/10, 1 p.

HH. Letter from GHI to Dr. , 9/14/10, 2 pp.

II. Letter from , M.D., 7/27/10, 1 p.

JJ. Letter from , 2/12/10, 2 pp.

DEPARTMENT OF EDUCATION

1. Neuropsychological Evaluation, various dates, 5/26/09-7/7/09, 7 pp.

2. Individualized Education Program, 1/21/10, 11 pp.

3. Individualized Education Program, 1/20/11, 13 pp.

4. Individualized Education Program, 12/9/11, 14 pp.

5. Student Progress Report, Occupational Therapy, 12/12/11, 2 pp.

6. Student Progress Report, Counseling, 12/9/11, 2 pp.

7. Classroom Observation, 12/8/11, 2 pp.

8. Level I Vocational Interview - Student, 1/9/11, 2 pp.

9. Educational Evaluation Report, 12/8/11, 4 pp.

10. Individualized Education Program, 6/1/12, 16 pp.

11. Student Progress Report, Counseling, 6/1/12, 2 p.

12. Level I Vocational Interview - Parent/Guardian, 6/1/12, 3 pp.

13. Evaluation, 6/1/12, 5 pp.

14. Letter from 3/27/12, 1 p.

IMPARTIAL HEARING OFFICER

I. Summary of Pre-Hearing Conference, 10/17/12, 1 p.

II. Emails from IHO re Compliance Date Extensions, 10/18/12, 2/1/13, 3/3/13, 4/17/13,

4/17/13, 6/17/13, 6/25/13, 7 pp.

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.

Footnotes

[1] A P-1 Letter (also known as a “Nickerson Letter”) is primarily a procedural remedy. A student is entitled to a P-1 Letter when the Department of Education fails to timely evaluate and offer an appropriate program and placement to the student. A P-1 Letter is a written authorization from the Department of Education allowing the parent of a child with a disability to place the child, at the Department of Education's expense, in a private school which has been approved as a school for children with disabilities by the New York State Education Department (see Jose P. et al. v. Ambach et al., [79 C 270, U.S. D.C., E.D. NY, 1982]). The facts of this case do not meet the criteria for Nickerson Letter.