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 3, 2012

April 18, 2013

May 31, 2013

June 17, 2013

Actual Record Closed Date: September 11, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2012

Advocate — Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2013

Attorney — Parents

Mother — Parents

DOE Representative — DOE

DOE

(via telephone)

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

Attorney — Parents

Mother — Parents

Parents

(via telephone)

Parents

(via telephone)

DOE Representative — DOE

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

Attorney — Parents

DOE Representative — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement and program of for the 2012-2013 school year. The hearing was convened at the written request of parent (the “Parent”) by letter dated June 18, 2012. (Exhibit A) Hearings were held on July 3, 2012, April 18, 2013, May 31, 2013, and June 17, 2013, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.

In scheduling the various hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8

NYCCR §200.5(j)(5)()]

After the first hearing day, July 3, 2012, an Interim Order was issued, dated July 26, 2012, addressing the pendency entitlement of during this proceeding. The following order was contained therein:

The Parent’s request for pendency, pursuant to the Findings of Fact and Decision, issued by dated September 23, 2011, is granted. The DOE shall provide:

1. Teacher Support Services of six (6) hours per week at a rate not to exceed one hundred dollars ($100) per hour; and,

2. Parent training of one (1) hour per week at a rate not to exceed one hundred ($100) per hour.

BACKGROUND

year-old boy diagnosed with . The DOE’s Committee on Education (“CSE”) convened on June 26, 2012, to develop an Individualized Education Plan (“IEP”) for R.A. for the 2012-2013 school year. was classified by CSE as a student with . In the IEP created on that date, the CSE recommended placement in a New York State approved day program with a . (Exhibit 6) The CSE also recommended the related services of and . The New York State approved day program specified on IEP was , a school he had attended in the prior school year.

The Parent agreed with the DOE’s recommendation for to continue in the program as his primary educational placement. That component of the CSE’s recommendation is not specifically challenged. However, although the Parent is in agreement with that placement as a component of program, she maintains that the CSE’s recommendation is not appropriate as a whole program for

By letter dated June 18, 2012, the Parent notified the DOE of her disagreement with the DOE’s failure to recommend a program which included a home component consisting of education teacher support services for The Parent asserts that the CSE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2012-2013 school year. The Parent is seeking an order that the DOE must provide the requested services.

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

is a school assigned to the DOE’s CSE in . He attended the CSE meeting on June 26, 2012, serving as the school . He did not serve as the District Representative. (Tr. 25-27) At the time of his testimony, Mr. had no independent recollection of the meeting. (Tr. 31) When asked to look at the IEP, Mr. confirmed that there were no education providers present who had worked with (Tr. 32) Mr. had no recollection of where the information included in the section of the IEP titled ” came from, whether a home services component to the program was discussed, whether were discussed, or who specifically wrote the goals contained in the IEP. (Tr. 32-36) Mr. explained the function of a draft IEP. He stated that it is a “working” IEP prepared with the information provided to the CSE prior to the meeting. At the meeting, if there is an objection to anything contained in the draft IEP, it can be modified. Since there were no participants in the meeting who had worked with including staff from , there would have been no basis for changing anything at the meeting unless a request came from the Parent. Therefore, Mr. agreed, the final IEP likely looked the same before and after the CSE meeting. (Tr. 41-42)

THE PARENT’S CASE

is a Board with numerous affiliations and professional roles. Of relevance to this matter, Mr. has been providing the home-based services as well as parent training to since October 2011. The parent training provided, of , is necessary for the and to ensure that the Parent is working on the same skills as the providers. (Tr. 56; 60-61) Mr. explained the concept and stated that one (Tr. 66-67) Mr. has had frequent contact and collaboration, at least week, with the other up goals and instructional strategies. (Tr. 67) Mr. has also had contact with teachers at via telephone and email to discuss , as well as to provide feedback on what was being worked on. He also had the opportunity to observe in his school setting. Mr. described the manner in which he . and established goals for him. (Tr. 68-69) Mr. described , including his strengths and weaknesses. (Tr. 116-118)

Mr. stated, that for the 2012-2013 school year, . was receiving Exhibit E) Mr. explained that based on an impartial hearing award, there had been “make-up hours” provided throughout the 2011-2012 school year. Therefore, from the time Mr. began providing services, in October 2011, throughout most of the 2011-2012 school year, received approximately . (Tr. 82-83) Those hours diminished toward the end of the 2011-2012 school year. (Tr. 72) Mr. compared the 2011-2012 school year, during which received an average per week of services, to the 2012-2013 school year, during which received per week of services It’s just not as significant I guess than he did previously.” (Tr. 85-86)

Mr. believes that it would be appropriate for to have services provided at the level of the 2011-2012 school year per week because “he seemed to make the mother. She described After receiving services through early intervention, the DOE’s Committee on Preschool Education recommended ’s , , which attended. He has attended since In September 2011, Ms. requested that receive and related services at home because she observed a and at school and there was no carryover. Ms. stated that an by a and a resulted in a recommendation of “ Therefore, Ms. is described the CSE meeting of June 26, 2012. She stated that, although was receiving services at the time, home services were not discussed at the meeting. She believes that he . received his mandate for able to find an agency, , to provide In addition to the services mandated in the IEP, and partially provided through an is

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE’s case consisted of the testimony of Mr. . He served as the school at the CSE meeting of June 26, 2012. It seems that he contributed little, if anything, to the meeting, given his role and the issues presented related . Similarly, he was unable to contribute anything during his testimony. His testimony was based on his review of the IEP. He was able to read the names of the participants and read the recommendation made by the CSE. Mr. had no independent recollection of the meeting. He gave no testimony regarding the basis for the CSE’s recommendation. Certainly, he did not provide any support for the appropriateness of the recommendation. He was not even asked if he believed it was an appropriate recommendation.

At the end of Mr. ’s testimony, the Hearing Officer asked, “So the DOE will not be presenting any testimony with regard to the appropriateness of the program for the child, for the 2012-2013 school year?” The DOE representative responded, “No, that’s it.” (Tr. 47) While the DOE’s representative at the impartial hearing zealously argued in support of the CSE’s recommendation and its appropriateness, there is no evidence in the record from the DOE to support that argument. This does not mean that the Parent is automatically entitled to all of the services sought in her hearing request. However, the DOE’s presentation of Mr. ’s testimony, which offered no substantive value towards establishing the DOE’s position, is no different from the DOE having failed to call any witnesses. The effect is the same as the DOE choosing not to present a case.

The Parent has the burden of establishing the appropriateness of the program she has provided or seeks to provide for R.A. (Application of a Child with a , Appeal No. 9557; Application of a Child with a , Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s education needs. (Burlington, 471 U.S. at 370; Application of a Child with a , Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the services sought by the Parent, as an additional component of educational program, along with his placement at , are appropriate to meet education needs for the 2012-2013 school year, in part. It has been persuasively established by Mr. , Ms. and Ms. as the testimony cited herein documents, that a home program is necessary for However, the evidence does not support a finding that the number of hours and scope of services requested by the Parent is required in order for . to receive an appropriate education and make meaningful progress.

Mr. testified that, although the providers saw larger gains in the 2011-2012 school year than they saw in the 2012-2013 school year, and they attribute that difference to the number of hours provided, “it’s important “ It’s just not as significant I guess than he did previously.” (Tr. 84-86) Mr. also stated that skills are the “

Mr. believes that it would be appropriate for to have services provided at the level of the 2011-2012 school year, of per week, because “he seemed to make Although the gains were not as significant as the prior school year still 132) Clearly, the However, that does not mean that

Finally, the DOE does not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s cooperation with the DOE and there is no evidence to the contrary.

It is ordered that:

1. The DOE shall provide Education Teacher Support Services hours per week to at a rate not to exceed one hundred dollars ($100) per hour for the 12-month 2012- 2013 school year; and,

2. The DOE shall provide parent training of one (1) hour per week to at a rate not to exceed one hundred dollars ($100)

per hour for the 12-month 2012-2013 school year.

3. The Parent’s requests for additional SETSS hours, additional are denied. Dated: September 23, 2013 Corrected Date: September 26, 2013 (Correction made to cover page)

________________________

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer AI: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 THE RECORD

DOE’s Exhibits

1. , 3/12, 2 pages

2. , 4/12, 2 pages

3. 5/5/12, 3 pages

4. 6/3/12, 3 pages

5. 6/12, 4 pages

6. IEP, 6/26/12, 19 pages

Parent’s Exhibits

A. Impartial Hearing Request, 6/18/12, 3 pages

B. Findings of Fact and Decision, 9/23/11, 10 pages

C. 6/20/12, 3 pages

D. 9/1/12, 3 pages

E. 5/1/13, 3 pages

F. , 4/25/13, 2 pages