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: January 31, 2013

February 6, 2013

Actual Record Closed Date: February 25, 2013

Hearing Officer: Edgar DeLeon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date District Social Worker DOE 02/06/13

Dr. CPSE Administrator DOE 02/06/13

Mother PARENT 01/31/13 02/06/13

On December 21, 2012, I was appointed the Impartial Hearing Officer (“IHO”) to conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a (3) year old pre-school student and the New York City Department of Education (“DOE”) - District 21, regarding the student’s special education program. I was appointed after the recusal of at least one other IHO.

A pre-hearing conference was held on January 31, 2013. The Parent appeared at the pre-hearing but the DOE did not appear. The impartial hearing was subsequently held on February 6, 2013. A list of the witnesses attending the hearing and the documents received in evidence is annexed hereto.

BACKGROUND

The Parent’s Due Process Complaint (“DPC”) asserts that the student has speech and behavior problems. (DPC) An Individualized Education Program (“IEP”) was created for the student on December 5, 2012 and December 20, 2012. (Id.) Neither of those IEP’s recommends the “center based school” the Parent wants the student to attend. (Id.) The student’s siblings have the same issues and attended a center based school where they succeeded. (Id.) The Parent also asserts that the student has not received services since September. (Id.)

THE DOE’S CASE

The DOE argues that the student, who is a , was offered “SEIT” (“Special Education Itinerant Teacher”) services and therapy.” (T-31) The Parent strongly believes that the student belongs in a program. (T-32) She had a hearing which resulted in the case being sent back to the Committee on Pre-School Special Education (“CPSE”) which on December 20, 2012 offered the student (10) hours of SEIT services. (Id.)

The DOE called one witness to testify on its behalf and submitted (12) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s only witness is a CPSE administrator. (T-37) She stated that because of the student’s she recommended that the student receive a SEIT with . (T-39) The student’s academic standing was descent. (T-41) The student’s indicated that his “verbal” was at a low rate. (T-43) The student has the potential to learn and does not need a small restrictive setting. (T-44) She would recommend that academically, the student should be placed in a day care or a general education setting, but where the teacher sits with him to guide him for and for his that were caused by his speech delays. (Id.)

The witness stated that a SEIT teacher is a multi-faceted, multi-talented individual that only deals with one child. (T-45) She or he can uses different approaches with the student. (Id.) She believes that the student would benefit from additional SEIT hours due to the fact that he was not receiving anything. (T-51)

On cross examination, the witness testified that that she has not worked with children who are (3) to (5) years old. (T-52-3) However, she does know how to observe children at any level and see what problems they may have. (T-54) She has not spoken with the student’s , special education teacher or current teachers. (T-55) She did sit in on the student’s IEP meeting. (Id.)

The witness stated that the student’s evaluations were well written and the Parent did not have any questions about them when she asked her. (T-57-8) The Parent conceded this point. (T-58)

On re-direct examination, the witness testified that the student’s cognitive scores indicate he has the potential of learning. (T-60) “One on one” would have helped the student with his . (T-61)

On re-cross examination, the witness testified that the SEIT teacher works with the classroom teacher and any teaching assistant in order to help maintain and focus any teaching methodology in the classroom. (T-62)

THE PARENT’S CASE

The Parent argues that the student is ( ) years old, has . (T-33) She believes that the student needs a center-based school and disagrees with the DOE’s recommendations. (Id.) She does not believe that the DOE recommendation offers the student enough support. (Id.)

The Parent was advised and offered the opportunity to retain counsel for the hearing, but instead proceeded pro se. (T-4 & 33) The Parent called (2) witnesses to testify on her behalf and submitted (3) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the for the Parent’s two other children. (T-65) She currently works with children that are (3) to (5) years old. (T-68) She has never worked with the student. (Id.) After she read the student’s evaluations, she thought that he was a high risk for comprehending and producing language and that it was a travesty that he was not being given services. (T-69) The student barely said any words and at his age he should have a working vocabulary. (Id.)

On cross examination, the witness testified that she does not recall what the student’s evaluation said about his IQ. (T-72-3) She was not a part of the team that reviewed all of the student’s evaluations. (T-78) There was no re-direct examination of the witness. (Id.)

The Parent’s second and final witness is the student’s mother. (T-79-80) She stated that the student is already ( . (T-80) The student is aware of the fact and embarrassed that . (Id.) According to his educational evaluation, the student in overall at “ ”, and has ” and “self-help’ skills. (T-81)

The witness stated that she is an educator herself. (Id.) Ten hours of SEIT services per week are not enough for the student who needs to have constant reinforcement. (T-82) A child of the student’s age should have approximately 3,000 words in his vocabulary. (Id.) The student has at most (40) to (50) words in his vocabulary. (Id.) The student throws tantrums. (T-82-3) The student and his . (T-85) Cognitively, the student . (T-86)

On cross examination, the witness testified that the student is in a licensed daycare with no more than (15) to (18) students. (T-88) The student has been there since he was ( ) years old. (T-89) The student does not want to participate. (T-90) He barely . (T-91) His teacher tells her that the student mostly plays by himself. (T-92) There was no re-direct examination of the witness. (T-93)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SRO Decision 06-037 states in relevant part:

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).6 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 parents' 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 (Burlington, 471 U.S. at 370-71). "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" (id. at pp. 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir.

2000]). 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No.

06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

As noted above, “An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (Supra) Here, the “Summary of Findings” received in evidence states that the student’s “ . He does not . Basic symbolic play skills have emerged.” (D2)

The student’s “Observation Report” dated August 15, 2012 notes that the student is in a Day Care with (28) students which made it a very noisy environment. (D-3) The report notes, as verified by the Parent, that a licensed Day Care or nursery for children (3) years of age should contain no more than (15) to (18) students. (Id. & T-88) The observation further states that the student clearly and “possibly a Special Education teacher” to encourage verbal interaction. (Id.) The report also states that an integrated program with related service of speech might be considered. (Id.)

The student’s “Educational Evaluation” is dated April 17, 2012 and notes that his expressive language is significantly delayed. (D-4) The student is said to get frustrated and tantrum when he is not understood. (Id.) The evaluation also states that the student demonstrates mild to moderate delays in all the developmental areas. (Id.) The evaluation highly recommends that the student attend a small, language rich, special education setting where his global deficits would be addressed. (Id.)

The student’s “ ” is also dated April 17, 2012. (D-5) The evaluation notes that the student’s verbal IQ score of (81) falls in the of intellectual functioning. (Id.) However, the student is also said to be “… and allows himself the ability to perform to his full potential, as opposed to the where he tends to feel less confident in his abilities.” (Id.) The student’s is said to have an and that his word bank is minimal, with only approximately “10” words in his vocabulary. (Id.) The student is also said to be able to perform in range on subtest when he feels more comfortable in his capabilities. (Id.) The concludes by stating that he may benefit from placement in a small center based classroom in order to optimize his to emerge. (Id.)

A “Social History/Parent Interview” was also received in evidence. (D-5) The report notes that at the time, the student was receiving (2) therapy sessions, as well as (2) special education sessions each week. (Id.) The student’s father reports that the student is evidencing delays in the area of receptive as well as . (Id.) The report further notes that the student’s father wants him to be able to in small setting so that he would not become overwhelmed because of his . (Id.)

The student’s “Classroom Observation” is dated April 17, 2012 and recommends that he would greatly benefit from attending a small, language rich, educational setting where his would best be addressed. (D-7) The student’s Evaluation” is dated April 19, 2012 and states that his “receptive lexicon” is restricted for his age. (D-8) The student’s is for his age according to his father’s report that he expresses his needs by .” (Id.) The evaluation recommends continued and for the student. (Id.)

The student’s reports and evaluations make it clear that he needs therapy. His “Observation Report” states that he might also possible benefit from a Special Education Teacher. (D-3) The Parent submitted a letter received in evidence from the student’s “Special Instructor” dated July 4, 2012, which again identified the student’s and and recommends a “center based program” for the student. (P-B) The student’s provided a letter dated July 20, 2012 wherein she states that the student needs services and recommends that the student be placed in a small, language enriched class with emphasis on developing appropriate communication skills which would help facilitate the student’s development of age-appropriate and pre-academic skills. (P-A) Finally, the student’s teacher states in a letter dated December 4, 2012 that he is recently but fails to communicate his needs and on a daily basis has accidents. (P-C) In her opinion, these issues must be addressed in a small group. (Id.)

The student’s IEP dated December 20, 2012 notes the throughout. (D-12) The IEP recommends that he receive (10) hours per week of ( ) SEIT services at his preschool, and services (2) times per week for (30) minutes per session at the student’s preschool. (Id.) The services would be provided on a “12-month” basis in a pre-school class of (15) to (18) students according to the Parent’s testimony. (Id. & T-88) The IEP accurately reflects the results of the student’s evaluations and reports, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Supra & D-12)

State regulations provide in relevant part that “[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer.” (See 8 NYCRR 200.5[j][5][v]) Based on the record before me, I must find that the student’s IEP is “reasonably calculated” to enable the student to receive educational benefits in the “least restrictive environment” (“LRE”) as required by law. (See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]), 20 U.S.C. § 1412[a][5][A], 34 C.F.R. § 300.550[b] & 8 NYCRR 200.6[a][1]) Accordingly, I also find that the DOE did offer the student a “free and appropriate public education” (“FAPE”). Having so found, the necessary inquiry is at an end and I need not determine whether the Parent’s proposed placement is appropriate and whether equitable considerations bar the Parent’s request for relief.

NOW therefore, it is hereby

ORDERED that the Parent’s requests for relief in the DPC dated December 20, 2012 is DENIED. Dated: March 13, 2013

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

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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

Number/Letter Title Dated For # of Pages

01 IEP 06/19/12 DOE 11

02 Summary of Findings 04/17/12 DOE 01

03 Observation 08/15/12 DOE 02

04 Educational Evaluation 04/14/12 DOE 03

05 Evaluation 04/17/12 DOE 03

06 Social History 04/17/12 DOE 02

07 Classroom Observation 04/17/12 DOE 01

08

Evaluation 04/17/12 DOE 02

09 C7 Notice/Recommendation undated DOE 01

10 C7 Notice/Recommendation undated DOE 01

11 C7 Notice/Recommendation 12/20/12 DOE 01

12 IEP 12/20/12 DOE 11

A Letter from 07/20/12 PARENT 01

B Letter from 07/04/12 PARENT 01

C Letter from 12/04/12 PARENT 01