New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

District:

Hearing Requested By: Parent

Date of Hearing: September 22, 2014

October 8, 2014

Actual Record Closed Date: October 20, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22,

2014

Attorney for Parent — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2014

Attorney for Parent — Student

Parents

District Representative — DOE

INTRODUCTION

On 08/18/2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with D isabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

This matter was instituted by the impartial hearing request dated 08/11/2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2012-2013, 2013-2014 & 2014-2015 school year. Alleged failure results due to a DOE failure to address student’s individual needs, a 05/21/2014 IEP that fails to establish annual goals that reflect present levels of performance, failure to offer a program to address deficits, failure to provide an (Ex A 3), and failure to develop an appropriate

( ). (Ex A 4)

Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2014-2015 school year. (Ex A 1-3)

Relief sought includes a reconvene of the Committee on Special Education (CSE)

to address student individual learning needs, change of current placement to a more restrictive setting via a deferment to the Central Based Support Team (CBST), inclusion of specific program to be included in the 2014-2015 IEP, completion of an and ( ), services for the student, CSE development of meaningful and measurable goals (Ex A 4),

DOE to provide copies to the parents of all evaluations and other documents to be relied upon at an upcoming CSE meeting, payment of parent attorney fees and any other proper relief the IHO may order. (Ex A 5)

Another case is currently underway, is case number , regarding the subject student which seeks compensatory education services. The consolidation of that case with the case herein was denied. (IHO Ex III)

At hearing of 10/08/2014 IHO set out the four issues that were to be determined through the current hearing. This included a and a , if appropriate, a deferral to the CBST, or a Nickerson letter, so that the student could find appropriate placement, resolution of services, which the student has on the IEP, but the Parent is alleging have not been received yet and an to address the student's alleged aggression.

(T 27-28)

Parent seeks additional remedies in closing brief not identified in the hearing request or otherwise raised during the hearing it shall not be addressed herein. (IHO Ex 14-15)

I note that the parent seeks a remedy of a proper IEP meeting and evaluations to be conducted. The student right to a proper IEP meeting exists without such an order insofar as any meeting is requested. The parent, at this time, may also request an evaluation be conducted without the necessity of an order.

BACKGROUND

Student is currently if age, attending a school, ( ) as an student, in a class with . (T 9-10, Ex A 1 & C 6)

Most recent IEP of 05/21/2014 includes: classification of , level, level (Ex C 1), management needs of

, , , Teacher

support , ,

, ,

, (Ex C 2-3), periods weekly of services and periods weekly of services, time weekly for an session (Ex C 6), a school year (Ex C 7),special transportation accommodations (Ex C 9), instructional/functional levels for and (Ex C 10), promotion criteria of of the standards for and (Ex C 11).

Previous IEP of 05/17/2013 includes: classification of , - level, level (Ex D 1), , management needs of , ,

, instruction and (Ex D 2), periods weekly of services and periods weekly of services, (Ex D 5), a school year (Ex D 6), no special transportation accommodations (Ex D 8), instructional/functional levels for and (Ex D 10), and standard promotion criteria (Ex D 10).

THE PARENT’S POSITION

( ) presented the parent’s position at hearing and via closing statement which was considered herein. (IHO Ex set out the primary concern to be addressed via the hearing request. “It's really for the deferral. I mean, it's our position, based on our Hearing Request, that if you look at the two IEPs it shows a regression of two school years just even in a functional-- you know, a year ago he was at a level. Now he's at a level. So I don't know if that's a misprint or what. But it shows, you know, he's really--he's in at a level. I think the documentary evidence is supportive of a deferral to CBST…In the meantime, Parent is, you know, definitely eager to have her son actually in an appropriate placement.” (T 19)

In parent’s Closing Brief the parent makes a variety of uncontested arguments.

“Throughout the years, the Parent continued to express concerns about her son’s struggles, as she received reports and documentation from his school indicating failure and issues. Ex. P, Q, R, S, T, U, V, W, X, Z, AA, BB, and CC.” (IHO Ex 3)

Parent also points to the drop in student levels from at the time of the

05/17/2013 IEP to at the time of the 05/21/2014 IEP. (IHO Ex 3, C 10 & D 10)

Parent contends the IEE from Dr. , “determined that the Student has a broad based deficit, which includes in and . (Ex GG 13), …that compounding this difficulty, the Student also has weakness in areas of , including an and the need for . (Ex GG 13)…notes that the Student’s report cards indicate struggles across a wide range of subjects being failing or close to failing, and a significant decrement during the previous school year.

(Ex GG 13)...to address the Student’s individual needs, Dr. recommends a specialized school that employs teachers trained to teach students with deficits. (Ex GG 13)…recommends: or evidence based instruction at least times a week; - at least times a week; at least times a week; and extensive instructional modifications and accommodations. (IHO Ex 4-5)

PARENT WITNESS

( ), the student’s mother, testified that the student attended at (T 29), for and student attended (T 30-31), student was failing academically both years (T 29-30), parent raised concerns and wrote a letter (T 31), she has not received any information indicating the student has received the services indicated in the student’s IEP (T 32), parent does not know what are (T 43), parent received authorization for the student to receive independent provider services in the amount of hours, though only valid for less than a month (T 32, Ex E), parent requested an IEP meeting (T 33), parent identified the IEP of 05/21/2014 (T 33, Ex C), was increased at the IEP meeting (T 33), was added though parent did not understand “ ” (T 34), student had (T 34), since the student had not been allowed (T 35), teacher reported the student does not and last week was (T 36),

Doctor ’s Assessment is an accurate representation of the student (T 36, Ex

GG), student has never received (T 39).

DEPARTMENT OF EDUCATION POSITION

( ) conceded the DOE could not defend the IEP nor the student placement, for the 2014-2015 school year. (T 12)

Parent does contend the IEPs in effect for the 2012-2013 and 2013-2014 school years also failed to provide the student a FAPE. The DOE offered no support of an offer of FAPE for either school year.

DOE contends that they are awaiting independent educational evaluations, and upon receipt with consider if a deferral to CBST is appropriate. (T 13)

DOE did not contest any document or testimony presented by the parent.

In closing the DOE contends the IHO is not empowered to order the DOE to defer the matter to the CBST nor to direct the CSE to provide an to the student, since that would usurp the authority of the CSE. DOE contends the CSE is too appropriately address the student‘s needs upon request by the parent for a reconvene and review of the current evaluation. (IHO Ex IV 2)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.

2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't.

of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June

10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d

377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130]

[citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.

2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428

[W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't 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).

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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"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 offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 offered the student a FAPE (Burlington, 471 U.S. at 370-

71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT for 2013-2014 & 2014-2015 SCHOOL

YEARS

DOE conceded it had not offered the student a FAPE for the 2014-2015 school year. (T 12)

DOE failed to offer any evidence of an offer of FAE for the 2012-2013 nor 2013- 2014 school years.

The record is clear that the student regressed from the time of the 2012-2013 school year through the time of the 2013-2014 school year. This is evidenced by the IEPs themselves as outlined above and as detailed in parent closing brief. Documents reflect and issues. (Ex P, Q, R, S, T, U, V, W, X, Z, AA, BB, CC & IHO Ex 3)

Regression of at least school years is confirmed in the IEPs themselves. IEP of 05/21/2014 includes a level, level. (Ex C 1) IEP of

05/17/2013 includes: classification of , - level, level (Ex D 1), and instructional/functional levels for and (Ex D 10), and standard promotion criteria. (Ex D 10)

The IEP of 05/21/2014 also fails to include any goals, despite including a weekly, individual, service. (Ex C 6)

I find the DOE failed to provide the student a FAPE for the 2013-2014 and 2014- 2015 school years.

DOE OFFER OF FAPE FOR THE 2012-2013 SCHOOL YEAR

While parent includes the 2012-2013 school year in its hearing request, information is insufficient upon which to make a determination regarding the 2012-2013 school year. The IEPs submitted into evidence include an IEP with a service commencement date of 08/20/2013, after the end of the 2012-2013 school year. (Ex D 5)

and

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. §

1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).

In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address one or more of the following needs in order for the student to receive a [FAPE]" ("Guide to Quality Individualized Education Program [IEP]

Development and Implementation," at p. 25, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf). "The behavioral interventions and/or supports should be indicated under the applicable section of the IEP," and if necessary, "[a] student's need for a [BIP]

must be documented in the IEP" (id.). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a], [b]).

State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR

200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement"

(8 NYCRR 200.22[a][3]).

State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient

(M.W., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9;

A.H., 2010 WL 3242234, at *4; see F.B., 2013 WL 592664, at *8-*1; R.C. v. Byram

Hills Sch. Dist., 906 F. Supp. 2d 256, 269, [S.D.N.Y.2012]; F.L., 2012 WL 4891748, at *8; K.L., 2012 WL 4017822, at *11; T.M. v. Cornwall Cent. Sch. Dist., 900 F.Supp.2d 344, 354 [S.D.N.Y. 2012]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *8-*9 [S.D.N.Y. Dec. 8, 2011]; P.K. v. New York City Dep't of Educ., (Region 4), 819

F. Supp. 2d 90, 106 [E.D.N.Y. 2011], aff'd, 2013 WL 2158587 [2d Cir. May 21, 2013];

C.F., 2011 WL 5130101, at *9).

With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [BIP] for a student with a disability when: (i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student's behavior; and/or (iv) as required pursuant to" 8 NYCRR 201.3 (8 NYCRR 200.22[b][1]). Once again, "[i]f a particular device or service, including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]). If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).17 Neither the IDEA nor its implementing regulations require that the elements of a student's BIP be set forth in the student's IEP ("Student Needs Related to Special Factors," Office of Special Educ. [April 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf).

However, once a student's BIP is developed and implemented, "such plan shall be reviewed at least annually by the CSE or CPSE" (8 NYCRR 200.22[b][2]). Furthermore, "[t]he implementation of a student's [BIP] shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the [BIP] and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's [BIP] or IEP" (8 NYCRR

200.22[b][5]).

I agree with the parent’s argument that “… the record makes clear that the student’s warrants a and appropriately individualized plan. The documentary and testimonial evidence prove that the student exhibits that impede his learning and that of others, such as due to and and . (T 53)…the current placement punishes the Student for and .” (T 35-37)

The IEP of 05/21/2014 identifies the need for services without any goals. The evidence supports that goals are likely to relate to student , thus calling for the and an appropriate . (Ex C 6)

Additional evidence also points towards the need to evaluate student .

This includes parent letter of 03/26/2014 (Ex H), Quarter One Report of 11/07/2013

(Ex Q), and several notices of failure and/or potential failure of classes and grade.

(Ex P, Q, R, S T U, V, W, X, Y & Z)

I find the student is entitled to an and appropriate development of a .

DEFERRAL TO CBST - OUT OF DISTRICT PLACEMENT

Parent contends that “An IHO has the authority to order placement in a non-public school where the District and the Parent agree that the student’s then current placement in the public school system is inappropriate. 11-048, See also 13-167. This authority is strengthened when evidence suggests that removal from the public school system is warranted. See 13-167 at 10. In the instant matter, the Parent has requested that the IHO order a deferral to CBST for placement in a non-public school. (E A) The record clearly establishes that the student has experienced nothing but academic failure, isolation and escalating frustration in his current placement. The Department has offered no evidence that they are capable of providing an in-district program. As such, the IHO should order an immediate out-of-district placement by means of a deferral to the Central Based Support Team to identify an appropriate non-public placement. “ (IHO Ex 9)

I agree with the parent that the DOE has already conceded a failure to provide a FAPE and has not acted in any way to remedy the failure. The DOE could at any time call for a reconvene of the CSE and take appropriate action. By failing to attempt to remedy its acknowledged failure for the 2014-2015 school year the DOE confirms it does not have an available placement to offer the student, thus leaving open any appropriate remedy.

Here the parent seeks any remedy that could result in an appropriate placement for the student. Parent seeks a Nickerson letter and/or for the IHO to defer the student's placement to the CBST, requiring placement in a State-approved nonpublic school. While the CSE is empowered to recommend appropriate services they have failed to do so. At this time a deferral to CBST is an appropriate remedy to address the DOE past and continuing failure to provide a FAPE. This would open the door to additional placement options that would enable the student to obtain a FAPE. Normally the CSE would first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y.

Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). Evidence at hearing suggests at this stage that removal from the public school was warranted at the time the CSE meeting was conducted. This includes the student regression as previously outlined herein.

Appropriate equitable relief, of a deferral to CBST is supported by the record.

I find the student is entitled to a deferral to CBST for placement in an appropriate non public school.

NICKERSON LETTER

Parent also seeks, as a potential remedy, a Nickerson Letter.

A "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E. v. New York City Dep't of Educ., 785 F. Supp. 2d 28, 44 [S.D.N.Y.

2011]). 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).

Jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief) issued by the lower federal courts rest with the district court in circuit courts of appeal (see 28 U.S.C. §1292 [a][1]; Fed. R. Civ. P. 65; see, e.g., Weight Watchers Intern., Inc. v. Luigino's, Inc., 423 F.3d 137, 141-42 [2d Cir.

2005]; Wilder v. Bernstein, 49 F.3d 69 [2d Cir. 1995]; Pediatric Specialty Care, Inc. v.

Arkansas Dept. of Human Services, 364 F.3d 925 [8th Cir. 2004]; M.S., 734 F. Supp. 2d at 279; E.Z.-L. v. New York City Dep't of Educ., 763 F. Supp. 2d 584, 594 [S.D.N.Y.

2011] aff'd, R.E., 694 F.3d 167. No provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal.

Instead, "[i]t has been held that violations of the Jose P. consent decree must be raised in the court that entered the order" (F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012]).

Consequently, an IHO, does not have jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P., the extent to which the district may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order (R.K., 2011 WL 1131492, *17 n.29; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 289-90 n.15 [S.D.N.Y. 2010]; see M.S., 734 F. Supp. 2d at 279 [addressing the applicability and parents' rights to enforce the Jose

P. consent order]; Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, *9 [W.D.N.Y.

Feb. 4, 2009] [noting that the Second Circuit has consistently distinguish systemic violations such as those in Handberry v. Thompson (436 F.3d 52 [2d Cir. 2006]) and Jose

P. to be addressed by the federal courts, from technical questions of how to define entreat individual students' learning disabilities, which are best addressed by the administrators];

Application of a Student with a Disability, Appeal No. 10- 115; see also, R.E., 785 F.

Supp. 2d at 43-44; E.Z.-L., 763 F. Supp. 2d at 594; Dean v. Sch. Dist. of City of Niagara

Falls, 615 F. Supp. 2d 63, 70 [W.D.N.Y. 2009]).

However, if the hearing record is properly developed, appropriate relief for a particular student by an administrative officer may include relief similar to that granted to the plaintiff class in Jose P. (see Application of a Student with a Disability, Appeal No.

10-115).

In this case the student is acknowledged to be without a FAPE and the DOE is not undertaking any action to remedy the failure.

I do not find the contention of the DOE to carry any weight in countering the parent demand for the sought after remedy. DOE contends that they are awaiting independent educational evaluations, and upon receipt with consider if a deferral to CBST is appropriate. (T 13) DOE could take this action at any time, including while awaiting this decision, and indeed it is possible action may have been taken outside of the hearing process to address the situation. Meanwhile, a remedy of a Nickerson letter opens additional opportunity for the student to obtain a FAPE as quickly as possible. I note that while a FAPE and appropriate placement is sought the student is acknowledged to be continuously being denied an appropriate education.

I note the DOE did not contest any document or testimony presented by the parent.

I find the immediate issuance of a Nickerson Letter to facilitate an appropriate placement for this student is appropriate in this instance as an appropriate remedy.

The IDEA does not automatically require the provision of school services during the summer months; rather, such services must be provided when they are a necessary element of a FAPE to the student (see Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11[E.D.N.Y. Jan. 4, 2010]). Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, . . . who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education" (8 NYCRR 200.6[k][1], [k][1][v]).

State regulation defines substantial regression as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months 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]; see 34 CFR 300.106).5

In this case, it is uncontested that the student regressed at least insofar as the IEPs themselves disclosed. Regression of up to two years is evidenced in the IEP of

05/21/2014 (Ex C 1) and the IEP of 05/17/2013 (Ex D 1 & D 10).

At the time of the 05/21/2014 the CSE should have provided for the services as it was obvious the student was already regressing under a school year.

I find the student is entitled to a school year for the 2014-2015

school year.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch.

Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

IEP of 05/21/2014 includes special transportation accommodations (Ex C 9).

I find the student is entitled to transportation services.

( )

IEP of 05/21/2014 calls for sessions of weekly (Ex C) while IEP of 05/17/2014 calls for sessions of weekly (Ex D 5)

Parent contends, that on 06/12/2014 “the Parent received an authorization for from CSE for hours of , authorizing a maximum of hour per day, a maximum hours a week, ….This authorization notes that it expires on June 26, 2014.…It is inconceivable how the Student was to fit in hours of missed in the course of days. “ (Ex E)

The document includes that the sessions are for sessions related to the 05/21/2014

IEP. (Ex E)

I note that the hours, if provided during the school year at weekly sessions would cover about weeks of service. If the DOE issued such an authorization to make up for past sessions it failed to provide over weeks it does not make sense why the DOE would only allow the parent days to obtain the services. (Ex E)

DOE saw fit to identify the students need of services in the amount of hours, and then made it impossible for the student to obtain the service.

I find that due to the identified need of the student for such a service, as indicated by the DOE , and requested by the parent, the student remains entitled to the services as identified on the document. (Ex E)

PRIVATELY OBTAINED EVALAUTION

A CSE must consider privately-obtained evaluations, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Michael P. v. Dep't of Educ., 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir.

2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ., 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]). Moreover, the IDEA "does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing the IEP" (J.C.S., 2013 WL 3975942, at *11; Watson v. Kingston City Sch. Dist., 325 F.Supp.2d 141, 145 [N.D.N.Y. 2004]

[holding that a CSE's recommendation is not necessarily rendered inappropriate by "[t]he mere fact that a separately hired expert has recommended different programming"]; see

T.G., 2013 WL 5178300, at *18; E.S. v. Katonah-Lewisboro Sch. Dist., 742 F.Supp.2d

417, 436 [S.D.N.Y. 2010]).

In this the parent obtained and provided at hearing a detailed and, thus far, uncontested evaluation.

Parent, in closing provided details as included in the evaluation, which supported the parent’s position and pointed to particular needs of the student. “… the Student has a broad based deficit, which includes in and . (Ex GG 13)…compounding this difficulty, the Student also has weakness in areas of , including an and the need for . (Ex GG 13)…the Student’s report cards indicate struggles across a wide range of subjects being failing or close to failing, and a significant decrement during the previous school year. (Ex GG 13) In order to address the Student’s individual needs, Dr. recommends a specialized school that employs teachers trained to teach students with deficits.

(Ex GG 13)…recommends: or evidence based

instruction at least times a week; - at least times a week; at least times a week; and extensive instructional modifications and accommodations.” (Ex GG 13-15)

The CSE, upon its next IEP meeting is directed to consider the evaluation provided. This does not necessitate the need for an order, though it is noted herein.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at requested meetings, and acted in no way to frustrate any action of the

DOE.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 and 2014-2015 school years.

2. The DOE shall perform an and develop an appropriate , for the student.

3. The DOE shall, within 30 days convene a CSE and prepare an appropriate IEP deferring the student to the Central Based Support Team to identify a non public school placement for the student.

4. The DOE shall immediately issue a Nickerson (P-1) Letter for a New York State Approved Non Public School placement for the student for the 2014-2015 school year. The Department of Education w ill provide the parent with the Nickerson P-1 letter immediately upon receipt of this Order and no later than

11/07/2014.

5. DOE shall deliver, or cause to be delivered, special education services for an for the student for the 2014-2015 school year.

services to be included in the next IEP developed for the student.

6. DOE shall provide special education transportation services to the student for the 2014-2015 school year.

7. DOE shall issue an Authorization for Independent

(Form P 4) for hours of . Such authorization shall be issued within 30 days of the date of this order and shall enable the service to be obtained for six months from the issuance of said authorization.

8. This decision is subject to appeal and review by the State Review Officer. Dated: October 24, 2014

, ESQ.

Impartial Hearing Officer

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

PARENT

ENTERED 09/22/2014

A Demand for Due Process Hearing dated 8/11/14, 6 pages

B Due Process Response dated 8/18/14 4 pages

C IEP dated 5/21/14, 12 pages

D IEP, 5/17/13, 11 pages

E Authorization for P-4 dated 6/12/14, 1 page

F Prior Written Notice dated 5/22/14, 4 pages

G CSE Meeting Notice dated 4/25/14, 1 page

H Letter to CSE dated 3/26/14, 1 page

I Assessment Planning Document dated 2/27/14, 1 page

J CSE Evaluation and Records Release Consent Form Signed 2/14/13, 2 pages

K Notice to Parent of CSE Referral dated 1/15/13, 1 page

L Notice of Student Support Team Meeting dated 9/29/10, 1 page

M Testing dated 3/16/14, 57 pages

N Classroom Observation Sheet dated 5/17/13, 1 page.

O Psycho-Educational Evaluation Report dated 3/14/13, 6 pages

P Report Card dated 1/30/14, 1 page

Q Quarter I Reports dated 11/7/13, 10 pages

R List of Letter Grades dated 10/28/13, 1 page

S Quarter I Progress Report dated 10/1/13, 1 page

T Quarter I Progress Report dated 10/1/13, 1 page

U Quarter I Progress Report dated 10/1/13, 1 page

V Quarter I Progress Report 9/30/13, 1 page

W Quarter II Reports dated 1/24/13, 3 pages

X Report Card dated 11/15/12, 1 page

Y Notice of Failing Classes dated 10/12/12, 1 page

Z Report Card dated 6/22/12, 2 pages

AA Notice of Failing Classes dated 3/2/12, 1 page.

BB Report Card dated 1/26/12, 1 page CC Notice of Failing Classes dated 10/7/11, 1 page

DD Parent Report, 2012-2013, 2 pages

EE Parent Report, 2012-2013 2 pages

ENTERED 10/08/2014

FF Curriculum Vitae from Dr. , 4 pages

GG Neuropsychological assessment report, 5/29-07/24/2014, 25 pages

DEPARTMENT OF EDUCATION

ENTERED 09/22/2014

NONE

IMPARTIAL HEARING OFFICER

ENTERED 09/22/2014

I Email of IHO Appointment dated 8/18/14, 3 pages

II Notice of DOE Appearance dated 9/11/14, 1 page

III Hearing Officer's Order on Consolidation Denying Consolidation of this Matter with

Case Number dated 8/11/14, 2 pages

ENTERED 10/20/2014

IV DOE Closing Brief, 10/17/2014, 3 pages

V Parent Closing Brief, 10/20/2014, 16 pages