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: December 6, 2013

February 28, 2014

Record Close Date: April 29, 2014

Hearing Officer: Mindy G. Wolman, Esq. Findings of Fact an Decision 2 Case No. 148090

On October 22, 2013, the parent (the “Parent”) “Student”) filed a due process complaint (IHO Ex. I), under the Individuals with Disabilities Education Act, 20 U.S.C. section 1415(f) and Section 4404(1) of the New York State Education Law, against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on November 27, 2013 after the recusal of the prior IHO(s) appointed to hear the case. The matter came on for a prehearing conference on December 6, 2013. An “Interim Order on Pendency” (the “Pendency Order”) was issued on December 12, 2013 (IHO Ex. B).^[1] A substantive hearing went forward on February 28, 2014. The Parent submitted a post-hearing memorandum of law (IHO Ex. III). The DOE did not file a post-hearing memorandum or closing statement (see IHO Ex. IV).

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 case has been extended (IHO Ex. V).

BACKGROUND AND POSITIONS OF THE PARTIES

male student who is classified as a student . His classification and his eligibility for special education supports and services are not in dispute. The Student is currently enrolled in and attending with one 30-minute session per week of at school, one 30-minute session per week of group speech therapy at school, two 45-minute sessions per week of after school, and two 30minute sessions per week of at school. In addition, the Student is receiving ten hours per week of after-school special education itinerant (“SEIT”) ABA services and two 45-minute sessions per week of after therapy pursuant to the pendency order entered herein (Parent Ex. B).

The DOE concedes that it did not offer the Student a free appropriate public education (“FAPE”) but disagrees with the remedies requested by the Parent (Tr. at 18-19). The Parent

Findings of Fact an Decision 3 Case No. 148090 maintains that the DOE’s Committee on Special Education improperly terminated the Student’s after-school SEIT services and improperly reduced the amount of the . The Parent requests that the Department of Education be directed to continue providing these services. The Parent also requests compensatory services for related services that were not provided during the 2012-2013 and the SEIT services and related services that were not provided during the 2013-2014 school years. The compensatory services claim includes, but is not limited to, services that the Student was entitled to receive as part of his pendency program during the pendency of this proceeding. In addition, the Parent maintains that the DOE has not been providing the Student with appropriate special education transportation services and requests that it be directed to provide such services.

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 Individualized Education Program (“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]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE (8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

The DOE has conceded that it did not offer the Student a FAPE. As such, the sole issue to be determined in this proceeding is whether or not the Parent is entitled to the relief requested. Although the DOE did not agree with the remedies requested by the Parent, it did not take the position that the Parent was not entitled to any remedy. Nor did it propose an alternative remedy. The Parent challenges the June 29, 2013 Committee on Special Education (“CSE”) decision to eliminate SEIT services and reduce speech and language therapy. The Parent seeks an order directing that the DOE continue to provide SEIT therapy at the levels set forth in the Student’s Findings of Fact an Decision 4 Case No. 148090

April 16, 2013 IEP, directing the DOE to provide the Student with appropriate special education transportation, and awarding compensatory education for services not provided during the 20122013 and 2013-2014 school years.

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 Parent challenges the CSE’s removal of SEIT/ABA services from the Student’s IEP. The Parent also challenges the CSE’s reduction of the Student’s services. In conceding that it did not offer the Student a FAPE, the DOE has conceded that the CSE’s removal and reduction of services was not appropriate. Moreover, I find that the CSE did not have any reasonable basis upon which to recommend the termination of the Student’s SEIT/ABA services and the reduction of the services. In fact, based on all of the information available to it at the time of the CSE meeting, the CSE should have continued the same level of services. As such, the CSE’s recommendations, which were contained in the Student’s June 19, 2013 IEP, must be vacated. As of the time of that IEP meeting, the Student needed to continue with his prior level of services. Moreover, the Student needs to continue to receive the level of services set forth in his April 16, 2013 IEP (see Parent Ex. G). The Student is also entitled to compensatory education for the services that were improperly removed from his special education program and that he did not receive from September 1, 2013 though October 12, 2013 (the filing of the due process complaint).

In addition, the Student was entitled to receive those services (SEIT and additional speech Findings of Fact an Decision 5 Case No. 148090 and language therapy) as part of his pendency program in this proceeding (Parent Ex. B). Although the due process complaint was filed on October 12, 2013, the Student did not begin to receive his pendency services until January of 2014. He is entitled to compensatory education for the services that he was entitled to, but did not, receive during the pendency of this proceeding.

During the 2013-2014 school year, the Student was deprived of ten hours per week of SEIT/ABA services and two 45-minute sessions per of the IDEA resulting in the denial of special education services for a substantial period of time. The Student is entitled to compensatory services in the form of make-up sessions for all services missed during the 2013-2014 school year.

In addition, the Parent seeks compensatory education/services for the services that the Student should have, but did not, receive during the 2012-2013 school year. It is undisputed that the Student did not receive the following services during that school year: after-school speech and language services from September 2012 through December 2012 and after-school occupational therapy from September 2012 through January 3, 2013. The prolonged deprivation of services during the 2012-2013 constituted a gross violation of the IDEA resulting in the denial of special education services for a substantial period of time. I find that compensatory services would be an appropriate remedy for the denial of services during the 2012-2013 school year. The Student was entitled to, but did not therapy and two 45-minute sessions per week of after-school speech and language therapy over the course at the beginning of the 2012-2013 school year. The Student is entitled to compensatory services in the form of make-up sessions for these services.

The Parent has challenged the special education transportation being provided to the Student, both in terms of the way it is described in the Student’s IEP by the CSE and in terms of the manner in which the DOE is actually providing the transportation. The DOE has the burden of proving that the special education transportation being provided to the Student is appropriate. It did not meet this burden. The Hearing Record does not provide any basis for finding that the special education transportation being provided to the Student is appropriate. The Student’s IEP indicates that he requires special education transportation “TBD by OSH physician” (Parent Ex. E at 13). Although it was not clear from the face of the IEP, presumably “TBD by OSH physician” means “to be determined by Office of School Health Physician.” This is insufficient and unclear. Findings of Fact an Decision 6 Case No. 148090

An IEP must clearly set forth the services to be provided. The CSE must make its decisions as a team. It cannot delegate the determination of appropriate services to an individual who is not even a member of the CSE team.

The Student is . There is no dispute about his need for transportation on an airconditioned (climate controlled) bus. The DOE’s Office of Pupil Transportation (“OPT”) has placed the Student on a bus route that services three different schools and includes high school students (Parent Ex. AA; Tr. at102-106 ). The bus brings the Student late to school on a regular basis, which has caused him (Parent Ex. JJ; Tr. at 102-106). In other words, the manner in which the DOE is providing the Student with special education transportation is interfering with the provision of a FAPE. The high school students on the bus are also students with disabilities, and the Parent contends that their behavior on (Tr. at 101-103) . He has in the past (Tr. at 102). In light of the and his inability to protect himself in a full bus with high school students (who are substantially larger and heavier than the Student), and the other factors cited in the Parent’s testimony, the Student’s current bus route places him at risk for injury. The Parent’s request for an order directing that the DOE provide the Student with appropriate transportation must therefore be granted. The Student needs to be provided with transportation on a climate controlled bus, with elementary or preschool students, that brings the Student to school on time. School starts at 8:30 a.m. each day (Tr. at 107).

The special education transportation services shall start by no later than June 9, 2014 and shall continue to through the 2014-2015 school year. The Student’s transportation to school during the 2013-2014 school year has been erratic and unreliable. It deprived the Student of a substantial amount of instruction time and related services. The lost instruction and missed related services have not been included in the compensatory services award herein. However, I find that the Student is entitled to a year of stable and reliable special education transportation as compensation for the disruption and lost educational opportunity caused by the manner in which the DOE provided his special education transportation during the 2013-2014 school year.

ORDER

Findings of Fact an Decision 7 Case No. 148090

IT IS HEREBY

ORDERED that the Student’s June 19, 2013 IEP is hereby vacated; and it is further

ORDERED that the Student’s special education program must include ten (10) hours of home-based special education itinerant teacher (“SEIT”) ABA (“SEIT/ABA”) services and two 45-minute sessions per ; the New York City Department of Education must continue to provide these services in addition to placement at 30-minute session per week of 1:1 speech therapy at school, one 30-minute session per week of group speech therapy at school, two 45minute sessions per week of after school, and two 30-minute sessions per week of therapy at school,; and it is further

ORDERED the New York City Department of Education is directed to provide the Student with the following services as and for compensatory services for services that the Student did not receive during the 2013-2014 school year: 160 (one hundred and sixty) hours of homebased SEIT/ABA services and 32 (thirty two) 45-minute sessions of after- therapy; and it is further

ORDERED the New York City Department of Education is directed to provide the Student with the following services as and for compensatory services for services that the Student did not receive during the 2012-2013 school year: 32 (thirty-two) 45-minute sessions of afterschool individual and 32 (thirty-two) 45-minute sessions of after-school individual occupational therapy; and it is further

ORDERED that the New York City Department of Education is directed to provide the Student with the following special education transportation: door-to-door transportation on a climate controlled (air conditioned) minibus with elementary or preschool students, that arrives at school no later than 8:30 a.m. each day, with travel time not to exceed thirty (30) minutes; and it is further

ORDERED that the foregoing compensatory services are to be provided between the date hereof and August 31, 2015; and it is further

ORDERED that the foregoing special education transportation shall be provided starting no later than June 9, 2014 and shall continue through the 2014-2015 school year. Findings of Fact an Decision 8 Case No. 148090

Dated: May 28, 2014

MINDY G. WOLMAN

Impartial Hearing Officer Findings of Fact an Decision 9 Case No. 148090

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2013

Esq. Attorney (by telephone) — Parents

Esq. Attorney (by telephone) — Parents

DOE Representative (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2014

Esq. Attorney — Parents

Esq. Attorney — Parents

Mother — Parents

* Special Education Itinerant Teacher (by telephone) — Parents

Dr. Chairperson’s Designee — DOE

* Testified at Hearing — DOE

DOCUMENTS ENTERED INTO THE RECORD

Parent Exhibits

A. Impartial Hearing Request and fax delivery confirmation, 10/21/13, 9 pp.

A. Interim Order on Pendency, 12/6/13, 4 p.

B. Related Services Agreements for , 1/7/14, 2 pp.

C. Final Notice of Recommendation, 719/13, 1 p.

D. Individualized Education Program, 6/19/13, 17 pp.

E. Summary Student Information, 4/16/13, 1 p.

F. Individualized Education Program, 4/16/13, 17 pp.

G. Individualized Education Program, 11/23/11, 22 pp.

H. Assessment Report by , 5/2/13, 13 pp.

I. Comprehensive , 7/24/13, 5 pp.

J. Pediatric , 3/4/11, 5 pp.

K. Report by , November 2013, 4 pp.

L. Letter from , 8/7/13, 2 pp.

Findings of Fact an Decision 10

M. Letter

N. Progress Report by , 8/1/13, 4 pp.

O. Progress Report , 6/5/13, 4 pp.

P. Turning 5 Progress Report b 1/13, 2 pp.

Q. Occupational Therapy Progress Report, by 1/20/13, 4 pp.

R. CSE Report by the , 1/16/13, 8 pp.

S. Speech Therapy Progress Report , 6/20/12, 4 pp.

T. Occupational Therapy Progress Report by /13, 1 p.

U. Email Correspondence between , 8/19/13, 3 pp.

V. Email with attached P-2 Form from to Parent, 8/23/13, 4 pp.

W. Email with attached Medical Forms sent by Parent , 9/1/13, 5 pp.

X. Student Information Record by Office of Pupil Transportation, 9/19/13, 1 p.

Y. Request for Medical Accommodations Form, 9/23/13, 1 p.

Z. Email with attached Waiver, sent by to Parent, 10/11/13, 3 pp.

AA. Email correspondence between Parent and , 10/18/13, 2 pp.

BB. Educational Summary Report by , 2/20/14, 10 pp.

CC. Curriculum Vitae of , undated, 4 pp.

DD. Central Response about a State Approved Non-public school, 5/22/13, 1 p.

EE. P-1R (Nickerson Letter) and P-2 Form, 8/8/13, 4 pp.

FF. Letter from Nancy Diaz, 2/26/14, 1 p.

IHO Exhibits

I. Due Process Complaint, 10/21/13, 9 p.

II. Pendency Motion, 12/10/13, 6 pp., with attached Individualized Education Program,

4/16/13, 18 pp., Individualized Education Program, 6/19/13, 17 pp., and , 10/18/12, 3 pp.

III. Parent’s Closing Brief, 4/4/14, 23 pp.

IV. Emails re post-hearing briefs, 4/29/14, 3 pp.

V. Emails from IHO re compliance date extensions, 12/4/13, 1/3/14, 1/18/14, 1/29/14,3/18/14, and 4/28/14, 6 pp.

Findings of Fact an Decision 11

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] The Pendency Order provided that the Student’s pendency program includes placement at with the services listed in the Student’s April 16, 2013 Individualized Education Program (“IEP”) (the IEP included the following services: ten hours per week of special education itinerant teacher (“SEIT”) services at home, one 30-minute session per week of 1:1 speech therapy at school, one 30-minute session per week of group speech therapy at school, two 45-minute sessions per week of 1:1 speech therapy after school, two 45-minute sessions per week of 1:1 occupational therapy after school, and two 30-minute sessions per week of 1:1 physical therapy at school).