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, 2014

March 19, 2014

March 27, 2014

Actual Record Closed Date: May 30, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2014

ESQ, Attorney — Parents

(Via Telephone), District Representative

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2014

ESQ, Attorney — Parents

Attorney, District Representative — Parents

Impartial hearing Representative — DOE

Special Ed Coordinator — DOE

(Via Telephone) — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2014

Attorney — Parents

Parents

Attorney — Parents

DR., Psychologist (Via Telephone) — Parents

(Via Telephone) — Parents

IHO Representative — DOE

IHO Representative — DOE

- School psychologist (Via Telephone) — DOE

PRELIMINARY MATTERS

This matter was brought on by the parent. The parent alleged the District failed to provide a free appropriate public education (“FAPE “) for the student during the academic years 2012/2013 and 2013/2014. The parent seeks several remedies in its request for a Due Process Hearing (Ex. 1.)The District, in its response, asserts that FAPE was not denied for the academic year 2012/2013. All those who attended the hearings are listed in the decision. All Exhibits accepted into evidence are listed at the end of this decision.

THE DISTRICT’S POSITION

This case involves a request by the parent for several remedies based on the allegation that the District denied FAPE for the academic years 2012/2013 and

2013/2014. The District denies that FAPE was denied in 2012/2013 and defends its position that an appropriate IEP was issued for 2012/2013. It also contends that the parents had an opportunity to discuss the student’s educational program at the IEP meetings and the various goals and objectives that are listed on the IEP were reviewed and agreed to. Therefore the District contends that a change of placement was not warranted as it had provided FAPE for 2012/2013. It does not assert it provided FAPE for the 2013/2014 year but does contest the type and amount of Consequential damages that is sought as relief by the parent.

THE PARENTS’ POSITION

The parents contend the District failed to provide FAPE for the student. is a who is currently a student in the at . He has attended since (2011/2012). He is classified as a student with . was first evaluated for special education in early 2010 when he was a student. The parent contends that the 5/16/11 IEP (which applied to the 2012/2013 year) failed to meet ’s educational needs because it did not provide for a educational environment where he might receive individualized instruction.

Moreover, no ( ) nor (

) was created to cope with his issues which definitely interfered with his learning.

The parent contends that the IEP developed on 5/14/12 (Ex.4) for grade was inadequate for several reasons. The parent contends that the 5/14/12 made no changes to his educational program despite clear evidence that he was not progressing. The parent alleges that the District failed to properly identify the student’s present levels of performance and individual needs again for the school year 2013/2014.

The parents assert that the IEP and thus the program was flawed so seriously as to deny FAPE. The parent also alleges that the related services were inadequate for his needs or were not given in appropriate frequencies.

As a solution to the denial of FAPE, the parents request that the District conduct or cause to be conducted independent , , ,

, , and evaluations of the student. Based on the results of those evaluations the District will develop an accurate and comprehensive statement of the students current level of performance and description of the impact of his disabilities on his leaning and the implications of those disabilities for the delivery of instructional and support services.

A new IEP will be developed and it will include a recommendation for a special in a non-public school in order to address the earlier denials of FAPE. The CSE may refer the student to the Central -Based Support Team for an appropriate non-public school placement. The CSE shall include appropriate related services for the student including a and a .

In addition, the student shall be awarded hours of compensatory education at the as a remedy for the student’s deficiencies in and

.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case focuses on allegations by the parent that their son was denied FAPE in and grade because the CSE failed to respond in a timely fashion for requests for evaluations and the convening of a CSE meeting to develop an appropriate education plan for the student after the results of the evaluations. is a -year old boy enrolled in the at , the . IHO I, TR. 63-69, at the time of the hearing. has been a student in since . (TR. 34.) starting in September 2011.

has exhibited difficulties since . See Ex. P-

F through P-K. Prior to this hearing, his last set of evaluations was conducted in 2010. Id.

Those evaluations noted that he exhibited even in a setting, Ex. P-

F, and needed “ ” Ex. P-H.

His evaluators specified that he had difficulty “ , , and – ,” Ex. P-J, and exhibited that were . Ex. P-I and P-J. His teacher characterized him a student who

, , ,

, , , and . Ex. P-K. His

teacher noted that “needs to be in a setting where he can be taught on a basis.” Id.

Ex. 3 was developed on 5/16/11, the end of the student’s year, for use during his . It was developed by the CSE at for . Ex. 3, the

5/16/11 IEP, and

along with certain strengths and abilities. It states he is and and or . However, the IEP is only relevant in that it is the only IEP in evidence that has reference to formal testing until after the filing of the Due Process Request.. Therefore as it is not before me for a determination of its appropriateness or conferral of FAPE, I will not take any judicial action on it before me. Exs.4 and 5 do not state any formal testing for the comments in the documents. They appear to be based on teacher and other professional observations of the student.

On May 14, 2012, at the end of ’s year, the CSE team convened for an annual review of ’s IEP. Ex. P-D. Ms. , an administrator at , Ms. , ’s special education teacher, and ’s father attended the meeting. Id. TR. 49. Despite ’s issues, neither the school counselor nor the psychologist participated in the meeting. (Ex.4.) Ms. testified that she neither taught ’s class nor worked with , and her only knowledge of his would have been . TR. 39.

She testified that no new evaluations were reviewed at the meeting, and that the team considered a less restrictive environment for but did not consider a more restrictive environment at that time. TR. 36. The IEP noted that can be ,

, and needs to “

” clearly indicating that ’s was an issue, yet made no provision for a or .

(Ex. 4.) Additionally, no goals addressing were included on the IEP.

Id. Ultimately, the team maintained the exact same program as it had recommended the year before: classroom, session of and sessions of .

It is important to note that does not have the ability to provide for students who require , or ( ).

TR. 109. It is capable only of supplying services to students with ( ) as their recommended placement. Id. The typical class in has over students, about of whom have IEPs. Id. 6

For (2012-2013 school year) remained in of ’s classrooms with over other students. TR. 113. Ms. , who taught him in as well, noted that in continued to be

“

” TR. 87. The Parent

constantly received phone calls from the teachers and principal regarding ’s misbehavior. Ex. IHO – I.

“Last year, when [ ] was in (2012-2013), I received calls regularly regarding [ ]’s in school. I would estimate that the school called me times a month throughout the year regarding [ ]’s . For example, one time the school called me to say [ ] was

.” Ex. IHO I.

In terms of academics, ’s performance was at the beginning of and got substantially worse as the year progressed. See Ex. P-N. He completed the first semester of with a indicating performance level, in , , , and . Ex. P.-N. By the end of , his performance in and had deteriorated to , and he remained in virtually all other and areas. Id.

Specifically, the school uses the system designed by , which places the benchmark for a student completing at level ; By the end of , was on a level , a minimum of levels .

TR. 70, 82.

The CSE team convened for ’s annual review on April 15, 2013. The CSE team consisted of Ms. , Ms. , the Parent and , the student’s . Ex. P-E. Again, despite ’s , no psychologist or counselor attended the meeting. Id. The IEP misleadingly stated that was approaching level standards when in fact his academic performance had clearly deteriorated to as the year progressed. Id. Contrast Ex. P-N. In fact, his Instructional/Functional Levels in both and were listed as level. Ex. P-E.10. The IEP is replete with examples of ’s , making it the third year in a row that the IEP focused on ’s struggle:

[ ] at times and or by other individual needs that [ ]

. This makes it difficult for him . He recently has been

… At times, [ ] … [ ]

. Ex. P-E.

Ms. testified that the concerns expressed at the meeting focused on ’s . She did not recall any concerns expressed about his academics.

TR. 86. In contrast, the Parent reported that he suggested that the school create an individualized incentive program to help ’s and that perhaps a class would benefit Ex. IHO-I.2. 8

Despite ’s deterioration, ’s as the focus of the meeting and the clear statement in the Present Levels of Performance (PLOP) section that ’s interferes with his assignments, the team again asserted in the Students Needs Relating to Special Factors section of the IEP that did not have that impede his learning and did not require a . Ex. P-E. Ms.

reports that goals were placed on the IEP to address his , but acknowledged that the counselor was not at the meeting to hear the Parent or provider concerns at that time. TR. 89.

The Management Needs section notes that “

” but the IEP then fails to recommend a program that includes

( ) or work with a specialist. Id. In fact, Ms. testified that the team did not discuss the possibility of placing in a class setting. TR. 89. The team maintained the previous recommendation of an classroom and recommended sessions per week ( , and sessions per week ( ,

). Ex. P-E.

At no point did the school offer to have re-evaluated to get to the bottom of his difficulties. Ex. IHO-I.2. The Parent further testified that he was never informed of his due process rights. Ex. IHO-I.3.

There were no additional supports offered to the student when it became clear he was not making academic progress but falling further behind. No formal evaluations or testing were conducted by the school prior to or during the school year. In addition, the person in the best position to know and observe the student was his teacher who repeated identified problems that were not improving or only slightly improving. There was no or developed for the student even when the IEP’s recommended goal of having .ask for adult assistance with problem solving did not result in any significant improvement in his issues.

The District admits that FAPE was not provided to the student for the academic year 2013/2014 ( ).The IEP for the (Ex. P-E) was provided by the Parent. I thought it important to include some commentary on that IEP because it not only establishes that FAPE was not provided but that there was little or no involvement by the staff with the student aside from his session of group , despite the testimony of his teacher.

GOVERNING LAW AND REGULATIONS

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S.

176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R.§300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. §300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067).

The CSE failed to do any evaluations after the first IEP. The IEP for did not contain any formal evaluations. The child continue to fall behind and not efforts were made to provide additional supports. There was no offered, no increase in no additional help at all. There is also the difficult juxtaposition between the child’s interim report cards and his final one. While the interim cards present a hopeful picture that the child is learning and making some progress, the final reports indicate that he is not making progress but falling further behind.

services are defined as “the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.” Regulations of the Commissioner of Education (“Regulations”)

Section 200.6(g). is one of the options along the continuum of services available to meet the needs of students with disabilities. Id.

The statute sets the maximum number of students with special needs in an classroom at . Id. Based on the NYCDOE’s website, “the number of students with disabilities in an class may not exceed of the total class register or a maximum of .” As is of (30), the clear implication is that the NYCDOE contemplates that the maximum number of students in an classroom would be children. In the instant case, the Student’s classroom had - (53)

students, TR.113, a number which clearly falls outside NYCDOE’s contemplation for an classroom. As a result, for years was placed in a classroom that was labeled an classroom, but in fact did not meet the NYCDOE’s standards for an classroom and thus did not comply with the program recommendation on ’s IEPs.

Moreover, according to the New York State Department’s policy bulletin entitled

“Continuum of Special Education Services for School Age Students with Disabilities,” an classroom is considered a placement and a number of factors need to be considered before determining that an environment is appropriate for a given student.

The determination of whether services are an appropriate recommendation for an individual student with a disability must be made on an individual basis. For some students, would be an alternative to placement in a class with the added benefit of having both a special education and a teacher deliver the curriculum to the student. For each student, whether the classroom is the least restrictive environment for the student to receive his or her special education services should be made in consideration of, but not limited to the following factors:

The classes in which is offered and the match to the students needs; the extent of special education services the individual student needs to access, participate and progress in the curriculum; the similarity of needs of the other students with disabilities in the class; the potential effect of the class size on the student's learning needs; any potential benefits and harmful effects such services might have for the student or on the quality of services that he or she needs;

In the instant case, the most glaring factor that should have prevented the CSE from placing at was that the classes in which was offered were . The class size of - students was highly inappropriate for a student with issues and difficulties with . TR.

175.

Thus, through placing at , the NYCDOE denied a FAPE for the 2012-2013 and 2013-2014 school years, as he was educated in a classroom.

Even if it can be argued that it was an classroom, the size of ’s clearly was not reasonably calculated to meet ’s needs.

State regulations require that districts perform a

( ) for “

” 8 N.Y.C.R.R. 200.4(b)(v). An involves a determination of “ ” 8 N.Y.C.R.R. § 200.1(r). Once the is performed, the district must create a ( ) “based on the results of a[n ] and, at a minimum, includes a description of the problem , global and specific hypotheses as to why the problem occurs and strategies that include supports and services to address the

." (Id. § 200.1(mmm))

Both the 2012-2013 and 2013-2014 IEPs clearly note that were interfering with ’s classroom performance. Ex. P-D and P-E. Additionally, the and assessments completed by ’s teachers note many , including but not limited to “ ” “

” “ ” “ ” “

” The teachers specifically note that these persisted over years, the 2012-2013 and 2013-2014 school years.

Despite ’s clear struggle, at no point did the NYCDOE perform an or develop a for him. TR. 60, 76-77, 81, 87. Moreover, NYCDOE witnesses testified that the used in

(2012-2013) often did not work for TR. 95. would instead become:

“

” Id.

The father testified that he asked the school to consider an individualized that utilized ’s as an incentive. Ex. IHO-I. During the relevant school years, the school never created the requested plan.

Thus, as a result of its failure to conduct an and create a , the CSE effectively denied FAPE.

Before reaching a legal conclusion I must consider the District’s arguments that FAPE was provided in 2012/2013. The first argument rests on the testimony of the student’s grade teacher. She did testified that he was making academic progress and while she asserted that the of the student was improving, testimony from the same teacher did not indicate significant improvement in either academic performance or . Aside from the general modifications in the class and a single goal on the IEP there was not an effort to develop additional strategies for to improve the student’s academic or social . His continued to interfere with his ability to learn. The District also argues that the program was appropriate because it allowed the child to be educated in the “least restrictive environment” The program at was not a traditional class and had over students in the room where received his instruction. All of the reports and evaluations available to the CSE called for a classroom with the possibility of instruction. This is never recognized on any IEP.

LEGAL CONCLUSION

For the reasons articulated above , I conclude that the District denied FAPE to the student pf the 2012/2013 ( ) and the 2013/2014 ( ) academic year.

REMEDIES

During the last hearing date (3/27/14) the district submitted 5 new reports done during 2014. These reports were done after the request for the Impartial Hearing

12/26/13).There no objectionably the parent to their admission into evidence and so they were received. They are District exhibits 7-12. They are a Psycho-ed Evaluation, a Social History Update, a , a and a new IEP. Upon review, I find that some these exhibits may be useful for developing a treatment plan for the student. However, the IEP recommends a program. I am not convinced that such a program placement will meet the academic needs of the student at this time. The testimony of Dr of . She is a clinic associate professor in the Depart of

Psychiatry and Pediatrics and the founder and co-executive director of the Infant and Child Learning Center. I found her testimony very credible and is clearly an expert in children’s educational issues and mental health services (Tr. p.165). She gave an extensive description of .s problems. The analysis was much more extensive that anything in the school documents and showed clearly the extent of the problems facing the student. (Tr. 172, 173). In addition she is familiar with the programs currently available to students with disabilities in the NYCDOE, She testified at TR 173.

Unfortunately right now with the core curriculum even the in a school are pushing the kids to try to keep up. So a child like this who now is still functioning at a level in is probably going to need a private school because they're the only ones lately that are not going to work at the core. He certainly shouldn't be in a because has become--it used to be one of my favorite places, but it has become focused only on children. He would be totally inappropriate for that.

Based on that recommendation and some serious reservations about the ability of the DOE personnel to provide an school with teaching I must declare that IEP of 3/17/14 does not meet the requirements of FAPE for this student. Therefore I find that the CSE should refer the Student to the CBST to find a non-public school with a class that will provide teaching or as close to that as possible. Rece

EX.11, The IEP of 3/17/14 is prohibited from being implemented as it fails to provide FAPE for the student because it does not provide a reasonable expectation that the child will be able to make reasonable educational progress.

In fact, the language in the IEP and the other recent reports indicates that the student is a child who . Yet, there is other testimony for his father and the People at who describe him as and even though he does easily suffer from and that prevent him from fully engaging in his learn. Therefore I order the completion of new independent evaluations for the student. They shall include a , , and evaluation . The district is to pay for these evaluations at the usual and customary rate charge by such professional in the community. The professional re to be chosen by the parent with the cooperation of the DOE. However, no DOE objection shall delay the evaluations.

The final request sought by the parent is Comprehensive remedial services at the

.in the amount of hours.

The district objects to such comprehensive arguing that it could be provide by a teach to work with the student. The request for compensatory education is not either frivolous or punitive. The student has been promoted to the and is till at a level. There is no way he can keep up with his studies without specific remedial help in , and The parents have already brought thee student to for testing.

.The witness who testified on behalf of was , who was the director the facility. She made it quite clear that the function was to evaluate students who were struggling in school, develop a plan for the individual and implement if the parents agreed.

Based on the evaluations of the student she stated that they could a provide a program or remediation that would provide the student with tools need to , and more efficiently and by the end the program the student would be able to participate in his class without being frustrated by his current inabilities

. I found her projections of hours to accomplish this remediation to be reasonable. It should be noted that the student is to receive instruction unless he would benefit from with other participants. She succinctly stated the goal of the program at pages 221,222 of the transcript.

I think the big difference that whereas the instruction that’s available within the school setting is typically designed to help student with their current grade level assignments, what we’re doing at is identifying the student’s actual mastery level, and rather that instructing them on the target grade level we’re instructing them at a level where the can actually do the work almost independently, and seeking to close whatever gap exists between the mastery level and current grade level seeking to get them to the grade level so that they could then perhaps benefit from the instruction that provided in school in a way that they cannot currently do because of that gap.

I found the witness to be credible and knowable about

.Experience has taught me that has a very high success rate for students who complete their program. I confirm that my experience with students with disabilities of various types is that if will accept the student and the student is capable of participating in the program, the student will have a far better school experience than he has had heretofore.

ORDER

The IEP developed for the student as of 3/17/14 (Ex. 11) is not to be implemented until the child has had additional an independent , evaluation, and evaluations, as well as a and , The District is to pay for those evaluations at the usual and customary rate, established in the community, and not the DOE rate unless they happen to be identical.

Once the evaluations and plans have been completed s, the CSE shall reconvene within ten days or thereafter as possible and develop a new IEP that includes accurate and comprehensive present levels of performance and goals and objectives, based upon and incorporating the findings of the independent evaluations. Specifically, the IEP shall include a description of the impact of ’s disabilities and deficits on his learning, and the implications of those disabilities for the delivery of instructional and support services.

The CSE is to offer an appropriate educational program. The recommendation shall include a recommendation for an appropriate public school program for including a and instruction. This shall be done promptly and recommended program shall be available for the parent’s inspection. Alternatively the CSE shall defer to the CBST for placement in an appropriate non-public school which the parent after inspection shall find acceptable.

Finally, it is ordered the District shall pay for hours of by the . The district shall also pay for transportation to and from the . If the transportation issues become insurmountable for the student the parent is authorized to investigate another service that will meet his needs closer to home. The parents and CSE must agree upon such a transfer. The payment for the center remains the obligation of the CSE until the hours are completed.

SO ORDERED

Dated: November 13, 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

A Hearing Request, 12/26/13, 10 pages

B Due Process Response, 1/6/14, 4 pages

C IEP, 5/16/11, 10 pages

D IEP, 5/14/12, 11 pages

E IEP, 4/16/13, 12 pages

F , 11/1/10, 4 pages

G Social History, 11/1/10, 2 pages

H Evaluation, 11/2/10, 3 pages

I Classroom Observation, 11/19/10, 2 pages

J Educational Evaluation, 11/19/10, 3 pages

K Teacher Assessment, 5/16/11, 2 pages

L Exam, 9/18/13, 1 page

M Evaluation, 10/26/13, 3 pages

N NYC DOE Report Card, Third Semester, 2012/2013, 2 pages

O NYC DOE Report Card, Period One, 11/12/13, 1 page

P Letter from Parent to CSE, 8/23/13, 1 page

Q test results, 10/26/13, 44 pages

R , 3/14/14, 3 pages

S Inventory, Teacher 1/28/14, 7 pages

T Inventory, Parent, 8/16/13, 7 pages

U Teacher Short Form, 12/4/13, 6 pages

V Parent Short Form, 8/16/13, 6 pages

DEPARTMENT OF EDUCATION

1 Due Process Request, 12/26/13, 2 pages

2 Due Process Response, 1/6/14, 4 pages

3 IEP, 5/16/11, 12 pages

4 IEP, 5/14/12, 14 pages 5 Cumulative Report Card for , 6/2012, 1 page

6 Final Report Card, Grade , 6/2013, 4 pages

7 Psycho-educational, 1/30/14, 5 pages

8 Social History Update, 3/4/14, 1 page

9 , 2/14/14, 6 pages

10 , 3/3/14, 5 pages

11 IEP, 3/17/14, 13 pages

IMPARTIAL HEARING OFFICER

I Affidavit of Mr. , 3/27/14, 4 pages