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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 9, 2014
February 4, 2015
March 17, 2015
Actual Record Closed Date: March 20, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2014
Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2015
Attorney for Parents — Student
Parents
Parents
Interpreter — Student
Student
DR., Director, (Did not testify) — Student
Classroom Teacher (Via Telephone) — Student
Department of Education Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2015
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
The parents of requested an impartial hearing on August 27, 2014, seeking continuation of her existing placement, compensatory education; a interpreter and translation of all education-related documents currently and for the 2013- 2014 school year; and independent evaluations for (“ ”) and (“ ”); and an independent evaluation by a (“ ”). I was designated to hear this matter on August 28, 2014, pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing commenced before me on September 9, 2014, on the issue of pendency. By agreement of both parties, I ordered that during the pendency of all due process proceedings, the Department Of Education (“DOE”) shall fund ’s placement at the , (or if her seat at the should no longer be available, at a similar state approved private school)[1] on a basis, including related services of /
(“ ”), (“ ”) and (“ ”); all to be provided
times per week for minute sessions . I also ordered that shall receive (“ ”) services, hours per week , and . (Par. Ex. D).
The compliance date was extended on extended on three occasions, as the parties pursued a settlement. (IHO Ex. I, II, III). Thereafter, a hearing on the merits took place on February 4, 20152 and March 17, 2015. Two more extensions of the compliance date were granted to allow the parties to submit closing briefs; and for the IHO to review the briefs and transcripts, and prepare a decision. (IHO Ex. IV, V). The final compliance date is April 10, 2015.
EVIDENCE AT HEARING
2 At the commencement of the hearing on the merits, the DOE agreed that the parent is entitled to an order for interpretation services for IEP meetings, and translation of IEP’s and related documents going forward. (It did not agree to retroactive translation of documents). The DOE also agreed that the parent is entitled to , and evaluations; but objected to the parent’s request for an evaluation by a . (Tr. pp. 2224). The DOE did not present any witnesses or documents at the hearing, and conceded that it was unable to meet its burden of proving the appropriateness of its recommendation for the current school year. (Tr. p. 26).
is a year old girl with a diagnosis with manifesting with ( Par. Ex. G; R). She is .
(Par. Ex. G-2, Tr. p. 76).
From February 2012, she attended a program at (“ ”) in a group of ; and received related services of . (Par. Ex. J).
On March 6, 2014 IEP, the Committee on Preschool Special Education (“CPSE”)
recommended continuation in an program with related services of
(with all related services delivered , times per week for minute sessions). (Par. Ex. C). On April 17, 2014 the CPSE added after-school services, hours per week, to ’s IEP. (Par. Ex. B).
, a teacher at , who is also employed as a teacher for , testified that she is certified in special education and trained in ( ). (Tr. pp. 32-33). Ms.
provided to , hours per week from April 2014 until August, when services were terminated. After the Interim order on Pendency was entered in these proceedings, she resumed services in October. (Tr. pp. 36-37). During the period when did not receive services, she regressed in her (Tr. p. 51).
She is in communication with ’s teacher at the , regarding skills which need to be transferred from a environment at school to the environment. (Tr. p. 40). She testified that is developing skills in navigating her environment. She needs help with . She is beginning to (Tr. pp. 40-41).
Ms. is working with on developing
skills, using a variety of methods used with , including . (Tr. p. 43). has progressed in . (Tr. pp. 40, 41, 44). Ms. uses “ ” methods in working with , including the . She testified that needs to continue her services in order to make meaningful educational progress. (Tr. pp. 47-48). With the exception of , the skills Ms. works on with are similar to the skills is working on at school. (Tr. p. 54).
, ’s teacher at the , testified that she is certified in special education, and teaches , children.
attends a class with students, Ms. and assistants. The class functions on a level; and
. (Tr. pp. 56-59).
Since entering the program in September, has progressed in her ability to
. She
. She
. (Tr. p. 60). receives related services of . (Tr.
p. 62). She is working on
. She is making progress in all areas. (Tr. pp. 63-64).
used in the class includes the .
(Tr. p. 65). The is used so that she can . (Tr. p. 77). Ms.
has been in communication with ’s provider, who is working at , on skills being taught at school. (Tr. pp. 67-68, 77).
The serves students who are
(Par. Ex. N).
Ms. ’s mother, testified that is and has .
(Tr. p. 80). On May 2, 2014, Ms. participated in a CSE meeting. (Par. Ex. X). Ms.
testified that her primary language is , and was only able to understand a little of what was being discussed at the IEP meeting. The documents at the meeting were not translated and she did not understand them. (Tr. pp. 83, 87).
As a result of the meeting, was recommended for placement in a ( ), with related services of (each times per week , for minute sessions); , per week, and services per week for minute sessions.
was not recommended. was recommended for a “ ”
(without specifying the size of the group), and . (Par. Ex. X).
The parents visited the recommended site, , but rejected it. In a letter to the CSE dated June 19, 2014, they noted that they did not observe or system. The parents also informed the DOE that had been accepted at the . (Par. U).
On July 29, 2014, the parents sent the CSE a follow-up letter stating that had been accepted at the and requesting a non-public school recommendation. (Par. Ex. V).
did not attend school during September, as the parent was waiting for a pendency placement. During that time period, she regressed and .
(Tr. pp. (Tr. pp. 87-88). Since attending the in October, has progressed in her and . Her program reinforces her school work. (Tr. pp. 88-89).
Closing Brief
In their closing brief, the parents requested placement for at the ; compensatory education (calculated on a week basis, minus any hours received under pendency) in the areas of for hours per week, and related services of (all times per week for minute sessions
).
The parents also requested funding for the following independent evaluations:
, ; and an evaluation by a or .[3] The parents requested a legally valid IEP including placement at the , a month school year; related services and consistent with the pendency mandates, and special education transportation in the form of an minibus with
.
Finally, the parents requested a interpreter for all meetings where the parent is present; and translation of all education related documents, created for the 2013- 2014 school year; and for future school years. (IHO Ex. VI).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S.
176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
The DOE conceded that it was unable to meet its burden of proving the appropriateness of its recommendations for the current school year. Accordingly, the student is entitled to continue in her current placement as an appropriate remedy.
Application of a Child with a Disability, Appeal No. 12-062. In these proceedings, the parties agreed that ’s current placement consisted of placement at the , (or a similar state approved private school) on a basis, including related services of / (“ ”), (“ ”) and (“ ”); all to be provided times per week for minute sessions ; and services, hours per week after school, and
.
I also find that the parent demonstrated the continued appropriateness of the level of services provided in the Interim Order of Pendency. The May 2, 2014 IEP continued the level of related services provided in the Interim Order of Pendency. Thus, the appropriateness of the related services was never disputed. The record indicates that due to the combination of ’s disabilities, she cannot be appropriately educated in a public school setting, and requires placement in a non-public school.
is appropriately placed in a at the , where her instruction is focused on receives related services of at the school, and benefits from the technology used in the class.
She is making progress in all areas.
I also find, based upon the testimony of Ms. and Ms. , that continues to require hours per week of services, at , to generalize skills learned at school. While ’s need for was never disputed, there is no basis in the record for me to make the specific order of transportation that the parents request in the closing brief (
).
COMPENSATORY SERVICES
In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE.
It is undisputed that did not receive any special education services from the start of the school year until October, when the Interim Order on Pendency was implemented. Taking into account that the hearing was requested on August 27, 2014, I find that is entitled to receive compensatory services for the month that she was without those services. Specifically, I find that she is entitled to hours of ; and minute sessions each of . See Application of a Student with a Disability, Appeal No. 08-050.
REQUEST FOR INDEPENDENT EVALUATIONS
Parents are entitled to an Independent Education Evaluation at public expense if they disagree with the DOE’s evaluation. A parent is entitled to only one independent evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. 8 NYCRR 200.5(g)(1). There is no indication in the record that the parent ever disagreed with the DOE’s evaluations, or requested that the DOE perform an , evaluation, or an evaluation by a or prior to requesting this hearing.
The DOE has agreed to perform the and evaluation. Therefore, I will order that both evaluations be performed by the DOE within 30 days. If the DOE is unable to perform the evaluations within 30 days, then it shall authorize the parents to obtain the evaluations independently, at a reasonable rate, as requested by the parents.
(IHO Ex. VI, p. 25).
There is no basis in the record for the parents’ request that an evaluation be performed to determine the scope of intervention which requires. Ms.
uses a variety of methods appropriate for , including . Ms. , ’s teacher, did not describe any intervention at the . Nevertheless, she testified that is making progress in all areas.
INTERPRETATION AND TRANSLATION OF DOCUMENTS
The DOE agrees that going forward, the parent is entitled to a interpreter at IEP meetings and translation of IEP’s and related documents. State regulations also require translation of procedural safeguards notices, prior written notices and interpretation at CSE meetings. 8 NYCRR 200.5(a)(4); 8 NYCRR 200.5(d)(4); and 8 NYCRR 200.5(f)(2).
Chancellor’s Regulation A-663, applicable in New York City, requires that the DOE provide interpretation services “to all parents who require language assistance in order to communicate effectively with the Department”. I find that this regulation requires the DOE to provide interpretation at CSE meetings, and at all other meetings with DOE staff, which the parent is required to attend. The Regulation also requires and translation of “documents containing critical information”, including special education and related services. I find that special education evaluations, IEP’s, report cards and progress reports fall within this category.
ORDER
Therefore, it is hereby ordered as follows:
1. The DOE shall continue to , and provide all of the services set forth in the Interim Order of Pendency herein for the balance of the 2014-2015 school year;
2. The DOE shall conduct an evaluation and a evaluation within 30 days of this order. If it fails to perform said evaluations within 30 days of this order, it shall authorize the parents to obtain said evaluations independently at a reasonable rate;
3. The CSE shall reconvene within 15 days after the receipt of said evaluations to review the evaluations and to prepare a legally valid IEP, which shall include placement at the , or another appropriate non-public school;
4. The DOE shall provide a interpreter for ’s parents at future IEP meetings, and other meetings with the DOE; and translation of IEP’s, progress reports, report cards, procedural safeguards notices, prior written notices, and any evaluations reviewed at said IEP meetings. In addition, as the applicable
Chancellor’s Regulation was in effect during the 2013-2014 school year, the DOE shall provide translation of the same documents from the 2013-2014 school year, during the current school year, and going forward.
5. shall receive the following compensatory services: hours of ; minute sessions each of . Dated: March 26, 2015
. , 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 RECORD
PARENT
A Impartial Hearing Request dated 8/27/14, 7 pages
B IEP dated 4/17/14, 8 pages
C IEP dated 3/6/14, 20 pages
D Interim Order on Pendency, dated 9/11/2014, 6 pages
E Request for Accommodations, dated 12/12/13, 2 pages
F Annual Update, dated 11/13/13, 6 pages
G Social History Update, dated 1/31/14, 2 pages
H Evaluation Report, undated, 2 pages
I Correspondence to CPSE re: / undated, 2 pages
J Update, dated 12/9/13, 7 pages
K Progress Report, dated 1/13/14, 4 pages
L Educational Update, dated 12/20/13, 7 pages
M Affidavit of , 11/3/14, 1 page
N Description, undated, 1 page
O Dr. Correspondence, dated 7/25/11, 1 page
P Dr. Correspondence, dated 1/5/10, 1 page
Q Dr. Correspondence, 5/21/09, 1 page
R Dr. Correspondence, dated 10/30/13, 1 page
S Dr. Correspondence, dated 2/26/14, 1 page
T Class Schedule, undated, 1 page
U Parent's Rejection of Placement, dated 6/19/14, 1 page
V Request for NPS Recommendation, dated 7/29/14, 1 page
W 's School Reports, dated 2014-2015, 9 pages
X IEP, dated 5/2/14, 14 pages
IMPARTIAL HEARING OFFICER
I Case Follow Up Sheet dated 11/13/14, 1 page
II Case Follow Up Sheet dated 12/09/14, 1 page
III Case Follow Up Sheet dated 12/30/14, 1 page IV Case Follow Up Sheet dated 2/4/15, 1 page
V Case Follow-Up Sheet dated 3/12/2015, 1 page
VI Parent's Closing Brief dated 3/16/2015, 26 pages
Footnotes
[1] The DOE agreed that the was substantially similar to ’s prior agreed upon placement (the ). (Tr. p. 6).
[3] The parents also requested that any additional services recommended as a result of these evaluations be added to ’s IEP and provided as compensatory education. As justification for the evaluation by a , the parents argued that such an evaluation is needed to determine the scope of intervention which requires. (IHO Ex. VI, p. 15).