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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: May 14, 2015
May 21, 2015
May 29, 2015
June 8, 2015
June 30, 2015
Actual Record Closed Date: July 31, 2015
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2015
Attorney — Student
Mother — Student
District Representative — DOE
Special Education coach (Via Telephone) — DOE
School Psychologist (Did Not Testify) — DOE
School Psychologist (Did Not Testify) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2015
ESQ., Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2015
ESQ., Attorney, — Student
Parent/Mother — Student
Impartial Hearing Representative — DOE
School Psychologist,, — DOE
(Via Telephone) — DOE
School Psychologist,, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2015
Parents
Attorney — Student
Social worker (Via Telephone) — Student
Impartial hearing Representative — DOE
School psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2015
Attorney — Student
Attorney — Student
(Via Telephone) — Student
(Via Telephone) — Student
Impartial Hearing Representative — DOE
The parent of filed a request for an impartial hearing on March 23, 2015, alleging that the Department of Education (“DOE”) failed to provide the student with a free appropriate public education (“FAPE”) for the 2012-2013, 2013-2014 and 2014-2015 school years, and requesting, an independent evaluation,
(“ ) and (“ ”)1;
(“ ”) and (“ ”) evaluations; that
the CSE reconvene to develop an appropriate IEP, including placement in a non-public, and compensatory education. (DOE Ex. 1). I was designated to hear this matter on March 23, 2015.
An impartial hearing was held before me on May 14, 21, 29 and June 30, 2015.
The compliance date was extended on three occasions, due to unavailability of witnesses and extensive testimony/ issues, with a final compliance date of August 15, 2015. (IHO Ex. IV, V, VI).
EVIDENCE AT HEARING
is a old boy with a classification of . His
classification is not in dispute. (DOE Ex. 1, Tr. p. 69). He carries a diagnosis of
(“ ”) and .
He has a history of . Most recently, he was on October 30, 2014 for one week, after he , and had to be restrained. He was again in March 2015. (DOE Ex.
20); Tr. pp. 312, 340; 342-343).
On October 10, 2014, , ’s mother, requested a re-evaluation. (Tr. p.
336). In a and summary dated November 14, 2014, ’s
1
By Interim Order dated May 18, 2015, I ordered that the DOE provide an independent evaluation, at the rate of ; and an at the rate of . (IHO Ex. VII). In addition, on the first date of hearing, the DOE stated that it will not be presenting evidence that it provided the student with a FAPE; except for the period from December 16, 2014 forward. (Tr. pp. 13-14). The DOE argued that the parent’s claim should be limited to the two year period of limitations. (Tr. p. 33). It argued that the program and placement recommended in the December 16, 2014 IEP (DOE Ex. 11) is appropriate. (Tr. p. 41). The DOE agreed to reconvene following receipt of all outstanding evaluations. (Tr. p. 45).
and described his in school and at home, including and , and . It was recommended that he be placed in a . (DOE Ex. 20).
In a psychoeducational evaluation dated December 1, 2014, it was reported that ’s was in the . (DOE Ex. 16).A was performed by school staff; and a was developed on December 1, 2014 identifying ; . (DOE Ex. `4, 15).
Mc. , a certified special education teacher, who serves as a special education coach at , ’s school, testified that she has known since he was in . At the time of hearing, he was a student at , in a general education class, with a and related services of . (Tr. pp. 64-65, 67). She testified that although he has the capacity to be successful academically has been focused and motivated in his work; he engaged in
, , , and
. This has necessitated by school safety. She testified that at times he is a leader in the classroom. (Tr. pp. 66, 69-70). She testified that his his approaching grade level, and that he can perform on . (Tr.
pp. 82-83).
Ms. participated in the December 16, 2014 IEP meeting as a district representative. (Tr. p. 67). She testified that the team reviewed the and summary from Mt. , the psychoeducational evaluation, as well as many other measures and summaries of ’s . (Tr. p. 74). The team discussed various strategies which have been attempted, and concluded that due to his significant , he required a more restrictive placement, with a staffing ratio of . She testified that within this setting, would receive more assistance and structure, and more intensive to address his . (Tr. pp. 77, 80-81). was recommended for . (DOE Ex. 11, p. 9).
According to the December 16, 2014 IEP, is
. (DOE Ex. 11 pp. 1-2). His IEP includes (Id.
at 6-7). It does not include any goals for academics. The CSE recommended placement in a , class with related services of ( ) and the support of a and .
was recommended for standardized assessments with testing accommodations.
(DOE Ex. 11). Ms. testified that the CSE felt that if ’s were addressed, he could be successful academically; and that academic goals are not needed. (Tr. p. 89). She described ’s progress in .
(Tr. pp. 112-113). She testified that ’s mother stated that she was only interested in placement in a non-public school setting. (Tr. p. 91). On December 29, 2014, the parent was sent a
. (DOE Ex. 7).
Ms. described some of ’s more severe , which included running away from the and kicking the in the face. (Tr. p. 96). She testified that in her conversations with Mr. , ’s , he explained that required a non-public school setting, due to his need for more intensive supports due to his needs. (Tr. p. 142).
, a school psychologist at , testified that she received the February 23, 2015 letter from the parent requesting a new psychoeducational evaluation, and evaluations, and an / . She testified that the school team never conducted an or evaluation of , because it never had concerns for him in those areas. (Tr. p. 181). Within one month of receipt of the request, Ms. and her supervisor arranged for and evaluations by DOE evaluators; however the parent refused to consent to those evaluations. (Tr. pp. 181-183). , a certified school psychologist at , the recommended site, testified that is located in a building . (Tr.
pp. 191-192). The school services in grades . The majority of the students who take standardized assessments, are classified with . (Tr. p. 194). The school has a parent coordinator to help parents with available community supports. The school also provides parent trainings. (Tr. p. 196).
The school has . The school
runs to be prepared for in the building. are stationed on the floor of the school. technicians are called, if needed, to respond to situations that can’t be supported in the school; such as situations where students make statements . (Tr. pp. 204-205,
234).
Mr. testified that would have been placed in a class (which included ). (Tr. p. 208). The classroom would support learning in smaller groups. (Tr. p. 210). The school utilizes a , whereby students can , which they can . (Tr. pp. 211-212). He testified that the class includes (Tr. pp. 227-228).[2]
Mr. testified that there are behavioral challenges within the recommended classroom; however most of the students respond to the school’s behavioral program. The school has two crisis workers to support the teachers in addressing . (Tr. pp. 231-
232). There is no on staff at the school. (Tr. p. 255). could be administered through a school nurse. (Tr. p. 257).
, ’s mother, testified that during the current school year, she has been receiving called two or per day, due to ’s . He was from school . (Tr. pp. 334-335). She attended the December 16, 2014, and disagreed with the recommendation for a school; because she felt that it would not have the resources he needed. (Tr. p. 352). She went to view the recommended site ( ) and was shown two classes, and did not feel the school was appropriate for , because the environment was ; and the work did not appear to be challenging. (Tr. pp. 353, 355). After viewing the school, sent a letter to the CSE rejecting it. (Tr. p. 357; Par. Ex. S). In the same letter, she requested that the DOE fund independent evaluations for and (as well as the independent psychoeducational and ’s which I previously ordered).[3] (Tr.
p. 363).
, a licensed social worker employed at , testified that he has been providing to since December 2012, when was referred to his clinic following a at . (Tr. pp. 283-
285). He also sees ’s mom in collateral sessions. (Tr. p. 285). He testified that ’s primary deficit is ; but he also has , which is a . (Tr. p. 286).
. (Tr. p. 292).[4]
He testified that when he first began working with , he was in a general education or setting with a . Last year, he was in an class part of the time; but with one teacher only at other times. He also had a “ ” who monitored his progress with a chart. During the current school year, he is in a general education setting with a . (Tr. pp. 292-295). Mr. testified exhibits severe one or more times each week. (Tr. p .297).
On October 6, 2014, his treatment team at recommended a re-evaluation. Placement in a setting (or ) was recommended due to ’s longstanding problems since .
This would include small classes, , and
. (Tr. pp. 297-300, 315). He testified that would benefit from being in a . In the absence of an on-site , staff from the school has contacted his treatment team at to determine whether should be , which is not clinically appropriate. ’s school should have staff on hand to make this type of assessment. (Tr. pp. 306-307). He testified that at his clinic, this is a judgment usually made by a . (Tr. p. 308).
Mr. testified that while an individual is useful as a short term solution to manage in his current school, it is detrimental to ’s self-esteem; since he feels he is being supervised all of the time, and is not developing independent skills. (Tr. pp. 330-331). He recommended placement in a setting or a . (Tr. p. 315).
, the director of , testified that she is certified in special education and is a licensed . (“ ”). (Tr. p. 390).
prepared ’s and ’s. (Tr./ pp. 390-391).
Ms. performed a draft of on May 28, 2015 and June 19, 2015, including a review of the student’s IEP, the psychoeducational evaluation report and summaries in evidence; the DOE’s and ; records of ’s , interviews with staff at ’s school, and two observations of .
Ms. identified four : ; , and . She concluded that all of these are correlated with ; and that all (except for ) are correlated with attention-seeking, access to tangible items and social reinforcement. (Par. Ex. BB). She explained that, I n her observation of at this school, his negative were often reinforced. For example, he was able to get access to his tablet by cursing. (Tr. pp.
406-407).
Reviewing the DOE’s , she testified that it was deficient, because it identified only one ; . In addition, it failed to identify access to tangibles and control, as a function of his . (Tr. p. 410). The DOE’s is deficient as it targets only ; because it does not provide step by step guidelines on addressing his , and because the is not specific. (Tr. pp. 411413).
She testified that, in her opinion, needs to be placed in a environment, that offers psychologists and psychiatrists; and where data regarding ’s can be analyzed, and his adjusted. (Tr. p. 415-416). She testified that based upon her experience with programs, consistent implementation of a with daily review of data does not occur in those programs. (Tr. pp. 418-419).
She recommended a focused on increasing time on task and endurance. She identified reinforcers and teaching alternative responses to . (Par. Ex. BB),
Dr. , a pediatric , conducted an evaluation of in April 2015, and prepared a written report. (Par. Ex. X). She found that while
’s overall was in the ; his performance was
(Par. Ex. X).
Dr. testified that due to his language deficits, she gave a full evaluation, as part of the evaluation. (Tr. p.
435).[5] She testified that this was part of her training. (Tr. p. 465).
In addition, although has many friends and is well-liked, he has difficulty understanding social situations. (Tr. pp. 440-441). She testified that he continues to meet the criteria for a and for (Tr. p. 445). She described him as a “ ”, who requires placement in an intensive which can address his needs and help him develop coping mechanisms for safety. (Tr. p. 447). She testified that he requires for , and social skills groups, which would all be part of a . (Tr. pp. 461-
462). She testified that some of the programs provide ; while some provide it . (Tr. pp. 457, 472).
Dr. previously worked with programs for students with , and testified that based upon her experience, the other students were not on 's level academically or intellectually. (Tr. pp,. 449-451).
Closing Briefs
In her closing brief, the parent continues to request an order for an independent and evaluation; arguing that the DOE’s evaluation did not encompass those areas. (IHO Ex. IX). The DOE argues that the parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. (IHO Ex. VIII).
The parent also requests placement in a non-public, state approved
; that the CSE reconvene to update the IEP; and further assessments by or another agency to determine appropriate amount of compensatory services.
(IHO Ex. IX).
The DOE argues that the December 16, 2014 IEP and the recommended site are appropriate, and therefore a non-public school placement is not warranted. The DOE offers to provide of , as a . (IHO Ex. VIII).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Request for Independent and 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). If a parent disagrees with the evaluation, because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area. Letter to Baus, 65 IDELR 81 [OSEP
2015).
I previously ordered the DOE to fund Dr. ’s
evaluation, which included a full evaluation and a recommendation for (including and ). As the parent has already received an evaluation, her request for an additional evaluation is denied.
The parent’s request for an independent evaluation is granted. Letter to Baus, supra.
Request for / CSE Reconvene
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 school district must also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel, E.B., v. New York City Department of Education, 61 IDELR 25 (U.S.D.C., S.D.N.Y. 2013); See T.Y., K.Y. on behalf of T.Y., v.
New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Student with a Disability, Appeal No. 11-043. I find that the December 16, 2014 IEP is inappropriate because I find that and created by the DOE on December 1, 2014 are inadequate as they only address ’s . The record indicates that exhibited many more severe at school, including , and toward others. These all served the purpose of avoiding academics, and interfered with ’s ability to learn. The CSE’s failure to address these in itself resulted in a denial of FAPE.
I find that the IEP is also deficient to the extent that it fails to include any goals for language and , which are both areas of weakness for .
In addition, I find that due to his and , requires a (or a non-public ), including the services of a . The record indicates that due to the lack of support in ’s public school placement, staff would call his and for advice on whether he needed to be , which was not clinically appropriate.
Finally, I find that would not be appropriately grouped in the recommended site, where he would be placed with students who are functioning on a than him .
For all of the foregoing reasons, I find that the DOE failed to prove the appropriateness of the recommended program. See C.F. v. New York City Department of Education, , Docket No. 11-5003 cv., 2d Cir. 2014).
Based upon the testimony of Mr. , Dr. , and the and Summary prepared by ’s and ,I find that he requires placement in a , or a , non-public program which provides support.
For the foregoing reasons, the CSE must reconvene to review the independent evaluation, and Ms. ’s ; to create a new , based upon the independent ; to develop and goals; and to recommend a day treatment, or non-public .
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 is performing on .
His only area of academic weakness is in . In addition, he has . Based upon Dr. ’s testimony, placement in a will address ’s needs for social skills instruction, and for . Therefore, there is no need for further assessments to determine an appropriate compensatory remedy.
Although Dr. recommended additional and
, the record indicates that the parent has been unable to access available out of school services, and that the focus should be on providing with a school placement which can provide him the services he needs.
Therefore, I will order that until such time as is placed in a
(or a non-public ), he shall receive individually,
, and . In addition, based upon Mr. ’
testimony, I will order the continuation of the services of a , until such time as placement in a or non-public
is secured.
ORDER
Therefore, it is hereby ordered that:
(1) The CSE shall reconvene within 15 days of this order to:
(a) Review the independent psychoeducational evaluation and ;
(b) Develop a new , based upon the independent ;
(c) Create goals for and ;
(d) Recommend placement in a (or non-public
) with related services of (
); and ;
(2) The DOE shall fund an independent evaluation, within 15 days of this order;
(3) Until such time as is placed in a (or a non-public ), he shall continue to receive the services of an individual
; as well as individually, in addition to the related services of and , as indicated above.
(4) The parent’s request for an independent evaluation is denied.
Dated: August 6, 2015
DORA M. LASSINGER, 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
D IEP, dated 6/18/12, 13 pages
E IEP, dated 9/24/12, 16 pages
F IEP, 32 dated 5/9/13, 15 pages
H IEP, dated 12/16/14, 13 pages
I , dated 5/27/11, 9 pages
J Psychoeducational Evaluation, dated 6/10/11, 10 pages
K and Summary, dated 11/14/14, 6 pages
O Letter from Parent, dated 5/25/12, 1 page
P Letter from , dated 10/6/14, 1 page
Q Letter from Parent, to Department of Education Requesting Reevaluation, dated 10/10/14, 1 page
R School Location Letter, dated 12/29/14, 1 page
S Letter to , dated 3/15, 8 pages
T , dated 2013-2014, 23 pages
W Motion for Independent Evaluation, dated 4/17/15, 26 pages
Y Letter dated May 12, 2015 from , one page
Z Summary of Information, undated, one page
BB dated May and June, 2015, 17 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, dated 3/23/15, 19 pages
2 Due Process Response, dated 3/27/15, 3 pages
3 Notice of Social History, dated 3/25/15, 3 pages
4 Notice of Social History, dated 3/4/15, 3 pages
5 Assessment Planning, dated 2/27/15, 2 pages
6 Parent's Request for Reevaluation, dated 2/23/15, 4 pages
7 School Location Letter, dated 12/29/14, 2 pages
8 Notice of Recommendation, dated 12/29/14, 7 pages 9 Parent Interview, dated 12/23/14, 2 pages
10 School Placement Request, dated 12/22/14, 2 pages
11 IEP, dated 12/16/14, 16 pages
12 Incident Report Summary, dated 12/9/14, 4 pages
13 Meeting Notice, dated 12/8/14, 5 pages
14 , dated 12/1/14, 5 pages
15 , dated 12/1/14, 4 pages
16 Department of Education Psychoeducational Evaluation, dated 12/1/14, 3 pages
17 Chart, dated 11/17/14-12/1/14, 23 pages
18 Baseline Data Summary, dated 11/17/14-12/1/14, 1 page
19 Meeting Notice, dated 11/18/14, 5 pages
20 and Summary, dated 11/14/14, 6 pages
21 form, dated 11/5/14, 1 page
22 Checklist, dated 11/3/14, 4 pages
23 Checklist, dated 11/2/14, 1 pages
24 Request for rm, dated 11/2/14, 2 pages
25 Chart, dated 10/20/14-10/29/14, 3 pages
26 Assessment Planning, dated 10/15/14, 1 page
27 Parent Request for Reevaluation, dated 10/10/14, 2 pages
28 , dated 9/30/14-10/30/14, 4 pages
29 IEP, dated 4/28/14, 13 pages
30 Resolution Agreement, dated 5/8/15, 3 pages
IMPARTIAL HEARING OFFICER
I Subpoena, dated 5/11/15, 1 page II Subpoena, 5/18/15, 1 page 155 156 III Amended Subpoena, 5/21/15, 1 page 156 157 IV Case Follow-up Sheet, May 29, 2015, one page V Case Follow-up Sheet, June 8, 2015, one page VI Case Follow-up Sheet, June 30, 2015, one page VII Interim Order, 5/18/15, 4 pages
VIII DOE Closing Brief, 7/31/15, 9 pages
IX Parent Closing Brief, 7/30/15, 199 pages
Footnotes
[2] In a class profile dated May 12, 2015, the principal at the proposed site reported that would have been placed in a class with students ranging in age from old; with reading levels ranging from (Par. Ex. Y). IEP’s of students from the proposed class indicated that the students’ reading levels ranged from kindergarten to level and their math levels ranged from first to levels. (Par. Ex. Z).
[3] After receiving the letter, the DOE offered to perform a evaluation and an Evaluation; however the parent states that these evaluations be performed by independent evaluators. (Tr. pp. 358-359, 362, 364).
[4] He testified that receives intensive case management at home. His mother has had difficulty bringing him to the clinic , which was the initial recommendation. He testified that is getting the services he needs in ; and that he requires a more intensive program at school. (Tr. p. 299).
[5] The evaluation includes a , (Par. Ex. p. 3).