New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165707

Student’s Name:

Date of Birth:

District: I Hearing Requested By: Parent

Date of Hearing: April 25, 2018

Actual Record Closed Date: April 25, 2018

Hearing Officer: Mary Noe, Esq. Case No. 165707

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2018

Parent Pro se — Student

Interpreter — Student

Tutor (Via Telephone) — Student

Ph.D., District Representative — DOE

CSE — DOE

• (Via Telephone) — DOE

Principal (Via Telephone) — DOE

This case was remand from the SRO (Exh. II 17-057). The parent’s due process complaint is dated March 10, 2017. (Exh. I) The parent alleges that the student “could not acired[d] appropriate education [and] treatment” in the public school. The parent requests an award of reimbursement for private tutoring which was appropriate as opposed to going to the public school. (id.)

The district is represented by and the parent represented herself. I was appointed on or about April 6, 1018. The hearing was held on April 25, 2018.

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The student is classified as Autistic. The student’s date of birth is

From December 2013 – September 2014 the student was years old and attended a 6:1:1 class in a District

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school located at (T. 96) The parent withdrew the student on or about September 8, 2014. (T. 96) He has not attended school since that date.

The controlling IEP dated November 27, 2013 recommends the following: 6:1+^[1] program in a specialized school, adapted physical education three times a week for a period each time; counseling services – individual one time per week for 45 minutes and in a group of 3 one time per week for 45 minutes; parent counseling and training in a group monthly; speech-language therapy in a group of 3 twice a week for 45 minutes; paraprofessional crisis management full time, 12 month program. (Exh. A)

PRIOR HISTORY

There have been three Impartial Hearing Officer’s (IHO) opinions and three State Review Officer’s opinion1 regarding the same issue. The following is a summary.

was scheduled for December 1, 2014. (T. 9) A decision was written on December 24, 2014. IHO issued an amended decision dated February 9, 2015. The IHO decision repeats the options offered to the parent:

1. district will provide home instruction at the student’s home by an appropriately licensed teacher, 1:1 daily at times consistent with parent’s work schedule and a comprehensive psychiatric, psychological and neuropsychological assessment by an independent provider.

2. file an amended complaint to add detailed other concerns. (Exh. VII)

Parent defaulted and the action was dismissed without prejudice. The Hearing Officer ordered home instruction. SRO Appeal No. 15-022

The SRO vacated the Hearing Officer’s order and remanded the matter to another IHO to conduct a new hearing, develop a record, and render a decision consistent with the requirements of due process.

2. IHO Decision dated December 2, 2015 (Exh. IV)

The Hearing Officer hears the case on remand from the SRO. Hearings were conducted on August 12, November 18, 2015.

According to the Impartial Hearing Officer’s decision there was a psychiatric evaluation dated November 22, 2014. The diagnosis is autism spectrum disorder (moderate), mental retardation (mild to moderate) and oppositional defiant disorder (mild). A functional behavior assessment is dated November 15, 2013 which focused on student’s defiant behaviors. The IHO references the original complaint filed September 16, 2014.

The parent’s complaint articulates the incident that occurred in September 2014.

The Hearing Officer’s opinion references witness testimony regarding the September 8, 2014 incident, although she was not a witness to the incident.

the student’s rehabilitation specialist, testified that he was present and SRO records appear that an Appeal No. 15-022 was withdrawn.

witnessed the incident testified. The testimonies had conflicting facts regarding the incident. The Hearing Officer noted he did not have jurisdiction to make a determination on the incident. The Hearing Officer found that the district’s program and placement was “not inappropriate” and would not warrant placement in a non-public school. The Hearing Officer dismissed the complaint. (Exh. IV) SRO 16-007 (Exh. VI)

The State Review Officer stated that “While the dismissal of the parent’s claims resolves the instant proceedings, the student’s educational status going forward remains unresolved.” The State Review Officer dismisses the appeal and encourages the district and parent to work together.

3. IHO decision dated June 14, 2017 (Exh. III)

The parent filed a complaint on March 13, 2017. The parent requested reimbursement for private tutoring services for the student from September 2014 to the present ($28,960). The IHO found the parent withdrew the student from school in September 2014. The parent refused to accept any other placement option offered by the district including home instruction. The parent submitted “hand written receipt and contract from 2014 the parent failed to present any evidence with respect to actual services provided.” Based on the equitable consideration for reimbursement, the IHO denied the parent’s request. SRO 17-057 (Exh. II)

The State Review Officer notes the hearing record includes “little information regarding the student’s educational needs.” The decision references a letter dated September 12, 2014 from the parent stating the student would not return to school and requested the district convene a CSE meeting and recommend a non-public school placement.

The SRO decision states “…the IHO erred in failing to make any substantive findings regarding whether the district offered the student a FAPE as alleged by the parent in the March 2017 due process complaint notice.” (p.14) The SRO states that the IHO findings consisted of “nothing more than conclusory language and, as noted below, were based on an insufficient hearing record.” (p. 14)

The SRO states the IHO rendered a decision because it was outside the statute of limitations, too vague and/or the parent’s allegations did not pertain to matters relating to FAPE. The SRO remands for a new hearing as to whether the district offered the student a FAPE, whether the private tutoring services was an appropriate unilateral placement and whether equitable considerations support the parent’s request for reimbursement of the cost of the tutoring services.

The SRO directs that the case be “remanded to the IHO to determine on the merits, based upon an adequate hearing record, whether the district offered the student a FAPE and, if not whether the p[ir]ate tutoring services obtained by the parent constituted an appropriate unilateral placement for the student, and whether equitable consideration support the parent’s request for reimbursement.” (Exh. P. 15)

Finally, the SRO directs the IHO to “first address whether the district offered the student a FAPE after the September 2014 incident and, then –if necessary – address whether the parent established the appropriateness of the private tutoring and whether equitable considerations weighed against awarding the parent the relief requested; namely, an award of reimbursement for private tutoring.” (Exh. P. 16)

TESTIMONY and EVIDENCE

Parent’s Letter Dated June 13, 2014 The parent submitted into evidence a letter she wrote to the school regarding the student’s absences. There is a request for a meeting “Kindly grant my son’s absences caused by the above stated causes, by written and a meeting as soon as possible for addressing these issues and solving problems.” (Exh. F)

Letter Dated September 10, 2014 The student’s aid signed a letter addressed to “To: Whom it may concern.” In the letter he describes what he saw while picking up the student from school. He states a para “grabbing [the student’s] chest to throw [the student] heavily on the floor of the hallway outside of Rm 503, the school’s office. “[The student] fell backward and had a heavy concussion at his back skull [the student] looked dazed from the blow to his head even after I helped him to get up. I immediately took [the student] to his school nurse while I made a phone call to tell his mother the situation. After seeing the nurse I took [the student] to his clinic….” (Exh. D)

Residential Habilitation Specialist testified that he helps tutor the student. (T. 196) is employed by which is authorized by Office of People with Disabilities. (T. 197) He described that on September 8, 2014 observed the student, who is “slammed him to the ground” by a paraprofessional by the name of 1111. (T. 255, 199) This incident occurred outside “a few inches away from the main door.” (T. 248) remembers came out of her office and said she saw everything. (T. 206, 203) He did not report this to the special education office or to anyone except the parent on that day. (T.260-261) He then took the student to the bathroom and then the nurse’s office. (T. 199-200)

testified that his duties include going to the home and you help individuals that have developmental disabilities to become more independent, like, teaching them home living skills, teaching them outdoor skills, how to take a bath, teaching them money management, and teaching them safety skills. (T. 226, 229) He earns $13 an hour, originally $12.40 an hour. (T. 231) Transcript dated August 12, 2015 “He is (T. 119) “There was a little altercation between and [the student]. And threw [the student] to the floor. So what happened, I will tell you what I - - . So, I went to pick up [the student]. He came up, he came up with - - , who is also . And they came--they came in the office, where they met me. So, I said, "Okay, let's go. Let's go." - - goodbye. And [the student] left the office first. Then I left right behind him. But then I noticed [the student] was not carrying a book bag. So I turned around to the para, his para, who was behind me. And I asked him, "Oh, where is -where is [the student]'s book bag?" And then, during that like short amount of time, and [the student] seen each other. And I know [the student]-- threw [the student] to the ground. It wasn't so high. It was like midpoint. And [the student], he yelled, "Oh, you hit me." And then I helped [the student] up. [the student] was not trying to, like, retaliate after being thrown. He was angry, very angry. So I asked, him, "Let's go to the bathroom." And he went to the bathroom very easy, washed his face. He was very cooperative. I asked him, "You want to go to the nurse?" He said yes. Went to the nurse. We saw like a little - - intersect his head. And after that, we proceeded to go to the doctor at the hospital.” (T. 124) “I didn’t go to school for this job.” (T. 161) “I was pursuing environmental engineering.”

(T. 163) : “Okay. And who pays, who pays- (Interposing) Medicaid.” (T. 164)

is the supervisor at the Committee on Special Education in .

(T. 106) In July 2016, met the parent in reference to the reimbursement of funds for teaching instruction. (T. 106) The student attended “a number of District schools.” (T. 108) The parent was sent information from the State Education Department of Adult, Career, and Continuing Education Services to help [the student] with vocational training. (T. 111) testified since the student’s aid was not approved by the NYC DOE, she could not be reimbursed. (T. 114)

testified that any violent incident that occurs would be reported to the Office of Special Investigations for a determination. She stated the parent “never wanted to talk to us.” (T. 171)

testified that the attendance teacher went to the house and was met in the lobby by the parent but not allowed to visit with the student. The student never returned to school. (T. 180-183) Transcript from impartial hearing dated June 2, 2017 testimony: “There was an incident that happened in our school, and the parent decided that our school was not a safe environment anymore, so he decided that -- he decided that he was not coming to us anymore. So we tried to speak with the parent. We sent the attendance teacher. We offered different schools. We even offer home instruction.” (T. 35-36) “For what I remember, I mean, we follow procedures, so we -- we spoke to the parent; we had several phone conferences looking for another school that he could go to.” (T. 18-19) Transcript from impartial hearing dated August 12, 2015 testimony: “I was told--I mean, I'm in the office and this happened while [the student] is leaving the office, that [the student] tried to hit one of the paraprofessionals. The paraprofessional moved back and [the student] leaned forward falling down. When I stepped outside to see exactly what had happened, because I heard voices and I heard the sound, [the student] was already leaving with the para, with the person that came to pick him up and when I asked the paraprofessional what had happened he had said, "That [the student] had called him a name." I, it was a derogatory name but I don't remember exactly what it was, and that he tried to hit him. He moved back….[The student] tried to hit ….I did not see [the student] on the floor.” (T. 54) “…there was another incident during lunch time with the student. For some reason he was (T. 58) “So my principal opened an investigation. She questioned the people involved in the incident but it was, it was found unfounded. I mean, this incident happened in the cafeteria. There were many witnesses. The cafeteria is very crowded during lunch time. And so after it was found unfounded we called back the parent. We told her what the result of the investigation was but the parent still did not want to send the kid to school.” (T. 59) “…we 1 tried to reach the parent. We called the parent several times. My principal tried to call the parent several times. We sent the attendance teacher, the attendance teacher went to the building. The parent was not receptive to the attendance teacher. The attendance teacher was never able to go upstairs.” (T. 61)

“I believe that the program that he was in, 6:1:1 with a 1:1 crisis paraprofessional, and the related services that he had, at that time were appropriate for [the student]. Right now, I am not sure what has been happening with [the student], so I would strongly recommend another reevaluation to see how he is doing and to see exactly what his performance levels are. And he would be very welcomed into our school. We tried to contact the mother several times, but the mother did not want to participate in anything that the school wanted to do. And he has been absent since September. So, we haven't been able to schedule any evaluations for [the student].” (T. 66) The student had a FBA. (T. 77-79) testified that she observed the student attack the in her office and another person had to come between the student and the .

(T. 81)

IEP dated November 27, 2013 (Exh. E)

The IEP dated November 27, 2013 recommends the following: 6:1+1 program in a specialized school, adapted physical education three times a week for a period each time; counseling services – individual one time per week for 45 minutes and in a group of 3 one time per week for 45 minutes; parent counseling and training in a group monthly; speech-language therapy in a group of 3 twice a week for 45 minutes; paraprofessional crisis management full time.

The IEP meeting was attended by the related service provider/special educational teacher, the parent, district representative, the student, the principal, speech therapist and

MSC. (Exh. 1)

The IEP indicates that the students writing continuum is pre-emergent. The student is able to express his wants and needs verbally. He is able to take care of his personal items such as hanging up his backpack and jacket. He needs prompting and assistance in order to unpack his backpack and hand in any paperwork from home. He follows directions well but needs them broken down into small steps or repeated in order to fully understand instructions. He is independent with his toileting needs. The student has a very strong sight word vocabulary but needs the support of adapted texts with some pictures during class readings in order to assist in comprehension. According to , the student is reading at a level 6. He has difficulty comprehending what he is reading.

He is able to look at a book/magazine and turn the pages one at a time. He can write many words but needs prompting to write in sentences. He is able to spell many high frequency and familiar words without assistance and will attempt to sound out unfamiliar words or ask for help. He adds two digit numbers and skip count.

According to the IEP, the student’s mother would like for him to focus on learning academic skills in order to strengthen his reading, writing and math skills.

The IEP indicates that the student can present defiant behaviors when asked to complete something he does not want to do such as walking away, pushing. He will wander away from class if able. The student will make fun of other students by mimicking their phrases or gestures. He responds to staff prompts to discontinue this inappropriate behavior but will continue if unsupervised. The student is a visual and tactile learner. He enjoys class lessons that allow movement and kinesthetic activities. He enjoys the smartboard, computer and other manipulatives for class lessons.

Under the heading: Academic, Developmental needs …, including consideration of student needs that are of concern to the parent, it states the following: “[The student’s] mother would like [the student] to continue to learn academic skills in order to strengthen his reading, writing and math abilities. [The student’s] mother also expresses and interest in learning more about opportunities for [the student] after graduation.

No testimony or evidence was submitted to support the recommendation of the IEP. The prior IEP dated seven months before (4/22/2013 Exh. 2) recommends the identical program as the IEP dated November 27, 2013.

There are no records to indicate the parent objected to the IEP. In fact, the program and related services continued to the student until September 8, 2014. After September 8, 2014, the parent refused to send the student to school and refused home schooling.

Notwithstanding the parent’s silence on the IEP program, the district has not met their burden to prove that the November 27, 2013 IEP was appropriate. IEP dated April 22, 2013 indicates the parent disagrees with her son’s plan to join the Army and would like her son to have a job in computers. She also would like her son to “self-advocate for himself and learn how to travel train.” The parent has concerns about the student’s communication skills. (Exh. 2) IEP dated January 3, 2012 classifies the student as intellectual disability. The IEP recommends a 12:1+1 program with speech and language therapy and counseling services. The student’s classification is Intellectual Disability. (Exh. 3) The IEP indicates the parent reported that he has poor safety skills when traveling in the community. (Exh. 3) The references that the student’s previous psychological evaluations results are the student functions in the “cognitively delayed range of intellectual functioning.” There is nothing in the record to indicate the parent disagreed with the recommendation. (Exh. 3) The IEP dated 2012 referred to psycho-educational evaluations. The student’s classification was intellectually disabled. (Exh. 3) The two subsequent IEPs classification was autism. (Exhs. 2, E)

No evidence or testimony support the recommendation of the IEPs for 2012 or 2013.

DISCUSSION

Two purposes of the 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 Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]. 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)

PARENT’S REQUEST FOR REIMBURSEMENT

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).

is the student’s provider since September 2014. testified he has a high school Regents diploma from High School dated 2010. (T. 218) At high school he studied plumbing although he never received a plumbing license. (T. 219) He attended and received five credit by 2012. (T. 220) He currently attends and his major is veterinarian technician. (T. 219) He has twenty three credits. (T. 222)

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worked full time in an animal rescue from 2010-2014. (T. 223) He attends to the student five days a week for two and one half hours each day. (Transcript 8/12/2015 T. 164) His rate of pay is $13.00 per hour. (T. 231)

I find services inappropriate for the following reasons: he has no special educational training or experience. never stated that there was a program or objectives for the student. There are no reports or assessments. No documents or information was submitted by the parent at the time of the hearing.

EQUITABLE REASONS

There are equitable reasons why the parent’s request for reimbursement fail. One month after the incident the district offered a different school, evaluations or home schooling. The parent never responded and ultimately the parent’s complaint was dismissed.

At the impartial hearing dated June 2, 2017 the parent stated “…we don’t want home schooling.” (Transcript dated 6/2/2017 p. 4) Hearing Officer question “So you don’t want to enroll your child in school?” Parent’s response “Not right now.” (T. p. 5)

The IHO ordered home instruction. Both the district and parent testified that attendance teacher were sent to the home and the parent did not cooperate. The parent testified that the school sent attendance teachers to the home. (T. 284-286) Ms. 1111 testified “The parent did not want anyone to come to her home.” (Transcript 6/2/17 T. 37)

The parent brings the current complaint requesting reimbursement of $25,000 but submits nothing to substantiate such an amount. previously testified he is paid through Medicaid. (T. 106) His rate of pay is $12.50 per hour.

At the present hearing, the Parent continues to litigate the incident that occurred on September 8, 2014. Hearing Officer question “You’re alleging that the District denied your child a free appropriate public education, is that correct?” Parent’s response “It’s not denied. It’s – the assault happen.” (Transcript dated 6/2/2017 p. 7)

This is an inappropriate forum for such litigation. Based on the testimony and evidence submitted, the parent’s request is denied. Post High School Education The parent’s claims are for the following years: “From all the years after September 8, 2017….To the last day he was entitled to the public school.

The IDEA applies to children between the ages of 3 and 21, subject to the limitation that it does not apply to children ages 18 through 21 where it is inconsistent with State law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][A], [B][i]. In New York State, a student with a disability is eligible for services under the IDEA until he or she receives a local or Regents high school diploma, or until the conclusion of the school year in which he or she turns 21 (Educ. Law §4402[1][b][3][c], [5][b]; see 8 NYCRR 100.5[b][7][iii], 100.9[e]; see also34 C.F.R. § 102[a][3][i].

Compensatory education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age, may be awarded if there has been a gross violation of the IDEA, resulting in the denial of, or exclusion from, educational services for a substantial period of time during the student's period of eligibility for special education (see Garro v. State of Connecticut, 23 F.3d 734, 737 [2d Cir. 1994].

The school had an obligation after September 8, 2014 when the parent withdrew the student, to provide the student with a FAPE until he graduated or was twenty one. Based on the prior records, specifically IHO decision dated December 14, 2014, the school offered the parent several options for the student. Additionally, the parent testified that school personnel came to her home on several occasions. The parent refused to cooperate. I find the parent has failed to make the student available for the school district to create an IEP program for future years for the student. May 7, 2018 Dated: May 10, 2018 Mary Noe mv

MARY NOE, ESQ.

Impartial Hearing Officer MN:mv

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Picture of a head, unidentified date, one page B medical records, unidentified date, sixpages C Office of School Health records, 9/8/14, one page D Letter, 9/10/14, unspecified number ofpages E IEP, 11/27/13, 22 pages F Letter, 6/13/14, one page

DEPARTMENT OFEDUCATION

1 Attendance page, 11/27/13, one page 2 IEP, 4/22/13, 17 pages 3 IEP, 1/3/12, 18 pages

IMPARTIALHEARING OFFICER

I Hearing request case 165707, 3/10/17, unspecified number ofpages II SRO decision 17-057, 9/11/17, 17 pages III Prior decision from IHO McKeever, 6/14/17, unspecified number of pages IV Findings of fact and decision, 12/2/15, six pages V Withdrawn VI SRO decision, 4/6/16, 12 pages VII IHO decision, 2/9/15, five pages VIII FBA, 5/6/13, five pages IX BIP, 5/7/13, six pages

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Footnotes

[1] IHO decision dated December 14, 2014 (Exh. VII) Parent requested an expedited hearing on September 16, 2014. An impartial hearing was held approximately one month after the incident (10/30/14), the parent, pro se requested home instruction or placement in a private school at the district’s expense, which would require new evaluations. (Tr. dated 10/30/2014 p. 4-5) The district offered a different public school, private evaluations and home instruction. The parent could not choose and asked for an adjournment and extension of the compliance date. The hearing