Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

___________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF PARENTS ON BEHALF OF THEIR CHILD

AGAINST PENDENCY

DECISION

EAST RAMAPO CENTRAL SCHOOL DISTRICT

___________________________ Introduction This document constitutes the Pendency Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The school district will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. This is a pendency decision only, made at the request of the Parents.

An impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of the Bd. of Educ., Appeal No. 04-017; Application of a Child with a Disability, Appeal No. 02- 003; Application of the Bd. of Educ., Appeal No. 01-087). The Commissioner's Regulations provide that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination." (8 NYCRR 200.5[i][4][ii]). The Parent’s filed a

-1- complaint notice on September 12, 2018 (Ex. A). The District filed a response on September 24, 2018 (Ex. C). A pre—hearing conference was held on September 27, 2018. A pendency hearing was held on October 9, 2018 and the parties stipulated to a record which includes IHO Exhibits A, B, and C, and District Exhibits ^[1] – 12. Briefs were submitted (IHO Ex.s D & E) . My decision follows.

The Parents’ Position The Parents have identified Exhibit 12, the Individual Educational Program (IEP) from the summer of 2018 as the appropriate pendency placement for the Student provided it is delivered at the Preschool. (T.109) The Student is unilaterally placed at the Preschool.

The District’s Position During the hearing, the District identified Exhibit 2, the IEP from the February 6, 2017 Committee on Special Education (CSE) meeting as the operative placement for the pendency (T.109). However, in their brief, the District stipulated with the Parent that Exhibit 12, for the summer of 2018 is the last agreed-upon IEP and should be used to determine the related services to be provided during pendency. (Ex. IHO D, P. 9 FN #16).

The District vigorously maintains that the Student is no longer within the jurisdiction of the Committee on Preschool Special Education (CPSE) as he turned five years old in January 2018, which makes him school-aged and no longer eligible for preschool special education services during the 2018-2019 school year. It is their position that the Student’s pendency should be for related services only, as on the IEP (Ex. 12). (Ex. IHO D, P. 14).

-2- Law

Pendency is available as a matter of federal and state law (U.S.C. §1415 [j]; New York Education Law § 4404[4]). With respect to the issue of pendency placement, the law is clearly set forth in the Individuals with Disabilities Education Act (IDEA), 20 USC 1415 [j], Zvi D. v. Ambach, 694 F. ^[2]d 904 (2d Cir. 1982). That section states in pertinent part that “…unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then current educational placement of such child…” while the underlying matter is being resolved. Implicit in the maintenance of the status quo under the pendency provisions is the requirement that the school district continue to finance an educational placement which it made and to which the parent agreed prior to the parent's request for a hearing. (Supra), (See, SRO Decision 00-063)

The pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. ^[3]d 859 [3d Cir. 1996]). See, 01-023

Background of the case A turning five meeting was held for the Student on February 15, 2018. According to the CPSE Chair, the meeting was both an annual CPSE review meeting to discuss services and a CSE transition meeting (T. 64, 89). The District created two IEPs that day: an IEP for summer programming (Ex. 12) and an IEP for the 2018–2019 school year (from September 5, 2018-June 26, 2019) (Ex. 4). The first IEP (Ex. 12) recommended a special class, 12:1:2, daily for five hours; individual physical therapy, one time per week for 30 minutes; individual speech language therapy, two times per week for 30 minutes; and individual occupational therapy, one time per week for 30 minutes. The extended school year services for July and August were to be given at the Preschool (Ex. 12, P. 13). The IEP for the 2018-2019 school year (Ex. 4) recommended an 8:1:2 class and related services1. It specified a District elementary school as the school (Ex. 4). The Parents visited the proposed placement and did not find it appropriate. They sent a letter to the District with their concerns, with letters from the Student’s doctors and psychologist (Ex. 5, Ex. 6). The Parents filed a complaint notice on September 12, 2018 (Ex. A). The CSE reconvened on September 13, 2018 and made changes to the program (Ex. 8, Ex. 9).

Student History At the time the complaint notice was filed, the Student was five years old with a disability classification of . He has diagnoses of and . He presents with significant delays across all developmental domains. (Ex. 4). The Student is unilaterally placed at the Preschool where he received extended school year services (Ex. 5).

Recommendations In a letter from the Student’s doctor, dated August 6, 2018, she wrote that the Student requires another year of preschool because of his “developmental status” including social difficulties, focusing difficulties, and behavior. The Student’s pediatric neurologist recommended continuing another year of preschool. Another doctor also recommended continuing preschool. The Student’s psychologist recommended that he remain in preschool for another year. She stated the Student needs “one to one instruction and close monitoring at all times.… He has extreme delays and social skills, and would not be able to function in an academically – oriented classroom with children of greater emotional and intellectual functioning.” (Ex. 6).

The Hearing During the hearing, the District presented two witnesses: The Program Director at the Preschool and the CPSE Chair.

The Program Director at the Preschool testified that the Preschool, which is a New York State-approved preschool, is publicly funded by two counties through their departments of health. It is not approved for school-age programs and she said school-aged children would not be accepted into the program “unless there was a court order.” (T. 21-23). She said she allowed the Student to enroll in the program because she was advised the Parents

-5- were seeking pendency (T. 45-46). She said the Preschool is implementing the Student’s summer IEP (T. 46, 49).

The CPSE Chair testified that the Student was no longer eligible for CPSE services because he was not within the age guidelines (T. 64). She explained that CPSE services are funded by the Department of Health and CSE services are funded by the School District (T. 65). The Preschool is approved for early intervention until age 5 years old (T. 65). She said that the CPSE was able to recommend summer services at the Preschool although the Student was five years old because the summer was part of the 2017-2018 school year2, and the “. . . extended summer school year . . . ends on 8/10/18 . . .” (T. 71- 72). She said that if parents reject a program and the Student is not compulsory school – aged, the District can provide the services on the IEP at the District or the Student’s home (T. 82 – 83) and have also sent service providers to private schools (T. 85 – 86). She said the District is not required to provide transportation to a student enrolled in a private school if the student is not of compulsory age (T. 84-85).

Analysis The District’s position is threefold. One, because the Student is not of compulsory school age (a child who become six years old on or before December 1st in the school year), districts are only required to provide special education services. Two, the Preschool is not approved to provide the Student with a program; and Three, the pendency provision does not require that students remain in a particular location; only that they are given the same general type of educational program. They assert that the appropriate pendency for the Student would be the special education services as mandated on the Student’s last agreed-upon IEP (ex. 12). I respectfully disagree.

The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).

I find that the IEP that controls the pendency placement in this case is Ex. 12. This is not in dispute.

Compulsory Attendance With respect to the District’s argument that the Student is not subject to compulsory attendance, I find the supporting logic compelling but inapplicable in cases like this, where the Parents have unilaterally placed the Student. Accepting the District’s argument on this point, I nevertheless dismiss this position noting that “The constraint regulates school districts when proposing a public placement; it does not regulate parents who have selected a unilateral placement and exercised their right under the statute to stay put.” See, Application of Board of Education, Appeal No. 13-0863.

Preschool’s Approval and Complicated Financing Concerns

With respect to the District’s allegations concerning the Preschool’s approval and the complicated financing concerns of the District and the County, I offer several observations. First, because the District made the recommendation for the summer program at the Preschool (for the 2018/2019 school year), I find that the District should now be estopped from now denying the placement. In other words, if the District found the summer services appropriate, and lawful, which they did (during the summer), (Ex. 12), it is not persuasive to rely on the distinction between preschool and school-age as a basis to now deny the educational component offered at the Preschool.

Two, the management and control of the Preschool is a matter of finance and law that is beyond my jurisdiction in this case which is specifically limited to “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). While it may be said that the Preschool and its programming are directly the topic of the ultimate placement, I decline to make a ruling

Moreover, it was required to be funded under pendency (stay-put), and the pendency principle does not require that the SEIT continue to provide the instruction in a particular site or location or that the services be delivered at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16; see Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; Application of a Student with a Disability, Appeal No. 08-107; Application of the Bd. of Educ., Appeal No. 07-125; Application of a Child with a Disability, Appeal No. 07-076; Application of the Bd. of Educ., Appeal No. 05-006; Application of the Bd. of Educ., Appeal No. 99-90). The constraint regulates school districts when proposing a public placement; it does not regulate parents who have selected a unilateral placement and exercised their right under the statute to stay put.” -8- that concerns the regulation, management or legality of a non-party who has not participated in framing the allegations or in taking a formal position in the case^[4].

Related Services Alone

I also find that the District’s position to reduce the Student’s programming to related services alone, would substantially and/or materially alter the child's educational program. This would constitute an impermissible modification of the Student's pendency placement and is not supported on this record.

OSEP set forth the following factors to be considered in determining whether a change in educational placement has occurred:

“whether the educational program set out in the child's IEP has been revised; whether the child will be able to be educated with nondisabled children to the same extent; whether the child will have the same opportunities to participate in nonacademic and extracurricular services; and whether the new placement option is the same option on the continuum of alternative placements” (Letter to Fisher,

21 IDELR 992).

The District does not even address if they can implement a 12:1:2 program. Rather, they offer a significant revision, eliminating the program altogether and providing only related services. On the other hand, it is unchallenged in this record that the Preschool is currently implementing the exact same program the Student had during the summer. (Ex. 12, Tr. pp. 46 & 49). Significantly, “The U.S. Department of Education has also stated that 34 CFR 300.512 (a) requires a board of education to continue to provide the special education and related services which it had previously provided to a child in a preschool day care program during the pendency of a challenge by the child's parents to the board of education's offer of a kindergarten placement to the child.” (Letter to Harris, 12-30-93, 20 IDELR 1225).) Application of a Child with a Disability, Appeal No. 03-032.

Concerning the least restrictive environment, this record reveals that the Parents’ choice for pendency will afford continuity of participation with the same or similar peers^[5] from the summer. He is in a classroom with 13 students (Tr. p.46). He is receiving the same related services that he received during the summer of 2018 (Tr. 46-48). The District option would eliminate interaction with any other students. Even though the District has maintained that they can implement the contested placement recommendation (Ex. 4), they have offered no assurance that they can implement the agreed upon pendency placement (Ex12), (special education and related services may be provided to a preschool child with a disability in a variety of settings, including a regular kindergarten class, public or private preschool program, community-based child care facility, or in the child's home. Dear Colleague Letter, 69 IDELR 106 (OSEP 2017) ^[6]. For the above reasons I hereby order During the pendency of this proceeding, the IEP identified in this record as exhibit 12 shall be implemented at the Preschool and such program shall be at the expense of the District. To wit: special class, 12:1:2, daily for five hours; individual physical therapy, one time per week for 30 minutes; individual speech language therapy, two times per week for 30 minutes; and individual occupational therapy, one time per week for 30 minutes. Special education transportation is included either via a small bus or vehicle. This order is retroactive to the date of the filing of the complaint notice herein. Specifically, September 12, 2018.

“public agency responsible for providing FAPE to a preschool child with a disability must ensure that FAPE is provided in the LRE where the child's unique needs (as described in the child's IEP)

can be met, regardless of whether the LEA operates public preschool programs for children without disabilities. An LEA may provide special education and related services to a preschool child with a disability in a variety of settings, including a regular kindergarten class, public or private preschool program, community-based child care facility, or in the child's home.

If there is an LEA public preschool program available, the LEA may choose to make FAPE available to a preschool child with a disability in the LEA's public preschool program. While the number of public pre-kindergarten programs has increased, many LEAs do not offer, or offer only a limited range of, public preschool programs, particularly for three-year-olds. In these situations, the LEA must explore alternative methods to ensure that the LRE requirements are met for each preschool child with a disability. These methods may include: (1) providing opportunities for the participation of preschool children with disabilities in preschool programs operated by public agencies other than LEAs (such as Head Start or community-based child care); (2) enrolling preschool children with disabilities in private preschool programs for nondisabled preschool children; (3) locating classes for preschool children with disabilities in regular public elementary schools; or (4) providing home-based services. If a public agency determines that placement in a private preschool program is necessary for a child to receive FAPE, the public agency must make that program available at no cost to the parent.

Additionally, preschool children with disabilities are often identified as children with disabilities while participating in regular public preschool programs, such as Head Start or a regular public pre-kindergarten program. The following requirements apply when determining placement options for a child with a disability who already participates in a regular public preschool program, including a community-based regular public preschool program operated by a public agency other than the LEA. Under 34 CFR § 300.116(c), unless the child's IEP requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled. In addition, under 34 CFR § 300.116(d), the placement team, which includes the child's parent and may include the child's current teacher, must consider any potential harmful effect on the child and on the quality of services that he or she needs before removing the child from the current regular public preschool setting to another more restrictive setting. Consistent with these requirements,

IDEA presumes that the first placement option considered for a preschool child with a disability is the regular public preschool program the child would attend if the child did not have a disability.

Therefore, in determining the placement for a child with a disability who already participates in a regular public preschool program, the placement team must consider whether the LEA, in collaboration with the regular public preschool program, can ensure that the child receives all of the special education and related services and supplementary aids and services included in the child's IEP in order to meet the needs of the particular child with a disability. 69 IDELR 106

(OSEP 2017)

Dated: November 23, 2018

______________________ Martin Kehoe, III

Impartial Hearing Officer

PLEASE TAKE NOTICE

The Parents and/or the District 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.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

Footnotes

[1] Speech language therapy in a small group, one time per week for 30 minutes; individual speech language therapy, two times per week for 30 minutes; individual occupational therapy, two times per week for 30 minutes; individual physical therapy, two times per week for 30 minutes individual vision services, two times per week for 30 minutes; and parent training, once quarterly for 30 minutes. -4-

[2] This may be correct, but it is contrary to my understanding of the calendar for a school year : July to June. -6-

[3] From the decision I offer additional context: “As another preliminary matter, the district makes much of the fact that the 1:1 instruction provided to the student was referred to as "SEIT" services (a service identified in State regulation as a preschool service) and therefore inappropriate because the student had reached school-age see Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]). That is the extent of the district's argument which largely elevates form over substance under the particular circumstances in this case. The service remained 1:1 special education instruction by a certified special education teacher. -7-

[4] (I believe the District has a relatively expedited avenue to address their concerns. See, State Complaint procedures found in 8 NYCRR section 200.5(l)). -9-

[5] Albeit the Student is the only five-year-old at the Preschool (Tr. p. 42)

[6] It appears that the relevant guidance would allow a degree of flexibility in developing a program for a preschooler. To the extent that the District would seek to re-open the record and offer a special education program consistent with the program and services as outlined in Ex. 12, I would consider such application favorably and subject to the development of the record and further input from counsel I would adopt the same flexible approach in this case in an effort to close up the apparent “loop-hole”. I have enclosed the pertinent text from The Dear Colleague Letter that I cite. - 10 -