New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 179552

Student’s Name:

Date of Birth:

District Number:

Hearing Requested by: Parent

Dates of Hearing: January 9, 2020

March 19, 2020

May 22, 2020

August 18, 2020

Record Closed Date: November 10, 2020

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED January 9, 2020 March 19, 2020 May 22 2020 August 18, 2020

Advocate — Parents

None — DOE

Advocate — Parents

None — DOE

Advocate — Parents

None — DOE

Advocate — Parents

Yvette Camby — DOE

PARENT’S EVIDENCE

Item Number of

Date Description

Number Pages

A 11/16/18 Impartial Hearing Request 3

B 4/23/18 IEP 18

C 8/29/18 IESP 8

D 2018-2019 List of SETSS Providers Called by Parent 1

E Various Dates Certification of 3

F Various Dates Certification of 2

Affidavit

G 9/16/19 1

H 6/30/20 Affidavit 1

DOE’S EVIDENCE

None

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 179552. The hearings were held either remotely or at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, their

Advocate represented the Parents/Student; , DOE Designee represented the Department of Education.

THE DOE’S POSITION

The DOE presented no witnesses and rested; it maintained that it provided the student hereinafter referred to as with an IEP that was in place for the beginning of the 2018-2019 school year.

PARENT’S POSITION

Parent’s counsel maintained that the Committee on Special Education (" CSE" ) failed to offer a procedurally valid and substantively appropriate IEP, placement, and service recommendations in a timely manner for the 20 I 8-2019 school year.

Parent’s Advocate is requesting on behalf of the Parent that her child receive 5 hours per week of Special Education Itinerant Services- SEIT/SETTS, in , and related services of occupational therapy 2x30 minutes per week from September of 2018 though the end of June 2019 less amounts paid through pendency.

BACKGROUND

.

was a -year-old bilingual student who began kindergarten in September 2018. She presents with academic delays, poor expressive language, social emotional delays, and difficulties with fine motor skills. Assessments show that she is moderately delayed in overall language skills. She is unable to initiate or maintain play activities with her peers. She is quiet and shy in the classroom, and she prefers to be on her own and avoid activities that require socializing. shows interest in age appropriate toys, but does not demonstrate ability to engage with them appropriately. She also has trouble with abstract concepts. does not use full sentences to express herself in the classroom, does not follow directions and is insecure and unsure about “what is being asked of her”. She requires constant reassurance and encouragement throughout the day and has difficulty expressing her needs and wants. Additionally, she has trouble with transitions and following classroom routines.

's motor skills are reported to be in the moderately low range and she has difficulty holding a crayon and scissors correctly. She demonstrates difficulty manipulating shapes and replicating a circle or a square and is unable to manipulate buttons or zippers. has significant difficulty completing arts and crafts activities, pasting stickers or dressing herself. She presents with decreased strength in intrinsic hand musculature.

On 4/23/18, the CPSE convened to create a preschool IEP for the student. The committee recommended that the student receive 5 hours per week of SEIT services in , in a group no larger than three along with occupational therapy 2x30 minute per week in a group of two. The committee determined that the student required summer services to prevent regression and loss of skills.

THE PARENT’S POSITION

On 8/29/18, the CSE convened to create an IEP/IESP for the student as part of the transition from preschool to kindergarten. The parent maintains that the IESP created is procedurally and substantively flawed and resulted in the student being denied a FAPE for the 2018-2019 school year. The parent was not present for the meeting and maintains that had he been present, he would have asked the committee to evaluate the student for speech and language therapy and following the evaluation to reconvene to consider adding speech and language therapy to the student's IESP.

In addition, the committee, noting the student's language delays failed to create any goals to address them. The committee did not recommend counseling to address the student's social emotional difficulties. Social emotional goals created are vague and lack objectives, benchmarks and measurements. The committee failed to recommend any academic goals for the student. In addition, the committee removed summer services from the student's IESP.

The parents failed to locate a special education teacher; a licensed and bilingual special education teacher willing to work with the student at the DOE's rate of $41.98 per hour. Parent is seeking an award for SETSS at an enhanced rate in , occupational therapy 2 x 30 minutes in a group, and that the DOE conduct a speech and language evaluation, bilingual

.

THE DOE’S CASE

As per the DOE Designee, “aged out” of preschool. The Parent failed to attend the IEP meeting despite the fact that the school psychologist called the parent to confirm the date of the meeting. Additionally, the District never received a letter from the parent for a speech reevaluation in . The DOE failed to provide any evidence or witnesses and rested.

PARENT’S CASE

Parent’s Advocate stated that the student's preschool IEP dated 4/23/18 provided the student with SEIT, Special Education Itinerant Teacher Services, 5x60 in a maximum group of 3:1 / bilingual , occupational therapy 2x30 2:1 and received these services in preschool.

is a student who has academic delays, speech/ language and social delays, fine motor delays with “ somepragmatic language issues”; however she has never been evaluated for speech. The last assessments done by the DOE prior to the IEP and IESP of 2018 indicate that the student had moderate delays in overall language skills, which affected her participation in class, interaction with her peers and overall socialization skills. Fine motor skills were in the moderately low range; she was having difficulty with crayons and scissors, manipulating shapes, replicating circles and squares. She had difficulties with ADL skill in preschool; the last IEP was created on 4/23/18 and recommended that the student receive five hours of SEIT in in a group no larger than three and OT, 2 x 30 minutes per week in a group no larger than two in a 12-month program.

When the aged out of preschool, the CSE convened an IESP meeting on 8/29/18. The Parents maintain that they were not invited to the meeting that it was held without them. As a result, they did not have an opportunity to discuss with the CSE’s concerns that they had regarding their daughter’s speech and language skills. The Parents take issue with the fact that they were not at the meeting and request that the DOE evaluate their daughter to see if she would benefit from speech and language therapy and to address her expressive, receptive, and pragmatic language skills.

Following the meeting, despite their non-attendance, the Parents attempted to locate a SETSS provider for their daughter because she turned five, and the CSE recommended SEIT/SETSS. The Parents were given a list of providers to contact; the Parents identified the persons that they contacted and the responses received next to the phone number on the list. The Parent continued in their attempts to reach providers through early October 2018.

They were unsuccessful in locating a provider that would be willing to work with their daughter at the DOE's

SETSS rate. Exhibit D contained a long list of a number of names and phone numbers; the Parents noted who they contacted and what the provider’s response was and the date that the providers were contacted. They did not locate providers that would be willing to work with the student, who is a bilingual student, at the DOE's SETSS rate. The impartial hearing was filed on November 16, 2018 requesting pendency as per the student's last agreed-upon IEP, which was the preschool IEP. The Parent is seeking SEIT or enhanced rate SETSS, bilingual at a rate of $125.00 an hour from September 5, 2018 through June 30, 2019. The Parent is also requesting that the DOE conduct an assessment authorization for a bilingual speech and language evaluation and that the DOE reconvene following the evaluation to consider adding speech and language therapy to the student's

IEP.

Parents located and ; both are licensed certified special education teachers who have bilingual certifications. The SETSS services were split wherein, there was a five-hour session; each teacher provided two and a half hours per week. Affidavits from the providers established that they were qualified to work with the student.

Parent’s Advocate maintained the DOE's burden is not only to create an IEP or IESP that offers student services; additionally they are to ensure that the students receive the services. Furthermore, the DOE has not met that burden in that they failed to offer a provider.

Parents are seeking an order to compensate the providers; direct funding five hours a week of the special education services at the rate of $125.00 an hour for the school year from, September 5, 2018 to June 30, 2019 and that the DOE conduct an assessment in order to authorize a bilingual speech and language evaluation. Lastly, that a reconvene an IEP meeting be directed to discuss adding a bi-lingual speech and language therapist.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”)

(see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” (M.H. v.

N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir.

2007) (internal citations omitted)).

School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).

It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). 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.” SRO 08-052; SRO 08-060 (citations omitted).

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No. 08-052 at p. 17-18 (July 16, 2008).

“Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011).

The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404[1][c];

M.H. v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25[2d Cir 2012]). It has both the burden of production and the burden of persuasion on each of the claims put forth by the parent (see Schaffer v. West, 546 US 49 [2005];

M.P.G. v. N.Y.C. Dept. of Educ., 2010 WL 3398256 at *7 [SDNY Aug. 27, 2010]). The DOE bears “the burden of demonstrating the appropriateness of its proposed IEP” (Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 379 [2d Cir. 2003]).

In New York, the school district must carry the burden of proving that its recommended program provides the student with a free appropriate public education (FAPE). Ed. Law 4404(1)(c). The SRO has held that when the school district fails to present any testimonial or documentary evidence at the impartial hearing, the school district failed to meet its burden. SRO 15-033. The SRO has held that when the school district fails to present any testimonial or documentary evidence at the impartial hearing, the school district failed to meet its burden. SRO

15-033.

Here, the DOE failed to meet its burden when it failed to present any documentary or testimonial evidence to show it provided the Student a FAPE. At the hearing, the DOE rested its case without providing any evidence.

Therefore, it failed to meet its burden in showing that the DOE provided the Student a FAPE.

After the IHO determines that the DOE failed to meet its burden, all that is left to determine is the appropriate remedy in this matter. It is the DOE’s burden to produce all proof in this matter. Ed. Law 4404(1)(c). The SRO has held that when the District fails to present a case, the burden is on the District, not the Parent, to present evidence as to the appropriate remedy. SRO 14-014.

Federal regulations require that once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v.

New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR 200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR 200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR 200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR 200.4(e) (7))

State regulations require that an IEP include a recommendation for special education program and services (8 N.Y.C.R.R. 200.4(d)(2)(v)). Special education means specially designed individualized or group instruction or special services or programs… and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities. 8 N.Y.C.R.R. 200.1(ww).The regulations emphasize that:The individual needs of a student shall be determined by a committee on special education in accordance with the provisions of section

200.4 of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services and development of an individualized education program for the student. 8 NYCRR 200.1(ww)(3)(ii)).

I agree with Parent’s Advocate that the DOE failed to offer a procedurally valid and substantively appropriate IEP and service recommendations in a timely manner for the 20 I 8-2019 school year. Based upon the evidence as stated above, I award payment for 5 hours per week of SETSS, in , and related services of occupational therapy 2x30 minutes per week.

After considering all the evidence, I find and order as follows:

1. That the August 29, 2018 IEP failed to provide the Student a FAPE.

2. That the DOE failed to provide a SETSS or SEIT provider for the 2018-2019 school year.

3. That the CSE conduct a new IEP meeting to consider a Speech/Language Evaluation for Bi-

Lingual/ Services.

4. The DOE to pay for the following services as follows:

For the 2018-2019 school year

a) SETSS 5 hours per week at a rate not to exceed the sum of $125.00 per hour, less any mounts paid pursuant to my pendency order dated 1/9/20.

b) OT 2 x 30 x 2:1 if not paid via RSA’s Dated: November 30, 2020

______________________________

Gary D. Peters

Impartial Hearing Officer

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.