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FINDING OF FACT AND DECISION
Case Number: 192362
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: May 12, 2020
June 1, 2020
Actual Record Closed Date: June 10, 2020
Hearing Officer: Margaret Moscariello, Esq. Hearing Officer’s Finding of Fact and Decision !
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NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY12, 2020
Esq., Attorney — Student
Esq., Attorney — Student
Parents
Ph.D., Pediatric Psychologist — Student
Esq., Attorney — DOE
Esq., Attorney — DOE
Director of Special Education — DOE
School Psychologist — DOE
Deputy Director for the CSE — DOE
NAMES AND TOTLES OF PERSONS WHO APPEARED ON JUNE 1, 2O2O
For the Student
, Esq., Attorney
, Esq., Attorney
For the DOE
, Esq., Attorney
, Esq., Attorney Hearing Officer’s Finding of Fact and Decision !
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INTRODUCTION
On January 28, 2020 the New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) for a refiled case brought by the parents of ( ). The parents allege was denied a free and appropriate education (FAPE) for 2019-2020 school year.
BACKGROUND
The parent initially filed a case on November 4, 2019. The parent claimed a denial of a FAPE as , the charter school attended by dismissed him without holding a new individual educational program (IEP) review. On November 27, submitted a due process complaint (DPC) claiming it was ill equipped to educate . The parent refiled a DPC on December 3, 2019.
I had several conversations with both the parent and the DOE. It seemed they were in agreement concerning ’s needs. The parent withdrew her DPCs.
refused to withdraw claiming their interest does not coincide with the DOE’s.
I dismissed ’s DPC for lack of standing. As a charter school is a public school. For purposes of the individuals with disabilities education act (IDEA) under New York State Law, charter schools are under the DOE. Therefore if a charter school files a DPC against the DOE it is filing it against itself.
is not independent of the DOE. Throughout the course of this filing, has acted independently of the DOE. However the DOE is responsible for as it is a public school. Hearing Officer’s Finding of Fact and Decision !
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attended as a third grade student. is classified as emotional disturbed (ED). He presents with attention deficit hyperactivity disorder (ADHD)
and adjustment disorder with mixed disturbance of emotions and conduct.
suspended him twelve times without hearings. Three manifest determination reviews (MDRs) found the behaviors which led to the suspensions were related to his disability. unilaterally removed from school and provided instruction in a library.
THE DOE’S CASE
Ms. , Esq. represented the DOE. In her opening she explained the issue is compensatory tutoring services as was removed from .
During his removal tutoring was provided. He was offered placement in a ( ) school which his parent turned down. Transcript 20: 7-8, 15-21. He was provided one to one tutoring at the library which covered most of the school day. He made more progress than he had made at . Transcript 21: 7-11. is not entitled to compensatory services because there was no negative effect from the DOE’s failure to provide a FAPE. Transcript 21: 12-17. Ms. called two witnesses. She called Ms. the Director of Special Education and Ms. a school psychologist. In addition, she called a rebuttal witness Ms. Deputy Director for the CSE.
Ms. has been the Director of Special Education for two years. entered in August 2019 as a third Hearing Officer’s Finding of Fact and Decision !
5 Case No. 1192362 grade student. Transcript 31: 17-18, 32: 2-5. He was successful for the first two weeks of school. began having difficulties in mid September. Though he had a paraprofessional, he was given additional support. Transcript 32: 17-19. In November he received a long term suspension. offered two hours per day of tutoring but changed it to four hours at the parent’s request. Transcript 33: 14-24. Ms. developed a packet of materials for ’s tutoring sessions. Transcript 34: 9-13.
Ms. arranged busing to the library where the tutoring took place. Transcript 35:
17-25. learned more during the tutoring sessions than he did at .
Transcript 36: 6-11. An IEP meeting was held in January 2020. was eligible for private school funding but a placement was not found. An interim placement was offered. The parent turned down the interim placement. Transcript 40: 5-10. Other alternate placements were offered and turned down, Transcript 41: 8-9.
During cross examination, a second long term suspension was revealed. Ms.
does not recall if there was a suspension hearing. Transcript 48: 24-25. ’s current teacher has her state certification. Ms. does not know if previous tutors were state certified. Transcript 62: 10-21.
On redirect, Ms. stated the IEP meeting did not take place sooner as the committee on special education (CSE) was waiting for an independent psychiatric evaluation.
Ms. has been a school psychologist for four years. Transcript 75:
6-10. She is a member of a CSE that works with state approved non-public schools Hearing Officer’s Finding of Fact and Decision !
6 Case No. 1192362 (NPs). She evaluates students whom attend charter schools and she is part of an MDR team. Transcript 75: 13-22.
She attended ’s September 2019 IEP meeting. Teacher reports, related service reports, a functional behavior assessment and, a behavior intervention plan were reviewed. Transcript 77: 21-25. The meeting attendees included Ms. , a CSE teacher, ’s special education coordinator and, the parent. The teacher brought information relating to ’s current behaviors. Transcript 78: 7-9, 13-15. No one raised objections to the recommendations which continued the program and services from the previous IEP. Transcript 80: 1-3.
A reevaluation was requested the beginning of November due to escalating behaviors. Transcript 81: 12-18. An updated psycho-educational evaluation was considered. The parent disagreed with the evaluation. Ms. helped arrange for an independent psychiatric evaluation. Transcript 82: 2-16. An IEP meeting was scheduled for November 18, 2019. It was delayed as the team was waiting for results from the independent psychiatric evaluation. Transcript 82: 19-25. The parent was informed the review would not be held until all the testing was complete. Transcript 83: 13-16.
was suspended twice. Both times MDRs indicated the misbehaviors were related to the disabilities. The team discussed ways to modify interventions. Transcript 84:
16-19, 22-24. Ms. was scheduled to observe in class but cancelled the observation. She was informed was receiving instruction in a public space. Transcript 85: 1-2, 14-16. An interim placement at a school was offered and rejected. The parent expressed fears transition would be an issue as the placement would Hearing Officer’s Finding of Fact and Decision !
7 Case No. 1192362 not be permanent. Transcript 86: 4-20. There were no behavioral concerns at the public site. Transcript 87: 1-3.
On January 6, 2020 an IEP review was held. The parent reported the child make progress at the public site. Transcript 88: 3-11. ’s classification was changed to ED.
The team recommended an NPS school. More related services were recommended.
Transcript 92: 2-10. A program was not available. An interim placement was offered.
The parent rejected the interim placement. Transcript 93: 1-11.
During cross examination, Ms. admitted a new IEP was not completed after the MDRs were completed. Transcript 99: 5-9. was removed from . Transcript 100: 2-3.
On redirect examination, Ms. explained the IEP meeting was delayed because the team was waiting for results from independent evaluations. Transcript 111: 14-
21. One to one instruction stopped the behavior problems.
Ms. testified the CSE had difficulty contacting the parent. Transcript 193: 4-7, 12-13. She is aware reached the parent on May 13, 2020 but is unaware of the conversations content. Transcript 194: 18-25, 195: 22-25.
In her closing, Ms. argues despite ’s improper removal from , he is not entitled to compensatory services. An FBA was completed following the suspension. The DOE provided instruction for four hours per day at a library. The DOE offered two schools sites to allow to remain in school as the case moved forward. The parent requested independent psychiatric and neuropsychological Hearing Officer’s Finding of Fact and Decision !
8 Case No. 1192362 exams which the DOE arranged. The DOE awaited the results before reconvening an IEP team. An NPS was recommended. The DOE had difficulty reaching the parent.
Compensatory services are given to place a child where he would have been had there been no denial of FAPE. made more academic progress from one-to-one tutoring than he would have made had he remained in school. Consequently, the requested relief should be denied.
THE PARENT’S CASE
Mr. , Esq. represented the parent. In his opening he described as a year old third grade student whom is classified as emotionally disturbed (ED). He has been diagnosed with attention deficit hyperactivity disorder (ADHD), adjustment disorder with a mixed disturbance of emotion and conduct and, suspected autism spectrum disorder (ASD). Transcript 22: 4-6, 9-12. He was removed from school without an IEP meeting. He has not received classroom instruction for five months. Transcript
22: 14-20. He called two witnesses, Ms. the parent and Dr.
a pediatric psychologist.
Ms. testified she has a good relationship with her son. He enjoys water
Polo and communicating with adults. Transcript 118: 19-20, 23-25. He wants to be a
Supreme Court judge. Transcript 119: 3-4. entered as a third grade student in August 2019. Transcript 119: 21-25. Ms. uploaded ’s IEP into ’s portal. Hearing Officer’s Finding of Fact and Decision !
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’s first week at was completed without any problems. By the second week he was sent to the emergency room as a code green psychiatric patient.
Transcript 122: 21-25. He was suspended fifteen times. The first was September 11, 2019. Transcript 123: 4-5, 8-10.
The parent did not trust with her child. Transcript 128: 18-25.
He began having nightmares. He started wetting his bed. Transcript 129: 12-18. The parent was informed that would not be allowed to return to . Transcript 131: 4-13.
Initially provided him tutoring two hours per day. The parent requested an increase to four hours. The hours were increased. Transcript 136: 7. An
IEP was completed. Ms. sent a copy to the parent. Transcript 142: 14-20. An NPS was recommended.
During cross examination she admitted several interim placements including schools were recommended as the DOE arranged for the NPS. Transcript 142: 10-11.
an NPS accepted . Due to Covid 19 the parent could not visit the school. Transcript 147: 9-21. The parent will send to . Transcript
159: 17-23.
While waiting for a placement, has been receiving one to one tutoring at a library. The tutor was unaware has an IEP. See Transcript 150. The police removed from school several times due to escalating behaviors. Transcript 164: 5. Hearing Officer’s Finding of Fact and Decision !0
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Dr. has been a pediatric neuropsychologist for sixteen years. She currently works at . Transcript 166: 23-24, 167: 1-2, 168: 7-8. She has evaluated more than 350 students. Transcript 168: 24-25.
She described as a complex youngster with a constellation of difficulties that impede his ability to learn. His parent and teachers describe him as a youngster whom wants to please adults. Transcript 169: 7-16. Her conclusion was based on a record’s re view which included an interview with the parent. A record’s review outlines the history of services, evaluations and interventions. Transcript 170: 14-17, 22-23. has difficulty regulating his emotions and behavior. He has difficulty with executive functioning including attention, hyperactivity and impulsivity. He suffers from low self esteem, sadness and anxiety. Transcript 172: 8-9, 11-13, 16-20. A new FBA should have been done when he changed schools but was not. Transcript 173: 24-25. His IQ is in the low average range. Transcript 178: 1-6. A more detailed picture arrives from the subtest which reveal with the exception of block design his functioning is in the low average to the average range. Transcript 177: 4-8. The instruction receives in the library does not provide him with the classroom experience. Transcript 178: 7-10. He requires instruction in a small therapeutic classroom. Transcript 180: 2-3.
During cross examination, Dr. admitted she never met or spoke with any of his teachers or providers. Transcript 186: 21-25. She never spoke to any of his tutors. Transcript 187: 5-8. She is aware a new FBA was completed in November but it was not used as part of her records review. Transcript 187: 6-7. Hearing Officer’s Finding of Fact and Decision !1
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In his closing, Mr. stressed was illegally removed from school as the behaviors which led to his suspension was a manifestation of his disability.
changed his placement without holding an IEP meeting. He was given one to one instruction in a library, an extremely restricted environment. The mandate to provide instruction in the least restrictive environment was not followed. In addition, the tutors were not certified special education teachers. His IEP goals were not followed. lost valuable educational time. He is entitled to compensatory services to bring him to where he would have been had he received the proper services.
FINDINGS OF FACT AND CONCLUSION OF LAW
The Individuals with Disabilities Education Act (IDEA) mandates local education agencies (LEAs) to provide every child with a disability a FAPE in the least restrictive environment (LRE). 34 CFR § 300.101. A FAPE is defined as “specially designed instruction, provided at no cost to the parent, that is intended to meet the unique needs of a child with a disability.” 34 CFR § 300.39 (a) (1). The instruction must be adopted to meet the child’s needs via its content, methodology and delivery. 34 CFR §300.39 (b) (3).
The child’s needs include but are not limited to academic, social, health, emotional, physical and vocational skills. County of San Diego v. California Special Educ. Hearing Office 24 IDELR 756 (4th Cir. 1996). The instruction is provided at no costs to the parent.
Charter schools are public schools and subject to the same mandates as other public schools. The DOE is the local education agency (LEA) in charge of charter schools. NY Hearing Officer’s Finding of Fact and Decision !2 did well at for two weeks. Then he began having difficulties. He was sent to a psychiatric hospital as a code green patient. Transcript 122: 22.
He was suspended on September 11, 2020. He was suspended for . He was suspended over 15 times. Transcript 124:10. MDRs determined the behaviors which led to the suspensions were a direct result of ’s disability. Consequently should have been reinstated unless the behavior involves drugs, weapons, or causes a risk of serious bodily harm to the student or others. 20 USC § 1415(k)(1)(c); 34 CFR §
300.530 (c), (g); 8 NYCRR § § 201. 7(d), 201.8. The testimony and evidence present a picture of a child whose behaviors are apparently dangerous. However the DOE conceded the suspensions and virtual change in placement were illegal. Hence I find the placement change illegal and a denial of a FAPE.
Compensatory education services are given to place a student in the position he would have been had a FAPE been received but not to punish a district for that denial.
Reid V. List. of Columbia 43 IDELR 32 (D.C. Cir. 2005), Application of a Student with a Disability Appeal No. 19-026. The DOE argues is in the same position he would have been in had a FAPE not been denied. The parent argues lost educational benefit.
has received four hours of tutoring per day since he was removed from . Initially that tutoring was given at the library and then due to the Cover
19 shutdowns remotely at home. ’s special education director credibly Hearing Officer’s Finding of Fact and Decision !3
1 Case No. 1192362 testified has made enough progress to pass to fourth grade. He followed the same curriculum as his peers. The parent informed the psychologist was making progress and had few behavior issues. In addition, the DOE offered other options which the parent did not accept.
The parent argues the DOE did not prove the tutors were licensed special education teachers. In addition, education is more than acquiring academic skills. It includes the development of social skills. To acquire social skills the child has to be with other children.
The difficulty in this case is the parent did not trust . She would not accept any interim placement. Individual tutoring was the only option and it advanced ’s academic skills. Thus no harm resulted from the denial of a FAPE. is not entitled to compensatory education services.
The parent seeks an independent developmental pediatric evaluation. The IDEA mandates the DOE evaluate a child in each area of suspected disability. When the DOE fails to do so, the parent can seek an independent education evaluation (IEE). The DOE has to either grant the request or file a DPC to explain why it is being denied. The parent can include a request for an IEE as part of a DPC without requesting one prior to the filing. In such a case the burden of proof stills fall on the DOE. If the DOE cannot show the child was evaluated as per IDEA, an IEE should be granted. In Re: Student with a Disability, New York State Education Agency Sept. 22, 2011.
In the current case, the parent did not ask for an IEE until the hearing started. The parent’s witness testified to the need for an IEE. The DOE was not given ample notice to Hearing Officer’s Finding of Fact and Decision !4
1 Case No. 1192362 present a defense. Nonetheless the DOE demonstrated was tested in all areas of suspected disability. The parent sought a psychiatric evaluation and a neuropsychological evaluation. The DOE arranged for both. A developmental pediatric evaluation seems unnecessary as it would not provide more information than the IEEs which were granted.
ORDER
Due to the facts and the law: the requested relief is denied in its entirety.
Dated: June 11, 2020
MARGARET MOSCARIELLO, ESQ.
Impartial Hearing Officer
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. Hearing Officer’s Finding of Fact and Decision !5
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DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A. Impartial Hearing Request, 2-27, 2020, 7 pages.
B. Records Review and Consultation, 5-5-2020, 9 pages.
C. Withdrawn
D. Email RE: 11/20/2019 2nd. MDR, 1-23-2020, 1 page.
E. Neuropsychological Evaluation, 1-2-2020, 20 pages.
F. Letter from , 11-22-2019, 3 pages.
G. Positive MDR, 11-20-2019, 2 pages.
H. Positive MDR, 11-15-2019, 2 pages.
DOE
1. March IEP and Attendance Page, 3-17-2020, 16 pages.
2. Meeting Minutes, 3-17-2020, 4 pages.
3. January IEP, 1-6-2020, 12 pages.
4. January IEP Attendance Page, 1-6-2020, 1page.
5. Meeting Minutes, 1-6-2020, 6 pages.
6. CBST Deferral, 1-23-2020, 5 pages.
7. Acceptance Letter, 3-9-2020, 1 page.
8. Classroom Observation, 11-13-2019, 2 pages.
9. Neuropsychological Evaluation, 12-12-2019, 20 pages.
10. Psychoeducational Evaluation, 10-1-2019, 19 pages.
11. Social History Update, 11-14-2019, 2 pages. Hearing Officer’s Finding of Fact and Decision !6
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12. Psychiatric Evaluation, 10-10-2019, 5 pages.
13. Tutoring Report, 12-2019, 4 pages.
14. Teaching Report, 12-2019, 4 pages.
15. Speech Report, 12-19-2019, 2 pages.
16. Counseling Progress Report, 12-19-2019, 4 pages.
17. FBA, 11-14-2019, 6 pages.
18. BIP, 11-19-2019, 9 pages.
19. BIP Data, 9 through 11-2019, 7 pages.
20. Withdrawn.
21. Withdrawn.
22. September IEP, 9-2019, 14 pages.
Footnotes
[1] Case No. 1192362 Educ. Law § 2853 (4). is a charter school. Hence, the DOE is responsible for its actions concerning .