New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: January 26, 2011 Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 26, 2011

Student

Student

-, — Parents

(via telephone) — Student

Student

Representative, Region — DOE

School, (via telephone) — DOE

INTRODUCTION

On January 26, 2011 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free appropriate public education (FAPE) to (“the child “) for the 2009-2010 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m.

A list of exhibits that were admitted into evidence is attached to this decision. ^[1]

BACKGROUND

The parents’ filed a request for an impartial hearing dated July 23, 2010 alleging that the DOE had not offered the student a FAPE for the 2009-2010 school year. The parent requests that she be granted tuition reimbursement for the School for the 2009-10 school year and that a Committee on Special Education (CSE) meeting be convened to review the child’s IEP for the 2010-2011 school year.

THE PARENT’S POSITION

The parents contend that because the child was improperly declassified, the child was not provided a timely FAPE for the 2009-2010 school year. The parent parentally placed the child at the School (“ ”) for the 2009-2010 school year. is a general education school. The parent contends that it is an appropriate placement, that the equities tip in her favor and that she is entitled to tuition reimbursement.

THE DOE’S POSITION

The DOE contends that the CSE properly declassified the child because he was functioning above grade level in all subjects and the child was not entitled to receive FAPE. Thus, the parent is not entitled to tuition reimbursement of any kind.

THE EVIDENCE PRESENTED

The child is years old. He attended School from September of 2009 through June of 2010 where he was in the grade. (DOE Ex. 1.1) At the parents’ request, CSE reviews were held on June 1, 2009 and August 5, 2009. Present at the June review, via telephone, was the parent, the current and previous from . (DOE Ex. 2.2) Also present were a special education from the District, a school social worker from the District and a school who also sat as the District Representative. The August meeting was attended by the parent, the parent’s advocate, the district , district general education and the special education from the district. (DOE Ex. 1) The parent declined the parent member during both meetings (DOE Exs. 1, 2).

The CSE team relied on a evaluation performed by in May 2009 (DOE Ex. 3) and it reported her results on the IEP. It also noted on the IEP that the child’s and the parent agreed at the meeting that the child was functioning above grade level in reading, math and writing. (DOE Exs. 1.3, 2.3 ), As a result of the reviews, the team found that child was non-handicapped. (DOE Exs. 1, 2).

testified that she has been a for 29 years. She evaluated the child in May 2009 over a two day period and did a clinical interview with the child and the parent. She found that the child had a full scale IQ of and that he tested in the superior or very superior range in the ten sub-tests. She testified that there was no indication that the child had any academic weaknesses and that he was functioning above grade level.

On the second day of the testing, testified that the child had not been given his by the parent and his . However, she also stated that he performed well on the tests on both days.

testified that the child would be bored in a special education setting. She stated that he has ( ) but that with his , his academic performance is excellent.

The parent testified that in 2008, the child was previously classified as ( ). (T. 46) He was recommended for general education with the related service of

(Id., Parent’s Ex. I.1, I.1) The parent testified that she disagreed with the IEP and filed a request for an impartial hearing which was resolved by stipulation. (T. 47) The parent further testified that she also disagreed with the CSE’s decision to declassify the child in June 2009. (T.49). She participated in CSE meeting by telephone (Dist. Ex. 2.2) She stated that she was not told by the CSE beforehand that they were considering the issue of declassification. She was not asked by the CSE to submit any additional reports prior to that meeting. (T. 49) She requested a second CSE meeting which was held in August 2009. She said that she had no notice at that time either that the CSE was going to declassify the child nor was she told she could bring in any additional reports. (T.50) The CSE again recommended that the child be declassified. (DOE Ex. 1)

The parent testified that she placed the child at . She described as a school with challenging academics about one or two grade levels above the public schools. (T. 53) The child was in a class with 19 or 20 children. The parent stated that the child had behavioral problems at during the 2009-2010 school year and his had to call in a supervisor to help her deal with the child. He was argumentative and defiant. (T.61) The parent also testified on cross-examination that she told the CSE that when the child was on , his behavior improved and his performance was better. (T. 59-61) The parent testified that does not and cannot provide related services to the students there but that she thinks he requires related services to address his social and emotional needs. (T.65) She testified that when the child attended , his academic performance was high and his grades were not . (T.66) The parent did not present any objective evidence of this. The parent stated that now the child’s behavior is not good and his grades are not as good as they were last year. (T.54-55) The parent’s presented the testimony of ,a who has been working with the child at a in connection with a study on since 2005. She has concluded that the child has which could potentially cause academic problems at school but that his academic performance is above grade level and he does not need a special education placement. (T. 98) She has never contacted the child’s at and she is not aware of the DOE classification criteria. (T.91). She did not read ’s report and has no opinion as to ’s conclusions. (T.98).

The child’s current classroom at , Ms testified that the child is functioning above his grade level in reading and is getting 3’s and 4’s in all of his classes. She testified that he has missed some homework assignments in writing and that he is in a small group for math where he is getting an average test score. She stated that he is typical of the other children in her classroom. He responds to redirection and although his behavior has caused her write to the parent twice, she has never had to seek outside assistance to manage his behaviors. (T. 101-108, Parent’s Exs. F, G)

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). A FAPE is offered to a child with a disability 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 procedures is reasonably calculated to enable the student to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982); See Application of the New York City Department of Education, No. 06-037.

In this case, the parent contends that the DOE should not have declassified the child in June 2009 or in August 2009 due to several alleged procedural irregularities. She further contends that since the child should still be classified as , he is entitled to a FAPE and a remedy that would ensure that he received a FAPE.^[2]

With regard to the alleged procedural irregularities, the parent first cites 8 NYCRR Section 200.4 (c) (3) which requires that prior to any determination that a child is no longer eligible for special education services, that the child be re-evaluated. The parent also relies upon Section 200.5 (a)(5)(1) which requires that prior to a re-evaluation for any purpose, the parent shall be given a description of the re-evaluation as well as its uses. It also states that the parent may submit evaluation information.

The evidence shows that the child was in fact re-evaluated in May 2009 in compliance with Section 200.4 ( c) (3). confirmed that the parent was interviewed as part of the re-evaluation and that the results of the re-evaluation were discussed at the June CSE meeting which the parent attended. Moreover, the results of the evaluation were included on the IEP. The parent did not deny that such re-evaluation took place or that she participated in it. The regulation does not state, as the parent contends, that the DOE has a obligation to tell her that she could obtain a new evaluation. The regulation provides that the parent be told that she could submit evaluation information. Since she participated in the evaluation process with , she was given an opportunity to submit all of the evaluation information she thought was relevant. Thus, all but one of the provisions of 200.5 (5) (1) were complied with prior to the CSE meeting in June 2009. That one provision was the DOE’s obligation to tell the parent of the uses to be made of the evaluation. However, even if she was not told of or aware of the purpose of the re-evaluation prior to the June meeting, she was certainly made aware of its purpose by the time the August CSE meeting was held which was held at her request. Despite the parent’s testimony to the contrary, having participated in the June meeting where declassification was recommended and the evaluation was discussed, she cannot contend now that in August she had no knowledge of the purpose of the reevaluation or that that declassification would be discussed at the CSE meeting. This is true particularly since it was the parent who asked for the second meeting to discuss the results of the June meeting. By August, the parent had ample time to present any other information that she may have had to the CSE for their consideration as all parents do prior to any CSE meeting. Since the CSE agreed to hold a second meeting in August to reconsider its decision to declassify the child, the effect of the initial failure of the CSE to give the parent notice of the uses of the re-evalutation or of its intent to consider declassification at the June meeting was de minimus and not a violation of due process.

The parent next cites to Section 200.4 (b)(4) which requires the CSE to consider the input of the child’s as part of its re-evaluation process. The evidence shows that the child’s participated in the CSE re-evaluation review and agreed that the child was functioning in the classroom above grade level in reading, writing and math. Thus, the CSE did not violate section 200.4(b)(4).

The parent also contends that the re-evaluation was defective because there was no classroom observation conducted prior either the June or August 2009 CSE meeting. However, the evidence shows that a classroom observation was conducted in June 2008 at -- one year earlier. (Parent’s Ex. H) The observation revealed that the child participated in class discussions but was not as attentive in small group activities and did not always pay attention or follow directions. In the SRO decision 93-32 relied upon by the parent, it must be noted that there was no classroom observation done at all. There is no requirement in the current regulations that a classroom observation be held during a re-evaluation if there was one the previous year.

The parent further stated that the DOE violated 200.5 (6)(1) which requires the CSE to inform the parent that it believes that it has sufficient data to make determination as to whether the child should be declassified. As SRO 97-90 decision cited by the parent suggests, the purpose of this regulation is to ensure that the decision to declassify be based upon a recent evaluation. In that case, no recent evaluation was considered. In contrast, here, a new evaluation was done in May 2009, one month prior to the first CSE meeting. The parent was aware of the evaluation. The parent did not offer any evidence at the hearing to contest the results of that evaluation. Moreover, she and the child’s classroom at the time agreed with the test results and agreed that the child was functioning above grade level in his general education class. In the case discussed by the parent, the SRO noted that there, the result of the declassification would have been to move the child from a special education setting into a general education class. Here the child was already in a general education class of the parent’s choice at the time of the declassification. Accordingly, since a recent evaluation was obtained by the CSE prior to its decision to declassify, the fact that the parent was not told of her right to request an assessment is a de minimus violation of the regulation and not a violation of due process.

Since the allegations of procedural violations have been found to be without merit, the substantinve question of whether the child suffers from a handicapping condition to warrant classification must be addressed.

There is no dispute that the child suffers from and has behavioral issues which he has displayed at . The issue however, is whether the child’ s educational performance is adversely impacted by such condition to the extent that he requires special education and/or related services.[Application of a Child Suspected of Having a Disability, Appeal No. 94-36]. The evidence shows that at the time CSE made its determination to declassify the child in 2009, he was found to be functioning at the very superior levels when tested by and was also found to be performing in class above his grade level in reading math and writing. These facts are also not in dispute. There was no evidence to show that at the time of the CSE review, the child required special education services of any kind. Nor was there any evidence to show that he was receiving any. Yet, despite his , his school work was not suffering.

On June 29, 2010, the child’s classroom at prepared a letter stating that the child’s academic performance is excellent. She also stated that a classroom of 18-20 is “an ideal setting” for him and that he feels part of something. She further opines that a larger setting “would not contribute to that aspect of his learning experience.” (Parent’s Ex. C) Notably, the evidence does not show that she is a special education with the expertise to determine the needs of a special education student. And in any event, the DOE is not required to provide “ideal settings” for special education students. The opinions offered by the at , (Parent’s Exs. D and E) that the child is in for do not dilute the evidence that the child is still performing well in school. The testified that he is no different from the other children in his general education class and that he is receiving 3’s and 4’s on his classroom performance. There was no objective evidence presented with regard to his grades at last year and thus, there is no basis to find that the child was performing better there. However, even if he was, the child’s still does not so seriously impact his school performance to question the conclusion of the CSE that the child no longer requires special education services.

Even if the CSE was incorrect either in its methods of declassification or in its recommendation to declassify the child and thus, is found to have denied him a FAPE, the parent would still not be entitled to tuition reimbursement for .

The DOE may be required to provide tuition reimbursement for a unilateral placement of a student in a school where the DOE is found to have denied the student FAPE, and where the parent’s unilateral placement is found to be appropriate. Burlington School Comm. V. Dep’T of Educ., 471 U.S. 359 (1985); Florence County School Dist. V. Carter, 510 U.S. 7 (1993).

When determining whether the parent’s unilateral placement is appropriate, “ultimately, the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Education, 459 F.3d 356 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007). The Second Circuit has set forth standards for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. Although no one factor is necessarily dispositive in determining whether parents unilateral placement is reasonably calculated to enable the child to receive educational benefits, factors such as grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit. But, courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether the placement reasonably serves a child’s individual needs. Part of this includes showing that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007). Under this analysis, the parent has failed to meet her burden.

In Application of a Child With a Disability, Appeal No. 08-013, the SRO held that a parent fails to sustain her burden under Prong II when she only provides general information about the school and does not demonstrate how its programs and services are specially designed to meet the student’s unique needs. Such is the case here. There was no testimony from anyone at . The specifics of the curriculum and academics at the school were not discussed. The child’s did not testify about what is taught in those classes. Further, there was no objective evidence such as progress reports, tests, quizzes, formal or informal assessments in evidence to support the program and there is no objective evidence to support any claims of progress there.

Moreover, the parent testified that she believes that the child requires as a related service but that he cannot get it at . The SRO has determined as a matter of law that a parent’s unilateral placement of their child in a school that does not provide the necessary services a student needs renders the placement inappropriate under Prong II of Burlington. [ See Application of the New York City Department of Education, Appeal No. 06-114, “[S]upplementation of the general education services at [a private school] by obtained elsewhere does not support a finding . . . that the services at [the private school] were appropriate to provide or meet the student’s emotional and therapeutic needs”) (citing Application of a Child with a Disability, Appeal No. 06-094). Also, see Application of a Child with a Disability, Appeal No. 07-097, Application of a Child with a Disability, Appeal No. 07-018, Application of a Child with a Disability, Appeal No. 08-119].

Federal law is in accord. See, e.g., Werner v. Clarkstown Central School District, 363 F. Supp. 2d 656, 660 (S.D.N.Y. 2005) (where it is determined that a student needs therapy to address and , parents’ placement in school that does not offer such services as a matter of course—but rather only at extra expense and without vouching for the credentials of the third party provider—is not appropriate and does not warrant tuition reimbursement). Another recent federal court case reached similar conclusions. In Green v. N.Y. City Dep’t of Educ., 2008 U.S. Dist. Lexis 32118 (S.D.N.Y. Mar. 31, 2008), the Court held that a private school fails to meet its burden of demonstrating appropriateness, when the school does not provide the student with necessary services and such services had to be obtained through outside agencies.

Since the DOE was found to have met its burden to show that the child’s declassification was proper and alternatively, the parent failed to show that was an appropriate placement for the child,^[3] it is unnecessary to address the question of whether the equities favor the parent.

Ordered that the parents’ request for tuition reimbursement at for the 2009-2010 school year is denied and dismissed. Dated: March 7, 2011

_________________________

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 JANUARY 26, 2011

PARENT

A Letter from , 8/20/09, 3 pp. B Letter from , , 6/7/10, 3 pp. C Letter from , School, 6/29/10, 1 p. D Letter from , , 10/6/10, 1 p. E Letter from , , 10/18/10, 1 p. F Letter from , , 12/20/10, 1 p. G Letter from , , 12/23/10, 1 p. H Letter from School , 6/10/08, 1 p. I Individualized Education Program, 6/23/08, 13 pp. J Letter from , 730/09, 1 p.

DEPARTMENT OF EDUCATION

1 Individualized Educational Plan, 8/5/09, 7 pp. 2 Individualized Educational Plan, 6/1/09, 5 pp. 3 Report, 5/2/09, 5/5/09, 5 pp. 4 Social History Update, 5/3/09, 3 pp. 5 Report- , 10/14/10, 12 pp. 6 Authorization to Attend , 6/15/09, 1 p. 7 Final Notice of Recommendation, 8/7/09, 1 p. 8 Parentally Placed Final Notice of Recommendation, 10/21/09, 1 p.

Footnotes

[1] After the testimony was taken, the parties agreed to simultaneously submit post-hearing memoranda two weeks after they received the transcripts and an extension of the time-line was requested on the record by the DOE without objection by the parent’s . (T. 111) The request was granted with the understanding that it would be extended again if necessary so that the record would not close prior to the receipt of the memoranda of law. The compliance date was extended to 2/16/11. As the transcripts were received too late to meet that compliance date, the case was extended again until 3/18/11, the new compliance date. The parent’s counsel submitted their memorandum on Februrary 17, 2011. On that date the DOE requested extra time to submit its memoranda. On February 17, 2011, the parent filed an objection to the DOE’s request for extra time to submit its brief. I granted the DOE two extra business days to submit its brief. That determination did not cause undue delay nor did it cause any further extensions of the compliance date. Thus, the objection filed by the parent’s to that extra two days is overruled.

[2] A classification of " " includes a a student with only when it adversely affects that student's educational performance. 34 C.F.R. § 300.8(c)(9).

[3] In addition, the parent presented no evidence of what the tuition is at or what amount, if any, the parent actually paid.. Thus, even if tuition reimbursement was awarded, there is no information in the record to determine whether the tuition there is reasonable or the amount of money that could be reimbursed to the parent even if it were so ordered.