New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 31, 2011

March 8, 2011

March 25, 2011

Record Close Date: August 25, 2011

Hearing Officer: Veronica C. Odom, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2011

Attorney — Student

Program Director, (via telephone) — Student

Attorney — DOE

ESQ., Attorney (Observer only) — DOE

Teacher, at (via telephone) — DOE

Unit Coordinator, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2011

Attorney — Student

Parents

Psychologist (via telephone) — Student

Teacher (via telephone) — Student

(via telephone) — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

— DOE

The matter of . (hereinafter “the student .) came before me for determination on January 31, 2011, March 8, 2011, and March 25, 2011, in accordance with the provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on July 29, 2010. The parties were granted additional time to submit posthearing memoranda. The compliance date was extended as a result of a request for additional hearing dates and for the submission of briefs. The record closed date is August 25, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, was year old student classified as by the New York City Department of Education (hereinafter “DOE”) Committee on Special Education (“CSE”) at an annual review meeting held on February 24, 2010. There is no dispute regarding his classification. The CSE recommended a program in a special class in a specialized school.

In a due process notice dated, July 29, 2010, the parent through her attorney, allege that the CSE committed both procedural and substantive errors in creating the student’s Individualized Education Program (hereinafter “IEP”) for the 2010-2011 school year, resulting in a denial of a free appropriate public education (hereinafter “FAPE”). The parents alleged that the goals are inappropriate, and the placement offered was inappropriate. The parents placed their for the 2010-2011 school year and are seeking prospective tuition payment along with reimbursement of the tuition down payment and transportation. Exh. A.

THE POSITION OF THE PARTIES

The District representative, , Esq., maintained that the Department of Education (“DOE”) offered the student a free appropriate public education (FAPE) for the 2010-2011 school year and that the IEP goals were appropriate and the offered placement would have adequately addressed the student’s special education needs. The parents’ attorney, , maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that the is appropriate, and that the equities favored the parents, and that prospective tuition payment and reimbursement of the tuition down payment should be ordered.

DEPARTMENT OF EDUCATION’S CASE

Ms. testified that she is a teacher working for the DOE, and is licensed to teach special education classes from and above. Tr. 20. She teaches the class in which the student would have attended at . Tr. 21. Ms. stated that there were 4 students in her class in July and two of them were for reading and math and two who were approximately grade. Tr.25. She stated that she uses a differentiated instruction whereby the entire class works together as a group which is later broken into smaller groups which are led by a paraprofessional. Tr. 26-27.

Her students received the related services of therapy. Tr. 24. She stated that students are provided with when needed. Tr. 31. Ms. works on word recognition, reading comprehension, number recognition and uses manipulatives. Tr. 37-42. She believes that her class would be appropriate for the student. Tr. 47. She stated she uses manipulatives, visual prompts, and provided . Tr. 30-31

On cross, she stated that the summer class was her first time teaching and that she did not teach the following September at the school. Tr.49. She also stated that she was unfamiliar with Tr. 53.

, a unit coordinator at has special education certification for through and a Master’s in special education. Tr. 57-58. She stated that the paraprofessional assigned to Ms. ’ class has four years of experience and is a college graduate. She stated that Ms. had support from her and other teachers. Tr. 59-60.

On cross, she stated that during July there were about ten special education classes at . Tr. 62.

Ms. testified that she is a school psychologist working for the CSE and sat on the review team that developed the student’s IEP on February 24, 2010. At the meeting, the team had available for review, the teacher’s progress report, the report, and all the related service providers’ reports. Tr. 204-202. The participants included , district rep and special education teacher, , teacher, , social worker, a representative from s office, the parent, however, the additional parent member was not present. Exh.1, Tr. 200.

Ms. testified that the team recommended a because they felt ’s behavior would seriously interfere with instruction. Tr. 211. She also testified that a was developed based on the teacher’s input regarding the increase in the student’s aggression. Tr. 212213.

She also testified that the goals and objectives were “ progress report,” and each of the goals was and that everyone at the review meeting agreed with them. Tr. 217-219. The team considered a 10 month program and rejected it as not meeting the student’s . Tr. 226. The team determined that a and an were too large and that the student required a ratio. T. 226.

Ms. testified that was recommended because of the and issues with his and and she decided to increase his from . Tr. 227. The student’s was increased from sessions per week Tr. 227-228.

Ms. testified that she did not observe the class that the student was attending. Tr. 231.

On cross, she acknowledged that no one from the CSE conducted a classroom observation of the student. Tr. 235.

PARENT’S CASE

The parent’s attorney , presented the following documents, inter alia, parents’ correspondence to CSE during 2010 (Ex. D); the schedule (Exh. E); 2010-2011 school contract (Exh. H)

, program director, the , testified that she has a license in , . Tr. at 66. She described the program as having 107 students from age . Tr. 66. She described as having neural developmental delays in Tr. 67. Most of the school’s classes have eight students, with some having or depending on the classroom’s individual profile. Tr. 67.

The ’s tuition from July 2010 until June 2011 was $92,000.00. Tr. 67. The tuition includes the program, related services and supports for the family, such as . Tr. 67-68.

A typical day in the school would be ELA (English language arts), math, social studies, science, lunch, recess, snack time. Twice a week there is physical education. Cooking and community activities are given once a week. Each child’s related services would be incorporated into the schedule as well. Tr. 69.

The methodology that the uses is the (“ based model. It is based on the typical development of a child, utilizing an assessment tool to understand the child’s strengths and weaknesses and then developing an individual intervention plan. Tr. 70. The methodology is appropriate for students with because it addresses the student’s . Tr.

71. Ms. stated that the student’s is that he is a , and to , and is also unable to interact with anyone for long periods of time. Tr. 72. . needs to move frequently, looks at things out of the as well. Tr. 73.

Ms. has seen the student make some gains with the , in that, he has more s, understands what , his have increased, and he can . Tr. 73. The student also participates in . Tr. 74.

. has attended the school since September 2009 and receives the related services of therapies and counseling. He is in a class of who is certified in special education and the class has teacher to student ratio. Tr. 75-76. There are weekly staff meetings with teachers, related service providers and conferences with the family and the student’s team. Tr. 77-78.

On cross, Ms. stated that the parents were allowed to enter into a prospective funding contract based on the submission of their tax returns and W-2 statements, which show their inability to pay the school’s tuition. Tr. 83.

Ms. , a teacher at the , testified that she is .’s teacher and that six of the eight students in her class are classified as . Tr. 123. She stated that has in , reading and math, in language comprehension, which make it him to participate in , or sustain and he requires . Tr. 124-125. She uses to help . anticipate the next activity and she also which has helped the student make progress in transitioning. Tr. 125. . now uses the when he is or or , he use to use them throughout the day when he first came to the school in July. Tr. 126.

The staff developed a specific plan to help and by making and and once he was able to they would build upon it and extend the time thus allowing him to attend for and become . Tr. 127. , . Tr. 128. She stated that he such as recently been able to . Tr. 129. He is and will which he did not do when he came in July. Tr. 131. She stated the student’s are , which work on , and he is now able to stay of time. Tr.

132. When the student Ms. to help him or , and she also . Tr. 133. She stated that she recommended by the which have helped . . Tr. 133-134.

On cross, she stated that the school does not have . Tr. 142. She stated that when the student came in July he was or and would and was , identify . Tr. 143-144.

She stated that the school day begins at 8:30, and the students participate in activities of the , , , . Tr. 149-156.

Ms , a licensed , testified that she is employed fulltime at the and provides sessions the . Tr. 166-167. She stated that are and requires because he would become . Tr. at 167. She stated that he has difficulties, is unable to interpret his when she first started to see him. Tr. 167-168. She stated that the student is primarily , will , but makes work approximations, is and has . Tr. 168. She addressed these issues by , and now to help him. Tr. 169.

Ms. , a licensed , testified that she sees the student once a week in a group of three. Tr. 180-181. She stated that the student and has as well. Tr. 181. She spends half of the and working on his ability . Tr. 183. He and she is addressing it by utilizing the . Tr. 183-184. She addresses the student’s by allow him to . Tr. 185. She stated that the student requires a which through course in order to help him understand the sequence of events which , such as math. Tr. 188-189.

, a licensed psychologist and assistant professor at and testified that he conducted an evaluation of the student and prepared a written report. Tr. 99-100. He stated that had a , and and that his in production was .” Tr. 101. Dr. stated that the student had significant , had a highly adaptive dysfunction. Tr. 101. He further stated that needed with a very in a class with up to 8 students specifically for students, and a full year academic curriculum with . Tr. 102.

He opined that differentiating instruction would not address .’s need for unless the methods employed had a systematic evidence base to them. Tr. 103. He stated that designed for . Tr. 104.

On cross, he stated that ” and he is “ … .” Tr. 107. He opined that the approach. Tr. 112. He stated that the need for a paraprofessional would depend on the type of classroom environment the student was in. Tr. 112.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the Department of Education failed to offer . a free appropriate public education for the 2010-2011 school year.

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400 [d] [1] [A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9); 20 U.S.C. § 14149(d); 34 C.F.R. § 300.13. A school district offers a student a free appropriate public education when (1) it complies with the procedural requirement of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). The student’s recommended program must also be provided in the least restrictive environment (“LRE”) 920 U.S.C. § 1412[a][5][A]; 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]).

The first step in determining whether tuition reimbursement is appropriate is to determine whether the district offered to provide a FAPE to the student (See Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2 Cir. 2000]).

A FAPE is offered to a student when the Board of Education complied with the procedural requirements set forth in the IDEA, and the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Ed. v. Rowley, 458 U.S. 176, 206-7[1982]). The IDEA also requires that an impartial hearing officer’s decision be made on substantive grounds in determining that the student did or did not receive a FAPE (20 U.S.C. §1415 [f][3][E][i]. School districts are also required to comply with the procedural requirements set forth in the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3rd 377, 381 [2d Cir. 2003]). If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies impeded the student’s right to a FAPE, and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C § 1415[f][3][E][iii]; 34 CFR §300.513[a][2], 8 NYCRR 2005 [j][4][ii]. An impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][3][E][iii].

The Second Circuit has determined that a “school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and it the IEP affords the student with an opportunity greater than mere “trivial advancement” (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130, and is likely to provide some “meaningful” benefit (Mrs. B. v. Milford Bd. Of Ed., 103 F.3d 1114, 1120[2d Cir. 1997]). The IDEA, does not require school district to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197).

An appropriate educational program begins with an IEP which reflects the results of evaluations to identity the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

NYCRR 200.4(b)(iv) provides that an initial evaluation must include “an observation of the student’s learning environment (including the regular classroom setting) or, in the case of a student of less than school age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and in the areas of difficulty.” A CSE that prepares a student’s IEP must include the student’s parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can interpret the instructional implications of evaluation results, the school physician if requested by the parent in advance of the meeting, and the parent of another child with a disability (Education Law Section 4402[1][b]; 8 N.Y.C.R.R. Section 200.3[a][1][viii

The IDEA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such student (20 USC §1414[d][1][B][iii]; see, 34 CFR §300321[a]; 8 NYCRR§200.3[a][1][iii]. ]. Parents have a right to decline in writing, the participation of the additional parent member at any CSE meeting (8 NYCRR § 200.5[c][2][v].

The parents alleged that the CSE review meeting was not duly constituted in that the additional parent member was not present and that the DOE violated the student’s procedural rights under Article 89 of the Education Law, causing a deprivation of educational benefits. An IEP prepared by an invalidly composed CSE is a nullity. It is undisputed that an additional parent member was not present, and there is no evidence of the parents’ declination of the participation of the additional parent member.

Notwithstanding that the February 24, 2010 CSE was not properly constituted, I find that the hearing record does not demonstrate that this procedural inadequacy impeded the student’s right to a FAPE or caused a deprivation of educational benefits. In the absence of an additional parent member, the record reflects that the CSE was able to sufficiently consider whether the special education environment would be appropriate for the student based on an overall identification of the student’s needs and abilities. Therefore, I find that the record contains insufficient evidence to conclude that the failure to include an additional parent member at the February 24, 2010 CSE meeting rose to the level of a denial of FAPE. (See, 20 U.S.C. §1415 [f][3][E][ii]; 34 C.F.R. § 300.513[a][2]. Furthermore, the record supports the parent’s assertion that the IEP goals were not discussed at the meeting.

The parents challenge the appropriateness of the annual goals set forth in the February 24, 2010. The annual goals set forth in the February 24, 2010 are consistent with the student’s identified needs in all areas, academic, reading, writing

The IDEA directs, that, an impartial hearing officer must issue a decision which is based on substantive grounds in determining whether the DOE has offered the student a FAPE (20 U.S.C.§1415[f][3][E][i].

The CSE failed to offer the student a FAPE in that its recommended program at P. 352X was not appropriate to meet the student’s special education needs.

The recommended class is made up of children classified as The “differentiated instruction” offered by the DOE does not support the student’s need for instruction which addresses his special education needs. Merely, providing instruction to the entire class and then having the paraprofessional work with the student in small groups is not likely to enable the student to receive educational benefits. There is no evidence of how social skills are integrated into daily lessons given the student’s significant issues. Additionally, the record also established that . would not function well within a large student population during lunchtime.

In total, the record supports the finding that the offered placement did not offer the student a FAPE for the 2010-2011 school year.

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 parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “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 US at 370-71). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 9420). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. Of Ed., 231 F.3d at 105; the test for a parental placement is that it is appropriate, not that it is perfect (Warren G. V. Cumberland Co. Sch. Dist., 190 F.3d 80, 84(3 Cir. 1999). The parent presented credible testimony and documentary evidence that the is meeting the student’s special education needs, which include providing him with supports that are specially designed to address his and needs. The parents presented evidence of the student’s progress. The District did not present any witnesses or evidence to contradict any of the statements of the parents or their witnesses. The parent prevails on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04071.

Here, there is no evidence suggesting that the parent acted in an inappropriate manner in connection with the process. The parent notified the DOE in a timely manner regarding the inappropriateness of the IEP. The parents are awarded tuition payment for the School for the 2010-2011 school year. Connors v. Mills, 34 F.3d 476 (2002).

ORDERED, the Department of Education failed to offer the student a free appropriate public education for the 2010-2011 school year.

ORDERED, the Department of Education is to reimburse the tuition down payment upon proof of payment from the parent, and to directly pay the remaining tuition to the Rebecca School for the 2010-2011 school year;

ORDERED, the Department of Education shall reimburse the parents within 15 days of the parents’ submission of proof of payment and directly pay the remainder of the tuition for the 2010 school year upon submission of the school tuition contract;

ORDERED, the student was entitled to receive special education bus transportation from the Department of Education during the 2010-2011 school year. Amended Decision Dated: September 15, 2011

Original Decision Rendered: September 7, 2011

_____________________________

VERONICA C. ODOM, ESQ.

Impartial Hearing Officer VO:dl

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 ON JANUARY 31, 2011

PARENT

A Impartial Hearing Request, 7/29/10, 10 pages C Parent's Correspondence to the CSE, 4 pages D Interdisciplinary , Overview and Summary, September 2009, 10 pages E Schedule, 2010 – 2011, 1 page F Interdisciplinary Report of Progress, December 2010, 13 pages G Consultation Report by , Ph.D., , 7/9/09, 14 pages H Contract for the 2010-2011 School Year with the , 5 pages I Parents' 1040 Tax Return for 2009, 2 pages J IEP, 7/23/09, 16 pages

DEPARTMENT OF EDUCATION

1 IEP, 2/24/10, 17 pages 2 Final Recommendation for the 2010-2011 school year, 6/3/10, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 8, 2011

PARENT

K Invoice and Proof of Payment for Report, 5/29/09, 2 pages L Proof of Payment for M Printout from the Website for School, 4 pages

DEPARTMENT OF EDUCATION

3 Interdisciplinary Report of Progress, 12/09, 10 pages 4 NYSED certificates for , 1 page