New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: January 6, 2011

March 18, 2011

March 21, 2011

April 14, 2011 Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 6, 2011

Attorney — Student

Parents

Attorney — DOE

Attorney — DOE

School Psychologist - (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 18, 2011

Attorney — Student

Parents

Attorney — DOE

(via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2011

Attorney — Student

Parents

Special Education (via telephone) — Student

Head of The Aaron School (via telephone) — Student

Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 14, 2011

Attorney — Student

Parents

Attorney — DOE

The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on January 4, 2011, March 18, 2011, March 21, 2011 and April 14, 2011. The undersigned had been appointed by the Impartial Hearing Office of the New York City Department of Education to preside over this matter by notification dated October 12, 2010. At the close of testimony, both attorneys requested the opportunity to submit Post-Hearing briefs for my consideration. Such requests were granted and a submission date of May 16, 2011 established. Both attorneys availed themselves of such opportunity. Briefs submitted for both parties have been received and considered.

The formal impartial hearing process was initiated by Parents’ Due Process Complaint Notice, filed on Parents’ behalf by the and , dated October 8, 2010, and received by the Impartial Hearing Office of the New York City Department of Education on the same date (Exhibit A). Parents, alleging that the District and its Committee on Special Education (C.S.E.) failed to provide Student with a free, appropriate public education (FAPE) for the 2010-2011 school year, seek an Order requiring the District and the New York City Department of Education to reimburse them for the tuition and other costs incurred by Parents as a result of Parents’ unilateral placement of Student at for 2010-2011 school year.

Student is presently of age, having been born on . According to the testimony of her mother, Student began to receive Early Intervention services about the age of and, thereafter, at , a private nursery school, where Student was also provided with, and twenty hours of Special Education Itinerant Teacher (SEIT) services per week (T.R.392-394). In November of 2008, as Student approached the age when Student would age out of the jurisdiction of the program, Parents obtained a Evaluation of Student by , whose Report (Exhibit 3), found that Student , when evaluated using the and – Third Edition (WPPSI-III), scored in the Average Range in cognition, obtaining a Full Scale IQ of 91, but with the observance that Student displayed , including , and , that might have interfered with Student obtaining an even higher level of cognition. The Report also noted the existence of significant difficulties in the area of , including , and , as well as and a . recommended, at that time, that Student required intense individualized support and recommended her placement in a small, structured education program. I specifically note, however, that Student was only when such evaluation was completed. Thereafter, Student was placed by Parents at for the 2009-2010 school year. Student has continued in that placement for the 2010-2011 school year.

appeared as a witness in this proceeding, confirmed his original findings, and stated that Student had made little progress in the intervening one and one-half years. Student’s needs, in his opinion, had not changed. In great contrast to such opinion, however, Student’s education teacher at for both the 2009-2010 and 20102011 school years, described Student as making great progress in all areas, both academic and social, although still evidencing difficulty in attending and regulating body.

The review required to determine the issue presented in this proceeding is basically agreed to by both parties. The Department’s Post-Hearing brief correctly notes that:

“The two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07

[1982]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for the student by his or her parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

A FAPE is offered to a student 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 IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (, 346 F.3d 377, 381 [2d Cir. 2003]; , 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walzak v. Florida Union Free School District, 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walzak, 142 F.3d at 132, quoting , 873 F.2d 563 Tucker v. Bay Shore Union Free Sch. Dist., 567 [2d Cir. 1989] [citations omitted]; , 346 F.3d at 379).

The Post-Hearing brief submitted on behalf of Parents, in similar fashion, noted the same principles, the same cases and the same guidelines.

District’s C.S.E. convened on March 17, 2010 to conduct a Review and prepared an Individualized Education Program (I.E.P.) for Student’s education for the 2010-2011 school year. The C.S.E. classified Student as having a or and recommended that Student receive her education program in a Class in a , with a staffing ratio of , with the Related Services of , four times per week, thirty minutes per session, individually; five times per week, thirty minutes per session, individually; and , once per week, thirty minutes per session, individually (Exhibit H). The I.E.P. indicates that the C.S.E. was changing Student’s program to a Special Class in a , but did not indicate what Student’s program was being changed from. However, according to the testimony of Parent, as Student was turning , jurisdiction of Student’s education program transferred to District’s C.S.E. Parent described the decisions made at the Committee meeting which had been held in 2009 to prepare Student’s special education program for the 2009-2010 school year. Thus, while there is no document in evidence to confirm the provisions of Student’s I.E.P. for the 2009-2010 school year, Parent’s testimony established that, at the turning meeting, the Committee members acknowledged that Student’s needs could not be appropriately met in a classroom setting and deferred Student’s placement to the Central Based Support Team (CBST) to find Student a placement in an approved non-public school. Parent testified that Parents had awaited an advisement from the CBST as to where Student would be placed and, hearing nothing from the CBST, called to inquire, only to be told that the CBST had been unable to find any suitable placement (T.R.395-398). Thereupon Parents placed Student at , where Student attended for the 2009-2010 school year. The I.E.P. of March 17, 2010 also noted that it was increasing Student’s and sessions, but, again, with no indication of the amount of such increases or what Student’s previous program provided in such regard.

As previously noted, District’s C.S.E. met on March 17, 2010 to plan Student’s education program for the 2010-2011 school year. Attending that meeting were School , Education Teacher , and General Education Teacher, as well as Parent and Student’s then- Education Teacher at , who participated by phone. Witness testified that, prior to the Committee meeting, both she and Education Teacher had reviewed the Student’s clinical file, including the Evaluation by (Exhibit 3) and certain Progress Reports provided by (Exhibits 5 and 6), as well as a Classroom Observation (Exhibit 2) that had been conducted on December 3, 2009 by Education Teacher . Further, according to Witness , the Committee received significant input from Student’s then-classroom teacher. The Committee then completed a statement of Student’s present levels of performance, relying almost exclusively on the statements of classroom teacher, and proceeded to create Annual Goals, adopting the Annual Goals that had been prepared almost exclusively by staff at . The Committee then moved to a consideration of a recommended program. According to the testimony of Parent, Parent requested the same action by the Committee as had been taken the prior year, i.e., to defer Student’s placement to the CBST, but was advised by that, in light of the inability of the CBST to locate an appropriate placement the previous year, the Committee could not make the same recommendation again. Witness denied making such statement. The Committee then finalized its recommendation that Student receive her education program for the 2010-2011 school year in a Class in a , with the Related Services noted above..

As stated in both Post-Hearing briefs, a FAPE is offered to a student 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 IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.

Parents attack the validity of the C.S.E. which met on March 17, 2010. Parents allege that a Parent Member was not in attendance at that meeting. Witness confirms the accuracy of Parents’ contention (T.R. 26). Witness explained that, while attendance of a Parent Member was not waived by Parent, the meeting could continue, since the meeting was for the purpose of conducting an Annual Review and, a Parent Member is not a required participant for such a meeting. As authority for such statement, Witness referenced the Department’s Standard Operating Procedures Manual (SCPM). However, no such document was introduced into evidence to buttress such statement. While the provisions of the Federal Regulations enacted by the United States Department of Education in furtherance of the Individuals with Disabilities Education Act do not require that a Parent Member be an essential part of the Committee (C.F.R. §300.321) , the Regulations of the Commissioner of Education of the state of New York do. The only reference therein regarding the non-inclusion of a Parent Member is stated to be:

“Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting.”

8 NYCRR 200.3(1)(viii) Also, apparently in an attempt to deflect the absence of the required Parent Member, Witness described the March 17, 2010 meeting as a subcommittee meeting conducting an annual review (T.R.7). However, the I.E.P. developed at that meeting (Exhibit H) clearly states that such was a “CSE Review”.

I find such absence of a Parent Member to be a procedural violation. However, while precedent has established that “a FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA”, later legislative enactments mandate that not all procedural violations must result in a finding that a board of education or a district has failed to provide FAPE (20 U.S.C. §1415; 34 C.F.R. §300.513(a)(2)). In compliance with such, provisions of the Commissioner’s Regulations state that:

“In matters alleging a procedural violations, an impartial hearing officer may find that a student did not receive a free, appropriate public education only if the procedural inadequacies impeded the student’s right to a free, appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free, appropriate public education to the parent’s child, or caused a deprivation of educational benefits.”

8 NYCRR

200.5(j)(4)(ii))\

It is my finding and determination that the absence of a Parent Member at the C.S.E. meeting of March 17, 2010 did not rise to the level set out above.

Parents have challenged the sufficiency of Student’s I.E.P. As previously noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];8NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4];8 NYCRR 200.4[d][2][v];see Application of the Dep't of Educ., Appeal No. 07-018;Application of a Child with a Disability, Appeal No. 06-059;Application of the Dep't of Educ., Appeal No. 06-029;Application of a Child with a Disability, Appeal No. 04-046;Application of a Child with a Disability, Appeal No. 02-014;Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

According to Witness , the Committee, when it met to develop Student’s special education program for the 2010-2011 school year, had before it the Evaluation performed by , as updated on March 30, 2009 (Exhibit 3), The Fall Report from , which described Student’s performance in her placement in great detail (Exhibit 5), the Mid-Year Progress Report from – a less-detailed Report (Exhibit 6), and the Classroom Observation Report of December 3, 2009 (Exhibit 2). The Committee also, according to Witness , had before it two reports, an Report and Reports (T.R. 27). I also note that Student’s Teacher participated fully in the meeting, although by telephone, providing the Committee with current assessments of Student’s educational needs. I thus find that the Committee’s I.E.P. had the results of ample evaluations to meet the above-stated criterion.

I find the same sufficiency in the Annual Goals established by the Committee for Student. Witness confirmed that the Annual Goals were the results of input from Student’s then- education teacher and discussion by all participants, including Parent. Even the percentages of success set out in the Annual Goals contained in the I.E.P. were provided by Student’s then-teacher and accepted by the Committee.

The Committee recommended that Student receive her education program in a Class in a with a staffing ratio of . Parent, as well as Student’s thencurrent teacher from , objected to such placement, claiming that Student was in need of far greater support and individual attention. Witness testified that, in response to such concerns, the offer was made to provide Student with the services of a aide to direct Student and keep on task. However, such offer was rejected by Parent and by teacher, as it was felt by them that such aide would interfere with Student’s ability to grow in independence.

Parents were offered a placement for Student in a Class at , which is located on Randall’s Island, New York, and assigned to a class taught by Education Teacher . Parent visited the school and the classroom in September of 2010 and found the school to be very nice, but very big. Parent had concerns, among which were that Student would be unable to navigate the large hallways of the school, that lunchtime and recess would be overwhelming for Student, and that the school could not properly deal with Student’s . Based on such, Parent rejected the Department’s offer of placement. By then, Student was already in attendance at for the 2010-2011 school year, again in the Class and being taught by the same teacher Student had during the 2009-2010 school year.

The District submitted the testimony of the education teacher who taught the class to which Student would have been assigned had Parents accepted the Department’s placement offer. That teacher, Witness , provided a description of her classroom and of her students. Although a class, there were but seven students, five of whom were classified as having a , one a and one with . The class was referred to as 1-2-3 class, meaning it had students at the Grade, Grade and Grade levels. According to the teacher, there was also one child at the level., Witness described in detail the manner in which her class was run and how each of the children’s needs were met. A review of the manner in which the various subjects were presented to the students was provided. Witness testified that she had reviewed Student’s I.E.P. and felt confident that her class was able to meet all of Student’s needs and would easily fit in, as Student’s abilities and deficits were very similar to the other students in the class. has been a Education Teacher at the school for ten years and the Assistant Teacher (referred to as a “ ”) in the class has a college degree and has served as a “ ” for more than ten years. Witness responded to two concerns that had been expressed to the school by Parent. The first was her statement that the school did not have a sensory gym in the building. The second, in response to the statement that Student has a , was to explain the steps she would take to protect Student and her willingness to learn the mechanics involved in the use of an .

It is my finding and determination that the District has established that the program envisioned for Student in the offered program in a class at was reasonably calculated to confer educational benefit on Student and provides for the use of appropriate education services necessary to meet Student’s educational needs. The program would place Student in an appropriate educational setting, rather than in the program Student is presently repeating at . Such placement would also permit Student to be educated in the Least Restrictive Environment, as Student would be more involved with non-disabled students attending a community school, as opposed to her present placement with only children with needs. I am sensitive to Parent’s concerns for exposure to a large school building, rather than the security Student presently enjoys in her small private school setting. However, I find that such concern does not diminish my conclusion that the program offered by District satisfies its obligation to offer Student a program designed to provide Student with personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. It is also my finding that Parent’s concerns related to the ability of the offered program to appropriately and adequately respond to Student’s are unwarranted.

It is, then, my conclusion and determination that District has borne its burden of establishing that it offered Student a free, appropriate public education for the 2010-2011 school year. Having made such determination, it is unnecessary to conduct any examination into either the appropriateness of the unilaterally-selected educational facility into which Student was placed by Parents or the equities of the case.

ORDER

Based on the above review, it is HEREBY ORDERED that Parents’ Due Process Complaint, seeking reimbursement of tuition and other related costs incurred in connection with Parents’ unilateral placement of Student at for the 2010-2011 school year be, and the same hereby is, DISMISSED. Dated: May 24, 2011

_______________________

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JPW:jj

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 6, 2011

PARENT

A Parents’ Due Process Complaint Notice, 10-8-10,^[5] pp. B Letter from Parent to Chairperson 10-14-10,^[2] pp. C Letter from Parent to Chairperson, 8-31-10,^[1] p. H I.E.P. for Student by C.S.E., 3-17-10, 19 pp. I Student’s Fall Report for the 2010-2011, School Year by

, 12 pp.

For the Department of Education:

3 Evaluation and Addendum, by and,

11-22-08 and 3-30-09, 12 pp.

4 Social Update by, C.S.W., 3-9-09, 2 pp.

6 Student’s Mid-Year Report for the 2009-2010, School Year by

, 6 pp.

7 District’s Due Process Response to Parents’ Complaint, 10-19-10, 4 pp.

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 14, 2011

J Class Profile of Proffered Grade Class at, Undated, 1 p. — Parents

Footnotes

[1] Minutes of C.S.E. Meeting of 3-17-10, 1 p.

[2] Report of Classroom Observation by F. Ye, 12-3-09, 2 pp.

[5] Student’s Fall Report for the 2009-2010 School Year by , 12 pp.