New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 20

Hearing Requested By: Parent

Date of Hearing: May 19, 2011

Hearing Officer: Martin Schiff, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

DR., Advocate — Student

Parent (Via Telephone) — Student

Observer — Student

School Psychologist, Chairperson's Designee — DOE

Teacher (Via Telephone) — DOE

JURISDICTIONAL STATEMENT AND POSITION OF THE PARTIES

On November 9, 2010 I was appointed to hear the matter of , pursuant to the Individuals with Disabilities Act (IDEA), 20 U.S.C. 1415 (f)(1) and Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 (1993). The matter came on for a hearing on May 19, 2011 which was completed on that day. At this time the proceedings were closed with no further testimony taken and no post-hearing submissions. Appended to the record is a list of persons in attendance and evidence submitted.

It is noted that this is a parental request for an impartial hearing, dated November 2, 2010, based on the allegations that: (1) the Department of Education (DOE) conducted a Committee on Education (CSE) review on March 16, 2010 which “was incomplete and therefore did not provide [the child[ with the necessary services for her to remain in a mainstream setting”; (2) the child is properly classified as other health impaired and attends a general education class in a private school ( ), but the DOE has not provided her with the paraprofessional and Education Teacher Support Services (SETSS) that she requires to deal with her and difficulties; (3) the CSE/IESP team of March 16, 2010 was not properly constituted since there was no general education teacher in attendance; (4) the child requires a paraprofessional and SETSS in order for her to remain in a general education class which is her current least restrictive environment (LRE); and (5) the child has “no services in place” although the Individualized Educational Service Plan (IESP) provides that she get 1x30 ( ), 1x30 ( ), therapy ( 2x30 ( ) and therapy ( ) 1x30 ( ), all paid for by the DOE. The parents are seeking that the DOE be ordered to directly supply and pay for the cost of a paraprofessional and SETSS to be assigned to their child for the 2010-2011 school year.

It is the position of the Department of Education (DOE) that it has offered the child a free appropriate public education (FAPE) for the 2010-2011 school year by providing an IESP that properly classified the child and agreed to pay for the child’s related services of , therapy and therapy for the 2010-2011 school year at , a non-State-approved non-public school of the parents’ choice. Under the IESP the parents agreed to pay for the tuition costs for the 2010-2011 school year at with the child to remain in a general education class. The DOE denies the parents’ allegations and affirms that it has provided the child with a FAPE for the 2010-2011 school year and that that the child is not entitled to a paraprofessional and a SETSS in addition to the related services already provided during this time period.

THE DEPARTMENT OF EDUCATION’S CASE

, school psychologist, represented the DOE and made the opening statement. An IESP of March 16, 2010 classified the child, then years months of age and in grade in a general education class, as Other Health Impaired due to her disorder. The IESP authorized her to attend a non-State-approved non-public school named . The DOE and the parent agreed upon services, namely, 1x30 ( ) and 1x30 ( ), 2x30 ( ) and 1x30 (1:1). The CSE supports the classification and program recommendation as offering a FAPE with the location at , a non-public school and the parent’s choice. [Tr. at 10] There is also a intervention plan that was developed as part of the IESP.

The first DOE witness was ,a education teacher with a masters in education. He works as a teacher assigned to the CSE. He participates in the construction of IEP’s and IESP’s. [Tr. at 31-32] [An IESP is an Individualized Educational Service Plan where the school district and the parent jointly develop a plan and services for a child already enrolled in a private school.] [Tr. at 34] With an IESP the parent pays the tuition and the DOE provides for the related services. The parent chose to place the child in this private school.

He did two classroom observations of the child, the first on February 12, 2008. [Exh. 4] [Tr. at 35] The child was attending , a private, religious school, in a general education class. There were students in the class. The child was distracted and slow to follow instructions. She needed the teacher to help her to stay during the lesson. [Tr. at 36] His observation of the child was done on November 3, 2009. [Exh. 5] She was years old and in grade. grade is approximately correct for an -year-old child. She was in a general education class of students. She needed re-from the teacher twice during the class. [Tr. at 39] The teacher was the only adult in the class. He was involved in the construction of the IESP for the child on March 16, 2010. [Tr. at 39] His recollection of that IESP is that no one disagreed with the child’s classification as OHI. [Tr. at 40] The IESP recommended general education with related services. The related services were , and . Test accommodations were created for the child. The parent did not agree with the IESP. The child was on grade level for decoding, spelling and reading . The test results were from the Woodcock Johnson 3. [Tr. at 43] The evaluations were done in October 2009 while she was in the grade. She was on grade level or above in math. [Tr. at 44] She was classified as OHI due to low tone in her lower extremities, sensory issues and . [Tr. at 45] The s to be addresses in her intervention plan were transitioning, and . Techniques used to help the child learn and modify were: , token reinforcement, reminders from the teacher to stay on task and testing modifications. She had no academic delays, and she was on grade level. He saw no aggressive s. [Tr. at 53] She did not need an individual para. [Tr. at 55] He thought that the child had the LRE and a FAPE with the IESP of March 16, 2010. [Tr. at 55-56]

On cross-examination by , Mr. testified that the during a class period she had to be re-up to 4 times. She was somewhat distracted on both observation dates, February 12, 2008 and November 3, 2009. She was getting all of her related services in the interim between the two dates. [Tr. at 58] THE PARENTS' CASE:

The parents were represented by who made the opening statement. [The mother appeared by telephone after ’s opening statement.] He argued that the DOE had provided the child with insufficient related services over a multi-year period. A CSE review of March 16, 2010 when the child was in the grade was inadequate since no general education teacher was present, and the child was attending a general education class. [Tr. at 11-12] The impartial hearing request was done on November 18, 2010 to challenge the IESP and the lack of services that the child needs. The child’s service needs do not require her to be in a class. The CSE met again, on April 14, 2011, changed the classification and recommended a class. [Tr. at 14] However, the mother wants the child to have her services while remaining in a general education class. She wants also two additional related services: 10 periods of SETSS and two additional related services of the health para. [Tr. at 15]

The first and only witness in the parents direct case was the mother. She is seeking a para and a SETSS for her child. [Tr. at 83] With the school year nearly over she wants the para and SETSS for the next school year, 2011-2012. A para in fact was granted to the child in February of 2008, but it was never put in place. [Tr. at 85] At the CSE of March 16, 2010 which is the basis of this impartial hearing, she requested a para to re-direct and re-the child while she was in the class because she is too disorganized. [Tr. at 88] The child was diagnosed with . She also has [Tr. at 89] affects the of one of her . Her condition affects where she is seated; she must be seated in a way that both minimizes her yet allows her to see without a strain on her . She still needs re-direction and re- and has fallen behind in her work. She also does not . The child had a para to help her through the grade but no longer in the grade. [Tr. at 93] The CSE meeting of April 14, 2011 resulted in another denial of a para. The parent testified that in her opinion the IEP of April 14, 2011 should be considered at this hearing to affect both the 2010-2011 and 2011-2012 school years. [Tr. at 97] [The impartial hearing request of November 18, 2010 preceded by several months the new IESP of April 14, 2011.]

On cross-examination by Dr. , the mother testified that her child was in fact promoted to the grade without a para and has never been left back. [Tr. at 101] She does not recall if she requested from the CSE of March 16, 2010 a SETSS in addition to a para. The child has never been suspended for bad . The child has and takes [Tr. at 105] She believes that her daughter will be promoted to the grade. [Tr. at 108] She is satisfied with as a school for the child. [Tr. at 108-109]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Education once again bears the burden of demonstrating the appropriateness of the program recommended by its CSE based on legislation passed in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). Therefore, the Department (DOE) has the burden set forth in a long line of cases. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate education services to address the child’s education needs. Application of a Child with a Disability, Appeal No. 9312; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Act (IDEA) is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, E.S., 135 F.3d at 569. Nor does the IDEA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit.” Id. At 200.

In the instant case, there is a legal and procedural issue that has been raised by the parents that must first be considered before the parents’ complaint is addressed on the merits. The issue is whether the CSE which met on March 16, 2010 was a duly constituted CSE with the absence of a general education teacher. It is well-settled law that the absence of a duly constituted CSE renders its recommendations a nullity and its IEP invalid since such absence is a per se violation of the IDEIA. Application of a Child with a Handicapping Condition, Appeal 91-41; Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, Appeal No. 00-31; Application of a Child with a Handicapping Condition, Appeal No. 96-87; Application of a Child with a Handicapping Condition, Appeal No. 99-62.

In 1997 the Individuals with Disabilities in Education ACT [IDEA][now IDEIA] was amended to provide than an IEP team must include at least one “regular education teacher of the child,” if the child is or may be participating in the regular education environment. Federal regulations further require that the regular education teacher “must, to the extent appropriate, participate in the development, review and revision of the child’s IEP.” This includes assisting in determining appropriate strategies and supplemental aides and services and program modifications or supports for the student. 34 CFR Section 300.346[d]. In its official interpretation of the Regulations, the U.S. Department of Education has indicated that “the regular education teacher who serves as a member of a child’s IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.” 34 CFR Part 300, Appendix A, Question 26 as set forth in Application of a Child with a Disability, Appeal No. 00-060.

In New York, Education Law Section 4402 (1)(b)[1](a) clearly states that the CSE “…shall be composed of at least (emphasis mine) the following members…(ii) one regular education teacher of the student whenever the student is or may be participating in the regular education environment…and (iii) a education teacher of the child, or, if appropriate, a education provider of the child…” See also 34 CFR 300.344[a][2]; 8 NYCRR 200.3(a)[2](ii) and (iii).

In reviewing the sign-in sheet of the IESP of March 16, 2010 [Exh. M-2], it is clear that there was no regular teacher participating at this meeting. There was no response from the DOE to the parent’s raising of this issue both in the impartial hearing request and in testimony at the hearing. Therefore, on this basis alone, the IESP of March 16, 2010 must be set aside. It follows then that the DOE has not met its burden of proof and burden of persuasion under the IDEIA, under Burlington/Carter, and under Schaffer v. Wiest to provide the child with recommendations that constitute a FAPE. Having determined that the DOE’s recommendations for the child must be set aside, I now turn my attention to the relief requested by the parent.

The parent requests that the DOE assign the child a paraprofessional and a SETSS to assist her in her general education classes at for both the 2009-2010 and 2010- 2011. school years. The parent fully participated in the CSE meeting of March 16, 2010 and made her requests. Testimony indicated that the parent did not recall whether she requested that the DOE provide a SETSS. The parent conceded that her child has been promoted every year, has never been left back and has never been suspended for bad . While the parent testified that the child had a para through the grade, it is important to note that promotions to the , and grades took place without a para. The child is at or above grade level in all of her subjects. There is no disputing that the child has some attentional deficit issues, an condition called

’s Syndrome and certain medication needs, but she has performed adequately with occasional prompting from her regular teacher and the implementation of her existing intervention plan. To subject her to a one-to-one paraprofessional would reduce her opportunities for independence and self-initiative and restrict her unduly to the extent that she is no longer functioning in the “least restrictive environment.” It cannot be denied that the child is being provided with “some educational benefit” which satisfies the FAPE requirements pursuant to the IDEIA. A parent does not have the right to optimize her child’s education in order to satisfy FAPE. In this case, the provision to the child of an all-day one-to-one paraprofessional would not optimize the child’s education at all, as the parent believes, but would be a detriment to her future educational progress. Finally, it is clear that the impartial hearing request of November 18, 2010 was filed in opposition to the recommendations of the CSE of March 16, 2010 and not the CSE of April 14, 2011. I do not have the jurisdiction, in the absence of any amendment by both parties of the complaint that extends my jurisdiction to include the CSE of April 14, 2011, to consider at all the CSE and the IEP of April 14, 2011.

Accordingly, although the CSE of March 16, 2010 was defective for the reasons stated above, I find that the parent is not entitled to the relief requested in the impartial hearing request of November 18, 2010.

WHEREFORE, it is hereby ordered that :

1. The Department of Education (DOE) did not offer the child a free and appropriate education (FAPE) for the 2010-2011 school year.

2. The parents are not entitled to the relief requested in the impartial hearing request of November 18, 2010.

3. This decision is subject to appeal to and review by the State Review Officer. Dated: June 27, 2011

MARTIN SCHIFF. ESQ.

Impartial Hearing Officer

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PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the 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

PARENT DESCRIPTION

A Impartial Hearing Request, dated 11/18/10, 1 page B Request for Dr. Rydzinski, 1 page C Healthcare Para Request, 2 pages D Classroom Observation, dated 11/3/09, 1 page E Impartial Hearing Request, dated 2/14/08, 1 page F Pediatric Consultation, 2 pages G School Report, dated 6/19/07, 1 page H Final Notice of Deferred Placement, dated 5/3/11, 1 page I Resolution Agreement, 2 pages J IEP, dated 4/14/11, 12 pages K BIP, dated 4/14/11, 1 page L Annual Goals, dated 4/14/11, 2 pages M IEP, dated 3/16/10, 14 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 IEP, dated 3/16/10, 15 pages 2 Eval, dated 10/19/09, 14 pages 3 School Progress Report, dated 9/29/09, 1 page 4 Observation, dated 2/12/08, 1 page 5 Observation, dated 11/3/09, 1 page 6 Resolution Meeting Notes, dated 12/2/10, 1 page, 7 FNR, dated 3/17/10, 1 page