New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 3

Hearing Requested By: Parent

Date of Hearing: May 17, 2011

Hearing Officer: Susan K. Markus, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2011

Attorney — Student

Attorney — Student

Parents

Intern — Student

Attorney — Student

*DR., School — Student

*DR., Center — Student

Attorney — DOE

*, Principal — DOE

*MR., SE Teacher — DOE

*MS., GE Teacher — DOE

*By Telephone — DOE

INTRODUCTION

On May 17, 2011 I conducted a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. s1415 (f)(3), regarding the education program of a student with a disability. The hearing was conducted at the Impartial Hearings Office of the New York City Department of Education.

, Esq. represented the New York City Department of Education (“Department”). , and , attorneys for , represented the parent. intern also attended the hearing. A list of witnesses and documents received into evidence is attached to this decision.

The Parent submitted a due process request for a hearing through her attorney on February 3, 2011. The request alleged that the Department of Education failed to identify and evaluate the student for education or to offer the student a free and appropriate education (“FAPE”) for the 2010 – 2011 school year. Parent further asserted that the private program selected by the Parent was appropriate, and requested that the Department be ordered to pay the tuition and costs for the private program, as well as transportation to and from the program and reduced cost or subsidize the cost of breakfast and lunch at the private school. (Parent Ex. A, DOE Ex.3)

BACKGROUND

The student is a - -old girl who has been diagnosed with disorder (“ ”) and a disorder. (Parent Ex. A, DOE Ex.3) While a grader in , where she lived with her mother, the student was identified by a teacher as in need of education services. The mother enrolled the student in a private education school there for the student’s grade year. During that year the student was evaluated and diagnosed with and a disorder. At the end of grade, the student and her mother moved to New York City where the student was enrolled in the School, a public middle school in District Three, for the 2009 – 2010 school year. The student did not have a New York City Individualized Education Program (“IEP”) at that time and was not enrolled for education services. The conduct of School personnel during the 2009 – 2010 school year and whether they failed to properly identify and evaluate the student as a student in need of education services is at issue. At the end of the year the student graduated from the School. The student’s mother enrolled the student at the School (“ ”) for the 2010 – 2011 school year. (Parent Ex. D) Her attorney submitted a 10-day Notice to the Department on September 1, 2010 and the Parent signed a contract for services with on September 8, 2010. Parent Ex. B, DOE Ex. 10)

THE DEPARTMENT OF EDUCATION'S CASE

The Department asserted that the Department did not violate the “Child Find” laws encompassed in the IDEA and state regulations, that the School met the obligation to identify the student’s education needs and provided education services to her appropriately. Moreover, the Department asserted that the student’s disability did not affect her educational performance as evidenced by the fact she passed all her course while at the School, and that the education provided in 2009-2010 at the School and the education offered for2010 – 2011 at a general education school were appropriate for the student. (Tr. at 12 – 15, 244 - 246) In addition to the documentary evidence submitted, the Department called the principal and two teachers from the School.

According to , the principal of the School, the School is a general education middle school comprised of , and grades. The school is a screened school with an accelerated program. (Tr. at 20) The school has one : self-contained class serving students with disabilities. The school also has education teacher support service (“SETSS”) teachers who provide services on a push-in or pull-out basis. (Tr. at 21) In addition to the students in the self contained class, approximately 10% of the school’s 400 students have IEPS and receive services. Almost all of them arrived with IEPs in place. (Tr. at 63-64)

On occasion the school personnel refer a student for education services. When teachers notice that a student is having severe difficulties in various curricular areas the staff discuss the situation to determine ways to support the student. The school tries less restrictive measures, such as providing extra support during lunch or after school. If those less restrictive measures do not work, the school personnel suggest to the parent that the student might be well served by an evaluation or referral of some kind. Or, the parent may ask the school to initiate the referral process. (Tr. at 23-24) The school does not generally make referrals unless the parent is asking for it or consents. (Tr. at 62)

The Parent in this case initially came to the school with a referral from the Office of Student Enrollment requesting admission to the School. The school screened the student and Mr. explained to her mother that the school offered an accelerated program that was often difficult for graders to join. (Tr. at 22 -23) According to Mr. , neither he nor any teacher at the school felt there was a need to refer the student for education services or an IEP. (Tr. at 24) However, in the middle of the year, at around the time that the Parent requested that her daughter receive an extended time accommodation for the school exam, Mr. learned that the student had an IEP from her previous school. The school received a copy of an IEP, and it was discussed with the school counselor. (Tr. at 24, 34) At some point after that the student was provided with what Mr. could call at-risk services, which are provided to student who does not have an IEP with a mandate for SETSS. The at-risk services are provided on an informal basis. The school provided the at-risk services because the student was not doing as well as she might have in some classes. Mr. recalls having some discussion of the services with Mr. , the school’s SETSS teacher, and that he approved the services. (Tr. at 26 – 27) Mr. reviewed the student’s report card, and confirmed that she did not fail any classes for the 2009- 2010 school year. (Tr. at 29, DOE Ex. 8) The student had initially been enrolled in Spanish, but the student was withdrawn from Spanish so that time could be used to provide her with at-risk SETSS. (Tr.at 52) Mr. also reviewed the student’s school application receipt and stated that as far as he knew all of the schools listed were general education schools. (Tr. at 30, DOE 5) Mr. had many contacts with the Parent. He was aware that she asked for accommodations for her daughter including being allowed to chew gum, take walks and squeeze a ball. However, as far as Mr. knows, the student’s mother never asked that her daughter receive any supports in addition to the SETSS, other than a request for help with after school, which the school was already providing. (Tr. at 33)

Mr. described the school’s response when, as here, the school learns of a student’s education evaluation or IEP. Initially, there is some review by someone on the school’s staff when an evaluation or an IEP is received. Upon that a student has a education evaluation, the school’s process would start with a discussion with the and education staff, the academic coordinator and Mr. , who then decide how to go from there. (Tr. at 37 - 38) In the case of this student, when they learned of her previous, out-of-state IEP she was struggling in global studies, but passing all her classes. Mr. and other school personnel had a discussion and decided to provide at-risk SETSS, which seemed to be the least restrictive measure. Mr. did not recall exactly who was present for the discussion of the student, but acknowledged that the Parent was not invited to the meeting. Mr. asserted that she was informed of the decision, but didn’t know how that occurred. (Tr. at

43) There was no memorialization of the discussion or the decision to provide the at-risk services. (Tr. at 49) Mr. indicated that the fact that she was passing all her course was determinative of whether further, more formal action was necessary or whether making a record of the school personnel’s decision to provide services was called for. Moreover, the reflection on her report card that she had dropped Spanish served as some memorialization of the school’s decision to provide services. He repeated that when the Parent presented to the school he explained that the school was an accelerated program, and that students coming from other schools tend to experience difficulties if they have not been in an accelerated program before. (Tr. at 51, 52) Mr. stated that it is not the school’s practice or process to inform a parent of their education rights when a parent brings the school an IEP for the student, unless a parent is asking for a referral. The assumption is that a parent with an IEP is well aware of the education process. (Tr. at 54 -55) He distinguished between the presentation of an IEP by a parent at the time of enrollment and one that occurs, as here, at a later time. In this case, he did not see the representation of the IEP as triggering any requirement to inform the Parent of her education rights. (Tr. at 57-58)

Mr. opined that the school provided the student with an appropriate education in the least restrictive environment. She met all of the graduation requirements in an accelerated program. Had he felt that the at-risk services were not sufficient to meet the student’s needs, he would have discussed it with his staff and then referred the student to a committee on education. (Tr. at 31 – 32)

Mr. , the SETSS provider at the School, testified. The student came to Mr. ’s at a teachers’ meeting to discuss students who are having trouble adjusting to the School. Minutes were usually taken at these meeting, but Mr. did not take them. The minutes are usually mailed to the staff, but Mr. would not have saved them if they were. (Tr. at 76) At the meeting, the student was described as immature and having trouble fitting in, and there was concern that this was affecting her academically. It was decided that Mr. would provide her with atrisk services, and he saw her as he would one of this mandated SETSS students beginning at the end of October. (Tr. at 68, 76) He met with her on a pull-out basis, and she was pulled out of Spanish and art three times a week. (Tr. at 78) When he began working with the students she showed verbal strengths and she was a good writer. She had trouble following multi-step directions, and developing more complex ideas at a er grade level. (Tr. at 69) She had some trouble with , but was passing the class. (Tr. at 71)

At some point, Mr. received a copy of the student’s IEP from . He noticed that it was different than New York City IEPs, and he noticed that the IEP did not specify an educational diagnosis. He assumed that meant that the student was never formally evaluated by the school system. He acknowledged that he noticed the section of the IEP that states that the student has a cluster of problems including difficulties, specifically and dysfunction and the statement that these issues affect her academic and progress. Nonetheless, Mr. concluded that a referral for an evaluation was not called for because the IEP was just about a year old, and when he viewed the Woodcock-Johnson scores he noticed that nothing was two grades below level. Taken together with her performance at the School thus far, he determined an evaluation was not necessary. (Tr. at 74, 79-80) Mr. had a brief conversation with the Parent when he received the IEP. He told her that if she was interested in getting a formal evaluation through New York City, the quickest way to do so would be for her to write a letter to the CSE. (Tr. at 78) As far as insuring that a student who is receiving at-risk services will continue to do so when she graduates from in the absence of an IEP, Mr. indicated that calling the receiving school was a way to accomplish that, although he did not do so in this student’s case (Tr. at 78 -79)

Mr. is familiar with the process for referring a student for an evaluation. In his opinion, the student never presented as a child who should be referred to the CSE for an evaluation or an IEP. (Tr. at 72) Nor did her teachers ever indicate the need for a referral to him. (Tr. at 75)

Ms. , an English arts (“ELA”) teacher at the School testified. She was the student’s ELA teacher during the 2009-2011 school year. She described the student’s main weakness as veering off of instructions, having difficulty following directions for a writing task. She described the student’s strength as being a good writer mechanically, displaying good grammar and creativity. She was a good reader. (Tr. at 83-84) Ms. was present at the weekly teachers meetings when the student was discussed. She did not recall a specific meeting, but remembered that the student was discussed at one time or another. The major issues discussed were issues, and a concern that the student was not as mature as some of her peers. The SETSS provider informed the teachers that there was an IEP, and there was discussion of the IEP from another school. After that, the student started receiving at-risk SETSS. Ms. agreed with the decision to provide SETSS and noticed improvement after they began, although she is not aware of anywhere where such improvement has been documented other than in her grades, which were up and down during the year. (Tr. at 84-85, 87, 91) In her comments on the student’s report card Ms noted the student’s need to do better at following instruction and directions. (Parent Ex. L)

Ms. did not specifically recall her contact with the Parent, but was certain that they met at parent-teacher conferences. At no time did the mother ask that her daughter be referred for an evaluation. (Tr. at 85-86) Had Ms. felt that the student required an IEP, she would have referred her for an evaluation. (Tr. at 86)

Among the evidence submitted was a series of e-mails between Ms. , the guidance counselor at the School, and the Parent. The e-mails discuss the status of student’s school applications and the Parent’s apparent request that her daughter receive the accommodation of extended time. In a May 1, 2010 e-mail from Ms.

to the Parent, Ms. expresses confusion about the Parent’s reference to a 504 plan when the student has an IEP, and states that a student cannot have both an IEP and a 504 plan. She goes on to say that she and Ms. do not process 504s, and that she had not received a 504 request, “only an e-mail with a 75 page attachment of a psychological assessment.” She informed the parent that Ms. in the office processes 504s. Neither the May 1, 2010 e-mail nor the others in the series indicate when Ms. received the 75-page psychological assessment to which she referred. (Parent Ex. M, p.3)

THE PARENT'S CASE

The Parent contended that the Department failed to comply with “Child Find” principles embodied in the IDEA and Section 504, failed to evaluate the student to determine if she was eligible for education services and failed to offer a FAPE.

The student’s mother, Ms. ., testified. She relayed that her daughter attended and grade in New York City and second through grades in , . She did okay academically until grade when she began to do poorly in and science and was at-risk to be held back. A teacher noted that she was having academic and difficulties in school and suggested that she be tested for a disability. Ms. had her daughter evaluated in April 2008 and she was diagnosed with and a disability. Dr. , in development and pediatrics at Washington University School of Medicine, recommended a private school that caters to children with disabilities, the School, and Ms. enrolled her daughter there for grade, which was the 2008-2009 school year. (Tr. at 174-177, Parent Exs. P, Q, R) The student’s tuition was paid by a scholarship from an anonymous sponsor. Ms. . never followed any particular process beyond what she described above in order to obtain services for her daughter. The School personnel created the student’s IEP. (Tr. at 183-184, 212)

When Ms. moved to New York City she was given a referral to the School by the Office of Enrollment. She and her daughter visited the school and were interviewed by Principal . The school asked for and Ms. . provided the school with her daughter’s report card from the School, which included references to occupational therapy and and therapy. During the interview Mr. asked her if her daughter was going to need services and she explained that her daughter was receiving in the morning and the afternoon for 15 minutes. Ms. told Mr. that if her daughter had issues, Ms. would take her to tutoring. Mr. expressed concern at the student’s C in at the School, and indicated that all the students at the school had As and Bs. Ms. assured him that her daughter would do well and he agreed to admit her. (Tr. at 186 – 188) She did not ask the principal to provide or and for her daughter. (Tr. at 214)

Sometime during the month of school Ms. gave a hard copy of the 2008 evaluation and associated letter from Dr. (Parent Exs. P, Q, R) as well as the School IEP (Parent Ex. O) to the school secretary, Ms. . (Tr. at 178, 181, 215) Later, sometime in the middle of the school year, she also e-mailed copies of the documents directly to the school counselor because she kept telling Ms. that she had not received it. (Tr. at 190, 191, 216) No one from the school responded to her submission of the documents, although the school counselor did acknowledge that she had received it in the context of another issue. (Tr. at 191, Parent Ex. M, p.3)

In Ms. ’s opinion her daughter did not do well at the School. Her grades, particularly in and earth science were poor, and dipped up and down over the course of the year. She frequently failed tests, and received only a at the end of the semester. (Tr. at 193) Originally she was enrolled in Spanish, but when she was failing that as well she was pulled out of the class in November or December. She was then assigned to SETSS, also known as Resource Room. Ms. received an e-email notifying of that change to her daughter’s program, and she discussed it at the parent – teacher conferences. (Tr. at 194-195) Ms. did not notice any particular benefit from the SETSS sessions. Her daughter continued to miss homework assignments and she continued to be very disorganized. She often failed to follow the teachers’ directions when she did her assignments, a fact that was noted by her teachers in their comments on her report cards. (Tr. at 195-196, Parent Ex. L., DOE Ex. 8) In September Ms e-mailed four of her daughter’s teachers asking for accommodations for her daughter including allowing her to chew gum, squeeze a ball, and walk around, all of which were suggested in Dr. ’s evaluation. (Parent Ex. N, Parent Ex.R) Principal responded to her request and told her that such accommodations were not going to be allowed. (Tr. at

198) Ms. does not believe that her daughter ever received testing accommodations at the school. (Tr. at 201) Ms. was not aware of how to obtain services for her daughter and no one from the school ever explained her education rights to her. (Tr. at 191) She never asked anyone at the School for a New York City IEP nor did she ever ask a teacher at the school whether her child should be evaluated. (Tr. at 213, 220)

During that year Ms. and her daughter participated in the school selection process. They reviewed the catalogue provided by the Department and selected schools based on the information therein and whatever Ms. could learn about the safety of the schools. (Tr. at 202) She noticed that education schools or services were listed in the book but did not know how to apply to those schools or obtain appropriate services. (Tr. at 203) Ms. also looked at private schools because she knew how hard it was to get into a good public school and she wanted a school that would be appropriate for her daughter. (Tr. at 204) She looked at the in January or February of that year. The student was accepted by one public school, . Ms. opined that her daughter would have been underserved at . She did not believe that it would prepare her daughter for . She was concerned about the safety of the building. At around this time, she contacted the principal of

Academy in hopes of enrolling her daughter there. He suggested that she contact the Department’s Office of Student Enrollment, which she did, and was told by that person, whose name she doesn’t know, that her daughter was listed as a needs student. (Tr. at 217-218) She did not ask the person from the OSE about whether and how accommodations or services would be provided. In her prior experience in her daughter’s teachers at her public school and later at the private School had been the ones to recognize the need for the IEP. (Tr. at 21)

In August 2010 she was accepted by . (Tr. at 205 – 207) Her attorney informed the Department of Ms. ’s intent to enroll her daughter at on September 1, 2010. (Tr. at 210, Parent Ex. B, DOE Ex. 10) The tuition at is $47,000. Ms. has not paid any of it and the school has agreed not to try to collect it until she completes her request for tuition. (Tr. at 210) Ms. is not currently employed. She lives on her child support payments from the student’s father of $560 every two weeks. According to Ms. her daughter would be eligible for free breakfast and lunch in a public school program as she was at the School in 2009-2010. She spends about $25 per week on the student’s breakfast and lunch. (Tr. at 211-212)

Ms. described her daughter’s experience at as a 360-degree turnaround. Her grades have improved and her confidence has increased.

Dr. , a post-doctorate fellow at , testified. Dr. performed a neuropsychological evaluation of the student in October 2010. Dr. examined the student over the course of three sessions, each lasting between three and six hours. She concluded that the student has an overall average IQ, average cognitive functioning, but with definite weaknesses in and executive functioning. Dr. diagnosed the student with a disorder and mild symptoms of and . (Tr. at 152-154, Parent Ex. K) Dr. explained that the executive functioning weakness manifested in difficulty with organizing, planning, starting and sustaining tasks, problem-solving and working . The disorder diagnosis was grounded in the evidence of a statistically significant discrepancy between the student’s scores on tests and her cognitive functioning. (Tr. at 154- 155) She noted that the student’s gradeequivalencies in ranged from 3.4 – 7.2, and that three out of five scores in were borderline. She registered scores in reading and writing tests, with a grade equivalency range of . in reading comprehension to . in reading and decoding. (Tr. at 162, Parent K, p.11) She opined that the student needs education services, including tutoring, and . Moreover, her weakness in executive functioning means that she needs a small class environment, grouped with children of a similar age and ability, and, ideally, students with similar disabilities so that the teacher can effectively address the disorders. She opined that the benefits of the more restrictive education class outweighed the detriments. (Tr. at 156, 163, 166, 172) The student would not fare well in a general education class. Dr. predicted that the student’s grades would decrease, particularly her scores, because she lacks the executive functioning skills necessary to complete the work required of students on a general education class. In addition, falling behind academically would negatively affect the student’s self esteem and confidence. (Tr. at 157, 172)

Dr. , the clinical director at , testified. He described as a preparatory school for bright students with and/or difficulties. The disabilities of the students cover a range of and challenge, including disorder, control, and students on the spectrum. While not all the children have IEPs, they all have needs. The school serves children in grades seven through twelve a therapeutic environment. There are 68 students at the school, and class size is between and ten students. The school graduates 99% of its students and most of them go on to college. The school follows a New York State approved curriculum, is licensed by the New York State Board of Regents, but it is not approved by the Department of Education. Some, but not all of ’s teachers are certified by New York State, and two are licensed in education. All have at least five years of teaching experience in the classroom. There is one psychologist on staff, Dr.

. (Tr. at 95-99, 112, 115, 122) The school assesses students using a variety of methods including teacher observations, substantive curricular criteria, tests and quizzes. The students receive quarterly grades and reports. (Tr. at 114, 116) The school does not provide related services like and , and it does not develop IEPs. The school does develop goals for each student, and follows the recommendation of the IEPs for those students who have them. (Tr. at 128-129, 145-146)

Dr. described the student as verbal and articulate, with and difficulties. Her and difficulties, in particular, require . RSL placed her in a smaller class with a younger group of kids so that she is grouped with academically and appropriate peers. She often needs directions repeated to stay on task. The smallness of her classes, less than ten students, allows teachers to refocus her when she becomes . (Tr. at 100-101, 113) Dr. testified that the student has done very well at . She referenced her report cards over the course of the year, which show that she has earned very good grades, including several As, and positive comments from her teachers. (Tr. at 101-102, Parent Exs. H, I, J) Her and progress is more challenging, and she struggles to understand then nuances of interaction. Dr. , who sees the student every day and supervises her advisor, placed the student in a group that focuses on friendships and relationships. Moreover, the small group setting of the school helps to foster her ability to connect. (Tr. at 103-104, 125) Dr. reviewed the student’s daily schedule, which includes her classes as well as a daily advisory period. (Tr. at 122- 128, Parent Ex. E) Dr. has read the report from Dr. and found it to be accurate and helpful and consistent with his and the teachers’ observations of the student and her educational needs. (Tr. at 106)

Dr. explained that accepted the student on the terms that her parent was going to be seeking counsel to assist in getting an appropriate placement for her daughter. When asked about the September 1, 2010 letter from Heman Stewart, assistant comptroller of RSL, indicating that the student had been accepted to RSL for the 2010-2011 school year and that tuition payment was being waived pending proceedings with the Department, Dr. stated that the letter does not mean that the Parent does not have to pay tuition. The school holds the Parent accountable for the full tuition. (Tr. at 109-110, 132-133, DOE Ex. 10) The school does not currently have a breakfast or lunch program for students. Most students go out to lunch, but the student brings her lunch and stores it in the staff refrigerator outside Dr. ’s office. (Tr. at 109-110)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Applicable Standards:

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that a free and appropriate education (“FAPE”) is available to students with disabilities. (20 U.S.C. § 1400[d][1][A]; Schaffer, 126 S. Ct. at 531). Provision of a FAPE depends upon the identification of students in need of education services. Thus, the purpose of the Child Find provisions of the IDEA are to identify, locate, and evaluate those students who are suspected of being a student with a disability and thereby may be in need of education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 436 F.3d 52, 65 [2d Cir. 2006] [holding that the purpose behind the Child Find provisions is to locate children with disabilities who are eligible for education services who might otherwise go undetected]; see also 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The Child Find requirements apply to "children who are suspected of being a child with a disability . . . and in need of education, even though they are advancing from grade to grade." (34 C.F.R. § 300.111[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 10-009).

Central to the procedures in place to insure that a school district identify eligible students is the process whereby a student suspected of having a disability is referred for an evaluation. Once a student suspected of having a disability is identified, the student “shall be referred in writing to the chairperson of the district's committee on education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for education programs and services. The school district must initiate a referral and promptly request parental consent to evaluate the student to determine if the student needs education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction as described in section 100.2(ii) of this Title”. 8 NYCRR 200.4 (a)

Once a student is determined to be eligible for education services, a FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Education 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 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. From 10-051 Further, a FAPE must be available to an eligible student "who needs education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5], Application of a Child with a Disability, Appeal No. 10-051). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

A school district may be required to provide funding for private educational services obtained for a student by his or her parent, 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 Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). At an impartial hearing, the school district bears the burden of proof, both of persuasion and of production, except that a parent seeking funding for a unilateral placement has the burden of proving the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). Discussion:

Here, the Department has failed to establish that it offered the student a FAPE for the 2010 – 2011 school year. The School failed to identify the student as a student suspected of being a student with a disability as required under the IDEA and federal and New York State regulations. There were numerous indications of the likelihood that the student had a disability. The , which occurred prior to the student’s acceptance and enrollment at the School, was the indication on the student’s previous report cards from the School, which indicated that the student had been receiving the related services of occupational therapy and and in the year prior to her enrollment at . According to Ms. .’s credible testimony, the school principal noticed and inquired about the provision of those related services and was told by the student’s mother that her daughter had been receiving occupational therapy on a daily basis at , albeit for 15-minute sessions. That the mother did not ask for those services to be provided by the School at that time does not negate that information sufficient to create a suspicion of a disability was conveyed to the school prior to her acceptance and enrollment.

Next, the school received a copy of the student’s IEP from the School, by all accounts within the two months of the school year. Mr. indicated that he was aware of the IEP in October when the student’s adjustment and performance became a topic of the weekly teachers’ meeting at the School, and Ms. confirmed that the student’s IEP was referred to in those conversations.

Lastly, the IEP and the lengthy evaluation of the student conducted in April 2008 were e-mailed to the school, and acknowledged in the May 1, 2010 e-mail from the school counselor, . Thus, the principal, the SETSS provider, the school counselor and one of the student’s teachers were all aware of the previous year’s

IEP. There was more than enough information contained in the IEP to prompt a suspicion that the student had a disability. In particular, the IEP statement that the student has a cluster of problems including difficulties, specifically and dysfunction and that these issues affect her academic and progress, which Mr. acknowledged reading and noticing, should have triggered the appropriate procedures. The school overlooked these clear signs of a disability. That the student was not failing her classes at the time does not relieve the school of their obligations under the Child Find laws.

The School failed to follow the procedures in place to identify whether a student suspected of having a disability is a student eligible for education services. Specifically, the school failed to refer the student for an evaluation in accordance with 8 NYCRR 200.4 (a). Instead, upon noticing that the student was having difficulty adjusting to the school and was performing poorly in and science, school personnel engaged in informal discussions among themselves as to how to address the student's difficulties. They determined to provide her with that the school calls “atrisk” SETSS, a category of service apparently of their own making. No record or other form of memorialization of the school’s decision to provide the services was made. Thus, the basis for determining that SETSS were a reasonable response to the student’s difficulty and whether the SETSS were in any way effective are unknown and unknowable. Significantly, the school failed to invite the Parent to attend or participate in the discussion of her daughter’s program at the school. That she was notified after the fact and did not object in no way mitigates that she was entirely excluded from the school’s process.

The Department asserted that even if the school failed to properly identify and refer the student, there was no violation of FAPE because the student was not adversely affected by the failure to evaluate and provide appropriate services. To support this assertion the Department noted that the student passed all of her courses and graduated from . However, a student is entitled to services if the student is eligible for services and the services are necessary and appropriate to a FAPE without regard to passing grades or promotion. Moreover, the Department’s assertion that the student was performing well at is undermined by the school’s report card for the student. In Global Studies, Earth Science and the student’s grades were up and down, but frequently hovered at %. Notably, her performance on tests and quizzes was consistently unsatisfactory in those subjects, and her passing grades appear to be the result of balancing her failing substantive performance with her often excellent class work and class participation. (See Parent Ex. L, DOE Ex. 8) In addition, many of the comments on the student’s report card reflect her difficulty in following directions, an executive functioning weakness that was evident in the School IEP and later confirmed in Dr. ’s October 2010 evaluation.

The correct standard for determining whether a procedural error constitutes a denial of FAPE is whether the procedural inadequacy (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]. Here the nature of the procedural defect – the failure to evaluate – makes it difficult to know with certainty whether the program offered in a general education school would impede the student’s right to a FAPE or whether it caused a deprivation of educational benefit. However, the evaluation by Dr. in October substantiates that the student had, at that time, a disability that was likely to make her eligible for services. In addition, the student’s poor adjustment and grades at suggest that the general education program there did deprive her of educational benefit, particularly in light of her performance at the School the year before, her performance at RSL in the year following and the findings of Dr. . Certainly, the school’s failure to refer or evaluate the student and its decision to address the student’s needs, which they clearly understood to be in the nature of education needs, informally rather than formally significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to her daughter. Mr. testified that he considered and unilaterally determined that an evaluation was not necessary, despite the in the student’s IEP from School indicating the likelihood of a disability and its impact on her and adjustment. Failing to inform even inform the parent of their discussion and decisions or inviting her to participate or otherwise provide input exceeds the standard “significantly impeding”.

The Department sought to shift the duty of identifying and evaluating the student as a student with a disability to the Parent by noting repeatedly that the Parent never asked that her daughter be evaluated or receive services. Underlying the Department’s argument is an assumption that because her daughter had an IEP from a private school in another state, she would know how to trigger the proper procedures for obtaining an evaluation, an IEP or services in New York State. The personnel at shared the Department’s assumption, as Principal candidly acknowledged. However, there is no evidence on the record to support the Department’s assumption that the Parent knew how to obtain an evaluation or services under New York City’s processes. Nor is there any basis in common sense or shared experience for the assumption. State processes for implementation of the IDEA, particularly as to how processes are initiated, vary from state to state. Moreover, even if the Parent did know how to trigger processes, her knowledge would not mitigate the school’s failure to identify and refer for evaluation. Under the IDEA, that duty rests squarely with the school.

Thus, I find, on this record, that the Department failed to establish that its offer of a placement in a general education school constituted a FAPE.

The next consideration in a request for funding is whether the placement selected by the parent was appropriate. The parent bears the burden of proving the appropriateness of the program at the Cooke Center. (Application of a Child with a Disability, No.95-57; Application of a Child with a Disability, No. 94-29; Application of the Board of Educ., No. 93-34). The parent must show that the private school offered an educational program which met their child's education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, No. 94-29). The private school need not be approved by the state educational agency to provide instruction to children with disabilities (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993)), nor must it employ certified education teachers, or have its own IEP for the student (Application of a Child with a Disability, No. 94-20).

Parent selected a private school that caters to students with a variety of educational disabilities. As set forth in the Parent’s Case section of this decision, Dr. credibly testified as to the program of instruction and services the student receives at . Her testimony and the report cards from the school credibly established that the program provided to the student meets her educational needs and confers educational benefit upon her. That the teachers are not certified by the state does not negate the appropriateness of the program. I am persuaded by Dr. ’s testimony that a small class of students with similar abilities and disabilities is required given the student’s weaknesses in and executive functioning, and so am satisfied that the program at is not unduly restrictive. Thus, I find that the Parent has established by a preponderance of the evidence that is an appropriate program for the student that meets her educational needs and confers educational benefit.

The final consideration in an award of funding for a private placement is whether equitable considerations support the award. There is no evidence that the Parent was other than cooperative or that any of the sections of 34 C.F.R. s300. 403(d) that limit funding apply here. I find that the Parent established that she is obligated to pay the tuition and costs of the notwithstanding the waiver from payments she received upon signing the enrollment contract. Lastly, the Parent submitted credible evidence that the tuition at for the academic year 2010 -2011 is well beyond her means. Thus, I find Parent is entitled to an award of retroactive direct payment of private school tuition and costs. (See Mr. and Mrs. A v. New York City Department of Education, 09 Civ. 5097 (PGG), NYLJ 1202480385739, (SDNY, Decided February 1, 2011))

Parent has requested funding for transportation to and from . I find that the student is entitled to such finding as a related service under 20 U.S.C. §1401(9). The Parent also requested that the Department provide the student with breakfast and lunch at a reduced cost or subsidize the cost of the student’s breakfast and lunch at RSL. I find that the student is entitled to such relief as a reasonable accommodation under § 504 of the Rehabilitation Act. (C.D., C.D. on behalf of S.D., R.F., and R.F. on behalf of S.C. v. New York City Department of Education, et al Case # 1:05 –cv-07945-SHS S.D.N.Y. 2/11/09) The Department must provide the student with breakfast and lunch at or reimburse the parent $25 per week for the student’s meals.

ORDER:

The Department of Education is ordered to pay the cost of tuition and costs for the student at the School for the 2010 – 2011 academic year. Tuition is to be paid directly to the School within thirty days of the Parent’s presentation of proof of costs as requested by the Department of Education. In addition, the Department is ordered to provide the student with transportation or the cost of transportation to and from the school and to provide breakfast and lunch at the School or to reimburse the Parent for the cost of breakfast and lunch in the amount of $25 per week. Dated: June 21, 2011

SUSAN K. MARKUS, ESQ.

Impartial Hearing Officer

SKM:gc

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

PARENT:

A Impartial Hearing Request, 2/3/11, 3 pages

B Ten Day Notice w/ Fax, 9/1/10, 4 pages

C School Tuition, 4/11/11, 1 page

D Enrollment Contract, 9/8/10, 1 page

E Class Schedule, 2010-2011, 1 page

F Program Description, 3 pages

G Attendance Report Card, 1 page

H 1st Quarter Report Card, 11/10, 6 pages

I 2nd Quarter Report Card, 1/20/11, 6 pages

J 3rd Quarter Report Card, 3/11, 6 pages

K evaluation, 10/10, 19 pages

L 09-10 Final Report Card, 3 pages

M Email Correspondence, 5/1-6/1, 4 pages

N Email Correspondence, 9/24/10, 4 pages

O School IEP, 11/20/10, 12 pages

P Letter of Diagnosis, 5/27/08, 1 page

Q Evaluation, 8/9/08, 32 pages

R Recommendation, 8/9/09, 74 pages

DEPARTMENT OF EDUCATION

1 DOE Emails Re: Subpoena, 4/15/11, 3 pages 2 DOE Emails Re: Parent, 4/29/11, 3 pages 3 Due Process Complaint, 2/3/11, 3 pages 4 Due Process Response, 2/14/11, 3 pages 5 School Application Receipt, 1 page 6 Email Correspondence, 4/14-6/21, 10 pages 7 School Application, 11/13/09, 2 pages 8 School Report Card, 1 page 9 Emails, 6/1 - 6/2, 1 page 10 Tutor Letter, 9/1/10, 1 page 11 Class Schedule, 1 page 12 Parent Letter, 9/24/09, 1 page 13 DOE Subpoena, 4/19/11, 3 pages 14 DOE Correspondence, 4/21/11 - 5/13/11, 5 pages 15 File, 1 page