New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 25, 2011

June 27, 2011

September 22, 2011

Actual Record Closed Date: December 2, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 25, 2011

Attorney — Student

Parents

Ph.D., Chairperson's Designee — DOE

Special Education Teacher, CSE (Via Telephone) — DOE

Assistant Principal, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 27, 2011

Attorney — Student

Parents

Ph.D., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 22, 2011

ESQ., Attorney for Parents — Student

Parents

Teacher (Via Telephone) — Student

Ph.D, Chairperson Designee, CSE- — DOE

The matter of . (hereinafter “the student”) came before me for determination on May 25, 2011, June 27, 2011,and September 22, 2011, in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on February 24, 2011. I was assigned this matter on February 25, 2011. The compliance date was extended as a result of requests for additional hearing dates in order for the parties to prepare and present their cases and for the submission of briefs. Additional time was necessary for a full, fair disclosure of the facts required to arrive at a decision in this matter. The record close date is December 2, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, . was a year old student with a classification of by the New York City Department of Education (hereinafter “DOE”) Committee on Special Education (CSE) at an annual review meeting held on April 29, 2010. The CSE recommended a program in a special class in a community school with related services (Exh. 1).

In a due process notice dated, February 24, 2010, the parent through her attorney, alleged that the CSE committed both procedural and substantive errors in creating the student’s Individualized Education Program (hereinafter “IEP”) for the 2010-2011 school year, resulting in a denial of a free appropriate public education (hereinafter “FAPE”) (Exh. 1). The parents placed their daughter at for the 2010-2011 school year and are seeking tuition reimbursement, the provision of related services and special education transportation.

THE POSITION OF THE PARTIES

The District representative, Dr. , maintained that the Department of Education (DOE) offered the student a free appropriate public education (FAPE) for the 2010-2011 school year and that the offered placement would have adequately addressed the student’s special education needs.

The parents’ attorney, , Esq., maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that is appropriate, and that the equities favored the parents, and that reimbursement of the tuition should be ordered.

DEPARTMENT OF EDUCATION’S CASE

The DOE’s representative, Dr. , presented the following documents, inter alia, Social History Update (Exh. 6), the Final Notice of Recommendation (FNR) (Exh. 9), and the Individualized Education Program (IEP) (Exh. 1).

Mr. , special education teacher assigned, testified that he conducts observations, constructs IEPS, and participated at the April 29, 2010 CSE review (Tr. at 14). He stated that he also conducted a classroom observation of the student on March 15, 2010, which lasted for approximately 25 minutes (Tr. at 16). He stated that he observed the student answering , interacting , and and on task (Tr. at 17).

He stated that during the CSE review there were no objections to the provision of related services, the classification of , nor the (Tr. at 19-20). He further stated that the information regarding the student’s academic, functioning levels was obtained from the student’s classroom teacher and discussion at the CSE review (Tr. at 20-22). He stated that the IEP annual goals addressed the student’s decoding skills, math computation skills, reading comprehension skills, and were developed after CSE discussion of the student’s present performance levels and skills needs to improve (Tr. at 23-28).

On cross, he stated he could not remember what the parents said during the CSE review, but they were active participants (Tr. at 38). He stated that he did not know whether there was discussion of testing or standardized tests at the meeting or if the members who participated telephonically had the related services reports (Tr. at 43). He stated that the student had difficulty interacting with her peers and would cry when she didn’t get her way, but that no goals were developed to address her issues (Tr. at 4647).

, assistant principal , has been employed by NYCDOE for 25 years. She stated that the school is and provides an for students (Tr. at 54). She stated that the school has special education classes which includes classes, and with classes from grade, and provided related services as well (Tr. at 55,56,58). She further stated that the school offers a specialized program for students with the classification of ( Tr. at 56). She stated that the program conducts alternate assessments instead of standardized testing, offers daily living skills, a work study setting where students learn to prepare meals (Tr. at 57).

She stated that . was offered a seat in the ( ) at , which had students in September 2010 who were classified as (Tr. at 62-63, 65). She stated that the students’ reading and math levels were , and some required related services (Tr. at 64).

She further stated that the class schedule begins with breakfast, activities for daily living (ADL), a morning message, math, weather, ELA instruction, adaptive physical education, science, literature (Tr. at 71-72).

On cross, she stated that there are approximately students in the school (Tr. at 76).

PARENT’S CASE

The parent’s attorney , presented the following documents, inter alia, Parent’s Response to Final Notice (Exh. A), Progress Reports (Exh. H), 20102011 school contract (Exh. F.

The parent stated that she participated in the April 29, 2010 IEP review meeting and she informed the other members that she felt her daughter needed a smaller class other than a , and she received a letter recommending , but informed them she was willing to visit the school, but received no response. She stated that she phoned the school directly, visited the school, found it inappropriate and wrote a letter informing the CSE of such to which she received no response (Tr. at 96, 98, Exh. B, C). She further stated that the school was too large, the functional level of the students were and that her daughter had attended the previous year, and was functioning on a higher level than those in attendance (Tr. at 97).

She further stated that her daughter learned how to read, add and subtract, and interacts more with her classmates (Tr. at 100-1).

On cross, she acknowledged that made a $ deposit toward tuition for the 20102011 school year on April 18, 2010 (Exh. E).

The student struggles with which impacts her ability to follow commands, needs to remain on task and works best with assistance (Exh. 1).

Ms. , teacher, , stated that she plans the curriculum at the school which has approximately students from grade (Tr. at 122-123). She stated that the student has an extremely , is super distractible, has language deficiencies, and prefers to interact with adults over children (Tr. at 124-125). She stated that her class had students with 3 rotating teachers and one assistant teacher (Tr. at 125). She further stated that needed a lot of support due to her high distractibility, in order to in a small, structured environment (Tr. at 127). She further stated that due to the student’s it’s difficult to hear her she needs a ; and works in groups of in the classroom (Tr. at 128). She stated that adaptations were made to instruction materials to address the student’s reading needs (Tr. at 129-130). She stated that they worked on .’s oral comprehension, sequencing, phonetics and the student showed improvement after being assessed (Tr. at 131-132). She further stated that manipulatives were used to address .’s math needs which improved as well, and that the student’s writing progressed over the year (Tr. at 133134). She further stated that school has a social skills program to address any issues and the student learned how to (Tr. at 136).

According to .’s class schedule, classes are in session from Monday to Thursday for 7 ½ hours with 5 ¼ hours of instruction. (Exh. G), on Friday classes are in session for 4 hours with 3 ½ of instruction (Exh. G, Tr. 170-171).

On cross, she stated that all of the classes are on one floor and that classes have from students (Tr. at 149-150). She further stated that the student’s literal comprehension was a , and she needed teacher assistance to complete work, and was not working independently when , and she had not completed all her grade materials, and mastered of subtraction of two digit numbers (Tr. at 162-163). She stated different methods were used to address the student’s (Tr. at 165). She stated that three rotational teachers came to class during reading, and math (Tr. at 175).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prong One- Did the New York City Department of Education offer the student a free appropriate public education for the 2010-20100 school year?

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

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and ensures that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400 [d] [1] [A]; Schaffer v. Weast , 126 S. Ct. 528, 531 [2005]); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982); see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009].

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

A FAPE is offered to a student when the Board of Education complied with the procedural requirements set forth in the IDEA, and the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Ed. v. Rowley, 458 U.S. 176, 206-7[1982]). A school district offers the student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203), The IDEA also requires that an impartial hearing officer’s decision be made on substantive grounds in determining that the student did or did not receive a FAPE (20 U.S.C. §1415 [f][3][E][i]. School districts are also required to comply with the procedural requirements set forth in the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3rd 377, 381 [2d Cir. 2003]). If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies impeded the student’s right to a FAPE, and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C § 1415[f][3][E][iii]; 34 CFR §300.513[a][2], 8 NYCRR 2005 [j][4][ii]. An impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][3][E][iii].

Although Mr. , the DOE witness, who participated in the April 2010 CSE review did not recall what comments the parents made during the review, was unable to testify as to whether there was a discussion regarding testing at the meeting or whether the witnesses who participated telephonically had the requisite documents available to them (Tr. 46-47), I find that this did not deprive the student of FAPE, or significantly impede the parents’ opportunity to participate.

The Second Circuit has determined that a “school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and it the IEP affords the student with an opportunity greater than mere “trivial advancement”(Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130, and is likely to provide some “meaningful” benefit (Mrs. B. v. Milford Bd. Of Ed., 103 F.3d 1114, 1120[2d Cir. 1997]). The IDEA, does not require school district to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2], 8 NYCRR 200.1[cc]. Also, a FAPE must be available to an eligible student “who needs special 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].

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

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

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

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

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii], 200.6 [a][3], [h][3]. State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to their levels of academic or education achievement and learning characteristics and their levels of social, and physical development and management needs (8 NYCRR 200.6[h][2].

The recommended class is made up of children who are grouped by the classification of and who are the student’s academic level (Tr. at 67-68). The “differentiated instruction” offered by the DOE does not support the student’s need for instruction which addresses her special education needs. There is no evidence of how social skills are integrated into daily lessons given the student’s issues.

Based on the evidence presented, I am persuaded that, had the student been enrolled in the DOE’s recommended placement, the DOE would have failed to suitably group the student for instructional purposes in a manner consistent with the recommended special class set forth in the student’s IEP. In total, the record supports the finding that the offered placement did not offer the student a FAPE for the 2010-2011 school year. Prong 2- Was the parents’ placement appropriate?

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance “had it offered the student a FAPE” (Burlington, 471 US at 370-71). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 9420). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. Of Ed., 231 F.3d at 105; the test for a parental placement is that it is appropriate, not that it is perfect (Warren G. V. Cumberland Co. Sch. Dist., 190 F.3d 80, 84(3 Cir. 1999). The parent presented credible testimony and documentary evidence that the is meeting the student’s special education needs, which include providing her with supports that are specially designed to address her academic, daily life skills, and attentional needs. The parents also presented evidence of the student’s academic, progress (Exhs. G, H, Tr. at 135-137). The District did not present any witnesses or evidence to contradict any of the statements of the parents or their witnesses. The parent prevails on the second criterion.

Prong three- equitable considerations

Once it has been determined that the DOE failed to provide the student FAPE, and that the parent’s placement of the student is in is appropriate, a determination must be made as to whether equitable considerations require the DOE to reimburse M.R.’s tuition for the 2010-2011 school year. Where a student is not provided with FAPE and his private school placement is appropriate, an impartial hearing officer has “broad discretion in considering the equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112.

The IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04-071.

Here, the record reflects that the parent fully cooperated with the DOE. The mother participated in the April 2010 CSE review. The parent also visited the DOE’s offered placement and notified the DOE that she found the placement inappropriate and that it would not meet her daughter’s needs.

Based on the record before me, the equities weigh in favor of the parents and the DOE shall reimburse the parents for the portion of the 2010-2011 tuition for the student at . Based on the days school is actually in session, and the days the student actually attended, the DOE shall pay the percentage of tuition that reflects the number of hours of the program minus the 1 ½ hours per week for and therapies.

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

ORDERED, the Department of Education is to reimburse the portion of the tuition for the 2010-2011 school year;

ORDERED, the student was entitled to receive special education bus transportation from the Department of Education during the 2010-2011 school year.

ORDERED, the Department of Education shall reimburse the parents within 15 days of the parents’ submission of proof of payment. Dated: December 6, 2011

_________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Response to Final Notice, 5/11/10, 3 pages B Parent Letter, 8/2/10, 1 page C Letter, 9/16/10, 2 pages D Tuition Affidavit, 6/22/11, 1 page E Proof of Payment, 2010/2011 7 pages F Enrollment Contract, 2010/2011, 1 page G 2010/2011 Class Schedule, 1 page H June 2011 Progress Report and Report Card, 3 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 IEP dated 4/29/10, 19 pgs. 2 Notice to Amend the IEP dated 8/24/10, 1 pg. 3 Medical Form dated 4/27/10, 3 pgs. 4 Report dated 2/14/10, 1 pg. 5 Report dated 2/10, 1 pg. 6 Social History Update dated 2/3/09, 1 pg. 7 Classroom Observation dated 3/15/10, 2 pgs 8 CSE Minutes dated 4/29/10, 1 pg. 9 Final Notice of Recommendation dated 7/27/10