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: June 7, 2011 Actual Record Close Date: September 2, 2011 Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 7, 2011

Attorney — Student

Mother — Student

Father — Student

Student/Child — Student

Attorney — Student

Professional — Student

Executive Associate/ School — Student

Department Designee — DOE

School — DOE

— DOE

INTRODUCTION

On June 7, 2011, I conducted hearings pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. section 1415 (f) (3) regarding a Special Education Program for students with a disability, New York City Impartial Hearing Case # The hearing was conducted at the Impartial Hearing Office, New York City Department of Education, and 131 Livingston Street, Brooklyn, New York.

The student‟s parents submitted a request for an impartial hearing through their attorney on April 4, 2011. At the hearing, the Department of Education, hereinafter referred to as “The Department” was represented by and the Parent was represented by its counsel, Esq. A list of witnesses and documents received into evidence is attached to this decision.

BACKGROUND

The child hereinafter referred to , is an ) year old child who attends grade at the School, hereinafter referred to ” which she has attended since October 2009. She was diagnosed with and . At a meeting of the Committee on Special Education, hereinafter referred to as the “CSE”, recommended that receive various at home services necessary to accommodate the physical conditions associated with her disabilities, including but not limited to -language/ sessions around basis, in addition to many other services recommended. I t is the Parents‟ position that in November 2010, the CSE improperly removed the above mentioned and other services in violation of IDEA.

THE PARENT’S POSITION

The Individualized Educational Plan, hereinafter referred to as the “IEP” dated November 1, 2010 was prepared with virtually no participation from parents, and without adequate consideration of her needs. Moreover, it lacks the related services necessary for to “receive meaningful educational benefit.” Accordingly, the Parents seek the complete reinstatement of the IEP dated September 17, 2009 and reimbursement in the sum of $10,440, for services provided to the by , a , from July 8, 2010 through May 12, 2011.

THE DEPARTMENTS POSITION

The Department maintained that the child was properly classified, that the IEP set forth appropriate goals and recommendations for the child and was reasonably calculated to enable the child to obtain meaningful educational benefits with services to appropriately meet ‟s unique needs. Additionally, The Department was of the position that home-based services are the most restrictive services on the continuum; based on the foregoing, the Parent‟s program of home-based related services were too restrictive.

THE PARENTS CASE

The testimony established that “ ” is girl who has a diagnosis of and . Tr. 15:13-15, 17:2-3, 24:13, 24:17-19; Ex. Y; Ex. Z. These conditions render and in . Tr. 101:2-5; Ex. G, at 108; Ex. Y. . Tr. 26:4-6, 101:5-6; Ex. G, at 107-108, 110. In school, she completes written assignments and tests through to another person or to . Tr. 101:1015; Ex. G, at 107-108, 110.

Witnesses have established that in a number of ways, making a full regimen of necessary. Her , and Ms. , the noted “ability to speak is directly affected by her oral .” Ex. G, at 108. cannot easily project her voice, as she has and that would allow for . Tr. 110:12-21; Ex. H, at 115. Ms. noted, “ .” Ex. G, at 106.

Ms. testified and stated that her invoices from July 1, 2010 through the end of May 2011 have totaled $11,160. Tr. 112:3-25, 113:1-3. Pursuant to my pendency order, the Department was compelled to pay beginning on May 13, 2011. Tr. 7:2-23 and it was agreed that the amount in dispute could be finalized after the hearing. Tr. 113:4-6. The total for the , from July 8, 2010, through May 12, 2011, is $10,440

The evidence established that since the child , has received that facilitate her needs: (1) ; (2) ; and (3) . Tr. 27:2-18, Ex. B, at 028; Ex. C, at 029; Ex. D, at 071; Ex. X, at 160. , . Tr. 99:23-25, 100:1-8. By making also enhances her . Ex. G, at 108. help , maintain and be able to . Tr. 110:12-21; Ex. Y.

and sessions reduce the , allowing her to and periods, . Tr. 110:22-24, 111:5-6., Ex. H, at 114; Ex. Z. , and her without , her . Ex. G, at 108; Ex. H at 108. “ ‟s and ,” and she “has at times become . . . .” Ex. G, at 108. Lack of consistent without . Id. at 110. Ms. attributes this pattern to the fact that condition is “ ” such that, after breaks in therapy, “her .” Tr. 104:17-19. makes her “ especially when when .

. . .” Ex. H, at 113. An in- “ upon returning from weekends/vacations.” Ex. L, at 123 and an . Ex. I, at 117. , and recommended dual services with continuous, yearround . Ex. J, at 119-120; Ex. K, at 122-123; Ex. Y; Ex. Z. recommended that an increase in continues to grow. Ex. K, at 123.

Recommendations of have been part of annual IEP since her enrollment in preschool, in 2003. Tr. 27:2-18; Ex. B, at 028; Ex. C, at 029; Ex. D, at 071; Ex. X, at 160. She had received in all , . Tr. 27:2-18. According to , hereinafter referred to as Ms. the IEP had been determined through “ teachers, therapists, doctors” and parents. Tr. 35:12-15. Ms. described the typical process as follows:

My husband and myself would meet with the District Representative, . . . the that were the home providers would give us goals, progress notes, and recommendations and we would submit them to the District; they would have the in-school notes, and progress reports, and goals, and their recommendations and if we had anything from that needed to be changed, to be added, removed, modified, it was brought to the table . . . . We would hand them the support documentation that we had if it were logical and reasonable, wherein documentation showed that supports were necessary for , they were added…..nothing was ever removed unless it was agreed upon, …if services were either no longer necessary or if she or stuff like that, but it was always a team effort…..If we had walked into that meeting with supporting documentation or concerns, they were addressed, and they were taken into consideration, and we always came to an agreement. Tr. 35-37.

In the fall of 2009, as grade, she left her school since and enrolled in the (“ ”). Tr. 31:7-10, 13-15. The administrators reviewed IEP and told her parents to modify it in certain respects, so that it would better reflect the new school‟s services. Tr. 43: 12

17. The requested modifications did not include the or of at- and . Tr. 43:18-25, 44:122, 46:22-25, 47:1-13.

On September 17, 2009, parents met with the IEP team from and changed then-current IEP in the manner suggested by . Tr. 42:10-25, 44:3-The result of the meeting was an IEP to which parents agreed (the “Original IEP”). Tr. 85:19-21, included of each type of therapy mentioned above – – every week of the year. Ex. D, at 071.

Approximately, two months later, on November 18, 2009, a second meeting with the Department took place. Ex. 4, at 1. The Parents received the notice of the meeting and Ms. called to reschedule because both she and her husband had expected to be busy throughout the day. Tr. 76: 8-14. In response , Executive Associate for and at told Ms. that nothing substantial would take place at the meeting, because the Parents had made the changes requested. Tr. 76:15-22; Ms. had described the meeting as a formality. Id. Ms. had given Ms. the cell phone number for father, hereinafter referred to as Mr. , in the event parent contact became necessary. Tr. 76:23-25, 77:1-4. Neither parent attended the November 18, 2009 meeting in person. Ex. E, at 083.

As a result of the November 18, 2009 meeting, all of sessions were removed from her IEP, Ex. 4, at 2. The IEP team this fact. Tr. 78:4-24. Mr. protested and refused to accept these changes. Tr. 78:24-25, 79:1-4 and immediately contacted his wife, who, in turn, called , a school who was in charge of the IEP meeting. Tr. 79:7-25; Ex. E, at 083. Ms. told Dr. the terminated services were necessary and that she would not accept the changes. Tr. 80:4-9. Dr. replied that he would schedule another meeting and that the new IEP (the “Modified IEP”) would not take effect in the interim. Tr. 80:1017.

The Parents did not receive a copy of the IEP that was generated at the November 2009 meeting and did not hear from Dr. or anyone else from the Department for approximately one year. Tr. 80:25, 81:13-21. During the remainder of the 2009-2010 school term, continued as specified on her received payment from the Department Tr. 81:2-7, 95:9-13.

As of July 2010, Ms. still had not received any (“ s”) for the summer months. Tr. 95:12-13, 105:9-13. Ms. contacted the Department to inquire about the summertime s and was told that there would be a delay, as the person in charge of the process had retired. She continued in her efforts to contact the Department during the summer and fall of 2010, but to no avail. Tr. 106:1-10.

The evidence established that on November 1, 2010, that the Parents learned that the Department had unilaterally modified ‟s IEP to terminate funding for at-home therapies (and remove various in-school and transportation services and recommendations that were in the Original IEP). More particularly, Dr. provided a copy of the “Modified IEP” and stated that it was s “current IEP”. Tr. 85:8-18. The Parents claimed that this was the first time that they were made aware that the “Modified IEP” was being considered the “Current IEP”, and it was directly contrary to Dr. ‟s statement to Ms. R, on November 18, 2009, that the “Modified IEP” would not be adopted. Tr. 84:24-25, 85:1-23; see Tr. 79:24-25, 80:1-25. The Parents objected, noting that the “Original IEP”, dated September 2009 should be considered the current IEP. Tr. 85:18-

22. Despite their objections, Dr. insisted that the “Modified IEP” from the November 2009 meeting was ‟s current IEP. The Parents decide that their only recourse was to request an impartial hearing. Tr. 90:24-25, 91:1-4.

Without new ‟s to cover the summer months, was unable to receive or at any time after July 2010. Tr. 120:8-16.; however she continued to receive therapy, through summer 2010. In November 2010, when Ms. became aware that the Department had apparently adopted the Modified IEP, thereby removing funding for all therapies, she continued to provide services because she believed that “a great injustice [had been] done, and that it would eventually be corrected because . . . there was absolutely no justification for taking therapy away from .” Tr. 108:8-12. For the period July 8, 2010, through May 12, 2011, Ms. provided services valued at $10,440.00. Tr. 112:7-25, 113:1-3; Ex. R, at 138-147. 3

As stated above, on June 7, 2011, the Department consented for payment to Ms. through . See Tr. 107:2-7. Ms. stated that it was “ for [her] to receive an for July and August in September or October.” Tr. 105:22-24. At the impartial hearing on June 7, 2011, as per my Order of Pendency services contained in the Original IEP were to be reinstated including and , with the Department to cover expenses effective May 13, 2011. As of July 12, 2011, the Parent maintained that the Department still had not issued the requisite ‟s that would enable to start receiving services. has not received any ator , and her that has been providing services has not been paid. As stated above, the was asked directly whether “ could make meaningful educational progress” without . Tr. 113:24-25, 114:1-2. Ms. responded, “No,” and provided a three-part explanation: (1) ; (2) without continuous will ; and (3) in order for her to , , and . Tr. 114:3-13, 101:12-15, 19-20. This testimony was consistent with letters Ms. had previously written on s behalf, describing the therapy. Ex. G, at 107-108.

At the hearing, the Department did not cross-examine Ms. and it did not present its own testimony from other . Additionally, no participated in the creation of the Modified IEP. Ex. 4, at 1. As per the minutes from the November 18, 2009, meeting, the only speech-related information considered was a “screening” performed by in 2008 which was incorrectly described in the minutes as “an evaluation”. Ex. 4, at 2; Ex. 9, at 1. The screening acknowledged that was sessions “for skills,” Ex. 9, at 1, and there is no recommendation for discontinuing those sessions. Parents maintain that light of the fact that therapists recommend only services, Tr. 73:25, 74:1-2, 9-12, the statement at the end of the screening, that “ is not recommended,” Ex. 9, at 2, should be taken to mean only that in- was not recommended. The screening was made assuming would maintain at least the she had at the time – which, of course, depended on her . The Parent argued that the Departments representative‟s statement that the Modified IEP‟s level of services is appropriate, Tr. 21:13-18 is unsupported.

‟s physicians have reported that has as a result of the and therapy sessions. , has noted increasingly of , and that her constant pain affects her ability to learn in school. Ex. Y. physician, , notes that the full services is necessary to support ‟s functional ability in and out of the classroom, and to help avoid a and , . Ex. Z. Moreover, ‟s , Dr. , has noted that s ability to achieve requires , with of the most . and therapies directly relate to improving ‟s and , so that she can have proper access to , including but not limited to access to . Ex. K, at 122.

Ms. testified that she has “noticed a steady decline in ‟s abilities,” beginning when ‟s at-home and stopped. Tr. 110:13-14. Ms. characterized this as “ .” Tr. 117:5. ‟s , also testified that ‟s since sessions stopped. Tr. 134:22-25, 135:2-

6. Dr. has reported that “since [ ] stopped her in July of 2010 . . . has also deteriorated and is not as distinct as it was, and she is having more trouble with .” Ex. Y.

Parents counsel maintained that there are two reasons why less and have caused ‟s speaking ability to deteriorate, according to Ms. : (1) is less able to maintain the necessary for ; and (2) she is that have become necessary. These had . Tr. 116:7-12, 111:8-16. Additionally, Ms. testified that ‟s had been interfering with ‟s ability to . Tr. 129:14-25, 130:1-10. ‟s primary physician, Dr. , has attested to the increase in both her and the this has had in her ability to learn. Ex. Y.

According to the minutes of the November 2009 IEP minutes the author of the Screening report did not attend the meeting. The author of the Initial Evaluation did attend that meeting, but she did not testify at the impartial hearing. No document recommended terminating at-home services; Ms. testimony, based on her of experience as an administrator, stated that speak only to the therapy that can be provided in school, and do not make recommendations on what may be necessary. Tr. 73:25, 74:1-2, 9-12.

THE DEAPRTMENT’S CASE

Dr. testified that he attended the IEP meeting and recalled discussing the program but not all of the details and that Mr. understood the recommendations; he stated that he would discuss it with his ). Tr. at 62. Dr. discussed the purpose of the athome and in-home services. Tr. 67. He further testified as to the appropriateness of frequencies for being able to access the curriculum at school. Tr. 67. Additionally, Dr. stated that the services offered in the home were and discussed the Department‟s ability to provide the amount of services needed for educational purposes. Tr. 67. Regarding the distinction between services, Dr. stated that if the school is providing the services that the child needs for educational reasons, and then the other services would be therapeutic. Tr. 68

FINDING OF FACT AND CONCLUSIONS OF LAW

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400-1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d] [1] [A]; A FAPE includes special 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]).

I will not repeat the details of evidence here, but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all witnesses who testified at the hearing.

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child‟s parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ “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 developed a proper IEP (id At. P. 370-371).

The burden persuasion in an administrative hearing challenging the IEP is on the party seeking relief (Schaffer v. West , 126 S.Ct. 528, 537 [2005]).

If it is established that the Department‟s program is inappropriate for the child, than under the second criteria of legal standard, the child‟s parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 9394; Application of a Child with a Disability, Appeal # 95-57, in order to meet the burden the parent must show that the services were “ proper under the act” (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child‟s special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parents private placement is that it is appropriate not that it is “perfect” (M.S. v. Bd. of Educ. 231 F. 3d 96, 105 [2d Cir 2000}, cert. Denied 532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Disability Appeal No. 02111). While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21, 26-17 [1st Cr. 2002}. The final criterion for an award of tuition reimbursement is that the petitioners‟ claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff‟d 2006 WL 2334140 (2d Cir 2006); Frank G. 459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ. 226 F. 3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required}) such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties‟ positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530, 5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] , aff‟d, 471 U.S. 359 [1985]; with respect to equitable considerations, 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 finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412 (a)(10)( C)(iii). Wareen

G. v. Cumberland Co. Sch. Dist. 190 F. 3d 80, 86 (3d Cir. 1999); see Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv)(I)(cc)(II)(bb).

The Department maintained that there was no deprivation of FAPE, as there is a substantively and procedurally valid IEP proposed which was developed by the CSE to address ‟s identified special education needs. Dr. a district representative & School Psychologist who participated at both ‟s 11/18/09 Annual Review meeting and ‟s 11/1/10 Annual Review meeting testified that the review team that developed ‟s IEP at each of these meetings was properly constituted, in so much as all of the required team members, were either present or participated telephonically.

Those in attendance at the November 18, 2009 Annual Review meeting included Mr. , (who participated telephonically), the parent; , Ph.D., in dual capacities as the district representative & , Social Worker; Special Education Teacher; , Acting Principal; , , Ph.D., and .

Additionally, the Department maintained that there is nothing in the record to suggest that the parent did not have a meaningful opportunity to participate in the CSE‟s review of ‟s case and the Parent never sought to stop the meeting or to reschedule. Dr. testified that he did recall discussing the program and what the CSE was recommending, Tr. at 62. and that Mr. understood the recommendations, and that he stated that he would discuss it with his wife, (Ms ). Tr. at 62.

Nevertheless, it is not infrequent that the review team, including the parents, is unable to reach a consensus. This is clearly contemplated by the IDEA‟s procedural safeguards that provide parents with an avenue of relief (whether it be mediation or an impartial due process hearing) when such disputes arise. See 20 U.S.C. §1415; see also Application of a Child with a Disability, Appeal No. 03-046 (noting that the entire regulatory scheme presumes there will be instances in which a consensus cannot be reached).

After considering all the evidence, I find that it is undisputed that when the CSE convened in November 18, 2009 to determine if continued to be a student with a , was receiving some of her . As the Parent‟s Ex. E indicates, as a result of the November 18, 2009 IEP, the team recommended that be classified with and recommended placement in a New York State approved Non-Public School with the following related services for a setting with related services as follows:

1:1 Services, a week in ; and

1:1 , sessions; and

1:1 ; and

1:1 fte ; and

1:1 Paraprofessional

The IEP developed as a result of the November 18, 2009 meeting, described ‟s present levels of performance in achievement and learning characteristics, performance, , and management needs. The IEP also included ‟s disability classification, measurable annual goals, short-term instructional objectives and benchmarks, a recommended special education program and services, and transportation. Parent‟s Ex. E. The Department was of the position that the recommendations made by the CSE on November 18, 2009 were developed in conformity with the least restrictive environment provisions contained within the Commissioner‟s Regulations and were based on ‟s individualized educational needs. Undoubtedly, the IEP developed by the CSE on November 18, 2009 is both substantially and procedurally valid.

Additionally, the Department maintained that the parent has failed to prove that the related services provide in the home are appropriate to meet ‟s unique special education needs. As the Department's program clearly would have conferred meaningful educational benefit, we respectfully submit that it is unnecessary for the hearing officer to even scrutinize the appropriateness of the parent‟s selected services. See Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998), citing Board of Education v. Rowley, 458 U.S. 176 (1982). The Department also claimed that the Parent‟s case fails on Prong 2 of the Burlington/Carter analysis. The Department designee stated that the hearing clearly demonstrated that has no academic delays Parent‟s Ex. E-20 of the student‟s IEP dated November 18, 2009 and that Ms. testified that is functioning on a level. Tr. 129. Based upon the evidence and this testimony, the Department claims that it made an appropriate program recommendation in the least restrictive environment.

Further, The Department is of the position that the program that the parents seek to have had continue with for the 09-10 school year and extending to the present time, specifically home-based related services, violates the least restrictive environment test just declared by the Second Circuit in P. v. Newington Bd. of Educ. 546 F.3d 111; 2008 U.S. App. LEXIS 21099, *3. (2d Cir. 2008). In P. v. Newington Bd. of Educ., the United States Court of Appeals for the Second Circuit formally adopted a standard for determining when a school district has fulfilled its responsibility to educate a student with disabilities in the least restrictive environment (LRE). In this decision, the court adopted a “flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.” The court endorsed the test set out in the Third Circuit Oberti case, which listed several factors to be considered in determining whether the child can be "satisfactorily educated" in regular education: (1) whether the school district has made reasonable efforts to accommodate the child in the regular classroom, (2) the educational benefits available to the child in a regular class, with appropriate aids and services, as compared to the benefits provided in a special education class, (3) the possible negative effects of the inclusion of the child on the education of other students in the class. Also, home-based services are the most restrictive services on the continuum. Based on the foregoing, the parent‟s chosen program of home-based related services does not pass muster under the Second Circuit‟s least restrictive environment test.

The Parent maintained that needs the related services contained in the original IEP in order to receive educational benefits and the requires the related services contained in the original IEP in order to receive educational benefit. Parents counsel stated that requires to receive educational benefits At ‟s impartial hearing on June 7, 2011, the Department authorized payment to Ms. , the child‟s through s. See Tr. 107:2-7 (citing Ex. N). The Department finalized these documents each year between later than the start of the services they authorized. Ex. N, at 125-133. At the hearing, Ms. stated that it was “ for [her] to receive an for July and August in September or

October.” Tr. 105:22-24. This testimony is consistent with a letter Ms. wrote on ‟s behalf, earlier this year. Ex. G, at 110. ‟s other experienced similar delays in payment. See Ex. O, at 134; Ex. P, at 135.

I find that the Department failed at the hearing: (1) to contest evidence that the termination of and have interfered with ‟s ability to receive educational benefits; and (2) to provide evidence that the Modified IEP‟s are appropriate. More particularly, the development and implementation of the modified IEP did not comply with the procedures if the IDEA. Independently of ‟s need for the related services in her Original IEP, the development and institution of the Modified IEP failed to satisfy the procedural requirements of the IDEA.

The development and implementation of the “Modified IEP” violated 20 U.S.C. §1414(d) (3) (A) (ii) The IDEA requires each IEP team to “consider the concerns of the parents for enhancing the education of their child.” 20 U.S.C. §1414(d) (3) (A) (ii). The IEP team did not do so, on the contrary, by misrepresenting the significance of the November 18, 2009, meeting to Ms. , the Parents were not be part of the making process.

Although, the IDEA does allow for “ , such as. conference calls,” 20 U.S.C. §1414(f), concededly, Ms. gave her , but she did so having already alerted to the fact that neither she nor her husband could participate – not to say attend – on the designated day, and requested an alternative date. I agree with the Parents argument that the cell phone number was provided as a precaution – to be used in case an unexpected issue arose. The termination of services that had been in place for could not have been an unexpected issue for the rest of the IEP team. I concur that the possibility that longstanding services could be removed warranted a rescheduled meeting in this situation. The Department was made aware that the Parents objected to the proposed modifications discussed at the November 18, 2009, meeting, the Parents nevertheless received assurances from Dr. that such a substantial change would not take place and the they had no reason to expect otherwise, having witnessed a ratification of those services just two months earlier, and having modified ‟s IEP exactly as had requested.

I also agree with Parent‟s counsel that Dr. ‟s phone call to Mr. did not satisfy §1414(d) (3) (A) (ii). According to Ms. Ms. s testimony, the phone call was perfunctory, lasting no more than two minutes. Tr. 81:25, 82:1-14. Dr. essentially described to Mr. the decision after it had been made. Tr. 82:1-14. I also find that the IEP meeting, on November 1, 2010, did not satisfy §1414(d) (3) (A) (ii). The Parents were misled as per Ms. ‟s conversation with Dr. after the November 2009 meeting; the Parents history of collaborating with teachers and therapists on IEP development; the continuance of the Original IEP‟s services throughout the 2009-2010 school year; and the Department‟s failure to provide the Parents with a copy of the Modified IEP or even alert them to its existence, the Parents reasonably expected the Original IEP to be the baseline for the November 2010 IEP meeting; they were denied this opportunity, they were effectively denied their right to be a part of the IEP team.

Dr. , who led the meeting, testified that, “in most cases, the would be ,” and thus not a valid part of an IEP. Tr. 68:1-3. He conceded that “could be educational,” and thus includable, “if they could not be provided in the school, and the said [the student] needed to have those services or the number of services and [the school] couldn‟t provide it.” Tr. 68:3-8. ‟s long history of exemplifies such a situation. At the hearing, when asked by Department representative whether “needs services at home, as well as school,” Dr. responded, “Well, I don‟t have an opinion about it. I just went by what the told me that she needs in order to access the curriculum at the school.” Tr. 57:5-11. By history, ‟s have reported that her limits her access to educational benefits in two primary ways: (1) , and ; and (2) her , , . For , received both and -based to these problems , , and the and . Even have caused ‟s in all these areas to . The Department has offered no evidence to dispute any of these points

A Hearing Officer May Find That the Procedural Violations Denied a Free and Appropriate Public Education Under the IDEA, In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies –

(I) impeded the child‟s right to a free appropriate public education; (II) significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents‟ child; or

(III) caused a deprivation of educational benefits. 20 U.S.C. §1415(f) (3) (E) (ii).

The misrepresentations of and the Department “significantly impeded” the opportunity of Mr. and Ms. to participate in the development of ‟s IEP. And, as discussed in Part II.B, above, the marginalization of ‟s parents in the IEP process led to the creation of a document that did not sufficiently account for ‟s – in particular, the dependence of her , and . As a result, as described in Part I, was deprived “of educational benefits,” and her right to a FAPE was “impeded.”

Additionally, retroactive Payment is Permissible Under the IDEA .A hearing officer may order the Department to pay tuition retroactively to a private school into which a parent has placed her child after having unilaterally removed the child from public school. See D.A. v. N.Y. City Dep‟t of Educ., No. 09 Civ. 5097 (PGG), 2011 WL 321137, at *21 (S.D.N.Y. Feb. 1, 2011). Such a payment “covers „expenses that [the school district] should have paid all along.‟” Id. at *2 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Sch. Comm. of Burlington v. Dep‟t of Educ., 471 U.S. 359, 370-71 (1996) . The same remedy should be available where, as here, the parents have stopped short of placing their child into a different school but have compensated for a necessary service improperly terminated by the DOE.5 .The Parents must Satisfy the Doctrinal Preconditions for Retroactive Payment and all three conditions must be satisfied in order to validate a retroactive payment award. D.A., at *21 (characterizing the “Burlington factors” as preconditions to the remedy). I find that the Parents meet all of the above criteria.

First, the student must have been denied a FAPE. D.A., at *10. As discussed in Point I, above, the replacement of ‟s Original IEP with the Modified IEP denied a FAPE, because her , services were thereby terminated. The Factual Background describes how ‟s speech therapy, in particular, is critical to her ability to access educational benefits. Under the Modified IEP, would have therapy. The Parents have submitted uncontested evidence that without any , would have been unable to take tests or generally participate in school. Under such circumstances, would not have been receiving a FAPE. Second, the parent‟s alternative placement must be “appropriate.” D.A., at *12. In other words, the placement must be “„reasonably calculated to enable the child to receive educational benefits.‟” Id. at *12 (quoting Frank

G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982))). Ms. had been providing with sessions of each week since 2005. See Ex. N. and provided this service at the same frequency after the Modified IEP took effect. See Ex. R. At the hearing, Ms. testified that the scope of her services had remained “pretty consistent” over time. Tr. 100:18. The Department has presented no evidence that any party has ever considered Ms. ‟s services not to be appropriate. In light of the uncontested facts about ‟s speaking ability, Ms. ‟s services are not only appropriate but necessary for to “receive educational benefits.” Lastly, the equities must favor the parents. ., at . Here, they most certainly do. The Parents participated fully in the September 2009 IEP meeting, complying with all of teams requests. They were then denied the opportunity to address at the November 18, 2009, meeting. They protested not merely the content but the validity of the Modified IEP immediately upon learning of its existence. They had no reason to object again until the November 2010 IEP meeting; because they were told any changes to the Original IEP would be discussed before taking effect. And the Modified IEP did not take effect immediately.

The IDEA defines “free appropriate public education” as “special education and related services . . .” 20 USC § 1401(9) (emphasis added). Additionally, hearing officers have awarded prospective “make-up” services to students. See Application of a Child with a ; Appeal No. 11-004, at 8-9 (N.Y.S. Office of State Review) (available at http://www.sro.nysed.gov/decisionindex/2011/11-004.pdf, last accessed July 7, 2011) (cataloguing awards of “make-up” services). Ms. testified that this was her first impartial hearing. Tr. 37:6-7.

Requires Speech Therapy to Receive Educational Benefit

At ‟s impartial hearing on June 7, 2011, Department authorized payment to Ms. through s. See Tr. 107:2-7 (citing Ex. N). The Department finalized these documents each year between later than the start of the services they authorized. Ex. N, at 125-133. At the hearing, Ms. noted that it was “not atypical for her to receive an for July and August in September or October.” Tr. 105:22-24. This testimony is consistent with a letter Ms. wrote on ‟s behalf, earlier this year. Ex. G, at 110. ‟s other therapists‟ experienced similar delays in payment. See Ex. O, at 134; Ex. P, at 135.

Parents maintain that the totality of the evidence (1) both procedurally and substantively, the Department failed to offer a FAPE that was “reasonably calculated” to meaningfully address ‟s s unique and individual needs (Prong I); (2) ‟s program and services supports amply meets the Second Circuit‟s “reasonably calculated” test for Prong II; and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III).

With respect to Prong II I find that ‟s program is “reasonably calculated” to provide a meaningful educational benefit. It is well settled that the parent‟s unilaterally secured services are to be measured against a somewhat less stringent “reasonably calculated” standard for purposes of Prong II. See Frank G. 459 F. 3d 356 (2d Cir. 2005). The “reasonably calculated” test is primarily prospective in nature. The parent‟s Prong II choice need not be perfect, and it need not necessarily be in the child‟s least restrictive environment. Id. Prong II services that are secured by parents are not received to furnish every special service that the child may need and to qualify for reimbursement relief, the program and services must simply represent “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction” Id. At 365 (citing Rowley, 458 U.S. at 256. The Parents have established that their child requires from teachers and in order to succeed in the mastery of skills. The record established that is learning and able to attend with direction.

There are no compelling equitable considerations under Prong III that would preclude or diminish the reimbursement for relief that is being requested. Furthermore, the equities weigh in favor of ‟s parents and I award reimbursement as set forth in my order. Dated: September 6, 2011

_____________________

GARY PETERS, ESQ.

Impartial Hearing Officer

GP:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Description # of Pages A Impartial Hearing Request, 4/4/11 5

B IEP, 7/22/04 23

C IEP, 11/1/05 21

D IEP, 9/17/09 32

E IEP, 11/18/09 11

F IEP, 11/1/10 13

G Independent Letters, 03/09, 01/11, 04/11 6 H Independent Letters, 10/08, 03/09, 08/09 4 I Independent Letters, 07/04, 06/06 2 J Independent Physician Letters, 07/04, 02/09, 05/11 3 K Independent Letter, 5/1/11 2 L Public School Report, 3/18/08 1 M Public School Report, 3/17/08 1 N , 09/2005 through 09/2009 9

O RSA, 7/23/09 1

P RSA, 10/17/06 1

Q Invoice List, 2009 through 2010 2 R Billing Statements, 2010 through 2011 10 S DOE List of Related Services Provided in July and August 3

2009 T Independent Vision Evaluation, 11/23/10 2 U Screening, 12/16/08 2 V Evaluation, 10/28/09 3 W Assessment, 11/6/09 2 X CPSE Initial Recommendation, 8/26/03 2 Y Medical Report Dr. , 5/4/11 11 Z Medical Report Dr. , 6/3/11 1

DEPARTMENT OF EDUCATION EXHIBITS

Exhibit Description # of Pages

1 Draft IEP, 11/9/09 7

2 CSE Review IEP, 9/17/09 30

3 Annual Review, 11/18/09 11

4 Minutes, 11/18/09 2

5 Report Card, 2009/2010 1

6 Screening, 12/16/08 2

7 Update, 10/27/09, 1

8 Initial Evaluation, 10/28/09 3

9 , 12/16/18 2

10 School Functional Vision Assessment, 11/6/09 2