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: October 6, 2011

October 18, 2011

October 28, 2011

Record Close Date: November 23, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2011

Attorney — Student

Parents

Observer, Law — Student

Social worker (via telephone) — Student

CSE- District Representative — DOE

Placement Officer (via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2011

ESQ., Attorney — Student

Parent/Mother — Student

Observer, Law — Student

Assistant Principal, (via telephone) — Student

CSE, District Representative — DOE

— DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2011

Attorney — Student

Parents

Assistant Principal — Student

Teacher — Student

CSE District Representative — DOE

— DOE

The matter of . (“ ”) came before me on October 6, 2011. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. s. 1415(f)(1) was August 15, 2011. The hearing was convened at the request of the parent, which was received on August 15, 2011. The hearings were held on October 6; 18 and 28, 2011. The parties each made requests to submit post-hearing memorandum and have done so. The compliance date is extended. Appended to the record are the lists of persons in attendance and the evidentiary submissions.

Parent has requested this Hearing seeking the continued/renewed placement of their child in a state approved non-public school. The student is - classified as and is learning to and (to ) and ( ). For the 2010-2011 school year (by Impartial Hearing decision) the student attended the of (hereinafter “ ”) and this continues as the Pendency placement throughout these proceedings.

BACKGROUND

This student is currently years old and classified by the New York City Dpartment of Education (“NYCDOE”) Committee on Special Education (“CSE”) as disabled (Exhibit '1-1'). The current placement is the same District assignment ( albeit a different facility) in a class as the previous year. When the student was transitioning from (2009-2010) the Parent testifies she visited about three District schools in preparation of enrolling the child in the public school then assigned. Tr. p. 143-144. As a result of an impartial hearing decision (concerning the prior assignment) the student began to attend its current placement (CLC) mid-December

2010. In June 2011 the CSE created the current Individualized Education Program (“IEP”) (Exhibit 1) that was scheduled to commence September 7, 2011 which (placement) Parent challenges. Parent testifies she was unable to visit the current proposed 2011-2012 placement until on or about the fourth school day in September 2011 wherein she and a privately retained parent advocate/social worker toured the proposed placement and Parent found it wanting.

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a Free Appropriate Public Education (“FAPE”) was provided to this student by a properly constituted and timely CSE meeting with a timely placement that was reasonably calculated to provide more than trivial advancement from grade to grade. It programmed the student for a special class in a specialized school with related services (with specialized wheelchair compatible transportation). The student is classified as having programmed for a 12 month program which Parent does not challenge.

Parent challenges the placement of the student. The Parent alleges the student has attended for 6 months and “the individuals at recommended that he remain at as he was continuing to make progress at the school”. That upon receiving the NYCDOE recommendation for the same program assignment (in a different location) Parent had a „conversation‟ with a teacher who works in a classroom at the location of the proposed placement (over the summer) and from the information she obtained Parent believes that similar to the previous year the same program is still not an appropriate placement to meet her son‟s needs” (Exhibit T).

THE NYCDOE CASE

The IEP (Exhibit 1) indicates the attendance of the School Psychologist (also serving as District Representative) school social worker, the student‟s teacher and vice principal from the , the parent and parent‟s attorney. Noticeably missing was a mandatory parent member however during the hearing the parent‟s attorney waived the failure of the NYCDOE to provide same and/or not having obtained prior written consent of the parent to forego same. Tr. p. 60-63 and 75.

The primary NYCDOE witness was the placement officer for District who had no specific recollection concerning this student, the placement nor individual particulars of the student‟s IEP. He indicated he was responsible for placing a significant number of students during the time in question and he had no direct contact with the students. The witness‟ credentials are substantial in that he is a certified teacher (ten years) and an administrator with District years and years as a placement officer. When attempting to refresh his recollection with inquiry and documents his memory was vague but was able to describe this class ( ) to which the student had been assigned. Tr.p. 22-

27. The class profile effective September 27, 2011 (Exhibit G) indicates as of that date there was a year old attending; yet on September 13, 2011 (Exhibit D) the class roster indicates all assigned students were between and (within legal 36 month age parameters). Sometime subsequent to September 13, 2011 but as of September 27, 2011 a year old was enrolled in this class (grouped according to function). Clearly this student was not visibly in the classroom at the time of Parent‟s visit. Parent has attempted to make much of this alleged violation of the legal mandates for children in public school to be within 36 months in age and postulates this year olds presence in class automatically violates Federal law and New York State Commissioner‟s Regulations.

It is worth noting that Parent in its non-public placement seeks to enroll the student in a placement (at ) which has year olds seated with the younger children in the class (outside the 36 month age requirement about which she complains). It is this placement that Parent insists is the appropriate placement for this student as contrasted with the NYCDOE assignment (with one after added year old). Additionally, the public school placement is less restrictive environment than the Parent selected non-public school placement.

The concluding witness for the NYCDOE Dr. PhD served as the psychologist and district representative at the student‟s CSE review. His testimony was not specific on any details concerning this student as it was one of many CSE/IEP committee meetings on which he served. He performed his duties in the normal course of business and testified his standard business practice was to inform the parent that a CSE meeting could be re-scheduled if parent desired a parent member to participate.

During the course of the hearing Parent attempted to raise the issue of the classroom size (being too small) for the first time and this issue has not been previously identified in its Demand for an impartial hearing. Parent responds that at the time of authoring the complaint (August 15, 2011) Parent had not had opportunity to perform a site visit (school closed for the summer) and therefore had little opportunity to timely raise the issue. The issue first came to light during the October 18, 2011 hearing and Parent requested a subpoena to ascertain the classroom measurements. Parent had every opportunity to amend its Demand subsequent to Parent‟s site visit on September 12, 2011 and up to and including the first day of the hearing (one month later) and made no declaration of the issue. These Impartial Hearings differ from certain aspects of normal civil litigation and surprise is disfavored to a high degree and conversely reliable hearsay can be admitted into evidence. In this instance the Parent requests to leverage a newly alleged spatial flaw in the classroom facility which fails as not being properly raised within these proceedings. I decline to address the issue as not being properly raised within the demand.

Lastly, there is no evidence submitted that Parent tendered the required written notice 10 days in advance of rejecting the public school assignment and determining a non-public placement of the student as required.

THE PARENT’S CASE

The Parent files this Demand for an Impartial Hearing against the June 2011 IEP alleging the placement is inappropriate. Parent‟s takes the position that the placement offered by the NYCDOE is essentially the same as that of the prior year which was ruled inappropriate by a prior hearing decision (Exhibit S) and continues to be inappropriate. Parent‟s current challenge to the present placement is best characterized by her response to the inquiry as to whether she agreed with the placement;

“I don't agree with that determination due to the fact that 's only been at the for six months--not even a whole school year. He was at the Board of Ed for three months.

So he hasn't been in a school currently for , and how can you make that determination?” Tr. p.129-138

This primary belief is also reflected in Parent Exhibit „T‟ wherein Parent indicates that she relies upon the recommendation by staff that the student remain in its program.

Parent has voiced no disagreement with any aspect of the IEP itself and agrees with the student‟s classification. In point of fact Parent waives all the flaws in the procedure and composition of the CSE. The CSE meeting did not include a mandatory parent member nor is there any indication of obtaining Parent‟s written consent prior to the meeting however during this hearing Parent‟s attorney chose to waive this fatal flaw in the IEP process (see above). There was some allegation that the NYCDOE failed to provide proper notice of the CSE meeting however Parent and her attorney attended the meeting (voiced no complaint at this hearing) and did not request any adjournment to further prepare for the meeting. Tr. p. 192-197. In either event Parent raised no firm complaint alleging failure of parental opportunity to fully participate in the meeting and does not deny she was advised of her right to adjourn to another date.

Parent did take an opportunity to visit the school on the third or fourth day in September 2011 after school opened. Parent accompanied by the private social worker viewed the class and interviewed the school co-coordinator Ms. who guided them on their tour. Tr. p. 152-155. Parent was shown the various facilities classrooms and related services offices (spoke with one therapist) and was informed that each related service was available. Tr. p. 164-169. Parent alleges she was informed that might experience a shortage (but acknowledged that an was on staff) however the person alleged to have made the allegation was not afforded an opportunity to testify.

Parent and her social worker engaged the school coordinator during the tour of the facility. Mr. (private parent advocate/social worker) testified as to several observations;

1. “Many of the , not all of them. And I felt that, given the ratio with four adults, there was in there. And, in fact, one of the teachers did say that, it gets a little tight. I'm not really sure how they could allow the kids to effectively maneuver around in some of those classrooms, because they did look kind of small to me” Tr.p. 92.

2. “The one concern that I had was that it seemed that they were changing the students' diapers in visible places. I mean, we walked out from the classroom, there was a bathroom that was in the hallway, and there was a student on top of one of the changing tables, the door was open. And the same thing in one of the rooms, it was very visible.” Tr.p.100.

3. “I do think that the difficulty in terms of the program that they showed us is that the classrooms that had the fewer kids, the classrooms that probably would be more age appropriate, chronologically appropriate for him, those students did look a lot more in terms of--they were .” Tr. p.104

Parent‟s next witness has been the administrator (Assistant Principal) of the school for 10 years and is a certified special education teacher for 18 years possessed of an administration and superintendant state certification license. His detailed testimony described the various programs, class rooms and facilities of the . The institution has students and teachers and teaching assistant staff evincing a very high student to teacher ratio. The program as described appears to be an with to . On campus is a house facility where the classes learn adaptive skills for daily living how to operate household appliances cooking etc. The program seems like a very successful and laudable program and the student is learning according to a program entitled „Move‟ which helps him to increase his mobility. It is indicated that prior to commencing school the student had occasional command of „ as his . The witness indicates that presently (since his arrival) the student has acquired a stronger command of „ and is acquiring two step processing but progress in other areas. Contrasted at Tr. p. 399-401.

The testimony indicates that as a state approved program the credentials and qualifications of the staff are accepted as meeting state approval standards. The witness indicated the school places a high degree of emphasis on augmentative devices and indicated that where a child shows a need the school would acquire the technology. The student is becoming more familiar with the ( ) available to him and the student is growing . Tr. p. 279-286. Further testimony indicated the other children in the class are not strictly within the 36 month age mandated by state guidelines “So it's everyone's pretty much within three years, a couple are a little bit more than that.” Ibid.

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially it must be noted that there is no conclusion that this student‟s IEP failed to provide a FAPE (free and appropriate public education). There is no failure of procedure or composition of either the IEP team or the manner in which the IEP meeting was constructed. Counsel for Parent has acknowledged that any procedural flaws that may have occurred were waived (see above). In reviewing Parent‟s Exhibit S the prior hearing officer decision noted that Parent had visited a number of classroom assignments and not one of several placement was found to be „acceptable‟ according to Parent‟s evaluation. Parent re-iterates the same complaint regarding the current placement. Parent further speculates that would not be available prospectively and derives this conclusion from two „conversations‟ conducted with staff at the public school placement however no witness was called to substantiate either hearsay statement. The two referenced alleged conversations were when Parent spoke with a teacher at the public school over the summer (when school was closed) and subsequently another alleged hearsay statement made during Parent‟s visit to the proposed site in September. While Parent‟s private parent advocate/social worker referenced the same hearsay allegation (purportedly made during the September visit) the bias potential on behalf of the Parent‟s case obviates reliance upon the accuracy of these hearsay statements. The Parent was offered every opportunity to call either alleged author of the hearsay statements to verify/validate the accuracy and veracity of the statements alleged and the facts upon which they were based. No such witness was offered and the private advocate‟s supportive testimony on that issue is not sufficiently convincing evidence at this hearing of the accuracy of the facts alleged in either offered hearsay. If this were the case every parent could successfully claim a failure of FAPE/placement upon some unsubstantiated hearsay allegation against the NYCDOE. Further, any shortfall of service delivery ( .) would give rise to a future impartial hearing demand to apportion compensatory services after (not before) a diminution of service was proven. Too postulate that the student would not receive proscribed according to his IEP is mere speculation and insufficient to base a decision of failure of providing FAPE on the evidence produced herein. On the evidence presented herein I am constrained to find that the NYCDOE did in fact provide a legally sufficient IEP as a result of a procedurally legitimate CSE meeting and Parent has failed to demonstrate that the placement of the student at was improper and/or incompetent to deliver a FAPE. It may be true that the quality of the facility the educational staffing excellence and staff to pupil ratio at may be unsurpassed in content and quality but that is not the standard/circumstance upon which a non-public school placement is awarded.

A FAPE includes special education and related services designed to meet the student‟s unique needs, provided in conformity with a written IEP (20 USC sec. 1401[d][1][A]. The core of the statute is the collaborative process between parents and schools primarily through the IEP process.

“A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v.

Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. DB. 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]; E.H. v. DB. 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]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S.

at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford

Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

The student's recommended program must also be provided in the 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], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388[S.D.N.Y.

2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

Application of a Child with a Disability, SRO Appeal No. 07-10.

On the facts and evidence produced before me in this matter I find that Parent has not substantiated any procedural or substantive failure of the CSE meeting the IEP produced or the inappropriateness of the placement as assigned by the NYCDOE to deny this student a FAPE. After a full hearing on the merits of these matters this complaint is dismissed. Dated: December 5, 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 ON OCTOBER 6, 2011

PARENT

A IEP dated 12-3-10, 30 pages B IEP dated 6-20-11, 13 pages C Final Notice of Recommendation and Re-Evaluation, dated 7-6-11, 2 pages D E-mail from Mr. to attorney , and Class Profile , dated 9-13-11, 2 pages E E-mail from Mr. to Ms , Class Profile for Z52, dated 9-13-11, 1 page F E-mail from Mr. to attorney , Class Profile of , dated 9-13-11, 1 pages G at Class Profile for , dated 9-26-11, 1 page H at Class Profile for , dated 9-26-11, 1 page I at Class Profile , dated 9-26-11, 1 page J New York City Department of Education Comprehensive Evaluation, dated

2-10-10, 3 pages K Summer Progress Report, dated Summer 2011, 1 page L Educational Progress Report, dated 4-8-11, 2 pages M Progress Annual Report, dated 4-4-11, 3 pages N Annual Progress Report, dated 3-8-011, 4 pages O Annual Progress Report, dated 2-28-11, 3 pages P Program Overview, Undated, 4 pages Q School Special Education Progress Report, dated 6-22-10, 2 pages R Letter from , Program Director of School, dated 8-19-10, 2 pages S Finding of Fact and Decision, dated 11-5-10, 15 pages T Impartial Hearing Request for Student , dated 8-15-11, 2 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 6-20-11, 13 pages 2 Class Profile, class , dated 9-26-11, 1 page 3 Class Profile, class , dated 9-26-11, 1 page 4 Class Profile, class , dated 9-26-11, 1 page 5 Notice of IEP Meeting, dated 6-9-11, 2 pages

6 CSE Meeting Minutes, dated 6-20-11 – 6-23-11, 2 pages

IMPARTIAL HEARING OFFICER

I NYCDOE Closing Brief, dated 11-21-11, 7 pages II Parent Closing Brief, dated 11-22-11, 14 pages