Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 21, 2011

October 7, 2011

Actual Record Closed Date: October 20, 2011

Hearing Officer: Michael Kennedy Lloyd, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 21, 2011

Advocate — Parents

Parents

Parents

Director Director Student Services NYCDOE Special Ed Teacher NYCDOE — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 7, 2011

Advocate — Parents

Parents

Director Student Services NYCDOE — Parents

The matter of came before me on September 21, 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 22, 2011. The hearing was convened at the request of the parent, which was received on August 19, 2011. The hearings were held on September 21, 2011 and October 7, 2011. The parties made no request to submit post-hearing memorandum. 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 placement of their child in a state approved non-public school. Parent has at the two latest Committee on Special Education (CSE) meetings (Exhibit E and 4) requested a more restrictive placement in a non-public school than the CSE determined appropriate and has disagreed with the NYCDOE‟s assignment of a for school. The NYCDOE has assigned the student to an ) class with a . Parent deems the Individualized Education Program (IEP) inappropriate to foster the independence of the student who is commencing his year in school. The student is currently attending the state approved School as a Parental placement.

BACKGROUND

This student is currently years old and classified by the NYCDOE CSE as other health impaired (Exhibit 'E-8'). The student has historically been a public school student and this year he is school after having made schools (public and parochial). Tr. 159-

162. During the school application process (fall 2010) the Parent met with student‟s school based support team and expressed several concerns including the diminution of services at a time the student‟s (Exhibits „7‟ and „8‟ contrasted with Tr. p.164-170). The student‟s IEP provides for modified promotional criteria at grade English and Math standards.

The student applied and was accepted at the School a state approved special education program and is currently enrolled in a special class (without a para) as a parental placement. The Parents are requesting a P-1 letter directing this placement in this program. The NYCDOE convened a CSE meeting and created an IEP dated „to be implemented‟ September 8, 2011 (Exhibit 4-1). Parents submit an IEP dated „to be implemented‟ June 14, 2011 (Exhibit E-1). Neither IEP submitted carries the date of the CSE meeting nor any signature page attesting/identifying any attendees present.

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a free appropriate public education (FAPE) was delivered to this student and a proper CSE meeting was held. It presents as evidence Exhibit 4 an IEP dated September 8, 2011. The student was programmed in a class (with related services of ) and the additional support of a to assist him in overcoming . The student is noted to be functioning in the range (Exhibit 3.3 and 3.6) in some areas and the CSE has determined upon evaluation by his that “he has reached a ” and that his are “no longer academic interference that require therapy.” Exhibit „7‟.

Notwithstanding the lack of a convening date of the IEP on the document and the lack of any attached signature page identifying the attendees of either CSE meeting the NYCDOE alleges a FAPE has been provided. The NYCDOE restored the eliminated in September, 2011 subsequent to the filing of this Request for an Impartial Hearing.

The Parent indicates the termination of is contrary to the student‟s needs and that certain events occurred concerning the circumstances of an evaluation‟ conducted by the NYCDOE whose results were not divulged to the Parent nor admitted into evidence at this hearing and are indicative of the failure of the NYCDOE to provide a FAPE. Tr. p.164-169. Parents further allege they have regularly interacted with the NYCDOE and co-operated with them at every juncture. Parents convincingly testify that they were candid at every juncture and requested the student be programmed for the School beginning in November 2010 and throughout. Parent alleges the assignment of a is detrimental to the student‟s development and that he additionally needs a class, with the continued support of . Parent submits a NYCDOE IEP “to be implemented” on June 14, 2011 against which this August 19, 2011 Demand for an Impartial Hearing is addressed. Thereafter Parent executed a 10-day notice (Exhibit „D‟) informing the NYCDOE that the program as assigned was inappropriate.

THE NYCDOE CASE

The NYCDOE submitted an IEP dated „to be implemented September 8, 2011” (Exhibit 4) along with other documentary evidence in this matter which carried no signature page (identifying those attending the CSE meeting) nor any identifying date as to exactly when the CSE meeting was conducted; which purporting to have delivered a FAPE to this student. This IEP is indicated not to be a re-convene meeting (Exhibit 4.11) but only to discuss the services. Tr.p 219-222. The NYCDOE additionally presents evaluations that indicate the appropriateness of decertification from upon the justification that “a plateau” has been reached by the student. This September 2011 IEP proscribes a full-time to assist the student as well as additional testing accommodations with modified promotional criteria ( grade and Math standards) and related services of . The student is programmed for during testing as he works at a and has (Exhibit 3). Parent acknowledges that the NYCDOE has restored the therapy services. The NYCDOE has assigned/accepted the School.

THE PARENT’S CASE

The Parent files this Demand for an Impartial Hearing against the June 2011 IEP. Parent additionally indicates that he did not receive a signature page accompanying his son‟s IEP of June 2011. Tr. p. 27-32. The IEPs (Exhibit „4‟ and „E‟) do not carry an indication of the date that the CSE meetings were conducted. The Parent testifies that the student achieved grades in his final report card (Exhibit „12‟) that exceeded Parent‟s understanding of the accuracy of the grade and felt his son was . Tr. p 185-191. Parent states the location of the NYCDOE assigned school placement was a trip and since the student has not been provided with any special education transportation for the previous three years Parent was unaware transportation was an entitlement and further notes transportation is not indicated on either IEP. Tr p. 194-198. The student has known in addition to Parent identified which would complicate independent transit attending School.

The Parent selected program is a New York State approved special education program which has a high success rate of sheparding handicapped student to diplomas (Exhibit B; Tr. p. 104-119). The Program is able to provide the proscribed related services and the placement is . The majority of the students at the Program are NYCDOE CSE special education placements.

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially it must be noted that these IEPs (Exhibits 4 and E) omits several crucial elements and fails to demonstrate the student has been provided a FAPE. The lack of a date identifying when the IEP was conducted is a fatal flaw to the accuracy of the document. It obviates the ability to determine the timeliness of the document. The lack of the identifying signature page is likewise a fatal flaw in establishing the CSE meeting contained the necessary mandatory members as required by the IDEA. At the initial day of hearing these two flaws were specifically addressed and at the subsequent hearing dates the NYCDOE failed to provide signature pages or attempt to cure this defect. Tr. p.

148. Clearly, this was not an item overlooked or accidently neglected to be produced by the NYCDOE.

The failure of the IEPs (both June and September 2011) to indicate the student‟s need/entitlement for transportation to the assigned school and the historical past lack of transportation provision indicate the intention of the CSE to not provide this service for this handicapped student who has identified mobility issues (Exhibit 4-11). This neglect by the NYCDOE to provide the related service of transportation is an additional failure of FAPE in assigning the student to a placement significantly distanced from his home.

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. The decision by the NYCDOE to terminate the services to this student due to an alleged „plateau‟ being reached is indicative of the likelihood of regression and demonstrates an expectation of trivial advancement sanctioned by the NYCDOE. The restoration of the service does not cure the inherent multiple defects within either IEP. It is ORDERED that the NYCDOE issue a Nickerson letter to enroll this student in the Program.

In that the Parent did not request transportation services with the student‟s current attendance at the r Program in its Demand for an Impartial Hearing I am constrained from directing same. The NYCDOE in connection with the Parents can review the necessity of the provision of this related service. Dated: November 1, 2011

____________________________

MICHAEL KENNEDY LLOYD, ESQ.

Impartial Hearing Officer

MKL: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

For the NYCDOE

1 Impartial Hearing Request 8/19/11 4pgs

2 Resolution Agreement 9/1/11 2pgs

3 Evaluation 9/20/10 11pgs

4 IEP undated 13pgs

5 Teacher Report English 5/31/11 4pgs

6 Teacher Report Science 5/31/11 4pgs

7 Progress Report 6/21/11 1pg

8 Progress Report 11/4/10 1pgs

9 Report 6/6/11 1pgs

10 Report 6/1/11 1pg

11 ELA and Math scores NYS exam 2009 -2011 1pg

12 Student Report Card 1pg

For the Parent

A Impartial Hearing Request 8/19/11 4pgs

B description undated 2pgs

C Letter to NYCDOE 3/11/11 2pgs

D Ten-Day Notice 8/22/11 2pgs

E IEP 6/14/11 9pgs

F Progress Report, 11/4/10 1pg