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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: November 21, 2011\
December 2, 2011
December 6, 2011
December 13, 2011 Actual Record Close Date: December 28, 2011 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2011
Attorney — Student
Parents
CSE Representative — DOE
School Psychiatrist — DOE
Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011
Attorney — Student
Parents
CSE Representative — DOE
Assistant Principal — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2011
Attorney — Student
Parents
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2011
Attorney — Student
Parents
Co-Director- — Student
Teacher- — Student
Teacher- — Student
CSE Representative — DOE
The parents’ impartial hearing request pursuant to the Individuals with Disabilities Education Act was received on September 19, 2011 and hearing dates were immediately scheduled. By email dated October 24, 2011, I was informed that the resolution period ended due to the expiration of the 30 day period. The hearing commenced on November 21, 2011 and proceeded as expeditiously as possible. Compliance date extensions were granted only for good cause shown.
The parents contend that the student was denied a free appropriate public education for the 2011-12 school year and therefore seek reimbursement for the cost of the parents’ unilateral placement. School District The school district presented testimonial and documentary evidence in support of its position that it offered a FAPE to the student. (Testimony and Exhibits 1-10) Witnesses included a school , a special education teacher and the assistant principal of the recommended placement.
A school testified on behalf of the school district. (Tr. At 8-63) She evaluated the student and was member of the IEP review team. Her educational background and qualifications include a Masters and New York State certification in school psychology, and fourteen years employment as a school psychologist, including five years with the CSE. She conducted a evaluation of the student on February 9, 2011. (Exh. 4) She also conducted a vocational review with the student, a social update with the parent, reviewed the student’s records and received input from the student’s independent providers. She concluded that the student had significant in reading and math, language and attention. He had a diagnosis of . Because the student’s had already been assessed in 2007, she did not repeat the assessments. Those assessments indicated that his IQ functioning was within range for students his age, which meant that he had the ability to learn.
She testified that she is very familiar with the unilateral placement and visits the placement often to observe students. The school is not providing the recommended related services to the student and he does not have access to general education students.
She was a member of the April 28, 2011 IEP review team. (Exh. 3) Those present included herself as the school and district representative, the parents, a general education teacher and the student’s teacher from the unilateral placement. A parent member was invited to participate in the review but was not present at the meeting. The parents agreed to proceed with the meeting in the absence of the parent member. She testified as to the evaluations reviewed and other information received during the meeting, which included an evaluation, a evaluation and input from the parents and the student’s teacher. (Exhs. 9, 10)
The student was classified as a student with a . The related services of , and and were recommended. Regarding placement, several programs were considered, including non-public school. Non-public school was not recommended because it was too restrictive. Additionally, the student attended a non-public school for many years and made very small progress and very little to no movement in certain areas. (Tr. At 8-63)
A classroom teacher from the recommended placement testified on behalf of the school district. He has a Masters degree and New York State certification in special education. He described the recommended placement in great detail, including the teaching methodology, the services available, including the provision of small and large group and individualized instruction by a team of special education teachers, the other students and their ages, needs and functioning, access to general education students during assembly, gym and lunch, and the types of formal and informal academic assessments conducted to gauge student progress and needs. He opined that the placement was appropriate and testified as to how the student’s IEP mandates would have been met. (Tr. At 77-118)
The assistant principal of the recommended placement testified on behalf of the school district. He testified regarding his educational and professional background and certifications which include New York State certification, employment in various capacities by the school district since 1996, and employment as a graduate school professor. He also testified about the school, which received a grade of and was ranked in the percentile of schools in the city. About students are enrolled at the school and about 30% receive special education. He also testified that there were two eighth grade classes that were appropriate for the student and both were available.
He conducts tours for parents but he did not specifically recall meeting with the parent on September 12, 2011. However, the parent did sign in for a tour that day. He testified that he did not recall telling the mother that the student’s needs could not be met at the school and judging by the current students at the school and the scope of the programs that is not something that he would have said. Having reviewed the student’s IEP he opined that placement was appropriate for the student. He gave examples of how the student’s needs would have been met in reading and math. He also opined that the placement would have been the least restrictive environment for the student and testified that the student is very typical of the students at the school. He also testified that the benefit of keeping the student in the least restrictive environment is that he would have attended his community school, which would have allowed him to converse with, relate with, participate in sports teams with and overall socialize with his grade level peers. He would also have had access to a wide assortment of extracurricular academic and enrichment activities such as art, plays, a rock band, and sports. (Tr. At 126-155) Parents
The parent, the co-director of the unilateral school and two teachers testified on behalf of the parent. They testified regarding the student’s needs and the services he receives at the unilateral placement. They opined that the school district’s recommended placement was not appropriate and that the unilateral placement was appropriate.
The parents challenge the composition of the IEP review team, their review of the evaluations and teacher input, and the placements considered. The parent testified that when she visited the school the assistant principal told her that the school was not appropriate for the student. The parents also allege that the educational services and functional levels of the other students in the proposed placement resulted in a placement that would not have provided the services he required. (Tr. At 165-195, 200-240, Exhibits A-D)
FINDINGS
As was recently set forth in Appeal No. 10-105, two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 17, 200.5[j][4][ii]; Winkelman, 550 U.S. at 525-26; A.H., 2010 WL 3242234, at 2; E.H., 2008 WL 3930028, at 7; Matrejek, 471 F. Supp. 2d at 419).
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 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], 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]). 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 that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; [8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).
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 parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192]). "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 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
In the instant case the parents assert that the school district did not provide a FAPE for several reasons. As to the recommended placement, the parent testified that the assistant principal told her that the recommended placement was not appropriate. However, I find that the record does not corroborate the parent’s allegations. The assistant principal testified credibly that he did not recall saying this and additionally, that he doubted that he would have said this since his school was appropriate and could have met the student’s needs. He testified at length and credibly as to the reasons why the placement was appropriate and would not have been for the student. The testimony of the teacher from the proposed placement also demonstrates why the recommended placement would not have been for the student.
The parents also challenge the composition of the IEP review team because there were only two members from the CSE present. The fact that there were only two school district members present at the meeting does not invalidate the composition of the team. Participants in the meeting included the two school district members plus both parents and the student’s teacher from the unilateral placement. Moreover, the team had available to it evaluative and other documents from both school district and independent professionals that provided comprehensive, detailed information about the student’s current needs.
The parents also contend that the school district should have considered more programs. I find that the school district considered at least three programs and that the ones they considered were those most likely to meet the student’s needs. The record reveals that the school district members used their knowledge of the student and their expertise to determine which programs were most likely to meet the student’s needs and used the meeting time to focus on those programs. Their failure to mention and discuss every program in the continuum, or even other, less appropriate programs, was not a procedural error and did not deprive the student of a FAPE.
The parents also assert that the final notice of recommendation did not give them timely notice. I find that the notice requirements were met and the parent was given ample opportunity to visit and consider the recommended placement, which they did.
The parents also challenge the appropriateness of the recommended placement. The assistant principal and a teacher from the recommended placement both testified credibly and convincingly, in detail, as to the many ways in which the program would have provided an appropriate and least restrictive educational environment for the student, in his community, with many opportunities to interact with general education students in a variety of settings throughout the school day. Addtionally, the record does not support the parents’ claim that the other students in the proposed placement were too high functioning for the placement to be appropriate. Moreover, the record establishes that the student’s instruction would have been individualized as needed to ensure that his particular needs were met.
For all of the above reasons, I find that the school district offered a FAPE and therefore met the requirements of prong one. As such, it is not necessary to reach prongs two or three.
I have considered the parties' remaining contentions and find that it is unnecessary to address them in light of my determinations herein.
Order
The parent’s requested relief is denied. Dated: December 28, 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
A Notice and Request for Transportation, 8/24/11, 3 pp. B Letter to Placement Officer, 9/20/11, 1 p. C IEP Excerpts, Various Dates, 18 pp. D Letter to the Placement Officer, 8/24/2011, 1 p.
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request, 9/19/2011, 4 pp. 2 Due Response, 7/2011, 4 pp. 3 IEP, 4/28/11, 18 pp. 4 Educational Update, 9/9/2011, 9 pp. 5 School Report from , 9/2010-12/2010, 31 pp. 6 Final Notice of Recommendation, 7/20/11, 1 p. 7 Descriptions of Class Details, Undated, 2 pp. 8 CSE Minutes, 4/28/11, 2 pp. 9 Evaluation, 2/20/11, 9 pp. 10 Evaluation, 9/12/11, 4 pp.
Footnotes
[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal