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

Dates of Hearing: October 4, 2011

November 14, 2011

February 6, 2012

February 16, 2012

April 3, 2012

May 16, 2012

Actual Record Closed Date: June 18, 2012

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2011

Advocate — Parents

Mother — Parents

CSE Representative Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011

Advocate — Parents

Mother — Parents

Dr. CSE Representative — DOE

CSE Social Worker — DOE

(via telephone) Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2012

Advocate — Parents

Mother — Parents

Dr. CSE Representative — DOE

Rep. — DOE

(via telephone) Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2012

Advocate — Parents

Impartial Hearing Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2012

Advocate — Parents

Mother — Parents

CSE- Chairperson Designee Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2012

Advocate — Parents

Mother — Parents

Asst. Prog. Coordinator, — Parents

(via telephone)

Director, — Parents

CSE Representative Interpreter — DOE

On October 4, 2011, November 14, 2011, February 6, 2012, February 16, 2012, April 3, 2013, and May 16, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated June 20, 2011. (Ex. A) I was appointed Impartial Hearing Officer on June 21, 2011 (T.

4) and was available to conduct a hearing within 14 days. At prehearing conferences via telephone with the parties conducted on July 19, 2011 and July 22, 2011, the initial hearing was scheduled for October 4, 2011, the first mutually available date for the parties, their witnesses and the hearing officer. (Tr. 4)

The initial compliance date in this matter was September 2, 2011. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses, religious observance requirements, the availability of a translator, the failure to provide notices of hearing pursuant to Impartial Hearing Office procedures, and the submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter.^[1] Accordingly, the joint requests for extensions of the compliance dates were granted. (T, 4, 7, 15, 19, 64, 70-74, 130-131, 137-140, 170-171, 259, Ex. IV) Documentation with regard to the compliance date extension decisions was given to the parties. (T. 22, 64, 71, 140, 170, 260)

The current compliance date is July 2, 2012. The record closed on June 18, 2012, upon my receipt of all post-closing memoranda.

Background

At the commencement of the 2010-2011 school year (10 month program) the student was about 9 ½ years old and entering the 4th grade. Her classification was or . (Ex. 1)

The student has been receiving special education services since at least kindergarten. (T. 143-144) For the 2009-2010 school year the student attended (“ ”) a non-public school that is not approved by the New York State Education Department as a school with which a district may contract for the provision of special education services (Ex. K) in which she had been unilaterally placed by her parent/s the year before. (T. 145)

The CSE reconvened on May 3, 2010 (“the review”) and recommended special class in a community school ( ) Recommended related services were counseling (Yiddish) 1x30 ( ); occupational therapy (“OT”) 4x30 ( ); physical therapy (“PT”) 2x30 ( ); therapy (“ (Yiddish) 1x30 ( ) and 3x30 ( ). Adaptive physical education (‘APE”) and limited time travel were also provided. (Ex. 1-1)

By letter dated June 22, 2010, the DOE offered a placement. (Ex. D)

On September 20, 2010, the student’s mother (“the parent”) informed the CSE that she had attempted to visit the school but was advised that it was full and the student would be for the 2010-2011 school year for which payment of tuition by the DOE would be sought. (Ex. D)

By letter dated June 20, 2011, the parent requested the instant impartial hearing. She asserted that: 1) the IEP was procedurally and substantively defective, that no placement was provided and that the DOE had failed to provide a free and appropriate public education (“FAPE”); 2) the program that the parent unilaterally provided was appropriate; and, 2) equitable considerations supported DOE payment of tuition of $31,500, for the entire program excluding a Judaic Studies component. Further, the parent sought reimbursement and/or direct payment. (T, 217-218, Exs. A, II)

The DOE asserts in this matter that it provided a FAPE, that the unilateral program provided by the parent was not appropriate and that equitable considerations warrant denial of any DOE payment. ( Ex. III ) Witnesses Presented The DOE presented the testimony of the following: MT, the DOE social worker who participated in the review (Ex. 1-2); SG, the “IEP teacher” at the recommended public school (T. 79).

The parent presented the testimony of the following: , Director (“the director”); , Asst. Program Coordinator and special education teacher, who participated in the review; the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 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). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

1. IEP

The evidence shows that participants, in person or by phone, included a school social worker who served as district representative, a bilingual school psychologist, a DOE special education teacher, a parent member, an staff member who appears frequently at IEP reviews involving students and who a special education teacher, the student’s mother and a parent advocate. (T. 30-32, Ex. 1-2) was the sole DOE witness concerning the review. She had no independent recollection with regard to this meeting but testified based upon her review of the documents and the customary practices of the review team. (T. 56) The team classified the student as and recalled no disagreement with the classification. (T. 39) The CSE recommended and (a continuation of the prior recommendation), recalled no disagreement with the recommendation and the parent testified in this proceeding that she agreed with it. (T. 11, 34, 155, Ex. 1-14) The CSE recommended a placement which the team believed was appropriate and which the parent did not object to in her hearing request or at this hearing and which her advocate stated she agreed with. (T. 11, 40, 41, Exs. 1, A) With regard to the goals, testified that the goals were developed as a result of the meeting and reviewed at the meeting and she opined that they were appropriate. (T. 37-39, 46, 50-51) She testified that then current psychological evaluation (Ex. 3) provided information concerning the student used in developing the IEP. (T. 36, 54) This student’s related service providers were not DOE employees and reports and goals from those providers in that circmstance must be obtained via the parent. (T. 61) Here, although requested by the CSE, none were provided. stated that the meeting would have been suspended had the parent requested that to obtain that information. (T. 45)

In her hearing request, the sole claim made by the parent in support of her assertion that the IEP was not reasonably calculated to offer a FAPE was that the academic goals were vague and failed to include methods of assessment and measurement. (Ex. II-4) However, even were that the case, that is not a basis for a determination that the IEP is defective in the circumstances here. I note that the goals addressed the , that there was no testimony concerning problems with the goals from any of the parent’s witnesses and that the school assessment team in the recommended placement was available to consider changes in program/IEP, including the goals was necessary. The alleged deficiencies were procedural in nature. In the instant matter the alleged deficiencies did not result in a loss of educational opportunity, seriously infringe on the parent’s opportunity to participate in the IEP formulation process or result in a denial of educational benefits under the IEP. In these circumstances there was no denial of a FAPE In her complaint, however, the parent asserted various claims regarding the classification, the composition of the team (specifically the service providers and the student’s 2009-2010 special education teacher), the failure to update levels of performance for , and the of a discussion of promotional policy at the review. (Ex.

A) Although, I conclude those claims have been abandoned, I briefly address them.

With regard to the classification, the parent’s advocate stated that the parent agreed with the classification (T. 11), the program coordinator testified that that classification was appropriate and that all the other students in her and that classification (T. 184, 215) and director testified that it the school’s student’s typically had that issue. The absence of a current evaluation to support the classification does not render the IEP defective in the circumstances here.

With regard to the composition of the CSE, I find that it was duly constituted. The parent and school were notified as to the meeting, the school provided staff who, although not the student’s teacher, had knowledge of the student and the parent could invite whatever related services providers she wished to. (T. 44) A DOE request for related service providers is discretionary; the DOE was not required to specifically invite them. See Application of a Child with a Disability, Appeal No. 11-002. See, also 8 NYCRR 200.3[a][1][ix].

The absence of updates in related service performance updates in the circumstances here and the absence of discussion of promotion policy, if such occurred, were at most procedural deficiencies that do not render the IEP defective here where whether individually or aggregated with the claimed deficiencies in goals discussed above did not, I conclude, result in a loss of educational opportunity, on the parent’s opportunity to participate in the IEP formulation process or result in a denial of educational benefits under the IEP.

For the reasons stated above, I find that the DOE has established that its IEP was reasonably calculated to enable the student to make meaningful educational gains.

2. Placement

The credible evidence shows that the recommended school had a placement in a bridge class at the beginning of the 2010-2011 school year in September (T. 81,84-85,

110) taught by a licensed, certified special education teacher with the assistance of a para

(T. 85) The students were old (T. 107), had classifications of and (T. 108), and/or (T. 97) and some had reading and math functioning levels and goals consistent with this student’s (T. 88, 95) Reading and math instruction were each provided for from 1 ½ to 2 hours daily. (T. 100-101) There is substantial home-school communication

(T. 102, 103) and routine standardized assessments, providing a basis for differentiated instruction, are conducted. (T. 94, 103, 105) Related services were provided in the school by DOE employees and all the students’ mandates were met. (T. 82-83) The student’s Yiddish language SL mandate could have been met in the school by a DOE employee (T. 114), although RSAs could also have been issued if necessary, (T.98) and the Yiddish mandate would have been met by the issuance of an RSA or the hiring of a bilingual Yiddish speaking para (T. 113).

The parent asserts two claims concerning the placement: that she was told that there was no room in the class and that the school could not meet the certain related service mandates requiring provision of certain related service mandates in Yiddish. (Ex. II-4)

With regard to the availability of a placement, the parent testified that she attempted to contact the school by telephone to arrange a visit on opening day in September, made several similar attempts thereafter and was not put through to the appropriate department until September 20 when she was told that there was no longer a placement available. She “believed” she left a message and did not identify anyone she spoke with. (T. 146-147) There was no testimony as to why she had not made an immediate inquiry after receiving the June 20, 2010 FNR.

I find credible the testimony of the that at the beginning of the school year there was a placement available for the student. (81, 84-85, 110) Further, I note that the testified that if a parent had been offered a placement but no room was available, placement office assistance would have been sought by the school. (T. 116) The fact that there was no placement available well into the school year does not demonstrate that there was no placement available for this student when school began. Moreover, although desirable, a district is not required to provide an opportunity for personal viewing by a parent. See Application of a Student with a Disability, Appeal No. 12-047

Based upon the foregoing, I find that the DOE offered a program and placement reasonably calculated to enable the student to make meaningful educational gains.

Accordingly, I do not address Prongs 2 and 3.

ORDER

The DOE having established that it provide a FAPE for the 2010-2011 school year, this matter is DISMISSED.

Dated: June 27, 2012

______________________________

JUDITH SCHNEIDER, ESQ.

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.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 5/3/10, 17 pgs. Department of Education

2 letter, 5/15/10, 1 pg. Department of Education

3 Evaluation, 3/9/10, 4 pgs. Department of Education

4 FNR, 6/22/10, 1 g. Department of Education

5 CSE Minutes, 5/3/10, 1 pg. Department of Education

A Impartial Hearing Request, 6/20/11, 4 pgs. Department of Education

B Program Description, 2 pgs. Department of Education

C IEP, 5/3/10, 17 gs. Department of Education

D FNR, 6/22/10, 2 pgs. Department of Education

E Ten Day Notice, 8/18/10, 1 pg. Department of Education

F Class Schedule 2010-2011, 1 pg. Department of Education

G Student Progress Report, 2010/2011, 3 gs. Department of Education

H Letter, 5/15/10, 1 pg. Department of Education

I Enrollment Contract, 2010-2011, 2 pgs. Department of Education

J Attendance Recorsd, 2010-2011, 2 pgs, Department of Education

K School Affidavit, 2010-2011, 1 pgf. Department of Education

L Parent Tax Return-2010, 3 pgs. Department of Education

M The Paradign, 2 pgs. Department of Education

N What is document, 1 pg. Department of Education

O The Approach- Document, 2 pgs. Department of Education

I Extension Decision documents Impartial Hearing Officer

II Parent’s Closing Memorandum Impartial Hearing Officer

III DOE Closing Memorandum Impartial Hearing Officer

IV E-mail from Case manager re unavailability of Impartial Hearing Officer interpreter, 1 pg.

Footnotes

[1] This matter concerned reimbursement for the 2010-2011 school year. In the instant circumstances, the parent asserted and it appeared that there was no impact on the student’s educational interest and wellbeing. Further, there were no financial or detrimental consequences likely to be suffered by either party, there was no undue delay due the actions of the parties and all parties, the hearing officer and the witnesses had earlier dates than the hearing dates scheduled although not the same dates resulting in my conclusion that there were compelling reasons, based upon due process considerations, for extensions to enable each party to have the same opportunity to appropriately present evidence.