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: November 9, 2011

November 10, 2011

January 11, 2012

March 19, 2012 Actual Record Close Date: March 28, 2012 Hearing Officer: Michael S. Lazan, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 10, 2011

Attorney — Student

Parents

Attorney — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2012

Attorney — Student

Parents

Attorney — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2012

Attorney — Student

Administrator (via telephone) — Student

Attorney — DOE

By Complaint dated July 13, 2011, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

This is a matter involving an eligible for services as a student with an (Student). The Complaint alleges that the District’s CSE review dated April 11, 2011 denied the Student a FAPE by selecting a program that was not based on the Student’s needs but based on the District’s available programs. The Complaint raises issues relating to the lack of a special education teacher at the review; the lack of a parent member at the review; the lack of in the IEP; that the class that Student would be assigned to contained an inappropriate grouping of students for the Student, and recommends a program that is too restrictive for the Student. As relief, the parents seek tuition reimbursement for the for the 2011-2012 school year.

On July 26, 2011, the resolution period ended because the parties waived the remainder of the period. The District proposed a date toward the end of August. The parent agreed with this date. A hearing was scheduled for August 24, 2011. The parent moved to adjourn the August 18, 2011 hearing date. There was no objection from the District. The adjournment request was granted.

Another date was set for September 21, 2011. The parent sought to extend the decision date to allow for a full and complete record to be developed. The parent underscored that no harm would result to the Student, who was educationally placed during the proceeding. There was no objection from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through October 11, 2011.

The parent also sought an adjournment of the September 21, 2011 date because of a medical issue. There was no objection from the District. The hearing date was also adjourned.

Hearing dates were then set for November 9 and 10, 2011. The parties moved to extend the decisional timelines because of witness availability. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through November 10, 2011. (IHO Exh. 1)

Hearings were held on November 9 and 10, 2011. On November 10, 2011, the parties sought to jointly extend the decision date because of witness availability and the need for additional case preparation. (128-129; 187-188) This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through December 9, 2011. (IHO Exh. 1)

On December 8, 2011, the parent sought to again extend the decision date. There was no objection from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through January 8, 2011. (IHO Exh. 1)

Another hearing date was scheduled for December 23, 2011. The parent moved to adjourn this date because of witness availability. There was no objection from the District. This adjournment was granted. The IHO urged the parties to try to complete the case expeditiously and suggested dates the following week. (IHO Exh. 1)

On January 6, 2012, the parent again sought to extend the decision date because of the need for additional case preparation. The parent underscored that there would be no prejudice to the parent were the request granted. There was no opposition from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through February 7, 2012. (IHO Exh. 1)

Another hearing was held on January 11, 2012. On this date, the parties represented that, in their view, all extensions of the timelines were appropriate and conforming to the regulations. (369) The parties also represented that they felt that they had received due process in the case. (369)

A briefing schedule was set forth through E-mail. The parties agreed to submit briefs by February 15, 2012. (IHO Exh. 1)

The District sought to extend the timelines once more to be able to submit a brief in conformance with due process. The parent joined in this application. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through March 6, 2012. (IHO Exh. 1)

During the briefing process, the parties noticed that the transcript of the hearing dated January 11, 2012 contained significant errors. In particular, the District indicated that a large portion of the hearing was not properly recorded by the transcription company. (IHO Exh. 1) The parties investigated the matter, and determined that the witness Nadine Rothman needed to be recalled due to errors by the transcription company. (IHO Exh. 1)

The witness was recalled at a hearing dated March 19, 2012. The parties jointly moved to extend the decision date one more time because of the need to recall the witness and finish the briefs. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through April 4, 2012. (IHO Exh. 1) The parties submitted briefs on March 28, 2012, which is the record close date in this matter. (IHO Exh. 2)

FINDINGS OF FACT

The Student is a child with who is eligible for services as a child with an . (Exh. 3) She is a . (89-90) She has . (92) She benefits from 81) She (282-284)

The District’s CSE meeting on April 11, 2011 included both parents, a general education teacher, the supervisor of the ), a classroom teacher from the ( , and the assigned special education teacher who is not a current teacher ( ). (16, 19, 71) No parent member was at the meeting; none was available at this time. (17) The District asked the parents if they wanted to proceed without the parent member, and the parents indicated that they wanted to proceed. (17, 20) The District did not give the parents any notice that a parent member would not attend the meeting. (68)

The team reviewed a evaluation dated February 29, 2011, a progress report from , and a evaluation dated February 29, 2011. (21) The recommended program was a special class in a specialized school, a 12 month program, and related services of counseling, , . (27; Exh. 3) It provides . (Exh. 3) This program was recommended because the Student has , 12 month program. (57) Present Levels of Performance did not indicate significant so a more restrictive setting was not recommended. (58) There were no disagreements. (58) Management needs are left blank in the IEP because the Student does not require modifications in this area. (36) No one on the team mentioned social/emotional management needs. (37) Academic management needs were listed on the IEP. (60)

The District’s IEP would have been implemented at P 138 at IO90. (131-135,

167) The classroom would have been V63. (136) The other students in the class were similar in terms of intellectual functioning , physical needs, management needs. (93) There would have been 11 students in the class. (137) There was one classroom paraprofessional in the class. (138) The academic levels of the students in the class range from . (139) Three students were reading at the , two at the , one at the level, three at the , two at the . (140) In terms of math, . (149-150)

Reading and ELA would be in 90 minute blocks. (171) Math is usually a 60 minute block. (172)

In the morning there would be a read aloud, then the students would break up into groups. (141) Then they would do reading in groups and individual reading with staff.

(141) There would have been four groups. (141) Math was done in the same way, with the students broken into three or four groups. (142) There is a morning meeting, science, social studies, gym, computers. (144) one individualized instruction is provided. (141)

The curriculum is the “Unique” curriculum. (142-143)

The majority of the students in the class have intellectual disabilities. (162)

There were disciplinary incidents in the classroom on some days. (180) Students would , and then they would . (181) No students were classified with an . (181)

The Student went to the for summer, 2011 and is currently attending there in the middle school. (219-220) All teachers are certified at the school. (385) At the the student receives small classes, small group instruction and individualized instruction with differentiation. (266-290) The Student is doing very well in class and has made improvement in terms of decoding. (291) The Student receives related services. (213214, 223-229) The related services provided were less than the related services on the IEP. (228-234) She receives . (307) After an initial period at the school during this year, the Student was transferred to a different “cohort” with lower functioning students. (247, 305) She had been in a higher functioning “ but was transferred at the end of October. (305) There are nine students in the . (307) The Student was “ but was more appropriate in . (310) She was struggling at math, there was no guided reading placement for her in Manhattan. (311) There are two paraprofessionals in the cohort. (312)

The parents sent the District a notice indicating intent to enroll the Student at Cooke on June 20, 2011. (Exh. A) The parents were cooperative with the CSE throughout the process. (75)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2)

The parents contend that the IEP did not provide for a program that meets the Student’s special education needs. The record reflects that the Student requires a small setting with . The Student also requires material that is significantly modified. The Student also requires related services in the areas of . The record reveals that the District’s program would meet these needs through a small The testimony from the school indicates that the school provides some individualized instruction.

The parents claim that the CSE review in this matter did not involve the participation of a special education teacher or a parent member. The record indicates that the review did include the student’s teacher at , a certified special education teacher assigned from the District, and the principal of . While there was no parent member at the meeting, the record indicates that the parent was given the option of rescheduling the meeting until a parent member could appear. There is nothing in the record to suggest that the lack of a parent member resulted or any other personnel resulted in a lack of educational opportunity for the Student or infringed on the parents’ right to participate in the IEP meeting. See, e.g., R.R. v. Scarsdale Union Free School Dist., 615 F. Supp.2d 283 (S.D.N.Y. 2009).

The parents also contend that the IEP failed to reference the Student’s social and emotional needs. While there is testimony in the record that the Student has certain vulnerabilities in connection to social situations, there is nothing to this effect in the progress report by dated November, 2010. In such report, in the comments for Trimester 1, there is nothing suggesting that the student is . Additionally, the IEP does provide for counseling and provides a counseling goal for . While the District could have written an IEP with more precision in this regard, the record does not indicate that any such additional language would have had a material impact on the Student’s educational opportunities so as to necessitate a finding of FAPE denial.

The parents also contend that the District failed to appropriately group the Student at the proposed setting. In particular, the parents allege that the proposed class contained students with in violation of 8 NYCRR Sect. 200.1(ww)(3)(ii) and 200.6(a)(3). The record does indicate that there are sometimes in the proposed class. However, the record does not establish that these occur with such frequency as to interfere with academic instruction or diminish a student’s educational opportunities. The record shows that the teachers in the class are able to as appropriate. The record also reveals that there are no children who are classified with in the proposed classroom. Local federal courts have adopted a narrow view of such claims in recent decisional law. See, e.g., S.F. and Y.D. v. New York City Department of Education, 57 IDELR 287 (S.D.N.Y. 2011)(where allegations of in classroom, there was no showing that classroom was any different than any other classroom; student had , and one student in the classroom was classified as , another as ). It should be noted that the parents did not present any objective witness or report to the effect that the Student is I find that the Student would have made academic progress in the proposed District placement as well. It should be noted that the parents do not present any recent caselaw in support of their position on this issue.

The parents also indicate that the proposed program is too restrictive, but do not follow up in their closing statement. The record shows that the District’s proposed self-contained program is of a similarly restrictive nature to the parent’s proposed special education classroom .

Finally, the parents raise sundry other issues in the brief, including suggestions that the goals are inappropriate, that the District failed to adequately evaluate the Student in all areas of suspected disability. With respect to these contentions, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. Sect. 1415(f)(3)(B); 34 C.F.R. Sects. 300.507(d)(3)(I), 300.511(d); 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. Sect. 1415 (c)(2)(E)(i)(II); 34 C.F.R. Sect. 300.507(d)(3)(ii); 8 NYCRR 200.5[i][7][b]); Snyder v. Montgomery County. Pub. Sch., 2009 WL 3246579

(D. Md. Sept. 29, 2009); Saki v. Hawaii, 2008 WL 1912442 (D. Hawaii Apr. 30, 2008).

As a result of the foregoing, the District prevails on the first criterion. As a result, I need not consider the parents’ argument on the second and third criterion. Application of the Board of Education of the ________ School District, Appeal No. 10-122.

The parents’ case is hereby dismissed with prejudice. Dated: April 4, 2012 Corrected Date: April 16, 2012 (Correction Made to the Body of the Decision)

______________________________

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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

A Ten-Day Notice, 6/20/11, 2 pp. B Proof of Payment, Various Dates, 4 pp. C Enrollment Contract, 5/30/11, 2 pp. D Enrollment Contract, 2011/2012, 10/4/11, 2 pp. E Account Summary, Various Dates, 2 pp. F Teacher/Provider Schedule, 2011/2012, 1 p. G Provider Credentials, Various Dates, 24 pp. H ELA and Math Test Scores, Fall 2011, 6 pp. I Progress Report, November 2011, 15 pp. J Student Work Sample, 1 p. K Student's Schedule from 2011/2012, 1 p. L 2011/2012 Attendance Detail, 11/2/11, 1 p. M Emails from , Various Dates, 3 pp. N Information, 7 pp. O Middle School Information, September 2009, 4 pp. P Parent Response to FNR, 7/5/11, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/13/11, 5 pp. 2 DOE Response, 7/19/11 and 11/3/11, 4 pp. 3 IEP, 4/11/11, 31 pp. 4 IEP Minutes, 4/11/11, 2 pp. 5 FNR, 6/22/11, 1 p. 6 Progress Report From 2010/2011, 22 pp.

IMPARTIAL HEARING OFFICER

I Notices and Emails Relating to Timelines, Various Dates, 10 pp. II Closing Statements, 3/28/12