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: September 27, 2011

October 19, 2011

October 31, 2011

November 18, 2011

December 8, 2011

Actual Record Closed Date: January 4, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 27, 2011

Advocate — Parents

Parents

Dr. District Rep NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 19, 2011

Advocate — Parents

Parents

Dr. District Rep NYCDOE Ass‟t Principal NYCDOE

School Psychologist NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 31, 2011

Advocate — Parents

Parents

Education Director „ — Parents

Teacher „ — Parents

Dr. District Rep NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 18, 2011

Advocate — Parents

Parents

Pathologist — Parents

Dr. District Rep NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 8, 2011

Advocate — Parents

Parents

Director — Parents

Dr. District Rep NYCDOE

HEARING OFFICERS FINDINGS OF FACT AND DECISION

The matter of . came before me on September 27, 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 9, 2011. The hearing was convened at the request of the parent, which was received on August 5, 2011. The hearings were held on September 27, 2011; October 19 and 31, 2011; November 18, 2011 and December 8, 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 funding for the placement of their child in a parentally selected non-approved non-public school ( hereinafter The student is and classified as and is learning to communicate (to ) and learning/ using ( ). The student is and during the previous four school years the student has attended the school since his initial placement at . It is of note that the school operates on a September 1, 2011 through August 31, 2012 school calendar (Exhibit O) with summer break between August 22 through September 6 (as charted in Exhibit P).

BACKGROUND

This student is currently years old classified by the New York City Department of Education (NYCDOE) Committee on Special Education (CSE) as (Exhibit 1 p. 1) and has been identified as a child with a since . The student is programmed for a 12 month program. This year the CSE conducted its Individualized Education Program (IEP) meeting (the Parent and providers with knowledge of the student participated) which resulted in an IEP (Exhibit 1) and there followed a placement in a high school (Exhibit C). Recognizing the inappropriateness a second placement was offered (Parent promptly informed the CSE of the improper assignment immediately after a site visit, see Exhibit C) at . Parent thereafter visited and made several observations challenging the inappropriateness of this placement (Exhibit D and Exhibit IHO-2 p.1-2) thereafter through her advocate filed the mandatory 10 day notice of rejection with intent to file for an impartial hearing (Exhibit E) . This hearing ensued.

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a free appropriate public education (FAPE) (free and appropriate public education) was provided to this student by a properly constituted and timely CSE meeting (Exhibit 1) with a timely placement (Exhibit C and

D) that was reasonably calculated to assure a FAPE providing more than trivial advancement from grade to grade. It represents that all necessary reports and evaluations were present/ reviewed and that the Parent had a full opportunity to discuss the specifics of the student including input from the student‟s school and service providers (Exhibit IHO 2 p.1). The NYCDOE indicates Parent raised no disagreement with the classification and alleges the placement was not challenged during the CSE IEP meeting of March 2011 (Exhibit IHO-1 p.1). On June 4, 2011 an initial placement notification was issued thereafter supplanted by a second placement assignment. The NYCDOE represents that the staff at the placement would have little to no difficulty in implementing the student‟s IEP, securing the needed and mastering the device sufficiently to provide a free and appropriate public education to this student. The student has his own . Several NYCDOE personnel testified as to continuing educational trainings during their tenure and within their covering various technologies techniques and strategies for addressing the needs of the in their charge.

The Parent alleges that the circumstances of the student were carefully explained/ described to the IEP team in order to familiarize them with his needs and the significant and exhibited by this student. The participants from the student‟s current placement ( described to the team the specific and known and perseverations that the student manifested along with the precipitating conditions that could escalate to potentially dangerous consequences. This student is impacted to the point that it could be gleaned that the student has the capacity to be a or ( ). The Parent did not and does not dispute the classification of the student nor does Parent oppose the IEP in its proscription of services designed for the student but contends that the placement offered is not appropriate for this student. Parent alleges that the CSE did not sufficiently comprehend the circumstances of the student or the assigned placements that would be appropriate for this student such that this -old was initially assigned a placement in . The Parent contests the for several different and distinct reasons.

THE NYCDOE CASE

The IEP (Exhibit 1) indicates attendance by the School , school Social Worker, Special Education Teacher (also serving as District Representative) Parent Member and the student‟s Head Teacher ( ) the then Director of , the student‟s , the Parent and the Parent‟s Advocate. The Parent and those in direct contact with the student participated and exercised the full opportunity to offer detailed descriptions of the nature and circumstances of the student‟s handicapping condition. Parent acknowledges that the goals in the IEP were adopted from those of the school (Exhibit 1p. 2) but challenges their appropriateness as they were created for a program not a setting. The student was programmed for a special class in a District school with a teacher pupil ratio of and it seems that while methodologies may differ ( vs. ) the student‟s goals and targeted development should remain constant. In addition to the noted individual paraprofessional the student was programmed for , and specifically noted on the IEP are “contacts between parents, teachers and therapists” (Exhibit B p. 22) indicating an intended well coordinated effort between all concerned. The NYCDOE asserts that the school recommended had the available class and seat which was able to provide all the related services recommended on the IEP. “Noteworthy, Ms. (Assistant Principal at the later assigned placement) testified that whatever device the youngster required (on his I.E.P) would have been provided immediately and that a seat was available for the student.” Tr. p. 51-58. This witness indicated that if the student needed the „ and the classroom teacher needed specific training on that instrument she would receive it (Exhibit IHO 1; Tr. p. 333). In this instance the student possessed its own previously obtained through and had it available for use in the home on weekends. In sum, the instructors and personnel assigned and employed by the NYCDOE are state certified as against only some of the staff at in addition to which a paraprofessional would have been assigned as indicated on the IEP (IHO 1 p.3; Exhibit 1 p.22).

The NYCDOC has conducted a and notated the various behaviors, antecedents and responses the child might exhibit under various circumstances and the appropriate counter-measures to address same (Exhibit 2). The report (at age 7) indicates both an English dominant household and that the student comprehended more accurately instructions given in English than (Exhibit 4 p.2).

THE PARENT’S CASE

The Parent files this Demand for an Impartial Hearing against the March 2011 IEP alleging the class placement component is inappropriate. Parent credibly testifies that she visited the assigned placement on July 20, 2011(the second assignment of June 22, 2011; Exhibit D) and the NYCDOE confirms same. Parent and the student‟s RFS teacher (Tr. p. 321-322) met with the who conducted a tour of the assigned placement and the Parent‟s observed the other students were higher functioning than her child. Tr. p.341. Parent offered criticism concerning her observation that students (in the class assigned) who strayed off task were not properly redirected by the staff. Said snapshot observation of an by the school personnel is in my opinion insufficient to overcome the presumption that the NYCDOE personnel are competent to instruct the students under their charge. Tr. p. 387-388. It is noted that Parent refused a NYCDOE evaluation of the student (Exhibit B p.5).

Parent during its case-in-chief raised an objection to this Impartial Hearing Officer‟s ruling that further testimony as to the condition and circumstances of the student would be duplicative and therefore was unnecessary and the testimony of the additional witnesses was prohibited. Tr. p. 382-385. In any event it is clear from the /charts and targeted skill development that this is a (Exhibit B p.20).

The financial obligation entered into by the Parent with the school is represented by a contract (Exhibit O) between the Mother and the institution without any representation of financial capacity to pay in the event that the NYCDOE was not obligated to fund this placement. The did not assess the financial health/ability of the Parent to fulfill its obligation other than the reliance upon the school‟s assessment that the Parent was eligible for Connors funding. Tr. p. 398-404. In the event that the NYCDOE is held not responsible for the tuition at the parent will be held liable to the school for the amount of $ ( dollars). Tr.p. 399-406. Parent in its evidentiary submission shows a tax return at Exhibit P. The school indicated that it would use legal means to secure payment in the event that the Parent was unsuccessful at an impartial hearing and it is clear that Parent has entered (1) a contractual obligation for tuition and (2) is responsible for the commencement of an impartial hearing to seek Connors funding. Tr. p. 401-404.

The Parent‟s Attorney in its closing brief (IHO 2 p.4) confesses a law office error in that inadvertently at Exhibit N (the school affidavit) a document of another child (named „ ‟) was mistakenly packaged instead of one purportedly referencing this student („ ‟). The Parent Brief‟s footnote indicates the correct document would be „circulated‟ among the parties. Upon a conference call between the parties held January 5, 2012 I raised an inquiry as to whether the correct document was received (as I had not received it) and the NYCDOE Representative then did not consent to its late submission. I therefore decline to accept the document as it is offered subsequent to the close of record date (January 4, 2012) and further I am of the opinion that if only the name substitution represents any difference and therefore the body of the document remains constant between interchangeable student identities, the document is of little value as it is merely an introduction to the Tuition Contract at Exhibit O.

As to the circumstances concerning Exhibit S (discussed at Tr. p. 408-409) this exhibit was never formally entered into evidence based upon duplication issues and confusion at the time of the handling of the documents. However, the NYCDOE Representative acknowledged possession of the document (it is 7 pages) and it was copied and presented to this hearing officer at the close of that hearing day (December 8, 2011). I include it for consideration in this decision as the information contained is both relevant and probative on the issue of the staff qualifications of the parentally selected non-public school placement. The document consists of the various state licenses and certifications of teachers and service providers at the school attending the student. It is likewise observed that the two documents submitted for the are expired (Exhibit S p. 1-2).

The program for this student designed and implemented by the school focuses on pupil teacher ratio with intimate and detailed charting of instruction and specific skill accomplishments expected to be imparted to the student. These learning modules/tasks expected to be mastered are designed to instruct in and are charted according to their accomplishments from introduction to mastery of specific tasks. The student‟s (Exhibit Q) document the student‟s progress from 2007 through the beginning of 2011 with the bulk of the charting/data collection occurring between 2008 and 2009. There is very limited information subsequent to September 23, 2011 through the December 8, 2011 last day of testimony. The charting is indicative of an model and the teacher (Witness ) testified as to her qualifications and continuing training in that field. Tr. p. 200-204. It is without cavil that the teacher is qualified to instruct this student.

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. There is no complaint from the Parent on that issue. Clearly there was an error in the initial placement assignment however such gross error was cured before the scheduled commencement of the 2011-2012 school year (Exhibit D). The Parent determined on its visit the third week after classes commenced that the placement was inappropriate. Granted, the Parent (through its advocate) filed a proper ten-day notice (Exhibit E) and the NYCDOE moved swiftly to cure its error. This is precisely the purpose of requiring Parents to give notice of any defect in the IEP process or its development prior to placing its student in a non-public placement and seeking public funding of that placement. Parent in its demand identified several procedural flaws in the IEP but did not address them during the hearing. Exhibit A complains about the failure of the NYCDOE to complete a triennial assessment; failure to provide a bilingual during an assessment; failure to develop new/current IEP goals; the higher functioning of the classmates that the student would be grouped with; and the insecurity Parent felt about the lunch/eating assistance the student required and the necessity that the student have a teacher. Essentially this dispute centers around whether this student must have a teacher in order to receive a FAPE. The NYCDOE contends that its assignment provides an individual paraprofessional for the student where Parent claims a teacher is required.

The Federal requirement of a FAPE is a procedural one not any specific mandate for any student in the measurement/allotment of services or location of placement as it is national in scope and needs vary from student to student. When a Committee on Special Education (CSE) meets and develops an individual education program (IEP) it is the procedural requirements that must be evaluated and they are designed to provide the safeguards assuring a free and appropriate public education (FAPE). I find as a matter of fact that in this instance the meeting and the document produced meet the standard as set by both the federal requirements and the Commissioner‟s Regulations. The descriptions proscriptions annual goals and objectives are appropriate for the student as identified in the IEP and accompanying ( ).

On the evidence presented herein I find as fact that the NYCDOE did provide a legally sufficient IEP as a result of a procedurally legitimate CSE meeting and Parent has failed to demonstrate by a preponderance of the evidence that this student would not receive a free and appropriate public education at the assigned placement with the supports and related services as indicated. Further the placement of the student at was proper and competent to deliver a FAPE to this student. 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 or quality but that is not the standard/circumstance upon which a non-public school placement is awarded. Where there is no significant failure of a FAPE the parentally selected non-public school placement tuition payment is not required.

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: January 17, 2012

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

For the NYCDOE

1 IEP 3/8/11 22pgs

2 FBA 3/8/11 2pgs

3 Educational Progress Report 12/17/10 4pgs

4 Evaluation 6/10/10 6pgs

5 Goals 6/10 – 6/11 17pgs

6 Progress 12/22/10 8pgs

7 Classroom Observation 12/7/10 2 pgs

8 FNR 6/4/11 2pgs

9 FNR 6/22/11 2pgs

10 Parental Letter 6/15/11 1pg

For the Parent

A Impartial Hearing Request 8/5/11 3pgs

B IEP 3/8/11 22pgs

C Final Notice Recommend 6/4/11 2pgs

D Final Notice Recommend 6/22/11 2pgs

E Ten Day Notice 6/15/11 2pgs

F Evaluation 10pgs

G Evaluation 6/15/11 6pgs

H school IEP 2011- 2012 14pgs

I Class schedule 2011- 2012 1pg

J Class profile 2011- 2012 1pg

K Intervention Plan to facilitate learning 2011- 2012 4pgs

L ‟s ABLS 2011- 2012 3pgs

M Correspondence log 2011- 2012 1pgs

N School Affidavit 2011- 2012 1pgs

O Tuition contract 2011- 2012 4pgs

P Parent IRS document 2010 2pgs

Q ‟s charts , various dates 70pgs

R goals 2011- 2012 5pgs

S NYS certifications for personnel various 7pgs

T NYS Driver License 2004 1pgs

Impartial Hearing Officer 1 NYCDOE Closing Brief 1/4/12 3pgs

2 Parent Closing Brief 1/4/12 21pgs