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 15, 2011

November 14, 2011

December 21, 2011

January 6, 2012 Actual Record Close Date: February 17, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2011

Parents

Representative-District — DOE

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

Advocate — Student

Parents

Representative-District — DOE

DOE

Teacher-District — DOE

Teacher-District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011

Advocate — Student

Parents

Student

Representative-District — DOE

Teacher-District — DOE

Teacher-District — DOE

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

Advocate — Student

Parents

Representative-District — DOE

HEARING OFFICERS FINDINGS OF FACT AND DECISION

The matter of . came before me on September 15, 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 18, 2011. The hearing was convened at the request of the parent, which was received on August 16, 2011. The hearings were held on September 15, 2011; November 14, 2011; December 21, 2011 and January 6, 2012. The parties 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 placement of this in a state approved due to the alleged failure of the agency to have provided a free and appropriate public education sufficient to meet the needs of the child. Parent alleges the student is well known to the NYCDOE and the current placement in a is inappropriate and fails to meet the needs of the student. Parent concurs with the classification of but alleges that the student has not generalized ADLs across environments.

The NYCDOE counters that Parent has failed in her responsibilities and/or conversely the student has reached her potential and no further progress is expected (Tr.p. 109-110).

BACKGROUND

This student is currently years old and classified by the NYCDOE CSE as (Exhibit '5-1') . The student has been diagnosed as and has historically been a NYCDOE student (Tr. p.105). The consistent placement has been a assignment within a in a 12 month setting. The student is described as evidence is evaluations are completed. Student in the that are not reportedly evident within the school setting yet all agree the student is and requires The NYCDOE staff believes that the student has reached its and will not be capable of

THE POSITION OF THE PARTIES

The NYCDOE takes the position that a FAPE was provided to this student by a properly constituted and timely CSE meeting with a continued placement that was reasonably calculated to provide more than trivial advancement from grade to grade. It programmed the student for a special class in a specialized school with related services. Present at the CSE meeting in March 2011 were: Ms. (District Representative), Ms. (Teacher), M. ( ) and the Parent (by telephone). The IEP therein produced continued last year’s program with that year’s goals yet unmet. It is opined by two witnesses that the student have the much beyond the The teaching methodologies employed with this student are (data collection) combined with . The NYCDOE represents that this program and placement are appropriate for this student and properly delivers a free and appropriate public education to the student.

Parent initially appeared pro-se and at the first day of hearing requested opportunity to obtain the assistance of an advocate and has done so. The advocate has filed an Amended Demand for an Impartial Hearing (Exhibit A) acknowledged by the NYCDOE. The Parent represents that this student has been within the NYCDOE system for its and the student has significant . The Parent challenges the present IEP and the current placement which has not effectively few of which have transferred to the While the student is classified on the , the NYCDOE recommended evaluation indicates the and her performance levels in the evaluation indicate to levels of functioning ( with age equivalents (for all at with much of the testing (Exhibit 8). The Parent requests a placement consistent with the evaluation recommendation (Exhibit 9), a placement in a Parent requests a placement a It is unchallenged that this -old has however it is represented by the Parent that the student is capable of wants/ presents as and while and . The student is known to become when

THE NYCDOE CASE

The IEP (Exhibit 5) indicates the attendance of the District Representative (a witness herein) the Special Education Teacher (a witness herein) the Therapist and the Parent (by telephone) at the March 2011 IEP meeting. There are no other members present even though the student’s IEP indicates the student was considered for multiple general education programs (Exhibit 5-17) ultimately the CSE determined she remain in the current placement with the current program. The IEP meeting is alleged to have lasted about seven minutes. Tr.p. 90-91. The NYCDOE has conducted further IEP meetings during the course of these deliberations in light of Parent’s demand for a residential placement and each request was denied. The NYCDOE takes the position of an insufficiency/failure of Parent involvement in educating the student. Tr. p.119-123. The NYCDOE offers Exhibits 6 and 16 as representative of the multiple and various types of parent referred workshops and trainings and alleges it has met its burden in providing sufficient parent training opportunities to have met its obligation under the IDEA and claims Parent did not avail itself of the offerings. Essentially, the NYCDOE alludes to the Parent having complaints of /events not manifesting in the educational setting. To be sure the NYCDOE witness indicates the student has and has some difficulty with and has not . The NYCDOE deftly points out that a LEA is not required to maximize a student’s potential,

“It is well-settled that, in order to provide FAPE, the DOE must comply with the procedural requirements of IDEA and develop an IEP that is reasonably calculated to enable the child to obtain meaningful educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). See also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.

2003). This does not mean that an educational plan is only appropriate if it maximizes a child’s potential. Walczak v. Florida Union Free Sch.

Dist., 142 F. 3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. at

189).

The intent of Congress was not to "maximize the potential of handicapped children." Rowley, 458 U.S. at 189. On the contrary, the intent of IDEA was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 189. Thus, "[t]he basic floor of opportunity provided by [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Id. at 201. If "personalized instruction is . . . provided with sufficient supportive services to permit the child to benefit from the instruction . . . the child is receiving a free appropriate public education." Id. at 89.” (Exhibit IHO-1)

THE PARENT’S CASE

The Parent files this Demand for an Impartial Hearing against the NYCDOE alleging that the annual review held March 2011 failed to offer the student a FAPE. Parent challenges the composition of the team for failing to have a general education teacher in attendance (while considering a general education placement) and failure to include any evaluative material at the IEP meeting. Parent alleges a failure of the IEP in that several goals and objectives are acknowledged to have not been successfully accomplished and were carried over to the successive year. Parent alleges that the services are inappropriate for this and there are no comprehensive evaluations of the student’s performance, needs or technologies to assist the student in obtaining a FAPE. Essentially the Parent alleges that over many successive years this student has demonstrated and that said and is currently evident by the admitted of the student to meet the goals set for the student by the NYCDOE in its previous IEP. Tr. p. 200-204.

Both parties do agree that this student attempts to even though often by her . Three thirty minutes sessions of weekly appears a compared to the of this year old student’s Parent requests a for the student to achieve a level of capacity, of unavailable sufficiently in its present proscribed IEP program and placement.

Parent’s witness, a and of the student a references a family day wherein the student was instructed in the game of darts and was successful in learning how to play indicating the of the student to learn/develop new skills/abilities. It is clear that the program implemented by the NYCDOE is deficient in its ability to achieve the goals it previously established. While testing may indicate a of achievement anticipated to be gained by this student the current program has not afforded the student neither a FAPE nor the opportunity to develop toward any of The NYCDOE recommended convincingly testified that her recommendation (of a residential program) was well reasoned and commensurate with her analysis of the student’s capacity to with which to perform skills and prepare herself for the Such preparation is not currently being afforded this child.

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially it must be noted that there is a factual conclusion that this student’s IEP failed to provide a FAPE (free and appropriate public education). There is a failure of procedure and composition of the IEP team and the manner in which the IEP meeting was constructed. The IDEA requires a general education teacher as a mandatory member of the IEP team if placement in a general education program is considered. Here several general education placements were considered (Exhibit 5-17). Further, there is no indication that any evaluative materials were used or considered when constructing the prospective program and it is noted that the student failed to master much of the goals set out in the previous years’ program. It is also clear that the NYCDOE personnel have little expectation that the student is . Even if both parties bear some responsibilities in the lack of paramount the ability of the student to master and gain some semblance of particularly where there is some evidence of capacity, however limited. There was no substantiation of the allegation that Parent had proper notice of any sessions or that she failed to attend such sessions or when summoned to any meeting requested by the NYCDOE Parent failed to attend. Granted any particular parent-teacher open house may have conflicted with other parent responsibilities in addition to the trainings being offered conflicting with/during Parent’s working hours. Factually in this case I find that the NYCDOE has failed in its responsibility to provide this student with a program and placement providing more than mere trivial advancement from grade to grade in the IEP of March 2011. It is of note that the bulk of evidentiary submissions of the NYCDOE are dated subsequent to the IEP meeting of March 2011 of which parent objects.

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 this student in its IEP and placement has not been provided a FAPE and I Order the NYCDOE to evaluate the student for assistive technology on or before March 30, 2012l;

I ORDER the CSE to forward this student’s file to the central based support team to prepare and submit an admission package on or before March 20, 2012. Should this institution have an opening and an ability to provide the needed supports and education program sufficient to provide educational services for this student I further ORDER the student enrolled in the program and the tuition paid by the NYCDOE once acceptance is secured.

Dated: March 5, 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

PARENT

A Amended Demand for an Impartial Hearing, 11/21/11. 3pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 8/16/11, 1p. 2 Classroom Observation, 6/14/11, 1 p. 3 Progress Report, 6/7/11, 1 p. 4 , Various Dates, 2 pp. 5 IEP, 3/17/11, 19 pp. 6 Parent Training/ Documents, Various Dates, 2 pp. 7 Class Profile, 10/14/11, 1 p. 8 Evaluation, 10/14/11, 3 pp. 9 Evaluation, 6/8/11, 6 pp. 10 Therapy Update, 9/15/11, 2 pp. 11 Teacher Interview Form, Undated, 2 pp. 12 Report, 9/16/11, 1 p. 13 Therapy Review Plan, 9/22/11, 3 pp. 14 Social History Update, 8/3/11, 2 pp. 15 Declination Letter, 10/7/11, 2 pp. 16 Parent Training/ / , Undated, 37 pp. 17 Classroom Observations, Various Dates, 2 pp 18 IEP, 9/23/11, 14 pp. 19 , Various Dates, 6 pp.

IMPARTIAL HEARING OFFICER

I NYCDOE Closing Brief, 2/17/12, 3 pp. II Parent Closing Brief, 2/17/12, 16 pp.