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 23, 2011

December 20, 2011

January 19, 2012 Actual Record Close Date: February 17, 2012 Hearing Officer: Michael Kennedy Lloyd, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 23, 2011

Advocate — Student

District Representative — DOE

IEP Witness — DOE

Clerical Associate — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2011

Advocate — Student

Parents

Principal — Student

District Representative — DOE

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

Advocate — Student

Parents

District Representative — DOE

HEARING OFFICERS FINDINGS OF FACT AND DECISION

The matter of came before me on November 23, 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 September 21, 2011. The hearing was convened at the request of the parent, which was received on September 20, 2011. The hearings were held on November 23, 2011; December 20, 2011 and January 19, 2012. The Parent made a request to submit post-hearing memorandum and has 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 the continued/renewed placement of their child in a parent selected non-approved non-public program ( ) conducted within a general education non-state approved private school ( ). The student is reported as non-focused exhibits is identified as two years behind in core areas and requires a behavior management plan. Parent requests transportation and further complains that previously proscribed has been discontinued subsequent to the IEP meeting.

BACKGROUND

This student is currently and classified by the NYCDOE CSE as learning disabled (Exhibit 'C-1') which Parent does not dispute but Parent also alleges the student exhibits documented emotionally inappropriate behaviors not sufficiently addressed by the student’s placement (Exhibit 5-4). Tr.p. 34-40. The student attended the program last year as a result of a prior impartial hearing decision dated March 30, 2011 (Exhibit IHO-1). During the course of this hearing it became clear that the IEP was altered/ changed subsequent to the April 2011 meeting allegedly upon Parent’s telephone consent. The IEP (Exhibit 1-12) alleges a ‘clerical error’ however testimony reveals other occurrences. Tr.p. 43-46.

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 timely placement that was reasonably calculated to provide more than trivial advancement from grade to grade. The NYCDOE has programmed the student for an “ general education class with special education support services (5 periods per week direct services) in a separate location with related services” (Exhibit 1-1). Placement was deferred until September 2011. Related services were twice weekly (1X1 and 1X3) with twice weekly (1X3) in a separate location. initially programmed twice weekly (1X1) was terminated under aforementioned specious circumstances. The NYCDOE counters that Parental consent was obtained prior to termination.

Testimony reveals that the actual placement was to be in a general education class with 22-25 students not a CTT class. The NYCDOE represents that the various emotional circumstances exhibited by the student were known and were not sufficiently disruptive to warrant a behavior assessment and could be managed by the class teacher. The NYCDOE further indicates the student is almost at grade level and would be able to function within the class assigned and potentially capable of achieving a Regents diploma. Tr.p. 39-79.

THE NYCDOE CASE

The IEP (Exhibit 1) indicates the presence of all mandatory members at the April 2011 IEP meeting as required by law. In attendance was the general education teacher (also serving as district representative) the school psychologist a school social worker the student’s teacher a mandatory parent member the Parent and parent’s advocate. There was available at the meeting a psychological evaluation (with Stanford Binet Intelligence Scales, 2 years old) a a detailed school report (Exhibit 6) but no evidence of any occupational therapy evaluation. The NYCDOE postures that the contradictions on the written IEP are mere clerical/ministerial errors and are not substantial/fatal to the provision of a FAPE (free and appropriate public education) and since the Parent consented to an after arrived decision (subsequent to the IEP meeting) to terminate occupational therapy a FAPE has been provided. The NYCDOE alleges a Final notice of Placement was sent to Parent on April 29, 2011 as indicated by Exhibit IHO-2. The NYCDOE testifies that the school and Parent acknowledged that the had not been provided therefore they allegedly mutually concluded the student no longer needed therapy. Parent has made no claim for compensatory occupational therapy services allegedly missed and therefore I make no ruling on compensatory occupational services.

Later testimony of the Parent indicates that he had no intention for the student to be enrolled in any public school. Tr. p. 222. The NYCDOE suggests this admission should be grounds for denial of his IDEA claim.

THE PARENT’S CASE

The Parent files this Demand for an Impartial Hearing against the April 2011 IEP alleging the placement is inappropriate. Parent’s takes the position that the placement offered by the NYCDOE is defective in several aspects. Initially, Parent claims that no notice of final recommendation (Exhibit 8) was received by the Parent despite Parent’s hyper-vigilance anticipating its arrival; Parent indicates that the NYCDOE placement in a general education class (with supports) would be when the student presently attends an 8-1 placement with only 4 (four) students, yielding a 1-4 teacher pupil ratio. Parent alleges the placement is inappropriate and any unstructured transition to such a large class environment would exacerbate the . While Parent frames the issue as placement, the evidence leads to a challenge of the IEP and the various appropriate weights afforded multiple factors in analyzing the student’s challenges. Parent claims a failure of FAPE improperly addressing the student’s documented emotional handicap by placing the student in a potentially overwhelming class setting without adequate supports (see IHO 39). It appears the NYCDOE adopted a minimalist’s approach to addressing the duality (multiplicity?) of handicapping conditions challenging this student. It is interesting to note that the IEP suggests a deferral until September for a placement (Exhibit 1-1) yet 16 days following the IEP meeting the related service of Occupational Therapy is ‘terminated’ and a FNR is sent out by the ‘placement officer’ (Exhibit 8). Compare Tr. p. 81-89and Exhibit IHO 3. The documentation concerning the consent of the Parent to discontinuation of by the NYCDOE is sparce. Both Parents appeared and testified (affording the opportunity of inquiry) and the issue was not substantiated.

Parent’s witness from the indicated in detail the services/strategies provided to the student in order increase her tested and teacher estimated performance to almost grade level ( ). This is the student’s third consecutive year in the program and it is estimated that she would be appropriate for integration back into the general education population by the 2012-2013 school year. Tr. p. 143-149. The mother in her testimony indicated she intended to place the child in public school and the father in his testimony indicated a contrary opinion.

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially, it must be noted that there is no immediate conclusion that this student’s IEP failed to provide a FAPE (free and appropriate public education). There has been a failure of procedure not composition of the IEP team but the manner in which the IEP document was constructed/ implemented. The placement process when viewed with the IEP document and the termination of Occupational Therapy without documented Parental consent clearly violates the opportunity of full parental participation. Counsel/ Advocate for Parent appeared and participated at the IEP meeting and there is no indication he was contacted while his client was traveling overseas on the issue of termination of services post IEP meeting. There was no testimony from any NYCDOE witness that communicated directly with the Parent (sometime late April 2011) obtaining consent to discontinue services. On this evidence before me, I am left to conclude the NYCDOE has failed to deliver a FAPE to this student failing Prong 1 of the Burlington-Carter test.

The apparent error on page I of the IEP indicates a proscription of an 8-1 class size yet in fact the student was assigned a seat in a general education classroom with upwards of 25 students. While this may be a mere ‘clerical error’ and standing alone, it might not be sufficient to obviate the totality of the IEP but when coupled with the class assignment not following the continuum of services thereby assigning the student to a general education class significantly challenging this student’s emotional handicap the error takes on larger meaning. When this is included with a placement implemented by a NYCDOE staff member admittedly not a Placement Officer, the errors in total have compromised the ability of the Parent to be a full participant of the IEP team. Tr. p.8392.

The testimony of the School Principal at succinctly described the methodology and techniques used to assist the student to succeed with academic subjects. The student is mainstreamed in three core subjects (up from one last year) and reportedly is performing satisfactorily however still has Language Arts and Math in conjunction with her core 8-1 assignment. The student is being gradually integrated into the general education population within the private school. The upcoming triennial evaluations due March 2012 will convincing prove the success (or failure) of the program in educating this student. However, at this hearing the NYCDOE did not challenge the program at the educational competence of the program or the qualifications of the staff and personnel of this parent selected placement.

The NYCDOE has made no assertion that the parents were uncooperative or less than forthright in keeping the NYCDOE informed concerning the circumstances of the student. Parent submits Exhibit A as its 10-day notice as required by statute.

The NYCDOE has requested a decision in their favor immediately following the admission by one parent that there were not any foreseeable circumstances that would permit him to intend to enroll his child in public school. The Motion is denied as (1) it lack substance and because (2) it fails to conversely include the declared intentions of the other joint custodial parent of its intention to enroll the student in public school. Because a Parent intends a private education for their child that does not relieve the local education agency from providing the student its federal rights under the IDEA. 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 substantiated a procedural and substantive failure of the CSE meeting the IEP produced and the inappropriateness of the placement as assigned by the NYCDOE to deny this student a FAPE. The NYCDOE has significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. After a full hearing on the merits of these matters, this complaint is decided in favor of the Parent. The NYCDOE is ORDERED to pay directly to the the tuition charges for this student to attend the institution for the 2011-2012 school year. Those payments may be adjusted to allow for the NYCDOE to deduct the apportioned amount commensurate with the hours dedicated to religious instruction and education at the institution. The NYCDOE is further ordered to provide the related services as proscribed on the student’s IEP with the related service of restored to that IEP or the NYCDOE must obtain written consent from the Parent to discontinue same. The NYCDOE is

ORDERED to provide transportation to school commencing on or before March 15, 2012 through the end of this school year. Parent is ORDERED to present an adjusted bill to the NYCDOE payment office within 10 days from the date of receipt of this decision accounting for the deductions consistent with this decision. Payment by the NYCDOE is to be completed 36 days after presentation of the adjusted bill. DATED February 28, 2012

_________________________________________

MICHAEL KENNEDY LLOYD, ESQ.

Impartial Hearing Officer

MKL: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 Letter Notice, 8/24/11, 3 pp. B Impartial Hearing Request, 9/20/11, 4 pp. C IEP, 4/13/11, 13 pp. D Tuition Contract, 9/8/11, 2 pp. E Class Schedule, 2011-2012, 1 p. F Affidavit Letter, 11/22/11, 1 p. G Attendance Records, 2011–Present, 1 p. H Evidence Statement, 11/22/11, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 4/13/11, 14 pp. 2 Observation, 3/5/11, 1 p. 3 Fax Confirmation, 4/8/11, 1 p. 4 Evaluation, 3/6/09, 4 pp. 5 Evaluation, 7/7/09, 4 pp. 6 School Report, 3/22/11, 1 p. 7 CSE Minutes, 4/13/11, 1 p. 8 Final Notice Recommendation, 4/29/11, 1 p. 9 Contact Sheet, 4/28/11, 1 p.

IMPARTIAL HEARING OFFICER

I Impartial Hearing Decision, 5/5/11, 12 pp. II Placement Office Record, 2011-2012, 1 p. III Closing Brief Parent, 2/17/11, 13 pp.