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: January 5, 2012

January 27, 2012

January 31, 2012

February 8, 2012

Fe bruary 10, 2012

March 12, 2012

March 14, 2012

April 2, 2012

Record Close Date: May 14, 2012

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2012

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 27, 2012

Attorney — Student

Parents

Program Director- — Student

Speech Therapist- (via telephone) — Student

Occupational Therapist- — Student

Attorney — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012

Attorney — Student

Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2012

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

Placement Officer (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2012

Attorney — Student

Attorney — Student

Attorney — DOE

Assistant Principal- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2012

Attorney — Student

Attorney — Student

Parents

Occupational Therapist- (via telephone) — Student

Teacher- (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2012

Attorney — Student

Parents

Teacher (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 2, 2012

Attorney — Student

Attorney (via telephone) — DOE

The parent’s impartial hearing request pursuant to the Individuals with Disabilities Education Act (“IDEA”) was received on September 27, 2011. The parent contends that the student was denied a free appropriate public education for the 2011-12 school year and therefore seeks reimbursement for the cost of the parent’s unilateral placement and other relief. School District The school district presented testimonial and documentary evidence in support of its position that it offered a Free Appropriate Public Education (“FAPE”) to the student. (Testimony and Exhibits 1-8) Witnesses included a school psychologist, a special education teacher from the recommended placement, a placement officer, and the assistant principal of the recommended placement.

A school psychologist testified on behalf of the school district. (Tr. at 7-170) She testified that she is familiar with the student and his needs because she has prepared several Individualized Education Programs (“IEP”) for the student. An IEP review meeting for the 2011-12 school year was held on March 30, 2011. Present at the review were the school psychologist, a special education teacher who also served as the district representative, the parent member, the student’s classroom teacher, a social worker from the unilateral placement, and the parent. (Exhs. 11, D) testified regarding the reports that were considered at the IEP meeting, which included the previous year’s IEP, two classroom observations, an interdisciplinary school report prepared by the unilateral placement, samples of the student’s work and the most recent educational evaluation. Everyone present at the meeting was provided the opportunity to participate and they did. The team recommended a , 12-month program, therapy, , . The parent did not object to most of the recommendations. Although the IEP was drafted in advance, it was reviewed in detail at the meeting and changes were made to accommodate the concerns of team members. The interdisciplinary report was used by the school district and unilateral placement special education teachers to prepare the present performance section of the IEP. (Exhs. 11, D)

The school psychologist described specifically how the IEP would address the student’s overall management needs, including his significant , needs, his writing , . She also testified that the goals were based primarily on school reports and were revised at the meeting. She explained how the goals would be measured. A transitional paraprofessional was recommended to ensure that the student would adjust successfully to his new school.

A (“ ”) was not prepared because the team was already very familiar with the student’s behavior, that his behavioral needs could be addressed by the classroom teacher and that it did not interfere with instruction.

Parent training was discussed at the meeting and the parent was told that it was programmatic for all classes.

The also testified about the student’s progress at the unilateral placement, which he has attended for several years. She noted that his functional levels in decoding and computation have declined. (Exh. 1)

A Final Notice of Recommendation (“FNR”) was issued on June 11, 2011. It recommended that the student attend P811Q for the 2011-12 school year. (Exh. I) By letter dated June 29, 2011 the parent rejected the placement. (Exh. L)

The classroom teacher from the recommended placement testified on behalf of the school district. (Tr. at 178-220, 333-407) She testified that if the student had joined the class she would have conducted her own assessments in the areas of reading, math, group behavior, socialization, language and motor function. She described the teaching methodology, tools and services available at the school, which include the unique learning curriculum, a smart board, the vizzle program, visual schedule, token boards, visual symbols, token economy, sensory tools, regulation support, movement breaks, repetition, clear expectations, related services, a classroom paraprofessional, a daily report notebook for parents and parent training, She also testified that the student’s age, needs and abilities were similar to those of students in her class. She opined that the classroom was appropriate and that all of the student’s needs would have been met.

The assistant principal of the recommended school testified on behalf of the school district. (Tr. at 477-558) The school consists of one main site and eight additional sites. The student would have attended the site at . The assistant principal conducted the tour on the date the parent allegedly visited the school but she did not recall meeting the parent and the parent’s name is not on any visitation list. She is the only person at the school who conducts tours for students with . Parent

The parent, the program director, speech therapist, occupational therapist and two teachers from the unilateral placement testified on behalf of the parent. They testified regarding the student’s needs and the services he receives at the unilateral placement. They opined that the school district’s recommended placement was not appropriate and that the unilateral placement was appropriate. The parent also submitted documentary evidence (Tr. at A-NN)

The parent claims that both procedurally and substantively the school district failed to offer the student a FAPE for the 2011-12 school year. The parent contends that the recommended placement on the FNR was not the school which he was to attend if the parent had consented, the recommended program was not reasonably calculated to provide a FAPE, the school district violated its Jose P. obligations, the school district was required to conduct a and develop a , (“ ”) the school district deprived the parent of meaningful participation in the IEP program by drafting the IEP prior to the IEP meeting, the school district would not have been able to provide the recommended transition paraprofessional, the school district failed to conduct appropriate evaluations and assessments for the student, the school district failed to conduct an assistive technology evaluation and failed to support existing technology, the school district failed to assess the student to determine an appropriate teaching methodology, the school district failed to rectify their IEP program and placement recommendation when the parent refused to consent or during the thirty-day resolution period, the cumulative effective and combined impact of the school district’s multiple IEP violations deprived the student of a FAPE, the school district failed to consider the student’s need for a transition plan and the school district’s failure to recommend any parent counseling and training on the IEP deprived the student of a FAPE.

FINDINGS

As was recently reiterated in Appeal No. 12-024, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). In the instant case, I find that the purposes of IDEA were met.

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. Bd. 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 decisionmaking 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at 2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. 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]).

In this case I find that there were no procedural errors which impeded the student’s right to a FAPE, impeded the parent’s opportunity to participate in the decisionmaking process or caused a deprivation of educational benefits. The IEP team was validly constituted and consisted of members who were very familiar with the student’s needs and knowledgeable about his , and . It included the school district psychologist who had prepared previous IEPs for the student, his teachers and providers, and his parent. The parent contends that the fact that the IEP was drafted in advance deprived the parent of the right to meaningful participation in the IEP drafting process but the opposite is true. The fact that the team was provided an IEP draft that already took into consideration and incorporated school reports and evaluations allowed the team to have a working document that allowed them to spend most of the IEP meeting developing a detailed, comprehensive IEP which addressed all of the student’s needs and made recommendations which were reasonably calculated to meet those needs. If changes were needed they were discussed and made with the full participation of all team members.

The IDEA directs that, in general, an IHO'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 Least Restrictive Environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 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]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a 7 Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

I find that all of the above requirements were met in this case. As to the placement offered on the FNR, the record establishes that it was the same one that the student would have been enrolled during the 2011-12 school year. As was explained at the hearing, the placement has several sites and the student would have attended the site and class appropriate for his needs.

I also find that the IEP did provide a program that was reasonably calculated to provide meaningful benefit and more than mere trivial advancement, as was demonstrated by the testimony of the school district’s psychologist, the classroom teacher and the assistant principal of the recommended program. The IEP was based on reliable and comprehensive evaluations and school reports from the unilateral placement. Although the evaluations did not include a or evaluation, and no was prepared, the record establishes that these were not required in this case to develop a program reasonably calculated to meet the student’s needs. The parent’s request for parent services was also met. This issue was discussed at the review meeting and parent services would have been provided as an integral part of the recommended program. The student would also have received the transition services the parent requested from a transitional paraprofessional and from his teacher and other providers in the program.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v., 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Having found that the services offered by the school district were adequate and appropriate, I find that the school district offered a FAPE for the 2011-12 school year and that the parent is therefore not entitled to reimbursement for the cost of the unilateral placement. Having determined that a FAPE was offered, it is not necessary for me to consider the appropriateness of the unilateral placement, or whether the equities support the parents' claim for tuition reimbursement. (see MC v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).

I have also considered the parties' remaining contentions and find that I need not reach them in light of my determination herein.

Order

The parent’s requested relief is denied. Dated: May 14, 2012

_____________________________

ESTHER MORA, ESQ.

Impartial Hearing Officer

EM:dl

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 ON JANUARY 5, 2012

PARENT

A Demand for Due Proces, 9/27/11, 10 pp. B Findings and Fact and Decision of Hearing Officer , 4/5/10,

20 pp. C SRO Decision, 7/7/10, 7 pp. D IEP, 3/30/11, 18 pp. E Interdisciplinary Report of Progress 12/2010, 16 pp. F Observation, 1/5/11, 2 pp. G New York City Department of Education Classroom Observation Report by

1/5/11, 2 pp. H CSE Meeting Minutes, 3/30/11, 1 p. I Final Notice of Recommendation for the , 61-25 , New York, 6/11/11, 1 p. J Addendum for the Payment Schedule, 6/23/11, 2 pp. K Enrollment Contract for 2011-2012 School Year, 6/23/11, 4 pp. M Addendum to the Payment Schedule for 2011-2012 School Year, 8/12/11, 2 pp. N Enrollment Contract for 2011-2012 School Year, 8/12/11, 4 pp. O Affidavit by , 12/20/11, 2 pp. P Document Regarding Test at the , 1 p. Q Interdisciplinary Report of Progress Update , 12/2011, 14 pp R Medical Record, New York City Department of Health, Undated, 2 pp. S NPS Attendance Card at the for 7/2011 and 8/2011, 2 pp. T Daily Schedule for , 2011-2012, Teacher, , 1 p. U Mission Statement, Undated, 1 p. V Behavior Management and Discipline Policy, Undated, 1 p. W Curriculum, Undated, 3 pp. X Parent Newsletter, Newsletter for Fall 2011 Tips for Parents,

10 pp. Y Curriculum Vitae or Diplomas Various Providers and Teachers, Undated, 14 pp. Z Special Education Service Delivery Report , 1 p. AA Deferred BB Deferred CC Full-Time Educational Paraprofessionals, Teaching Assistants, Minimum Levels of Diploma Requirements DD Deferred EE Deferred FF Deferred GG Deferred HH FBA Assessment, 5/20/11, 2 pp. II District Placement Office Referral Form JJ Guidelines from the State of New York, 5/20/11, 2 pp. KK Deferred

DEPARTMENT OF EDUCATION

1 Evaluation, Various Dates from 7/2008, 6 pp. 2 Sample of Student's Work, Various Dates in 10/2010, 5 pp. 3 Interdisciplinary Report of Progress from , 12/2010, 16 pp. 4 Classroom Observation and Report, 1/5/11, 2 pp. 5 Response to the CSE Observation, 1/5/11, 2 pp. 6 Individualized Education Program, 3/30/11, 17 pp. 7 Meeting Minutes from the CSE Meeting, 3/30/11, 2 pp. 8 Due Process Response from the Department of Education, 10/7/11, 4 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 8, 2012

PARENT

LL Mem./Order , 7/29/11, 37 pp. MM Formal Motion for Pendency, 2/3/12, 2 pp. NN District Referral Form, 6/11/11, 1 p.

DEPARTMENT OF EDUCATION

None