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Special Education Law
DECISIONParent PrevailedSEL No. 2012-ih-532

New York City Department of Education, Impartial Hearing Decision

June 19, 2012·Martin J. Kehoe III·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: January 17, 2012

February 13, 2012

February 15, 2012

March 14, 2012 Actual Record Close Date: June 18, 2012 Hearing Officer: Martin J. Kehoe, III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED: JANUARY 17, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Psychologist — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: FEBRUARY 13, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Teacher — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: FEBRUARY 15, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Teacher — Student

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

Attorney — Student

Parents

Teacher — Student

Administrator — Student

For the Board of Education: — Student

Attorney — Student

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. The issue is whether or not the District offered the Student a Free Appropriate Public Education (FAPE). The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), SRO decision 11-035, see also SRO decisions 10-105, 11-010.

Parents’ Position

It is the Parents’ position that the District did not offer the Student a FAPE. In the complaint notice dated October 31, 2011, (Ex. A) the Parents assert that there were procedural flaws in the development of the Individualized Education Program (IEP) and that the proposed placement is substantively inappropriate for the Student. The Parents maintain that because of the , , . While I recognize that many of the complaints have both procedural and substantive impacts, I divide the issues along these lines in order to facilitate a discussion of the many complaints.

The alleged procedural errors on the IEP include 1) an incorrect date of birth and age for the Student; 2) The Parents assert that the Committee on Special Education (CSE), which met on March 9, 2011 to develop the new IEP, did not follow the New York State Education Department’s guidelines for teleconferencing; 3) They say that the special education teacher was not provided with the reports, evaluations and other documents; 4) In addition, the Parents said that they were not given these documents five days prior to the meeting and were not informed as to what reports or evaluations the CSE utilized in assigning the placement; 5) The Parents also assert that the CSE failed to obtain updated evaluations of the Student’s current academic skill levels; the IEP does not reference testing or evaluation and instead relies on teacher estimates of the Student’s skill levels; 6) The Parents are asserting that they were “denied meaningful opportunity to participate in the development of [the Student’s] IEP as the therapy and therapy goals were not discussed at the CSE meeting at all.” (Ex. A)

The substantive complaints include 1) The Parents belief that it is not possible for the annual goals and short term objectives to be met in a program without additional support; 2) The assertion that the goals and objectives are insufficient as they do not include a method for assessing the Student’s progress or a grade level baseline, and do not reference appropriate grade level performance standards; 3) At the CSE meeting, the Parents said that the Student does not need physical therapy however, the CSE kept this service on the IEP but did not establish goals; 4) The Parents also said that the occupational therapy, speech, and counseling goals are the same as the initial reports from the private school for the 2010-2011 school year, and many of the goals have already been met. When the Parents pointed out that the Student has achieved the skills goals, the CSE did not revise them; 5) the Parents give their reasons for objecting to the proposed placement: The other students seemed to have a than the Student; the teacher said that none of them were above grade level and several were non-verbal. The Parent feels the Student “requires models for speech development and expansion of .” (Ex. A) The Parent was also concerned that the Student would take art, music, and gym with the general education students and could be in classes with as many as thirty students; 6)The Parent would like the Student to have access to an for (Ex. A@ p.4) and a for his , which are both provided by his current school. The Parents are requesting tuition reimbursement for the 2011-2012 school year. (Ex A)

District’s Position

It is the District’s position that they offered the Student a FAPE. They maintain that the CSE was properly constituted and included the Parents and representatives from the Student’s school at the meeting, and that they created an IEP with appropriate, measurable goals and gave him an appropriate placement. The District responded on November 4, 2011, placing the allegations in the complaint notice in issue. (Ex. K) In particular, they challenge the appropriateness of the . (District brief @ p.14-18)

Student History

The Student is . He is a and has been . (Ex. G) He is classified as having a . (Ex. M) This classification is not in dispute. His current class in the has nine students; there are in the school. (Tr. P. 318) He and . (Ex. G)

A review of the record indicates the . In the contested IEP the Student is described as “. . . an inquisitive boy who has , and his . These factors hinder his progress. He requires supports to continue his academic . . . progress. … and also help direct [the Student]. Furthermore, he is distracted by internal and external stimuli.” (Ex.

M) Teacher estimates provide a score of in decoding, and for reading comprehension and written expression. (Ex. M) In math, he is given a score of in applied problems and calculations. (Ex. M) In present performance, it states: “He requires . He benefits from .” (Ex. M) In the from the private school, dated October 2011, six months after the CSE meeting, the describes the Student as “an who demonstrates difficulties when needed. In addition, [the Student] has difficulties reading , processing social information quickly, and coping with unexpected events.” (Ex. H) The Student’s , also dated October 2011, provides goals for the Student in and , and , and goals. (Ex. I) The Student’s gives the Student goals in . (Ex. J) The observation by the District social worker on January 10, 2011, (Ex. L) described the Student as “ . He benefitted from teacher assistance, repetition, and redirection.” The Psychological Evaluation, which was conducted as a private evaluation, and dated 10/17/09, 10/25/09, and 12/16/09, (Ex. 7) provides some additional insights into the Student. He was assessed using the Weschsler Preschool and Primary Scale of Intelligence—Third Edition (WPPSI-III) and received a score of 92, falling at the 30th percentile, within the average range of intellectual functioning. (Ex.7) In the summary of findings, the psychologist wrote: “He which can thwart demonstration of his cognitive abilities and the full expression of his pre-academic skills.” (Ex. 7)

Background of Case

A review of the record gives the background of the case. The District sent a notice of the date, time, and participants for the IEP meeting to the Parents on March 1, 2011. (Ex.1) The CSE met on March 9, 2011 to develop an IEP for the Student. The District sent the Parents the Final Notice of Recommendation (FNR) during the summer; it is dated July 11, 2011. (Ex. N) The Student’s mother wrote to the CSE in a letter dated July 20, 2011 (Ex. O) and said she would need to visit the placement before agreeing to accept it, but said she had concerns about the large size of the school and the distance from her home. She wrote, “[The Student] and .” (Ex. O) In another area of concern, the Student’s mother said she had researched the placement and discovered that in the NYCDOE’s 2010-2011 School Survey that there were safety issues. (Ex. O) She requested a class profile (Ex. O) but was not sent any information. On August 24, 2011, the attorney for the Parents sent a letter to the Chairperson of the CSE (Ex. B) informing him of their intent to place the Student in a private school and to seek funding and request transportation, if the District did not correct the errors in the IEP and offer an appropriate placement. In the letter, the attorney spoke of the Student’s needs, including his difficulties with . (Ex. B) The attorney states that the Parents and the educators who work with the Student feel he needs a small, structured class with appropriate peers in a special education school that can address his needs. (Ex. B) However, the attorney expressed the Parent’s intent to visit the school when it re-opened. (Ex. B) On September 9, 2011, the mother sent a letter to a member of the CSE rejecting the placement. (Ex. P) She wrote that she visited the school on September 8, 2011 and her impressions led her to conclude that it would be an inappropriate placement for the Student. She explained her reasons, which include the large size of the school and the large number of students, safety concerns, distance from her home, and the class itself; although there were only five students enrolled, they all required a lot of assistance, the classroom does not have an FM unit, and the student would be mainstreamed in large classes for the special subjects. (Ex. P) Exhibit F is the Student’s first grade class schedule.

The transcripts of the hearings provide further background about the issues in this case. In the hearing on January 17, 2012, the District psychologist who participated at the CSE meeting testified. When asked if the IEP listed the documents that were relied on, he answered no, but went on to name the documents that were used: the mid-year report (Ex. 3), the counseling plan (Ex. 4), the plan (Ex. 5), the plan (Ex. 6), the (Ex. 7), and the observation (Ex. L). (Tr. PP. 39-41) The also testified that there were not any goals for because they would need to receive a report from the private school or a they could remove the service; he acknowledged that the Parents questioned the need for physical therapy and said they were told to discuss it with their pediatrician. (Tr.

P. 42) He said the CSE committee decided a placement would be appropriate because: the Student’s “ and . In other words, they were not interfering with his academic level of functioning to the extent that he needed an extra adult.” (Tr. P. 45) He said all the goals were based on reports from the private school (Tr. P. 49) and discussed each of the goals. (Tr. PP. 56-64). There are some handwritten notes on the IEP, which the said indicate areas that were added at the meeting. (Tr. PP. 67-68; 70) He said issues such as the size of the school are addressed by the placement office, not the CSE, whose role is to update the IEP and the goals. (Tr. PP 83-84) He said the Parents discussed the size of the class and the size of the school at the meeting. (Tr. P. 94) The answered questions pertaining to the evaluations (Tr. PP. 97-109)

On February 13, 2012, a special education teacher from the District testified about the class she was teaching in the proposed placement in which all the students were classified with speech impairments. (Tr. P. 167) She said some of the students could have been functionally grouped with the Student in math and reading. (Tr. P. 167) She spoke of how she would have addressed the Student’s needs and goals (Tr. P. 172-188) and the way that related services are provided in the school. (Tr. P. 188-192) On February 15, 2012, the special education teacher continued with her testimony. First, she explained the reading levels in the school’s reading program (Tr. P. 212-216) She testified that the students in the , but none of the students were . (Tr. P. 219-223) She testified as to the academic level in math for the students in the class (Tr. P. 226), how she teaches small groups and individual students (Tr. P. 232), her methods of assessment (Tr. PP. 233-234; 257), how she helps students with (Tr. PP. 237-238), and whether the students in her class that September would have been able to work on the same academic goals as the Student (Tr. PP. 243-247). On the final day of the hearing, March 14, 2012, the Student’s teacher from the private school, the private school administrator, and the Student’s mother testified. The teacher described the Student: “Academically he’s a very smart, bright boy.”(Tr. P. 287) She spoke about , delays. (Tr. PP. 283-285) She said his decoding, reading comprehension, writing, and math skills are on the first grade level (Tr. PP. 285-286). She said she thinks a setting would be an appropriate class ratio for the Student. (Tr. P. 312)

The private school administrator, who developed the school’s program, spoke about the school and how it helps students, the qualifications of the teachers and assistant teacher, and the way related services are provided in the school. (Tr. PP. 318-324) She said the Student is “. . . in the academic area. But he has awareness area. He’s got with his peers. He …He also has quite . So it makes it difficult for him to maximize the academic potential that he truly has… He also has as well.” (Tr. P. 330) She thinks the school is appropriate for the Student and is meeting his needs. (Tr. P. 330)

In the issue of the tuition contract, she said the school requires parents to give a non-refundable deposit of eight thousand dollars; the Student’s parents signed the contract and paid the deposit on January 28, 2011. (Tr. PP. 332-335) The school does not offer physical therapy and limits the amount of other therapies students can receive to five sessions a week. (Tr. P. 337) She said that the related service providers are not always available for CSE meetings because they are busy providing therapy to the students. (Tr. P. 340)

The mother testified about the . In addition to the , she said he has which affect his . She explained: “Well he’ll definitely in a group. At times he might try to withdraw himself. He can in a classroom especially if there’s a lot of , a lot of lengthy directives. He needs . He needs support with interacting with his peers since it’s hard for him.” (Tr. P. 343) She said he tries to avoid because of his . (Tr. P. 344) The mother talked about how the began early; he was evaluated at 18 months because he could only say one word and received services by 20 months, then enrolled in an early intervention center preschool program from ages two through four. (Tr. P. 344) He also services through the District. (Tr. P. 345) She said she had the Student evaluated before the turning five meeting because he still had many difficulties in the . (Tr. P. 346) The Parent testified that there were no reports used at the CSE meeting (Tr. P. 353-355; 357). She said the talked about the scores on the briefly, (Tr. PP. 359-360). The only other report mentioned was the observation, which the social worker read aloud. (Tr. P. 361) The Parent said that at first, the committee discussed the possibility of a CTT class placement, but both parents and the Student’s teacher said he needed more support, so they offered a but would not offer a . (Tr. P. 363) The mother said: “We had reservations that it would still be supportive enough, but we placement they were going to give him.” (Tr. P. 364)

ANALYSIS

The first issue in this litigation is whether the District provided the Student with a FAPE for the school year. I find that they did not based upon an improper procedure during the CSE meeting and the failure to demonstrate the substantive validity of the recommended program in district. My decision considers both procedural and substantive grounds. In making this decision I conducted a review of the record and incorporated arguments of counsel.

LEGAL BACKGROUND

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

ANALYSIS

Prong I

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20010-2011 school year. The Parents have raised both procedural and substantive violations.

Procedural Violations

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

First, I will address the procedural challenges raised by the Parent. Regarding the claim that the IEP contained the wrong birth date of the student, I resolve the issue in favor of the District. Although there is no refuting the error, it is easily correctable and will remain so as the collaborative process goes forward. I could imagine a scenario where the Student might be incorrectly grouped by the placement office based upon this information, but that is not what happened in this case.

The Parents also assert that they were “denied meaningful opportunity to participate in the development of [the Student’s] IEP as the occupational therapy and speech therapy goals were not discussed at the CSE meeting at all.” (Ex. A) According to Dr. Abramowitz, the goals were discussed prior to the CSE meeting when a draft IEP was created. (T. 112- 114). He admitted that the parents were not part of this earlier process and that he was unsure if the parents had been given a copy of the draft IEP. (T. 114). A review of documents prior to the meeting, when all participants are not available, does not excuse the CSE team from failing to discuss documents during the meeting. See App. of a Child with a Disability, Appeal No. 00-043. The parents maintain that this failure to fully include the parent in the process led to the development of an IEP and program recommendation that was not reasonably calculated to confer an educational benefit upon Adam. However, my review of the transcript reveals that the proposed goals were discussed at the meeting. According to the testimony of the Parent when questioned by her attorney, both the goals were presented at the meeting and comments were solicited. (Tr. Pp. 367-368)The fact the goals were pre-drafted is not fatal to the District’s case. (See, SRO decision 12-027 footnote #4)

The Parents assert that the CSE failed to obtain updated evaluations of the Student’s current academic skill levels but instead the CSE relied on teacher estimates of the Student’s skill levels. An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a 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). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1][I]; see also 8 NYCRR 200.4[d][2][i][a]. School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). In the instant case, the District psychologist who participated at the CSE meeting testified that the following evaluations were considered by the CSE: the mid-year report (Ex. 3), the counseling plan (Ex. 4), the speech and language therapy plan (Ex. 5), the occupational therapy plan (Ex. 6), the psychological evaluation (Ex. 7), and the observation (Ex. L). (Tr. PP. 39-41) Although the information considered could have been more current regarding the Student’s needs,

(T. 89) I have reviewed the above documents and they provide a background to begin a discussion which would identify his needs. (Whether this discussion took place is another question.) Therefore, as a purely procedural violation, I rule for the District.

When the CSE met on March 9, 2011 to develop the new IEP, it is alleged that they did not follow the New York State Education Department’s guidelines for teleconferencing. The issue of the “parent members” participation via teleconferencing was addressed in Application of a Child with a Disability, Appeal No. 00-043. The guidelines implicated are set forth in a memo to the field, by former Assistant Commissioner Thomas B. Neveldine, entitled The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), dated June 1992 The memo provides, in pertinent part, that:

1. Telephone conferencing is an interactive process that allows participants to engage in discussions regarding a child’s education during the scheduled

Committee meeting. A telephone discussion that occurs prior to or after the meeting does not meet the regulatory intent of participation at committee meetings.

2. Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting. During the meeting, all participants, including the child’s teacher and the parents, must hear all information provided by Committee members and other participants and must be able to discuss all issues with the CSE/CPSE members.

3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child’s teacher, for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting.

Similarly, the Committee should be provided with all relevant teacher and related service provider reports. The confidentiality of this information must be assessed according to the provision of subdivision 200.5(f) of the Regulations of the Commissioner of Education.

4. Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objects. Where teleconferencing is offered as an alternative to a face-to- face CSE meeting, parents must be informed through prior notice that they have the right to participate in a face-to-face meeting of the committee with the child’s teacher in attendance. (my emphasis) The State Review Officer has noted that the field memo guidelines do not have the force and effect of a regulation, but they are consistent with the policies underlying the Individuals with Disabilities Education Act (20 U.S.C. §§1400, et seq.) and its state counterpart, Article 89 of the Education Law. See, Application of a Child with a Disability, Appeal No. 00-043, preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes.

In review, it appears that this guidance was misunderstood by the CSE chair who conducted the meeting. His rationale for moving the Student to a less restrictive environment ( ) is that the Student does not require an additional adult in the classroom: “. . . he is making gains in his ability to work autonomously. . . ” (Tr. P. 80) This conclusion was reportedly gleaned from the “teacher estimates” that were used in lieu of updated evaluative testing. (Tr. Pp. 90-92) The logic appears to be that the “teacher estimate” is a better way to compare current progress with baseline information. But he did not insure that the teacher from the private school would have been provided the baseline evaluation to assist in making the comparisons that the CSE were ostensibly seeking. When asked if the teacher who was on the phone during the meeting had a copy of the relevant evaluation (Ex. 7) during the meeting, he responded: “I don’t know if she had a copy. We certainly would not provide her with a copy.” (Tr. P. 92) This testimony leads me to the conclusion that the CSE chair was unfamiliar with teleconferencing protocols. In this case I must conclude that the meeting was flawed. Moreover, the failure to abide the teleconferencing protocol impacted the ultimate recommendation. I note that the teacher who provided the “teacher estimates did offer an opinion during testimony that a staffing ratio was appropriate for the Student. (Tr.

P. 312) As such, I conclude that the error had a measurable impact on the Parents’ opportunity to participate in the decision making process and this error alone serves to invalidate the FAPE.

Substantive Violations

I now turn to the substantive claims of the Parents. Even if the CSE followed the teleconferencing guidelines, I am constrained to find that the IEP is substantively inadequate. The central issue is the proper determination of the staffing ratio for the Student. The Parents claim the classroom configuration is not an appropriate fit for the Student.

In answer to this Parental concern, the District CSE chair testified. He had never met the Student (Tr. P. 71) and he failed to recall many of the details of the CSE meeting.(Tr. p. 71, 81, 89 & 90) He did recall that the CSE discussed a collaborative team teaching class, (without the participation of a regular education teacher) a staff ratio class and a staff ratio class. He recalled that “…a (was) too restrictive because overall the reports [describe] a child who is making progress who is becoming more autonomous in terms of his ability to do work and has some behaviors and so, not necessary to have that continuation of the program.” (Tr. 69) During cross examination he specifically testified that the Parental concern of the need for a small nurturing environment was not within the purview of the CSE. To him this issue is exclusively for the placement office. (Tr. pp.83-84)

The teacher of the proposed placement also testified in support of the District recommendation. (Tr. 151). Like the CSE chair, she had no personal familiarity with the Student. (Tr. pp. 166, 206 & 214). She described her classroom and the profile of the Students therein. She testified that the majority of the students in the class had significant . (T. 237-238; T. 254). She attempted to address the distractibility and of the Student but, since she had not met him, her testimony was “just guessing”. (Tr. P. 174) This is not to say that she was herself unqualified. To the contrary she was experienced and educated. (Tr. P. 153) When asked about the goals, the teacher of the proposed placement admitted that the IEP goals on page 6 of Ex. M, were not goals that her class was working on in September. Rather, the students in her class were working on lower level goals. (T. 243-247). Given that the IEP specifically recommends direct teaching for the Student, (Ex. M-4) it appears that the lack of the extra teaching assistant would compromise the FAPE for this Student. She also testified that several grades eat lunch together and that the aides handle the lunchtime and recess period. (T. 252-253). This latter point is one of the more serious concerns of the Parents. In direct contradiction of the speculative design of the proposed placement and program, the ’s first recommendation in the Student’s evaluation,(Ex. 7) was that “[The Student] would benefit from individualized attention within a supportive environment that facilitates his interpersonal engagement, participation and focus. In light of his , it is recommended that he be placed in a small, structured class in a small, supportive school environment where he can receive appropriate support and be with good peer models.” (Ex. 7) The recommended that the Student receive occupational therapy for , , and had some suggestions for accommodations in the classroom. He also recommended “ ”(Ex. 7), but there is no record of any having been done by the District. Since “The [District] shall have the burden of proof, including the burden of persuasion and burden of production,” NY Educ. Law § 4404 (1)(c) (See, SRO decision 10-087) and I find that the District has not met its burden, I find that the Parents have prevailed on prong 1. Given this conclusion I am not addressing further the remaining contentions of the Parents regarding the District’s substantive inadequacies.

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700

F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Here, the in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported by the record in documents and testimony.

In the 2011-2012 Fall Report from the private school, dated November 2011, (Ex. G), the teachers describe the curriculum and the Student’s level of success in each subject. He is in a small reading group that meets for 45 minutes each day, using the reading program.

The teacher testified that the other students in the class are on a kindergartenfirst grade level in math, reading, and writing. (Tr. P. 276; 305-307) She spoke of how the (Tr. P. 279) and the . (Tr. PP. 279-282) She said the Student’s main challenges are: “ .” (Tr. P. 287) When asked how she addresses these areas, the teacher said, “A lot of redirecting, prompting, the like I had mentioned before, a lot of teacher role-playing, teacher modeling, we do a lot with role playing as well, and a lot of teacher assistance he needs throughout the day. “ (Tr. P. 289) She described the instructional programs that are used in her class. (Tr. P. 289-297) She testified that the Student has made progress socially. “He is able to verbalize better and more directly to his peers, and able to , so that’s been an increase for him.” (Tr. P. 298)

In consideration of the forgoing, I find that the Parents satisfied their burden under the Prong II analysis.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. . . . Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank

G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006]

Accordingly, I move to the Prong III analysis.

Prong III

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] 2; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the 2 20 U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- ``

(I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . .

(iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement—

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child. child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

In this case the Student’s mother wrote to the CSE in a letter dated July 20, 2011 (Ex. O) and said she would need to visit the placement before agreeing to accept it, but said she had concerns about the large size of the school and the distance from her home. She wrote, “[The Student] cannot that would .” (Ex. O) On August 24, 2011, the attorney for the Parents sent a letter to the Chairperson of the CSE (Ex. B) informing him of their intent to place the Student in a private school and to seek funding and request transportation, if the District did not correct the errors in the IEP and offer an appropriate placement. However, the attorney expressed the Parent’s intent to visit the school when it re-opened. (Ex. B) Again, on September 9, 2011, the mother sent a letter to a member of the CSE rejecting the placement. (Ex. P) She wrote that she visited the school on September 8, 2011 and her impressions led her to conclude that it would be an inappropriate placement for the Student. She again explained her reasons, which include the large size of the school and the large number of students, safety concerns, distance from her home, and the class itself; although there were only five students enrolled, they all required a lot of assistance, the classroom does not have an , and the student would be mainstreamed in large classes for the special subjects. (Ex. P) Significantly, the District did not reconvene the CSE, obtain further evaluations or otherwise address the Parents’ multiple concerns. Exhibit C is the tuition agreement. Exhibit D is the reenrollment contract between the Parents and the private school.

Accordingly, I find no basis under prong III to deny tuition reimbursement.

It is therefore ORDERED

That the District reimburse the Parents for one-hundred percent of the cost of tuition at the Private School for the 2010-2011 school year. Payment is to be made forthwith upon the presentation of a properly receipted bill from the . Dated: June 19, 2012

______________________________

MARTIN J. KEHOE, III, ESQ.

Impartial Hearing Officer MJK: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 Request for Impartial Hearing, 10/31/11,[5] pp. B Notice and Requests for Transportation, 8/24/11, 3 pp. C Affidavit from the , 11/22/11, 1 p. D Re-Enrollment Contract, 2011-2012, 2 pp. E Cancelled Checks Written to the , 2011,[3] pp. F Class Schedule, 2011-2012, 1 p. G Progress Report and Curriculum, 11/2011, 9 pp. H Plan, 10/2011, 2 pp. I Plan, 10/2011, 2 pp. J Therapy Plan, 10/2011, 2 pp. K Due Process Response, 11/4/11, 4 pp. L Department of Education Observation, 1/10/11, 1 p. M IEP, 3/9/11, 19 pp. N Final Notice of Recommendation (FNR), 7/11/11,[1] p. O Parent Response to Final Notice of Recommendation, 7/20/11,[4] pp. P Parent Letter to CSE Regarding School Visit, 9/9/11,[2] pp.

DEPARTMENT OF EDUCATION

6 Therapy Plan, 10/2010, 2 pp.

7 Evaluation, 10/2009, 12/2009, 11 pp.

IMPARTIAL HEARING OFFICER

1 Subpoena, 1/31/12, 2 pp. 2 Objective, 2/1/12, 3 pp. 3 Reply, 2/3/12, 2 pp.

Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[1] Notice of IEP Meeting, 3/1/11, 1 p.

[2] Meeting Minutes, 3/9/11, 2 pp.

[3] Mid-Year Report, 2/2011, 8 pp.

[4] Plan, 10/2010, 1 p.

[5] Therapy Plan, 10/2010, 1 p.