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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: April 5, 2012 Actual Record Close Date: April 9, 2012 Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AJPRIL 5, 2012
Parents
Representative — DOE
Assistant Principal — DOE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the pro se parent in a due process complaint notice dated January 19, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) afforded the student a free appropriate public education in his current school location (Ex. SD-1).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY & FACTUAL BACKGROUND
I was appointed by the DOE to hear this matter on January 24, 2012. A hearing was held on April 5, 2012 during which sworn testimony and documentary evidence was entered into the hearing record. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
At the time of the hearing, the student (R. 16-17; Ex. SD-5 at 10). The student's eligibility for special education and related services as a student with is not in dispute in this hearing (Ex. SD-1). See 34 C.F.R. § 300.8(c)(4); 8 NYCRR § 200.1(zz)(4).[2]
At a meeting held on April 28, 2011, when the , the CSE determined that the student reads at approximately a (approximately ). He expectations. The student demonstrated . Described as a , the CSE noted that the student needed to be attentive in class, practice fluency to build his vocabulary skills, use self-regulatory skills to curb distraction, complete all assignments on time and ask for help when feeling (Ex. SD-1 at 1-2).
The student’s was and he was performing all daily living activities independently. The student was also described by the CSE as a personable and pleasant young man with a . Notwithstanding these findings, the CSE noted that the student required a behavioral intervention plan to improve and to learn boundaries when interacting with peers and adults (Ex. SD-1 at 1-3).
For the 2011/2012 school year, the student’s ninth grade, the CSE recommended that the student receive the majority of his instruction in a special class setting in a community school. The CSE also recommended that the student receive related services of specialized transportation and individual and group counseling (Ex. SD-1 at 6-7, 11).
III. POSITION OF THE PARTIES
A. The DOE
The DOE acknowledged that the student has been placed in an integrated coteaching program notwithstanding the fact that the CSE had recommended that the student participate in a non-integrated special classes (12:1) this academic year.[3] The DOE representative stated that she could not transfer to student (R. 12-14).
B. The Parent
The student needs to be transferred to an appropriate program. The student’s school performance has declined this academic year because he has been placed in an incorrect program (R. 15-19).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
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. See 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.” See 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 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); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
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. See N.Y. Educ. Law § 4404(1)(c).
B. Appropriateness of Current Program
The evidence entered into the hearing record demonstrates that the DOE deviated from substantial or significant provisions of the student's IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005).
The IDEA contains no requirements that special education students be grouped in a particular manner. See, e.g., Application of the Bd. of Educ., Appeal No. 12-012 at 8 (SRO March 7, 2012). However, State regulations require that in special classes, students must be suitably grouped for instructional purposes with other student having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii); 200.6(a)(3), (h)(3).
Once a parent consents to a district’s provision of special education services, such services must be provided by the district in conformity with the student’s IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. By incorrectly placing the student in an integrated co-teaching and general education classes, rather than the recommended special class, the DOE deviated from substantial or significant provisions of the student's IEP in a material way and failed to suitably group the student for instructional purposes with other students having similar educational needs which precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; 8 NYCRR § 200.6(a)(3), (h)(3).
Mr. , Assistant Principal of the Explorations Academy, testified that for the current academic year, the student receives instruction in science and math in an integrated co-teaching setting (“ICT,” f/k/a collaborative team teaching or “CTT”). There are approximately 23-27 students in these classes with a 60%-40% ratio of general education to special education students. The balance of the student’s instruction is delivered in a general education setting (R. 25, 30, 35, 42).
Assistant Principal stated that he is aware that the student’s IEP calls for his instruction in a special class setting, but the student does not attend any special classes because there are no such classes present at the this academic year (R. 24-26, 29, 35; Ex. SD-5 at 6-7, 11). Neither Assistant Principal nor any other school official at has contacted the DOE’s placement office or the CSE to report the student’s incorrect placement this year in ICT and general education classes (R. 29, 36-39, 59).
The student has demonstrated “great difficulty” in the ICT classes this academic year and his educational needs are not being met (R. 44-45, 70-71). The student’s teachers report that he does not participate in class, that he is not organized, and that he is disruptive (Ex. SD-6). One of the student’s teachers ( ) stated: “He is not capable to work on [sic] CTT classes” (Ex. SD-6 at 2). Following a with his English teacher in October, the student received a ) (R. 24, 31-33, 55, 63-64). A similar incident with the same teacher occurred in December and resulted in another (R. 65, 67). Assistant Principal has had to speak to the student this year about and the student has been
(R. 43).
After learning from her son that he had been assigned to ICT and general education classes rather than special classes, the student’s parent met with Assistant Principal and Ms. , IEP coordinator, in October 2011 for approximately one hour. The school staff recommended that the student remain in the incorrect classes and waitand-see how the incorrect placement turned out (R. 55-57, 59).
After the student , the student’s parent met with the principal, Assistant Principal , Ms. and Ms. (a guidance counselor) in November 2011 for approximately one hour. The school staff recommended to the parent that she contact the DOE’s placement office to find another educational placement for the student (R. 60-62). A similar meeting occurred between the student’s parent and the principal in December 2011 following the
(R. 65-66).
Based on the evidence described above, I find that the DOE’s placement of the student in integrated co-teaching and general education classes rather than special classes as called for in his IEP, impeded his right to a FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
Alternatively, while the IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, they do not permit parents to direct through veto a district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay, however, in implementing an otherwise appropriate IEP may form the basis for finding a denial of FAPE where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL 3326627 (2d Cir. Oct. 16, 2009).
Here, the evidence in the hearing record demonstrates a denial of FAPE. The CSE recommended that the student receive instruction in special classes (R. 24, 29, 35; Ex. SD-5 at 6-7, 11). Beginning in September of 2011, the student was placed in integrated co-teaching and general education classes rather than special classes. The student has remained in the incorrect program for the last eight (8) months (R. 25, 35, 42, 44-45). Administrators at the student’s school were aware of the student’s placement in an incorrect program and did nothing to correct the situation (R. 29, 36-39, 55-57, 59, 6062, 65-66). As a direct result of the DOE’s incorrect placement of the student and the deliberate indifference of school officials, the student’s performance in school has deteriorated (R. 44-45, 70-71; Exs. SD-5 at 1, SD-6).
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT ISHEREBY ORDERED THAT:
1. The DOE shall immediately take all necessary steps to secure a placement for the student in age and grade appropriate special classes in a community school with other students having similar individual needs; and
2. Within thirty (30) days of the date of this Order, the DOE shall place the student in special classes for instructional purposes as set forth in the student’s IEP from April 28, 2011. Dated: April 23, 2012
_________________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JJS: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
DEPARTMENT OF EDUCATION
1 Due Process Complaint Notice/Impartial Hearing Request, 1/19/12, 1 p. 2 Index of Records, 3/30/12, 1 p. 3 Physical Exam Request, 3/15/12, 4 pp. 4 Assessment Planning, undated, 2 pp. 5 IEP, 4/28/11, 13 pp. 6 Teacher Reports, 2011/12 school year, 8 pp. 7 Letter to parent from CSE, 4/11/11, 2 pp.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood or unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
[3] Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students. 8 NYCRR § 200.6(g).
[4] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.