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

Dates of Hearing: June 14, 2012

July 23, 2012

August 7, 2012

September 21, 2012

Actual Record Closed Date: October 26, 2012

Hearing Officer: Judith Schneider, Esq.

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

Advocate — Parents

Father — Parents

Spec Ed Teacher, — Parents

(via telephone)

CSE Rep. D. and — DOE

Teacher Assigned, CSE — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2012

Advocate — Parents

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2012

Esq. Attorney — Parents

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2012

Advocate — Parents

Father — Parents

Dr. Chairperson Designee — DOE

On June 14, 2012, July 23, 2012, August 7, 2012 and September 21, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”)

Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The parent seeks reimbursement for a unilateral placement at a private school for the 2011-2012 school year (10 month program.)

The proceeding was initiated at the request of the parent by correspondence dated April 2, 2012. (Ex. 2) I was appointed Impartial Hearing Officer on April 3, 2012. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on May 8, 2012, hearing dates were scheduled for June 14, 2012 and June 25, 2012, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 4, Ex. I)

The initial compliance date in this matter was June 18, 2012. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence, medical and school emergencies affecting the parent, his advocate and DOE witnesses, religious holidays and to permit receipt and consideration of the final transcript. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were given to the parties. (T. 24-25, 68, 114-115, 122-123, 129, 135, 179, Ex. II).

The current compliance date November 16, 2012. The record closed on October 26, 2012, upon my receipt of the corrected transcripts. (Ex. III)

Background

The student, a girl who was old at the commencement of the 2011-2012 school year, has a classification of “Multiple Disabilities.” (Ex. C) That classification is not in dispute. Since September 2009, the student has attended (“ ”), a non-public school that is not approved by the New York State Department of Education as a school with which the DOE may contract for the delivery of special education services. (Ex. H)

On May 5, 2011, the CSE convened to develop a program for the 2011-2012 school year. The CSE noted that the student was diagnosed with and was (principally using taps on the shoulder of caregivers to obtain a desired item and using gestures and signs) when motivated could follow one step directions with minimal-moderate prompting, had in as well as oral motor skills and was level, could not without and had to for and . (Ex. C at 3-6, see also Exs. I, J, K) The IEP specifies that the CSE’s recommendation was a special class in a specialized school ( ) with related services ( (“ ”) 3x45 ( ) and 2x30 ( ), (“ ”) 5x30 ( ), therapy (“ ”) 3x45 ( ) 2x30 ( ) and a full time health paraprofessional) deferred until September 7, 2011, and HASC Brooklyn Summer Program July and August 2011. (Ex. C1) The IEP, however, specified that the IEP initiation date was September 7, 2011 and it was to last one year. (Ex. C-2)

By letter dated June 15, 2011, the CSE recommended a public school. (Ex. 12) The parent visited the school and by letter faxed on August 18, 2011, informed the CSE that the placement was not appropriate and provided reasons. (Ex. D) The parent stated that the student would be attending IA and that an impartial hearing would be requested to obtain DOE funding. (Ex. D-2)

By letter dated August 22, 2012, the parent provided a “10 day notice” of his intent to secure DOE funding (Ex. E)

By letter dated April 12, 2012, the parent requested this impartial hearing. (Ex. A)

Positions of the Parties

The parents assert that the IEP is procedurally and substantively defective, specifically claiming that goals are deficient and/or omitted and that the an FBA was not conducted. Further, the parents assert that the recommended placement was not appropriate. The parents claim that the unilateral placement at is appropriate for this student and that equitable considerations warrant reimbursement for tuition for the 20222012 school year. (T. 174-176, Ex. A)

The DOE asserts that the IEP was substantively and procedurally appropriate and that the recommended placement was appropriate. It claims that was not appropriate, specifically claiming that that program did not meet the student’s social and emotional needs, that did not provide mandated related services and that travel time was too long. Further, the DOE claims that equitable considerations weigh against the parent. (T. 177178)

Cases Presented

Lists of documents submitted by the parties are appended. DOE Witnesses

The DOE presented the testimony of a special education teacher who participated in the review as a teacher and as district representative (T. 18, Ex. C) who testified that: Participants also included a DOE school psychologist and a parent member and the student’s teacher, the principal and the student’s father participated by telephone. (T. 18, Ex. 1) The team considered the educational progress report (Ex.

2) a speech and language report (Ex. 3), a social history update (Ex. 7), an observation (Ex. 1) , a report (Ex. 5), and a (Ex. 8). (T. 24-25) At the review, the principal expressed concern that the student/teacher ratio of the DOE’s program was insufficiently intensive and the parent and staff all believed that the student’s program, which was was the appropriate one for this student. (T. 28-29, 47-48, Ex. 11)

had no specific recollection as to how certain academic goals were developed

(T. 36) but stated that certain academic goals as well as certain provider goals were provided by IA (T. 35-41). Although the IEP notes that the CSE considered and rejected an , he could not recall the reason for the rejection. (T. 43, 45, Ex. C-23) The IEP specifies that the prior year the CSE had deferred to the CBST for a placement. (Ex. C-2) had no recollection as to the source of the BIP but opined that the print font suggested it came from IA. (T. 46-47)

With regard to the date of initiation of the IEP, stated that the September 2011 initiation date was an error and that it should have been July 2011. (T. 52-54) With regard to the summer program, he stated that the CSE had reconvened at some time subsequent to the initial meeting and had put on the IEP as a “courtesy to the parents” and after consultation with the CSE chairperson. (T. 53-54) It was contemplated by the CSE that the parent might not accept the recommended placement and in that case the student would have a summer placement. (T. 54-55) He had no knowledge as to the staffing ratio of the program and there was no testimony as to any other aspect of the program other than it was added because the parent requested it. (T. 54-56) With regard to the public school placement recommended, he stated no knowledge of it.

Parents Witnesses

The parents presented the testimony of the student’s special education teacher (“ ”) and the student’s father (“the parent”).

was the student’s special education (classroom) teacher at from February 2011 and throughout the 2011-2012 school year. (T. 65, 94) She is certified in special education for about . (T. 61) IA has four classes and is designed to provide instruction using ABA and Floor Time and to provide mandated related services. (T. 64) Instructors for the student rotate. (T. 100, 103) There is an instructional lunch program and sensory gyms and available computers, music and art therapy and ADL and vocational training facilities. (T. 64-65) The student is in a class of 5, presently and with one boy and five adults including , are always present. (T. 66) The school is designed to be one to one.

(T. 83) She communicates routinely with the student’s parents by a variety of methods and parent training is provided. (T. 68-70) also visited the parents’ home to help with continuity and accompanied the student on out of school activities. (T. 69)

The student is and not , attempts to engage adults and sometimes other children and can ambulate but with supervision. (T. 66-67, 74-76) requiring constant supervision. (T. 67-68) The school has developed ABA programs for this student targeting identification of body parts, receptive identification, matching objects, picking up and grasping objects and putting objects into receptacles and following one-step directions and also has the student working on similar skills within a Floor Time methodology. (T. 72-73, 85-86, 104-105) (Ex. F)) Additional areas worked on included various life skills , and . (T. 73, 97-98) Related services are provided principally on a pull out basis. (T. 76, Ex, F) EJ described as a student strength the desire to engage and be engaged by an adult instructor. (T. 76) She can independently wave without prompting, say more and . (T. 78) The student receives music therapy and swimming .

(T. 86) is provided to help with chewing and swallowing. (T. 87)

The school collects data throughout the day to measure student progress and the data is graphed. (T. 87, 105) Progress has been demonstrated, most significantly in many of the steps in the . (T. 88, 97-100) She has also made significant progress in feeding and drinking from a cut-out cup as well as in following ine-step directions. (T. 100)

EJ opined that this student needs one to one instruction for safety and educational progress for 12 months of the year. (T. 87, 89, 106) had previously provided a 10 month program, and had provided only a 10 month program for the 2011-2012 school year but appears to be striving to develop a summer program. (T. 89-90) With regard to the student’s attendance in the 2011-2012 school, described her as typically perfectly attending but was not sure as to the period of attendance. (T. 91-93, Ex. L)

The parent testified that the student will not sit for extended periods, needs help with motor functions and needs someone with her all the time. (T. 141) She is nonverbal, using a few signs to make her wants and needs known, and is not toilet trained or able to feed herself independently. (T. 141-142, 146-147) Frustration results in self .

(T. 146) The parent stated that at the review he was informed that the health paraprofessional was not an educationally trained professional but would be limited to helping the student with life skills. (T. 172-173)

With regard to the recommended placement, the parent testified that he visited the school with the principal and learned that the police had removed two students immediately prior to his arrival. (T. 143) The students in each of the 3-4 classes observed, which also included a class with 12 students, were much higher functioning than this student and there was “roughhousing” observed in classes and there were only five girls of approximately 100 students in the school. (T. 143-144) The parent concluded that the school used a modified regular education program and he was informed that no data tracking was done. (T. 144-145) He was not informed as to which class the student would be in but of the classes he was shown he was told that only one might be suitable and that was a with all boys. (T. 163-165)

did not have a summer program for Summer 2011 and although the CSE had recommended , that school did not have an opening and the parent unilaterally sent the student to a residential camp where she had competent one to one assistance based upon a plan developed by staff there after review of the student’s IEP. (T. 155-156). However, an ABA program was not provided and although the student was able to maintain skills, no new ones were taught. (T. 157) Reimbursement for that summer program has not been requested.

The parent stated that the student has made progress at during the 2011-2012 school year (10 months) with regard to sitting, self-feeding, communicating and mobility.

(T. 145-146) Socialization is encouraged by the configuration of the classroom and planned interaction between the students. (T. 169) does daily and monthly evaluations and sends the parent a communication book which includes some of the data it collects.

(T. 152, 159-161) Seminars for parents are provided. (T. 162)

The parent has paid the full tuition at with help from his father who loaned some money to the parent. (Exs. B, O) He paid a deposit prior to the review in order to hold the spot but the contract provides reimbursement if an appropriate DOE placement is found. (T. 154-155) The parent acknowledged his belief that at the meeting he had not notified the CSE that a deposit had been paid.

Findings of Fact and Conclusions of Law

A) Factual Findings

I find the testimony of each witness credible and include in my factual findings the material set forth in the “Background” section above. Record references not specified below are included above.

B) Analysis

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In the instant matter, the DOE presented no testimony concerning the recommended school and the sole DOE documentary evidence with regard to that placement is the FNR. (T. 137, Ex. 12) Therefore there was no evidence concerning the effectiveness of the teaching methodology to be utilized for this student, the ability of the school to meet the academic and social/emotional management needs specified by the CSE and whether there was an capacity in the school to place this student appropriately with other students, among other things. I also note that I find credible the parent’s testimony concerning his observations. The DOE has therefore failed to establish that the placement proffered was appropriate for this student and could meet her needs and enable her to make appropriate gains.

Accordingly, I find that the DOE has failed to establish that it provided a FAPE for the 2011-2012 school year. Therefore, I do not address the parent’s other claims.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

In the instant matter the persuasive evidence shows that IA designed a program to meet this student’s unique needs, and tracked her progress by collecting and analyzing data. Goals specified in the IEP are addressed. (Ex. G) One to one were provided, other classroom activities and therapies also addressed related service needs and IA has a sensory gym to meet the sensory needs described by the CSE was available. (T. 76, 81, Exs. C, F, H) The parent’s placement is not inappropriate merely because each service is not provided exactly as delineated in the IEP. Further, the evidence shows that the student made progress at and that the determination as to progress was based upon objective evidence. In view of the student’s severe deficits, I conclude that the progress described was significant. Although IA provided only a 10 month program, that is all that was required of it pursuant to this IEP which recommended a separate summer program. Although the parent was unable to access that summer program, he substituted another which enabled to student to maintain skills. The DOE apparently is not disputing the appropriateness of the summer program provided. (T. 178) Moreover, reimbursement for that program is not sought. Finally although the DOE claims that the transportation time required for that placement was excessive, it presented no evidence as to the length of the trip or its effect on this student.

I find that the parent has established that the program unilaterally provided was reasonably calculated to enable the student to make meaningful educational gains

Prong 3

There has been no claim that parent did not make the student unavailable for evaluation or otherwise impede the CSE in the development of the IEP. The parent’s payment of a deposit prior to the CSE meeting is not dispositive even when the parent would prefer that placement. Appeal No. 05-087. Further, I note that the CSE was aware that the parent might reject the recommended placement and unilaterally choose another and accommodated that. Moveover, the evidence shows that the parent could have removed the student had a DOE placement been found and that a deposit was necessary to secure a place. (T. 152-154) Accordingly, I find no basis for the denial or reduction of reimbursement.

ORDER

The DOE shall within two weeks of receipt of evidence of the student’s satisfactory attendance throughout the 2011-2012 school year (10 months) reimburse the parent in the amount of $79,500. (Ex. M, N, O, P)

Dated: November 7, 2012

_____________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 4/2/12, 4 pgs. Parents

B Program Description, 1 pg. Parents

C DOE IEP, 5/5/11, 26 pgs. Parents

D FNR, 6/15/11, 3 pgs. Parents

E Ten Day Notice, 8/22/11, 1 pg. Parents

F Class Schedule, 2011-2012, 1 pg. Parents

G Progress Report, 2011-2012, 6 pgs. Parents

H Educational Progress Report, 2011-2012, 11 pgs. Parents

I Report, 5/5/2011, 9 pgs. Parents

J Report, 3/30/11, 6 pgs. Parents

K Report, 4/10/11, 4 pgs. Parents

L Attendance Record, 2011-2012, 1 pg. Parents

M Tuition Contract, 2011-2012, 3 pgs. Parents

N Affidavit of Payments, 2011-2012, 1 pg. Parents

O Parents Proof of Payment, 2011-2012, 8 pgs. Parents

P Loan Agreement, 9/1/2011, 1 pg. Parents

Q Jury Duty Notice-parent, undated, 1 pg. Parents

1 OMITTED

2 Teacher Report, undated, 5 pgs. Department of Education

3 Report, 5/5/11, 3 pgs. Department of Education

4 Report, 3/30/11, 2 pgs. Department of Education

5 Report, 4/10/11, 2 pgs. Department of Education 6 Observation, 3/31/11, 1 pgs. Department of Education

7 Social History Update, 1/19/10, 2 pgs. Department of Education

8 Evaluation, 1/19/10, 2 pgs. Department of Education

9 Letter, 3/15/11, 1 pg. Department of Education

10 Letter, 5/31/11, 1 pg. Department of Education

11 CSE Minutes, 5/5/11, 1 pg. Department of Education

12 FNR, 6/15/11, 1 pg. Department of Education

I Prehearing Conference Memo, 1 pg. Impartial Hearing Officer

II Compliance Date Extension documents Impartial Hearing Officer

III E-mail re transcript errors, 10/22/12, 1 pg. Impartial Hearing Officer