New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 11, 2012

Record Close Date: September 11, 2012

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11, 2012

Attorney — Student

Parents

Haitian Creole Interpreter — Student

None — DOE

I. JURISDICTION - OVERVIEW OF 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 originally requested by the parent on April 26, 2012, who appears in this matter pro se. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to place the student in a self-contained special class in a community school, or in the alternative, to defer the case to the DOE’s Central Based Support Team (“CBST”) for placement in a State-approved nonpublic school (Exs. P-A, P-C).^[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

The original due process complaint was filed by the parent on April 26, 2012 (R. 20; Ex. P-A). I was appointed by the DOE to hear this matter on April 27, 2012 (R. 20). The original resolution session period ended on May 29, 2012 without an agreement (R. 20). See 8 NYCRR § 200.5(j)(2). On June 13, 2012, a hearing in this matter was scheduled for July 10, 2012 (R. 20). An amended due process complaint was filed by the parent on June 28, 2012, which I accepted (R. 20-21; Ex. P-D). The amended due process complaint restarted the resolutions session period and cancelled the July 10, 2012 hearing date (R. 21). See 8 NYCRR § 200.5(i)(7)(ii). The second resolution session period ended on August 8, 2012 without an agreement (R. 21). See 8 NYCRR § 200.5(j)(2). On August 8, 2012, I scheduled a pre-hearing conference in the matter for August 10, 2012 to clarify the hearing issues and set a date for the hearing (R. 21). See 8 NYCRR § 200.5(j)(3)(xi). A pre-hearing conference was held as scheduled on August 10, 2012 and a hearing date was set for September 11, 2012 (R. 21). A hearing was held on September 11, 2012, as scheduled. 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).

III. FACTUAL BACKGROUND

At the time of the September 11, 2012 hearing, the student was sixteen (16) years old. The student is bilingual in Haitian Creole and English (Exs. P-E at 1, P-F at 2). For the last two (2) school years, the student has (R. 30; Ex. P-B at 6, 8, 10). While the student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing, see 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz), the student’s proper educational classification designation is unclear. Each of the three IEPs entered into the hearing record state a different classification, i.e., and (Exs. P-D at 1, P-G at 1, P-H at 1).

A bilingual p evaluation of the student was conducted on May 31, 2008, when the student was . As assessed by the Stanford Binet Intelligence Scales – Fifth Edition, the student’s fell within the . Her . Her verbal domain skills were the strongest, and fell within the . Her substest scores ranged from the deficient to the average level (Ex. P-F at 3).

As assessed by the Kaufman Test of Educational Achievement – Second Edition, the student’s overall composite score was in the extremely low level, falling in the midsecond grade equivalence. Her reading composite , beginning level. Her math composite fell in the equivalence. Subtest scores ranged from beginning in mathematics applications, to grade level in spelling (Ex. P-F at 5).

At a meeting held on September 20, 2011, the CSE recommended for the 2011/12 school year that the student receive integrated co-teaching (“ICT”) services for math, social studies and science, along with related services of specialized transportation and group counseling in a separate location, one (1) time per week for forty (40) minutes per session. While the student was recommended to receive ESL, the CSE determined that the student did not need special education service to address her as they relate to the IEP (Ex. P-H at 2, 5, 8-9).

The student was reevaluated on April 29, 2012, while she was in the . On the Wechsler Intelligence Scales for Children – Fourth Edition, the student achieved a full scale IQ score within the in functional level. Though the student is bilingual, her are . In the verbal area, she demonstrated with her , and . In the perceptual domain, the student demonstrated age , but . In the working memory area, her memory and numerical reasoning scores were . Her visual short-term memory is (R. 41; Ex. P-E at 2-3).

On the Woodcock-Johnson Tests of Achievement – Third Edition, the student achieved an academic application score of equivalent, suggesting the presence of significant academic delays warranting intensive academic intervention. Her letter-word identification skills were at a equivalent. Her passage comprehension skills were at a equivalent. Her calculations skills were at a equivalent. Her applied problem skills were at a 1.7 grade equivalent. Her writing samples were at a equivalent (Ex. P-E at 2).

Projective analysis and an interview with the student revealed that she is a sweet, yet with . The student’s understanding of the world around her is limited due to her cognitive deficits. As a result, she requires and support both from school and home to keep her safe and not be taken advantage of by others. Based on the overall findings, the evaluator recommended that the student receive intensive academic support, to remedy skills, with as a related service (Ex. P-E at 2).

On June 8, 2012, the CSE convened to develop an IEP for the student for the 2012/13 school year. The student’s educational classification is listed on this document as “intellectual disability” and the document reflects a recommendation for ICT for math and English/Language Arts (“ELA”). The student was not recommended to receive ESL nor was the student deemed to need a special education service to address her language needs as they related to her IEP. While the student was recommended to receive specialized transportation (Ex. P-D at 1-2, 5, 8).

The CSE reportedly reconvened on July 10, 2012. The IEP generated from that meeting (which lists a meeting date of June 8, 2012) indicates that the student’s educational classification is “ ” and reflects a recommendation for the student to receive special class ( ) instruction for math, ELA, social studies and science. While this record also indicates that counseling was discontinued, the CSE’s determination on the student’s need for specialized transportation and instruction is not clearly stated (R. 29-30, 37; Exs. P-G at 5-6, 9, 15-16).

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE failed to appear at both the August 10, 2012 pre-hearing conference and the September 11, 2012 hearing without explanation. Notice of both the pre-hearing conference and hearing was transmitted to all parties via the DOE’s Impartial Hearing System (R. 3, 17, 21-22).

B. The Parent

The student has attended the in Brooklyn for the last two school years. The only has classes. evaluations conducted in 2008 and 2012 reflect that the student possesses cognitive deficits and is functioning in reading and math on a second grade level. The is also an unsafe environment for the student (R. 30-33, 47).

V. 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.^[2] 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 instructiom.” 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. Substantive Appropriateness of Proposed Program

As noted earlier, 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. 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 DOE’s bilingual psychologist who conducted an updated evaluation of the student on April 29, 2012 stated that she will “benefit from intensive academic support to remedy her academic and social/emotional skills with individual counseling as a related service” (Ex. P-E at 3). Consistent with that opinion, the CSE revised the student’s IEP in July of 2012 (although the document reflects a meeting date of June 8, 2012) to recommend that she receive the majority of her academic instruction in a special class (15:1) setting in a community school (R. 37; Ex. P-G at 5-6, 9, 15-16).

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.

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 student’s mother credibly testified that a special class program is not available to the student at the , which only has ICT classes. By failing to offer the student a placement with special classes ( ), 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 (R. 36, 43-44; P-G). See Rowley, 458 U.S. at 206-07; 8 NYCRR § 200.6(a)(3), (h)(3).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

(1) As soon as possible, the DOE shall offer the student an educational placement in which the student can receive special class ( ) instruction in a , as provided in the student’s last agreed upon IEP, or in the alternative, shall refer the matter to its CBST for placement of the student in a State-approved nonpublic school; and

(2) Within the thirty (30) days of the date of this Order, the CSE shall reconvene to resolve the discrepancy present in the record concerning the student’s educational classification and shall also consider the student’s eligibility to receive specialized transportation and counseling as related services.

Dated: October 1, 2012

______________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JS:dl

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 11, 2012

PARENT

A Original Due Process Complaint Notice, 4/26/12, 2 pages B Emails Communications, Various dates, 13 pages C Amended Impartial Hearing Request, 6/28/12, 2 pages D Individualized Education Program, 6/8/12, 9 pages E Bilingual Report, 4/29/12, 3 pages F Bilingual Report, 5/31/08, 5 pages G Individualized Education Program, 6/8/12, 17 pages H Individualized Education Program, 9/20/11, 10 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Confirmation of Extension, 9/11/12, 1 page

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] 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.