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: August 11, 2011

October 28, 2011

November 14, 2011

January 4, 2012

January 12, 2012

Actual Record Closed Date: January 30, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2011

Parent Advocate — Student

Representative, CSE — DOE

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2011

Advocate — Student

CSE Representative — DOE

IEP Witness (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011

Advocate — Student

CSE Representative — DOE

Assistant Principal of (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2011

Advocate Representing the Family — Student

Parents

Associate Director, Via Telephone — Student

Representing the — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2011

Advocate — Student

DR., School /Chairperson's — DOE

Designee, CSE (Via Telephone) — DOE

The matter of . (hereinafter “the student”) came before me for determination on August 11,2011, October 28, 2011, November 14, 2011, January 4, 2010 and January 12, 2012, in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on May 23, 2011. I was appointed as the impartial hearing officer on May 24, 2011. The compliance date was extended as a result of requests for additional hearing dates in order for the parties to prepare and present their cases and for the submission of post-hearing documents. Additional time was necessary for a full, fair disclosure of the facts required to arrive at a decision in this matter. The record close date is January 30, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, was an old student who had been classified as by the New York City Department of Education’s (hereinafter “DOE”) Committee on Special Education (CSE) at an annual review meeting held on June 10, 2010. The CSE recommended a program in a special class with related services (Exh. 1).

In a due process notice dated, May 23, 2010, the parent through her representative, alleged that the CSE committed both procedural and substantive errors in creating the student’s Individualized Education Program (hereinafter “IEP”) for the 20102011 school year, resulting in a denial of a free appropriate public education (hereinafter “FAPE”) (Exh. 1). The parents placed their son in the for the 2010-2011 school year and are seeking tuition payment and or reimbursement, the provision of related services and transportation.

THE POSITION OF THE PARTIES

The District representatives, maintained that the Department of Education (DOE) offered the student a free appropriate public education (FAPE) for the 2010-2011 school year, that the CSE review team was properly constituted, and that the offered placement would have adequately addressed the student’s special education needs.

The parents’ representative, , maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that the is appropriate, and that the equities favored the parents, and that direct payment and or reimbursement of the tuition should be ordered.

DEPARTMENT OF EDUCATION’S CASE

The DOE’s representative, presented the following documents, inter alia,

Evaluation (Exh. 3), a Evaluation (Exh. 4), the Final Notice of Recommendation (FNR) (Exh.7,8, 9), and the Individualized Education Program (IEP) (Exh. 1).

, special education teacher assigned, testified that he works with a team who evaluates student who attend private schools, and that he participated in the June 10, 2010 CSE review (Tr. at 22). He stated that the team recommended the classification of based on the student’s diagnosis, and upon review of his performance tests (Tr. at 24). He also stated that a evaluation, a evaluation, teacher reports and classroom observation were considered at the IEP meeting and that the prior IEP’s related service recommendations were continued (Tr. at 24-26). He opined that the IEP and the recommended school placement would have provided the student with a FAPE (Tr. at 28).

On cross, he acknowledged that there was no parent member in attendance at the IEP meeting and that he was not presented with a signed parent waiver of the right to have a parent member present at the meeting (Tr. at 29-30).

, assistant principal , testified she has been in her current position for years and supervises students from grade, including special education (Tr. at 52). She stated that during the 2010-2011 school year there was a grade class, which included grader and graders (Tr. at 53). Ms. stated that all of the teachers and related services providers are licensed and certified (Tr. at 54). She further stated that the teacher would be using materials which was appropriate for graders, and that the students ranged in math and reading from grade levels (Tr. at 56-57). She also stated that the recommended class was , but for the 2010-2011 school year there were only students in the class (Tr. at 57-58). She stated that a was used in order to provide individualized instruction (Tr. at 58).

On cross, she acknowledged that the assigned teacher was able to teach students on grade levels by providing instruction to grade and having them work independently while she provided instruction to the student on the other grade level (Tr. at 61).

PARENT’S CASE

The parent’s representative, , presented the following documents, inter alia, Ten Day Notice Letter (Exh. D), Proof of Payment (Exh. G), Enrollment Contract (Exh. K) and School Affidavit (Exh. L).

, associate director, of the testified that she hires, mentors, provides professional development, student intake, curriculum development, and classroom observation (Tr. at 78). She stated that the student’s classroom teacher was licensed and certified, and that the student was attending a class of (Tr. at 79). She further stated that from 8:15 am to 12:30 pm instruction was provided and comprised 1/3 of the school day (Tr. at 79).

She stated that at the beginning of the school year the student had significant , but did were grade level (Tr. at 80). She stated that after the and treatment and with the supports provided the student was able to (Tr. at 81). She stated that the student was and provided with a who communicated with the classroom teacher and parent to address any issues (Tr. at 81).

She stated that they use the , which has (Tr. at 82). She stated that the student was informally assessed and has made progress during the school year (Tr. at 83).

Ms. stated that the student has processing issues which impact his ability to learn and he needs , and a small class size (Tr. at 85, 87).

On cross, she stated that the student was not provided with an and did not receive as his IEP mandated (Tr. at 94-95). She stated that the student’s needs where addressed by his teacher and a consultant (Tr. at 95).

The student’s father testified that he observed the recommended school placement and felt that his son would not be able to keep up with the class because of its quick pace (Tr. at 105). He stated that the class size at is smaller and his son receives more one on one attention (Tr. at 106). He further stated that he owes the school $ of the $ tuition (Tr. at 106, 108, Exh. K).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the Department of Education failed to offer . a free appropriate public education for the 2010-2011 school year. Based on the evidence in the record, the DOE did not adequately address the student’s needs, the goals are inadequate, and the placement offered was inappropriate to meet the student’s individual educational needs.

The central purpose of the IDEA is 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 ensures that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400 [d]

[1] [A]; Schaffer v. Weast , 126 S. Ct. 528, 531 [2005]); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982); see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009].

A free appropriate public education includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program(IEP) (20 U.S.C. § 1401(9); 20 U.S.C. § 14149(d); 34 C.F.R. § 300.13. A school district offers a student a free appropriate public education when (1) it complies with the procedural requirement of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). The student’s recommended program must also be provided in the least restrictive environment (LRE) 920 U.S.C. § 1412[a][5][A]; 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]).

A FAPE is offered to a student when the Board of Education complied with the procedural requirements set forth in the IDEA, and the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Ed. v. Rowley, 458 U.S. 176, 206-7[1982]). A school district offers the student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203), The IDEA also requires that an impartial hearing officer’s decision be made on substantive grounds in determining that the student did or did not receive a FAPE (20 U.S.C. §1415 [f][3][E][i]. School districts are also required to comply with the procedural requirements set forth in the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3rd 377, 381 [2d Cir. 2003]). If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies impeded the student’s right to a FAPE, and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C § 1415[f][3][E][iii]; 34 CFR §300.513[a][2], 8 NYCRR 2005 [j][4][ii]. An impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][3][E][iii].

An appropriate educational program begins with an IEP which reflects the results of evaluations to identity 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. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The IDEA requires that an IEP include “a statement of the child’s present levels of academic and functional performance” as well a “statement of measurable annual goals, including academic and functional goals, designed to meet the child’s needs…” 20 U.S.C. § 1414 (d)(A)(I) & (II). The goals and objectives must be written with sufficient precision to enable the student’s teachers to understand the CSE’s expectations and for the student’s parents to assess the student’s progress during the school year 34 C.F.R. § 300.347 (a)(2).

Mr. testified that the he did not know where the receptive and expressive goals came from (Tr. at 33). The IEP fails to include goals to address the student’s issues in that they identified dates in 2008, and 2009 (Exh. 1).The goals are insufficient. I find that this deprived the student of FAPE.

The Second Circuit has determined that a “school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and it the IEP affords the student with an opportunity greater than mere “trivial advancement”(Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130, and is likely to provide some “meaningful” benefit (Mrs. B. v. Milford Bd. Of Ed., 103 F.3d 1114, 1120[2d Cir. 1997]). The IDEA, does not require school district to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197). The student’s recommended program must also be provided in the least restrictive environment (LRE) (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]. 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].

A CSE that prepares a student’s IEP must include the student’s parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can the instructional implications of evaluation results, the school physician if requested by the parent in advance of the meeting, and the parent of another child with a disability (Education Law Section 4402[1][b]; 8 N.Y.C.R.R. Section 200.3[a][1][viii].

Here, the CSE team failed to include a parent member and the CSE failed to establish that the parent had waived the participation of a parent member. The failure of the DOE to create an IEP with sufficient goals and the absence of a parent member deprived the student of a FAPE and educational benefit.

The IDEA directs, that, an impartial hearing officer must issue a decision which is based on substantive grounds in determining whether the DOE has offered the student a FAPE (20 U.S.C.§ 1415[f][3][E][i].

The CSE failed to offer the student a FAPE in that its recommended program at . was not appropriate to meet the student’s special education needs. The recommended class required students to work independently while the teacher instructs the other students, the student was diagnosed with and requires .

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii], 200.6 [a][3], [h][3]. State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to their levels of academic or education achievement and learning characteristics and their levels of social, and physical development and management needs (8 NYCRR 200.6[h][2].

Based on the evidence presented, I am persuaded that, had the student been enrolled in the DOE’s recommended placement, the DOE would have failed to adequately address the student’s. In total, the record supports the finding that the offered placement did not offer the student a FAPE for the 2010-2011 school year.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance “had it offered the student a FAPE” (Burlington, 471 US at 370-71). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 9420). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. Of Ed., 231 F.3d at 105; the test for a parental placement is that it is appropriate, not that it is perfect (Warren G. V. Cumberland Co. Sch. Dist., 190 F.3d 80, 84(3 Cir. 1999). The parent presented credible testimony and documentary evidence that the is meeting the student’s special education needs, which include providing him with one on one supports that are specially designed to address his academic, and attentional needs. The District did not present any witnesses or evidence to contradict any of the statements of the parents or their witnesses. The parent prevails on the second criterion.

Once it has been determined that the DOE failed to provide the student FAPE, and that the parent’s placement of the student is appropriate, a determination must be made as to whether equitable considerations require the DOE to reimburse .’s tuition for the 2010-2011 school year. Where a student is not provided with FAPE and his private school placement is appropriate, an impartial hearing officer has “broad discretion in considering the equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112.

The IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04-071.

Here, the record reflects that the parent fully cooperated with the DOE. The parents participated in the June 2010 CSE review. The parent also visited the DOE’s offered placement and notified the DOE that he found the placement inappropriate and that it would not meet his son’s needs.

Based on the record before me, the equities weigh in favor of the parents and the DOE shall reimburse the parents for the secular portion of the 2010-2011 tuition for the student at . Based on the days school is actually in session, and the days the student actually attended, the DOE shall pay the percentage of tuition that reflects the number of hours of the program which took place from 12:30 to 4:20(1/2 day) Monday to Thursday and ½ day Friday.

ORDERED, the Department of Education failed to offer the student a free appropriate public education for the 2010-2011 school year.

ORDERED, the Department of Education is to reimburse the parents the portion of the 2010-2011 tuition, $ that reflects .’s studies as described in the body of this decision under a discussion of the equities;

ORDERED, the student was entitled to receive transportation from the Department of Education during the 2010-2011 school year.

ORDERED, the Department of Education shall reimburse the parents within 15 days of the parents’ submission of proof of payment and records of the days the school was in session. Dated: February 14, 2012

________________________

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Impartial Hearing Request, dated 5/23/11, 4 pages B Mission Statement of , dated undated, 1 page C School Description , dated undated, 1 page D Ten-day Notice, dated 8/18/10, 1 page E Placement Letter and Fax Confirmation, dated 6/14/10, 2 pages F IEP dated 6/10/10, 12 pages G Proof of Payment, various, 2 pages H Daily Class Schedule, dated 2010-2011, 1 page I Class Profile, dated 8/3/11, 1 page J School Progress Report, dated 6/10/10, 1 page K Enrollment Contract, dated 2010-2011, 1 page L School Affidavit, dated 2010-2011, 1 page

DEPARTMENT OF EDUCATION DESCRIPTION

1 IEP dated 6/10/10, 13 pages 2 Minutes of CSE meeting, dated 6/10/10, 1 page 3 Evaluation, dated 8/6/08, 3 pages 4 Evaluation, dated 5/18/08 and 6/17/08, 10 pages 5 Classroom Observation, dated 6/9/10, 2 pages 6 Teacher Report, dated 6/1/10, 1 page 7 Final Notice of Recommendation, dated 7/14/10, 1 page 8 Response to Final Notice of Deferred Placement, Annual Review of

Reevaluation, dated 9/20/10 9 Final Notice of Recommendation and Review of Evaluation, dated

8/4/10