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: July 25, 2012

September 13, 2012

October 24, 2012

Actual Record Closed Date: December 10, 2012

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2012

Parent Advocate — Parents

Dr. District Representative — DOE

Principal-DOE — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2012

Parent Advocate — Parents

Dr. District Representative — DOE

Teacher Assigned-CSE — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012

Parent Advocate — Parents

Mother — Parents

Principal - — Parents

(via telephone)

Dr. District Representative — DOE

On July 25, 2012, September 13, 2012 and October 24, 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 hearing concerned the student’s 2011-2012 school year program.

The proceeding was initiated at the request of the parents by correspondence dated May 11, 2012. (Ex. A) I was appointed Impartial Hearing Officer on May 22, 2012. I was available to commence the hearing within 14 days of appointment. At a conference with the parties conducted on July 2, 2012, after the conclusion of the resolution period, the initial hearing in this matter was scheduled for July 25, 2012, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 4, Ex. I)

The initial compliance date in this matter was August 6, 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 and closing statements. 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 written decisions were provided to the parties. (T. 5-6, 129-130, 172, 177-178, Exs. II, V)

The current compliance date is January 6, 2012. The record closed on December 10, 2012, when the period for submission of closing statements elapsed. ^[1]

Background

The student, at the commencement of the 2011-2012 school year ( program), is classified as . (Ex. 1) That classification is not in dispute. (T. 14)

He received various services through Early Intervention and subsequently through the CPSE including SEIT and related services. (Ex. 6) For the student’s year, 20102011, the parent unilaterally placed the student at ”), a non-public school that is not approved by the New York State Education Department as a school with which the DOE may contract for the provision of special education services.

The CSE convened on May 24, 2011 to develop an IEP for the 2011-2012 school year. Based upon teacher estimates at the time of the review, the IEP reported reading at the mid and math and listening comprehension at the upper However, difficulties with were described. The IEP noted that the student presented with and that he was working on becoming a more , staying on topic and using correct syntax while building upon a sentence structure as well as on intelligibility. (Ex. 1-3) With regard to social/emotional performance, it was stated that according to his teacher, the student followed all class rules and was generally compliant and respectful toward authority and had shown great progress in peer interaction and speaking in class but at times had a hard time requesting help or permission from teachers and required prompting to do so. (Ex. 1-4) His fine and was noted. (Ex. 1-5)

The CSE recommended a special class in a community school ( ) with related services (occupational therapy (“OT”) 2x30 therapy (“ ”) 2x30 and 1x30 ) (Ex. 1)

By letter dated July 21, 2011, the CSE recommended a placement in a public school. (Ex. 5)

In a contract dated September 1, 2011, the parents agreed to pay tuition in the amount of $35,000 for the 2011-2012 school year. (Ex. G)

In a Letter of Agreement dated September 12, 2011, the parents agreed to additional fees of $4000 for OT and $6,000 for SL. (Ex. H)

By letter dated September 15, 2011, the parents informed the CSE that they had visited the school when it opened in September and that they believed that the placement was not appropriate. The parents asserted that the student was and required a small classroom setting that incorporated a throughout the day and a higher level of staff support. The parents also claimed that the other students did not have the same level of need and that he would be singled out with a detrimental effect on , . The parents informed the CSE that they were enrolling the student in and would seek DOE funding for that placement. (Ex. 5) Positions of the Parties

The parents assert that the student had that and functioning as well as difficulties with and in the 20111-2012 school year required, in , a higher level of support to learn than the program recommended particularly when intervention plan were not provided and without any or adequate social skills goals. Therefore they assert that the IEP is substantively defective. The parents also claim the school was not appropriate because it did not provide an appropriate class. The parents assert that is appropriate and that equitable considerations do not warrant denial or limitation of DOE funding. The parents assert they are unable to pay and seek reimbursement and request prospective payment. (T. 9-14, Ex. A)

The DOE asserts that the IEP was based upon information provided by the student’s teachers and providers and that a meaningful opportunity to participate in its development was provided. The DOE claims that the IEP was not defective and would enable the student to make meaningful gains and that an appropriate placement which could implement the IEP was offered. Further, the DOE asserts that the parents have failed to establish that is appropriate and asserts the absence of standardized and/or objective assessment methods and details concerning curricula. The DOE also argues that equitable considerations warrant denial of DOE payment because the parent was not acting in good faith. (T. 15-Ex. V) Cases Presented

A list of documents in evidence is appended.

The DOE presented the testimony of: the special education teacher assigned to the CSE for the challenged CSE review; the principal of the recommended public school.

The parents presented the testimony of: , the principal; the student’s mother (“the parent”). Findings of Fact and Conclusions of Law Factual Findings

The information stated in the “Background” section above is specifically included herein as factual findings. Further factual findings are specified below.

Transcript and Exhibit references not specified below are set forth above.

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] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

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]).

The parent asserts that the IEP it is substantively defective because a 12:1:1 program without counseling, a behavioral plan and appropriate social skills goals was not appropriate.

was the sole DOE witness with regard to the IEP. The credible evidence shows that: The student’s then current teacher, the school’s principal and the student’s mother attended the review. (T. 127, Ex. 1-2) Documents considered by the CSE included documentary information provided by the school and a classroom observation. (T.148,

150) That information, I conclude, included the IEP (Ex. 2) since the CSE IEP includes language taken directly from it. (compare, for example Ex. 2-6 with Ex 1-5) staff and the parent had an opportunity to participate and state their opinions and concerns. (T. 142, 146-147) The CSE included information provided by them and by the school and provider reports in developing the IEP. (Ex. 1-3, 1-4, 1-5) The CSE changed the language of delivery of the service based upon the provider reports receive and the information provided at the meeting and also added a group session to mandate which had previously been only individual sessions which would foster and . (T. 139) and pragmatics was the principal issue impacting on his . (T. 145)

With regard to the parent’s claim that the student needed and/or or a more , noted that the teacher description did not indicate that. I note that the observation was not inconsistent with that teacher’s report. (Ex. 4) She said that the information provided did not indicate that he needed a more intensive program than which she opined would need his needs. (T. 163 ) Further, she said, the CSE had added group were addressed in the goals. The goals were written in conjunction with the classroom teacher or by the providers. (T. 148)

acknowledged that the only evaluation that the CSE had before it was conducted when the student was under old. (T. 153, Ex. 6) She asserted, however, that an evaluation at toddler age was not reliable when the student and that a new one was neither required nor necessary in view of the information concerning behavior that was provided by school staff. (T. 153-157) She also noted that the student’s academics were “pretty much on grade level.” (T. 162)

However, it is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.

In this matter, none of the CSE participants knew the student personally. (T. 138,

151) Although a DOE had conducted the observation, she did not participate directly or indirectly in the annual review. (T. 150, Ex. 4) The 2007 evaluation reported extremely fleeting attention, significant self-directedness and impulsiveness. (Ex. 6-6) Although RW asserted that it was unreliable in view of the student’s age at the time of the review, no subsequent evaluation was known to the CSE. The documentary material concerning the student provided by the school to the CSE and by the DOE in this hearing was sparse in number and substantive content. (Ex. 2, 3) Further, the credible evidence shows that during the 2010-2011 school year the student was in class with seven students, one teacher, a classroom para and a one to one para. (T. 206) did not know whether the staffing ratios in the student’s the current class was known or considered at the time of the review and there is nothing in evidence indicating that it was. (T. 151, 157) In those circumstances, I conclude that the CSE’s reliance on the student’s reported current performance to determine a program has not been established as appropriate. In the instant matter, I conclude that the CSE lacked sufficient evaluative material upon which to base a recommendation.

I conclude that the DOE has failed to establish that the program recommended was reasonably calculated to enable the student to make meaningful educational gains and therefore has not established it provided a FAPE. Accordingly, I do not address the other parents’ 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 sole witness with regard to the , the school principal. testified that s mission is to educate children with various difficulties to become functional members of society. (T. 184) In the 2011-2012 school year the school had 8 classes and its students ranged from age 5 to 13. (T. 184) Each class had a master teacher and between 6 to 8 students and occasionally there was an assistant in the classroom. (T. 185) All teachers had Masters degrees in special education. (185) Meetings were routinely held with , the teachers and the school social worker and visits the classrooms at least every two weeks (T. 190, 195-196) The school provides and and has a social worker. (T. 206-207) With regard to mainstreaming activities, testified that students have their own table but share a room with mainstream students at for lunch and students are mainstreamed into that school’s classes when appropriate. (T. 216-217, 226) This student was in a class with students old with reading and math levels of to beginning in September 2011. (T. 219-220)

described the student as , principally relating to and needing a lot of and a small classroom setting (T. 189-190, 197-198) She stated that there is a school wide set up by outside consultants and based upon a token economy. (T. 191 192) The plan is customized for particular students when necessary. (T. 191) This student was part of the classroom system but he had separate specific goal using a social skills notebook which was a combination of social skills and . . (T. 191, 193-194) goals were also included in his 2011-2012 HO IEP. (T. 199-200, Ex. F)

testified that the student had made progress in his goals as well as in academics.

(T. 200-204) She stated that the student received both , usually on a pull out basis. (T. 206)

Informal teacher assessments are used and a standardized reading assessment was done in May 2012 for the first time and the student scored somewhere in the range. (T. 209-211)

However, the documentary evidence submitted with regard to progress was sparse and did not itself indicate progress. (T. 212-213, Ex. F) The progress reported was based upon informal observation and testing and the school did not collect data. (T. 220) There was no formal testing with regard to which is principally evaluated by observation and teacher direction. (T. 214) Although with learning were asserted by , the social worker did not provide direct services to this student. (T. 221)

I find that the parents have failed to meet their burden to establish that the program they unilaterally selected was appropriate. The evidence shows that data was not collected and I conclude the assessments were subjective. Further, virtually no documents demonstrating the student’s progress were submitted. The claims with regard to this student’s needs and the appropriateness of rest virtually entirely upon the testimony I find that testimony unreliable.

I note with regard to that conclusion various instances in which the accuracy or adequacy of the testimony provided was questionable. Although testified that the student, indeed the class, received essentially no religious instruction in the school and engaged in no religious activities other than prayer, the evidence shows that religious and related instruction as a routine and substantial part of the school program was provided and this student received grades in those subjects. (T. 228-236, Exs. C, F) See also T. 228 acknowledging a “secular” schedule. was unable to reconcile these facts with a credible explanation. (T. 234, 235-236) Further, no reports have been provided. It is noteworthy that the claimed times for delivery of those services is during the periods when religious instruction for which he was graded was provided. (Exs. C, F) Moreover, initially testified that the providers were salaried and although subsequently correcting that testimony when various documents were called to her attention, it bolsters my conclusion that her testimony was unreliable. (T. 223, 239-240)

Prong 3

I do not address this issue in view of the foregoing findings.

Order

This matter is DISMISSED. Dated: December 20, 2012

________________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer JS:dl

Cse changed language of therapy o English from Yiddish and initiated a group session

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 5/24/11, 11 pgs, Department of Education

2 IEP, 1/2011, 6 pgs. Department of Education

.3 Progress Report, 5/23/11, 1 pg. Department of Education

4 Classroom Observation, 2/6/11, 2 pgs. Department of Education

5 Parent Letter and FNR, 9/15/11, 2 pgs. Department of Education

6 Evaluation, 11/23/07 Department of Education

7 Report, 1/24/12, 3 pgs. Department of Education

8 Contact Sheet, 9/20/10, 1 pg. Department of Education

A Impartial Hearing Request, 5/11/12, 3 pgs. Parent

B Student’s Attendance Record, 2011/2012, 1 pg. Parent

C Student Schedule 2011/2012, 1 pg. Parent

D Related Services Affidavit, SL, 6/4/12, 1 pg. Parent

E Related Services Affidavit, OT, 6/4/12, 1 pg. Parent

F IEP, 2011/2012 undated, 15 pgs. Parent

G Contract 2011-2012, 9/1/11, 1 pg. Parent

H Addendum to 2011-2012 Letter of Agreement, Parent

9/12/11. 1 pg.

I Prehearing conference memo, 1 pg. Impartial Hearing Officer

II Compliance date extension request decisions Impartial Hearing Officer

III E-mails re closing statements Impartial Hearing Officer

IV E-mail re closing of the record Impartial Hearing Officer

V DOE closing statement Impartial Hearing Officer

Footnotes

[1] At the October 24, hearing the parties requested the opportunity to make closing statements and a hearing for that purpose was scheduled for October 31. (T. 269-270 ) That hearing was cancelled as a consequence of Hurricane Sandy, subsequent attempts to reschedule it were unsuccessful and the parties were informed that they could submit written closing statements by December 7. (Ex. III) The DOE submitted a closing statement; the parents did not. (Exs. IV,V)