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: Parents

Dates of Hearing: October 8, 2013

October 22, 2013

Actual Record Closed Date: November 18, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2013

Attorney — Parents

Mother — Parents

DOE Representative — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2013

Attorney — Parents

Mother — Parents

Parents

DOE

Assistant Principal — DOE

On October 8, 2013 and October 22, 2013, 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 proceeding was initiated at the request of the parent by correspondence dated June 20, 2013. (Ex. A) I was appointed Impartial Hearing Officer (“IHO”) on June 24, 2013. (T. 4) I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on July 24, 2013, after the conclusion of the resolution period, the initial hearing was scheduled for September 10, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. That hearing was adjourned and the hearing was rescheduled to commence on October 8, 2013. (T. 3, Ex. I)

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 to enable IHO consideration of the 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 written decisions were provided to the parties. (T. 4, 36, 40-41, Exs. I. II)

The current compliance date is December 2, 2013. The record closed on November 18, 2013, upon my receipt of the final transcript.

Background1

The student was about old and entering the at the commencement of the 20122013 school year (ten month program). His Positions of the Parties The parents assert that the DOE did not provide a free, appropriate public education (“FAPE”) for the 2012-2013 school year. They assert that the April 18, 2012 IEP is procedurally and substantively defective, specifically claiming that the CSE was not properly constituted and the goals were not discussed at the CSE review. Further, the parents assert that they were informed that the recommended placement was not available in the recommended school. They claim that the placement they unilaterally provided at was appropriate and that equitable considerations support tuition reimbursement by the

DOE. (T. 166-168, Ex. A)

The DOE asserts that the April 18, 2012 IEP was valid and that an appropriate placement was available at the recommended school. It asserts that certain parent claims are precluded by failure to assert them in the hearing request. Cases Presented

A. Lists of documents admitted into evidence are attached.

B. The DOE presented the testimony of two witnesses: Findings of Fact and Conclusions of Law 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 Prong 3 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)

The facts specified in the Background section are included herein as Findings of Fact.

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of 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 , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , 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 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 (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]).

CSE Review and IEP

The parents assert that the IEP is substantively and procedurally defective. The sole amplification of the procedural defect assertion in the parents’ hearing request is the claim that the CSE was improperly constituted because of an absence of DOE teachers. Although in closing argument that parents make certain assertions concerning goals, those claims were not made in the hearing request and the DOE did not consent to amendment but rather has specifically objected to consideration of goals issues. In these circumstances, it is well established those claims may not be considered as a basis for my determination. Appeal No. 12-103. Further, as discussed below, I find the evidence does not support nullification of the IEP on that basis.

With regard to substantive defect claims, other than a general claim concerning what the student needs there was no hearing request identification of specific claims concerning substantive deficiencies in the IEP. Further, as discussed below the evidence does not support that claim.

Rather, with regard to the review and the IEP, the persuasive evidence shows that the CSE participants for the April 18, 2012 review included: It is undisputed that although there was a DOE general education teacher participant, there was no DOE special education teacher. However, I conclude that that does not constitute a basis for nullification of the IEP in the circumstances here where the CSE team included the student’s Although there was no special education teacher present at the review who could have personally implemented the proposed IEP, I do not find that a procedural violation, here where a then current special education teacher of the student was present. Further, even were I to conclude that the mere fact that that teacher was from a private school negated the appropriateness of her participation as the mandated special education teacher and therefore that a procedural violation occurred, I find that in the circumstances here that error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040. Similarly, I find that although there is no indication that , the DOE general education teacher, would have personally implemented the IEP, a procedural defect arising from that circumstance is not a basis for a nullification of the IEP.

Similarly there is nothing to support a conclusion that the program, although differing from that at , was not substantively appropriate. Rather, the evidence shows that the student was classified for which he . (T. 19, 83 Ex. 1)

ORDER

This matter is DISMISSED.

Dated: December 2, 2013

______________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

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, 4/18/12, 12 pgs. Department of Education

2 FNR, 7/23/12, 1 pg. Department of Education

A Impartial Hearing Request, 6/20/13, 2 pgs. Parents

B WITHDRAWN

C WITHDRAWN

D School Contract, 9/17/12, 1 pg. Parents

E Attendance Record, 6/20/13, 1 pg. Parents

F School Affidavit, 10/21/12, 1 pg. Parents

G Notice Letter, 10/21/12, 1 pg. Parents

H Parents

I Student Report Card, 2012-2013 Q4, 5 pgs. Parents

J Student Schedule, 2012-2013, Q4, 2 pgs. Parents

K , 5 pgs. Parents

L Parents Payments, various dates, 4 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer