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: July 19, 2013

September 11, 2013

Actual Record Closed Date: October 22, 2013

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2013

Parent (Via Telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11, 2013

Parents

DESIGNEE

PROCEDURAL BACKGROUND

A pendency hearing was held on July 19, 2013 pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Act (“IDEA”). In accordance with the parent’s request for a hearing dated June 12, 2013, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), on July 8, 2013 to hear this matter. A pendency decision was issued which was subsequently amended to reflect the Parties agreement that the student’s pendency placement was the , which had housed the .

The parent’s due process complaint indicates that she found the recommended placement inappropriate as the environment was very . Additionally, her complaint alleges that the recommended placement was too restrictive. Further, her complaint indicates that the student was unilaterally placed

On September 11, 2013 a hearing on the merits took place; the DOE was represented by a District representative. The parent represented herself. The parent submitted 5 exhibits, hereinafter referred to as “Exhibits A- E”, the DOE submitted 3 exhibits, hereinafter referred to as “Exhibits 1-3”. (The list of exhibits is attached hereto as “Attachment A”). The Assistant Principal from recommended placement, the Director of the and the parent testified.

DOE’S POSITION

The DOE’s position is that the Committee on Education, “CSE”, was properly constituted, had sufficient information upon which it recommended that the student be classified as

Additionally, the CSE recommended that the student be assigned a full time

PARENT’S POSITION

The parent asserts that the recommended placement is inappropriate as it does not provide the student with a , the curriculum is too challenging and the environment is too . Further, the parent argues that the recommendation is too restrictive as it does not offer mainstreaming opportunities.

FACTS

The student’s classification and related services are not in dispute, the parent agrees that the recommendation for the related services and individual are appropriate, the parent challenges the recommendation that the student attend a in a class.

The Assistant Principal of the recommended placement testified regarding the placement. She testified that the school provides related services by a combination of DOE and contracted employees. With reference to the recommended class, she testified that the class is for children whose . She testified that when the students initially

The Assistant Principal testified that the recommended school could provide the services recommended on the student’s IEP in terms of class placement, related services and an individual and could meet his needs as indicated on the IEP. (TR 43) The Assistant Principal described the kindergarten curriculum as aligned with the common core standards. (TR 45) The witness also testified that the students receive and the program has a parent training component. (TR 51, 52)

The Director of the hereinafter “Director”, testified in support of the parent’s position. She testified that the children are grouped within a , and that this year, in the primary one unit, children in the class. (TR 71) She testified that the which focuses on teaching the that will help them to be . (TR 57, 58) The witness described the daily activities in which the children participate and the educational programs used for . (TR 61, 62) The Director testified that as the year progresses the children will have with typically developing students in the housed in a . (TR 75) The witness also testified that the program participates in other activities with the host school, su (TR 63)

With reference to the provision of related services, the Director testified that the services are provided through contract providers by the DOE. (TR 67) She also testified that the class the student is currently in students. (TR 71)

FINDINGS

The issue in determining whether the Parents are entitled to tuition reimbursement rests on whether the district made a free appropriate public education available to the child in a timely manner prior to the parent’s unilateral placement.

To that end, there must be a finding that the DOE failed to provide the student with a free and appropriate public education, “FAPE”, that the parent’s chosen program is appropriate, and that equitable considerations support the granting of tuition reimbursement. School Committee of Town of Burlington, Mass. v. Department of Educ. 471 U.S. 359,( 1985) ; Carter v. Florence 510 U.S. 7, (1993)

Furthermore, a parental placement may be found to be appropriate even if it does not meet the State standards that would otherwise apply to education provided by the

DOE. 34 CFR 300.148 (c)

Accordingly, in determining whether a parent’s chosen program is appropriate, the parent’s selected private school does not have to be a state approved school for the education of students with , the teachers do not have to be certified, and the program does not have to provide the student a setting in the least restrictive environment. The determination of whether the parent’s selection is appropriate is determined by whether the program provides ized education or services that meet the student’s unique needs. Carter v. Florence 510 U.S. 7, (1993)

Two purposes of the IDEA are (1) to ensure that students with have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment and (2) to ensure that the rights of students with and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 (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 an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

Children with may not be removed from the regular educational environment unless "the nature or of a child is such that education in regular classes with the use of cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A).

The Parents’ argument that the student was denied FAPE is not persuasive. I am persuaded that the recommended placement would address the student’s needs and that he requires the collaborative approach of the on-site related service providers to meet his educational needs. Accordingly, based on the testimony and evidence submitted, I find the recommended placement is appropriate to meet the student’s needs and would have provided the student with meaningful educational benefit.

I have determined that the student's IEP and placement offered by the district was appropriate for the student. Having found that the district offered the student a FAPE in the LRE, I need not reach the issue of whether the private educational services obtained by the parents were appropriate for the student and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a , Appeal No. 05-038; Application of a Child with a , Appeal No. 03058).

ORDER

The IEP developed March 13 2013 is appropriate and provides the student with a free and appropriate public education in the least restrictive environment suitable for his needs.

The Parents’ request for tuition reimbursement is denied. Dated: October 23, 2013

ROSLYN ROTH, ESQ.

Impartial Hearing Officer

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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 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

A IEP dated 3/13/13, 9 pgs B Application dated 7/15/13, 3 pgs. C Payment Schedule dated 7/15/03, 1 pg. D Request for Hearing dated 6/12/13, 1 pg

E Coversheet and dated 1/22/13, 34 pgs

DEPARTMENT OF EDUCATION

1 dated 1/28/13, 1 pg

2 Scheduling Letter dated 2/14/13, 1 pg.

3 IEP dated 3/13/03, 21 pgs.