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 9, 2012

August 28, 2012

October 31, 2012

December 3, 2012

January 2, 2013

January 3, 2013

February 7, 2013

February 13, 2013

March 7, 2013

Actual Record Closed Date: March 25, 2013

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2012

ESQ., Attorney (Via Telephone) — Student

NO APPEARANCE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 28, 2012

Attorney — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2012

For the Student:

NO APPEARANCES

For the Department of Education:

NO APPEARANCES

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2012

Attorney — Student

Parents

CSE Representative — DOE

School Psychologist, CSE (Via — DOE

Telephone) — DOE

Special Education Teacher, — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 2, 2013

Attorney — Student

Mother — Student

Teacher (Via Telephone) — Student

SEIT Teacher (Via Telephone) — Student

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2013

ESQ., Attorney — Student

Parent/Mother — Student

Occupational Therapist (Via Telephone) — Student

Committee on Special Education — DOE

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2013

Attorney — Student

CSE- Representative, Social Worker — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13,

2013

Attorney — Student

Parents

SEIT (Via Telephone) — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2013

Attorney — Student

District Representative — DOE

The parent’s impartial hearing request pursuant to the Individuals with Disabilities Education Act (IDEA) was received on July 9, 2012. Upon appointment as hearing officer on July 10, 2012, I immediately scheduled a pre-hearing conference for August 9, 2012, after the resolution period, and two hearing dates, August 28 and September 13, 2012.

By email dated July 18, 2012, the parent requested that I recuse myself. The email states in part, “As you are aware, on February 6, 2012 the Office of and Associates, LLP requested that the New York State Education Department immediately open an investigation into your handling of all matters assigned to filed by our office to determine whether you have acted with a disregard for the duties imposed upon you by state and federal law. As a result of this complaint, the parents request that you recuse yourself from the above matter. “Immediately upon receipt of the recusal request I denied it.

The pre-hearing conference was held as scheduled on August 9, 2012, but the school district did not appear. By email dated August 17, 2012, the school district requested an adjournment of the first hearing date, August 28, 2012, due to availability of witnesses. I denied the adjournment request. The hearing continued on August 28, 2012, but the school district again did not appear. The parent requested pendency relief. By Interim Order dated August 31, 2012, I granted the parent’s request for pendency.

The next hearing date was scheduled for September 13, 2012. By email dated September 12, 2012, the school district requested an adjournment “due to availability of witnesses and possible settlement negotiations.” Immediately upon receipt I denied the adjournment request.

Then, by email dated September 12, 2012, the parents requested permission to amend the request. I denied the request. I was then informed by email that the school district consented to the amendment of the request, that the September 13, 2012 hearing date was cancelled, and that the new resolution compliance date was October 12, 2012. That same day, September 12, 2012, I scheduled the next hearing date for October 25, 2012, after the end of the new resolution period.

By email dated October 23, 2012, the parent requested an adjournment of the October 25, 2012 hearing date due to, “unavailability of witnesses and the need for additional time to prepare for and present our position at hearing.” I initially sent an email to the impartial hearing office denying the adjournment but after reconsideration I contacted the parent’s attorney by telephone and granted a short adjournment to October 31, 2012.

On October 31, 2012, the hearing proceeded as scheduled but neither party appeared, in person or by telephone, nor was an adjournment requested by either party. I note for the record that on October 31, 2012, New York City’s telephone, internet and transportation services were limited or unavailable due to the damage caused by Hurricane Sandy. Many public and private offices were inaccessible.

On November 2, 2012, I scheduled the next hearing date for November 13, 2012. That same day, November 2, 2012, the parents requested permission to amend the request. I denied the request. I was then informed by email that on November 2, 2012, the school district consented to a second amendment of the request, that the November 13, 2012 hearing date was cancelled, and that the new resolution compliance date was December 2, 2012. The same day, November 2, 2012, I rescheduled the hearing for December 3, 2012, the day after the new resolution compliance date.

The hearing continued on December 3, 2012, January 2, 3, and February 7, 2013. By email dated February 6, 2013, the parties requested an adjournment of the February 13, 2013, hearing date, which I denied. The hearing continued on February 13, 2013. The parent’s attorney requested an opportunity to make a closing statement on the record and both parties presented their closings on March 7, 2013.

Throughout the hearing compliance date extensions were granted only for good cause shown and were documented in writing as part of the transcript in accordance with the guidelines set forth in Appeal No. 12-096, which states in footnote 8, “While I note that the hearing record includes a timeline with notations as to reasons for extensions (see Impartial Hearing Officer (IHO) Ex. I), numerous extensions were granted throughout the course of the ten-month hearing (see Tr. pp. 33-34, 49, 132, 269, 416-417, 570, 706, 856, 919, 950-51, 1008-1009 ; IHO Ex. I), and the hearing record does not reflect that the IHO sufficiently documented her reasons for granting all of the extensions, fully considered the cumulative impact of the factors relevant to granting all of the extensions, or responded adequately in writing to the extension requests, as required by State regulations and there is nothing in the hearing record that indicates a satisfactory reason for the inordinate delay between the filing of the second amended due process complaint notice on April 22, 2011 and the record close date of March 9, 2012 (8 NYCRR 200.5[j][5][i], [ii], [iv]). In addition, I remind the IHO that State regulations set forth that each party shall have up to one day to present its case and that additional hearing dates, if required, should be scheduled on consecutive days, when practicable (8 NYCRR 200.5[j][3][xiii]). While the parties may not complain or may even agree that an extension of time is warranted, such agreements are not a basis for granting an extension and the impartial hearing officer has an independent obligation to comply with the timelines set forth in federal and State regulations (see 34 C.F.R. § 300.515[a]; 8 NYCRR 200.5[j][3][iii], [5]). Moreover, regulatory provisions dictate that extensions of the 45day timeline may only be granted consistent with regulatory constraints and an impartial hearing officer must ensure the hearing record includes documentation setting forth the reason for each extension (8 NYCRR 200.5[j][5]). The IHO is reminded that it is her obligation, regardless of the parties' positions, to ensure compliance with the 45-day timeline for issuing a decision (see Application of the Dep't of Educ., Appeal No. 11-037; Application of the Dep't of Educ., Appeal No. 08-061; Application of a Student with a Disability, Appeal No. 08-064). Additionally, State regulations require that in cases where extensions of time to render a decision have been granted, the decision must be rendered no later than 14 days from the date of the record closure (8 NYCRR 200.5[j][5]; see Office of Special Education guidance memorandum dated August 2011 titled "Changes in the Impartial Hearing Reporting System" available at http://www.p12.nysed.gov/specialed/dueprocess/ChangesinIHRS-aug2011.pdf). “

SCHOOL DISTRICT

The school district presented testimony and documentary evidence in support of its position that it offered a Free and Appropriate Public Education (FAPE) to the student for the 2012-13 school year. (Testimony and Exhibits 1-4)

A school testified on behalf of the school district. (Tr. At 30-73) She conducted a of the student dated March 5, 2012. (Exh. 2). She was also a member of the Individualized Education Program (IEP) team that developed the March 23, 2012 IEP. (Exh. 1) She testified regarding the composition of the IEP team and identified the other members which included the school district special education teacher and district representative who conducted the classroom observation (Exh. 3), the student’s general education teacher, the parent, the parent member, and the student’s Special Education Itinerant Teacher (SEIT), and the student’s occupational therapist. She testified that the members participated during the entire IEP meeting. (Exh. 1)

The documents reviewed at the meeting included the evaluation, the provider’s progress report, the classroom observation, the teacher’s progress report and the proposed goals and short-term objectives. (Exhs. 2, J, 3, G, H, K) There was also input from his teachers, occupational therapist and parent throughout the meeting.

The classification was changed from autism to speech and language impairment. The school psychologist testified that the parent stated at the IEP meeting that she was not sure if the student was autistic. The school also testified that she recommended a classification of impairment because of the results of the testing she conducted. She testified and wrote in her report that during testing the student was sweet, friendly and loving but he was . He exhibited significant Throughout testing his mood was optimal and he completed all tasks. (Exh. 2)

On the WISC-IV the composite scores in verbal comprehension and working memory were , perceptual reasoning and processing speed was and full scale was in the of overall . The results of the testing were considered a reliable indicator of the student’s current level of functioning. (Exh. 2)

Based on a review of the student’s files, testing and other information the IEP team determined that a special class with the related services of therapy, physical therapy, would be appropriate for the student. (Exh. 1)

The team developed annual goals specifically designed to meet the student’s needs. The record establishes that the IEP goals were developed collaboratively by the team. The IEP includes annual goals, measures to determine if each goal has been achieved, how progress will be measured and when progress will be measured. Annual goals were developed for counseling, math, reading, vocabulary, , visual perceptual and motor skills and gross motor skills. (Exh. 1)

The school opined that the recommended program would have provided a FAPE to the student for the 2012-13 school year. The school also opined that the student’s unilateral placement in a general education classroom was not appropriate. She also opined that a (FBA) and (BIP) were not necessary because the student did not have overt behaviors that would interfere with his ability to receive educational benefit. She also testified that the parent did not provide an updated evaluation or doctor note that stated that the child had . (Tr. At 30-73)

By final notice of recommendation dated July 10, 2012, which was admitted into evidence, the school district offered to place the student in a special class . The student’s name and home address, as well as the name, address and contact information for the recommended class are clearly and correctly written on the face of the Final Notice of Recommendation (FNR). (Exh. 4)

The classroom teacher of the recommended class at testified on behalf of the school district. (Tr. At 74-92) She has a Master’s degree in Learning Disabilities and 29 and ½ years of teaching experience. She is state certified in special education and has a health conservation license, which is also a special education license. She is a teacher at . She also trains teachers, conducts IEP meetings, clears compliance issues for the school, proofreads IEPs for teachers and is the special education liaison for the school.

The school has a bilingual Yiddish class, which is the class the student would have attended. The classifications of the students in that class are learning disability and speech and language impairment. The functional grade levels in reading and math range from kindergarten to Grade 3. She testified that she reviewed the student’s IEP and determined that the class would have been appropriate. It would have met his academic needs and his IEP goals would also have been met. The student’s IEP is similar to that of the other students in the class. All of the teachers in the building provide personalized instruction based on the IEP goals. They are all licensed and certified. They receive ongoing training. The school has onsite occupational therapy, physical therapy, speech and language therapy, Special Education Teacher Support Services (SETSS) and counseling. All of the providers are also licensed and certified. The student would have received all his related services at the school. (Tr. At 74-92)

PARENT

The parent presented testimony and documentary evidence to support her position that the school district failed to offer a FAPE to the student. (Testimony and Exhibits A-

L) Witnesses included the parent, classroom teacher, SEIT, and therapist. The witnesses testified regarding the IEP meeting, the student’s educational history, the services he currently receives in school and at home, and his educational and behavioral strengths and weaknesses. (Tr. At 98-412) The witnesses also testified that they participated in the IEP meeting, helped to develop the IEP goals but disagreed with the team’s recommendations. Documentary evidence submitted by the parent included school, provider progress reports and proposed goals and short-term objectives. (Exhs.

G, H, I, J, K)

The parent challenges the classification of . The parent maintains that the appropriate classification and that the student has , in addition to expressive and receptive . The witnesses testified that the student attends a general education classroom but that he continues to require 12 month services and 25 hours per week of SEIT services, with the related services of . The parent also claims she did not receive the FNR and also challenged the Committee on Special Education (CSE)’s failure to include parent training in the IEP. (Tr. At 98-412, Exhs. A-L)

FINDINGS OF FACT AND LAW

As was recently reiterated in Appeal 12-091, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (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]). In the instant case, I find that the school district did offer a FAPE for the 2012-

13 school year.

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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; 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]).

In this case I find that there were no procedural violations which impeded the student’s right to a FAPE, impeded the parent’s opportunity to participate or caused a deprivation of educational benefits.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (Rowley, 458 U.S. at 203).

In this case the testimony of school district staff establishes that the recommended special class would have provided the personalized instruction and support services the student required to benefit educationally from that instruction.

However, the "IDEA does not itself articulate any specific level of 7educational 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] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

The recommended program and IEP satisfy the requirements described above. The IEP is likely to produce progress, and was developed collaboratively with the parent and the student’s teachers and providers. The record also establishes that class with related services is the least restrictive environment appropriate for the student.

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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).

I find that the March 23, 2012 IEP met all these requirements. The record establishes that a validly constituted IEP team considered recent testing, evaluations and teacher and provider input before making recommendations for the student. The recommendation for a change in classification impairment was supported by the results of the evaluations and the entire record before me. The team considered the information provided by the student’s parent, teacher and providers and determined, based on all of the testing, observations, reports and discussion, that was the appropriate classification. They then determined that a class with related services was a program reasonably calculated to meet the student’s needs in the least restrictive environment. I concur. The parent and providers were given a full opportunity to participate in the meeting and express their opinions, as is required by law. The team then went on to develop goals, incorporating the goals provided by the student’s teachers and providers. I find that the record establishes that the IEP goals are appropriate and designed to meet the student’s needs. Additionally, I find that the record establishes that the parent was sent the FNR offering her an appropriate class.

In summary, I find that the hearing record establishes that the March 23, 2012 IEP recommending placement of the student in a special class with related services was reasonably calculated to enable the student to receive educational benefits. I also find that an appropriate class was offered. Thus, the district met its obligation to offer the student a FAPE for the 2012-13 school year (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).

I have considered the parties' remaining contentions and find that the contentions are either without merit or that I need not consider them in light of my determinations herein. (Appeal No. 12-135) Dated: March 28, 2013

_____________________

ESTHER MORA, ESQ.

Impartial Hearing Officer EM;mv

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

A Impartial Hearing Request dated 7/9/12, 7 pages

B Findings of Facts and Decision dated 7/28/10, 17 pages

C Amended Impartial Hearing Request dated 10/29/12, 8 pages

D Agreement dated 6/20/12, 1 page

E Parent email dated 3/9/12, 2 pages

F Parent letter dated 6/14/12, 2 pages

G School Progress Report dated 2/28/12, 4 pages

H Student Progress Report dated 2/8/12, 2 pages

I Report dated 2/24/12, 3 pages

J Student Progress Report dated 2/23/12, 4 pages

K Proposed Goals, undated, 7 pages

L Notice of Placement dated 6/15/12, 3 pages

District

1 IEP dated March 23, 2012 15 pages

2 Evaluation dated March 5, 2012, 10 pages

3 Classroom Observation dated March 14, 2012, 1 page

4 Final Notice of Recommendation dated July 10, 2012, 1 page