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: January 4, 2013

February 4, 2013

March 27, 2013

August 6, 2013

August 20, 2013

Actual Record Closed Date: September 12, 2013

Hearing Officer: Stephen Haken, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2013

Catherine Fazio, Office of Saundra M. Gumerove, Esq.-- for Parent (via telephone) Michele Melnick, Esq.--Attorney for the DOE (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2013

--Parent

Michele Melnick, Esq.--Attorney for the — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2013

--Parent

Michele Melnick, Esq.--Attorney for the — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2013

—Parent

advocate for the — Parents

Michele Melnick, Esq.--Attorney for the — DOE

Teacher, CSE for the DOE (via telephone) School for the DOE (via telephone)

Teacher, CSE for DOE (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 20, 2013

—Parent

Michele Melnick, Esq.--Attorney for the — DOE

INTRODUCTION

This hearing was requested on August 1, 2012 by the Parents, (Parents), of the student (Student). The hearing was requested, pursuant to the Individuals with Education Act (IDEA),20 U.S.C §1415(f) and 1412(a)(10)(c), §504 of the Rehabilitation Act (504) and the United States Supreme Court decisions Burlington School Committee v. Department of Education, et. al., 736 F.2d 773 (1st Cir. 1984, aff'd at 471 U.S. 359, 105

S. Ct. 1996, 556 IDELR 389 (1985) (BURLINGTON) and Florence County School District v. Shannon Carter, et. al., 510 U.S. 7, 114 S. Ct. 361 (1993) (CARTER), to have the Department of Education (DOE) conduct an appropriate (including a Type II assessment; reconvene the Committee on to develop an appropriate Individualized Education Program (IEP) which will include: an appropriate transition plan based on the student’s strengths, needs, preferences; provide payment for or a similar appropriate transition program.

I was appointed to hear the matter by the DOE, after the recusal of another IHO, on 12/20/12. A Prehearing phone Conference was held on January 4, 2013. Hearings were held on February 4, 2013, March 27, 2013, April 30, 2013, August 6, 2013, August 20, 2013 pursuant to IDEA at 20 U.S.C. §1415(f) and pursuant to §504. The Parent’s attorney, Saundra M. Gumerove, Esq., resigned as the parent’s attorney prior to the first hearing date. Advocate, appeared with Ms. at the August 6, 2013 and August 20, 2013 hearings. The actual record closing date was September 12, 2013. Upon my appointment I found a Motion to Dismiss which included a challenge to the sufficiency of the Parents’ Due Process Complaint. The Motion to Dismiss was decided on April 10, 2013. The Decision found that the due process request applying to the 2009-2010 school year was time barred and permitted the Parent’s to submit a response to the notice of insufficiency and/or amend the due process complaint. An amended Due Process Complaint dated March 26, 2013 and one dated May 24, 2013 which included a response to the objections by the DOE regarding insufficiency were submitted.

BACKGROUND

The STUDENT is now old and no longer attending school. IHO Ex. 3.

The student attended the School from 2007-2012. On the April 15, 2011 IEP the related services recommended were

POSITION OF THE PARTIES

DOE

The DOE provided the Student with a free and appropriate public education (FAPE) for the 2011-2012 school year.

The CSE review team was validly composed. The CSE and the Parent agreed to an appropriate program. The IEP included an appropriate transition plan. The student received appropriate transition services. The student received services. The student is not entitled to Compensatory Education. Parent’s requested relief is not an appropriate remedy for the alleged deprivations. The student’s entitlement to a FAPE in New York ended at the conclusion of the school year in which the student turned 21. The DOE provided the student with a FAPE for the 2011-2012 school year by providing twelve months of educational, transitional and services at the non-public residential placement . The Parent was fully aware of the student’s receipt of services at the school and failed to raise any objections until after the expiration of the student’s eligibility for education. The Parent failed to show that the student experienced a gross violation of FAPE for a substantial period of time. IHO Ex. 2.

PARENTS

There are two distinct issues in this case. The first is the denial of a related service mandated on the student’s IEP for . The did not hire an until June 2012, two months before the student was to graduate. The second is that the CSE failed to provide a transition plan as required by IDEA for students about to leave the school system. IHO Ex. 1.

ISSUES ADDRESSED AT THE HEARINGS

Was the STUDENT offered a FAPE? Did the student receive the required related service of Did the student receive the required transition services?

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard The I.D.E.A.

The I.D.E.A. mandates that participating States provide students with FAPE. FAPE requires education and related services tailored to meet of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S. Ct. 3034, 3037-38 (1982). The law expresses a strong preference for students to be educated to the maximum extent appropriate with non-peers and requires that students be segregated only when the nature or severity of the is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3rd 119 (2nd Cir. 1998).

The particular educational needs of a student with a and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzcak, supra at 122.

Parents play a significant role in the IEP process. They must be informed about and consent to and have the right to an independent educational of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S. Ct. 528532 (2005). Moreover, parents' participation at IEP meetings must be meaningful. Deal v. Hamilton County Board of Education, 392 F. 3d, 840, 853 ( 6th Cir. 2005). Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126 S. Ct. at 532.

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S. Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School Districts of Yonkers, 231 F. 3rd 96, 102 (2d Cir, 2000). Following Schaffer, the New York State legislature enacted Chapter 583 of the Laws of 2007 (Chapter 583) which provides that the school district bears the burden of proof with respect to the appropriateness of its recommendation.

When determining the appropriateness of a school district IEP recommendation, Congress now requires that hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

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 part, if the services offered by the board of education were inadequate or inappropriate, the services selected the parent were appropriate, and equitable considerations support the parent's claim. (CARTER). In CARTER, the Court found that Congress intended retroactive reimbursement to parents by school officials, as an available remedy in a proper case under IDEA. "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 developed a proper IEP." CARTER at 370-71.§504 Legal Standard §504 of the Rehabilitation Act (29 U.S.C. 794[a]) states: "No otherwise qualified individual with a …shall, solely by reason of her or his , be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

As a threshold matter a person is protected under 504 if he or she is qualified person with a . A qualified person with a is one who has a which substantially limits one or more of such person's major life activities. 29 U.S.C. 705(20)(B); 42 U.S.C. 1202(2).

With respect to the provision of educational services, 504 requires recipients of federal funds to provide students with a FAPE (34 C.F.R. 104.33(a). FAPE is defined similar to FAPE defined in I.D.E.A. regulations (34 C.F.R. 300.17) as the provision of regular or education and related services that are designed to meet individual needs of persons as adequately as the needs of non are met, 34 C.F.R. 104.33(b); Scruggs v. Meriden Bd. Of Educ.,2007 WL 2318851 at pg. 9 (D. Conn. August 10, 2007). However, the requirement for an IEP under the I.D.E.A. in order to provide FAPE is not required for FAPE under 504.

A party asserting claim of discrimination under 504 must demonstrate the student is , the student is otherwise qualified to participate in school activities, the school receives federal financial assistance, and the student was excluded from participation. 504 requires a demonstration that the School District acted with bad faith or gross misjudgment. Intentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to FAPE. See Gabel ex rel L.G. v. Bd. Of Edcu. 368 F. Supp. 2d 313, 334-336 (S.D.N.Y. 2005); see also, Scaggs v. New York State Department of Education, 2007 WL 1456221 at p. 16-17 (E.D.N.Y. May 16, 2007). Parents of a child alleging discrimination by a school district pursuant to 504 bear the burden of proof. Rothschild v. Grottenthaler, 907 F. 2d. 286 (2d Cir. 1990).

The legal standard applicable to a request for reimbursement for educational Services includes: (1) the services offered by the Board of Education areinadequate or inappropriate. A Free Appropriate Public Education was not offered. (Prong 1); (2) the services selected by the parents are appropriate (Prong 2); and (3) equitable considerations support the parent’s claim (Prong 3). (Florence County School District v. Carter, 510 U.S. 7 (1993);School Comm. Of Burlington v. Department of Educ. Of Mass. 471U.S. 359 (1985).

A determination of appropriateness of a unilateral placement is made by considering whether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. The test for whether a parent’s placement is appropriate is “not perfection”. Rather the inquiry must focus on whether the placement is an appropriate school designed to address the child’s education needs.

The fact that the placement chosen by the PARENT is not in a school approved by the New York State Education Department is not dispositive in an award of reimbursement to the parent. PARENT'S unilateral placement will be reimbursable even if the placement is not in the child’s least restrictive environment. The Supreme Court held that a child need not have ever attended a public school in order for parents to be eligible for education services and tuition reimbursement when the District fails to offer FAPE. A private school placement does not have to conform to an IEP and thus does not have to provide the related services recommended therein. Parents "need not show that a private placement furnishes every service necessary to maximize their child’s potential.”; Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a FAPE as defined by 20 U.S. section 1401(9). An appropriate private placement need not meet state education standards or requirements. PARENTS may not be subject to the same mainstreaming requirements as a school board.

Reimbursement merely requires a district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it developed a proper IEP. The equities are in favor of the PARENT as it cooperated with the DOE at all times in the creation of the IEP. When determining whether the parent’s unilateral placement is appropriate, “ultimately, the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Education, 459 F.3d 356 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007). The Second Circuit has set forth standards for determining whether parent has carried their burden of proving the appropriateness of their chosen placement. Although no one factor is controlling as to whether the parent's unilateral placement meets this standard, factors such as grades, test scores and regular advancement may constitute evidence that a child is receiving an educational benefit. Courts assessing the propriety of a unilateral placement should consider the totality of the circumstances in determining whether the placement reasonably serves\child’s individual needs. Part of this includes showing that the chosen placement provides educational instruction designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prong One—Was a FAPE provided?

A DOE Committee on Education (“CSE”) is charged with providing students with a Free Appropriate Public Education (“FAPE”). A FAPE is comprised of full , an informed review where the parent is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the and a timely and appropriate site offer. 34 C.F.R. §§ 300.111, 300.116, 300.301. If the DOE offered the child a FAPE, then the parents are not entitled to reimbursement no matter how appropriate the program may be. Only if it is determined that the DOE failed to provide a FAPE, the parents show that their chosen program is appropriate, and the equities favor the parents, can the parent receive an award of reimbursement for the tuition payments paid to the unilaterally chosen private school. 34 C.F.R. § 300.148(c); Application of a Child with a , Appeal number 06-132.

A FAPE starts with an IEP, which must conform with the requirements set forth in 20 U.S.C. § 1414(d)(1)(A). In order to provide a FAPE, the DOE must comply with the procedural requirements of the IDEA and develop an IEP that is reasonably calculated to enable the child to obtain meaningful educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). See also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003).

In this case the Parents claim that the student was denied a FAPE because of two issues. The first is that the DOE failed to provide the which was mandated on the 4/15/11 IEP. The second is that a proper transition plan was not implemented.

The DOE asserted that the student is not entitled to compensatory education. The DOE argued that the IDEA applies to children ages 3 to 21 (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children ages 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. §1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21. N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a , Appeal No. 02-016; Application of a Child with a , Appeal No. 00-024. Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]." Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375 [N.D.N.Y. 2001]; Application of a Child with a , Appeal No. 04-100. According to the Second Circuit, compensatory education is instruction provided to a student after he is no longer eligible for instruction because of age or graduation and may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is specifically tailored to meet the circumstances of the case. Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp 147, 151 [N.D.N.Y. 1997], aff'd, 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of a Child with a , Appeal No. 06-086; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a , Appeal No. 02-019. The Second Circuit has recently reaffirmed that a student is not entitled to compensatory education unless the DOE committed a “gross procedural violation” of the IDEA resulting in “the student’s complete deprivation of a FAPE.” French v. New York State Dep't of Educ., 476 Fed. Appx. 468, 471 (2d Cir. 2011). Compensatory education, as an equitable remedy, is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff’d, 208 F.3d 204 [2d Cir. 2000], cert. denied, 531 U.S. 1019 [2000]).

The DOE contends that the student did not experience a complete deprivation of FAPE by any alleged deficiency in the student’s transition plan or the claimed lack of . DOE Ex. 1. The parties agreed that the student was placed at by the DOE and attended that school for the entire 2011-2012 school year. DOE Ex. 7. The student received twelve month services as a residential student at which included living at the school, receiving educational services, and participating in an off campus internship program. DOE Ex. 2, 3, 7 and 12 and Tr. 192, 197. The student both aged out of the auspices of the DOE and graduated from in 2012. DOE Ex. 2 and 6.

The parent provided emails that she sent to staff members at reflecting her knowledge that student was not receiving occupational therapy for a period of time during the 2011-2012 school year but then waited approximately nine months until filing an impartial hearing request. DOE Ex.1 and Parent’s Ex. A. The parent failed to provide any evidence that the student failed to receive after the date of her emails. According to Ms. the student was recommended for in order to support the student’s assistive technology services and keyboarding skills. Tr. 163. The record is clear that the student had the use of a laptop, software and keyboarding instruction at the school. DOE Ex. 3. Therefore, the student did not suffer any real deprivation from the claimed lack of during the 20112012 school year.

The State Review Officer has found that a student is not entitled to compensatory education where the student received services that would further her post-secondary goals, that the student was referred to other agencies and that the student learned other skills including . Application of a Child with a , Appeal No. 10-037. In the instant matter, the DOE provided testimonial and documentary evidence that the student received services to with applying for volunteer opportunities, two internships, providing an interest assessment, and providing instruction in DOE Ex. 2, 3, 4, 5 and Tr. 199, 200-

Even if the Hearing Officer finds that the transition plan in the IEP failed to specifically address the student’s transition needs, the DOE argues that any such failure would merely be a technical defect that does not result in a violation of the IDEA. See Application of a Child with a , Appeal No. 97-70. In Appeal No. 97-70, the State Review Officer found that the IEP included the student’s interests and referrals were made to outside agencies to ease his transition into the community. Id. The State Review Officer then found that the DOE’s failure to include “statements of transition services” in the IEP was a technical defect because the student received appropriate transition services. Id. In the instant case, the student received appropriate transition services at the school and at the exit interview. Additionally, the parent was successfully directed to the state resources at the and the student participated in a group home for a period of time after his graduation. Tr. 328. Finally, the Parent waited until the student’s graduation from to object to the transition services and lack of . DOE Ex. 1. The Parent failed to provide any evidence that she put the DOE on notice about the alleged lack of services or the transition services being provided to the student by . In fact, the parent continued the student’s placement at the school through the summer of 2013. DOE Ex. 6. The parent attended the IEP meeting and the exit interview without providing any objections to the transition page or any other issues claimed in the due process complaint. DOE Ex. 1-3 and Tr. 332. Instead, the parent waited until the student was no longer in the funded program to request additional services for the student.

The student’s entitlement to a FAPE in New York ended at the conclusion of the school year in which the student became . St. 240 F.3d 163 [2d Cir. 2001]; Application of a Child with a , Appeal No. 00-024. The DOE submits that the student is not entitled to compensatory education because he was not deprived of transition services over an extended period of time. Application of a Child with a , Appeal No 00-024; Application of the Bd. of Educ., Appeal No. 99-95.

The Parent requested funding at as compensatory education for the alleged deprivations of transition services and during the 2011-2012 school year. DOE Ex. 1. However, the parent failed to provide evidence as to how placement at this program would address any alleged deprivations of FAPE. The parent also failed to provide any evidence as to whether the student had been accepted into this program for the present time. In fact, the only documentation regarding this program came in the form of photocopies of a brochure from the program and tuition from a prior year. Parent’s Ex. F, P and Q.

The Parent failed to provide an indication in the record as to the amount of services sought as appropriate to remedy the alleged failures by the DOE. See Gill v. Dist. of Columbia, 770 F. Supp. 2d 112, 117-118. The record fails to contain any evidence as to the level or duration of services being requested by the parent. Compensatory education claims by parents have been denied when the lack of factual specifics made it difficult to determine what was actually being sought. Zahran v. The Bd. of Ed. Of Niskayuna Central School District, 2004 WL 1242962. Here, the record fails to contain any factual specifics as to what services are being sought to remedy the alleged FAPE deprivations.

The Board of Education indicated that the April 15, 2011 IEP included an appropriate transition plan for the student for the 2011-2012 school year. DOE Ex. 2. The IEP also contained annual transition goals to assist the student in with relevant short term objectives for that goal. DOE Ex. 2 and Tr. 163. Ms. testified that the transition goals in the IEP “basically relate to his ability to participate in his community, and to be able to move forward with job--getting a job and supporting him in a job environment.” Id. The first transition goal addressed the student’s preferences in relationship to work, his ability to realistic career options, to define work

A transition page was also created for the student at the IEP meeting. DOE Ex. 2 and Tr. 164. Ms. explained that the first part of the transition plan provides the longterm adult outcomes expected for the student outside of the school. Id. The second part of the transition plan provides the supports for assisting the student in achieving the long term adult outcomes. DOE Ex. 2 and Tr. 164-5. The information contained in the transition plan originated from the dialogue between the IEP team members at the IEP meeting. Tr. 165.

The transition portion of the IEP contained long-term adult outcomes for the student to “integrate into his community with supports,” “participate in a training program,” “live independently with supports,” and “be employed with supports.” DOE Ex. 2. Transition services recommended in the IEP included that the student will participate in a transition program that , will participate in community internships; will

The IEP team discussed that is the agency that implements the transition plan and that the school determines how the student meets the transition goals within the IEP. Tr. 172. testified that the transition plan for the 2011-2012 school year was discussed with the entire team and that she specifically inquired as to whether any changes or modifications to the plan were needed. Tr. 183-185. The parent did not voice any objection or verbalize the need for any modifications to the transition plan at the IEP meeting. Tr. 188. The record reflects that student’s IEP included his . for future employment. DOE Ex. 2. The transition plan referenced the student’s interests Id Therefore, the evidence demonstrates that the transition goals and plan were appropriate for the student for the 2011-2012 school year. Mr. , teacher, testified that he has been employed at for approximately two years. Tr. 191. Mr. duties as a teacher include working with students on “ Id. Mr. testified that he was student’s teacher during the 2011-2012 school year as part of the student’s Life Skills class taught by . Tr. 192-3. Mr. assisted the student in DOE Ex. 4 and Tr. 194-5, 197-9, 200, 204. Mr. accompanied student in traveling to

On March 6, 2012, led an exit interview for the student with the participation of and the parent. DOE Ex. 3 and Tr. 220. Mr. explained that an exit interview is an official conference conducted by the DOE to establish communication or transition the family from an educational to a focus. Tr. 220-1. An exit summary reviews the postsecondary goals in the IEP with a view toward transitioning the parent by providing a point person from the Office (“”). Tr. 221- is a state agency which works with the parent to guide them through the process of accessing what services are available for their child with needs. Id. Mr. testified that he acted as the facilitator of the transition by providing the mother with the contact information for , a social worker, who works for . Tr. 222. Also present during the March 6th exit interview were Dr. member), social worker), (student’s education teacher), and supervisor). DOE Ex. 3 and Tr. 224. At the meeting the teacher reported that the student was a strong reader functioning at the eleventh grade level, enjoyed class and was completing an internship through the school. DOE Ex. 3 and Tr. 229. In math, the student was functioning on a level in a class that focused on consumer math. DOE Ex. 3 and Tr. 230. Mr. explained that consumer or involves the type of math needed for shopping or living independently. Tr. 230. Overall the information presented at the exit interview meeting established that the student was diligent, worked independently, traveled around the campus independently, volunteered, . DOE Ex. 3 and Tr. 231. The student was working on by using the laptop provided as part of his assistive technology recommendation. DOE Ex. 2, 3 and Tr. 243. The student resided at the school and presented with no needs. Id. The mother participated in the exit summary providing input that the student was interested in attended a college or program. DOE Ex. 3 and Tr. 233. The discussion at the exit summary also provided that the student was participating in an on campus internship opportunity. DOE Ex. 3 and Tr. 233-4. The mother informed Mr. that the student was able to travel to and from his out of state school independently. Tr. 239. Additionally, student independently traveled around his home neighborhood including dining on his own. Id. Mr. testified that he communicated with Ms. and was aware that the parent had been in contact with Ms. Tr.

235. The mother also contacted Mr. for further assistance on a Medicaid issue. Tr. 275.

Mr. explained that the purpose of the exit interview summary was to provide the with the student’s information and interests for his postsecondary needs. DOE Ex. 3 and Tr. 236-7. The exit interview specifically provides the family with the transition from the DOE to the . Tr. 237-8. At the time of the exit interview, the student and he would age out of the umbrella of the DOE within a few months. DOE Ex. 2 and Tr. 238. Once the received the exit interview summary and had contacted the parent, the would conduct an assessment process that includes a home visit and interviewing the family. Tr. 258. In the instant case, Mr. was aware that Ms. and a had conducted a home visit as part of the assessment process. Id.

When the student ages out of eligibility for educational services from the DOE, then it is up to the parents to determine whether they are going to work with state agencies or pursue something privately. Tr. 278. Therefore, it is important for the parents to retain the student’s IEP and exit interview documents for the student. Id. Any assistive technology provided to the student for use in his academic setting during his eligibility is not gifted to the student after he transitions out of the DOE. Id. The DOE held the exit interview meeting, provided the summary to the parent, submitted the contact person to the parent, assisted the parent after the exit interview and the parent participated in the assessment process.

The parents point to the related services required under the 4/15/11 IEP which requires that the Student receive indicated they were having a difficult time hiring as they are in short supply in the area. Ex. A. The parent also testified that there was a progress report or email dated 5/25/12 in which there was still no person who had been hired. Tr. 292-298, IHO Ex. 1-p.1. And that an had not been hired until June 2012. IHO Ex. 1-p.1. The parents assert that the exit summary was insufficient in that Mr. , who conducted the interview, agreed that the assistive technology “should have been on the exit summary.” They have other objections including, among others, that the “ interest schedule was dated August 18, 2012, 6 days before the Student graduated and scored on September 5, 2012 when the student was no longer at school but at home. Parents also deny that the Parents decided that the Student should not participate at the meeting. Tr. p.

270. They also claim they did not receive a copy of the report until May, 2012 and did not find out that the DOE would not fund the Student’s summer program, which during a telephone conversation Mr. assured the parents of.

A FAPE starts with an IEP, which must conform with the requirements set forth in 20 U.S.C. § 1414(d)(1)(A). In order to provide a FAPE, the DOE must comply with the procedural requirements of the IDEA and develop an IEP that is reasonably calculated to enable the child to obtain meaningful educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). See also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). The DOE may be required to reimburse a parent for educational services obtained privately for a student if, as a first and necessary criteria, the services offered by the DOE are inadequate or inappropriate. See Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 (1985) and Florence County School Dist. v. Carter, 510 U.S. 7 (1993).

Furthermore, it is important to note that under the IDEA, a hearing officer’s decision as to whether the student received a FAPE must be based on both procedural and substantive grounds. In whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE 20 U.S.C. § 1415[f][3][E][i].

As indicated earlier a FAPE is comprised of full , an informed review where the parent is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment and a timely and appropriate site offer. 34 C.F.R. §§ 300.111, 300.116, 300.301.

In addition, key questions as to whether there was a FAPE are both procedural and substantive. Was there a procedural violation which either 1) impeded the student’s right to a free and appropriate public education, or 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits? Substantively, is the IEP 'likely to produce progress, not regression'" and does the IEP afford the student with an opportunity greater than mere "trivial advancement" “likely to produce progress, not regression".

As to the substantive side, 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 provide some meaningful educational benefit to the student and to induce progress, not regression. The student is entitled to an appropriate program for their student and not to everything that a loving parent might desire for their child.

In summary, I find based on the record that 1. The DOE provided the student with a FAPE for the 2011-2012 school year insofar as it provided the required transitional plan and services at a non public residential placement. 2. I find there was a gross violation of FAPE in regard to the OT issues for a substantial period of time as, despite being provided with assistive technology the student did not receive the required related services mandated in the student’s 4/15/11 IEP. This IEP and the failure of the Student to receive the services took place prior to the Student’s

ORDER

ORDERED that the Due Process request brought by the Parents for the 20112012 school year as to the issue of transition services is denied, except as to . The request for referral and funding of a program consistent with the results of the is denied. The request for compensatory education for missed services is granted in the amount of the requested 32 hours of . Dated: September 26, 2013

_______________________

STEPHEN HAKEN, ESQ.

Impartial Hearing Officer SH: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 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 Emails dated 11/1/11, 1 pg. C Follow-Up dated 7/22/13, 5 pgs. F Brochure L Emails dated 5/11/12, 1 pg. M Email From dated 5/24/13, 1 pg. O Planning Interview Form dated 5/18/12, 2 pgs. P What is House, undated, 1 pg. Q Fee Schedule, 2012-2013, 1 pg.

DEPARTMENT OF EDUCATION

1 Due Process Complaint dated 5/24/13, 1 pg. 2 Individualized Education Program, IEP, dated 4/15/11, 21 pgs. 3 Exit Interview Forms dated 3/6/12, 7 pgs. 4 Volunteer Application dated 11/3/11, 1 pg. 5 dated 8/18/12, 5 pgs. 6 Diploma dated 8/2012, 1 pg. 7 Attendance Sheet, 7/9/12-8/22/12, 1 pg. 8 Surrogate Court Affirmation dated 7/15/09, 4 pgs. 9 dated 2/21/11, 6 pgs. 10 Social History Update dated 4/15/11, 1 pg. 11 CSE Meeting Minutes dated 4/15/11, 1 pg

IHO

I Parent’s Closing Brief,5pp II DOE Closing Brief, 17pp III Amended Due Process, 3/26/13, 3 pp IV Amended Due Process, 5/24/13, 1pp