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: September 24, 2012

October 11, 2012

October 25, 2012

November 29, 2012

December 5, 2012

December 18, 2012

Actual Record Closed Date: January 22, 2013

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 24, 2012

For the Student:

Parents’ Representative (Via Telephone)

For the Department of Education:

DR., District Representative (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 11, 2012

For the Student:

Advocate

For the Department of Education:

DOE Representative

IEP Witness (Via Telephone)

Principal (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 25, 2012

For the Student:

Advocate, Educational Advocacy Services

For the Department of Education:

DR, District Representative, Committee on Special Education

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 29, 2012

For the Student:

Attorney for the Parent

Parent/Mother

For the Department of Education:

District Rep

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 5, 2012

For the Student:

Advocate

parent

School Employee (Via telephone)

For the Department of Education:

DR., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 18, 2012

For the Student:

Advocate

For the Department of Education:

DR., DOE Representative

The parent’s impartial hearing request pursuant to the Individuals with Disabilities Education Act was received on August 22, 2012. Upon appointment as hearing officer, I immediately scheduled the hearing. This matter was first heard before me on September 24, 2012 and proceeded as expeditiously as possible. Compliance date extensions were granted only for good cause shown. A prehearing conference was held on September 24, 2012. A hearing on the merits was held on September 12, October 1, October 25, November 29, December 5 and December 18, 2012.

SCHOOL DISTRICT

The school district presented testimony and documentary evidence in support of its position that it offered a free appropriate public education (FAPE) to the student for the 2011-12 school year. (Testimony and Exhibits 1-7) A school psychologist and the principal of the recommended school testified on behalf of the school district. The school district also presented the evaluations and reports it relied on in making its recommendations. (Exhs. 2, 3, 4, 7)

A evaluation was conducted on February 7, 2011, as part of a three-year reevaluation. The student’s Full Scale, Nonverbal and Verbal IQ scores were all within the range. His reading and math scores . , he presented as a friendly and cooperative boy, who completed all tasks presented to him but he and about the evaluation and frequently . However, he responded positively to praise and encouragement to remain in the testing situation. The evaluator concluded that the student would benefit from increased modeling, demonstration and guided practice, preferential seating and positive reinforcement. (Exh. 2)

A classroom observation was conducted on March 2, 2011. The student maintained his throughout the observation. He did not appear to be during the lesson. He answered several questions correctly. The teacher reported that the student’s during the lesson was a typical sampling of his in class. (Exh. 3)

The school district obtained a teacher report dated April 6, 2011. The teacher reported that the student had . He also had a and constantly needed encouragement to participate. He also and had . (Exh. 4)

A medical request for transportation accommodations dated April 27, 2011, states that the student does not due to inability . (Exh. 7)

An IEP dated May 2, 2011 was developed for the 2011-12 school year. The disability classification was Impairment. The recommended services were Special Class in a Community School with , Education Transportation. Comprehensive annual goals with methods of measuring progress were developed for academics and related services. (Exh. 1) By Final Notice of Recommendation dated July 13, 2011, the school district offered to place the student . The parent rejected the placement offer. (Exh. 5)

A school psychologist testified on behalf of the school district. She was a member of the Individualized Education Program (IEP) review team. She described the reports and other information that was obtained by the school district and reviewed at the meeting. She described the process by which the IEP was developed and testified that the IEP goals and recommendations were created based on a comprehensive and collaborative review of the reports and other information before the team. She opined that the program recommended by the team was the least restrictive environment for the student. (Tr. At 34-52)

The principal of the recommended school testified on behalf of the school district. She testified that her school was appropriate for the student and would have met his needs. The student would have been provided appropriate instruction, with teachers who are content specialists in their fields. Additionally, he would also have received all of his related services by licensed and certified providers. The principal described in detail specifically how the student’s needs would have been met at her school and opined that it would have been a “perfect fit” for the student. (Tr. At 9-33)

PARENT

The parent presented testimony and documentary evidence to support her position that the school district failed to offer a FAPE to the student, that the unilateral placement was appropriate and that equitable considerations favor the parent. (Testimony and Exhibits A-K)

FINDINGS OF FACT AND LAW

As was recently reiterated in Appeal 12-135, two purposes of the Individuals with Disabilities Education Act (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]).

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 7 (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 decisionmaking 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]).

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). However, the "IDEA does not itself articulate any specific level of educational 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 least restrictive environment (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]).

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 and enable 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 8300.320[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).

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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Having reviewed the entire record I find that the school district offered a FAPE for the 2011-12 school year.

The record establishes that the IEP developed for this student was appropriate. As is required by law, it included a statement of student's present levels of academic achievement and functional performance and considered the most recent evaluations, as well as the academic, developmental, and functional needs of the student. It also established annual goals designed to meet the student's needs resulting from the student's disability, to enable him to make progress and to provide for the use of appropriate special education services.

The school district is also required to provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. The record establishes that the program designed by the IEP review team, and the recommended class, would have met this requirement. The student would have been placed in an appropriate class and would have received the personalized instruction and support he required from appropriately trained and certified teachers and providers. He would have attended classes taught by content specialists in an environment that would have accommodated his academic and behavioral needs. He would have received the related services mandated in his IEP from qualified providers.

For all of the above reasons I find that the school district offered a FAPE for the 2011-12 school year. As such, I did not reach the remaining issues or found them to be without merit.

ORDER

The parent’s request for relief is denied in its entirety.

ESTHER MORA, ESQ.

Impartial Hearing Officer

EM:gc

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, 8/21/12

B Program Description of School

C Board of Ed. IEP, 5/21/12

D Final Notice of Recommendation, 7/13/12

E Ten Day Notice, 8/21/12

F Student Report Card, Nov. 2012

G Class schedule, Nov. 2012

H Tuition Contract, Nov. 2012

I Affidavit of Payments, Nov. 2012

J Parent Proof of Payment, Nov. 2012

K Attendance Record, Nov. 2012

DEPARTMENT OF EDUCATION

1 New York City IEP, 5/2/11

2 Evaluation, 2/7/11

3 Classroom Observation, 3 to 11

4 Teacher Report, 4/6/11

5 Final Notice of Recommendation, 7/13/11

6 Impartial Hearing Request, 7/21/11

7 Medical Requests for Transport, 8/9/11