Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 7, 2013

February 26, 2013

Actual Record Closed Date: May 10, 2013

Hearing Officer: William J. Wall, Esq.

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

Parents

District Representative Dept. of Ed. Assistant Principal Dept. of Ed. School Psychologist Dept. of Ed. Paraprofessional Dept. of Ed. — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2013

District Representative Dept. of Ed. Paraprofessional Dept. of Ed. Speech Therapist Dept. of Ed. Special Ed. Compliance Officer Dept. of Ed — Parents

(via telephone)

Teacher Dept. of Ed.

Teacher Dept. of Ed. Paraprofessional Dept. of Ed

PRELIMINARY MATTERS

The hearing request in this matter was filed on October 22, 2012. I was appointed as the Hearing Officer on October 24, 2012.

This matter took two days to hear during February, 2013. There were delays in the hearing that were unavoidable. An amended complaint was issued and accepted. The District filed a response. All hearing dates were mutually agreed upon by the parties and the Hearing Officer. References to testimony will be made by transcript page number. During the course of the hearing certain witnesses were taken out of order to accommodate their schedules or the presence of one or the other party, if necessary. In the interest of structuring this decision in a manner that is straight forward and provides clarity to the parties, the testimony, if used, will be used in connection with the subject matter of the decision and not necessarily in the chronological order in which it was heard.

The dates of the hearing are all listed in the title page of this decision. All Exhibits accepted into evidence are listed at the end of this decision.

THE DISTRICT’S POSITION

This case involves a request by the parent for a non-public school placement of the student and the appropriate tuition payments to the school for unilaterally placing the student in a non-approved, non-public school for the academic year 2012/2013. The District contends that the placement was not warranted as it had provided a Free Appropriate Public Education (FAPE) for the student. The district seeks to establish that it offered FAPE by demonstrating that it developed an appropriate Individualized Educational Plan (IEP) for the student at a properly convened and staffed Committee on Special Education (CSE) review and offered him an appropriate placement where he would be able to make meaningful educational progress. Therefore the parents are not entitled to reimbursement of tuition and fees for the student’s placement at the nonapproved non-public educational facility.

THE PARENT’S POSITION

The parent agrees that the student has been diagnosed and has a number of .

It became clear to the parent that the school district was not responding in what she believed to be an appropriate fashion to her son’s educational needs and therefore, with proper notice, made application to unilaterally place him in ” where she believes he will be able to make meaningful educational progress.

Therefore she seeks tuition and fees paid to the school for the tuition for the coming school year, The main issues presented by the Request for the Impartial Hearing are as follows. The CSE has failed to provide a Free Appropriate Public Education (“FAPE”} to the student in that it has not provided appropriate assistive technology and appropriate training in it for several years. The parent is seeking compensatory education for that failure. In addition, the Department has failed to adhere to the student’s IEP for . He is sometimes on a over 90 minutes for a one way trip to his school. Despite the parent’s best efforts, that matter has never been resolved within the parameters of the travel alert on the IEP. While are on his IEP he had not received any since the beginning of September. The goals and Objectives contained in the IEP were unattainable for the student either because they were not appropriate or he was not given the necessary educational support to make significant progress in these goal and objectives.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case has become a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R.§300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R.

§300.320[a][2];^[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067).

In this case the CSE developed an IEP 3/14/12. (Ex. 2). The CSE review team was comprised of the necessary personnel. However, it was developed before the student moved on to High School and therefore some of the actions taken by the Department of Education while he was in a lower school may have a direct impact on the findings in this case. They will be clearly identified in this decision.

every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

The District began with the testimony of , an Assistant Principal at . It is the school where the student is registered and has been attending from September until midOctober, 2012. The witness confirmed that she was the AP in charge of special education in the school and as the person ultimately responsible for the student’s education commencing in September 2012. She noted that the student had only attended 11 days of class from September through January. She did state that some the absences were due to hospitalizations and that there were doctor notes in the file. (TR. p 14)

Ms. stated that a schedule had been established for the student including academics and related services. She made it clear that the school did not have an but provided s for the receipt of these services outside of school. He was assigned a teacher and a paraprofessional.

Ms. testified that because the student had not attended class for one marking period he did not receive a grade. She also testified that there was a notice of restricted travel time on his IEP. She states, however, that a form that should have been completed in the junior high school was not completed and that was at least one reason his travel restriction was not implemented. Because there were communication problems with the school there was a breakdown of communication about the completion of that form. Ms. says sent the form to the parent asking her to get it completed but she did not get it back. Ms. also testified that there were no working phones in the school after Hurricane Sandy and that as of the date of the first hearing February 6, 2013 there were still no working phones. Ms. did testify that the parent was very cooperative with the school prior to the storm (TR. p, 21) Nevertheless, there was some movement in the issue as the Department of pupil asked that the case be reopened.

On February 26, 2013, the hearing was continued. A key witness with respect to the issue was Ms. , a special education compliance officer at the office of pupil . She carefully explained the Department procedures to implement medical restrictions for students with disabilities who need limited time on buses. After the explanation, it is clear that the parent did not deliberately flaunt the Department of Education but simply did not receive clear instructions from the school as to how the form was to be completed and processed. It is also clear that it was an impossible for the department to provide a 30 minute trip from the student’s home to his high school. There is also no doubt that the 30 minute restriction imposed by the middle school CSE and placed on the IEP was carefully chosen because of the . Ms. also indicated that she did not have specific information about the student’s placement in his current educational placement, , or the arrangements that were made for the student prior to his transfer to high school. As a result, it is impossible to reconcile the limitations and his attendance at this current placement. This is a clear violation of FAPE because the issues make it impossible for the student to benefit from any material presented in the first class and also would cause a for the student on a daily basis.

There is no doubt that the faculty and staff tried to resolve the issues confronting the student and his parent. Nevertheless, their efforts did not succeed. Those efforts were seriously compromised by the issue which was incapable of resolution. In addition, there was a serious failure on the part of Department of Education with respect to the use of the . The failure of the intermediate school to get the student the and allow the student’s to remain in a for at least two years, and the failure to provide the technology in the beginning of his freshman year in high school resulted in an additional denial of FAPE. Because he did not have his equipment at the beginning of the fall semester the student was deprived of any opportunity to make serious progress in the use of the technology for educational progress.

Upon cross examination, Ms. confirmed that she met with the parent on the first day of school at her request because the student’s records had not arrived from the middle school and all Ms. had was the IEP downloaded from the computer. She did not have any other information about the student but realized he was fragile and immediately reached out to the parent who responded within two hours in person. There was extensive discussion of the . Both parties continued to meet during September. There was exchange of correspondence on homework and continued solved them between themselves discussion on the issue as it was becoming critical. The student was being picked up at and not arriving at school until which made him late or at a minimum did not give him a chance to recover from the trip and get prepared for the school day. There were some miscommunications between Ms. and the parent but both acknowledged those problems and resolved them as they continued their dialog in September. The conversations became more difficult when there was no provided that complied with his IEP. There was a reference to a form that apparently was to be filled out by a doctor but was not done. The testimony is not clear but it would appear that the responsibility for that form rested with the middle school and while copies were ultimately sent to the parent relations are so strained by then nothing was done.

The record confirms that the school as required by law reported the parent to the alleging . After investigation, the matter was resolved with and no action was taken against the parent.

The next witness testified that the evaluation indicated not only should the The school testified that she undertook and extensive search for the machine throughout the district and it was finally located. Thereafter certain school personnel were trained on the technology. Unfortunately, the student was no longer in school by this time so he received no training on the machine or its use. (TR p.36.)

The District did not rest its case but had other witnesses to call. They did so on the second day of the hearing. Before adjourning for the first day, both parties agreed that the parent could call a witness for its case prior to the District’s resting of its case. Therefore the parent the student . He testified about the use of throughout his educational career. He was started off using a computer three or four times a week at . At his next school, he only used the computer three or four times during his entire placement at that school. It seems to me that failure by the district is a denial of FAPE. It did not happen in the year that is before me so I do not make it a formal ruling but it is a significant failure on the part of that school to fail to utilize expensive equipment that fits the needs of the student and its own experts provide to the student to assist in his educational development

One more reflection on the difficulties with the technology. From the record, it is clear that no one from the school advised the parent that the was located and there was to be training for the staff and the student. Thus the student did not get any training. I do not know if arrangements could have been made to allow the student to at least receive some additional training with a machine that he already was familiar with and benefited from. While this failure by itself may not rise to a denial of FAPE, it is certainly a very which error on the part of the school.

The remainder of the testimony on the second day of the hearing simply confirmed the difficulties that both the staff and student had because of the school was unprepared to deal with the student from the first school day. There was also testimony about the student’s education in his earlier years. It really was not relevant to the year 2012/2013, the year in question at this hearing.

I conclude the Department of Education did not provide FAPE to the student for the 2012/2013 school year.

Turning to prong 2 of the Burlington/Carter test, I find that the record establishing the appropriateness of the for dealing with the student’s disabilities is not well established. That is because at the date of the last day of this hearing (February 26, 2013) There was no letter of acceptance from the for the student. In fact as of the date of this decision there has still not been a final determination in this case by the about acceptance.I can only assume that my delay in issuing this decision has delayed The final determination.

It is the parent’s burden to establish is a suitable placement for the student. However, even though the record is not developed in this case, in an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C. §1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.

1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Page 365 ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006).

As I have been an impartial hearing officer in New York City for over ten years, I am familiar with and know its reputation for providing beneficial meaningful education to severely disabled students with programs that are specifically designed for the individual student. Their website states in pertinent part.

OUR MISSION

envisions a world in which all people with special needs are included as valued members of their communities, leading independent and purposeful lives.

To realize this vision, our core mission is to educate students from early childhood through young adulthood, guided by these principles:

A curriculum that integrates academic, social and life skills with opportunities for learning that promote inclusion

Instruction that focuses on each student’s strengths, interests and individual needs

The incorporation of inclusive activities as a key instructional strategy to foster positive attitudes in the broader community towards students and others with special needs

Families as partners in their children’s education and growth towards independence

Access to quality special education for all children who need it, regardless of their financial circumstances

Sharing our knowledge with other professionals and schools to improve the educational experience for all children

I find that the is an appropriate placement for the student, Prong 3

Prong 3 requires that the parent participate in IEP meetings and make the student available for evaluations during the course of his instruction. The parent attended every IEP meeting in evidence. It would appear she cooperated fully with the CSE and placement process. The Parent has met the requirements of prong 3 with respect to the need to cooperate with the District. The failure to return the form was explained in the transcript. It was clear that the District failed to communicate specific instructions to the parent for the necessity of returning the form. It would also appear that the entire issue was mishandled during the Spring of 2013 before the student began high school.

ORDER

I find that the District failed to provide FAPE to the student for the school year 2012/2013, is an appropriate placement and the equities favor the parent as she cooperated with the district in the evaluations and placement,

Therefore, the parent is to have the tuition and costs associated with attendance at should that institution accept him for the 2013/2014 as compensatory education. In the event he is not accepted, the CSE is ordered to convene and develop an IEP for the student containing a recommendation for placement to the CBST for non-public school close to his home that will meet his special needs. The Department of Education is instructed to pay the tuition and fees associated with such a placement for the 2013/2014 school year as compensatory education. The payment is to be made upon presentation of appropriate documentation to the Department of Education by the school and the parent.

Reasonable costs for the student’s participation at the school are to be reimbursed. Dated: June 20, 2013

____________________________

WILLIAM J. WALL, ESQ.

Impartial Hearing Officer

WJW: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

Exhibit Date Description Pages

1 11/30/12 Due Process Letter 3

2 various Student Data 19

3 3/14/12 IEP 17

4 11/29/12 Assistive Technology Evaluation 9

5 3/5/12 Assistive Technology Evaluation 16

6. 1/9/2012 Assistive Technology Referral 1

7. various Violations and 20

Attendance

---

Footnotes

[8] NYCRR 200.4. Procedures for referral, evaluation, individualized education program (IEP) development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states (4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once