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: May 24, 2013

July 10, 2013

Actual Record Closed Date: August 2, 2013

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2013

Advocate, Educational Advocacy Services — Student

Parent/Mother — Student

ESQ., Attorney, — DOE

Bilingual School — DOE

Committee on Special Education (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013

Advocate — Student

Mother — Student

Educational Director at (Via Telephone) — Student

School Administrator at (Via Telephone) — Student

Attorney — DOE

INTRODUCTTION

On May 24, 2013, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged the failure of the Department of Education (“DOE)” to provide a free appropriate public education (“FAPE”) to Rema A. (“the student“) for the 2012-2013 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:30 a.m. and was continued and concluded on July 10, 2013.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On October 19. 2012 the parent filed a request for an impartial hearing alleging that the student was denied a FAPE because of procedural flaws in the development of the Individualized Education Program (IEP) and that the program which was recommended was not appropriate for the student.

THE PARENT’S POSITION

The parent contends that the DOE failed to provide a FAPE to the child for the 20122013 school year because, among other things, the IEP team was not properly constituted; the goals on the IEP are vague, not specific to the child’s needs and inconsistent with her reading and math grade levels, and the other students in the recommended class were not similar in their functioning to this student. (Ex. A.2) She further contends that the DOE should reimburse her for the tuition she paid and pay the remainder of the tuition she owes , the costs for related services as well as school bus transportation services..

THE DOE’S POSITION

The DOE contends that provided the student with a FAPE and that in any event, is not an appropriate placement for the student and that the equities favor the DOE. .

FINDINGS OF FACT

The student is twelve years and three months old and attended for the 2012- 2013 school year is a ten month special education elementary grade school. ( T. 88).

The student is classified as having . (Ex. 2). The student has also been diagnosed with and during the school day every one to two weeks. (Ex. 2.2).

A Committee on Special Education (“CSE”) meeting was held on April 16, 2012 to develop an IEP for the 2012-2013 academic year. The CSE meeting took place without a parent member present. The CSE team included a teacher with certifications in Special and General Education , a New York State certified , the student’s mother, , the parent’s advocate, and Robin Wahrsager, the director of the student’s then current school. ( Ex. 2; T.23-25; 54). The parent’s advocate objected to the absence of the parent member (Ex. 3) but when asked if she wanted to reschedule the meeting to another date, she declined and the meeting went forward. (T, 25) The parent was experienced in the CSE process, because she has been present at multiple CSE meetings throughout the student’s educational career and she was accompanied an advocate she invited for the purpose of providing additional support and assistance during the meeting. (T.169-171).

The CSE recommended that the student attend a 12-month program in a special classroom in a specialized school in a class with twelve students, one teacher, and four paraprofessionals (“12:1:4” or “12:1:(3:1)”) with . (Ex. 2.8) When that recommendation was made, the CSE was aware of the profile of the students who attend a class in terms of cognitive functioning levels. (T.53) There would be students with and those disabilities. Id. The CSE also included mandated services in the IEP as follows: three 30 minute sessions of therapy ”) per week, two 30 minute sessions of per week, two 30 minute sessions of 1:1 per week, and one 30 minute counseling session per week. ( Ex. 2.8)

At the time of the meeting, the student was a class with six students, one teacher, and two paraprofessionals. A psycho-educational evaluation found that the student’s full scale IQ was in the borderline range. At the time of the meeting, the student at in decoding, reading comprehension, and mathematics. (Ex. 2.1). The student was able to do simple addition and subtraction problems, but required visual aids to assist her in retaining information and solving the problems. The student’s written expression including the

The student was described as a social child; however, she presented with pragmatic speech deficits and therefore had difficulty initiating interactions with peers. Id. With prompting, the student the student was able to communicate effectively with peers and adults, but sometimes did not maintain focus or on topic conversation. At those times, the student . Id. The student was able to follow three step oral directions, but required

The student as well as the support of a paraprofessional to ensure that she can safely navigate the academic environment. (Ex. 2.2) At the time of the meeting, the student’s class participation was negatively impacted which impacted her alertness in class. She was often found staring into space. (Ex,2.2) The student had difficulty returning to routines and requires significant amounts of . (T. 94). The student’s progress is closely tied to the number of seizures that she experiences during the school year, because , the student and may be absent from school for one or two days. ( T. 96). The student ability as well as delays in her . (Ex.2.2) Given the student’s health needs and as well as her low academic functioning, the CSE believed that the student required significant support provided in a classroom. ( T. 30-31).

The IEP was drafted after the CSE meeting based on the information that was gathered at the meeting. (T. 65; 67). Ms. described the student’s functioning and necessary academic management needs, stating that the student responded , is responsive to redirection from an adult when distracted. (T. 115). The suggested supports were included in the student’s April 16, 2012 IEP.

The team addressed the student’s deficits in ELA. It included a goal to improve the student’s reading comprehension skills, by drawing conclusions and predicting outcomes about a story read aloud and write a sentence for the main idea and three sentences about the details of the story read aloud. Decoding and vocabulary skills were addressed with short term objectives including using context clues in the reading of ten sight words and using picture clues in the reading of grade level vocabulary. The team addressed the student’s writing skills. It included a goal and short term objective to work on the student’s ability to write two sentences for the beginning, middle, and end of three stories and writing five sentences using the five w’s describing current events read to her in class. The student was described as being able to produce three written sentences with support. (T. 105). The team addressed the student’s . It included a goal with short term objectives to address the student’s computational skills in subtracting two digit numbers from two digit numbers, recognizing and drawing fractional parts of one half, one third, and one fourth, and adding a two digit number to a two digit number with and without regrouping. The student was described as being able to perform addition and to be working on subtraction during the 2012-2013 academic year. ( T. 96).

The team addressed the skills. It included a goal and short term objectives related to the student following a set of directions of increasing complexity, repeating twelve complex sentences one at a time after a short pause, and appropriately interpreting and responding to social cues and social situations. The team addressed the . It included goals and short term objectives related to the student The student’s were addressed in goals and short term objectives that specified that the student with letters and words correctly spaced and by working on transferring

The team addressed the student’s with a goal related to and short term objectives to improve the student’s of eye contact and conversation initiation and demonstrating the ability to cope with a frustrating situation. Adaptive physical education activities were addressed in a goal with short term objectives and there was a goal related to the assistance provided by the student’s one to one paraprofessional to assist the student with her medical alerts and needs including navigating the school building and activities and assisting and addressing any potential emergency medical situation.

Each goal and the majority of the short term objectives included criteria by which the student’s progress with the goals would be measured (i.e. eighty percent accuracy, four out of five trials), how they would be measured (i.e. teacher/provider observation and class activities), and how often progress would be measured (i.e. one time per quarter).(Ex. 2.3-2.7)

In addition, the CSE recommended a twelve-month academic school year. (Ex. 2.8) The recommended academic management needs included repetition and rephrasing, refocusing, instruction broken down, use of multi-sensory materials, graphic organizers, small group instruction, frequent feedback, praise, and encouragement. (Ex.2,2) Alternate assessment was recommended for the student due to and developmental deficits.

By letter dated June 8, 2012, the district recommended placement for the 2012-2013 academic year at K396. (Ex. 6). On August 26, 2012, the parent sent a copy of the final notice of recommendation with handwritten notes to the district rejecting that placement. (Ex. D; T. 154; 163). The student did not accompany the parent during the school visit which the mother made in August. (T. 165).

On her visit thirty minute visit to the school, the parent did not observe the entire class. There were only five students present because some of them had been pulled out for their therapy sessions. (T. 155). She observed the children watching a video. (T. 156) She said that she observed a child in a wheelchair whom she concluded was very low functioning. (T.156) Some children needed help with their handwriting , I d , The mother stated that the child, ., (T. 157) She . Id. She had a and math. Id, She did not observe the children talking. Id.

The parents signed a tuition contract at the end of August or the beginning of September for the 2012-2013 academic year. (T. 158-159). The full tuition is $45,500 which the parent is obligated to pay in full. .

Conclusions of Law

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). FAPE consists of a program that enables a child “to receive ‘meaningful educational benefits’.” R.E. v. N.Y. City Dep’t of Educ., 2011 WL 924895, No. 10 Civ. 3176, at *9 (S.D.N.Y. Mar. 15, 2011) (emphasis added)

In a case for tuition reimbursement, the DOE has the burden of proof to show that it has provided the child with a FAPE in the first instance. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993); Burlington Sch. Comm. V. Dep’t of Educ., 471 U.S. 359 (1985).

If the DOE fails to meet its burden, the parent bears the burden of proof to show that her unilateral placement was reasonably calculated to confer educational benefit upon the student and that the equities tip in her favor. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-

13 (1993); Burlington Sch. Comm. V. Dep’t of Educ., 471 U.S. 359 (1985).

It is also well established that the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-

056. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing. B.P. v. New York City Dep't of Educ., 2012 WL33984, at *4-*5 (E.D.N.Y. Jan. 6, 2012); M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL6307563, at *12-*13 (S.D.N.Y. Dec. 16, 2011). In the instant matter, the parent did not seek to amend the October 19, 2012 due process request and the district did not agree to the inclusion of any additional issues not raised in the original due process complaint.

In determining whether an IEP complies with the IDEA, there is a two-part inquiry, first, whether the IEP is procedurally valid and second, whether it is substantively valid. R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 189-90 (2d. Cir. 2012). The procedural prong considers whether “the state has complied with the procedures set forth in the IDEA," Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005), and the substantive prong considers whether the IEP was "reasonably calculated to enable the child to receive educational benefits." Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A procedural violation does not necessarily render an IEP inadequate under the IDEA. In evaluating whether the district has complied with the procedural requirements of the IDEA, the alleged procedural violation must have either (1) impeded the student’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE, 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. 2007).

The parent alleged that the IEP was procedurally invalid because there was no parent member at the IEP meeting and the parent did not sign a written waiver declining the attendance of an additional parent member, the IEP team was improperly constituted. The parent and her advocate initially objected to the absence of the parent member but did not wish to reschedule the meeting and continued to participate in the meeting. Thus, the failure to include a parent member in the April 16, 2012 CSE did not result in a deprivation of FAPE. Where, as here, the parent was familiar with the CSE process, was accompanied by an advocate at the meeting and did not wish to reschedule the meeting, the absence of a parent member cannot be said to have deprived the student of a FAPE. T h e absence of the parent member did not significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits. Bd. of Educ. v. Mills, 2005 WL 618765, at *5 (S.D.N.Y. July 11, 2005); see also E.H. v. NYC Dept. of Educ., 2008 WL 3930028, at *7; Matrejek, 471 F. Supp. 2d at 419.

The parent alleged that the goals on the IEP did not reflect the student’s needs and that the recommendations for a class placement of less than twelve students were not considered thus, the student was denied a FAPE. With regard to the adequacy of the goals, there was credible testimony that the team creates goals based on the information about a student’s deficit areas provided at the meeting. The student’s progress over the most recent academic year, any current issues, and potential modifications were discussed at the meeting. T he team also relied upon reports from the student’s then current service providers to determine the student’s current functioning. Ms. also provided a verbal report of the student’s functioning in different areas which was used to draft the student’s 2012-2013 IEP. ( T 27-28). The information provided by the student’s then current school was used to draft goals and short term objectives for the student by focusing on discrete units of learning that the student had not yet mastered. ( T. 38-40). There is no evidence that the parent objected to the information that was presented about the student at the meeting or that she has any objection to the information contained in the IEP. There is no evidence to support that contention that the IEP does not accurately reflect the student’s functioning as it was at the time of the meeting.

With regard to the parent’s allegation that FAPE was denied because her recommendations were not adopted, here, the parent provided no evidence that she actually disagreed with the recommended program at the CSE meeting, even after the team explained that there would be twelve students in the recommended program. ( T. 167). However , even if she had provided such evidence , Federal and State regulations only require districts to take steps to ensure that parents are present at their child's IEP meetings and are afforded the opportunity to participate. 34 C.F.R. § 300.322; 8 NYCRR 200.5[d]. Parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See P.K. v. Bedford, 569 F. Supp. 2d at 383 , Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006).

The IDEA requires that the parents be part of the team that creates the IEP and determines the educational placement of the child which the parent was here. However, the right to provide meaningful input is not the right to dictate an outcome and courts have held that it cannot be measured by such. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379-380 (5th Cir. 2003). IDEA is not violated merely because the school district does not adopt a parent’s recommendation and/or suggestions. Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 550-552 (E.D. Va. 2008). K.S. v. Fremont Unified Sch. Dist., 545 F. Supp. 2d 995, 1006-1008 (N.D. Cal. 2008).

Further, the parent and the student’s then current school director were permitted to speak at the meeting and to fully describe the student’s needs as they identified them and to have input into the development of the IEP. The parent spoke about the student’s health needs and how her epilepsy affected her academic performance at the April 16, 2012 meeting. (T. 167-168). Thus, the parent was afforded the opportunity to and did meaningfully participate in the April 16, 2012 meeting.

The parent’s also alleged that they were not provided minutes of the CSE meeting and thus, FAPE was denied. The district’s alleged delay and/or failure to provide minutes from the CSE meetings or copies of the IEP did not cause a deprivation of FAPE. Moreover, the parent has provided no evidence or authority that such alleged failure denied a student a FAPE.

The parent alleged that the goals on the IEP were not consistent with the student’s levels of functioning, were vague and did not include various modes of assessments. The regulations require that each annual goal shall include the evaluative criteria, evaluation procedures, and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. 8 NYCRR 200.4(d)(2)(iii)(b); see 20 U.S.C. § 1414(d)(1)(A)(i)(III);34 C.F.R. § 300.320(a)(3).

Here, the IEP contains a statement of the present levels of educational performance of the student and a statement of annual goals, including short-term instructional objectives which are clear, unambiguous, appropriate, and measurable and designed to address the student’s unique .

The goals including the short term objectives contain sufficiently detailed information regarding the conditions under which each objective was to be performed and the frequency, duration, and percentage of accuracy required for measurement of progress. In addition, for students who participate in State alternate assessments such as the student here, the IEP "shall include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student's present level of performance and the measurable annual goal." 8 NYCRR 200.4(d)(2)(iv).

As described above, the goals included in the student’s April 16, 2012 IEP contained sufficient specificity by which to guide instruction and intervention, evaluate the student’s progress, gauge the need for continuation or revision, and contained adequate evaluative criteria. The student’s goals were derived directly from the information provided by the student’s then current school staff based on , or insufficient in any way.

The parent alleged the recommended placement was not appropriate for the student. A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression and if the IEP affords the student with an opportunity Greater Than Mere “Trivial Advancement” In That It Is Likely To Provide Some “Meaningful” nd Benefit. Cerra V. Pawling Cent. Sch. Dist., 427 F.3d At 195, (2 Cir. 2005) Quoting Walczak

V. Florida Union Free Sch. Dist., 142 F.3d 119,130 (2nd Cir. 1998); Mrs. B. V. Milford Bd. Of

Educ., 103 F.3d 1114, 1120 (2nd Cir. 1997). A school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability. Bd. of Educ. v. Rowley, 458 U.S. at 197 n.21, 199 (1982); See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 379 (2nd Cir. 2003); Walczak, 142 F. 3d at 132. The educational program recommended by the DOE must also place the student in the least restrictive environment. Carlisle Area School v.

Scott P., 62 F.3d 520, 535 (3rd Cir. 1995).

The district’s proposed placement would have placed the student in a class with twelve students and at least five adults. ( Ex. 2.8) The students in class are similar to the student and did. The student was described as having , deficits. The student . (T. 94). She also hand tremors and need help with writing as the parent noted she had observed with other children in the proposed class. The student would also have had additional related services, including times a week, OT and weekly, and once weekly. I d . T he CSE believed that the student required significant support which could be provided in a classroom. ( T. 30-31).

The parent provided no objective evidence or evaluative information to establish that the student would be unable to learn in the recommended program There was only speculative testimony about whether the student would be able to make progress in , which was not even the district’s proposed program. Moreover, as noted, the laws require the CSE to recommend the LRE in which the student could receive meaningful benefit for the student’s 2012-2013 academic year.

The parent also alleged that the students in the recommended class were not functioning similarly to the student. While parents are not required to try out the school district's proposed program, neither the IDEA nor State regulations require a district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate. App. of the N.Y.C. Dept. of Educ., SRO Appeal No. 11-112; See also Forest Grove, 129 S.Ct. at 2496. However, the evidence presented was that the students in 12:1:4 class would be similar in functioning to the student.

The preponderance of the evidence in the record shows that the DOE’s recommended program was reasonably calculated to confer educational benefits to the student in the LRE. There is no objective evidentiary support to find that the student would be unable to make progress in the program and placement recommended by the district. The staff never observed her in a classroom and could only speculate that she would not do well there. That is insufficient to establish that the recommended program was not reasonably calculated to provide the student with educational benefit.

Since it is concluded that the DOE did not deny the student a FAPE, it is hot necessary to address the question of was an appropriate placement or whether the equities favor the parent.

Accordingly, the parent’s request for tuition is denied and the request is dismissed.

ORDERED that the parent’s request for tuition is denied in all respects and the request is dismissed. Dated: August 13, 2013

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer JTK: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 dated 10/19/12, 5pp. B IEP, dated 4/12/11, 18pp. C withdrawn D FNR, dated 6/8/12, 2pp. E Ten day Notice, dated 8/18/12, 2pp. F Academic Progress Report, dated 1/13, 4pp. G Class Schedule, dated 12/13, 1p. H Attendance Record, dated 1/13, 1p. I Tuition Contract, dated 12/13, 1 p. J Affidavit of Payment, dated 1/31/13, 1p. K Program Description, undated, 1p. L Parent’s Tax Return, dated 20111, 2pp. M New Affidavit of Payments, dated 7/9/13, 2pp. N Parent’s Proof of Payment, dates 2012-2013, 5pp.

DEPARTMENT OF EDUCATION

1 Due Process Response, 11/2/12, 3 pages 2 Individualized Education Program (IEP), 9/6/16, 15 pages 3 Minutes of CSE Meeting, April 16, 2012, 1 page 4 IEP- Revised, 9/16/12, 15 pages 5 Final Notice of Deferred Placement, 8/20/2012, 1 page 6 Final Notice of Recommendation, 6/8/12, 1 page