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: November 26, 2012

January 28, 2013

March 19, 2013

May 23, 2013

July 17, 2013

Actual Rec Closed Date: August 30, 2013

Hearing Officer: Lynn Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26,

2012

SUSAN HOROWITZ, ESQ., Attorney, Legal Aid Society (Via Telephone) — Student

MIA GURLEY, ESQ., Attorney, Department of Education (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2013

SUSAN HOROWITZ, Attorney (Via Telephone) — Student

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2013

SUSAN HOROWITZ, Attorney — Student

Parents

SYED QAMER, Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2013

SUSAN HOROWITZ, Attorney — Student

Parents

SYED QAMER, Attorney — DOE

(Via Telephone) — DOE

Coinator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 17, 2013

SUSAN HORWITZ, Attorney — Student

Mother — Student

Head of School — Student

SYED QAMER, DOE Attorney — DOE

PROCEDURAL CONTEXT

On October 24, 2012 I was appointed to hear the matter of versus the New York City Department of Education pursuant to the Individuals with Improvement Act, 20 U.S.C. Section 1415 (f)(1). In furtherance thereof, a pre-hearing conference was held on November 26, 2012 and hearing on the matter was scheduled for January 7, 2013. Thereafter, the Parent submitted an amended due process request and the resolution period automatically recommenced. A second pre-hearing conference was held on January 28, 2013 and hearing on the merits was initiated on March 19, 2013. The proceedings were continued to June 19, 2013 at which time the matter was adjourned due to a personal medical emergency on behalf of the Department’s counsel. On July 17, 2013 testimony was concluded. On this final day of hearing, the parties were offered an opportunity to submit Memoranda of Law and the timeline was duly extended.

Specifically, the Parent asserts that the Department of Education’s (alternatively the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) of January 5, 2012, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Exhs. 1. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], the Parent is seeking tuition reimbursement for the 2012-2013 school year in furtherance of a unilateral transfer to the (hereinafter “”), a non-public school setting. is “a child with a as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified with a “ ” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

testified as lead witness for the Department of Education. She is licensed as a school by New York State. She has been employed by the Department as a classroom teacher, school and administrator and 15 years. Tr. at 80. At present, she serves as a school in Committee on 9. As such, she is responsible for conducting , participating in CSE meetings and making educational recommendations for placement. On January 5, 2012 Ms. participated in a CSE convene on behalf of ’s evolves from more than one occurrence of The witness generally described the CSE proceedings and the manner in which they were conducted. At the outset, three individuals from participated in the proceedings, including the child’s ELA and , a administrator. She noted that the Ms. noted that the child’s academic goals were developed in collaboration with personnel and were formulated in an effort to address ’s In furtherance thereof, the Committee recommended an extended school year along with the use of and the support of a hearing education teacher. The student’s goals were largely generated by personnel as were the details of ’s need for related services. Tr. at 91. In was continuing to develop . Exh. 1 at 10. In continued to in for which specific goals and strategies were articulated. Similarly, a report from the child’s hearing education teacher was utilized to facilitate goals. Based upon the written reports of ’s related service providers in , a number of were developed. Tr. at 95-100. Finally, the witness noted that a coinated set of transition activities were incorporated into the child’s IEP as the child was now years old. In furtherance thereof, Ms. observed that was currently participating in an internship program through along with an program which addressed , and opportunities for community inclusion. Tr. at 108.

Based upon the materials submitted and the participation of personnel, Ms. testified that a 12:1:1 paradigm was recommended for along with a full-time health paraprofessional. She opined that, based upon the child’s cognitive deficits and his need to develop functional skills, the applied literacy and numeracy programs of a program would be appropriate for the child. The witness indicated that the Parent was in agreement with this program as it was essentially identical to that offered by . Both she and personnel, nevertheless, expressed concern about the site which would be recommended by the Department. Tr. at 102-103; Exh. 2. Nevertheless, Ms. opined that the program itself was appropriate and had been developed with the specific knowledge of ’s personnel.

additionally testified on behalf of the Department. She has never met the child and had not reviewed his IEP until litigation had commenced. Tr. at 1. As such, she testified that she had not been responsible for determining whether PS was appropriate for and noted that this decision would be made by the CSE. Tr. at 180-183. Ms. is the program coinator at PS , a District school. In this capacity, the witness is responsible for “stock[ing] the classrooms, organiz[ing] every meeting that’s taking place inside and outside of the building and placing students in classes if their class is not here.” Ms. testified at length about the programs offered at PS . In furtherance thereof, she noted that there are three full-time , four full-time o on site. Both push-in and pull-out services are offered. A full-time hearing education teacher is also available as are Tr. at 158-159. She noted that the school has several classrooms and that would most likely have been placed in one of two tenth grade classes. In addition to the classes, her school offers classroom paradigms. Tr. at 175. Having said this, she observed that a student is not assigned to a class until he/she is and, as a result, she could not identify any particular class to which would be assigned. Tr. at 160. Until assessments are completed, students are grouped within a range and accing to seat availability. Tr. at 161. Both s, and frequent teacher assessments are utilized as means of determining academic progress. The witness described the vocational opportunities classrooms, noting that actual worksite experience may vary depending upon the interests of the student and his/her parent. Although travel training is offered, there is a waiting list with priority given to graduating students. Tr. at 166.

Ms. noted that her school offers a “long list of work-sites,” which is developed through the school’s job developer. While she testified that an individual student’s preference would be taken into account, she noted that all class would attend the same work-site although some would have different assignments. Tr. at 169. Ms. testified that the student’s IEP goals are addressed on site during their work-site experiences in addition to instruction provided at PS when they are not involved with vocational training. As the student had not been evaluated by her school and there had been no discussions with the Parent, Ms. could not specify the program to which would have been assigned. Finally, the witness indicated that she was unfamiliar with PS ’s safety rec in terms of discipline. She did observe, however, that “as don’t have that. Tr. at 189-190. Rather, the Deans are responsible for handing disciplinary matters and the police are not summoned unless there is a medical emergency.

THE PARENT’S CASE

testified on behalf of the Parent. Ms. holds a Master’s degree in t and is presently employed as the (hereinafter “”). As such, Ms. is responsible for supervising both students and personnel, coinating schedules, developing programs, organizing assessments and supporting the curriculum. Tr. at 199. is a self-contained program serving grades 9 through 12, offering a modified academic program along with related services, social , . Travel training and work internships are an integral component of their program.^[1] An off-site coinator is additionally responsible for developing inclusion opportunities within the context of core classes. reports are issued three times per year in addition to twice yearly . Tr. at 203-211. During the 2012-2013 school year, . Finally, the witness indicated that parent training is available on a monthly basis.

Ms. has known since September 2011 when he was a student in her ELA class, a peer appropriate class in which the child was additionally supported by a full-time

She described the . Nevertheless, relied upon his paraprofessional to negotiate about the School and required additional

The Parent testified that, although her CSE meeting was scheduled for 9:00 am on January 5, 2012, the meeting did not proceed until 1:00 pm. As a result, the hearing teacher who had appeared on behalf of the Parent, was unable to remain for the meeting.

Tr. at 278-2. By the time the meeting began, the witness testified that she was exhausted.

Nevertheless, she briefly described the meeting, noting that she had expressed concern about removing her son from . By letter dated February 10, 2012, the Parent received a Final Notice of Recommendation and scheduled an observation at PS immediately. Exh.

8.

Ms. testified that she had reservations about the safety of PS , noting that personnel did not appear able to safely manage its student population. In furtherance thereof, she noted that personnel did not intervene with students in the , and were with regard to ascertaining who was actually authorized to be on the school’s premises. Tr. at 286, 301.

Ms. testified that she was escorted to a in which the students were unengaged. She noted that a seemed to have many adults in the room and she was subsequently advised that these were , although they did not appear involved with their students. Tr. at 290-291. When escorted to the internship office, Ms. was informed that work site placements were determined by “a show of hands,” rather than by individualized assessment, vocational preference or ability. Tr. at 293-294. The witness was informed that, as the students aged, the amount of time spent at the work site increased. In doing so, Ms. . testified that the amount of academic instruction gradually dwindled, a concern given ’s . Finally, the Parent objected to the limited availability of travel training offered, as her . As the training is limited to seniors, she did not believe would have a sufficient opportunity to . Tr. at 297-298. This was a particular issue for the Parent as her tour guide had advised her that the school does not on a basis. Rather, services are rendered within the context of the classroom. Finally, the witness indicated that she was not shown a life skills class or The Parent noted that she had observed the hallways during classroom changes and opined that this occurred in . She testified, “. . . my son is going to be changing classes. He forgets his classes. And the kids are running around. And I’m scared that they’re going to .” Tr. at 302. Following her visit, the Parent notified the CSE about her decision to re-enroll her son at . She testified that she has been pleased by the academic and emotional growth has made. She additionally noted that he has become more independent with many

THE DEPARTMENT OF EDUCATION’S POSITION

The School District maintains that the January 5, 2012 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the Department asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of designed to identify the child’s needs, and develops strategies and interventions directed at remediating these Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

As an ancillary argument, the School District further contends that the Parent’s unilateral placement, the Center, is inappropriate and that the Parent’s actions militate against her equitable entitlement to relief.

THE PARENT’S POSITION

The Parent assert that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education for the 2012-2013 school year in violation of the IDEIA. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEP generated January 5, 2012 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. In furtherance thereof, counsel maintains that the School District’s IEP broadly neglected the student’s educational needs such that the Parent was compelled to unilaterally place his child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with this argument, the Parent contends that constituted an appropriate placement for her son during the 2012-2013 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

DISCUSSION

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services. Application of a Child with a , Appeal No. 01-105; Application of a Child Suspected of Having a , Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA. Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a . 20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be affed a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every necessary to maximize each child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a " (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 3 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, 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 affs the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 10 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 14, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; Roland M. v. Conc Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990); see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). The instant matter additionally presents the question of whether a court may er reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a threepronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy (Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the January 5, 2012 IEP reasonably calculated to confer an educational benefit upon during the 2012-2013 school year?

Although the student’s instructors limited their participation to presentations of ’s academic progress and management needs, administrator was present in person for the entire meeting. Tr. at 85, 88, 90-91, 136. Nevertheless, the individuals who knew best and were involved with ’s instruction on a daily basis did not actually participate in the educational planning and formulation of ’s IEP goals. Rather, their participation was limited to a discussion of the student’s academic progress and management needs. Tr. at 85, 88, 90-91, 136. As a result, the Department’s recommendations reflect a “disconnect” between the Department’s opinion as to what required and that of ’s actual providers. In furtherance thereof, the IEP does not include goals for multiplication and division, an emergent skill for , but included other goals2 unilaterally developed by Ms. . Tr. at 116-118. Similarly, although decoding is described as one of ’s weaknesses, there are no decoding goals within ’s IEP. Rather, the goals are directed towards comprehension. Tr. at 120. Other goals articulated within the IEP had already been achieved. Tr. at 225. Clearly, the only individuals with personal knowledge of the child disagreed with the Department’s IEP recommendations while ’s math and ELA teachers were not available for consultation, having returned to their classrooms. Although the IEP repeatedly references placement in , one can only assume this was an erroneous designation, one which was never corrected in the testimony. Exhs. 8;^[2] at 5; and 1 at 12; Tr. at 101. While the rec is rife with references to a recommendation, the student’s IEP repeatedly recommends as a common designation for classroom paradigm in which a student is additionally assigned to a full-time paraprofessional. This error, unaddressed by any testimony, reflects both an inaccurate description of ’s presumed recommended pupil/personnel ratio and the Department’s lack of familiarity with ’s needs. In fact, it appears that even Ms. may have had misgivings about her lack of any personal knowledge of as she immediately conducted her own observation of the student the following school day. Exh. 4. Indeed, prior to these IEP proceedings, one can only wonder when this student was last observed by anyone on behalf of the Department.3 In conducting an , the public agency must . . . [u]se a variety of assessment tools . . . including information provided by the parent, that may assist in determining . . . [t]he content of the child’s IEP (W.H. ex rel. B.H. v. Clovis Unified Sch. Dist., No. CV F080374, 2009 WL 2959849 (E.D. Cal Sept. 10 2009; 34 C.F.R. § 300.304 (b)(1)(ii)) Exh. i. at 7. Although a “”holistic perspective of the child’s needs” must be considered, the “evaluating agency . . . is compelled to use technically sound instruments that may assess the relative contribution of factors, in addition to physical or developmental factors (internal quotations omitted).” Specifically, teacher assessments are not included within the accepted methods of where current functional levels are reported. 34 C.F.R. 300, Appendix A.

While the IEP includes references to the Group Reading Assessment Diagnostic (hereinafter “GRADE”), the Basic Reading Inventory as well as ’s progress reports, there is no standardized testing with reference to the student’s or his . The significance of this omission is exacerbated by Ms. ’s lack of personal familiarity with , the absence of personnel for the entire convene, and Ms. ’s testimony that she did not know what materials had been available to her fellow CSE members. Significantly, there is no evidence that ’s prior Hospital for Joint Disease, dated January 5, 2011, were reviewed.4 Exh. B.

Exh. B. In view of the above, the rationale for Ms. ’s sudden decision to conduct a formal observation of the following school day is questionable. Finally, although the Parent had engaged the participation of ’s hearing education teacher, the meeting’s four hour delay prevented this individual from participating. Tr. at 278-281,

311. In furtherance thereof, the uncontroverted testimony indicates that Ms was not offered an opportunity to return or re-schedule her meeting. Tr. at 310. The casual manner in which these proceedings took place is underscored by the following testimony.

Ms. : “. . . we had the progress report from the so the--and that the gave that to us . . . That's what we had. We had his previous informa--IEP from the CSE file. We had the CSE file of course. We reviewed and perused.” Tr. at 128. HEARING OFFICER ALMELEH: (Interposing) Well, whoever arranged the CSE meeting.

MS. : If there are packages that--like evaluations that take place? HEARING OFFICER ALMELEH: Well, to ensure that everybody who's sitting around the table or participating by telephone has the same documentation.

MS. : Well, for this case everyone did have the same documentation. HEARING OFFICER ALMELEH: Okay. And how do know that?

MS. : Because the progress report is what we use. The teachers are the ones that generate the progress report. They're the authors of the progress report. HEARING OFFICER ALMELEH: Okay. However, how do we know that?

MS. : Because the progress report is what we use. The teachers are the ones that generate the progress report. They're the authors of the progress report. HEARING OFFICER ALMELEH: Okay.

The report is based upon testing conducted in December 2010 and January2011.

MS. : The parents are given the progress report by the Center. At the time of the meeting a copy--if the parent didn't have a copy we would make copies. That just in our general practice. HEARING OFFICER ALMELEH: Well, for example, we have two teachers who are participating. How do we know that Ms. had Ms. report or vice versa?

MS. : Again, that's not my responsibility to make sure Ms. or Ms. Allard has each other's reports. I know that they're speaking from their progress reports and the progress report includes both ELA and math and this is what the school submits to us. The teachers have access to the progress report, because again they're the authors of the progress report. Tr. at 128-132.

Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in . (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]).

Clearly, the proceedings were compromised by several irregularities. The Department has not established that the Committee members were uniformly in possession of the evaluative materials reviewed. The only individuals with direct instructional knowledge of the student did not participate in the entire convene. Other than hearing education teacher’s opportunity to participate was foreclosed by the four hour delay in the proceedings, a delay unaccompanied by any offer to re-schedule the proceedings in violation of Ms. due process rights. Finally, it is clear that the only individuals with personal knowledge of the student objected to the Department’s recommendation, a written recommendation inconsistent with the 12:1:1 testimony offered, but nevertheless unaddressed by the Department in the course of these proceedings. An IEP, as a written document, must have substantive content which is based upon real and meaningful collaboration. In the matter at bar, Ms. added her own goals and dismissed those which had been offered by school personnel. Unacquainted with the student, Ms. relied upon personnel’s input, but ignored their recommendations. Given the casual manner in which this CSE convene was conducted, the IEP must be deemed a nullity. The Department’s assertion that it provided with an appropriate IEP is simply conclusory verbiage. While the Department has suggested that its responsibility is circumscribed to that of offering a program, independent of any particular site, this position is internally inconsistent with the substance of RE v. NYC DOE, 694 F.3rd 167 (2nd Cir. 2012), cited by the Department. Indeed, the Department’s burden does not end with an adequately articulated IEP document. 20 USC 1414(d). Rather, it must also establish that it offered a placement in a school that can fully implement its provisions. This has not been established by the testimony in this matter. In furtherance thereof, Ms. testified that assessments of new students commence in September and, more specifically, the is administered from October to November. Tr. at 178. Given this scenario, as an extended year student would be placed for at least two months in one of grade classes based exclusively upon age , absent any consideration level. Tr. at 160-161.

Beyond this, although an IEP must be individualized for each student, the rec indicates that work site placements are determined by “a show of hands,” rather than by individualized assessment, vocational preference or ability. Tr. at 293-294. The PS witness further testified that eligibility for travel training is based upon a waiting list with graduating seniors offered preference, a problematic scenario for a cognitively impaired student with When offered an opportunity to assert the appropriateness of PS for , Ms. testified that this determination had been made by the CSE. She did not elaborate upon this nor did she testify that , in particular, could be serviced appropriately by her school. Tr. at 181-183. Ms. ’s testimony, in contrast, did not address this as the CSE witness did have any knowledge as to where would be placed. In fact, the Final Notice of Recommendation refers to a student known as “ ” mailed to parent “ neither name being accurate. Exh. 8.

Finally, Ms. ’s testimony that is in “good health,” an opinion based upon the Parent’s description of her son, is absurd. Tr. at 95. The rec indicates that the student was treated for Point II: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], was an Appropriate School for during the 2012-2013 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially 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, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

I find, at the outset, that the academic program offered at correlates well with the student’s academic needs, as identified in ’s IEP. is a small self-contained program serving It offers a modified academic program, including related services, social skill classes, self- and vocational/transitional programming. Travel training and work internships are additionally incorporated into the program. The School offers program in which can participate with similarly profiled students. The student is provided with instruction when new materials are introduced and accommodations for ’s physical and cognitive disabilities are made. Ms. testified that she utilized a Beyond this, is permitted to avail himself of a scribe. Personnel are sensitive to the emotional needs of and provide a highly supportive environment which enables the student to thrive academically and emotionally.

Ultimately, I find that the student made significant and meaningful improvement at , an opinion expressed by school personnel, in the absence of any controverting Department of Education testimony. Although the District maintains that is not an appropriate placement, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2012-2013 school year?

Although the Department suggests that the Parent had no intention of placing her child in a public school, the reality is that all of her children have long been enrolled in the Department’s schools. In fact, had attended public school classes even when doing so inured to the student’s detriment, ultimately requiring transfer to for his educational services. I find that the Parent credibly testified that she would be thrilled to send her child to a local school, rather than have endure a daily commute from the .

Although it is clear that Ms. agreed with the Department’s IEP, she was concerned about its ability to implement its provisions at the site selected. Nevertheless, the Parent visited the site in good faith and expressed her concerns. Although she was unable to observe the class or work-site to which would be assigned, she was Nevertheless, Ms. has continued to work with the Department, sharing , and attending meetings when requested. Under these circumstances, I find no factors which militate against the Parent’s right to equitable relief.

CONCLUSION

The Parents’ request for relief is granted for the 2012-2013 school year. Wherefore, it is hereby ered that: Consistent with Connors v. Mills, 34 F.Supp.2nd 5 (N.D.N.Y. 1998), and within thirty (30) days of the date of this er, the Department shall make direct payment of Center for tuition expenses incurred by for the 2012-2013 school year. This amount shall represent the Department of Education’s total liability pursuant to the Parents’ Due Process Complaint. Dated: September 4, 2013 _____________________

LYNN ALMELEH, ESQ. LA:mv Impartial Hearing Office

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.” (8NYCRR2.2[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 REC

PARENT

A progress report 3/2013, 26 pgs. B , 1/5/2011, 8 pgs. C Parent letter rejecting placement, 3/16/2013, 3 pgs. D Parent letter, ten-day notice, 8/7/2013, 2 pgs. E contract, 3/27/2013, 2 pgs. F program description, 5 pgs. G Student schedule, 1 pg. H Subpoena , CSE 9, 3/11/2013, 4 pgs. I award letters, 3/13/2013, 5 pgs

DEPARTMENT OF EDUCATION

1 IEP, 1/5/12, 20 pgs. 2 IEP meeting minutes, 1/5/12, 6 pgs. 3 progress report, 12/2011, 18 pgs. 4 Classroom observation, 1/9/12, 2 pgs. 5 5/16/10, 4 pgs. , 5/19/10, 6 pgs. 7 Amended due process complaint, 12/19/12, 4 pgs. 8 Final notice of recommendation, 2/10/12

Footnotes

[1] A ten week work program is incorporated into curriculum. As students the school, the amount of time devoted to work internships increases.

[2] i.e. distinguishing odd and even numbers There is no observation in the rec other than Ms. observation conducted after the CSE convene,