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: April 9, 2014

April 30, 2014

May 28, 2014

June 9, 2014

June 11, 2014

June 16, 2014

June 18, 2014

Actual Record Closed Date: June 23, 2014

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2014

Attorney — Student

Parents

Department of Education Representative — DOE

School Mandated Counselor (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2014

Attorney — Student

Parents

Spanish Interpreter — Student

DOE Representative — DOE

Speech Teacher — DOE

Witness — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2014

ESQ., Attorney, New York Legal Assistance Group — Student

Legal Intern, New York Legal Assistance Group (Observation only) — Student

Clinical Administrator, Saint Dominic’s School (Via Telephone) — Student

Psychological Center Evaluator (Did Not Testify) — Student

Impartial Hearing Representative — DOE

Special Education Teacher, — DOE

The (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2014

Attorney — Student

Legal Intern — Student

Legal Intern — Student

Psychological Center Evaluator (Via Telephone) — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11,2014

Attorney — Student

Parents

DR., Psychologist (Via telephone) — Student

Interpreter — Student

Legal Intern — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 16, 2014

Attorney — Student

Legal Intern — Student

Legal Intern — Student

Parents

DR., Psychologist (Via Telephone) — Student

Interpreter — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2014

Attorney — Student

DOE Representative — DOE

This hearing was requested by the parents on February 6, 2014. The hearing was held on March 19, April 9, April 30, May 28, June 9, June 11, June 16 and June 18, 2014.

SCHOOL DISTRICT

The school district contends that it provided a free appropriate public education (FAPE) and “created an appropriate Individualized Education Program (IEP) for (the student) in that the IEP was specifically tailored to him, and allowed him to make progress. He had the appropriate related services and modifications to allow him to be educated amongst his non-disabled peers.” (Exh. 14)

The school district submitted documentary evidence and testimony. (Exhs. 1-14) The witnesses were the student’s school counselor, his speech and language therapist, and his classroom teacher. They testified as to the services the student received, his strengths and weaknesses and his progress.

PARENT

The parent contends that the school district failed to provide the student a FAPE for the 2013-14. The parent seeks prospective relief in the form of a 12 month placement at St. Dominic’s, a state-approved nonpublic school.

The parent submitted documentary evidence and testimony. (Exhs. A-P) Parent’s witnesses included a evaluator, a supervising the clinical administrator of the school requested by the parent, and the parent.

The witnesses testified as to parental efforts to obtain appropriate services from the school district, the student’s strengths and weaknesses, and and the results of testing.

FINDINGS

I find that the school district failed to offer a FAPE in a public school setting and that the non-public school selected by the parent will meet the student’s needs.

As was recently restated in Appeal No. 14-012, two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

MAY 21, 2013 IEP

I find that the May 21, 2013 IEP was not appropriate.

IEP GOALS

I agree with the parent that the school district has failed to establish that the IEP goals were appropriate. For example, the IEP indicates, and the classroom teacher testified, that in class the student often needed redirection, guidance and support to complete his assignments. He often did not participate in class discussions and when he did he was off topic. He could not work in a group. (Exh. D, Testimony of classroom teacher). The also testified that a plan would have been beneficial. (Testimony of the student’s counselor) Yet, the IEP failed to include goals to address these needs and no behavioral intervention plan was prepared. (Exh. D)

The student’s classification is yet . (Exh. D) At the hearing, the student’s therapist testified as to several additional goals that she would have included in the IEP, which were not. (Testimony of speech and language therapist)

Moreover, the writing goal contained in the IEP, that the student write a three page narrative, was unattainable. Both the classroom teacher and the speech and language therapist testified as to the student’s significant writing difficulties. The classroom teacher testified that he still could not finish a full page, yet the goal was that he write three pages. (Testimony of the classroom teacher and therapist)

PROMOTIONAL CRITERIA

The May 21, 2013 IEP reduced the student’s promotional criteria for math from 30% to 20% and maintained his ELA promotional criteria at 30%. The parent testified that in her opinion this is an indication of the inappropriateness of the recommended program. I agree. Although modification of the promotional criteria to conform with the student’s abilities is appropriate for many students, in this case it was not. The record reveals that with proper instruction the student has the ability to achieve The supervising psychologist testified that test results indicate that the student is capable of learning to understand and apply basic arithmetic concepts and of learning to read on a grade appropriate level. Test results support her conclusions. (Testimony of supervising psychologist, Exh. B)

For all of the above reasons I find that the school district failed to offer a FAPE for the 2013-14 school year.

NON- PIBLIC SCHOOL PLACEMENT

Having determined that the district failed to offer a FAPE for the 2013-14 school year, the next issue is whether the student should attend St. Dominic’s instead of continuing in his current program.

As was also recently stated in Appeal No. 14-012, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "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 at 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 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 specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. 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 handicapped 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).

I find that the parent has established that is appropriate. The student’s school year will commence in the summer, which would allow the student to instruction in reading and math, which the student requires given

After the summer session the student will attend classroom and receive multisensory instruction specifically designed for students with expressive and receptive disorders. He will also receive all of his related services at the school.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors. With respect to equitable considerations, I find the equities favor the parent. The student has attended the same public school program since Kindergarten. Throughout, the parent attended IEP meetings and cooperated with the school district even when it became increasingly evident that the services offered by the school district were not enabling the student to progress commensurate with his abilities. Therefore, I find that the equities favor the parent.

PROSPECTIVE RELIEF

I find that a remand to the school district for new recommendations is not an appropriate course of action in this case. The record reveals that during the 2013-14 school year the student made no meaningful progress. After repeatedly receiving similar services , the student is now performing several years behind grade level despite testing that indicates he can achieve at a greater rate. He requires intense remediation, such as will be provided in summer program. He also requires the type of instruction that can provide for the 2014-15 school year. The student is entering fifth grade. Time is of the essence and he must begin attending an appropriate program forthwith.

ORDER

1. The student is to 12 month program for the 2014-15 school year at school district expense.

2. Within one week of the date of this decision the school district is to conduct an IEP meeting to modify the student’s IEP in accordance with this decision. Dated: June 23, 2014

Esther Mora mv

ESTHER MORA, ESQ.

Impartial Hearing Officer EM;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with 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, 6 pages B evaluation, 2/27/13, 20 pages C School acceptance letter, 1 page D IEP, 5/21/13, 14 pages E Student progress report, 5/29/13, 2 pages F Student progress report, 5/21/13, 2 pages G Prior written notice, 5/21/13, 2 pages H Sample SNAP for teacher and parent rating scale number 6160, 4 pages I First and second trimester grades, 2013-14, 4 pages J IEP, 5/4/12, 14 pages K IEP, 4/23/11, 13 pages L IEP re-convene, 4/23/10, 14 pages M IEP, 3/30/09, 17 pages N IEP, 11/13/09, 13 pages O Unidentified Document, 4 pages

DEPARTMENT OF EDUCATION

1 Due process complaint, 2/6/14, 6 pages 2 Due process response, 2/7/14, 3 pages 3 IEP, 5/21/13, 20 pages 4 Prior written notice, 5/21/13, 2 pages 5 IEP amended, 5/21/13, 14 pages 6 Waiver of IEP meeting to amend IEP, 10/24/13, 1 page 7 evaluation, 2/27/13, 21 pages 8 Student progress report, 5/29/13, 2 pages 9 Functional behavior assessment, 9/7/12, 2 pages 10 Behavior intervention plan, 10/15/12, 1 page 11 report, 3/25/14, 1 page 12 Report card, undated, 2 pages