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 6, 2014 July 8, 2014 August 7, 2014 August 13, 2014

Actual Record Closed Date: September 6, 2014

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2014

For the Student:

, Advocate

For the Department of Education:

, District Rep

, IEP Teacher

, Assistant Chair Person

, Special Ed Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2014

For the Student:

, Advocate

, ESQ., Observer/Attorney

, Parent/Mother

For the Department of Education:

, District Rep

, Special Ed Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2014

For the Student:

, Advocate

, Parent/Mother

For the Department of Education:

, District Rep

, Special Ed Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2014

For the Student:

Advocate

, Principal, for Special Education (Via Telephone)

For the Department of Education:

, District Representative

, District Representative

PROCEDURAL BACKGROUND

A hearing was held over the course of four days pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated February 6th, 2014, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. The parent’s due process complaint requested public funding of the student’s placement in an unapproved nonpublic school for the 2013-2014 school year.

The DOE was represented by a District representative. The parent was represented by an advocate. The parent submitted 8 exhibits, hereinafter referred to as “Exhibits A- H”, the DOE submitted 12 exhibits, hereinafter referred to as “Exhibits 1-12”. (The list of exhibits is attached hereto as “Attachment A”).

DOE’s POSITION

The DOE asserts that the student’s Individualized Education Plan (“IEP”) is procedurally and substantively valid and provides a placement that would have conferred meaningful educational benefit to the student for the 2013-2014 school year. Additionally, the District argues the private placement is inappropriate and that equitable considerations favors the Department of Education.

PARENT’S POSITION

The parents maintain the Department of Education has failed to provide their daughter with a free and appropriate public education with the necessary supports and services for the 2013-2014 school year. The parents maintain that the IEP that was procedurally and substantively flawed, and denies the student a Free and Appropriate Public Education (FAPE). Additionally, the parents challenge the classification of the student, the parents assert the student should be classified Education is appropriate for the student for the 2013-2014 school year, and that she has made meaningful . The parents further maintain that the equities support the parents, as they were fully cooperative. Finally, the parents are seeking that tuition be prospectively paid to the upon their financial resources.

FACTS

The student, who is , however, her parents challenge the classification and believe that she should be classified as other health impaired.

The IEP coordinator testified regarding the recommended placement. She testified that it was , She testified that the school personnel included the following related service providers: , 1 full time occupational therapist and a part time physical therapist. The witness testified that the school utilizes a strategy. The witness also testified that the recommended class would have been able to accommodate the student’s needs. (TR 9) The witness testified that student progress is measured by classroom tests, and state exams. The witness testified that the students were aged 9 to10 in the classroom and that their reading levels ranged for grade. The witness testified that the students are all learning the same curriculum, but, that it is modified to the individual student’s needs.

The Special Education Evaluation Program and Placement Officer at Committee on Special Education (CSE) 6 testified regarding her response to the parent’s letter requesting another CSE meeting due to her dissatisfaction with the CSE recommendation. The witness testified that the parent did not submit any new information for the CSE to consider and that as a result, the CSE was not obligated to reconvene more than once per year. (TR 40, 41)

The CSE special education teacher testified in support of the CSE’s recommendation. She testified that her overall impression of the student, based on the information obtained at the CSE meeting was, that she was a child who was functioning , that she . The witness testified the parent and the student’s school participated in the CSE meeting and that they did not disagree with the classification or recommendation for the student. The witness testified that on 3/21/14 the IEP dated 3/12/2013 was mailed to the Parent. (TR 85).

On cross examination, the witness testified that the student’s classification was not discussed and that the CSE team developed the student’s goals. (TR 120, 121) The witness also testified that she was aware that the student was in a class of 6 or 7 students, but, that the CSE’s recommendation for a class of 12 students was appropriate due to the supports and training in the DOE setting. (TR 126) Additionally, the witness testified that all special education teachers routinely address a . (TR 143)

The parent testified that the student was placed Education for the 2013-2014 school year. The parent testified that included her lack of focusing, . (TR 164) The parent testified that she attended the annual review in March 2013 and that the team did not discuss the student’s . (TR 168) The parent testified that she received the final notice of recommendation after the school year ended. She testified that she went to the school and spoke with the principal. The parent testified that she advised the District that the class size was too large, the IEP goals were not appropriate and that she had concerns with the class profile. (TR 172) She also testified that she visited the school in the Fall and did not believe it was appropriate, as the class was too large, there were more boys than girls, the school were not on . (TR 173)

The parent testified that the student made progress in . She also testified that the school was ungraded and that she did not TR 197)

The Principal of the testified regarding the student’s mid-3rd grade level. (TR 219) The witness testified that the contact and . The witness testified that the student had difficulty class with the assistance of . (TR 219, 220, 222) The witness also testified that the targeted the getting her to complete work more independently. (TR 236) The witness testified that the student and the program was appropriate for her. (TR 236-246) The witness also testified that she is unaware of a , but, believes that the student should be classified as other health impaired based . (TR 244)

CONCLUSION OF LAW

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 free and appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252-53 [2d Cir. 2009]; R.R. v. Scarsdale Union Free Sch. Dist., 2009 WL 1360980, at *9 [S.D.N.Y. May 15, 2009]; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 [S.D.N.Y. Sept. 29, 2008]; see also E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.4[d][4][ii], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

The recommended placement provided the student with the necessary services and supports for the student to make meaningful progress. The IEP accurately reflects her needs and abilities and provides educational and related services that address her needs.

The IDEA requires that a valid IEP be in effect "at the beginning of each school year" and that the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (K.Y. v. Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe, 2008 WL 2736027, at *6; 584 F.3d 412 [2d Cir. 2009]; Application of a Student with a Disability, 09-082; Application of a Student with a Disability, 09- 074; Application of a Student with a Disability, 09-063; Application of a Student with a Disability, Appeal No. 08-103; Application of a Child with a Disability, Appeal No. 07- 049; Application of the Bd. of Educ., Appeal No. 99-90; Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 93-5). The United States Department of Education (USDOE) has noted that it "referred to 'placement' as points along the continuum of placement options available for a child with a disability, and 'location' as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services" (Placements, 71 Fed. Reg. 46588 [August 14, 2006]).6 This view is consistent with the opinion of the USDOE's Office of Special Education Programs (OSEP), which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation (Letter to Veazey, 37 IDELR 10 [OSEP 2001]; Application of a Child with a Disability, Appeal No. 07- 049).

A student's recommended program must be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 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 [2d Cir. 2008]; Gagliardo, 489 F.3d at 108; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428). In determining an appropriate placement in the LRE, IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993]; J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobel, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 C.F.R. § 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 C.F.R. § 300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 C.F.R. § 300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 C.F.R. § 300.115[b]).

The Second Circuit employs a two-pronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R. v. El Paso Indep. Sch. Dist, 874 F.2d 1036, 1048-50 [5th Cir. 1989]). Determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services mandates consideration of several additional factors, including, but not necessarily limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Newington, 546 F.3d at 120; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1048-50).

The lack of a reconvened CSE meeting did not impede the student’s right to a free and appropriate public education, or impede the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the child. Accordingly, the failure of the CSE to reconvene upon a request from the parent did not rise .

While the CSE’s recommendation is upheld, the evidence also established that the parental placement provided the student with appropriate services and the parent cooperated with the CSE. Accordingly, there would be no impediment to the awarding of tuition reimbursement.

ORDER:

The CSE’s recommendation is upheld; parents’ request for public funding for the 2013- 2014 school year is denied.

Dated: September 15, 2014

, ESQ.

Impartial Hearing Officer

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 2/6/14 3 pages,

B Enrollment Contract dated 9/2/14 2 pages

C, Related Service Addendum dated 9/2/14 1 page

D Student’s Schedule 13-14 school year 1 page

E Educational Plan 2012-13 15 pages

F Educational Plan 2013-2014 14 pages

G 1040 Tax Return 2012 2 pages

H Letter from parents dated 7/15/13 pages

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request dated 2/6/14 3 pages

2 Department of Education IEP dated 3/12/13 11 pages

3 Teacher's Report dated 2/2013 3 pages

4 Report dated 2/2013 1 page

5 Update dated 2/2013 1 page

6 Report dated 2/2013 1 page

7 CSE Letter dated 8/9/2013 1 page

8 Events in dated 2/13 to 3/21/13 1 page

9 Classroom Observation dated 12/14/12 2 pages

10 FNR dated 6/26/2013 1 page

11 Events for Student dated 3/21/13 2 pages

12 Letter from Parent dated 9/23/14 1 page