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 14, 2014

May 30, 2014

June 13, 2014

July 15, 2014

July 23, 2014

August 5, 2014

Actual Record Closed Date: August 12, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2014

Attorney (Via Telephone) — Student

District Representative — DOE

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

Attorney — Student

Parents

Impartial Hearing Rep — DOE

School Psychologist (Via Telephone) — DOE

Supervisor of Psychologists (Via Telephone) — DOE

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

ESQ., Attorney for Parent — Student

Parents

School (Via Telephone) — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2014

Attorney — Student

Parents

Impartial Hearing Representative — DOE

Supervisor of Psychologists — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2014

Attorney — Student

Parents

Impartial Hearing Representative — DOE

School Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2014

ESQ., Attorney for Parent — Student

Parents

Impartial Hearing Representative — DOE

This hearing was requested by the parent on March 14, 2014. The hearing was held on May 12, 14 and 30, June 13, July 15 and 23 and August 5, 2014.

SCHOOL DISTRICT

The school district asserts that it offered a free appropriate public education (FAPE) to the student for the 2014-15 school year. It contends that the recommended program was appropriate and provided the least restrictive environment. (Exh. 41)

The school district submitted documentary evidence and testimony. (Exhs. 1-41) The witnesses were a school psychologist, a supervisor of psychologists and a school principal. They testified as to the student’s evaluations, his strengths and weakness, the services he received, their interactions with the parent and the services the parent was offered for the 2014-15 school year.

PARENT

The parent contends that the school district failed to provide the student a free appropriate public education (FAPE) for the 2014-15 school year when the student will The parent seeks continuation of his current placement in a 7:1:2 class, with related services, at School, a state-approved nonpublic school.

The parent submitted documentary evidence and testimony. (Exhs. A-R) Parent’s witnesses included the early childhood coordinator of and the parent. .

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

FINDINGS

I find that the school district failed to offer a FAPE. I also find that the record supports the relief sought by the parent.

As was recently restated in Appeal No. 14-012, two purposes of the 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 Individuals with Disabilities Education Act (IDEA), and (b) the Individualized Education Program (IEP) developed by its Committee on Special Education (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 CFR 300.320[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 " 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). March 7, 2014 IEP Program Recommendation

I find that the program recommendation contained in the March 7, 2014 IEP is not appropriate.

The student currently attends . testified that she frequently observes the student at school. He receives morning. In the afternoon he receives small group instruction, which gives him the opportunity to generalize his skills with other students. Although the student is progressing, and (Transcript and Exhibits L, M and N) The coordinator opined that although the student has progressed, he requires these services for the 2014-15 school year. She opined that of up to 25 students, even with a would not be appropriate. The child in a class of that size. He also requires , which he would not receive in the recommended class. in a large classroom setting of up to 25 students would not be able to provide same he receives (Tr. At 116-197)

The parent also testified. She testified that she visited the recommended ICT program She was shown the ICT class her student would attend and was told that the class enrollment could be as much as 25 students. She opined that the recommended program and class were not appropriate for the student.

The school district contends that if with is deemed to not be appropriate, is. At the the student would attend class. However, this would be inconsistent with the mandates of the March 7, 2014 IEP, and the Final Notice of Recommendation dated June 13, 2014. Neither document recommends class. Therefore, I will only consider whether the recommended program, ICT, is appropriate. R.E. v. New York City Department of Education, 694 F. 3rd 167 (2nd Cir. 2012)As is stated above, I find that ICT with a paraprofessional is not an appropriate program. R.E. v. New York City Department of Education, 694 F. 3rd 167 (2nd Cir. 2012) Non-Public School Placement

Having determined that the district failed to offer a FAPE for the 2014-15school year, the next issue is whether the student should remain at

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 is appropriate. The record establishes that the student has progressed in the program and that he continues to require the services it provides. 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. The record indicates that the parent cooperated fully with the school district in their efforts to find an appropriate setting for the student. She attended meetings, was available to school district staff and visited the recommended program. Therefore, I find that the equities favor the parent.

ORDER

1. This matter is remanded to the school district.

2. The school district is to convene an IEP team to develop an IEP in accordance with this decision.

3. The IEP is to mandate that the student at the state-approved nonpublic day program at the of .

4. The student to teacher ratio shall be for a twelve month school year.

5. The related services for the twelve months shall be and specialized round-trip transportation as set forth in the IEP dated March 7, 2014. Dated: August 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 Parent’s Due Process Complain, 4/8/14, 3 pages B IEP, 3/7/14, 14 pages C IEP, 9/3/13, 20 pages D BOE Approval and Authorization to Receive

Education Program Service(s), 9/3/13, 1 page E Final Notice of Recommendation, 9/3/13, 1 page F NYC DOE Reevaluation, 3/5/14, 4 pages G Social History Update, 3/6/14, 2 pages H Progress Report for the IE Goals, 2013-2014, 6 pages I Related Services Progress Report ), 1/6/14, 2 pages J Related Services Progress Report ( ), 1/6/14, 2 pages K Related Services Progress Report ( ), 1/1/14, 1 page L Form, multiple dates, 1 page M Preschool Student Program List,

2013-2014 School Year, 2 pages N Session Data Graphs, 2013-2014 School Year, 37 pages O Emergency Home Contacts and Special Alerts, 4/8/13, 3 pages P , 3/27/14, 9 pages Q FNR, 6/13/14, 1 page R Closing Statement, 8/5/14, 9 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 3/14/14, 4 pages 2 Amended Due process Complaint, 4/8/14, 3 pages 3 “ ) IEP, 3/7/14, 15 pages 4 summary Page, 3/7/14, 1 page 5 Inquiry Form, 3/6/14, 1 page 6 CSE Meeting Notice, 2/17/14, 3 pages 7 Re-evaluation, 3/5/14, 4 pages 8 Classroom Observation Report, 3/3/14, 1 page 9 Social History Update, 2/24/14, 2 pages 10 Consent for New Testing, 2/6/14, 1 page 11 Event Log, 5/22/14, 2 pages 12 Related Service Progress Report, 1/6/14, 5 pages 13 Educational Progress Report, 12/15/13, 2 pages 14 IEP, 9/13/13, 21 pages 15 Educational Annual Progress Report, 6/3/13, 4 pages 16 Acceptance Letters, 5/28/13, 2 pages 17 Per School Acceptance Letter, 5/21/13, 1 page 18 Quarterly Progress Notes, 12/1/12, 3 pages 19 Acceptance Letter, 9/28/12, 1 page 20 Authorization of CPSE IEP Change, 9/24/12, 1 page 21 CPSE, IEP, 7/19/12, 17 pages 22 CPSE Meeting Notice, 7/11/12, 2 pages 23 SEIT Acceptance Letter, 6/26/12, 1 page 24 Acceptance Letter, 6/20/12, 1 page 25 CPSE IEP, 6/20/12 17 pages 26 Child Outcomes Summary Form, 6/20/12, 12 pages 27 meeting Notice, 5/2/12, 2 pages 28 Bilingual SEIT Evaluation, 4/16/12, 12 pages 29 Bilingual SEIT Student Evaluation Summary Report,

4/16/12, 2 pages 30 Bilingual Social History, 4/16/12, 4 pages 31 Physical Therapy Evaluation, 4/4/12, 5 pages 32 Evaluation, 4/4/12, 4 pages 33 Evaluation, 4/4/12, 4 pages 34 Consent for Evaluation, 4/3/12, 1 page 35 Daft IEP, 1/28/14, 12 pages 36 Email to , 3/6/14, 1 page 37 Email Attachment, , 3/6/14, 1 page 38 Email chain, Subject: 39 Email chain, Subject , 3/14/14, 1 page 40 NYC DOE Flyer, undated, 2 pages 41 Closing Statement, 8/5/14, 5 pages