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: August 2, 2013

October 23, 2013

November 15, 2013

January 15, 2014

Actual Record Closed Date: February 19, 2014

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 2, 2013

Attorney — Student

CSE Chairperson’s Designee (Via Telephone) — DOE

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

Attorney — Student

Attorney — Student

Father — Student

Director, (Via Telephone) — Student

CSE Rep — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2013

Attorney — Student

Parents

DR., M.D. (Via telephone) — Student

CSE Chairperson Designee — DOE

CSE Placement Officer (Via telephone) — DOE

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

Attorney — Student

Parents

CSE Representative — DOE

Assistant Principal (Via Telephone) — DOE

INTRODUCTION

On July 9, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of Jacob E. (“JE”).

BACKGROUND

is a profoundly abnormalities. He has and (“ impairment, and a significant . (t. 35-36, 207-10) In spite of his disabilities s described as very on around him and very social. (t. 127) His classification of is not in dispute. JE began receiving services in the at the age of . He attended from ages where he began to to help him communicate. The family moved and , a (“ ”) school, for 2 years. The family moved back to New York City from Westchester in 2012. (Ex. 4, 17, 7) (t. 260) currently attends Standing Tall (t. 32, 126) a private school. started attending as a Saturday program in or around 2010. (t. 158-59) The Parents assert that the New York City Department of Education (“DOE” or the District”) has failed to provide with a free and appropriate public education (“FAPE”) for the 2013-14 school year. The DOE contends that was provided with FAPE and that the recommended program and placement addressed his unique needs. An Order of Pendency was issued on August 16, 2013 at the request of the Parent ordering that receive the following from the date of the demand for due process until the conclusion of the hearing: Individual nursing services 5 times per week for 7 hours, therapy (“ST”) 4 x 30 (“ ”) 4 x 30 , Physical therapy (“ ”) 4 x 30 and in a small group 3 x30. The DOE had no objection.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 7, 2013 an Individualized Education Program (IEP) meeting was held to craft an IEP for The Parents had sent a letter to the Committee on Special Education (“CSE”) alerting them that they were returning to New York City and that required special education services. As the student had been out of New York City for several years the CSE decided to treat the request as an initial referral and set up a meeting with a social worker and determined what evaluations would be needed. Prior to the IEP meeting the CSE had the following evaluations done: Social History (Ex. 17), PT Evaluation (Ex. 8), ST Evaluation (Ex. 10), DOE Report (Ex. 9) and a DOE Classroom evaluation (Ex. 11). In view of the CSE also requested medical documentation. In attendance at the meeting was (school psychologist/district representative), both of , ( /special education teacher), (director/teacher at ) and a parent member. (t. 33-34) Mr. testified that , who notwithstanding and enjoyed group participation, was distractible but able to be refocused easily with the assistance of an augmentative communication system, a is essentially nonverbal and used the to communicate. (t. 36, 40, 126 130) While in had attended a 12 month program in a special class 12:1:4 with skilled nursing services, for approximately two years. (t. 44) (Ex. C)

The IEP was developed in the meeting of February 7, 2013. The IEP team relied on the prior IEP from White Plains (Ex. C), the evaluations that the DOE had done, information provided by the Parents and school in determining and program. In the course of the IEP meeting it was determined that a full time nurse would be necessary based on and a was made. The nurse would be monitoring and attending to any other medical needs as well as assisting with adaptive living skills. The nurse is trained to interact with a child with medical needs and would also assume the role of a full time para professional and be able to refocus if necessary. (t. 48-50, 69-70 ) In determining goals on the IEP Mr. testified that had submitted draft goals (Ex. 13) and that they provided an essential part of the picture as they were developed by the people who worked with on a day to day basis and would able to decide on realistic and appropriate goals for him. The team considered emotional issues and addressed them as part of the communication profile. JE’s desire to communicate was considered as an area of strength for him and though that ability is challenged it is developing and as such the IEP needed to enable him to develop those skills. (t. 52-55, 127) The IEP specifies the use of the for 35 30 minute sessions. Mr. testified that it was intended to be for the entire school day and entire school week. (t. 90-91) While the IEP does not specifically recommend a multi-sensory approach it is implicit in the type of program recommended. (t. 71, 102) Under Management Needs the IEP directs that JE’s position be changed at least hourly to assure calm and maximized participation. In this context the change of position is allowing out . (t. 74-77) In coming up with a program recommendation the IEP team looked at all the information they had available, as well as that had been in previously in Westchester. The Parent had sent a letter in September 2012 when the family moved back to New York City seeking a placement for JE. On September 28, 2012 the Parent sent another letter to Region In that letter the Parent refers to a September 1 letter that was sent wherein the request was made for an immediate placement. In that September 28th letter the Parent specifically stated that they had started JE at Standing Tall since they had not been offered a comparable program to the Pines Bridge School, the school . (Ex. 7) (t. 44-45, 270) The program recommendation in the White Plains IEP (Ex. C) was for a special class: : Individual nursing services 5 times per week for 7 hours, ST individual 4 x 30 OT individual 4 x 30 1:1, PT individual 4 x 30 and Sensory motor language in a small group 3 x30. At the meeting they all agreed that needed a variety of related services and that the program would have a large medical component. The program recommendation at the IEP meeting of February 7, 2013 was for a ) program (this is a a software issue causes it to print as ) t.

86) in a specialized school, OT individual 4 x 30, ST individual 4 x 30, PT individual 4 x

30 . Mr. testified that the Parents appeared to be in agreement with the recommendation at the time. In addition, Mr. had communication with the mother after the IEP meeting regarding nursing services and she did not indicate any disagreement with the program. The program would provide academic instruction but would also provide a high level of supervision in order to ensure his safety. (t. 60-63) At the time of the IEP meeting JE was attending Standing Tall and while the placement recommendation would be for an immediate placement it was felt by the DOE team members that the Parents would probably not be taking out of that school for the 12/13 school year. A final notice of recommendation dated 4/30/13 recommending a special class in a specialized school (FNR”) (Ex. 15) was sent to the Parents (t. 58-59) There was a lag between the IEP meeting in February and the FNR, some of that lag was attributed to obtaining nursing services. (t. 66) The FNR was to take effect immediately and if the Parent wanted to place in May the school could have accommodated the placement. Maurice Collins, CSE placement officer testified that the FNR was also good for the 12 month school year beginning July 2013. (t. 193-94) It was unclear to the Parents what school year the FNR was for. (t. 274-75) The Parents visited the school and were told that the school could place JE immediately. (t. 278)

The school that JE was recommended to attend, is co-located in a school. The program is housed entirely on the first floor. There are four classes. All the services are located on the first floor as well. The school has been successful in meeting the mandates of the students but the , testified that there are some students who are issued RSA’s to obtain services outside of the school day. (t. 235-37, 239) The student population is approximately 125. The students in the 12:1:4 classes are students with multiple disabilities or challenges and a significant range of challenges and abilities. The classes are created based on ages, with bilingual students in a separate class. The PO138 students have lunch in the same cafeteria split into two periods. The 12:1:4 ratio is maintained during lunch (t. 236-37, 241-42) The Parents visited the school and did not feel that it was appropriate. It was a large busy environment. Some students were ambulatory and the Parents believed it would be a problem with the teachers and staff paying more attention to the ambulatory students. The Parents also were put off by what appeared to be a lack of the use of communication devices or symbols. The Parents main concern is access to communication for (t. 250, 280-81) The Parents through their attorney’s notified the DOE that they were rejecting the placement. (t. 286) (Ex. A)

began attending as a full time student in September 2012 (t. 270-71) Prior to that time had attended Saturday sessions. (t. 158-59) describes itself in its literature as a “…school that provides the unique environment, experts, and experiences needed to provide with multiple disabilities a path of true learning.” (Ex L) The methodology that the school subscribes to is conductive education as well as a general philosophy of integrated educational approach integrating the therapies, education and cognition. (t.

117) Conductive education is a system of education for children and adults with physical and multiple disabilities originating from damage to the central nervous system which seeks to develop spontaneous and innovative problem solving skill in people with physical disabilities to assist their maximum integration in to society. (Ex. K) The school has two conductors on staff, a conductor is an educator who is trained in the philosophy of conductive education. In addition the school has one special education teacher and one full time and one part time of each of the following: . There are three classes which are grouped primarily by age but also by cognition and physical abilities if possible. It is a twelve month program and currently has 13 students enrolled. Each student has either a full time para professional or a health para professional. (t. 113-15) follows the core standards that New York State follows as well as a pre-planned curriculum which adapts programs to the needs of students with physical disabilities. In addition the school uses an online curriculum which also follows the core standards. The curriculum is then further adapted to the individual needs of the student. (t. 118-19) The students spend half the day out of the . It is important for the students to be out of their wheelchair in order to prevent contractures among other things. (t. 120-22) , director of teacher describes him as requiring help to facilitate anything, he requires help in and out of his chair. In his wheelchair he needs to be supported laterally with sides and have his feet strapped in. He is nonverbal and uses assistive technology to communicate. The curriculum at the school has been adapted to meet his cognition. His grade level goes as low as kindergarten and as high as grade two depending on the activity and subject matter. (126-27) When is out of his chair he is functionally unable to use the unless he is in very supported seating. In those instances they use a low tech version or by raising his right arm and vocalizing to communicate. (t. 128) In a progress report dated July 2012 it was noted that during his Saturday sessions they did not use the so that they could focus on other areas of communication. It was noted in that report that could express himself clearly and that he uses a range of to express . In addition was able to express himself through and , noting that he if he is uncomfortable or in pain through both . (Ex. E) JE is in a class with two other students who are of similar age and cognition, though different physically. by his classmates but is able to return to his work easily. (t. 130 receives individually individually and in a group. He receives the group sessions to promote social conversation. (t. 139-140) The school is appropriate for because it is an integrated program which focuses on the student and each professional working with brings those skills to the table and is working in the same environment with the same goals. (t. 147-48, 266)

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony adduced at the hearing the District provided the student with FAPE for the 2013-14 school year. The Parent argues that the District failed both procedurally and substantively to offer FAPE for the 2013-14 school year in that it failed to offer an appropriate program for the 2013-14 school year or establish the appropriateness of the recommended placement.

The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. v. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132.

The testimony elicited at the hearing regarding the CSE meeting held on reveals that the DOE took great care in crafting an IEP that would meet the individualized education needs of . Though they were provided with the White Plains IEP (Ex. C) and various documents from the Parents and had previously been receiving services in New York City they had new evaluations performed as well as a classroom observation (Ex.

11) There is nothing in the record to support a finding that the DOE disregarded the input of either the Parents or . In fact, the CSE team relied on the goals that were crafted by for JE and explained that it is important because they provided an essential part of the picture as they were developed by the people who worked on a day to day basis and would able to decide on realistic and appropriate goals for him. It is unrebutted that no one in the IEP meeting, or after during communications regarding documentation for nursing services, objected to the recommendation of a program for In fact, it is substantially similar to the program that had attended in Westchester prior to returning and what the Parents asserted that they were seeking upon returning to New York City in September 2012. (Ex. 7) The CSE addressed s communication needs by including the use of the and goals related to such use. It is clear from the record that in the IEP the use of the was not accurately recorded as Mr. testified that the intent was that it is to be used full time. However, the assertion by the Parent that relies solely on the for communication is not supported by the record. The testimony of Ms. revealed that the students at are out of their wheelchairs at least half the day and that was not able to use that assistive technology unless in his chair or supported seating. In that instance he was using either a paper method or verbalizing. In addition, a progress report from (Ex. E) stated that did not use the during the Saturday sessions and was able to communicate through vocalization and body language.

The Parent asserts that the recommended placement is not appropriate in that it was unclear when it was to be implemented and that it would not cover the entirety of the 2013-14 school year. While the FNR may have been unclear the testimony reveals that the FNR could be implemented immediately or starting July 2013 for the 2013-14 school year. In addition, the Parent asserts that the recommended program is unable to implement the IEP. The testimony adduced at the hearing showed the placement would have been able to implement the IEP, though there were a handful of students who would receive RSA’s for some mandates. The objections raised by the Parents in the due process complaint to the placement are speculative and foreclosed by R.E. v. New York City Department of Education (694 F.3d 167 [2d Cir. 2012])

Based on the foregoing I find that the District crafted a procedurally and substantively sound IEP and recommended an appropriate program for the 2013-14 school year thereby providing with FAPE. However, though the District has prevailed on Prong 1 I will address Prong 2 and Prong 3.

I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. Based on the testimony Standing Tall provided an educational program which offered an individualized education program that conferred an educational benefit to JE. ^[1]

The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the while the Parent complied with all requests for information and appeared at all meetings and evaluations made by the CSE this was superficial cooperation. A progress report from was prepared in July 2012 (Ex. E) when was a Saturday student. The report states as follows: “is who has a great personality that helps him to bond quickly with the conductor. We are sure this will also be the case with his peers when he joins our full time class in September.” (Emphasis added) The report closes with JE “is great to have as a part of our school and we are excited to have him with us full time next year.” This report was prepared at a minimum of a month before the Parents returned to New York City and sent their first letter to the DOE requesting a placement. In the September 28, 2012 letter (Ex. 7) sent by the Parent to the CSE they write School since you did not offer a comparable placement to the School.” This letter gives the indication that the Parents were seeking a public placement similar to the placement they had at . This flies in the face of the testimony of the Parent in which he stated did not learn in and made virtually no progress (t. 260). That the reports accomplishments and that the family virtually fled from that program and returned to . (t. 261) The Parent agrees that it is fair to say that he was dissatisfied with the experience . (t. 286) The Parent further testified that once they did not hear anything from the CSE in September of 2012 at that point they did not know what to do, but since they were familiar with they talked to the school and were able to secure a placement for there. (t. 270) This when the aforementioned progress report indicates that arrangements had already been made for as a full time student. It seems fair to infer that the Parents returned to to enroll and had no intention of enrolling him in a public school program. In view of the foregoing I find that the equities favor the District.

ORDER

Therefore, it is hereby ordered that the Parent’s Due Process Complaint is dismissed Dated: March 3, 2014

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

JMK:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 2, 2013

A. Notice and Request for Transportation with Delivery Confirmation, dated Parent

6/17/13, 3 pages

B. Request for Impartial Hearing with Delivery Confirmation, dated 7/3/13, Parent

9 pages

C. White Plains Public Schools IEP, dated 4/17/12, 13 pages Parent

D. New York City DOE IEP, dated 2/7/13, 21 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 23, 2013

E. Progress Report, dated 7/2012, 5 pages Parent

F. Student Schedule, undated, 1 page Parent

G. Enrollment Contract, dated 5/20/13, 10 pages Parent

H. Speech Therapy report, dated 2/6/13, 8 pages Parent

1. Not entered-Duplicative District

2. Neuro-Developmental Evaluation, dated 8/11/10, 2 pages District

3. , dated 10/12/11, 5 pages District

4. Report Student Functioning, dated 11/11/11, 4 pages District

5. Social History Update, dated 11/23/11, 1 page District

6. Report Student Functioning, dated 3/28/12, 3 pages District

7. Parent Letter, Undated, 1 page District

8. Supreme Evaluation, dated 11/14/12, 3 pages District

9. DOE Report, dated 11/27/12, 12 pages District

10. Supreme Evaluation, dated 11/30/12, 3 pages District

11. DOE Classroom Observation, dated 12/3/12, 3 pages District

12. Teacher Report, dated 12/12/12, 5 pages District

13. School Developed Goals, undated, 8 pages District

14 Not entered-Duplicative District

15 Final Notice of Recommendation, dated 4/30/13, 1 page District

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2013

I. Progress Report, dated 8/2013, 6 pages Parent

J. Curriculum Statement, undated, 15 pages Parent

K. “What is Conductive Education” Pamphlet, undated, 3 pages Parent

L. “ : Who We Are” Pamphlet, undated, 3 pages Parent

16. Therapy Evaluation, dated 11/14/12, 3 pages District

17. Social History Evaluation, dated 11/27/2012, 2 pages District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page

II. Parents’ Closing Statement, dated 2/14/14, 14 pages

III. DOE Closing Statement, dated 2/14/14, 3 pages

Footnotes

[1] While the testimony of Ms. indicated (t. 157) that the were covered under the Standing Tall tuition and the Parent indicated that the school day nurse was covered under private insurance (t. 293) the cost of services were in fact borne by the DOE through an Order of Pendency. (IHO Ex. II)