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 15, 2013

September 4, 2013

October 16, 2013

January 21, 2013

March 24, 2014

Actual Record Closed Date: September 2, 2014

Hearing Officer: , Esq.

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

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4, 2013

Attorney — Student

Associate, Observing — Student

Parents

Chairperson's Designee — DOE

Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2013

ESQ., Attorney, — Student

Parent/Father — Student

Educational Director, (Via Telephone) — Student

, (DID NOT TESTIFY)

For the Department of Education: , Chairperson's Designee, Committee On Special Education Seven , Lead Teacher, (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 21, 2014

Attorney — Student

Parents

Educational Director, — Student

(Via Telephone) — Student

(Via Telephone) — Student

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2014

Attorney — Student

Parent (Via Telephone) — Student

Parents

(Via Telephone) — Student

CSE Chairperson's Designee — DOE

By appointment dated July 23, 2013, the matter came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The Complaint alleges, inter alia, that the District’s Individualized Education Program (IEP) dated January 29, 2013 was not based on sufficient evaluative data; that the IEP team was improperly constituted; that there was a refusal to provide the student with ; that there was a refusal to provide the Student Student; the goals are vague, not objectively measured, and inappropriate; the IEP was predetermined; the IEP does not require parent training and counseling; and the IEP does not (Exh. A)

The matter did not resolve during the resolution period. Hearing dates were then scheduled, but there were multiple adjournment requests in this case. Adjournment requests were made by both sides. No objection was made to any of the adjournment requests.

Upon the application of the parent, District, or jointly, the parties moved multiple times to extend the timelines in this case. The reasons were witness availability, parent availability, and to allow the IHO to write a decision in this matter. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were an appropriate matters for extension. Especially given that this case involves an earlier school year, there was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 1)

FINDINGS OF FACT

The Student boy who is eligible for services as a (Exh. C)

He has . (Exh. C) He . (Exh. C, 120) He is not on . (120)

His . (Exh. C) He has . (293)

He has significant .” (Exh. C) He has a (Exh. C) He implemented on a daily basis to increase his level of activity during the day. (Exh. C, 123)

He is able to . (120)

He requires a token system to

He needs instruction to learn. (124)

A was conducted of the Student on December 19, 2011. (Exh. O) An informal assessment was made

The Student made significant gains in visual performance. (Exh. C) He made progress . (Exh. C) He used in 2012-2013. (Exh. C) Much of his learning is . (122) The Student also made gains in . (Exh. C) improved during this year. (Exh. C)

An observation was conducted of the on December 18, 2012. (Exh. 3) The Student was observed working with a making progress and he was able to respond to correction and guidance. (Exh. 3)

An IEP meeting was conducted on January 29, 2013. (Exh. C) The meeting lasted one hour or so. (293) At the meeting were the parent, special education teacher the entire day, as did the parent. (41, 294) was discussed at the meeting. (294) The District disagreed because there is individualized instruction in the classroom. (33-34) The IEP recommends a highly structured and supportive special class that can address the needs of students . (Exh. C) The IEP (Exh. C) The IEP recommends a classroom with related services of management plan, and a crisis management professional. (Exh. C)

The goals in the IEP were developed for the (27, 42)

had been developed in . (Exh. 4) The FBA stated

Interventions suggested included a visual schedule, a token system, time for breaks, a sensory diet, reinforcement of other reinforcers. (Exh. 4) A second IEP meeting was held on April 10, 2013 in regard to busing. (28)

The parent visited the proposed school with his current teacher, and saw students sleeping at . (297) The parent considered this program and placement. (298)

The parents rejected the placement by letter dated June 25, 2013. (Exh. D)

is school of 16 students who receive services for a 12 month school year. (109) All the children are . (110) The school meaning that they will analyze what the Student’s to be made in the environment, and then take data to determine if the changes are successful. (112-113) The school offers parent training. (116) There are small classrooms with no more than 5 children in the room at any time. (118) The classrooms have specific work areas for each child, there is an area for group instruction, there is an occupational therapy sensory gym, and there is a . (118)

The school provides Students. (124) They employ “ ,” meaning that the correct response is . (127)

was implemented at the school. (Exh. F) has been . (142)

The school provided the Student . (Exh. G)

The Student receives fast past, instruction throughout the school day. (124-125) His classroom has one lead teacher, one , and three other teachers all of whom have at least a bachelor’s degree. (132)

He receives 5x60 and 5x45 at the school. (128-129, 299)

He has made progress during the school year. (137) has (152) There has been a . (143) have been reduced. (143) There has been a . (143) He is making . (155) His . (300)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies a) impeded the child'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 child, or c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The Second Circuit has recently underscored the importance of writing detailed IEPs that address all of the Student’s . The court indicated that “parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) cert. denied, 2013 WL 1418840 (U.S. June 10, 2013)

Courts have held that certain , and in particular younger can be denied a FAPE if they have demonstrated good progress with intensive, and the District eliminates that therapy from the IEP. In M.H., a of in preschool. There was a significant amount of evidence in the record that this program was providing the benefit, including reports from the pre-school and a report from a physician. The Student was recommended for the very same and the very same educational placement that was recommended here. The parents observed the placement, where it appeared that the children and the school offered only minimal . After the administrative review, the District Court found for the parents, finding that the program and placement did not provide sufficient The Circuit affirmed, in a , indicating that courts should carefully consider issues relating to methodology. 685 F.3d at 252-253; accord P.K. and T.K. v. New York City Dep’t of Educ., 819 F. Supp.2d 90 (S.D.N.Y. 2011)(where kindergartner needed 1:1 ABA to gain educational benefit, and District eliminated ABA services from IEP, FAPE denial resulted).

Here, the IEP does not provide even some of the that was referenced by the staff. The IEP also does not provide for a number of other services that has recommended, , fast paced instruction, or

Parenthetically, this IHO can understand a District’s reluctance to provide individual teachers to students. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist.142 F.3d 119, 132 (2d Cir.1998) School Districts are not required to "maximize" the potential of students with disabilities. Walczak, 142 F.3d at 132. Still, given 1) credible reports of that the Student needed ABA teaching; 2) that there was no reasonably contemporary assessment to the contrary for the CSE to review; 3) that the District did not present any witness with any expertise or knowledge of the child to support its case that a paraprofessional would suffice; 4) that the District’s own observation suggests that the Student attention; 5) that the District did not consider the possibility of providing even some instruction to this Student for a portion of the school day, I find that the District did not create a program that was tailored to meet the “unique needs” of this particular child. Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).

I should note that the parent was not provided with parent training and counseling on the IEP, compounding the problems with the program and placement. R.E., 694 F.3d at 191. New York State regulations require that parent training and counseling assist parents of students with autism in understanding the special needs of their child, provide information about child development, and help parents to acquire the necessary skills to support the implementation of the IEP. 8 NYCRR Sect. 200.13, 200.1(kk). These parents have testified that they would benefit from The Circuit has held that Districts are “accountable” for the failure to provide parent training and counseling the IEP. R.E., 694 F.3d at 191.

Given the above, I find that the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.^[1]

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

It has been held that a unilateral private placement cannot be regarded as proper under the IDEA when it does not, at a minimum, provide some element of special education services in which the public school placement was deficient. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y. 2010)

Here, the parental placement does provide services that meet the Student’s special education needs. In particular, the program provides the Student with individualized , which has provided the Student with in the past. The school also provides , appropriate related servics, . This plan has succeeded in reducing the student’s out of seat have been reduced. There has been a reduction . Receptive language has grown, and . He is making progress with the letters of the alphabet. His prereading skills have improved.

Given the above, I find that the parental placement meets the standard in Gagliardo, and the parents prevail on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect.

1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.

The record establishes that the parents provided the District with notice of the unilaterally placement, visited the proposed school, attended meetings, and generally cooperated with the District. Under the circumstances, I cannot find that the parents were “disingenuous” about their interest in the placement. Compare J.S. v. Scarsdale Union Free School Dist., 58 IDELR 16 (S.D.N.Y. 2011)(testimony of parent indicated that they were not seeking an educational placement; this and other factors resulted in reduction of award); A.H. v. New York City Dep’t of Educ., 652 F.Supp.2d 297 (S.D.N.Y. 2009), rev’d on other grounds, 394 Fed. Appx. 718 (2d Cir. 2010)(it was clear the parent had decided not to accept the District’s recommendation before the process was complete).

Accordingly, I will award the parents an award of tuition for the 2013-2014 school year. Dated: September 16, 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 Complaint, dated 7/19/13, 8 pages B Findings from , 20 pages, dated 12/20/12 C IEP, dated 1/29/13, 26 pages D Letter from Parent, dated 6/25/13, 3 pages E '13-'14 IEP, 28 pages F Student , dated 8/13, 5 pages G , 7/13 1 page H '13-'14 OT Goals, 3 pages I , dated 6/7/13 11 pages 12 13 J IEP Goals, dated 6/1/13, 7 pages K Progress Report, dated 5/13, 4 pages L , Dated 6/1/13, 3 pages M Items dated 6/1/13, 16 pages N Incomplete Items dated 6/1/13, R, 56 pages O , dated 12/13/11, 3 pages P Attendance Card, dated 8/16/13, 1 page Q Proof of Payment, dated 7/1/13, 2 pages R Tuition Affirmation, dated 8/16/13, 1 page S '13-'14 Tuition Contract, 3 pages T '13-'14 Individual Schedule, 1 page U '13-'14 Classroom Profile, 1 page V Updated Attendance Record dated 10/15/13, one page W Attendance Card, dated 12/2/13, 1 page X Attendance Card, dated 1/8/14, 1 page Y Report, dated 12/20/13, 6 pages Z Updated, dated 12/20/13, 2 pages AA Progress Report, dated 12/13/13, 3 pages BB IEP Goals Updated, dated 12/5/13 CC Letter from , 1 page

DEPARTMENT OF EDUCATION

1 IEP, dated 1/29/13, 28 pages 2 IEP, dated 4/10/13, 28 pages 3 Observation, dated 12/18/12, 2 pages 4 , dated 1/29/13, 3 pages 5 , dated 6/22/12, 9 pages 6 FNR, dated 6/14/13, 1 page

Footnotes

[1] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.