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: January 2, 2014

April 10, 2014

May 7, 2014

May 14, 2014

July 3, 2014

Actual Record Closed Date: July 14, 2014

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 2, 2014

Attorney — Student

Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2014

ESQ., Attorney for Parent — Student

Parents

District Representative, CSE- — DOE

Teacher Assigned, — DOE

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

ESQ., Attorney for Parent — Student

Parents

District Representative, CSE- — DOE

FULL NAME OF WITNESS, TITLE

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

Attorney — Student

Principal of — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2014

Attorney — Student

Teacher from (Via Telephone) — Student

CSE District Representative — DOE

By Complaint received on July 22, 2013, this matter came before me as Impartial Hearing Officer (IHO) pursuant to the 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 that the June 7, 2013 Individualized Education Program (IEP) denied the Student a free appropriate public education (FAPE) because: 1) there was a change to a 10 month program; 2) the team failed to consider independent evaluations of the Student; 3) the IEP goals were not developed at the meeting; 4) the IEP had inappropriate goals, present levels of performance, and management needs; 5) promotional criteria were not discussed at the meeting; 6) parent training is not provided in the IEP; 7) the team did not conduct appropriate assessments; 8) the team did not provide an appropriate transition plan; 9) the team failed to develop an FBA/BIP; 10) the team was improperly constituted; 11) the class size the Student; and 12) the IEP did not provide resources to make sure the Student . (Exh. A) The parent accordingly asks for tuition reimbursement for the 2013-2014 school year, compensatory education, and the cost of a neuropsychological assessment.

The matter did not resolve during the resolution period. A prehearing conference was held in this matter on September 26, 2013. 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 is girl who is eligible for services as a . (Exh. 1) She has been diagnosed . (Exh. 4)

She reads level, though there . Her sentence assembly is , and she is at the in understanding paragraphs. Her . (Exh. 1)

She has considerable . She used color coded notebooks, and will engage in She needs a private spot in the classroom at times, and will with staff. She will need extra time with writing. She has difficulty accepting constructive criticism, and will perseverate and be overly critical of her work. She will have to leave class for an extended period of time in . She is sensitive to loud, bright and busy environments. She has pushed peers, flipped her desk, and drew on her . (Exh. 1)

She went to , which did not work out well. (Exh. 4) She would elope from school and engage in aggressive behaviors resulting in suspensions. (64) She could not handle the large size of the school and the noise. (65, 70) She then left the school and went on home instruction until she went . (68-69) She did not do well School, where she would . (71) She would . (73) She was then , went back to the school with a paraprofessional, and then would . (74-76) She started . (77)

She started at , 2012. (79) The school gave her quiet places to go when she was a lot of better. (78-83) There are 5 or six children in the classroom. (86)

A by dated February, 2013 tested the Student in various domains. The assessment was consistent with earlier assessments indicating that she had trouble with “constructional” tasks and was better at reasoning tasks. She with comprehension, organizing information, being flexible with thought, inattentiveness, impulsiveness, anxiety, an overly literal approach. The recommendations were for social skills groups, “explicit instruction,” self-assessment and self-talk measures, tasks broken down, testing accomodations, involving the Student in goals. (Exh. 4)

An observation dated May 17, 2013 revealed that she responded to teacher’s questions, was . (Exh. 3)

An FBA was written for the Student dated May 9, 2013. (Exh. 5) The FBA indicates that the function of the Student’s behaviors is to self-regulate after being overwhelmed. are recommended to address these issues. A BIP written on the same date recommends counseling, advance notice of dates and assignments, removing herself from the environment, and data collection. (Exh. 6)

At the CSE review of June 7, 2013, the team , her speech report and a counseling report. (36) The parent expressed concerns about the Student’s elopement, but the District did not provide any resources to address elopement. (84-85)

The June 7, 2013 IEP recommends a mainstream setting with 12:1+1 classroom for the Student in ELA and math, with related services of counseling (2x30 individual, 1x30 group) (1x30 individual and group). (Exh. 1, 34) Management needs are repetition, verbal and visual prompting, parent training, visual cues, and verbal praise and redirection.

She was assigned . (Exh. 2) This , which is a large high school with over 4000 children. (87-89)

The parent rejected this placement and sought on June 17, 2013. (Exh. 7)

, the Student is in the “ . (119) Initially, during the 2012-2013 school year, the Student has received breaks, would check in with the social worker daily, was allowed to pace in the class. (124, 196) She is now been , whereas she was “paralyzed” by it when she entered the school. (126-128) The school uses “collaborative problem solving” wherein she works with the help of staff to validate of . (134) The class has five students in it. (138) She passed all of her classes and met her academic goals during the school year. (141) The program was 12 months long. (141) She receives counseling and speech and language services. (144) There is plan, and data was taken to determine progress.

The Student needs close attention in class. She will never ask for help directly when she is stuck on something. (183) The Student receives a lot of individualized attention, especially in math where she is weakest. (199)

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 underscored the importance of writing detailed IEPs that address all of the Student’s academic and social issues. 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)

The record indicates that this Student requires a small class size and individualized attention to make sure that she is able to function in the classroom. Previous experiences in noisy, larger public school general education classrooms have met with failure. The record indicates that the Student would be subject to extreme behaviors in a large classroom setting such as the one proposed by the District. There is nothing in the record from anyone who knows this Student to credibly rebut the assertions of the school staff. The District’s brief presentation did not meet its burden to show that the Student would gain educational benefit from the proposed program and placement. I agree with the parent that the decision to return the Student to a large classroom setting after the Student’s performance in middle school was not reasonably calculated. See Sudbury v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp.2d 254 (D. Mass 2010); Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006).

As a result of the foregoing, I agree with the parent that the District denied the Student a FAPE through its March 28, 2012 IEP.

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).

The Student functions mostly at grade level, though there are some deficits in math. However, the record shows that the Student engages in outbursts during class. The Student needs a very small classroom setting with individualized attention and an opportunity for breaks, counseling, and direct and regular intervention with a social worker to progress. She needs a quiet, calm setting. has put in place these special education interventions to deal She was assigned to a small class, in a small school. She met several times a day with a social worker. The record shows that the Student progressed considerable at the school in terms of social and emotional issues and is now able to go to school and participate fully. The Student has also progressed in terms of goals and in her report card. The parent prevails 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 parents’ 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 shows that the parent provided the District with access to the student and generally cooperated with the IEP team. The parent prevails on the third criterion and is awarded tuition reimbursement for 2013-2014 .

The parent also seeks reimbursement for the evaluation of the Student dated from the neuropsychologist Ilene Solomon. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect. 200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense 34 C.F.R. Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007). However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).

Here, the District did not present a closing statement on this issue to show that it conducted an evaluation of the Student that was appropriate. Further, there is nothing in the record to suggest that the District conducted any complete assessments of this student prior to the neuropsychological assessment at issue. Accordingly, I will order the relief as requested by the parent.

ORDER

As a result of the foregoing, it is hereby ordered that the New York City Department of Education shall reimburse the parents for:

1. Tuition paid for the 2013-2014 school year upon presentation of proof of payment to the school.

2. The cost of the by Dated: July 28, 2014

Michael S. Lazan, Esq. gc

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer MSL: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

PARENT

A Hearing Request, 6/7/2213, 9 pages B Notice for IEP Meeting, 5/29/13, 2 pages C Final Notice, 6/11/13, 1 page F Parent Correspondence to DOE, 2/13 - 7/13, 16 pages G Evaluations by Yerman, various dates, 7 pages H Evaluations by Elsera, various dates, 12 pages I Evaluation, 1/19/12, 5 pages J Evaluation by Solomon, 1/13 & 2/13, 22 pages K Report, 12-13, 16 pages & objectives, 12-13, 16 16

5 pages M Report, 12-13 N Card Comments, 12-13, 3 pages O Contract Affidavit of Money Paid & owed by the Parent,

13-14, 3 pages P Parent Payment , 13-14, 4 pages Q Income Tax Returns, 2013, 3 pages R Class Schedule, 13-14, 1 page S & First Quarter Report Card, 9 pages T , 10/15/13, 1 page U Parent Letter, 4/16/13, 1 page 30 30 V 13/14 Card and Goals, 7 pages W BIP and FBA, 10/1/13 and 4/7/14 7 pages X Annual Review and Report, 8 pages, 4/14 AA Annual Review, 16 pages

DEPARTMENT OF EDUCATION

1 IEP, 6/7/13, 19 pages 2 Final Notice, 6/11/13, 1 page 3 Classroom Observation, 5/17/13, 1 page 4 N Evaluation, 4/16/13, 13 pages 5 FBA dated 6/19/13, 2 pages 14 14 6 BIP, 5/9/13, 1 page 14 14 7 Ten-day Notice, 6/17/13, 2 pages 14 14