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 20, 2013

June 3, 2013

January 20, 2014

July 2, 2014

September 5, 2014

Actual Record Closed Date: October 2, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2013

Attorney — Student

Father — Student

Stepfather — Student

DR., CSE Chairperson Designee — DOE

CSE Teacher Assigned (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2013

Attorney — Student

Father — Student

Step-father — Student

DR., School Psychologist (Via telephone) — Student

DR, CSE Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2014

Attorney — Student

Father — Student

DOE Representative — DOE

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

Attorney — Student

CSE District Representative — DOE

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

Attorney — Student

Parents

School Psychologist, (Via Telephone) — Student

District Representative — DOE

I accepted this matter on or about September 19, 2013, after several hearing officers recused themselves. This matter was heard on May 20 and June 3, 2013 by another hearing officer, who recused himself after the last day of hearing. The aforementioned hearings were held pursuant to the Individuals with Disabilities Education Act (IDEA). The timelines were extended for the parties to resubmit their evidence, so that I may review the evidence along with the transcripts in preparation to render a final decision on the merits. Subsequently, I held hearings on January 29, July 2 and September 5, 2014 to complete the record. . The hearing dates were spread out due to the parents’ attorney’s illness and the unavailability of the father. The timelines were also extended to allow the parties to submit closing briefs; the DOE did not submit a closing brief. Appended to the record are lists of persons in attendance and documents submitted into the record.

BACKGROUND

The student, hereinafter referred to when the Committee on Special Education (CSE) convened on June 14, 2010, to develop an Individualized Education Program (IEP) for the student. The CSE classified the it recommended a general education program, Special Education Teacher Support Services (SETSS) with related services of hearing education, 2x60:1 for the 2010-11 school year. The parents filed their Due Process Complaint (DPC) on May 2, 2012.

The parents allege that the Department of Education (DOE) failed to offer their son a “free appropriate public education” (FAPE) on procedural as well as substantive grounds. The parents are seeking tuition reimbursement, for at for the 2010-2011 school. The DOE argued that a FAPE was proffered and that they created a meaningful and valid IEP.

THE DEPARTMENT OF EDUCATION’S CASE

The District proffered 4 documents to be admitted into the record and presented one witness, Mr. . He testified that he is a dual certified teacher and that he participated in the student’s June, 2010 IEP meeting. He discussed his responsibilities as a teacher assigned at the CSE, which includes participating in at least 150-200 IEP meetings. He identified the participants at the IEP meeting and noted that the father and that from the , participated by telephone. They remained on the telephone for the full meeting. (T. 1214; Ex. 1)

He reviewed the IEP; he stated that the student’s and . The student was in the grade at the time of the review. His academic management needs were repetition, redirection and allowing ample time . His social emotional functioning was age appropriate. The student’s out of the classroom. (T.17-20) He discussed the three goals on the IEP and deemed them appropriate for the student’s skill levels and needs; also he concluded that the hearing needs goal was appropriate. (T.25-26; Ex.1)

He did not recall anything specifically from the meeting, which was approximately three years ago. However, he discussed his standard practice and procedures that are supposedly always followed for IEP reviews. (T. 26-29) He explained in detail how the CSE conducts its hearings, after obtaining the information, for the various parts that comprise an IEP, from beginning to the end, then the CSE team turns to the parents to obtain their position on the information gathered and to address any concerns or problems the parents may have. (T. 29-30; Ex. 1) He noted that if additional information was required to make a recommendation; they would adjourn to get additional information. The team recommended a general education He did not recall any objections to the recommendation or classification. (T. 32-34)

On cross-examination, he admitted that he and the other teacher who participated at the IEP meeting were not teaching at the time in a public school system and could not have taught the recommended program because of their positions as teachers assigned to the CSE. (T. 34-36) Mr. explained that the goals are created after the current description of the academic functioning levels of the student are established and those levels form the baseline of where to start with the student.( T.40-42)He admitted that the reading goal did not indicate how much time was allocated to complete the goal; it failed to specify any time period in which to complete the goal. (T. at 43)

THE PARENTS’ CASE

The parents’ first witness was , a state certified school psychologist; he is also state certified as a special education teacher. In addition, he has a third master’s in educational remediation with a is one of the founding members of the school; Dr. has for 15 years. He has had many different roles at the school, for the 2010-2011 school year; his primary role was that of a mainstream teacher of English and history. Also, he worked in the . In addition, he worked as part of the school based support team, which entailed coordinating with , related service providers as well as working with the other entire faculty. He does observations, consultation counseling. (T. 52-55)

He testified that he , in the student’s sophomore year, 2008-2009 school year. He worked very closely with the student and continued to have contact with him for the following two years, until he graduated. He noted was created to assist those students who required a lot of supports. Those students are integrated into mainstream classes with special education supports. The workload is modified, various accommodations are made and the students are provided with a mentor. Each student is assigned a mentor; they meet with the mentor in the early morning and then again in the later part of the day. Dr. was not during the 2010-2011 school year; he was aware of the mentor’s work support team. The mentor had taught him how to approach reading a text book and identifying the salient parts. He such as goals, assignments, executive . The student would procrastinate; he would lose things and had some anxiety issues. He was and had and the psychologist would counsel him on . (T. 55-58)

He opined that the small classes there was not a lot of ambient noise and he was better able to hone in on conversations. The student had ; he . (T.at 61) The psychologist explained that the difference program for students with learning disabilities and the class size was even smaller. (T. at 67)

On cross-examination, he stated that he was not directly involved the 20102011 school year, his senior year. He did not mentor him or teach him; he would chat time to time. It was not a formalized relationship after his sophomore year. (T.75-76) The psychologist reviewed the student’s schedule and stated that nothing on the schedule indicates the class has been modified. Sometimes it is indicated when classes are modified. (T. 80-82; Ex. E) Ms. a was his primary support person doing his junior year; she provided academic support, organizational support and counseling support.(T. at

87) He , the accommodation section; he stated that the student did not . (T. at 94) On redirect, he noted that met with the student daily and that two of his teachers met with him on a regular basis. The schedule did not indicate all of the support the student received; it noted only a few sessions. (T. 97-98) He testified on cross-examination, that he did not know whether the student Mr. , the student’s step father, However, he did not sign the the student’s father signed it and he was in agreement. He stated that the student made a dramatic turnaround in his academic performance and he was a senior and graduated with an academic and doing well. (T.109-112; Ex. B)

On cross examination, he stated that he was in the room when the June 14, 2010 IEP meeting took place; he did not indicate to anyone that the enrollment contract had few days earlier. He confirmed that he had paid the full tuition for the 2010-2011 school year. He stated is a special education school. He believed that all of the student’s courses were modified and that his classes were special education. He explained him with an unusual degree of one-to-one education and feedback. The classes are designed to address students’ special education needs. (T.113-116; Ex. B)

testified that she was the student’s mentor during his senior year. She is a certified psychologist and also has a Master’s in education; she has worked for eleven years. She wears different hats at the school, she teaches a couple of courses, and she provides counseling to students and is . She described as a program that evaluates students in terms of develops a customized individual schedule for each student based on their individual needs. The typical student in the program is one who could not handle mainstream-level classes without support. The support may be provided within the classroom or without depending on the student’s profile. Typically the students were placed in smaller classes, the work was modified and the class moved at a slower pace than the typical general education class. The students are provided with all accommodations indicated on the IEP. The school

She described the support she provided ; she worked with him on any subject or matter that he with. She and all of his teachers. She including his strengths and weaknesses to each of his teachers and strategized with them on the best methods to teach him. He was given preferential seating in all of his classes; the teachers were instructed when they asked him a question to pause and give him time to process the information. She met daily with at least one of his teachers to get input on the student’s performance. Also, sometimes she would get the teacher’s notes on a lesson ahead of time; she would pre-teach the student based on teacher’s notes. She helped him on assignments and provided him with counseling; counseling was not on his IEP. She assisted him with his transition from high school to college. She stated that he was a very bright student; some of his ; she worked with him in developing organizational skills and taught him strategies and techniques to help him with time management. (T.149-151)

She noted that the school had approximately 150 students and that all classes run at the same time. There was not much hallway noise. She who was highly motivated and was ; he refused to wear the FM unit. He received . He graduated with an academic degree and continued on to college. She opined that if the student had attended a large school, the background noise would She stated that her school was an appropriate placement, the small school size, the support and the student body was appropriate for him, there were no bullying issues in the school. (T. 152-154 and 155156)

On cross-examination, she testified that she met with the student four times a week; each session was for 45 minutes. She would confer with at least one of his teachers daily. All accommodations listed on his IEP were provided to the student. The class size varied from seven to twelve students with one teacher and a para. (T. 163-166)(Ex.1) He was never , but in his senior year she provided him with counseling.(T. at 169) She explained a mainstream track for students with learning disabilities and then there is the is for students who are capable of handling mainstream classes if they receive additional support. The program creates an individualized schedule for the student after assessing the student and makes the necessary accommodations for the student to be successful in the mainstream classes. She was assigned and she would provide that extra support that he needed to become a good student. (T. 172-173 and at 176)

The father was the final witness for the student. He stated that he and his son are close and that he attended IEP meetings. His Notice of . He did not had visited the school previously when it had been recommended. He believed that it was not an appropriate placement. The school was huge; it had approximately four thousand students. The noise level in the school was so not be able to concentrate. His son did not find was insufficient to be of any constructive use. the class work. His son did not use or at home. (T.179-182)

His son did very well academically during his senior year; he received He was able to concentrate with and with him on organization skills and time management skills was a big . The DOE provided hearing education services after school, the services were helpful. He believed that the hearing services through his senior year provided cooperated with her. (T. 183-185)

During cross-examination, the father testified that his from his sophomore year through his senior year. Prior to that he attended another private school which had about a thousand students; it was too large and he didn’t do well. He had , it was too big. He signed the contract and the tuition has been paid in full. (T.188-191and at 192-193) (Ex. F)

FINDINGS OF FACT AND DECISION

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 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 comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).3 An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is 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 to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).

The Second Circuit has determined that "a school district fulfills it substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379 ; Walczak, 142 F.3d at 132).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 37071). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).

I have reviewed all the testimonial and documentary evidence in the record. In the instant matter, the parents have alleged that the DOE has failed to provide their son with a FAPE on procedural and substantive grounds. Their primary arguments are that the IEP team was not duly composed; the class size and placement proffered were too large. The record supports the parents’ position. The parties agree that the June 14 2010 IEP is controlling for this matter. The parents specifically argue that the recommended general education program the proposed were inappropriate and could not meet their son’s special education needs. (T.114-116; at 155 and 191-192)

The IEP team was not duly composed as it lacked adequate participation by a general and special education teacher. Under the IDEA, the CSE must include “not less than one regular education teacher of such child if the child is, or may be, participating in the regular education environment,” and “not less than one special education teacher of the student.” (8 NYCRR 200.3(a)(1)(ii),(iii)). Those teachers should be ones “who [are] or may be responsible for implementing a portion of the IEP.” (34 C.F.R. Part 300, App'x A, Question 26. See SRO No. 13-165 at 8-9.)

signed in as the special education teacher at the IEP review signed in as the general education teacher. (T. at 14) He admitted that had been working as teachers assigned to the CSE for several years. There were no teachers at the meeting who were actually working as classroom teachers in a public school or who were expected to implement a portion of the student’s IEP. had taught in (Tr. 34-35) The CSE failed to include both a special education and general teacher who met Federal and state law mandates. In addition, the CSE failed to include a parent member, as required under state law, unless the parent provides a signed waiver. (8 NYCRR 200.3(a)(viii) (T. at 38)

Under IDEA, procedural violations shall render an IEP legally inadequate, if the procedural errors (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 and (c) caused a deprivation of educational benefits to the child. (20 U.S.C.§1415[f][3][E][ii]; see 8NYCRR 200.5[j[[4][ii]

Here, repeatedly admitted that he had no first hand recollection of what occurred at the review, he spoke in terms of generalities and procedures that are supposed to be followed. (T.29-31) The absence of the appropriate teachers and a parent member resulted in having nobody on the team who was able to adequately speak to the appropriateness of the general education program . The failure of the CSE to have members who can clearly speak about the recommended program infringed upon the parents’ ability to participate in the IEP process as nobody on the team was knowledgeable about the program or able to explain how the program would address the student’s special education needs and what supports would be in place to help him navigate a large class size in a huge school environment. This resulted in a loss of educational benefit a program was recommended that would not address his individual needs. The aforementioned procedural violations resulted in a denial of FAPE.

Next, I find that the general education would not meet the student’s special education needs. The record shows that the student presented with a ; he was several grades . He . (Exs. 2 and 1) Ms. testified that he had . He required additional time to process information. She spoke to his teachers to allow him time to process information if they asked him a question. (T.149-151) The student was , it impaired his ability to concentrate. (T. at 155 and at 181)

Based on the aforementioned, it is clear that the student required a small classroom setting in a small school environment, in order to obtain the substantial amount of academic and emotional support that he required to be successful in school. Ms. testified that she provided , even though it was not mandated. She explained in detail all of the various how he performed each day in class by conferring daily with at least one of his teachers, the individual sessions were dedicated to help him with assignments, organization and time management.(T. 148-151) Mr. both testified that a small classroom was necessary, in .(T. 64-64 and at 148) The small class setting enabled him to stay focused; it had a low amount of ambient noise and there was ample support for one on one instruction in the classroom. As such, I also find that the general education class with SETSS would not meet the student’s special education needs and indicated above, I find that the IEP developed by the DOE for the 2010-2011 school year resulted in a denial of FAPE.

As to the parents remaining arguments, I find that they do not rise to the level of a denial of FAPE.

I find that the parents’ placement at was appropriate. It was a small school with approximately 150 students. It is a general education school with different tracks, it has mainstream classes, was specifically designed for students with learning disabilities and then it has . (T. 170-171) was developed to help those students who required a lot of support. “They are integrated into mainstream classes or inclusion classes with special education supports... They have many workload modifications, accommodations, such as extended time, scaffolding, multi-modal approaches…They have a mentor.” (T.at 55-56)

Here, the student was placed in small classes ranging from seven to twelve students, four days a week he had 45 minute individual sessions with his mentor. The mentor was there to give him support academically and emotionally. testified was assessed to ; a customized individual schedule was developed for the student. “We made sure that his classes were small, and we made sure that the teachers were educated as to how to meet his needs within the classroom. And, in addition to that, he received academic support.” (T.172-173) She worked with him to review materials, she pre-taught him; she taught him strategies to address his weak organizational and time management skills. She provided in any matter that he had difficulties with.

Based on the foregoing, was a placement that was “specifically designed to meet the unique needs” of the student. Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356 (2d Cir. 2006)

There is nothing in the record to show that the parents were anything other than cooperative. The father had visited the proposed school; the parents attended IEP meetings. (T.179-181) He testified that he considered but found it be inappropriate, it could not meet his son’s needs. (T. at 191) The tuition is reasonable and the cost is not being contested. I find that the equities favor the parents.

ORDER

The Department of Education shall fully reimburse the parents, for the student’s tuition at the 2010-2011 school year, upon reasonable proof of payment.

Dated: October 17, 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 5/2/12 (2 pages) B School Contract, dated 6/7/10 (2 pages) C Description, undated (3 pages) D Student’s School Attendance, undated (1 page) E Student’s School Schedule, undated (1 page) F School Affidavit, dated 2/8/11 (2 pages) G Smart Tuition Agreement, dated 1/22/11 (2 pages)

DEPARTMENT OF EDUCATION

1 IEP, dated 6/14/10 (11 pages) 2 Evaluation, dated 6/3/08 (10 pages) 3 Student Progress Report, dated 6/8/10 (1 page) 4 Final Notice of Recommendation, dated 7/6/10 (1 page)