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 31, 2014

June 10, 2014

June 20, 2014

Actual Record Closed Date: July 29, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2014

Attorney — Student

Parents

Attorney — DOE

CSE Representative — DOE

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

Attorney — Student

Parents

Agency Attorney — DOE

School Psychologist, Committee on Special Education 8 (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2014

Attorney — Student

Parents

Co-director of (Via Telephone) — Student

Teacher (Via Telephone) — Student

Attorney — DOE

This matter came before me on January 31, June 10 and June 30, 2014, pursuant to the Individuals with Disabilities Education Act (IDEA). The timelines were extended each hearing day, to accommodate witnesses’ testimony and closing briefs. Appended to the record are lists of persons in attendance and documents submitted into the record.

BACKGROUND

The student hereinafter shall be referred t The Committee on Special Education

(CSE) convened on May 1, 2013, to develop an Individualized Education Program (IEP) for the student, the time. The CSE classified the impaired (S/L). It recommended class in a community school, with related services of times a week, 40 minutes sessions and twice a week, for 40 minutes. Also, the CSE recommended counseling services, once a week, for 40 minutes. The parents filed their first Due Process Complaint (DPC) on October 30, 2013, case number 148354. In April, 2014, the parents changed attorneys. The newly retained attorney filed a new DPC on April 10, 2014, Shortly, thereafter, I received written notice per New York State regulations 200.5(j)(3)(ii)(a) to make a written determination on consolidation. After a lengthy discussion with the parties via telephone, I granted the parents’ request to consolidate the two cases. The district’s attorney objected.

The parents alleged that the Department of Education (DOE) failed to offer their daughter a “free appropriate public education” (FAPE) on procedural as well as substantive grounds. The parent is seeking an order requiring the district to provide reimbursement for her child’s tuition at ) for the 2013-2014 school year. The DOE contends that a FAPE was offered, is not appropriate and that the equities here favor the DOE.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE presented one witness, a New York State certified school psychologist, with ten years teaching experience, primarily general education. She explained her standard practice that she follows when conducting an IEP meeting. She begins with the first part of the IEP and proceeds methodically through the rest of the IEP, section by section. She solicits responses from the professionals participating as well as from the families, so that everyone has an opportunity to express their concerns. She conducted a psychoeducational evaluation of the student on January 3, 2013 because it was a triennial review. She participated in the student’s May 1, 2013 triennial review and the main report that she relied on during the , her evaluation and a letter from the student’s doctor. At the time of the review no one raised any issues regarding the teams’ description of the student. (T. 16-19 and 20-21)

The student’s classification had been was a discussion regarding the student’s medical history, she referenced the IEP which which were not well controlled. Also, the child was taking medicine at home; she did not be taken at school. She stated that the team had a doctor’s note which addressed the child’s needs during school. The letter did not indicate needed a one-on-one paraprofessional for her epilepsy. She did not recall if her mother or anyone indicate that she needed a paraprofessional. The medical alert section on the IEP did not mention epilepsy because it did not preclude her from participating in a ten month program at school. It was noted in the present levels of performance page in the IEP. Based on the information available to her, she did not believe the student required a one-on-one para. She explained in detail the factors that she took into consideration in concluding that a para was not needed, such as the student was able to her way around the school and was able to go out at lunchtime into the neighborhood. Also, there ; she concluded that the student did not need an adult with her throughout the school day. (T.21-24; Exs.3 and 5)

The FM unit is listed under assistive technology and not management needs because it is a service and listed under a different section. Management needs typically address matters such as teacher redirection or student benefits from scaffolding. Ms. discussed some of the student’s goals; she stated that the student’s academic achievement, functioning performance and learning characteristics are all information obtained directly from the student’s classroom teacher. The classroom teacher works with the student every day, knows the materials covered and provides estimates of the student’s functioning and based on the classroom teacher’s input the broad annual goals and management needs are developed. The goals come directly from the teacher and if the teams thought additional goals are warranted then they are included. She stated that the teacher’s input over the phone is written up on the Smart Board so that the parents can see the information that’s being put in the IEP. Also, she noted that there is a section of the IEP that is dedicated to identifying the parents’ concerns regarding their child’s academic development, functioning needs and any other needs. There is nothing in that section that shows either the parents or teacher voiced any objections to the goals as set forth in the IEP. She reviewed some of the goals and explained in detail the nexus between the goals and the teacher’s input. The goals are a reflection of the teacher’s input as well as the parents’ concerns; the goals are drafted specifically to address the student’s needs. She opined that she believed the goals were appropriate for the student. (T.25-28; 29-31 and 32-33) (Ex. 3)

The psychologist spoke about the various factors and options that the team considered in their continuum of service before selecting a program. After weighing the different options she concluded that the student’s needs would best be served in a small group setting with a teacher and a paraprofessional. In addition, the school would have to have as noted in the IEP. She believed that 10 month program was appropriate; the student does not have any significant needs that would require a 12 month program and there was no issue of regression when she’s not in school. The small group is good for her student was also in a ten month program at . She recalled a discussion regarding a specialized school; the mother and the child’s neurologist had written a note recommending it. The student had made progress, she expected her to continue to do so, and there was no reason to place the student in a more restrictive program. (T.35-37; Ex. 3)

The team recommended occupational therapy, twice weekly, on an individual basis, because the student needed help using visual aids and organizing her information and other factors indicated to her a real need ( was recommended once weekly to improve her ability to and further support her independence. was recommended four times a week in a group to address her pragmatic skills. The level of services was appropriate for her needs and the team was mindful that the student would be pulled out of class seven times a week to receive all of her mandated services. She noted was not delivering the student’s services as mandated on her IEP. She opined that she believed the recommended program was appropriate and that the student would make progress in the program. She did not receive any information from the parents or relating to the student after the IEP meeting. (T. 37-40 and at 41) (Ex. 3)

On cross examination, Ms. acknowledged that she did not observe the student for the May, 2013 IEP review. She stated that her recollection of the review centered primarily on the conversations and the that both the parent and the teacher objected to the recommendation and she did not change the recommendation. (T.42-45 and at 46) She stated that the team explained to the parent why they were making their recommendations. The psychologist stated that she had never seen the student in class setting. She further acknowledged to the best of does not provide OT and noted that literacy class or math class. (T. at 49 and at 51) On re-direct she stated that it is her practice to memorialize in the IEP any objections or concerns voiced by the parent or school in the parent section. She that she conducted on January 3, 2013 is referenced throughout the May, 2013 IEP. Notwithstanding the parent and schools objections and concerns she and the other DOE participant felt that the program recommendation was appropriate. (T. 52-54) (Exs. 3 and 4)

She stated that the reason the medical alert box was not checked was because the child’s was not a situation that required day to day nursing; it was not an ongoing concern. Her medical needs were addressed in another section and it was noted that the student’s class should be in close proximity to the school nurse. However, she did not know where the nurse’s office was at the proposed placement. (T. 55-57) On re-cross she stated that a community school was appropriate as opposed to a D75 school because the child’s epilepsy did not preclude her from attending a regular school. Furthermore on redirect she stated that there was no indication from the parent, school or otherwise that the to participate in school activities. (T. at 59 and at 61)

Ms. testified on the second day that there was no parent member available at the time of the IEP meeting and that it was discussed at the meeting. The parent agreed to proceed without a parent member. The psychologist stated that she has permanent state certification as a general education elementary teacher. She noted , who participated as the DOE’s general education teacher held dual certification. She explained that the omission of the school, in the section entitled Special Education Program/Services on page 3-8, was a clerical oversight and that the recommended program was listed under another section. The recommended program was listed under Other Options Considered on page 3-13. She stated that the student’s management needs are determined by the input from the student’s teacher and parent. The management needs are drafted as they are voiced by the teacher and parent on a Smart Board. (T.95-97) (Ex. 3)

She further explained that the fact the student is standard assessment is related to her promotional criteria. On her IEP, it indicates that she must meet 60% of the 7th grade in English Language Arts and math. “The standards must be mastered as evidenced by student work, teacher observation, assessment/grades, and attendance.”(Ex.3-13) She would not be eligible to participate in an alternate assessment if she was classified as intellectually deficient, in a 12 month District 75 program. She is able to participate in that as a student in a community school. The goals on the IEP are written for the core subjects of math, reading and writing and for her related services. The reading comprehension goal indicates that the criteria amounts to 70% based on the student being able to perform a specific task, seven out of ten trials successfully. If she is able to meet the 70% criteria then the goal is deemed mastered. (T.98-101) (Ex. 3)

On cross-examination that Ms. was a member of the CSE 8 team for at least six or seven years; Ms. did not teach during that entire time. There was no expectation at the time of the IEP meeting that she would be teaching in a class room during the 2013-2014 school year. (T. 102-104) There was no one present at the IEP meeting who was teaching in a DOE class room. The declination form is used when a parent consents to holding a meeting without a parent member; she did not believe that the CSE had that form signed by the parent. She confirmed that the reports used at the review were ,a letter report. She noted that report dated May 24, 2012 was not reviewed at the May, 2013 IEP meeting, it was not new information and had been reviewed at the previous IEP meeting. The CSE does not re-review information that has already been covered and documented in an IEP. In addition, she did an academic update; new social and was garnered. The cognitive information reported in the 2012 neuro psych was still valid and current, which is the reason that she did not retest the student in the cognitive area. (T. 107-110; at 111 and 114-115)

She acknowledged that she recalled there was some discussion regarding the possibility of Central Based Support Team (CBST); it was not listed under other options considered. She stated that it was explained to the parent why the CBST was not recommended as an option and felt it was not necessary to document it on the IEP. There was at the meeting and none were consulted for the input on their respective goals in the IEP. (T. at 126) She and Ms. typed up the IEP and they could not make any changes on it, once it’s finalized. If they became aware then they would have to notify a supervisor to make the necessary revision. She was not aware if any clerical errors in this IEP were subsequently corrected. (T.136-137) She stated providers refused to provide the DOE with related service goals and so the CSE was forced to draw them up. (T. at 146)

On re-direct, the psychologist explained in detail that when the parent raised the issue of a CBST deferral that an appropriate program was available in setting and it was not necessary to bypass the public school programs. They explained the parent and at the end of the meeting informed the parent that what the team was going to recommend.(T.152-153) On re-cross, she noted that she did not recall if the January, progress report had ever been reviewed at a prior IEP meeting. However, she did rely on it at the May, 2013 IEP review. (T. 154-155)

THE PARENTS’ CASE

testified that he has worked for 19 years in numerous positions; his current position is co-director of the middle school, which covers grades sixth through eighth. He described school that such as belief in honesty, community, peace and other humanistic values. The middle school has 108 students; the school provides educational services to students with , other . (T. 173-175) He has she entered the middle school approximately two years ago. He described the student has having that adversely impact on her ability to learn. The student requires a lot of individualized instruction and differential in order to follow a lesson. She has difficulty retaining information and difficulty with recalling information. (T. 175-176)

He was involved in the process of placing the student in classes this school year. The selection of the homeroom class was based primarily on social dynamics. The homeroom consists of 12 students and two teachers; there are three homerooms per grade. There are more boys than girls, so they make sure to place some of the girls in each homeroom. In selecting students for each group, they look at students who have friendships and relationships that appear to be conducive to working together and try to place students who have a poor history of performing together in different groups. There are groups formed for literacy and math based on ability. Those students are grouped based on prior teachers’ recommendations, reports as well as testing, formal and informal. There are 25 literacy or math groups, all of the literacy and math classes are held at the same time making it easy to change groups if a student isn’t doing well in one literacy class, she may go to another being held at the same time. Teachers change students’ groups on an as needed basis, until the right fit is established at length regarding the student’s teachers’ credentials, some of her teachers are dual certified teachers and some are not certified, all have minimally a college degree. (T. 177-180 and 181-183

The student receives an extensive literacy class has a speech teacher in it who works with the student in a group of six, 70 minutes daily. She receives two pull-out sessions a week; she has a speech therapist three days a week in her math group. In addition, there is a push-in to her other subjects, once weekly. (T. at 184) Typically, they push-in to the classes that have rotated on a trimester basis. The middle school comes together for assembly where a student will express his views on a subject of interest, an experience or community news while the rest of the assembly is silent. The school offers ten different clubs, teachers team up to teach a subject that they have a passion for, such as cooking, a sport or a writing program. A student may select one club to participate in during school hours. The club presents students with an opportunity to interact with students from different grades and a variety of teachers. (T. 185-188) He noted that the ; the school nurse monitors it closely and has ongoing communication about it. All of his staff is aware and are on the alert for . The nurse will travel with they go on an extended trip. The gym teacher will bring her medication with him if he takes the class outside of school. The student participates in the lunch out program where they have a choice of several restaurants all within three blocks of the school to dine and a teacher accompanies her to all the restaurants. (T.190-191) He opined that the small student to teacher ratio, the binder system and close collaboration of the staff collectively would be able to provide the student with lots of intensive support to meet her needs. (T. at 193)

On cross examination the director stated that he never taught in a public school and he had not He discussed in detail what happens in the homeroom; the teachers go over the day’s schedule, check to see if the students have their materials for class as well as homework. Each homeroom teacher has a physical classroom that typically they have year after year. He explained that in selecting students for the literacy and math group, he would speak to the prior teacher as an initial step for input. However, there is an extensive end of the year evaluation and also teachers fill out a questionnaire about their students, how the students progressed together or separate and other pertinent information that helps in forming a group. The school has a part time occupational therapist that does an observation of all of the students; she will make recommendations to the homeroom teacher to address a student’s needs. If the homeroom teacher feels more is needed for a particular student then additional support is provided. The school psychologist has an open door policy; teachers may refer a student to the psychologist and the psychologist teaches a small class where students discuss issues of their concern. (T.199-201 and 202204

The school nurse does not escort the student on math class outings since the class is within a five block radius of the school. When the student is stable she requires less intervention. However, when she is not stable the school offers a lot of interventions. The student does not go on the trips outside of the school or the nurse goes with her. The school adapts to her needs. When in team sports with other schools, the student has not . There are FM units in the classes where she has instructions, not in the gym. (T.206-208) Mr. stated that the nurse’s office is located on the first floor, the student’s classes are scattered from the first floor to the third floor and each classroom has a telephone in it. It would take the nurse approximately 30 seconds to travel from the first floor to the third floor if the student had an epileptic attack. (T.208-210)

testified that she was the student’s homeroom and current events teacher for the 2013-2014 school year. She has been a head for five years. As head teacher she is responsible for overseeing her twelve homeroom students. In addition, she teaches a literacy and math group as well as teaching current events for the entire seventh grade classes. She writes progress reports for her homeroom students or oversees her assistant teacher in doing so. She described the student as being a ; she is very social, fashion conscious and well groomed. Academically she is a hard working student with strong study habits. Also, she is a student who presents with significant learning disabilities, delayed processing speed and she (T.216-219 and at 220.

She stated that based on her observation of the student, the student does not exhibit any sort of The students in her homeroom are grouped based on similar deficits, and . They all receive the kind of related modifications that those struggles require. Her class has three girls and nine boys. She described the homeroom periods as time to get the students organized to be successful in their classes, such as checking to see that they have the necessary class materials and that homework assignments are done. At the end of the day, the teachers address issues that may have arisen during the day. Also, they check to make sure the students have their complete homework assignments for the next day. If the students miss something or need help in an area, the homeroom teachers help the students to advocate for themselves through reaching out to the teacher that they need help from. (T.221-223)

She discussed how some of the student’s academic needs are addressed; they preteach the student at the onset of a class. The teacher reviews her homework with her to refresh the student’s memory so that she can participate. The student requires one-on-one support or small group support to get ready to participate in class; she will not participate on her own initiative. All of the classrooms have Smart Boards and FM units with surround sound speakers in them. All of the classrooms are staffed with two teachers; the student requires a ratio of six students to one teacher. Also, having two teachers in the class allows them to present whole group instruction and half group instruction. In addition, it facilitates the ability of one teacher to teach a lesson and having the second teacher travel around the class to provide individual support where needed. She opined that a paraprofessional is not necessarily trained to work with the kind of delays that the student has and thus the second teacher in the classroom is able to address needs that a paraprofessional could not. (T. 224-226 and 227-228)

Her literacy class consists of five other students. The literacy teacher is also a ; the grouping is based on similar needs. The teacher designed the curriculum for the on level L, equivalent to a third grade level. , her writing has to write lengthier essays in a shorter amount of time and the quality of the work has improved. Her math group she began the school year, she was performing on a second grade level in math. She improved in her ability her ability to deal with life skills math and in her conceptual math class helped to address the language demands that are an important part of the math curriculum. (T.229-232 and 233-236 and 237-238)

The student is pulled out for speech therapy during the 40 minute homeroom session or during study hall sessions. The pathologist works on developing abstract noted that for each trimester the student participated in a club during the school day which helped to expose her to a variety of students and teachers in her grade as well as other grades. The club activity helps the student to organize her thoughts and to interact with other students as well as collaborate with others on that prior to school beginning this year the nurse trained her to detect like, what to do and what the protocol for getting the student the help that she needs. She descried in detail what the protocol was for addressing One teacher would the other teacher would clear the room and make sure the student was safe by clearing the area. (T.242-245)

She opined educational placement for the student because it provides a small student to teacher the student needs to be successful. Also, the small school environment is important since all the teachers who work with the student in the classroom, lunchroom and during recess have an understanding of her learning needs and medical needs. In addition, those teachers are able to communicate and collaborate on a regular basis about the best practices for her. (T. at 246)

During cross examination, stated that the literacy class is 75 minutes and the math class is 50 minutes and a typical period is forty minutes. She has not had a need to call the she is not trained to implement the student’s medicine. In the the teachers are trained to . (T. 249) She has not observed or assessed the student in her literacy or math class. The basis of her knowledge regarding those two classes is from frequent communication with those teachers and access to their progress reports and their assessments of her progress. (T.248-249 and 252-253)

The mother testified that she and her husband adopted the student when she was two years old and at that time the child . She . They immediately secured early intervention services; the student was . (T. 260-262) She enrolled the child in public school for kindergarten and first grade; she was summoned to the school and advised to obtain a and the staff told her that their school was not an appropriate placement for her needs. She transferred her since second grade. Subsequently, the mother had visited several public school placements as well as state approved private schools in an effort to find an appropriate placement, none were able to needs. (T.261-264 and 265-266)

In December, 2011, her daughter experienced on a subway platform with her class; it was . The , that she was post stroke and most likely had strokes. Three months later the child ; all of her seizures were at school the first year. The doctor prescribed an emergency be administered more than five minutes. (T. at 267)

She discussed the May, 2013 IEP meeting, she the student’s teacher at that time, appeared by telephone, both voiced their opinion that was not appropriate. They were told by Ms. only option available for her daughter. After her opinion, thanked her and of the student and Ms. in. She noted that there was an evaluation conducted by Ms. progress report . There was no discussion regarding the annual goals that would be recommended for the next year. She has always visited the DOE’s proposed schools when they are recommended, none were appropriate. At the conclusion of the meeting she felt the recommendation would not be right for her daughter. (T.268-270; 271-273 and 275276)

She received a placement offer in mid-August; she attempted to contact the school immediately, she left several voice mails. She was not able to see the proposed placement until the school allowed her to visit it on September 17, 2013. She wrote the CSE on August 8, 2013, informing them the school was closed and that she would visit the proposed placement when it was in session. She informed them that she would keep the and seek tuition reimbursement unless an appropriate placement was offered. When she sent the letter in August, she had yet to receive the May IEP. There was no response to her letter. (T. 277-280)

She received the IEP in mid-August; it had several errors in it. It omitted certain information and included incorrect information, the medical part was blank and the IEP indicated that the student’s fine motor skills required occupational therapy. The IEP failed to identify any special education program, only services. In addition, the IEP mistakenly identified the date of the review as on January 14, 2013. The mother testified that she and her husband signed contract in February, 2013 because that was the only way the school would hold a seat for the student. It was imperative that her daughter had an educational placement to attend in September. She believed that she had up to September to withdraw. (T. 281-284 and 285-286) (Exs. 8, I, N and D)

She visited at the proposed site, there was one teacher and five paraprofessionals in the classroom. The class was ; it had sixth, seventh and eighth graders in it. The staff would not give her any information regarding the ages of the children, their classification or their functioning levels. The school nurse told her that she had no experience did the teacher The school was very large and it would be difficult for the nurse to get to the classroom, . There were or wiring. She wrote a detailed letter immediately after the tour of the school informing the CSE why the placement was clearly inappropriate and her intent to . The mother discussed the progress her daughter was making .(T.287-290 and 291-294)(Ex. K)

The mother acknowledged that when her daughter attended kindergarten and first grade , she was in a general education program; she has never attended a self-contained class in the public schools. The last minutes was in September, 2013. The mother said she indicated at the IEP meeting attended the recommended school she might need a The mother confirmed that it was clear from the IEP meeting that a program was being recommended despite her and the teacher’s objections. When she visited the proposed site she indicated that she was looking for the 12:1:1 class. At the site, the staff stated that they did not have any experience ; they indicated a willingness to be trained. She understood that after would not refund the $8,000. deposit. (T.297-300 and 302-303)

The Final Notice of Recommendation (FNR) offered a 12:1:1 placement. The classification on the previously it , there was no discussion at the IEP meeting about a classification change. She found the IEP and FNR conflicting and confusing to her. She believed that her daughter would only be entitled to receive services listed on her IEP. When she visited the proposed site, the staff did the computer and she did not know whether in fact whether the school would have allowed the student to attend the school after a review of her IEP. (T. 308-309 and at 314) (Ex. H) When she toured the school the staff did not indicate either way whether there was a seat for SS. (T. 314-315)

FINDINGS OF FACT AND DECISION

Two purposes of the IDEA 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 NYCRR 200.4[c][5]).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 v. T.A., 129 S. Ct. 2484, 2491[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 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 a procedural violation is 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep'tof Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010];E.H. v. Bd. of Educ., 2008 WL3930028, at *7 [N.D.N.Y. Aug. 21, 2008];Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20U.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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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 LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 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; 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 accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R.§ 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see 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). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

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 parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).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 (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

In sum, the parents argue that the district has failed to provide their daughter with a FAPE, based on procedural and substantive grounds, for the 2013-2014 school year. The parents contend, inter alia, that the IEP team was not properly composed, the CSE failed to rely on appropriate evaluative measures, the CSE denied the parents a meaningful opportunity to participate and that the recommended IEP program was inappropriate. The record shows that the student started receiving special education services since she was two years old, beginning with an early intervention program that , general education program. The child ; she was . The mother testified that she was called into school several ; she met with the principal, assistant principal and school psychologist. The parent was ultimately told by her daughter’s school staff that their school was not appropriate for her daughter’s needs. The mother placed ; the child has attended that school from is not clear on whether the child received related services while in public school. (T.261-263; at 265 and at 297)

The CSE convened on May 1, 2013, a review of the hearing record demonstrates that the attendees at the triennial review included the parent, Ms. , a district school psychologist who also served as the district representative, Ms. a district general education teacher and Ms. Bucher, the student’s then classroom teacher who participated by telephone. It is indicated on the IEP that the CSE considered an Integrated Co-teaching placement as it is listed under Other Options Considered. is noted on the attendance page of the IEP as the general education teacher, the record shows that she is dual certified as a general and special education teacher. The record further establishes has not taught any class in at least six or seven years, she was assigned to the CSE on a full time basis and there was no expectation that she’d be teaching in a class room during the 2013-2014 school year. (T. 102-104) Also, as noted above, , was one of the student’s classroom teachers; the record does not show whether she was certified as a teacher, in either general education or special education.

The IDEA requires a CSE to include, among others, not less than one regular education teacher, if the student is or may be participating in a general education program and not less than one special education teacher of the student. Those teachers, who are members of the IEP team, should be the ones, who are or will be, responsible for implementing the IEP. (34 CFR 300.321[a][2]; 34CFR Part 300, App’x A, Question 26. See SRO No. 13-165 at 8-9.) Here, the failure to establish the presence of an appropriate regular education and special education teacher is a violation of both federal and state regulations.(T. at 107) (NYCRR 200.3[a][1][ii].

In addition, the parent noted that there was no parent member present at the meeting and Ms. confirmed that there was no parent member available at the time of the meeting and that there was no written declination form signed by the parent waiving said member.

(T. at 107 and at 268) The district’s assertion that the parent verbally waived the presence of the parent member is not supported by the record. New York law requires that any waiver by the parents of said member is required to be in writing and here the district admitted that the alleged verbal declination was not reduced to writing. (T. at 95) ( 8 NYCRR 200.5[c][2][v]) In the instant matter, the district’s failure to have a parent member present at the IEP meeting does not violate the IDEA. However, the district has failed to comply with state law which requires the presence of a parent member on a committee that formulates a student’s IEP. (See N.Y. Educ. §4402[b][1][a]; 8 NYCRR 200.3[a][1][viii])

Also, it must be noted that the parent testified that abruptly dismissed and hung up when she continued to advocate for an option to the recommendation. State law mandates that persons appearing by telephone be ensured participation in the meeting and may not be excluded from any part of the meeting without obtaining the parent’s consent and the excused member’s written input regarding the development of the IEP, in particular the written input with respect to their area of curriculum. (T.268-269) (8 NYCRR § 200.4[d][4][i][a]; 200.3[f][2].

Next, the parents alleged that the CSE failed to rely on appropriate evaluative measures in the development of the student’s May, 2013 IEP. readily admitted that she did not review the privately retained comprehensive neuropsychological evaluation dated May, 2012 that was provided to the district previously and reviewed at a prior IEP meeting. The evaluation contained the results of numerous standardized tests which assessed the student’s academic achievement, communication skills, learning characteristics, social functioning and cognition.(T.110-111) Ms. ’s only explanation for not reviewing the evaluation and incorporating some of the very pertinent information contained therein was that it had been reviewed and discussed at another IEP meeting; “we move forward” (T. at

114) The failure to review the timely evaluation resulted in the omission of cognitive levels, which are critical for an educator to have an understanding of the student’s abilities in order to draw a baseline of where to start with the student and to determine an appropriate grouping for the student. (8 NYCRR §200.6[a][3][i]; 200.1[ww][3][i][a]) The resulting IEP contained no information either directly from that evaluation or by reference to last year’s

IEP. (T.114-115)

Ms. stated the IEP meeting was a tri-annual review; the IEP lacked any evaluative information on the student’s need progress report dated January 2012 which contained no standardized tests of language skills. (Ex. 7) Also, there was no evaluative information ; the CSE did not seek to conduct any evaluations to properly determine needs or needs, if any. There was neither nor an occupational therapist at the meeting. testified that the CSE drew up the speech goals. (T. 126-127and 146-147)( Ex. N-5)

The parents cite several factors to demonstrate that the CSE denied the parents a meaningful opportunity to participate in the IEP meeting. Ms. acknowledged that the goals included in the IEP as they were written were not reviewed at the IEP meeting. (T. 29-

30) The mother testified that the annual goals that would be recommended for her daughter to achieve in the next school year were not discussed. (T. at 271) could not recall if the promotional goals were discussed at the meeting. However, the promotional criteria on the IEP states that the student must met 60% of the standards for the 7th grade in ELA and Math within one year. The mastering of the standards shall be determined by the student’s work, teacher observation, assessments/grades and attendance. It is noteworthy to mention that the student was functioning at a third grade level in math and a fourth grade level in reading. The denial of the mother and student’s teacher to participate in development of the annual goals clearly impeded the parent’s ability to meaningfully participate in the development of the IEP. Also, as noted previously, was not allowed to fully participate at the meeting due to Ms. s abruptly terminating the call. (T. 268-269)

The Second Circuit has indicated that “[m]ultiple procedural violations may cumulatively result in a denial of FAPE even if the violations considered individually do not.” (R.E., 694F.3d at 190-191) It is clear that under federal and state law a student is denied a FAPE, if procedural violations impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE and caused a deprivation of educational benefits as evident in this matter.

The parents also argue that in addition to the procedural failures that the DOE has failed to meet their burden of demonstrating that the program and placement offered was reasonably calculated to enable the student to receive educational benefit. The hearing record established that the program recommended for the student is contrary to the testimonial and documentary evidence presented. At the time of the May 1, 2013 IEP meeting the student was in a class of eleven students with two teachers which was the largest class setting that she was in during the 2012/2013 school year. (T. at 270) Her literacy class consisted of five other students; the literacy teacher was also a speech pathologist. She is one of four students in her math class. (T. at 229, at 235 and at 270) The was in effect, twice the size of the student’s largest class which provided a as compared to the recommended program with 12 students, one teacher and a para. Ms. nd the mother had extensive knowledge regarding the child’s academic needs; they both strongly opposed the program based on the size and limited opportunity for one-on-one instruction. (Exs. 6, 7 and B)

Ms. testified that the student had “made academic progress in school. There was no reason to think that would not continue to do so….” (T. 36-37) The psychologist readily admitted the student had made however, she does not give due consideration to the underlying factors that contributed to the child’s academic success. Clearly, the small class is a major factor in the child’s progress, since the small class size allowed the second teacher ample time to provide individualized instruction to the student regarding the individualized approach they used to provide support to the student. She noted that due to the child’s that the teachers would preview materials at the onset of class. In addition, to address her , the teachers would prepare her for class by going over homework, materials needed for class and provide support in any skills related to executive function. (T.223-224) Dr. in her , reported that the student exhibited “ in language, attention, executive, and memory skills.” The child’s delay are significant, she requires the professional support of trained teachers to address them. The recommended program provided only one teacher to address the needs of 12 students; a paraprofessional is not trained to address the complexity of issues that SS presents with. (Ex. B)

Dr. conducted a thorough examination of the student’s functioning in the academic, social and emotional areas. She administered numerous standardized tests, including the WISC-IV, WJ-III and CELF-IV which provided her with an in depth understanding of the child’s abilities and needs. After, her apparent thorough analysis she recommended and wrote that the student… “would continue to benefit from placement in a specialized school setting with a low student-teacher ratio that caters to children with significant language deficits…” (Ex. B) Although, Ms. testified that the CSE does not rereview information, referring to Dr. s evaluation, she apparently did not give much weight to this evaluation at the May, 2013 triennial review. (T. at 110 and 114) However, this Hearing Officer finds the evaluation timely, pertinent and relevant as it provides an objective and well documented opinion based on standardized testing and clinical observation. Dr. noted that at the time of her evaluation the student was one can readily discern from her aforementioned recommendation that an appropriate placement to meet the student’s significant and complex special education needs, and was recommending same or a comparable educational placement in a community school substantially differs from the intensity of in a specialized school with a total population of 108 students and with class sizes as small as four students.

In addition, the mother had testified that she had visited several in the past pursuant to prior CSE’s recommendations. She found them inappropriate for several reasons; the large size of the school presented a problem for her daughter because she has sensory/auditory issues and language processing difficulties. She cannot focus in such a large environment; it is . Similarly, the large class size makes it difficult to focus; the mother noted that the size of the large school was overly stimulating. (T. at 263) The students appeared to and were not appropriate peers. Also, the school lacked the FM system. (T.273-274)

The mother visited the proposed placement at the first opportunity that the school offered. She visited , the class had one teacher and five paras; two and the class . The staff did not provide any information regarding the age of the students, their classifications or their reading levels. She did not believe her daughter would be properly grouped in that class and was told that the students typically go to high schools; they did not go to academic high schools. She believed that her daughter was capable of moving on to a regular high school. Her daughter and having a nurse on the premises that is experienced with concern to her. She was informed that neither the nurse nor teacher had any training . In addition, the school was quite large and it was questionable whether the nurse would be able to reach the student in a timely fashion, in the . She noted that there was no FM . Her daughter in September, 2013. (T.289-292 and at 297)

The parent visited the school and cited in her letter several reasons why the proposed program and placement was not suitable to address her daughter’s needs.(K) The parents’ primary reasons for rejecting the placement was that the size of the school and class size was inappropriate, the school’s staff was not trained in dealing with seizures and that there were no FM wiring or headsets. (Ex. K) It is well documented in the record that the student and that it was paramount that trained personnel be available to attend to the student if she had at school. (T. 244-245; 266-267 and at 292) (Exs. 5,C,J and I) Here, the DOE recommended a placement site that does not comport with the IEP’s mandate. The Second Circuit has addressed this issue in T.Y v. NYC DEPT. of Educ., 584 F.3d 412, 420(2d. Cir. 2009); the court found that a district may not recommend a placement that does not fulfill the IEP’s mandates. The DOE’s argument that it would have provided training to the staff in dealing and provided an FM system cannot rehabilitate a placement that is inappropriate. I find that a review of the evidence and testimony firmly support a finding the DOE failed to provide the student with a FAPE on both procedural and substantive grounds, for the 2013-2014 school year. Next, the district argues that the parents have failed to meet their burden to prove that the is an appropriate placement. The hearing record reflects that the student demonstrated significant needs in the ; attention; and . (T. at 235 and at 255) (Exs. B and 7) The school meets the student’s needs by providing a small nurturing environment, 108 students in the middle school and it is a specialized school that provides educational services to students with .(T.173-174) The student requires a lot of small, in order to learn. The low student-teacher ratio makes a lot of individual instruction available to meet the student’s needs as they arise. The teachers preview the materials at the onset of class because of the homeroom, the teachers help to organize her work and help her to be prepared for the school day. Also, they review her homework in the morning and in the afternoon make sure she has her complete homework assignments for the next day. They help her to advocate for herself and provide support for her by chunking her work and by lots of repetition. In each of her classes she is grouped with children who have similar delays in expressive and receptive language, processing speed and students who need accommodation with for memory issues and support pertaining to inferential and abstract comprehension. (T.222-224)

The school has Smart Boards and telephones in all the classrooms; all the classrooms have FM units with surround sound speakers in them and the teachers have mics. (T. 225-226) The student receives an extensive amount of speech, her literacy class has a speech pathologist teaching it; she works with students in a group of six, 70 minutes daily. She receives two pull-out sessions during study hall and other non-essential times and a speech therapist pushes in three times a week in classes that have the most amount of language. (T. at 184) All of the school’s staff is aware and are trained to look for signs that she school nurse monitors it closely. The nurse travels with her on any extended trips and brings the student medicine with her. The student is always accompanied by a teacher when she leaves the building for lunch or school outings. The teachers carry cell phones in the event of an emergency they can call 911. The gym teacher carries the student’s medicine when they leave the building.(T.189-191) The record is replete with testimony concerning the student’s . The student socially.(T.232-234 and at 295) Based on the foregoing , the record shows that offered specially designed instruction and accommodations that addressed the student’s specific special education needs and did in fact allow her to receive a meaningful educational benefit for the 2013-2014 school year, and therefore, constituted an appropriate placement for the student.

The equities favor the parents; the parents the parents provided a that they had privately retained to the CSE and made their daughter available for the district’s school psychologist to evaluate the student. The parent expressed their concerns about the proposed recommendation and placement at the IEP meeting. The parents wrote to the CSE three times expressing their concerns and put the CSE on notice that the student would until the CSE provided an appropriate placement. They made several attempts to contact the school and visited the school at the school’s earliest convenience. There is nothing in the record to indicate that the parents were anything other than cooperative. I find that the equities favor the parents.

In sum, I find that the DOE failed to provide the student with a FAPE for the 20132014 school year and that the parents’ unilateral placement of the student appropriate to meet her needs and there is nothing in the equities that would preclude the parents from receiving the full relief that they requested. The DOE shall reimburse the parents for the student’s

ORDER

The Department of Education shall fully reimburse the parents for the tuition paid for the student’s placement at , for the 2013-2014 school year, upon reasonable proof of payment. Dated: August 12, 2014

Theresa R. Joyner, Esq. gc

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TRJ: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 IEP Envelope, dated 8/26/13 B Neuropsych EVAL, dated 5/24/12, 9 pages C Letter of DIAGNOSIS, dated 11/2012 D School Contract, dated 2/15/13, 2 pages E School Program Description, 2 pages F Class Schedule, 1 page G Statement, dated 8/14/13, 1 page H Parents' Payments, 11 pages I Notice Letter, dated 8/8/13, 2 pages J Parent's Letter Requesting Crisis Para dated 8/13/13, 3 pages K School Visit Letter, dated 9/17/13, 2 pages L Student Attendance & Report Card, dated 12/9/13, 2 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 10/30/13, 3 pages 2 Due Process Response, undated, 3 pages 3 IEP dated 5/1/13, 15 pages 4 Psychoed Report dated 1/3/13, 3 pages 5 Letter from Treating Physician, dated 4/4/13, 1 page 6 Report, dated 1/31/13, 7 pages 7 Report dated 1/2013, 2 pages 8 FNR dated 8/1/13, 1 page