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: Parents

Dates of Hearing: December 6, 2013

February 6, 2014

April 8, 2014

June 17, 2014

June 18, 2014

Actual Record Closed Date: August 7, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED December 6, 2013 February 6, 2014

Attorney — Student

CSE DOE Representative — DOE

Attorney — Student

, CSE #

April 8, 2014

For the Student: , Attorney , Attorney , Parent

For the Department of Education:

, CSE-

, School Witness (Via Telephone)

June 17, 2014 For the Student: , Attorney , Parent , Teacher (via telephone)

For the Department of Education:

, CSE

, CSE School Psychologist (via telephone)

June 18, 2014

For the Student: , Attorney , Parent , Dir. , (via telephone)

For the Department of Education: , CSE Representative

On December 6, 2013, February 6, 2013, April 8, 2014, June 17, 2014, and June 18, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated October 31, 2013. (Ex. A) I was appointed Impartial Hearing Officer on November 4, 2014 after the recusal of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on December 4, 2013, the initial hearing was scheduled for December 6, 2013 and it was agreed it would be limited to the parents’ claims regarding pendency entitlements. (Ex. I)

An Interim Order on Pendency was issued on December 9, 2013, and provided DOE funding for the student’s tuition from the October 31, 2013 filing date through the conclusion of this matter. (Ex. III)

On December 6, 2014, a hearing was scheduled for February 6, 2014, but the DOE’s witnesses were unavailable as a consequence of weather conditions and a hearing on April 8, 2014, the first mutually available date for the parties, their witnesses and the hearing officer was scheduled. (T. 10-12) June 17 and June 18, 2014 were thereafter scheduled for the completion of the hearing. (T. 81)

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and the submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 10, 28-29, 86, 174-174 , Exs. II, VI)

The current compliance date is September 7, 2014. The record closed on August 7, 2014, upon my receipt of all closing memoranda. ^[1]

Positions of the Parties

In their hearing request, the parents assert that June 7, 2013 IEP for the 2013-2014 school year was procedurally and substantively appropriate. Specific procedural claims made by the parents relate to goals, failure to review appropriate documentation, improper composition and insufficient information with regard to the student’s needs. The parents also claimed that the DOE had offered two placements, one of which had no seats available and the other not appropriate for this student. The parents assert that the unilateral placement of the student ”) was appropriate. The parents claim that equitable considerations favor them and seek DOE funding through reimbursement of payments made by them. (Exs. A, V) ^[2]

The DOE asserts that the June 7, 2013 IEP was procedurally and substantively appropriate and that it offered a placement which could implement it. It was not appropriate and makes specific claims concerning. Further, it asserts that the equities in this matter favor it. (Ex. IV)

Cases Presented

Documents were presented by both parties and admitted into evidence. A list of documents in the record is appended.

The DOE presented the testimony who conducted evaluation of the student and participated in the June 7 review ; recommended school.

The parents presented the testimony of: the student’s teacher and a participant at the June 7 review (“the teacher”); the director of the high school at (“the director”); the student’s father (“the parent”).

Findings of Fact and Conclusions of Law

A) Factual Findings

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. Relevant testimony is discussed below.

The student’s disability classification . (Ex. 1) That classification is not in dispute. At the time of the review, the student years old and in at . (Exs. B, 4) is a small progressive high school which provides individualized support and its is for students with various and attentional disorders. (T. 185-186, Ex. H)

The student had had IEPs for five or more years. (T. 257)

The CSE convened on April 4, 2013 to develop a program for the 2013-2014 school year and that resulted in an IEP. (Ex. 2) The IEP specified that a was scheduled for “later”. (Ex. 2-1) At the review the CSE had determined that it wanted an evaluation because of inconsistencies with the student’s current deficits as reported staff and one or more older evaluations which the CSE had reviewed. (T. 260, Ex. E)

evaluation was conducted by AR on April 25, 2013. (Ex. 5) She had not participated in the April 4 review but was a member of the “CSE team”. ( T. 105) The evaluation reported that the student presented as motivated, pleasant and polite. His full scale IQ ), strength His academic functioning was assessed with achieved the following grade/age equivalents: Letter-Word Identification Fluency 11.2/16-8; Calculation 13.0/more than 23; Passage Comprehension The student appeared to have a realistic sense of his strengths and weaknesses as well as a positive self-image. (Ex. 5)

The CSE reconvened on June 7, 2013. Participant in , a DOE special education teacher who was also the district representative, AR the school who and a DOE social worker. The parent and the student’s ELA teacher information provided at the April 4 meeting by another of the student’s teachers who did not participate in this review. (Exs. 1, 4)

The IEP recommended an ICT program 7 periods a week, all subjects, and provided testing accommodations. (Ex. 1) The IEP noted that the parent stated that he was interested in looking at a public school placement but that the student required a great deal of individualized attention, redirections and reminders and the parent felt that a large class placement might not give the student the individualized attention he was getting . The IEP noted the CSE’s response. (Ex. 1)

By letter dated August 2, 2013, the CSE recommended MXXX (“School 1”) (Ex. 3-1) The parent attempted to visit the school when it opened in September but did not get an appointment until October and after visiting concluded that it was not appropriate. (Ex. F)

By letter dated August 15, 2013, the CSE recommended MXXX (“School 2”). (Ex. 3-2) The parent was unable to contact the school until after the school year began but when he did so was informed that there had been no available seats in the grade appropriate placement when school began. (T. 267)

By letter dated August 22, 2013, the parent informed the CSE of concerns about the CSE review and IEP. He also informed it that he had received two placement recommendations, said he wanted to visit the recommended class and asked for clarification. The parent stated until he could make a determination as to the appropriateness of the DOE recommendation the student would be sent to Bay Ridge and DOE funding would be sought. (Ex. E)

On September 9, 2013, the parent executed a contract requiring the payment of $41,500 with full liability if the student was withdrawn after September 16, 2013. (Ex. G)

By letter dated October 22, 2014, the parent informed the CSE concerning the placements and that the student would

B) Analysis

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (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). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). 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. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

Review and IEP

I find the following with regard to the parents’ claims:

April IEP: The parent asserts that the DOE was required to defend the April IEP and that it did not do so. They claim that the June IEP added the results of the new evaluation but made no other substantive changes. (Ex. V) However, I find credible the testimony that each part of the IEP was reconsidered and conclude that the June IEP represented the conclusion of that review. (T. 96, 102-103, 111-113, 127, 130) Accordingly, I find that the DOE was not required to demonstrate that the April IEP was appropriate. Indeed, in determining that another review was required, the CSE apparently concluded that it was not. The fact that it ultimately arrived at the same conclusions is immaterial.

June IEP CSE Composition: The parents assert procedural defects because the CSE team did not include a special education teacher or provider who was or would be responsible for implementing the IEP and allege that no one present could explain how the IEP would be implemented. (T. 110, Ex. V) However, the district representative was a certified special education teacher permitted to teach with experience with regard to DOE programs. (T. 110) Further, as to conversations with the parent at the review with regard to implementation of the program. (T.115, 117, 119-120) The student’s in that and this school year also participated and identified herself as a general education teacher. (T, 112, 114) I note that although she is not certified as a special educator, the parents presented her testimony in this proceeding to support their was meeting the student’s special education needs. However, I find no procedural violation in the circumstances here. However, even were I to conclude that a procedural violation occurred, I find that in the circumstances here that error did not, whether considered individually or in combination with other procedural violations, impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decisionmaking process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.

June IEP Goals: The parents assert that the goals were not discussed and were not appropriate. (Ex. V) With regard to whether the goals were discussed, I find credible the testimony of AR that they were considered at the review. (T. 111-112, 131) The parent’s testimony with regard to this was, I conclude, unreliable. (T. 262, 305) With regard to that I give no weight to the fact that the goals had not changed from the April review. The parents have pointed to no way in which should have resulted in a change of goals nor has there been any representation by the DOE that the April review goals were appropriate at that time.

With regard to whether the June goals were appropriate, I note that they address specific areas of deficit in reading, math, writing and organization. (Ex. 1) Although the teacher suggested in her testimony that additional goals should have been added there is no indication that she so informed the CSE at the review. (T. 96-97) Further, even if the absence of those goals was an error I find that in the circumstances here that error did not, whether considered individually or in combination with other procedural violations, impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.

Insufficient evaluative material: To the extent that the parents are asserting that there was insufficient evaluative material considered, the evidence shows that the CSE relied upon the recently and information provided by the participants who included that evaluator, the parent, and the teacher of ELA, acknowledged to be an area of weakness for the student, as well as information provided in the April review by another teacher. Further, I note that the parents have not specified the nature of the in this area. The lack of an observation was discussed during the hearing that it was not a required instrument for that review but that it would have been conducted if the CSE believed it was necessary or had it been requested. (T. 126-127)

Substantive defect: The parents claim the IEP is substantively defective. If that is the case, the IEP must be nullified. R.E. v. New York City Dep’t of Educ., 694 F. 2d. 167 (2d Cir 2012). However, with regard to the appropriateness of the program, the evidence shows the CSE considered the student’s academic strengths, which included a lot of grade level capacities, and concluded that his weaknesses, could be addressed in the format provided, with both a general education teacher and a general education teacher, while enabling him to interact with typically developing peers. (T. 104)

The evidence shows that the student’s areas of weakness, substantially specified in the IEP, include focusing difficulties, going off tangent, difficulty determining relevance, requiring a lot of individualized support, difficulty with organization, difficulty decoding and with writing and impulsiveness. (T.205, 208, 221, Ex. 1) However, I note in considering the appropriateness of the DOE program that the student is in several “mainstream” classes at and alleged to be succeeding, albeit with small classes, modifications and support. (T. 199-200, 202, 204) Those classes are principally taught by persons without special education certification and some without general education certification. (T. 223, 226, 230-233) In the program recommended, the student would be in a larger class but with both a general education and a special education teacher. (T.

104) The IEP also specifies management needs which the director testified were appropriate and which will guide the teachers as well as what I have found to be appropriate goals. (T. 251) Further, it is undisputed that the student gets along well with peers. (Ex. 1)

The director although testifying as to what he believed were deficiencies in the tests utilized acknowledged the student’s academic strengths. (T. 238-251) Further, the tests are standardized instruments commonly used to evaluate and compare students and determine program and progress and the evidence in this matter does not support a conclusion that they did not reflect this student’s abilities very substantially accurately.

(T. 249) I note with regard to that the director’s consistent testimony discussing the student’s performance in his various classes. (T. 238-251)

It is noteworthy that although the director testified that was appropriate, he did not assert that this student could not make meaningful gains in the CSE recommended program. Although the teacher opined that an ICT class was not appropriate, I note her experience of ICT classes was extremely limited - a few short observations while a student- and I give that testimony little weight.

The DOE is not required to establish that the program it provided was better for the student than the parents’ unilateral placement but only that its program was reasonably calculated to enable him to make meaningful educational gains. I conclude that it has met that burden.

Placement

Here where the student never attended the recommended school, the burden of the DOE with regard to placement issues is limited. R.E. v. New York City Dep’t of Educ., 694 F. 2d. 167 (2d Cir 2012). I find that the credible testimony of the AP of School 1 is sufficient to establish that the program could be implemented in her school. (T. 42-79) The parents’ concerns principally relate to issues which are, in light of R.E., precluded from consideration when the student has not attended.

I note that it is the case that the student would be mainstreamed for some periods at the recommended school although the IEP specified that all 7 periods would be in an ICT class. (T. 60-61) Nevertheless, testified that the designation of 7 periods was driven solely by computer requirements, that the CSE intended to mandate only core academic subjects for ICT but could not do so for that reason and that the parent was informed at the review that the remaining periods would be provided by the school in accordance with that school’s program and might be in non-ICT classes. (T. 119-123) That testimony was not contested by the parent. Therefore, I conclude that what was provided was what the parent was informed would be with regard to that issue. R.E.

With regard to the provision of two different FNRs, there is nothing to indicate that the provision of a second FNR constituted a conclusion or admission by the CSE that School 1 was not appropriate. Accordingly, I give that no weight.

***********

Based upon the foregoing, I find that the DOE has met its burden to establish that it provided this student with a FAPE for the 2013-2014 school year. Therefore, I do not address Prong 2 and Prong 3 issues.

ORDER

This matter is DISMISSED.

Dated: August 12, 2014

, Esq.

, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

PARENT

A Findings of Fact and Decision in Case No. , 7/2/13, 14 pages

B Impartial Hearing Request, 10/31/13, 2 pages

C Due Process Response, 12/19/2013, 3 pages

D Final Notice of Deferred Placement fax confirmation, 07/23/2013, 2 pages

E Parent Letter to CSE with fax confirmation, 08/22/2013, 3 pages

F Parent Letter to CSE with fax confirmation, 10/22/2013, 3 pages

G Enrollment contract, 2013/2014, 1 page

H School program description, n.d., 1 page

I Class schedule, 2013/2014, 1 page

J Affidavit of payment, 1/15/14, 1 page

K Attendance record, 4/3/14, 1 page

L Report card, 2013/2014, 4 pages

M updated report card, 2013-2014, 2 pages

N updated affidavit of payment, 6/13/14, 1 page

O Proof of payment, various dated, 3 pages

P 2013-2014 Overview, 1 page

DEPARTMENT OF EDUCATION

1 IEP Revisions, 07/20/2013, 12 pages

2 IEP Parent Member Declination, 04/04/2013, 13 pages

3 FNR dated 08/02/2013 and 08/15/2013, 2 pages

4 Student Progress Report for 04/04/2013, 1 page

5 Evaluation, 04-25-2013, four pages

IMPARTIAL HEARING OFFICER

I Prehearing Conference Memo II Compliance Date Extension Decisions III Interim Order on Pendency, 12/9/13 IV DOE Closing Memorandum V Parents Closing Memorandum VI Email from IHO re extension and record close

Footnotes

[1] The DOE requested an extension of the agreed upon date for the filing of the memoranda, there was no parental objection and the request was granted. (Ex. VI)

[2] The parents also asserted claims concerning an April 4, 2013 IEP which was revised on June 7, 2013 after additional testing was conducted. Those claims are discussed in the Findings of Fact and Conclusions of Law section herein.