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: April 21, 2014

May 16, 2014

July 24, 2014

August 13, 2014

Actual Record Closed Date: October 20, 2014

Hearing Officer: , Esq.

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

Name Title For

Attorney — Parents

Parent — Parents

DOE Rep. DISTRICT

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2014

Attorney — Parents

Parent — Parents

DOE Rep. DISTRICT

Teacher DISTRICT

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

Attorney — Parents

Parent — Parents

Division Head — Parents

DOE Rep. DISTRICT

Assistant Principle DISTRICT

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2014

Attorney — Parents

Parent — Parents

Division Head — Parents

DOE Rep. DISTRICT

On December 10, 2013, I was appointed as the Impartial Hearing Officer (“IHO”)

to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (17) year old student attending a private school and the New York City Department of Education (“DOE”) - District: , concerning the student’s special education program. I was appointed after the recusal of at least one other IHO.

After adjournments were granted on consent or for cause, the impartial hearing was held on April 21, 2014, May 16, 2014, July 24, 2014 and August 13, 2014. The parties opted to submit written closing statements which were due on September 12, 2014. (T-442)

After extension were requested and agreed upon by the parties, the closing statements were received on October 10, 2014. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Committee on Special Education (“CSE”) on February 6, 2012 recommended that the student be placed in a “ ” setting for a school year, without fully evaluating the student. (See Due Process Complaint - “DPC”) The Parent visited the resulting DOE recommended school in September of 2012 and found it to be inappropriate for the student. (Id.) Accordingly, the Parent unilaterally placed the student in a private school for the 2012-2013 school year after serving the agency with “notice” of the unilateral placement. (Id.) At the impartial hearing the Parent seeks the following relief:

(a) “funding/direct funding/reimbursement” for the student’s tuition and related services at the private school for the 2012-2013 school year.

THE DOE’S CASE

The DOE declined to make an opening statement beyond stating that it offered the student a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (T-28-9)

The DOE called (2) witnesses to testify on its behalf and submitted (10)

documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent also declined to make an opening statement. (T-312-3)

The Parent called (2) witnesses to testify on her behalf and submitted (18)

documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) 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 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (IEP)

developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and 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. (See 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] and 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [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. (See 20 U.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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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 an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.

2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; 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] and 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]), 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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and 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. (See Burlington, 471 U.S. at 370-

71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S.

at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch.

Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.

2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty

v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-

120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters."

(See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.

(See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

I first need to determine if the student’s CSE team on February 6, 2012 was composed of the requisite members under law. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3)

one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the student’s CSE team was composed of a school psychologist, a special education teacher (also acting as the “district representative”), two of the private school supervisors, a parent member, a special education teacher from the private school and the Parent. Accordingly, I find that the requisite members of the student’s CSE team were present on February 6, 2012.

As stated above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i])) In this case, the DOE relied upon the student’s Psycho-Educational Evaluation dated March 12, 2011, which was well within the statutory three year period required by law. (D-6, see 8 NYCRR § 200.4(b)(4))

The Psycho-Educational Evaluation identified task measuring common sense (cause and effect relationships) in social judgment, evaluation and use of past experiences, knowledge of conventional standards of behavior, culture loaded knowledge and the demonstration of practical information. (D-6) All of the student’s scores fell in the range. (Id.) In the “ ” measuring

, , , , and and , the student

also scored in the range on all sub-test. (Id.) The student was also found unable to .

(Id.) She received scores in and of “ ” “ ”

The student’s “social history update” dated March 19, 2011 was also received in evidence. (D-7) The document indicates that the student reads on a level. (Id.)

The student usually “ ” . (Id.) The student’s private school progress report for November of 2011 states that her obstacles to learning include her difficulties with , and . (D-4) Based on informal assessment and teacher observation, skills were selected for the student at a grade level. (Id.) For “ ” the student was set to work with students, head teacher, assistant teacher and . (Id.) for , she was set to work with students but would have opportunities for project based learning and cooperative learning in small groups of students. (Id.)

The student’s private school progress report from November of 2012 states that the student has progressed in her motivation and ability to and has but continues to need and support in this area. (P-H) In , the student is usually able to and . (Id.) For she requires and . (Id.) The student is said to . (Id.) The student is demonstrating progress in but continues to need support in

. (Id.)

The “division head” at the private school testified that the student was level and needed a lot of support in terms of , . (T-325) The student needed instruction and the “ ” (T-325-6) The student also needed “ ” and/or

“ ” services because of her age. (DPC) She also required support in her skills. (T-328) Physically, the student had issues and issues. (T-409)

The student’s Individualized Education Program (“IEP”) dated February 6, 2012 accurately reflects the above findings in the student’s Psycho-Educational Evaluation and private school progress reports. (D-2) The IEP recommends that the student be placed in a with a “ ” staffing ratio in a school. (Id.) The IEP recommends that the student receive related services of , in minute sessions times a week in a group and times a week y, for minute sessions a week in a group and time a week for a minute session a week , and for minute sessions a week and time a week (Id.) The student is also recommended to have a to help the student with .

(Id.) The IEP goals all ask the student’s teachers to use a methodology with the student. (T-58) There are academic goals to address the student’s . (T-58-9 & D-2)

The IEP calls for the student to receive ,

, , ,

, , ,

, , , and

. (D-2) The IEP also calls for the student to receive a “ ” (“ ”) to address her . (Id.) The IEP also has goals to address the student’s challenges including , and and . (Id.) The student is also to be provided with “ ” to be used independently would have her teacher and counselor help her and . (Id.) The IEP also has many and goals involving to address the student’s deficits. (Id.) The student is also recommended to receive these services in a New York City specialized school over the course of a school year. (Id.) The IEP also designates the student to participate in an alternate assessment because her “ , l, and . (Id.) The student is to be assessed using a portfolio of her work and teacher/provider observation. (Id.) She is also to receive specialized transportation services. (Id.)

As noted above, school districts are not required to “maximize” the potential of students with disabilities, but just provide “an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'". (Rowley, Grim, Walczak, Cerra, P. v. Newington Bd. of Educ. and Perricelli, supra) The IEP need only be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.

1997] and Rowley, 458 U.S. at 192) Based on the record before me, I must find that the student’s IEP dated February 6, 2012 is so calculated.

The Parent asserts that the CSE failed to fully evaluate the student in developing her IEP for the 2012-2013 school year. (DPC) A CSE is required to review the IEP of each student with a disability at least once every year. (See 8 NYCRR 200.4[f]) A CSE is also required to arrange for an appropriate reevaluation of each student with a disability if conditions warrant, but at least every three years. (See 8 NYCRR 200.4[b][4]) Here, the DOE’s Psych-Educational Evaluation was conducted on March 12, 2011, less than one year from the IEP that was created on February 6, 2012. In determining what additional data may be needed, the CSE, and other qualified professionals as appropriate, must review existing evaluation data. (See 8 NYCRR 200.4[b][5][i]) On the basis of that review, and input from the parents, the group must determine what additional evaluation data, if any, are needed.

(See 8 NYCRR 200.4[b][5][ii]) The group may conduct its review without a meeting. (See 8 NYCRR 200.4[b][5][i]) Here, the CSE team on February 6, 2014 reviewed the Psycho- Educational Evaluation, progress reports and testing information from the private school, including speaking with the student’s private school teachers and the student “entire confidential folder”, including, but not limited to, the student’s classroom observation and social history update. (T-48-9) It is important to note that as a general rule, prior to conducting a re-evaluation, parental consent is not required before reviewing existing data.

(See 8 NYCRR 200.5[b][1][i])

The Parent also argues that she was denied the opportunity to fully participate in the IEP meeting because she and the private school did not get the CSE documents before the meeting. (P-R) The IDEA sets forth procedural safeguards that include providing parents an opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child." (See 20 U.S.C. § 1415[b][1]) Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. (See 34 CFR 300.322; 8 NYCRR 200.5[d]) Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. (See P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)(" A professional disagreement is not an IDEA violation ."), Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006)("Meaningful participation does not require deferral to parent choice."), Paolella v. District of Columbia, 2006 WL 3697318, at *1 (D.C. Cir. Dec. 6, 2006))

In a memo to the field by former Assistant Commissioner Thomas B. Neveldine entitled “The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.)”, dated June 1992, Mr. Neveldine states in pertinent part, that:

3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child’s teacher, for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting. Similarly, the Committee should be provided with all relevant teacher and related service provider reports.

The CSE representative, testifying for the agency, stated that he did not have direct recollection of handing the Classroom Observation or the student’s Psycho-Educational Evaluation to the meeting participants. (T-107 & 115) Although his testimony indicated that the student’s folder was present at the meeting, it did not have any recollection of the meeting participants asking to see it or if it was distributed. (T-129)

The memo is consistent with the policies underlying the IDEA (20 U.S.C. §§1400, et seq.) and its state counterpart, Article 89 of the Education Law. The preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes. There is no hierarchy among members of the CSE. Each member is expected to be aware of the student’s educational needs, and to participate fully and meaningfully in the development of an educational program that will adequately address those needs.

Here, the agency has failed to show compliance with the terms of the memo.

First, it does not allege that the Parent and private school participants had copies of the evaluative material that were reportedly discussed at the CSE meeting, or indeed, that they had read those reports prior to the CSE meeting. The private school participants may be expected to have read their own progress reports, but not necessarily the DOE’s

Classroom Observation and Psycho-Educational Evaluation. This is a denial of the opportunity for the student’s private school participants to meaningfully participate in the

CSE meeting.

Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) However, on August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

As a result of the above denial, I find that the CSE was not validly composed when it prepared the child’s IEP on February 6, 2012. Therefore, I find that the IEP that was prepared at that meeting was a nullity. The law is well settled that an invalidly constituted CSE results in an invalid IEP. (See SRO Nos. 93-17, 92-31, 94-11, 96-87, 91-23,

93-11, 96-57, 96-28, 96-30, 00-031, 00-044, 99-8, 91-21, 91-23, 91-37, 91-10, 91-20, 93-32,

96-57, 93-42, 93-15, 96-22, 96-23, 91-33, 92-17, 93-7, 92-3, 92-33, 93-29, 94-4, 96-55, 96-

66, 91-33, 97-21, 97-49, 00-043, 00-069)

The student’s CSE team on February 6, 2012 was not properly constituted and an error occurred in the procedure for developing the IEP. However, IHOs and SROs are constrained by federal and State regulations from finding that a FAPE is denied by a procedural violation unless the procedural inadequacy impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, 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 WL 3852180 [2d Cir. Aug. 19, 2008])

Notwithstanding that the CSE team on February 6, 2012 was not properly constituted, the hearing record fails to demonstrate how this procedural deficiency resulted in the denial of a FAPE to the student. (See Bd. of Educ. v. R.R., 2006 WL

1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL101618765, at *5 [S.D.N.Y. July 11, 2005]; see SRO Nos. 07-120, 07-107, 07-060 and 05-058) The hearing record reveals that the Parent was not significantly impeded from participating in the decision-making process with respect to the provision of FAPE to the student. The record shows that the Parent and the student’s private school providers attended the meeting and actively participated in that the private school reports were discussed and largely adopted in the resulting IEP. (T-61 - “The that w as working with her w as asked to have her continue on ..., T-63-4 - Q.: And do you recall w here the information regarding those deficits came from? A.: From both - - it would come from multiple sources. It would have come from the report, and it would have come from conversation of the people that were at the table as well as people who were on the phone, all those - - , T-64 – and this goal … This w as also ex pressed by the Parent as well as the school… that this w as something that w as necessary … , T-66 - Q.: Why did the IEP Team feel that the you just described w as important f or the student? A.: Well, one, the school felt it w as and as well as the Parents … and Q.: Did the IEP Team discuss the student’s and needs? A.: Y es we did., see also D-2 & D-4) The participation of the student’s private school providers is also conceded by the Parent in her closing statement. (P-R @ pg. 4 - The team failed to completely assess [student’s name] needs and appeared to rely solely upon statement from [student’s name] then-current classroom teacher and the most recent progress report in determining

[student’s nam e] current levels of academ ic f unctioning.)

For all of the reasons stated above, I find that the DOE’s procedural violation in not providing documents to the Parent and/or private school providers prior to the CSE meeting, does not amount to a denial of FAPE.

The Parent also alleges that the recommended DOE program is not the “least restrictive environment” (“LRE”) for the student. (P-R) However, at the private school, the student was in a class for with as little as students and in with students. (D-4) The DOE’s recommended “ ” placement is in keeping with the private school placement approved by the Parent. (D-2) The Parent also argues that the DOE recommended school year is too restrictive. (P-R) However, despite her age, the private school had the student’s skills selected at a grade level. (D-4) With such deficits as described above, a school year would address the student’s needs throughout the year while also preventing regression. (T-100) Under the circumstances, I do not find a school year overly restrictive for the student.

The Parent also argues that the DOE could not implement the IEP as required under law, because in part, the DOE Assistant Principal indicating that the classes at the DOE school were over-enrolled. (T-258-9) The Parent further argues that the “R.E.”

decision is not dispositive concerning the agency’s obligation to implement the IEP.

Challenges to an assigned public school site are generally relevant to whether the DOE properly implemented a student's IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district's offered program must be determined on the basis of the IEP itself. (See R.E., 694 F.3d at 186-88)

The Second Circuit has explained that a parent's "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement."

(R.E., 694 F.3d at 195; see F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *14-*16 [S.D.N.Y. Oct. 16, 2012]; Ganje v. Depew Union Free Sch. Dist., 2012 WL

5473491, at *15 [W.D.N.Y. Sept. 26, 2012] [finding the parents' pre-implementation arguments that the district would fail to adhere to the IEP were speculative and therefore misplaced], adopted, 2012 WL 5473485 [W.D.N.Y. Nov. 9, 2012]; see also K.L. v. New

York City Dep't of Educ., 2013 WL 3814669, at *6 [2d Cir. July 24, 2013]; Reyes v. New

York City Dep't of Educ., 2012 WL 6136493, at *7 [S.D.N.Y. Dec. 11, 2012]; R.C. v.

Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012] [explaining that

"[g]iv en the Second Circuit's recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom in which a student would be placed w here the parent rejected an IEP before the student's classroom arrangements were even made]; Peter G. v. Chicago Pub. Sch.

Dist. No. 299 Bd. of Educ., 2003WL 121932, at *19 [N.D. Ill. Jan. 13, 2003] [noting that the court would not speculate regarding the adequacy of the student's services w here the parent removed the student from the public school before the IEP services w ere implemented])

Several district courts have, since R.E. was decided, continued to wrestle with this difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP. (See D.C. v. New

York City Dep't of Educ., 2013 WL 1234864, at *11-*16 [S.D.N.Y. Mar. 26, 2013]

[holding that the district must establish that it can implement the student's IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student]; B.R. v. New York City Dep't of Educ., 2012 WL 6691046, at *5-*7 [S.D.N.Y. Dec. 26, 2012] [same]; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [holding that parents may prospectively challenge the adequacy of a "placement classroom " when a child has not enrolled in the school because districts are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP]).

Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v New York City Dep't of Educ., (Region 4), 2013 WL 2158587, at *4 [2d Cir. May 21,2013]), and, even more clearly, that

"'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L.,

2013 WL 3814669, at *6 [rejecting as improper the parents claims related to how the proposed IEP would have been implemented], quoting R.E., 694 F.3d at 187) Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but the analysis of the IEP's implementation is retrospective. Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. (R.E., 694 F.3d at 186-88; see also Grim, 346 F.3d at 381-82 [holding that the district w as not liable for a denial of a FAPE w here the challenged IEP w as determined to be appropriate, but the parents chose not to avail themselves of the public school program ]) Here, I have previous found that the student’s IEP dated February 6, 2012 did offer the student a FAPE.

As explained more recently, "[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented. (A.M. v. New York City Dep't of Educ., 2013 WL 4056216, at *13 [S.D.N.Y. Aug. 9, 2013]; see N.K. v. New York City Dep't of Educ., 2013 WL 4436528, at *9 [S.D.N.Y. Aug. 13, 2013] [citing R.E. and rejecting challenges to placement in a specific classroom because '[t]he appropriate inquiry is into the nature of the program actually offered in the written plan']) Here, the Parent rejected the DOE’s offer of a school year for the student and signed a contract with the private school on May 1, 2012, two months before the student’s 2012-2013 school year would have started in July. (P-N)

In view of the foregoing and under the circumstances of this case, I find that the Parent cannot prevail on the claims that the DOE would have failed to implement the IEP at the public school site because a retrospective analysis of how the DOE would have executed the student's February 6, 2012 IEP at the assigned school is not an appropriate inquiry under the circumstances of this case. (R.E., 694 F3d at 186 [2d Cir. 2012]; K.L., 2013 WL 3814669 at *6; R.C., 906 F. Supp. 2d at 273)

The Second Circuit has also made clear that just because a district is not required to place implementation details such as the particular school site or classroom location on a student's IEP, the district is not permitted to choose any school and provide services that deviate from the provisions set forth in the IEP. (See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [district does not have carte blanche to provide services to a child at a school that cannot satisfy the IEP's requirem ents]) A school district has no option but to implement the written IEP and parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan.

Having found for the agency under “Prong 1” of the Burlington/Carter test for tuition reimbursement, the necessary inquiry is at an end and I need not determine whether the student’s private school is appropriate or whether equitable considerations bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for “funding/direct funding/reimbursement” for the student’s tuition and related services at the private school for the 2012-2013 school year must be denied.

Dated: November 12, 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

Number/Letter Title Dated For # of Pages

1 Due Process Response 12/18/13 DOE 04

2 IEP 02/06/12 DOE 21

3 IEP Attendance Page 02/06/12 DOE 01

4 School Progress 2011-2012 DOE 17

Report

5 Class Room Observation 02/02/12 DOE 02

6 Psycho Educational Evaluation 03/12/11 DOE 07

7 Social History Update 03/19/11 DOE 04

8 02/06/12 DOE 02

9 02/06/12 DOE 01

10 Closing Statement 10/10/14 DOE 17

A Impartial Hearing Request 10/20/13 PARENT 09

B Letter from Parent to 07/12/12 PARENT 02

C Letter from Parent to 08/24/12 PARENT 04

D Letter from Parent 11/06/12 PARENT 05

E New York City School 2011-2012 PARENT 21

Survey Report

F Special Education Service 01/20/12 PARENT 01

Delivery Report for

G New York City School 2012-2013 PARENT 19

Survey Report

H 11/2012 PARENT 25

Progress Report

I 03/2013 PARENT 25

Progress Report

J 06/2013 PARENT 26

Progress Report

K Undated PARENT 05

Program Description

L Class Schedule 2012-2013 PARENT 01

M Attendance Record 2012-2013 PARENT 01

N School 05/01/12 PARENT 02

Enrollment Contract

O Affidavit of 04/26/13 PARENT 01

P Withdrawn N/A PARENT 00

Q Copies of Payment by 05/01/12 PARENT 04

Parent to Private School 06/14/12

09/20/12

12/07/12

R Closing Statement 10/10/14 PARENT 31

I Draft Class List 2012/2013 IHO 07