New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 19, 2014

June 25, 2014

July 7, 2014

Actual Record Closed Date: July 17, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2014 July 25, 2012

Mother of Student — Parents

Parent Advocate Associated with — Parents

Psy.D. District and New York City — DOE

Representative — DOE

School – Served on C.S.E. at its meeting of July 25, 2012 (by phone) — DOE

Special Education Teacher Assigned to C.S.E. – Attended Committee Meeting of — DOE

Assistant Principal School (by phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2014

Mother of Student — Parents

Parent Advocate Associated with — Parents

District and New York City — DOE

Representative — DOE

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

Mother of Student — Parents

Parent Advocate Associated with — Parents

Principal of — Parents

District and New York City — DOE

Representative — DOE

The Matter (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, on May 19, 2014, June 25, 2014 and July 7, 2014. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York, after the recusal by one or more previously-appointed Impartial Hearing Officers, to preside over this matter by notification dated January 30, 2014. After the close of the testimonial phase of the hearing, I awaited receipt of the Transcript of the July 7, 2014 hearing, which Transcript was received on July 17, 2014. Upon receipt of such Transcript, the Record was closed. The Actual Record Close Date was July 17, 2014

The proceeding initiated by Parent by the filing by on Parent’s behalf of a Due Process Complaint Notice, dated November 4, 2013, and received by the New York City Department of Education’s Impartial Hearing Office on that date (Exhibit A). Parent alleges in her Complaint (Exhibit A) that District and its Committee on Special Education (C.S.E.) failed to offer Student a free, appropriate public education (FAPE) for the 20122013 school year on both procedural and substantive bases. However, on the first day of hearing, Parent’s Advocate withdrew the two paragraphs of the Complaint that itemized the claimed procedural deficits regarding the composition of the C.S.E.

Parent alleges that the District’s Committee on Special Education (C.S.E.) prepared for Student, on July 25, 2012, an Individualized Education Program (I.E.P.) for the 2012-2013 school year that was deficient in describing Student’s current functional levels, insufficient to meet Student’s special education needs, and contained a recommendation that Student receive her special education program in a setting that was inappropriate. Parent alleges further that the placement District proffered to Student was inappropriate. Parent rejected the District’s program and unilaterally enrolled Student in a , -2013 school year. In this proceeding, Parent seeks to have District and the New York City Department of Education ordered to reimburse Parent for the tuition paid by Parent for such unilateral placement and/or direct Complaint (Exhibit A) are no longer relevant as the 2012-2013 school year has long since ended.

At the time of the Committee meeting of July 25, 2012, Student was just shy of seventeen years old, having been born on July 27, 1995. According to the testimony of Parent, Student was found to be academically behind when Student (T.R.114). When in , Student began to receive special education services in the nature of Speech Therapy and Counseling – the latter because Student’s father had died when Student was four years old (T.R.113-115). Student remained in a general education (T.R.116). Where Student received her educational program thereafter is unclear, but at least during the 20112012 school year.

District’s Committee on Special Education (C.S.E.) met on July 25, 2012 to prepare Student’s Individualized Education Program (.I.E.P.) for the 2012-2013 school year. Present at the meeting were Special Education Teacher who also served as District Representative; and General Education T.R.43) (Exhibit 1). Participating by telephone was (T.R. 43). Parent waived the attendance of a Parent Member (T.R.43).

As a result of that meeting, an I.E.P. was issued (Exhibit 1). The I.E.P. classified Student as having and recommended that Student receive her educational program in a Special Class in a staffing with the Related weekly, thirty minutes per session, individually and once weekly, thirty minutes per session in a group; and Counseling once weekly, thirty minutes per session, in a group.

Thereafter, Parent was issued a Final Notice of Recommendation, dated August 8, 2012 (Exhibit 2), offering Student at placement School for the 2012-2013 school year. Parent testified that she visited the recommended placement on September 11, 2012 and toured the school but was unable to see . Parent returned the following day, September 12, 2012 and saw the Twelfth Grade class (T.R.119). It appears from the script appearing on Parent’s copy of the Final Notice of Recommendation (Exhibit D), that Parent responded to the Final Notice of Recommendation, by placing a note ,dated August 12, 2012 on that document stating that Parent could not accept or reject such placement until she could visit the site in September. Further script on that document, this time dated November 7, 2012, advised that Parent had visited the proffered site and found it inappropriate, as the class size was too large for Student, as Student needed more individualized attention, and that the (Exhibit D). The November 7, 2012 script closed with the statement that Student would be attending and that an impartial hearing would be requested (Exhibit D). I also note that a Parent Advocate associated with Educational to the CSE Chair a statement, dated August 15, 2012, that Parent could not observe the recommended placement because the school was closed and that Parent would enroll Student the 2012-2013 school year. The author unilaterally characterized the letter as a 10-day notice letter (Exhibit E).

More than one year later – specifically on November 4, 2013 - Parent, through her Advocate, filed a Due Process Complaint Notice (Exhibit A), seeking reimbursement and direct payment of tuition for Student’s attendance for the 2012-2013 school year.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and (3) equitable considerations support the Parent’s claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive of the Parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Conners) and even to retrospective tuition payment (Mr. and Mrs. ). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the Student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404(1)(c)). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parent’s request would cease at that point, for if a district has offered an appropriate program, Parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parent’s unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parent (N.Y.S. Education Law §4404(1)(c))). Should Parent fail to establish the appropriateness of the unilaterallyselected facility, Parent’s request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parent. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement rests upon District.

DISCUSSION

It has been often stated by the State Review Officer (see Application of the Blank, Appeal No. 11-105), that a free, appropriate public education (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]). However, that is not exactly accurate. For, 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., 2008 WL 5505470, at 4 [2d Cir. Jan. 16, 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 as amended, 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 Parent’s 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]; 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]).

It was further noted by the State Review Officer in the above-cited Decision that 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 (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).17 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. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 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 (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" (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 Parent" (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 an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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). While such benchmarks, garnered from different sources and different courts dealing with various factual presentments, appear to establish varying standards for the basis of determining whether a particular special educational program meets the obligation imposed upon districts to provide a free, appropriate public education, I shall employ, in my review and determination of the issues raised in Parents’ Due Process Complaint, the evaluation of whether the program offered to Student by District was reasonably calculated to provide Student with some meaningful educational benefit.

As noted, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). In defense of its Committee’s actions, District first presented the testimony , who had served as School Psychologist at the meeting. However, had little recollection of the specifics of the meeting (T.R.29) and excused from further testifying (T.R.33). I do not fault Witness for her lack of recollection, as Parent had disadvantaged the Committee from having a fresh recollection of events by waiting more than one full year before filing her Due Process Complaint. School District staff assigned to the Committee on Special Education have the obligation of participating in large numbers of Committee meetings and certainly cannot be expected to have significant recall of events or statements made at a particular meeting many months prior. However, District continued to attempt to defend its actions at the July 25, 2012 meeting by presenting the testimony who had served as District Representative and Special Education Teacher at the meeting. likewise conceded that his recollection of events of the July 25, 2012 meeting was vague (T.R.42), but evidenced a significant recall of what occurred at that meeting. Witness Slavin testified that the Committee had no reports or other documentary information before it at the meeting, explaining that an attempt had been made to contact Student’s school in order to have someone from that school participate, but that the school was closed (T.R.44-45). According to , the Committee, in developing Student’s I.E.P. relied on the information provided by Parent and information contained in a prior I.E.P. which was reviewed by the Committee. According to , Parent estimated that Student was functioning Grade level in both Reading Comprehension and Vocabulary, while, in Math Computation and Word Problems, Student functioned at level. Although the Committee had the obligation of having before it sufficient evaluative information and assessments to be able to determine Student’s present levels of performance and needs, it is my finding that the information provided to it by Parent gave the Committee sufficient and accurate information upon which it could develop appropriate Annual Goals. The I.E.P., in fact, contained numerous Annual Goals, all created by after the close of the meeting and per force, without input from Parent, but, according to , based on all the information the Committee had received from Parent (T.R.48). I note that , testifying on behalf of Parent, confirmed the accuracy of the information provided by Parent to the Committee (T.R.186) regarding Student’s functioning levels. The distinction and differences noted by with the findings of the Committee I find to be insignificant. It is also my finding that it was appropriate for the Committee to transfer many of the recommendations from Student’s prior I.E.P. to that created by the Committee on July 25, 2012, as no significant changes were reported by Parent to the Committee. The I.E.P. noted, in Management Needs, that Student required repetition, review and rephrasing; instruction broken down into discrete units of learning; use of multi-sensory materials; clues and prompting as needed; as well as praise and encouragement (Exhibit 1). Similar needs were confirmed by the

However, I have concerns with the statement contained within the I.E.P. that noted of such finding by the Committee or that such was even discussed at the Committee meeting of July 25, 2012 testified that he could agree with almost nothing in that statement (T.R.187). It was the testimony that Student had (T.R.188). In contrast, however, I note that Student’s Report Card (Exhibit G that it reflect that Student works . However, it is my finding that such inconsistency or inaccuracy on the part of the Committee regarding Student’s social skills, while unfortunate, does not rise to the level of denying to Student a free, appropriate public education.

As noted, the Committee recommended Student’s placement in Class in a Community School (Exhibits 1 and 2). Such was consistent with the determination that Student required a small class setting that would afford Student the opportunity for individual attention and address Student’s Management Needs. The Committee is required to make its determination regarding placement from the Continuum established by the Commissioner of Education of the State of New York (8 NYCRR 200.6), with due regard for placing Student in the Least Restrictive Environment. As noted in such Regulations:

The maximum class size for those students whose special education needs consist primarily of the need for specialized instruction which can best be accomplished in a self-contained setting shall not exceed fifteen students (8NYCRR 2300.6(g)(4)).

The exceptions that follow such Regulation do not apply in this instance. I fully understand Parent’s rejection of such recommended placement, having afforded to Student during her entire educational experience the comfort and safety of a small, private sectarian environment. Student has for a number of years, in a class – at least during the 2012-2013 school year – of five students, and in a school with a total population of thirty-four or thirty-five students (T.R178). With such a history, the idea of having a daughter placed in a class of fifteen or in a building of four thousand cannot be comforting. However, it is the obligation of District to afford to Student a free, appropriate public education. It is the nature of public schools that they are bigger and that class size cannot be contrasted with a school

Therefore, it is my finding and determination that District has established that it offered Student a special education program that was appropriate to meet her needs in a placement that was reasonably calculated to provide Student with meaningful educational benefit. Thus, the obligation of District to Student has been met. District has successfully borne its burden of establishing that it offered Student a free, appropriate public education for the 2012-2013 school year.

There is no doubt but that the Committee is guilty of committing numerous procedural errors in preparing Student’s program for the 2012-2013 school year. Indeed, the very instant the Committee convened on July 25, 2012, it was in violation of the federal and State Regulations for not having the teacher of the Student – who is with the Student each and every school day and so familiar with Student’s capabilities, achievements and deficits – present as a member of the Committee, rather than a former teacher whose role as assigned to the Committee on a full time basis, is to fashion and create a program for a child whom such teacher has never met and whose accomplishments he may be aware of, but only by reading reports or listening to Parent. Annual Goals, which I have found acceptable in this instance, rarely are connected to the child’s present levels of performance. And the Coordinated Set of Transition Activities contained in Student’s I.E.P. (Exhibit 1) is pro forma at best, setting no realistic program that might lead Student to an Independent life. Indeed, the Committee should have had Student at the meeting so as to ascertain her desires and abilities, as is required by Regulations.

However, all such procedural deficits are to be excused so long as they do not rise to the level of denying Student a free, appropriate public education. And, as noted, that test has been distilled into a simple evaluation of whether the proffered program is reasonably calculated to provide Student with a meaningful educational benefit. And, as noted above, it is my finding that such program was reasonably calculated to do so.

Having made such determination, it is unnecessary that I review the appropriateness of the unilaterally-selected placement whether equitable considerations warrant an award of reimbursement or direct payment of tuition to that institution.

ORDER

Based upon the above review, it is HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED. Dated: July 25, 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 RECORD ON MAY 19, 2014

A. Parent’s Due Process Complaint Notice, Parent dated 11-4-13 (5 pages; Parents)

B. Program Description Parent (1 page; Parents)

C. I.E.P. for Student as prepared by C.S.E. of Parent District, dated 7-25-12 (9 pages; Parents)

D. Final Notice of Recommendation, dated Parent 8-12-12, with script (1); Fax Confirmation (1) (2 pages; Parents)

E. Letter from Parent Advocate to C.S.E., Parent dated 8-15-12 (1); Fax Confirmation (1) (2 pages; Parents)

F. Student’s Class Schedule for 2012-2103 Parent (1 page; Parents)

G. Student’s Report Card for 2012-2013 Parent School Year (1 page; Parents)

H. Affidavit by, sworn to on Parent 11-7-13 (1 page; Parents)

I. Student’s Attendance Report for the Parent 2012-2013 School Year (1 page; Parents)

J. Registration Contract – 2012-2013, Parent Undated (1); Addendum to Contract, Undated – signed by Parent (2 pages; Parents)

K. Schedule of Provided Counseling Services Parent to Student during the 2012-2013 school year (1 page; Parents)

L. Affidavit of, sworn to Parent on 7-24-13 (2 pages; Parents)

M. Copies of Registration Certificate for Parent (1); copy of Diploma Parent Issued by (1); copy of Public School Teacher Certificate issued dated 2-1-82 (1) (3 pages; Parents)

N. Copies of Credit Card Statements to Parent Parent from Capital One, various dates (9 pages; Parents)

O. Copy of Parent’s 2012 U.S. Individual Parent Income Tax Return (1040) (1 page; Parents)

1. Student’s I.E.P. as Prepared by District’s C.S.E., dated 7-25-12 (14 pages; DOE)

2. Final Notice of Recommendation, dated 8-8-12 (with script by Parent added, dated 8-12-12 and 11-7-12 (1 page; DOE)

DOCUMENTATION ENTERED INTO RECORD ON JUNE 25, 2014

None

DOCUMENTATION ENTERED INTO RECORD ON JULY 7, 2014

None