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: March 11, 20015

Actual Record Closed Date: March 23, 2015

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 11, 2015

Name Description On Behalf of

Parent of Student — Parents

Parent Advocate Associated with — Parents

Classroom Teacher of Student for at during the 2013-2014 school year, Psy.D. Department of Education and DistrictDOE Representative — Parents

Teacher Assigned – C.S.E. - — DOE

The Matter of , (hereinafter referred to as “Student”), came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq., on March 11, 2015. The undersigned had been appointed as the Impartial Hearing Officer authorized to preside over this matter by notice received from the New York City Department of Education’s Impartial Hearing Office, dated July 29, 2014.

The proceeding was initiated by a Due Process Complaint Notice filed on behalf of Parent by Service, dated July 28, 2014 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The proceeding challenged the appropriateness of the special education program recommended for Student by District’s Committee on Special Education (C.S.E.) for the 2013-2014 school year, and alleged that the Individualized Education Program (I.E.P.)

that had been created by the C.S.E. for Student for that school year was not reasonable calculated to offer Student educational benefit. As a result of such alleged failure,

Student’s placement was continued at , a small, facility that Student has attended for a number of years, where Student attended its program at a facility known as . Parent seeks, in this proceeding, reimbursement for the costs associated with such unilateral placement of Student at for the 2013-2014 school year and/or direct payment to for such tuition costs (Exhibit A).

Student is presently of age, having been born on April 5, 1999. However, as of May 6, 2013, the date on which District’s C.S.E. prepared the Individualized Education Program (I.E.P.) which is challenged in this proceeding, Student was of age and completing the at .

Student had been attending since her initial placement at that facility by Parent as Student entered (T.R.125) A Psycho-Educational Evaluation had been performed by District personnel on February 17, 2011 – a little more than years prior to the Committee meeting of May 6, 2013 which formulated the Special Education program with which Parent disagrees. That evaluation (Exhibit 3), through the utilization of the – ( ), reported that Student was in the Student evidenced a (Exhibit 3). The evaluation also utilized the - – ( ). Such evaluation instrument disclosed that Student achieved a Grade Equivalent of (Exhibit 3). In , Student’s overall score indicated that Student was performing at a . However, in both Student’s

On May 6, 2013, District’s C.S.E. convened to conduct an Annual Review and prepare Student’s Individualized Education Program (I.E.P.) for the 2013-2014 school year. The sign-in sheet from that meeting (Exhibit 1) indicates that served both as District Representative and Teacher. Also present at that meeting were School Social Worker and School Psychologist (T.R. ).

, Student’s teacher at , who participated as the mandated Special Education Teacher, and Parent participated by phone. No Parent Member participated in the meeting, as Parent had executed a Declination Letter waiving such member’s participation (Exhibit 1)/

The Committee proceeded to prepare Student’s program for the 2013-2014 school year. It classified Student as having a and recommended that Student receive her special education program in a in a School having a staffing ratio of , together with the times per week, minutes per session, ; / times per week, minutes per session, ; and per week, minutes per session, and per week, minutes per session, in a group of (Exhibit 1). The I.E.P. noted that Student required very specific instruction; that she was on a level and on a level; and had a lot of . It also was reported that Student, in , was working on an book; and often needed instruction, The I.E.P. of May 6, 2013, in addressing Student’s , provided that Student be given

.(Exhibit 1). Testing

Accommodations of

.

In a document dated May 29, 2013, District issued a Final Notice of Recommendation, offering Student placement in a having a staffing ratio of , with the recommended Related Services, for the 2013-2014 school year (Exhibit 2). By correspondence dated August 12, 2013, Parent’s Advocate sent a form letter to District’s C.S.E. Chair, stating Parent did not agree with the proposed placement of Student in a setting, as such could not meet Student’s needs, which required a smaller teacher to student ratio, and that Parent would enroll Student at for the 2013-2014 school year (Exhibit E). Sometime thereafter, Parent’s Educational Advocate returned the Final Notice of Recommendation (Exhibit 2), with the scripted note, dated June 19, 2013 that Parent had tried to visit the proffered placement but was advised that it was too late in the school year to properly observe the program; and, by further not, advised that Parent had visited to proffered placement but that such was not appropriate (Exhibit 2). According to the testimony of Parent, Parent visited the proffered placement sometime in September or October of 2013 (T..), but found that such was inappropriate for Student because of Student’s severe in light of the number of students in the school, that the class offered was too advanced for Student, and that Student would not gain any educational benefit in such placement.

As noted, Parent, through her Advocate, filed her Due Process Complaint, dated

July21, 2014 - notably after the conclusion of the 2013-2014 school year - in which Parent sought reimbursement or direct payment of Student’s tuition at for the 2013-2014 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.

Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.

Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); (Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that 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’s Education Department would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v.

Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk. Further pronouncements made thereafter by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Connors v. Mills, 34 F. Supp 2d 795 (N.D.N.Y. 1998) and even to retrospective tuition payment (Mr. and Mrs. A. v. New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

BURDEN OF PROOF

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). 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, a 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).

Should Parent fail to establish the appropriateness of the unilaterally-selected 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 parents. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement or, as here, other relief, rests upon

District.

DISCUSSION

It is stated that a FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling

Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).

Courts and Hearing Officers have, at times, struggled in defining exactly what constitutes an “appropriate” program. From the decisions issued in such cases, guidelines or suggested criteria have been gleaned. Thus, it has been stated 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 also 20 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 parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with 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). It is this last requirement – that the IEP must be "reasonably calculated to provide some 'meaningful' benefit" - that will guide my review in this matter.

As noted previously, on March 28, 2012, District’s C.S.E. convened to conduct an Annual Review and prepare Student’s Individualized Education Program (I.E.P.) for the 2012-2013 school year.

Parent challenges the sufficiency of the I.E.P. prepared by Districts C.S.E. in four specific areas. First is Parent’s vague assertion that it is not clear if the Committee which met on May 6, 2013 was properly constituted, noting that no Parent Member was present and that no waiver of such Parent Member was signed by Parent (Exhibit A). I find such allegation to be specious, as the testimony of Witness (T.R.25-26) established that Parent had participated at that meeting by telephone and had clearly declined the need to have a Parent Member participate, although offered the choice of adjourning the meeting in order to secure the attendance of a Parent Member. Parent obviously did not sign a waiver, as she was not present at the meeting, but participated by telephone. However, as noted in Exhibit 1 at page 14, a waiver was completed at the meeting based upon Parent’s consent (T.R.26).

Parent also alleges in her Due Process Complaint that the I.E.P. was insufficient in that present levels of Student’s and levels were

(Exhibit A). However, a review of the I.E.P. discloses the contrary. While, according to the testimony of Witness , the Committee did not have before it a Report from Student’s then-classroom teacher (T.R.28), it had relied on the information provided by that teacher, who was participating by telephone (T.R.29) (Exhibit 1).

According to Witness , the Committee also had the results of the Evaluation performed in 2011 (Exhibit 3) (T.R.27-28). The I.E.P. lists information regarding Student’s as was contained in the Psycho-Educational Evaluation and contains information of Student’s Academic Performance, noting

Student’s specific academic levels in , and .. It is my finding and determination that Parent’s complaint in this regard is without foundation.

Parent also complains that there is no in the I.E.P. regarding Student’s and needs were in the areas of and , , despite its recommendation that such be provided to Student.. While such allegation is correct regarding specific deficits, I find that there are specific Annual Goals within the I.E.P. that address Student’s deficits and the areas on which such were to direct their attention.

Such is. I find, sufficient. As to the recommendation that Student receive , the I.E.P. addresses both Student’s levels and specific needs. Parent identified Student’s as Student’s most

. While there are no specific Annual Goals directed to such deficit, I find that the provision of by the Committee sufficient to address such deficit.

Parent further complains that the Annual Goals contained in the I.E.P. do not meet the mandated criteria that such be specific, measurable and individualized. While such

Annual Goals are directed to each of the Student’s deficits, they are, in most cases, vague, stating that the Student “…will improve”, without establishing a specific goal that might enable both Parent and staff to determine if Student is approaching mastery of such Goal/.

However, while perhaps insufficient or not fully compliant with the precision mandated by Commissioner’s Regulations, it is my finding and determination that such impreciseness does not rise to the level of depriving Student of a free, appropriate public education.

Parent also challenges the appropriateness of the Committee’s recommendation that Student receive her special education program in a having a staffing ratio of , alleging that such program cannot meet Student’s needs and concerns as described in the I.E.P., including Student’s , (Exhibit A). However, all parties agreed that Student was in need of a setting. Commissioner’s Regulations provide for such need of settings, noting that:

“The maximum class size for for those students whose special education needs consist primarily of the need for specialized instruction which can be best accomplished in a setting shall not exceed students.

8 NYCRR 200.6(h)(4)(i)

The Committee recommended that Student receive her special education program in a having a staffing ratio of , Witness explained that the reason the Committee had not recommended a program was that there are no programs at the level (T.R.48) and that a program would have been too restrictive on the level for Student, as such placement dealt with students who had more than Student (T.R.48).

It is my finding and determination that the class size recommended by the Committee for Student was appropriate and sufficient to meet Student’s needs.

It is my finding and determination, therefore, that the special education program envisioned by the C.S.E. for Student in the I.E.P. of May 6, 2013 (Exhibit 1) offered Student a program that was reasonably calculated to provide Student with meaningful educational benefit. While Student’s placement in a classroom having one special education teacher and a maximum of students might not have provided Student with the same level of that Student might be afforded in a class with fewer students, it nevertheless proposed and offered a program that was reasonably calculated to provide Student meaningful educational advancement. This, I find, was the extent of District’s obligation to Student.

It is, therefore, my finding and determination that District has successfully borne its obligation to establish, by a preponderance of the evidence, that it offered Student a free, appropriate public education for the 2013-2014 school year.

Having found that District has established, by a preponderance of evidence, that it offered Student a free, appropriate public education, it is unnecessary that I review the appropriateness of Student’s unilateral placement at for the 2013-2014 school year or whether equitable considerations favor an award of tuition reimbursement or direct payment to for Student’s attendance at such facility for the 2013- 2014 school year.

Even were my finding and determination otherwise, it would be my further finding and determination that Parent had no standing to commence this proceeding or seek the relief requested in her Due Process Complaint. As previously noted, the Supreme Court, in deciding School Committee of the Town of Burlington v. Departm ent of Education, M assachusetts, 471 U.S. 359 (1985), noted that parents who unilaterally decide to place their child do so at their own financial risk. However, the parent who brought this proceeding did not sign the Contract enrolling Student at for the 2013-2014 school year. That Contract (Exhibit H) was signed solely by Student’s father, . Parent and Student’s father are divorced (T.R.117). Parent has assumed no obligation to pay anything because of Stude nt’s enrollment or attendance at that facility during the 2013-2014 school year. An examination of the copies of ’s Statements

(Exhibit J) confirms that all payments made to during the 2013-2014 school year were made through that Credit Card Account, which is also confirmed by the Affidavit of (Exhibit I). Parent is entitled to no reimbursement, having made no payment, nor is she entitled to request direct payment to , as she was never a party to Student’s enrollment at that facility. Simply put, Parent is not, in any manner, legally obligated to pay for Student’s attendance at during the 2013-2014 school year and, thus, is not a proper party to this proceeding. On that basis alone, I would dismiss Parent’s Complaint.

ORDER

Based upon the above, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED

Dated: March 25, 2015

, 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 MARCH 11, 2015

A. Parent’s Due Process Complaint Notice, Parent dated 7-28-14 (4 pages; Parents)

B. Philosophy Parent (2 pages; Parents)

C. Student’s I.E.P. as prepared by District’s Parent C.S.E. on 5-6-13 (16 pages; Parents)

D. Final Notice of Recommendation, dated Parent 5-29-13 (1 page; Parents)

E. Ten-Day Notice from Parent Service to C.S.E., dated 8-12-13 (1); Fax Transmission Verification Report, dated 8-12-13 (1) (2 pages; Parents)

F. Student’s Class Schedule at for the Parent 2012-2013 School Year (1 page; Parents)

G. Student’s Report an, Parent dated 5-1-14, by Teachers,. (2 pages; Parents)

H. 2013-2014 Enrollment Contract with Parent by Mr., dated 9-1-13 (1 page; Parents)

I. Affidavit by, sworn to on 2-26-15 Parent (1 page; Parents)

J. Copies of Parent Billings to between 8-1-13 and 4-29-14 (6 pages; Parents)

K. Individual U.S. Individual Income Tax Return Parent (Form 1040) by, dated 4-12-13; B ut dated by Preparer on 2-20-14 (2 pages; Parents)

L. Individual U.S. Individual Income Tax Return Parent (Form 1040) by, dated 3-13-14 (2 pages; Parents)

M. Student’s Attendance Record at Parent for 2013-2014 (1 page; Parents)

1. Students’ I.E.P. as prepared by District’s C.S.E. on 5-6-13 (14 pages; DOE)

2. Final Notice of Recommendation, dated 5-29-13 (1 page; DOE)

3. Psycho-Educational Evaluation Report by, School Psychologist, dated 2-17-11 (7 pages; DOE)