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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 2, 2014
October 16, 2014
November 13, 2014
February 24, 2015
Actual Record Closed Date: April 24, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2,
2014
Esq. Attorney Department of Education Department of Of Education Representative Education — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2014
Esq. Attorney — Parents
District Representative Mother — DOE
Ph.D. School Psychologist — DOE
(via telephone)
- Ph.D. Assistant Principal — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13,
2014
Esq. Attorney — Parents
District Representative Mother — DOE
Special Education Teacher — Parents
(via telephone)
Ph.D. — Parents
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24,
2015
Esq. Attorney — Parents
District Representative Mother — DOE
Consultant — Parents
(via telephone)
INTRODUCTION
On September 2, 2014, October 16, 2014, November 13, 2014 and February 24, 2015 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“ ”). The hearing commenced at and was held at the Impartial Hearing Office, , New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
is old and is classified as .
He attends the (“ ”) as per his April 23, 2014 Committee on Preschool Education Individualized Education Program (“CPSE IEP”). In a letter dated August 4, 2014, ’s parents, by their attorney, - Esq., of the , filed a due process request for an impartial hearing (“Complaint”). In that Complaint the parents maintained that the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2014-2015 school year in that IEP dated March 23, 2014 and the IEP resulting from a
“reconvene” on July 25, 2014 were substantially and procedurally flawed and that the program and placement recommendations were not appropriate for The parents argued that and the related services on the CPSE IEP are appropriate for and that the equities favor them. (Parents’ Ex. A). The Department of Education did not file a response.
I held a pendency hearing on September 2, 2014 and I filed a Pendency Decision and Order on September 5, 2014. Pursuant to that Order is attending and is receiving all of the related services on the April 23, 2014 CPSE IEP.
I was appointed as the Impartial Hearing Officer on August 4, 2014. The original compliance date was October 3, 2014. On September 2, 2014, at the request of the parents for the availability of witnesses and without objection by the District, the compliance date was extended to November 2, 2014. On October 3, 2014 at the request of the parents because they were unable to appear and without objection by the District, the compliance date was extended to November 2, 2014. At the conclusion of the hearing held on October 16, 2014 at the request of the parents for the availability of witnesses and without objection by the District the compliance date was extended to December 2, 2014.
At conclusion of the hearing held on November 13, 2014 at the request of the parents for the availability of witnesses and without objection by the District the compliance date was extended to January 1, 2015. Pursuant to a request by the parents on December 8, 2014 because they were not able to appear for the hearing scheduled for December 19, 2014 and without an objection by the District, the compliance date was extended to February 1, 2015. and a hearing remained scheduled for January 12, 2015. Pursuant to a request by the parents on January 12, 2015 for the availability of witnesses and without objection by the District a hearing date was scheduled for February 24, 2015 and the compliance date was extended to April 3, 2015. At the conclusion of the hearing held on February 24, 2015 and pursuant to a request by both parties for time to review the transcripts and submit closing briefs, the compliance date was extended to April 3, 3014. On March 30, 2015 at the request of the District for this hearing officer to review the closing briefs and issue a Decision and Order and without objection by the parents the compliance date was extended to May 3, 2015 (adjusted by IHRS to May 4, 2015).
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending pursuant to an Order of Pendency and thus there was no negative impact on the child’s educational interest or well-being as a result of the delay; (b) in accordance with due process the parties were entitled to the opportunity to secure witnesses to appear at the hearing in support of their position and the parties were entitled to issue closing statements based on the transcript and have this hearing officer review the transcript and consider the evidence and the closing briefs prior to the issuance of a Decision and Order;
(c) although the child is receiving services pursuant to pendency the District did not object any of the parents’ requests for extensions of the timeline, it joined in the February 24, 2015 request to extend the compliance date and made the March 30, 2015 request for an extension, and thus there is no reason to conclude that there were any financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.
ISSUES TO BE RESOLVED
The issues to be resolved are: 1) whether the July 30, 2015 IEP was procedurally and substantially adequate; 2) whether the proposed placement at was appropriate to meet ’s educational needs in the LRE; 3) if the Department of Education did not meet its burden of demonstrating (1) and (2) whether the parents demonstrated that is appropriate to meet ’s special education needs; and 3)
whether the equities of the case support the parents or the Department of Education.
FINDINGS OF FACT
, Ph.D., is a school psychologist at in ( : 18-
19, 29).[1] , Ph.D., has Master’s Degree in special education and a doctorate in educational leadership. She is licensed in special education and as an assistant principal ( : 66-69). has a Master’s Degree in and is duly certified in special education and . ( : 106-107, 137). has a Master’s Degree in and postgraduate credits in administration. She is state certified as a school administrator ( : 170-171). , Ph.D., has a doctorate in psychology and post-doctoral fellowship in . She is a licensed psychologist in New York State ( : 143-
144). is ’s mother.
BACKGROUND
In February 2010 when was approximately old, his parents took him to a . He was and was diagnosed with
,
. has
( : 194; : 147-148). At that time was not and ( : 104-195). ’s parents then took him to see who runs the at . Since then , consisting of a , , , a , and , has been providing ’s ( : 195-
196). also has (“ ”),
( : 110, 111, 137-138). Starting in his first year of life received the services of , , and ( :
196-197).
2012-2013 School Year
transitioned to the CPSE in August/September 2012 and entered where he receives the related services of (“ ”), (“ ”)
and (“ ”), each times a week for and a week for . has and classroom ( : 196). experienced regression during his first eight months at due to , and ( : 196-197). In April 2013 had a (“ ”) which reduced from approximately per week to per week ( : 197-198; : 148-149). After the ’s parents saw that there was a “window of opportunity” for to learn ( : 198).
Mr. has been ’s teacher since April 2013, after the ( : 108-109; : 198). Mr. was trained in working with children and with children who, like , have ( : 110, 111, 137-138). Before entered his class for the first time Mr. met with ’s parents and participated in a “whole team meeting” to discuss ’s needs ( : 109-110). The three key needs that impact on ’s learning are the , and that requires , and ( : 110-112). Mr. explained that has needs that require before he can be in a state where he can learn meaningfully and
( : 112, 115).
2013-2014 School Year
In September 2013 ’s parents took him to Dr . for a evaluation ( : 199-200; : 146; DOE Ex. 2). Dr.
recommended that remain in a setting with a student-to-teacher ratio and “ support,” which he was receiving in his then-current classroom ( : 151-152).
Mr. was ’s teacher for the 2013-2014 school year. was in a class with a variance of students. of the students had and had needs requiring services with in the classroom ( : 113-114). Mr. wrote ’s Educational Update dated January 2014 in anticipation of the Turning Five process and the development of new goals for ( : 114, 119; DOE Ex. 3). At that time was and were “ ”
“ ” “
“ ”
“ ”
In the Educational Update
“ ”
“ ” that seems to be the best way for to learn ( : 115, 119). Mr. trained ’s
(who has been working with him since he began at ) in the techniques he uses with and he and he and the use various techniques to prepare for
( : 141-142).
Mr. noted that when began the 2013-2014 school year he was in a but when he wrote the Educational Update was able to “ ” also began to “ ” at the beginning of that school year and
“ ” ( : 116-
120). Mr. opined that ’s progress in was due to the amount of support in the classroom, specifically the number of adults, having the same for the past two years, and the flexibility that such support was able to provide ( : 117-118). The classroom setup allows for Mr. to work with on his own schedule, based on his readiness at any particular point in time during the day
( : 118).
When goes into a room with students it is difficult for him . “ ” “ ” “ ”( : 131-132, 140).
Mr. has a daily communication log with in which he reports how does each day. He also “scores” most current IEP four times a year as indicated on the IEP in terms of, for example, “significant progress made” or “emerging skills.” At the time of his testimony at impartial hearing Mr. was using ’s April 23, 2014 IEP ( : 120-121, 132-133; Parents’ Ex. B).
Turning Five Process
In the late winter or early spring of the 2013-2014 school year ’s parents contacted Ms. about getting her guidance for ’s Turning Five process. Ms.
has extensive experience with the Department of Education in this area
( : 174, 190; : 199).[2] ’s family provided Ms. with reports,
, evaluations and background information so that she could familiarize herself with ’s “ needs. Ms. observed at on May 5, 2014 ( :
174-175, 189; Parents’ Ex. F).
On May 5, 2014 Ms. met with ’s program director who spoke about ’s needs and his progress and the services that the school provides. She toured the school and visited the “ ” that assists with . The director recounted that after spending time in that room and is “ ”( : 176-177).
Ms. then spent about an observing in his classroom. At that time was not able . When she arrived was and his was ( : 177-178). has and , and issues. He is
( : 178).
’s classroom at was “ ” ( : 178).
There were students at the time with and in addition to the teacher and the classroom ( : 179). ’s and Mr. were very “ ” with in getting him and and . was ( : 179). Ms. opined that the program was appropriate for that the staff had a good system in place for him and she was “ ” “ ” they worked with him ( : 180).
After the observation Ms. told that she “ ”
“ ” “
” to ( : 180). She also opined that required a “
”
“ ”( : 190-191).
Turning Five IEP Meeting
Dr. was the “point person” working with for his Turning Five meeting.
He interviewed ’s mother, , for a social history, spoke with ’s teachers at and observed in his classroom for to . Dr.
spoke with ’s teacher, Mr. .3 Although Dr. did not recall the details
Dr. has not worked in a school full-time but has assisted psychologists who were working of his discussion with Mr. about the class available in , he recalled that when he reviewed all of the available programs for Mr.
“ ” that would require the level of support in a classroom. Mr.
recalled that if Dr. gave him several options that the Department of Education could provide he would have replied that the was the most supportive of that group ( : 20-21, 29, 34, 42-43, 60-64; :121-123: DOE Ex. 10 at 2). During the observation was working and with his teacher. is essentially and and requires support. is able to while his pushes him ( : 21-22; DOE Ex. 9).
Dr. conducted ’s Turning Five meeting on March 28, 2014 ( : 23, 29; DOE Ex. 13 at 12). The other participants in the meeting were , , a licensed special education teacher and related service provider, and , a licensed teacher ( : 23, 33-34; : 201; DOE Ex. 13 at 14-15).
None of ’s teachers or related service providers participated in the meeting. Mr.
would have been available to attend but no one asked him to do so. There was no participant in attendance. The only person at the IEP meeting who had interacted with was his mother. Dr. did not believe that anyone at the meeting had taught in the type of setting that the team expected to recommend for Dr. testified that “in hindsight” the team could have “made an effort” to bring in teachers or a staff member but his understanding was that the team was not “mandated” to do so. Prior to the meeting requested that be present but Dr. supervisor told him that the Department of Education no longer assigned to IEP meetings. provided documents and documents from and related service providers. She also provided a document from explaining the details of The team did not “go through those [documents]
specifically” but reviewed them “in the context of” how the information in the documents there and on “rare” occasions has evaluated and worked with students ( : would impact on the development of the IEP goals ( : 23-24, 34-37, 47-48;
: 123-124; : 202; DOE Exs. 3, 4, 5, 6).[4]
The IEP team discussed all of the issues faces during the day, including transportation and assistance on the transportation. The IEP team classified as having “ ” and recommended a program - -
which is “ ”
“ ” -- in a school with a and additional supports due to his needs. The program is the only
Department of Education program that would have children with needs similar to those of The IEP team determined that “given the parameters that [it] operate[d] under” this would be the most appropriate setting for while providing him with a FAPE in the least restrictive environment (“LRE”). Because of ’s level of need the IEP team thought that any less restrictive program would not be appropriate and would result in regression ( : 26). There was no discussion about the program and the team told that it was the most supportive environment it could offer for ( : 25-28, 38-42;
: 203-204). The IEP team also recommended the related services of , and each times a week for , a week for , a and ( : 27; : 203). Dr.
did not recall whether had any concerns about the size of the program but he believed that ’s mother agreed with the recommendations on the IEP ( : 28, 43).
Dr. developed the goals on the IEP with the input of the other members of the IEP team an in consideration of the goals on ’s CPSE IEP, the documents available to the team including the Turning Five updates and reports, the observation and Dr.
’s conversation with ’s teachers. The goals were reviewed with but not with any of ’s then-current teachers at ( : 53, 59-60; DOE Ex. 13 at 3-4). Mr.
had sent the parents and the Department of Education a copy of his Educational Progress Report and the goals that he would like to see on the ’s IEP ( : 124).
However, while the goals on the March 28, 2014 IEP may have been “extrapolated” from the goals submitted by Mr. , they are not the same as those he submitted
( : 124-125).
The portion of the IEP that asks whether the student “ ” is blank, although requires
( : 54; DOE Ex. 13 at 54). After the IEP meeting Dr.
requested additional information which provided ( : 205).[5]
May 6, 2014 Update
On May 6, 2014, Dr. observed in his classroom for an update, reviewed updated progress reports and spoke with ’s team members and the director of ( : 153). On that date she observed that was making “
”
He was beginning to
“ ” from when she saw him in the fall
( : 152-154).
Dr. believed it to be “imperative” that remain in a similar setting for the 2014-2015 school year. did not have any of the skills for and her clinical opinion was that he was not ready to go to . She issued a
Consultation report indicating that due to his “
” “ ” “
” ( :
147-148, 153-155; Parents’ Ex. C at 2). In particular, Dr. believed that the number of children in the class while having special education teacher would not give the level of that he requires provided by someone who is trained in working with students who have similar disabilities or deficits in these areas, not simply an extra
( : 158-159).
On May 27, 2014 sent an email to Dr. and attached Dr. ’s May 6, 2014 Report ( : 202-203, 205: Parents’ Ex. G)
Another IEP meeting was held on July 25, 2014 to amend the nature of the on ’s IEP from a to
(DOE Ex. 16 at 10). Dr. did not participate in that IEP meeting and ’s father participated by telephone. If had provided any documents to Dr.
between the IEP meetings he would have uploaded the documents into ’s SESIS profile which would have been available to the IEP team participants who would have had the authority to amend the IEP to reflect information on those documents ( : 56-
59; : 205-206). The July IEP does not make any reference to the Evaluation that provided to Dr. (DOE Ex. 16). The only change from the March IEP to the July IEP is in the nature of the to be provided for
(compare DOE Exs. 13 and 16).
Recommended Placement
On July 11, 2014 someone from the placement office called and told her that they had sent a letter to ’s but because they failed to include the letter was returned ( : 207). gave and on July 22, 2014 she received the Final Notice of Recommendation (“ ”) for a class at , a school. She called the school the next day and made an appointment to visit on July 30, 2014 with her mother and Ms. ( : 207-208;
: 182; - : 69).
Dr. - is the assistant principal of the school ( - : 66-
67).6 The school has students and occupies floors of the building ( -
: 91; : 182). ( - : 91-
92). The class is the only program available for children with ( - : 84-85). There are classes and the students range in age from years-old; Dr. - did not know whether any of the students in the classes were -old at the beginning of the school year. In determining which children get assigned to a particular class Dr. - consults with the teachers and reviews the data for each child, including the levels of the children and the amount of support each of them requires ( - : 69-70, 82-83, 93).
Prior to this position she taught a class for years ( - : 68). The school uses “ ” curriculum where . There is a monthly curriculum theme that an instructional guide committee individualizes for the students. The students are assessed using the and then the , which is also done on line. The school also uses benchmarks that are aligned with the curriculum. Every Friday the IEP data is tracked to make sure that the students are progressing to mastery level on their IEP goals. The data is printed every month and programs are updated monthly ( - : 70-71).
Some classes have additional adults in the room because individual students might be assigned a or . A teacher pushes in to the classroom as well ( - : 74-75). - reviewed ’s IEP. If had attended the school he would have received his and services through the model. The would have used an and support with or any supports that required. However, if ’s IEP mandated it would have been provided ( - : 78-
80). ’s services would have been provided
( - : 77-78, 85-86). The school has a room that students go to “ ” where the children are helped by an and a as well as the teachers and the . The school also has various kinds of ( - : 73, 92). With parental permission the students in the classes and ( -
: 72).
On July 30, 2014 Ms. went with and ’s to take a tour of that placement which at the time was the summer program. They toured the school with Mr. , the intake coordinator at the school. Ms. noted that the program was held in a “ ” “ ”
“ ”
“ ” “ ” A member
of the school staff told them that the class was to attend would have or ( : 183-184, 191; : 208; Parents’ Ex. F at 7).[7]
Ms. did not believe the program was appropriate for because, while the staff was caring, they were not and
“ ”
“ ”
“ ” ( : 184; Parents’ Ex. F at 9). There was no in the classroom for and there was “ ” ( : 184-185). The teacher in the class, who she believed to be the teacher that would have in the program, did “ ” and Ms. was concerned that would regress and “probably lose significant skills” that he has developed at ( : 186-187).
Ms. was also concerned about ’s if he were to attend the program. would be with .
. did not know whether would have his with him in the . Since has “ ”
“ ”
“ ”
( : 185; : 210 212; - : 76, 90;
Parents’ Ex. F at 9). There were on staff for students; none of them was trained in . The and said that because of the size of the school it would “ ” if he did
( : 185; : 209-210; : 74). Ms. noted that some of the staff members and the who worked in the summer program were not those who worked during the school year, and that she was concerned because requires consistency to make any kind of meaningful progress ( : 186).
was concerned because
. Mr. told that and “ ”
“
”( : 208-209).
Ms. concluded that it would be best for to remain at for at least another year because making a change at that point would be “detrimental to his progress” and the recommended site would not adequately meet “ needs ( : 188). Aside from her visit to the school with , Ms. is familiar with the program and she visited when she was and also visited other sites. Ms. also trained the evaluators and clinicians who worked with her in making appropriate program determinations for students ( : 181-182). Based on her extensive experience she did not believed that a class would be sufficiently supportive for ( :
192).
Because the parents did receive the FNR until July 22nd there were only days left to the end of the school year, believed that it was too late to request another school. She did not recall whether she formally rejected the proposed placement and she did not sign the FNR because she did to agree with the recommended services ( : 214-
215).
2014-2015 School Year
In November 2014 when Mr. testified at the impartial hearing, had begun to and the staff was working with to “ ” “ ” ( : 133-
134). Mr. also used his background
( : 136). has
( : 140).
believed that made “ ” in Mr. ’s class ( : 198). At the time of the impartial hearing in February 2015 was able to , whereas a few months earlier
. credited Mr. and ’s
for figuring out how to get him to attain that skill ( : 198-199). The staff at has been consistent in working with hours a day and has taken a long time to understand “ ” because his needs are ( : 199).
was learning “ ” “ ”
“ ” strides. For example, has and and
, ( : 213-
214; DOE Ex. 15).
does not currently have a at . Rather, he has an and a
. with his
. There is an in the school who
is never more than , and she
is available if , , or if she has to
. The is also able to determine whether needs ( : 206-207, 211-212; : 140-141). has
( : 207).
CONCLUSIONS OF LAW AND DISCUSSION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). The
Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v.
Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).
The Department 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 Parents’ claim. School
Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404(1)(c);
Application of a Child with a Disability, Appeal No. 11-053.
To begin, unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. An additional facts included below will be referenced to the record as well.
I.
The Department of Education failed to provide with a FAPE for the 2013-2014
School Year
To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-
189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1].
In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim
v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies: (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits.[20] U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; K.R.
and S.R. v. N.Y. City Dept. of Educ., 13 Civ. 7454 (SAS) April 20, 2014; R.E, 694 F.3d at 190.
A. I find that both the March 25, 2014 IEP and the July 25, 2014 IEP are procedurally flawed and caused a deprivation of FAPE for
At the outset, a properly constituted CSE must include “not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student.” 8 NYCRR §200.3(a)(1)(iii); §200.3(c)(2)(iii). In addition, “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 CSE meeting, a school physician must also be present. 8 NYCRR §200.3(a)(1)(vii).[8]
It is uncontested that none of ’s teachers or related service providers attended either the March or July CSE meeting and that the only persons at the meetings who actually knew the were his parents ( : 35-37; DOE Ex. 13 at 14, Ex. 16 at 14). Indeed, Dr. testified that he did not believe that it was “mandated” for one of providers to participate at the meeting but that in “hindsight” the team could have “made an effort” to do so ( : 36). The absence of any educational provider who worked with was, in itself, a procedural violation and deprived of a FAPE. This is particularly significant since ’s teacher at , Mr. , testified not only that he was available to participate in the IEP meeting but that the goals he provided in his
Education Progress Report were not accurately represented in the IEP that was developed
( : 123-125). Moreover, since it was established that has issues, it was imperative that at least one of his providers participate in the development of the IEP and the program recommendation. There was also evidence that had asked for to be present at the meeting but that Dr.
’s supervisor told him that the Department of Education no longer sent to IEP meetings ( : 47-48). While it is not clear whether had submitted her request for in writing, if her request was verbal she should have been advised of her right to have present if her request was in writing and presented at least 72 hours prior to the IEP meeting. See 8 NYCRR §200.3(a)(1)(vii). In light of ’s history could have contributed relevant information about whether
’s needs could have been adequately met in the recommended program or any other
Department of Education program.
Finally, I note that Dr. , who conducted the IEP meeting, had not worked in a program and he testified that he was unaware whether any of the other alleging that the District failed to offer a FAPE for the 2014-2015 school year both on “procedural and substantive” grounds (Parents’ Ex. A at 1, 3). At the impartial hearing the parents’ attorney questioned Dr. about the absence of any of ’s teachers at the IEP meeting and about the District’s rejection of ’s request to have present at the meeting ( : 35-37, 47). The fact that the Department of Education representative did not object to these lines of questioning, the basis of which is apparent on the signature pages of the IEPs in question, supports a finding that the Department of Education was not unfairly surprised by these issues. I find that the flexibility of the waiver rule supports a finding that the issue of the composition of the IEP team is encompassed within the allegation of procedural violations in the Complaint. participants at the meeting had ever worked in such a program. Rather, he stated only that the team members were “familiar with the range of programs offered” ( :
35, 38; Parents’ Ex. A at 4-5). I find that the evidence at the impartial hearing supports a conclusion that the program was recommended because it was the only Department of Education program available for students classified as having and not because the IEP team considered whether it could actually meet ’s unique educational needs (see : 40-42). Moreover, there was no one on the IEP team who was able to provide the parents with information upon which to rely when deciding whether they believed the program would be appropriate for testified at the hearing that she was not asked for her opinion or input regarding the IEP team’s decision to recommend at program for and that there was no discussion about the program.
Rather, testified, the CSE team told her that they were recommending the program because it was the most supportive environment that they could offer ( : 204; DOE Ex.
13). In addition, Dr. gave no testimony about what, if at all, the IEP team told about the recommended program or how that program would be able to address ’s unique educational and needs.
On May 6, 2014 ’s parents took him to Dr. for a
Consultation and emailed the report of that consultation to Dr.
on May 27, 2015, two months prior to the July 25th IEP meeting ( : 202; Parents’ Exs. C, G). In that report Dr. noted that she saw at for an updated consultation and observation. She stated in that report that “
”
“
” it was
“clear” that “was not ready to transition to a program, even with services. Dr. recommended that “continue in his current program to allow for progress and prevent regression” (Parents’ Ex. C at 2). However, there is no mention of this report in the July 25, 2014 IEP and no testimony or other evidence that the IEP team ever considered the report. Rather, testified that the parents were told that the July meeting was only for the purpose of changing the to a , and that ’s father participated in the meeting by telephone ( : 205-206).
***
In light of the foregoing, whether taken separately or together, I find that the IEP was legally inadequate under the IDEA in that the procedural violations impeded ’s right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to and caused a deprivation of educational benefits.
B. I find that the March and July IEPs were substantively defective as well in that the program recommended for was inappropriate in that it could not meet his educational needs in a way that would be “’likely to produce progress, not regression”' and provide “ with an opportunity greater than mere 'trivial advancement'." Cerra v.
Pawling Cent. School District, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.
2008); Application of a Student With a Disability, Appeal No. 13-169.
All of the information provided to the IEP team and entered into evidence as well as the testimony of those who worked with indicated that the class was not appropriate for for the current school year. Dr. , who administered ’s Evaluation in September 2013 and his
Consultation report in May 2014, explained why was not ready for or for a class with students regardless of how intense the supports provided to him would be ( : 143-161; Parents’ Ex. C at 2). Ms. , who has extensive work experience with the Department of Education and , and whose responsibility it was when working for the Department of Education to determine appropriate programs for special education students, concluded after observing , reviewing his records and visiting the proposed placement that it was not appropriate for him and that his needs required him to remain at for the current school year
( : 169-191).
I also find that the information available to the parents when they had to decide whether to accept the program and placement recommended on the FNR supported their determination that the program was inappropriate. Aside from the size of the class and of the school itself, both of which all of the witnesses who knew agreed was
,[9] the parents were told that there were on staff and that because of the size of the school, approximately students, the in case of . The parents were also advised that the were not familiar with a or how to use it and there was nothing to indicate that they would be able to . The parents were also advised that , and they were not told whether the assigned to . In light of ’s restrictions as per , the parents had no information that would support a finding that needs could be met or that they could be assured .
***
For the reasons explained above I find that the Department of Education failed to meet its burden of demonstrating that it provided with a FAPE for the 2013-2014
school year.
II.
Under the second criterion of the legal standard, ’s parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for for the current school year. N.Y. Educ. Law §4404(1)(c); M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parents must show that the educational services were "proper under the act" (IDEA). Burlington, 471 U.S. at 370, i.e., that the educational program is one which met 's special education needs. The parents 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." Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459
F.3d at 364.
The testimony and the evidence at the impartial hearing unequivocally demonstrated that the program and ’s related services are appropriate for for the current school year. As related in detail in the Findings of Fact above, Mr. , ’s teacher, is uniquely qualified to work with In particular, Mr. has a Master’s Degree in and is duly certified in special education and . ( : 106-107, 137). Mr. was trained in working with children and with children who, like , have
( : 110, 111, 137-138). Mr. ’s background enabled him to ( : 136). He also
( : 134). The testimony at the hearing established that Mr. devotes a significant amount of time to working with and that the number of adults in the classroom allows for to be engaged throughout the day. has a “ who has worked with him for two years and is directed by Mr. ( : 117-118: : 198, 206-207). The staff is able to safely provide his and . In addition, because of size of ,
, ’s
, ( : 206)
The testimony also showed that made progress this year with Mr. and the related services provided at . For example, while last year began was in a , . is also developing skills by ds. In that regard testified
that
( : 205-206). And, as noted he can “ ”
“ ”
In light of the foregoing I find that the parents met their burden of demonstrating that RCC is providing with an educational benefit.
III.
The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. A major consideration in determining whether the equities favor the parent is whether the parent cooperated with the Department of Education throughout the process to “ensure that the child receives a FAPE.” D.C. v. New York City Dept. of Educ., 950 F. Supp.2d 494, 515 citing Bettinger
v. N.Y.C. Bd. of Educ., No. 06 Civ. 6889, 2007 WL 4208560 at *6 (S.D.N.Y. Nov. 20,
2007).
I conclude that the equities support the parent and the Department of Education does not argue otherwise (see IHO Ex. I). The evidence establishes that the parent cooperated with the Department of Education throughout the CSE process for the 2014- 2015 school year. Dr. , who conducted the March IEP meeting, confirmed ’s testimony that she provided him with any and all of the information and documents that he requested. attended the March IEP meeting and ’s father attended the reconvene in July by telephone. And, within a week after receiving the FNR visited the recommended placement.
***
Based on the above Findings of Fact and Conclusions of Law, I find that the Department of Education is required to pay for the child’s tuition at for the 2014- 2015 school year.
ORDER
In light of the above findings of fact, it is hereby ordered that:
a) The Department of Education continue to pay for ’s tuition for the current (2014-2015) school year.
Dated: May 4, 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 THE RECORD
EXHIBITS
Department of Education:
Exhibit 1 Omitted as duplicative
Exhibit 2
Evaluation dated September
23, 2013, 6 pages
Exhibit 3 Educational Update dated
January 2014, 7 pages
Exhibit 4 Progress
Report dated January 8, 2014,
3 pages
Exhibit 5 Progress Report dated
February 5, 2014, 4 pages
Exhibit 6
Progress Report dated
February 7, 2014, 4 pages
Exhibit 7 Social History Update dated
February 14, 2014, 2 pages
Exhibit 8 Consent to Evaluate dated
February 19, 2014, 3 pages
Exhibit 9 Classroom Observation dated
March 12, 2014, 2 pages
Exhibit 10 Teacher Interview
and Classroom Observation
dated March 12, 2014, 5
pages
Exhibit 11 Notice of IEP Meeting dated
March 12, 2014, 3 pages
Exhibit 12 Related Service
Progress Report dated March
14, 2014, 2 pages
Exhibit 13 Individualized Education
Program (IEP) dated March
28, 2014, 15 pages
Exhibit 14 Omitted as duplicative
Exhibit 15 Final Notice of
Recommendation (FNR)
dated May 30, 2014, 3 pages
Exhibit 16 Individualized Education
Program Revision dated July
25, 2014, 15 pages
Exhibit 17 Prior Written Notice of
Recommendation (PWN)
dated July 25, 2014, 3 pages
Parent:
Exhibit A Impartial Hearing Request
With Fax Confirmation dated
August 4, 2014, 7 pages
Exhibit B Committee on Preschool
Education Individualized
Education Program (CPSE
IEP) dated April 23, 2014, 14
pages
Exhibit C
Consultation Report dated
May 6, 2014, 2 pages
Exhibit D Letter from dated
April 2, 2014, 1 page
Exhibit E Letter from
undated, 2 pages
Exhibit F Public School Visit Report
dated May 5, 2014, July 30,
2014, 15 pages
Impartial Hearing Officer:
Exhibit I Department of Education
Closing Brief dated
March 30, 2015, 8 pages
Exhibit II Parents’ Closing Statement
undated, 13 pages
Exhibit III Case Follow Up sheets
Indicating Extensions of the
Timeline, various dates, 6
pages
Footnotes
[1] Dr. has Master’s Degrees in educational psychology and clinical psychology, an advanced certificate and a doctorate in clinical psychology. He is a New York State certified school psychologist ( : 19).
[2] Ms. has 33 years of experience working with the New York City Department of Education as a provider and a and educational evaluator with the CSE. She was an assistant CSE chairperson and the Chancellor’s special education monitor and subsequently a supervisor of educational evaluators in Districts , supervising approximately 30 CSE review teams and school based support teams in various schools, some of which were in ( : 171-172). Ms. currently does for , is a field supervisor at for special education teachers and works with parents to help with the Turning Five process ( : 173- 174, 189-190).
[4] The IEP noted that would benefit from an evaluation, which would be administered if ’s placement did not have in the classroom. Dr. believed that an evaluation would be more accurate if conducted while was in than prior to the development of the IEP ( : 48-52; DOE Ex. 13 at 2).
[5] On April 23, 2015 the CPSE held an IEP meeting. The CPSE developed on that date recommended a program and various related services (Parents’ Ex. B).
[7] To the extent that there are any discrepancies between Ms. ’s testimony and her written report I have credited the information in the report (Parents’ Ex. F).
[8] A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees or the original due process complaint is amended at least five days prior to the impartial hearing with the permission of the impartial hearing officer.
[20] U.S.C. § 1415(c)(2)(E)(i)(II); 8 NYCRR 200.5(i)(7)(b); N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 (S.D.N.Y. 2013). The Second Circuit has held that the IDEA “contemplates some flexibility,” that the waiver rule is not to be mechanically applied and that the key to the due process procedures is fair notice and preventing parents from “sandbag[ging] the school district” by raising claims after the expiration of the resolution period. C.F. v. N.Y.C. Dept. of Education, 746 F.3d 68, 78 (2d Cir. 2014), citing R.E., 694 F.3d at 187 n. 4. The statute does not require that alleged deficiencies be detailed in any formulaic manner. C.F., 746 F.3d at 78. In their Complaint the parents provided notice to the Department of Education of their claim regarding procedural deficiencies in the development of the IEP by
[9] Both Mr. and Mr. recalled that Mr. may have said the was suitable for only when asked to choose among the programs available by the Department of Education ( : 61-62, 64- 65; : 122-123). Throughout his testimony at the impartial hearing Mr. made it clear that he believed the program recommendation was not appropriate for and that the program at was appropriate.