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: August 27, 2014

September 24, 2014

December 19, 2014

February 13, 2015

March 20, 2015

Actual Record Closed Date: May 1, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 27, 2014

Esq. — Student

Impartial Hearing Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,

2014

Esq. (via telephone) — Student

Impartial Hearing Representative (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19,

2014

Esq. (via telephone) — Student

Impartial Hearing Representative (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13,

2015

Esq. — Student

Parents

Impartial Hearing Representative — District

School Psychologist (via telephone) — District

Unit Coordinator (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2015

Esq. — Student

Parents

Student

Impartial Hearing Representative — District

INTRODUCTION

On August 21, 2014 I was appointed as the Impartial Hearing Officer (“IHO”) by the New York City Department of Education (“the District” or “the DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving the special education program for (“ ” or “the student”) for the 2014-2015 school year.

BACKGROUND

is year old child with a classification of . (Ex. 3) His classification is not in dispute. continued to receive his program for the 2014-2015 school year of Special Education (“ ”) services hours per week, (“ ”) , (“ ”)

and through an Interim Order on Pendency (Ex. II)

issued 9/11/14. The Committee on Special Education (“CSE”) held a meeting to develop an Individualized Education Plan (“IEP”) for on May 12, 2014 for the 2014-2015 school year. The meeting is a process in which students of the Committee on Preschool Special Education (CPSE) and in to school age services. (t. 41) The IEP developed recommended a program in a specialized school with Hearing Education Services per year for , (“ ”)

(Ex. 3) A Final Notice of

Recommendation (“FNR”) dated 5-22-14 (Ex. A) was sent to the Parent covering July and August which continued ’s plan. A second FNR dated 6/13/14 (Ex.

18) was sent to the Parent for the 2014-2015 school year starting in September and with a placement at @ .

The Parent asserts that the CSE failed to provide with a free and appropriate public education (“FAPE”) as the IEP was both procedurally and substantively flawed and that would not receive the level of intensive support that he requires in a class and that class was not reasonably calculated to confer an educational benefit. (Ex.

B) The District maintains that was provided with FAPE for the 2014-2015 school year.

FINDINGS OF FACT

is child with which is very rare. Generally a child with ’s condition would be , . While and . (t. 163, 195, Ex. 4)

Ms. participated in the CSE meeting as the district representative and school psychologist. She testified that her first step in preparing for the meeting is to interview the parent via telephone and do a social history update to determine where the child is developmentally and get other relevant information about the child. They try to get updated medical information which does not always happen. If the child is attending school then they try to contact the school and do a classroom observation. If they feel they don’t have enough information they will sometimes do an evaluation, as they are trying to determine which placement would be appropriate. They also try to get information from the that work with the child but can’t always get the information as the are independent and are not obligated to turn over information. (t. 41-43, 52 ) Ms. was assigned to ’s meeting and noted that is not your typical student that presents with significant disabilities. In order to prepare for the meeting she reviewed a previous Committee on

Pre-School Special Education (“CPSE”) IEP, an old evaluation (Ex. 12)

and an old evaluation (Ex. 13) and some other documentation in the DOE’s records as well as information provided by the Parent. They do not routinely update evaluations though part of the process is to gain information about the student’s current in all areas of disability. All the evaluations, with the exception of the psychoeducational evaluation were from 2012. (t. 45-46, 69-75) In addition, Ms. did an observation at the , as was not in school, during services so that she could observe him during instruction. She observed and interviewed the Parent and the as well as attempting to administer a in order to determine what would be the best recommendation for the student. Ms. found that it was impossible to administer any test as was not able to give any response and it was impossible to know how much was as he was . In spite of this Ms. believed that is a student with a lot of potential, who enjoys

. (t.

47-48) She characterized the work being done by the Parent and the as “ ” and that had some understanding of and was trying to use an and it appeared he was making progress. Ms. testified that she was trying to get a current picture of and that it appeared that he was changing day by day and was showing more . (t. 86)

requires a program. Ms. testified that the problem that the CSE team encountered when considering a program was that the programs for students who present with similar disabilities are not progressive and are for students who do not have that “ ” that has and the program ends up being more nursing and babysitting care. (t. 48-49, 62)

While there were programs for students like that she believed would meet ’s needs there was no program. Ms.

worked with a in the community and to create a class for . The Parent was not involved in the creation of the new program. (t. 50, 83-84)

The CSE meeting was held May 12, 2014. At the time of the meeting the Parent was unsure about what would be the best program for and was doing a lot of research in to different programs and did not have a clear idea of what type would be best. (t. 55,

61-62, 91) The team determined ’s functional level to be in the , in the . This was based on the attempt to test during Ms.

’s observation and input from the Parent and the . She had performed the a test of , with the Parent and the which was also used to determine social development. As far as the team took in to consideration ’s . The Parent testified that there was little discussion of did not begin to cover the complex needs They were unable to quantify his academic levels as he is not testable. (t. 56-58, 200-01) The team recommended the a program in a specialized school with , , per year for , (“ ”) , and services as well as a for school year. (t. 60-61) The Parent objected to the recommendation at the time of the meeting and told the team that she felt that still relies on the structure of the services and having a teacher who really understands his and can make decisions on a minute to minute basis to help him progress. In spite of her objection to the program she agreed to visit the program. The Parent saw the but was unable to view the program because it would not begin until September. (t. 64, 90-91, 206-07) The goals on the IEP were discussed during the meeting but Ms. conceded that it would be fair to say that some of the goals were developed outside of the meeting including the goals and goals. (t. 84-86, 97-98) The Parent testified that she did not participate in the development of the goals at the IEP meeting and received them in the IEP sometime the following month. (t. 197) The Parent testified that upon seeing the goals she determined that they were too academic for a child that exhibits the presents with. (t. 198)

The Parent had expressed reservations about the removal of the services and raised the issue a number of times at the meeting. The Parent was told that a is not an option. (t. 91-94, 201-02) Ms. testified that service is a “ ” which does a good job of preparing the student for school aged services and that as a DOE employee she is not allowed to include that service on an IEP and that if she did it would be sent back to her to do it over again. services are a service alone and are supposed to prepare the student for school. is considered pre-readiness for and and if a student needs additional assistance they can offer (“ ”) though

Ms. conceded that the team did not consider for because he was not . She testified that the socialization of the student is very important and cannot be replicated anywhere other than in a classroom setting. (t. 102-06)

Ms. , the Unit Coordinator for the class at testified as to the design and structure of the recommended program and class which currently has students with the disability classification of , a classroom teacher who is a speaker, ’s and related service providers. (t.113). Ms. testified that all academic subjects are taught including period per day of native , and that the students have “ ” where , as well as a modified yoga program to address issues. It was noted that issues are addressed through education times per week and in art class. (t. 116-17) Ms. testified that the students in the class are well behaved and that there are no in the classroom. (t. 119) She stated that would fit in well functionally and that he would receive all his related services. In addition, the school provides opportunities per week for from guidance counselors and related service providers. (t. 123-24)

The Parent visited the program in November, 2014. The

Parent found the program to be very busy and believes it would be a distraction to She was advised that the . The Parent felt that the for The Parent concluded after her visit that the recommended program would be detrimental to the student as he would not be receiving his

. (t. 211)

Ms. , ’s , testified that he

displays . If he

. The Parent and regularly bring

. (t. 163-66) has academic skills,

.

(t.188)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482)

has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer

v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). As noted by the State Review Officer (“SRO”) in Application of a Student with A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (N.Y. Education Law § 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug. 27, 2010). In the case at hand the Parent is seeking continuation of his program for the 2014-2015 school year of Special Education (“ ”) services hours per week, (“ ”) , (“ ”) and services which currently receives through an Interim Order on Pendency (Ex. II) issued 9/11/14.

I find that based on the testimony and evidence adduced at the hearing the District failed to provide with FAPE for the 2014-2015 school year.

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster

Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v.

Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has…

specifically rejected the contention that the “ ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102

S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled]

child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S.

at 189 (1982). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132

It is clear from the evidence and testimony that has . Ms. testified that in spite of the fact that she had been unable to administer a (as was unable to give a response) and that it was impossible to know how much was ( ) she believed him to be a student with a lot of potential. She characterized him as changing day by day and she believed that he had a gaze of understanding. She wanted to make the effort to find an appropriate program which could individually service his needs. In spite of this understanding of the complex issues and needs that presented with Ms.

testified that the team relied on evaluations and data which was 2 years old, this for a child who she acknowledged was changing day by day. The only current evaluation relied on by the team was the testing which she attempted, her interviews with the and Parent and her observation of in his during services. It is clear from her testimony and that of the Parent that the continuation of the services was not available due to DOE policy constraints and not based on the individual education needs of the student. This in spite of Ms.

characterizing the work being done with by the Parent and the as amazing. During the course of the IEP meeting the Parent requested continuation of the services but was told that was not possible. Ms. clearly testified that she was not allowed as a DOE employee to include on a CSE IEP and that it would be sent back to her to do over again. She explained that services are to prepare a student for school age services yet there were no evaluations done in some of ’s major areas of deficit ( ) to show his current level of performance and that he was indeed ready for school age services. Under 20 U.S.C. §1414(d)(3)(A) the IDEA requires that an IEP team consider a child’s strengths, weaknesses and deficiencies, the results of the most recent evaluations of the child and the developmental and functional needs of the child. The team must review and consider evaluations, assessment and information provided by the child’s parent, teachers and service providers and use that information to determine the type of program that the student requires. It is clear in this case that the team relied solely on their own evaluations from 2012 in key areas of deficit (Ex. 11-17) While I credit Ms. when she testifies as to her efforts to create a program which would benefit the student it is not clear that would have indeed benefitted from the program. Further, I credit the testimony of the Parent when she states that the she alerted the CSE that she did not believe that was ready for a school based program, that she was told that the services were not available based on DOE policy and that the goals were prepared outside of the meeting and she had no knowledge of how or when they were created and did not see them until approximately one month after the CSE meeting. I credit the testimony of the Parent and Ms. that the goal is for to attend a school based program.

I find that the District denied the student’s right to FAPE, in that they significantly impeded the parent’s opportunity to participate in the decision making process. In addition, the District caused a deprivation of educational benefits through their failure to do new evaluations of the student in key areas of deficit in order to determine his current levels of and failed to consider the continuation of the services based not on ’s individual needs but rather on DOE policy thereby causing a deprivation of educational benefit.

ORDER

Therefore, it is hereby ordered that the continue to receive his program for the remainder of the 2014-2015 school year of Special Education (“ ”) services hours per week, (“ ”)

, (“ ”) and services as a month program

Dated: May 7, 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

A. Final Notice of Recommendation, dated 5/22/14, 4 pages Parent

B. Request for Impartial Hearing, dated 8/19/14, 6 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 13, 2015

1. Duplicative-not entered District

2. Due Process Response, dated 8/22/14, 3 pages District

3. IEP ( ) dated 5/12/14, 16 pages District

4. Social History Update, dated 3/24/14, 3 pages District

5. Classroom Observation, dated 4/2/14, 1 page District

6. Duplicative-not entered District

7. Meeting Notice, dated 5/2/14, 3 pages District

8. CPSE IEP, dated 7/25/12, 20 pages District

9. Child Outcome Summary Form dated 7/25/12, 5 pages District

10. Student Evaluation Summary Report, dated June 2012, 2 District pages

11. Evaluation, dated 6/19/12, 3 pages District

12. Evaluation, dated 6/11/12, 4 pages District

13. Evaluation, dated 6/11/12, 4 pages DistrCic

t

14. Evaluation, dated 6/7/12, 3 pages District

15. Evaluation, dated 6/27/12, 4 pages District

16. Survey, dated 6/6/12, 1 page District

17. Social History, dated 6/6/12, 3 pages District

C. Amended Hearing Request, dated 11/13/14, 8 pages Parent

D. Psychoeducational Report, dated 4/2/14, 3 pages Parent

E. Progress Report, dated 11/14, 17 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 20, 2015

18. Final Notice of Recommendation, dated 6/13/14, 4 pages District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page IHO

II. Interim Order On Pendency, dated 9/11/14, 5 pages IHO

III. Closing Statement For , undated, 14 pages IHO

IV. NYC Department of Education Closing Brief and Memorandum of Law, IHO

dated 4/20/15, 8 pages