Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 13, 2012

November 15, 2013

December 9, 2013

January 13, 2014

Actual Record Closed Date: March 3, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2012

Advocate — Parents

Parents

Interpreter — Parents

Chairperson’s Designee — DOE

CSE Psychologist — DOE

(via phone)

DOE

(via phone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2013

Attorney — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2013

Advocate — DOE

Parents

School Principal — Parents

(via phone)

Observer Translator — Parents

Chairperson’s Designee — DOE

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

Advocate — Parents

(via Phone)

Parents

(via phone)

Chairperson’s Designee — DOE

PRELIMINARY MATTERS

On September 13, 2012, November 15, 2013, December 9, 2013 and January 13, 2014, I conduct the Impartial Hearing, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f)(1), regarding the special education program of at the Department of Education, . This case involves the 2011/2012 school year. A list of persons in attendance and documents accepted into evidence on the various dates are attached to this decision. The hearing on November 13, had been scheduled and due to , the parent requested and I granted an adjournment of that date on the record with the District representative present not objecting to the adjournment.

This matter involved the allegation by the parent that the Department of Education failed to provide with a free and appropriate public education (“FAPE”). As a result, the parent took unilateral action and placed the student at for the

2011./2012 school year. The parent seeks reimbursement of tuition and costs for the school and additional related services for the student as well as transportation for the student for the school year of 2011/2012. She also requests prospective payment of any tuition, fees and costs that have not yet been paid for the 2011/2012

school year.

THE DISTRICT’S POSITION

The District’s position is that it provided a FAPE for the 2011/2012 school year.

THE PARENTS’ POSITION

The parents contend that FAPE was denied on several grounds. The parent contends that the IEP failed to note the proper levels of performance, were not comprehensive relative to the child’s ability, goals were limited, vague and immeasurable and an appropriate program was not recommend as a result of the meeting.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Because is not a school approved by the NYS department of Education for Special Education, this case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S.

176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.

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]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067). In this case the CSE developed an IEP on August 6, 2009. (Ex. 3). The CSE review team was comprised of the necessary personnel.

Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student’s educational status in preparation for the CSE Review . 8 NYCRR

200.4. Procedures for referral, evaluation, individualized education program (IEP)

development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

Therefore, the first question is the action of the Department of Education. Did it provide FAPE through a valid IEP and reasonable placement (a placement calculated to make meaningful educational progress). The IEP was developed after a Psychoeducational Evaluation (Ex. 2) and a Class Observation. (Ex. 3) The examination was conducted on March 9, 2009, which was two years before The development of the IEP. Therefore, while slightly dated the Evaluation is within the three year time period generally recognized as the time frame for which the results are valid.

The test results for achievement indicate the following

In all areas of academic achievement grade equivalents were between and grade equivalents. scores were consistent with in composites. scored below the on all tests of achievement administered. Overall, appears to have . His learning experience and ability may

.(Ex. 2.p. 2)

The summary states in part.” is a old male who appears to be in of as represented in the testing June 2004.[sic].

I conclude the psychoeducational evaluation in this case is accurate and reflects a clear picture of the ability of the student. The testing used by the psychologist also indicates the the student has with

Clearly even for a the student is in need of additional education and services .

The Observation, dated 11/22/10, did not contribute any additional information toward the student’s evaluation. The Observation was unsigned and simply made statements about the child’s . The observations may have been accurate but there was not any independent content in the Observation about the student’s personality or relationship with teachers or other students except the comment “ ”. The observation could not be considered useful in preparing the IEP. Thus the IEP was developed not by an interdisciplinary team but only who produced a good report but that report alone does not mean that the CSE met its obligations for evaluation before convening to develop the IEP or obtain a recommendation for the student.

The CSE minutes do not reflect any discussion of alternative placements for the student nor do the minutes reflect any discussion of the changes to made to is program or the fact that he was recommended for an class. Basically, the minutes act as an attendance sheet. The minutes note that the parent did not express concerns or ask questions. It does state that the advocate representing the parent at the meeting stated the student did need a change of classification. As a result the classification was changed to “ ”. The minutes also reflect that a recommendation to a in a with a class ratio of . This was included in the IEP. There is little evidence or testimony dealing with the student’s

During the hearing, the school psychologist testified and did suggest that certain goals in the IEP did aim at preparing the student for a program. He states that a few of the goals dealt

.

The final witness was a coordinator and teacher in a school who basically testified to the facilities and programs available to students in that school. The list was impressive and the school seems well equipped to serve someone with ’

. She did testify at Tr. p. 40 that there were several classes with in the school. There were , , to students, , to students, , (Tr. p. 39). She also described all the related services that were available.

However, she then went on to testify that the student was recommended for class. While she believed the student could obtain a FAPE in that class, there was no explanation as to why the student belonged in that class and not with a student to teacher ratio.

The last piece of evidence introduced by the District was Ex.5 “The Final Notice of Recommendation”. The recommended placement of a class was confirmed by that exhibit.

Based on the evidence presented by the District, I find that the District has not established that it has provided a FAPE to a severely disabled student.

When I turn to the testimony and evidence of the parent’s witnesses, I conclude that a FAPE was not offered to the student and that would offer a meaningful educational opportunity for , Since the hearing has taken place after he has been enrolled in and participated in that school program, there is conclusive proof that he has made educational progress in that school. What convinces me that the public school could not meet his needs is the testimony of the witnesses of the effort and for to make progress in a setting of students and teachers.

In fact the school principal testified that there were only male students in the and in ’ class.

The testimony reviewed the program schedule, the credentials of the teachers who had Special Ed degrees or Special Ed training with a degree in psychology. The principal outlined the various programs that helped become familiar with the requirements of . This included . The school did a comprehensive job of . He wanted to work in a However, It soon the school did not incur any expense by participating in it, other than the cost of sending teachers to the site to

That cannot be considered an extraordinary expense because program that sends students usually provides

.

Turning to the relationship between the school and the CSE, it was the testimony of both the DOE psychologist and the school principal that goals and objectives were sent to the CSE if they requested such goals. In this case the goals on part of the IEP were provided to the CSE by .

In response to a question as to whether the school was appropriate to meet ’ educational needs the principal replied.

Because of the progress that demonstrated. 's

. 's

Based on the progress that he made I can say strongly that I believe that we were an appropriate placement. Tr.pp. 107, 108.

She went on to state that these results were measured by the following,

Informal assessments, teacher observations, and progress reports.

An Progress Report from was introduced as Ex. G. The report includes the actions required of teachers to facilitate the student’s learning.

With respect to the student’s progress the report states:

’s

With respect to his the report states:

Over the course of the school year, has

.

It should be noted that this report and others are sent to the parent who is in a position to confirm or deny the progress specified in the reports.

Therefore, I conclude that Prong 2 of the Burlington Carter tests favor the parent as the school is able to confer educational benefit to the student and the standards articulated in Frank G. are met by school with respect to .

In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C. § 1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)

(holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect")).

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct.

3034, it must provide such children with "meaningful access" to education, Walczak,142

F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v.

Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003)

(noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits."

Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See

Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001)

(holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 200

With respect to prong 3, the equities favor the parent as the District raised no objections to the conduct of the parent during any evaluations or testing requested by the CSE in connection with the development of the IEP.

ORDER

The District failed to provide a FAPE to the student for the academic year

2011/2012. The school is an appropriate school for the placement of the student pursuant to the standards set forth in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d

356,364,365 (2nd Cir. 200). Finally, the Equities are in favor of the parent. Therefore I order that the Department of Education pay the full tuition of to either the parent upon presentation of her payment of tuition or alternatively directly to the school for any unpaid balances for tuition for the 2011/2012 academic year. In addition the related services listed on the IEP of 4/28/11 shall be provided to the student if they have not yet been so provided. If necessary, the District shall issue RSAs for such services, or reimburse the school or parent for any payments made to obtain such services. Finally, bus transportation is to be provided to the student in the future and if the parent encountered any expenses in connection with the transportation of the student during the 2011/2012 school year she shall be reimbursed upon proof of payment.

Dated: March 3, 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 ON SEPTEMBER 12, 2013

PARENT EVIDENCE

A. Impartial Hearing Request 5/4/12 5

B. Program Description undated 1

C. IEP 4/28/11 20

D. Final Notice of Recommendation 6/13/11 1

E. Ten Day Notice 8/22/11 2

F. Class Schedule 11/12 1

G. Academic Progress Report 11/12 4

H. Attendance Record 11/12 1

I. Enrollment Contract 11/12 1

J. Affidavit of Payment 11/12 1

K. Proof of Benefit undated 9

DOE EVIDENCE

# TITLE DATE # OF PAGES

1. IEP 4/28/11 20

2. Psycho Educational Evaluation 3/30/09 5

3. Observation 11/22/10 1

4. CSE Minutes 4/28/11 1

5. Final Notice of Recommendation 6/13/11 1