New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

District:

Hearing Requested By: Parent

Date of Hearing: October 30, 2014

February 26, 2015

March 12, 2015

Actual Record Closed Date: March 23, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 30, 2014

Parent Advocate

Parents

District Representative — DOE

District Representative-in-Training — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 26, 2015

Parent Advocate (by phone) — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 12, 2015

Parent Advocate — Parents

Mother of Student — Parents

District Representative — DOE

District Representative-in-Training — DOE

School Psychologist – Participated in C.S.E. Meeting of May 31, 2013 — 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 October 30, 2014, for the singular purpose of determining the Pendency program to which Student is entitled to receive pending the completion of this administrative hearing and thereafter on February 26, 2014 and March 12, 2015 for hearings on the merits of Parents’ Due Process Complaint. The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter by notice dated September 3, 2014. The Transcript of the final day of hearing was received on March 23, 2015. The Record Close Date is March 23, 2015.

The proceeding was initiated by the filing, by Parent Advocate on behalf of Parents, of a Due Process Complaint Notice, dated September 16, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on September 17, 2013. The Due Process Complaint (Exhibit A) alleges that District’s Committee on Special Education (C.S.E) failed to provide Student with a free, appropriate public education for the 2014-2015 school year. Parents, in their Due Process Complaint, after citing a number of special education deficits exhibited by Student, alleged that the Individualized Education Program (I.E.P.) that had been prepared by District’s Committee on Special Education (C.S.E.) at a meeting conducted on April 11, 2014, was both procedurally and substantively flawed, resulting in a denial to Student of her right to a free, appropriate public education (FAPE). Parents also alleged in their Due Process Complaint that the placement offered by District to Student for the 2014-2015 school year was not appropriate. Parents sought, as relief in this proceeding, that an Order of Pendency issue permitting Student to remain at her then-present placement at , and be provided at that placement with the Related Services of , times per week, minutes per session, ; times per week, minutes per session, ; and / times per week, minutes per session, ; together with the services of a and, further, that an Order be issued permitting Student to remain at her placement at for the remainder of the 2014-2015 school year and requiring the New York City Department of Education to cover the costs of providing Student with her special education program as well as the Related Services sought in Student’s Pendency program (Exhibit A).

An Interim Order Regarding Pendency was issued pursuant to Parents’ request and upon the consent of the District and the New York City Department of Education, on November 1, 2014, but made retroactive to September 2, 2014, which granted Parents’ request in all aspects; that is, that Student was permitted to remain at her then-present placement at , and be provided at that placement with the Related Services of , times per week, minutes per session, ; times per week, minutes per session, ; and

/ times per week, minutes per session, ; together with the services of a .

Thus, Parents’ Due Process Complaint does not allege that, due to the insufficiency of the special education program recommended by District’s C.S.E. for Student for the 2014-2015 school year, Parents were required to unilaterally enroll Student at and seek reimbursement or direct payment to for the costs associated with that placement. However, in effect, such is Parents’ position – that, as District has failed to provide Student with an appropriate program, it should be responsible for retaining Student at for the balance of the 2014-2015 school year – which is no different from Parent seeking such costs as would have been awarded to Parents had they re-enrolled Student at . I shall, accordingly, impose upon the parties the same obligations as would have been assessed had Parents chose to pursue this matter as a request for reimbursement or direct payment.

Student was, at the time of the creation of the Individualized Education Program (I.E.P.) by District’s Committee on Special Education on April 11, 2014, years and months of age, having been born on . Student was, then, in her year and passing from the jurisdiction of the District’s Committee in Special Education (C.P.S.E.), which had prepared Student’s program for the 2013-2014 school year which formed the basis for Student’s Pendency placement, to District’s Committee on Special Education. According to the testimony of her mother, Student displayed as early as her first year (T.R.101) and was provided with services. Later, services continued through District’s Committee on

Education. At the age of , the 2013-0214 school year, Student began attending ,a special education facility located in the Borough of ), where she received her special e34ducaiton program in a class of children, which had teacher and a number of assistants – either or (T.R.102-103). Student was evaluated in March of 2012 through the use of the -

– , which reported that Student had a I.Q of and the I note, however, that such results of testing were more than years old when considered by the C.S.E. It was reported in the I.E.P. prepared by the C.S.E. on April 11, 2014 (Exhibit 3), that Student presented with ; that she had

(Exhibit 3). It was further noted that Student’s

.

The I.E.P. also noted that Student had

.

The C.S.E. convened on April 11, 2014 to prepare Student’s special education program for the 2014-2015 school year. The meeting was chaired by District Representative , who also served as School Psychologist. Also present at that meeting were Special Education Teacher ; School Social Worker ; and

Teacher (T.R.70). Parent attended the meeting by telephone. The Committee had a significant amount of information that had been provided by , including a Social History Update, dated February 26, 2014 (Exhibit 4); a detailed Educational Progress Report, dated March 3, 2014 (Exhibit 5); an

Evaluation, dated February 3, 2014 (Exhibit 6); a

Annual Report, dated January 15, 2014 (Exhibit 7); a and Evaluation, dated January 15, 2014 (Exhibit 8); a Quarterly Progress Report by , Student’s classroom teacher at , dated February, 2014 (Exhibit 9); a / Report by , dated February 2014 (Exhibit 10); an

.

The Committee classified Student as having a or and recommended that Student receive her special education program in a in a School having a staffing ratio of , together with the Related Services of times per week, minutes per session, ; times per week, minutes per session, ; and / times per week, minutes per session, ; and a (Exhibit C). According to the testimony of Witness , no objections were made at the meeting to the decisions made by the Committee (T.R.49). However, after the meeting had been concluded, Parent had called and stated that she had spoken to Student’s then- regarding the fact that the Committee had reduced the frequency of Student ’s sessions from the sessions mandated by the C.P.S.E.’s I.E.P.

of May 12, 2014 (Exhibit 1) to sessions. According to the testimony of Witness , the Committee reconvened on June 25, 2014 to add an additional session to Student’s program. The Committee on that date was composed of different District personnel; specifically School Psychologist , again also serving as District Representative; Special Education Teacher ;

Teacher ; and School Social Worker (Exhibit 3). Parent attended the meeting by telephone. However, as explained by Witness , the date on the I.E.P. was continued as April 11, 2014 (Exhibit 3), as the June meeting was only a reconvention to revise the I.E.P., so that the original meeting date is to be retained (T.R.43).

In light of the revisions made by the C.S.E. on June 25, 2014, it is not clear why

Parent’s Due Process Complaint (Exhibit A), which was filed on September 17, 2014, raises the issue that Student‘s was reduced from times per week to times per week, and should be returned to times per week, or that Student be provided with a , when both such issues have been resolved and provided for.

As noted, Parent has alleged that the program and placement envisioned for Student by District’s C.S.E. for the 2014-2015 school year denies Student her entitlement to a free, appropriate public education (FAPE) and seeks to have District compelled to maintain Student at her placement at (Exhibit A). 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); 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 agency 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]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements 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. sand 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. As previously noted, while Parent seeks neither reimbursement nor payment to an educational facility, Parent does seek to have District continue Student at her facility.

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 Parents’ 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 Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404).

Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ 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

Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement, or, as is here, whether District must be required to maintain Student at her placement for the 2014-2015 school year, is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). But what, exactly is a free, appropriate public education? Courts on various levels and quasi-judicial officers have, through the years, expressed differing guidelines for determining exactly what FAPE is and how such is to be determined. It has been stated that a FAPE is offered to a student when (a) a 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, such statement is no longer exactly accurate, for, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.

2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H.

v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

It has also 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 also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v.

Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). 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, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). District presented the testimony of Witness , the Committee’s School Psychologist, who had presided over the Committee meeting that created the I.E.P. with which Parent disagrees. Much of her testimony has been reviewed herein. Parent has alleged that the Committee was improperly constituted, as it failed to have either a Parent Member or Student’s then-teacher at either of its meetings. While such statement is factually true – neither Student’s then-classroom teacher nor a Parent Member attended either meeting – I find that the absence of either did not amount to a denial of FAPE to Student. While Student’s then-classroom teacher might have been able to provide information regarding Student, her needs and strengths and classroom performance, it is my finding that the Committee did have as a member a Special Education Teacher at each of its meetings. Further, the Committee had before it and reviewed at the meeting of April 11, 2014, the many Reports provided by the staff at , including the Report by Student’s then-classroom teacher (Exhibit 5). Parent confirmed that those Reports were discussed at the meeting (T.R.113). I note that the provisions of the Commissioner’s Regulations establish the necessary participants of a Committee on Special Education (8 NYCRR 200.3(a)).

Among such is the position of Parent Member, which is described in Commissioner’s Regulations as:

“An additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting.”

8 NYCRR 200.3(a)((1)(vii))

While Witness testified that a Parent Member is no longer required (T.R.74), she is in error – an error Witness immediately attributed to her supervisor - it is my determination that the failure of the Committee to have a Parent Member on the Committee at either of its meetings violated the procedural requirements of the Commissioner’s Regulations, it is my finding that such procedural error did not rise to the level of denying Student a FAPE (8 NYCRR 200.5(j)(4)(ii)).

Parent also challenges the sufficiency of the Annual Goals established by the Committee and included in Student’s I.E.P. (Exhibit 3). A review of the I.E.P. confirms that Annual Goals were created for Student in the area of and , as well as in the areas of and and ; . While it is correct that no Annual Goals were created to address Student’s deficiencies in , it is my finding that such deficits are adequately addressed with the provisions of the varied that the I.E.P. mandated.

It is, therefore, my finding and determination that the Individualized Education Program prepared by District’s C.S.E. on April 11, 2014 and modified on June 25, 2014 was reasonably calculated to provide Student with meaningful educational benefit.

Parent also challenged the educational placement that District offered to Student.

Parent testified that the Committee had offered Student her program at and that, upon visiting that site, found it to be inappropriate (T.R.113). As Parent did not accept the proffered placement, but, instead, commenced this Due Process proceeding and secured a Pendency Determination that has permitted Student to remain at , I find that most of her concerns are barred as speculative. I will, however, address what appeared from the bulk of Parent’s testimony as her prime concern, which is that the placement was unable to sufficiently protect Student from the initiation of Student’s . District’s I.E.P. noted its awareness of Student’s (Exhibit 3). It

also noted Parent’s concerns regarding Student’ risk of . I note, however, that it was in direct response to these concerns that District authorized a . Indeed, such recommendation was in full conformance with the obtained by

Parent for a .

It is, therefore, my determination that District and its Committee on Special Education offered to Student a program that considered all of Student’s areas of deficit and proposed a special education program sufficient to meet those deficits and reasonably calculated to offer Student an appropriate education.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is,

DISMISSED

Dated: April 21, 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 OCTOBER 30, 2014

A. Parents’ Due Process Complaint Notice, dated 8-31-14 (3 pages; Parents)

B. Student’s I.E.P. as prepared by District’s. C.P.S.E. on 5-31-13 (5 pages; Parents)

1. Student’s I.E.P. as prepared by District’s C.P.S.E. on 5-12-14 (21 pages; DOE)

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 12, 2015

None

DOCUMENTATION ENTERED INTO RECORD MARCH 12, 2015

C. Student’s I.E.P. as prepared by District’s C.S.E. on April 11, 2014 (13 pages; Parents)

2. Notice to Parents of Scheduled Meeting, dated 6-18-14 (3 pages; DOE)

3. Student’s I.E.P. as prepared by District’s C.S.E., dated 4-11-14 (15 pages; DOE)

4. Social History Update by,, dated DOE 2-26-14 (1 page; DOE)

5. Educational Progress Report by, M.S. ED dated 3-3-14 (2 pages; DOE)

6. Evaluation by,, dated 2-3-14 (2 pages; DOE)

7. Annual Review, by )DOE dated 1-15-14 (2 pages; DOE)

8. and Evaluation, dated 1-15-14, by, (3 pages; DOE)

9. Quarterly Progress Report, dated 2-2014, by (1 page; DOE)

10. / Report, dated 2-2014, by (1 page; DOE)

11. CPSE Quarterly Progress Report, dated 2-2014, by (1 page; DOE)

12. Quarterly Report, dated 2-2014, by (2 pages; DOE)

13. Request for, dated 4-2-14, by, M.D. of (2 pages; DOE)