NY IHO #2015-ih-266: New York City...

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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: March 6, 2015

April 30, 2015

June 1, 2015

Actual Record Closed Date: June 19, 2015

: Leah Botwinik Almeleh, Esq.

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NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2015

Attorney — Student

Parents

Department of Education Attorney — DOE

Special education Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2015

Attorney — Student

Parent/Mother — Student

(Via Telephone) — Student

Teacher at (Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2015

Attorney for Parent — Student

Parent (Via Telephone) — Student

District Representative — DOE

’s — DOE

PROCEDURAL CONTEXT

By letter dated October 2, 2014 I was appointed to hear the Matter of pursuant to the Individuals with Disabilities Education Act (IDEA),^[20] US Code Section 1415 (f)(l). This appointment followed the recusal of a prior Impartial .

On October 29, 2014 a pre-hearing conference was held and a litigation calendar developed. On March 6, 2015, April 30, 2015 and June 1, 2015 hearings on the substantive merits were held. At this time, the proceedings were closed and the decision date duly extended so that a Findings of Fact could be prepared. It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, settlement discussions, scheduling of witnesses and preparation of closing memoranda.

Specifically, the Parents assert that the Department of Education’s (hereinafter the

“Department”) educational placement, as memorialized by the Individualized Education (IEP) of April 10, 2014 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exh. 1.

As a result thereof, they are seeking reimbursement for the 2014-2015 school year in furtherance of a unilateral transfer to the (hereinafter “ ”), a school setting. As a corollary, the Parents have defended the educational implemented by and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch.

Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985].

At the commencement of the 2014-2015 school year, the student was years old. I note that is “ ” as that term is defined under the IDEIA,

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additionally serves as an IEP teacher. On April 10, 2014 the witness participated in a “ ” IEP meeting for Exh. 11 at 17. In addition to the Parent,

, school and District representative; , school social worker; and a teacher were present at this meeting. A Department additionally participated via telephone and was instrumental in authorizing the child’s and incorporating IEP recommendations for . Tr. at

41. Although present, Ms. indicated that the teacher did not contribute anything to the meeting as the CSE focused primarily upon the child’s special education programming. Tr. at 44. On cross-examination, the witness further acknowledged that she knew little about the circumstances of Ms. ’ Observation in terms of time spent observing or input from the child’s . Tr. at 79.

Ms. referenced a number of evaluations upon which the CSE based its recommendations. These included a private Classroom Observation by Dr. , a

IEP, various related service reports, an Observation performed by social worker along with a letter from the child’s , . Tr.

at 34-36; Exhs. 2-5, 7, 8, 10. A private -Educational Evaluation offered to the CSE that morning by the Parent was additionally included for consideration. Exh. 8. As

Dr. ’s assessment had not been furnished until the morning of the CSE convene,

Ms. could not recall a thorough review of its contents and did not recall Dr.

’s statement that, “Even when working with a teacher on a - to- basis, he loses focus.” Tr. at 83-84; Exh. 4 at 2. She did indicate, however, that the CSE’s recommendation of additional periods along with a dedicated were based upon Dr. ’s report. Ms. indicated that although the Parent was present, Ms. participated very passively as to the IEP’s content, offering little feed-back and indicating generally that she would need to consider things before offering an opinion. Tr. at 41-44, 72-74, 87, 100-101.

Ms. testified that was “

” in terms of pre-academic skills. In support of this, she noted that the child “had an interest in letters and an interest in numbers and those pre-requisites or

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those pre-academic skills were forming and for the most part he had . . . a solid foundation in those skills. So the presenting concerns were not so much the academics as were other areas.”

“ wasn’t

forming complete grammatically correct sentences, had difficulty understanding or following along with multiple-step directions, vocabulary, understanding age appropriate- based vocabulary.” Tr. at 46. She noted additional issues with attention and focus, especially as they related to . Tr. at 51. Although no and provider participated during the convene, the CSE considered a current progress report in addition to standardized scores incorporated into the child’s CPSE IEP of January 7, 2014. Exhs. 3, 7.

Describing the child’s , the witness noted that the child’s IEP included environmental modifications such as preferential proximity with good sight lines to teacher and smart board, in addition to the use of an , . As requires longer processing time to interpret , the IEP additionally included a provision that directions be broken down and individual assistance offered as needed. Tr. at 53-56; Exh.

11 at 2.

Ms. observed that goals were developed and recommendations generated by extrapolating from the related service progress reports and the CPSE IEP. Academic goals were based upon the for in concert with a review of the child’s emerging skills. Beyond the issue of academics, she noted that exhibited significant attentional and social deficits. In response, goals were formed to address these needs. In particular, the child’s social and communication deficits would be addressed by small group on a weekly basis while focus would be addressed through . Tr. at 59-60.

Ultimately, the CSE recommended an class along with the assignment of a . In addition to the , the CSE recommended supplementary individual and small group times per week. Tr. at 63, 64-68. Nevertheless, Ms. testified that the class is “ and foremost” a general education class following a general education curriculum. She observed that both the general and special education teachers assigned to this class are responsible for all of the students. Thus, in the course of a day, students may be broken into smaller heterogeneous or homogeneous groupings as needed. While parallel instruction may also occur at times, “station-teaching” – instruction in which instruction is split into four different groups is additionally offered as an instructional modality. At these times, an assistant teacher and lead each group. Tr. at 69-70.

Based upon the CSE’s review of ’s needs, approximately instructional periods per week would be provided to as an individual or . During the remaining classroom periods, the child would be assigned to a dedicated health . Having thus testified, the witness indicated that would not necessarily be of the classroom as some services were more appropriately offered within the classroom. In this manner, specific skills might be taught in context with their actual application within the classroom (eg. handwriting skills during workshop) while facilitating generalization. Tr. at 105-107.

Ultimately, Ms. testified that there might be in the classroom ( teacher, special education teacher, full-time and ) with responsibilities for at the same time. Tr. at 85. This does not include other full-time in the classroom in addition to various related service providers who might be present in the classroom at any time. At a minimum, there would be in the classroom during ’s periods, a number which does not reflect the presence of any providers.

Tr. at 113. Nevertheless, Ms. did not recall any discussion with the about classroom size and how it might impact Tr. at 96-97.

Addressing the Department’s recommendation, Ms. described the other options presented. The testimony follows:

MS. : Okay. Were there any other programs besides the that was considered at the IEP meeting?

MS. : Well we discussed--we certainly discussed after

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the report. It was very clear that could not be in a class without supports. class, which is something provided. only wouldn't be enough. I believe we probably discussed a more restrictive setting, a , where he's be with, you know, children purely with disabilities, and we felt that that would be much too restrictive for .

MS. : Was there an in-between, anything in-between an class and a that was discussed?

MS. : Yes, that's why we added the .

Asked to clarify whether there was any other placement on the continuum between an class and a placement, Ms. testified that this is why had been provided. On further inquiry, the witness acknowledged that there was no classroom at . Tr. at 109. In sum, the CSE generated its recommendations and Ms.

testified that Ms. subsequently visited the .

The Parent’s Case

is the Principal of the . As such she is familiar with Ms. described as a small, collaborative school for children with

There are children in ’s class. Within this group, has appropriate peer models. Its pupil: personnel includes a

Students additionally “ ” into for and while are provided on-site. Tr. at 157, 170.

Formal staff development occurs weekly. This has previously included training on protocol such as , and . Pro-active

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strategies for intervention have also been addressed. The child is presented with a grade curriculum. While does not receive formal sessions, a counselor is assigned to the class and is frequently present as a service, offering

“real-time” intervention. Beyond this, a weekly social skills class is offered by a . At this time, skills such as , , and pragmatics are taught in a pleasant and non-threatening manner. In sum, the witness opined that the child had made significant progress with many pre-academic skills, such as attending to instruction and demonstrating less dysregulation when seated. Tr. at 167-

168.

additionally testified on behalf of the Parent. She is the Head Teacher in ’s classroom, an environment in which is placed with other students whose / delays and social deficits are similar to his own. Although there are children in the class, receives instruction as part of a .

In , he is paired with other child. Tr. at 182. In furtherance thereof, the witness observed that benefits from a small classroom as she is able to check in frequently with the student to ensure comprehension. It additionally provides a quiet environment which facilitates ’s ability to self-regulate and remain on task.

Ms. described a child who struggled with expressive, receptive and pragmatic , superimposed upon poor self-regulation and lack of focus. Beyond many educational modifications offered to , the child’s issues are managed with a ,a and fidgets for his hands. Frequent “ ” are additionally incorporated into the child’s day. Ms. noted that her classroom contains several which amplify microphones worn around her neck.1 As the child is hearing-impaired, she frequently relies upon in the form of to compare and contrast, sequence and

In this manner, the witness indicated that she is able to use an enriched visual environment to compensate for ’s hearing deficits. The witness testified that benefits from . In addition, she

Or any other speaker in the classroom

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frequently looks for novel ways to present materials as a means of eliminating boredom.

Tr. at 198

Ms. observed that ’s dysfunctional classroom have decreased since the beginning of the year. Specifically, he has demonstrated greater on-task performance and is now using to communicate

. As has become more proficient verbally, his ability to transition has improved as has his ability to self-advocate. Tr. at 211-212.

Academically, the witness indicated that, based upon informal classroom assessments, has also shown improvement with responding to “ ” “ ” words, and counting syllables. Tr. at 194-196,

201-203. Ms. additionally testified that had made progress in written expression through the , a protocol which is developing his ability to write a simple descriptive sentence.

In , utilizes both and , both

programs. Worksheets contain limited information, a strategy which does not overwhelm the child and facilitates his ability to remain on task. Ms. testified that is learning to make comparisons, identify shapes, write numbers, add and subtract. While has acquired many of these skills, his lack of focus interferes with his ability to consistently demonstrate this knowledge. Tr. at 206-207.

Finally, Ms. testified that has become more available to interact with his peers. He has developed an interest in his peers and will now initiate a conversation.

Tr. at 213. Upon inquiry, the witness opined that a collaborative class would be “ ” for as would easily become dysregulated by the stimulation occasioned by this type of environment. In sum, she opined that was an appropriate placement for Ms. is ’s mother. She provided a brief description of ’s strengths and weaknesses. On April 10, 2014 she participated in a CSE convene. At the time of this meeting, was attending a with . Although she provided the Committee with a private evaluation and observation of the child at this

’s

time, she acknowledged that she did not discuss her concerns regarding her son’s ability to function within this setting. Tr. at 228. Rather, she noted that she was presented with a great deal of information, including acronyms with which she was unfamiliar, from personnel in the room that did not know her child. Ms. testified that she felt overwhelmed and confused by the proceedings and did not wish to make any decisions until she had reviewed all of the material which had been presented. Tr. at 229-230, 232.

Thereafter, by letter dated June 13, 2015 the Parent received the Department’s Final Notice of Recommendation and, in response, Ms. visited the proposed class at . Exh. I.

Having visited , Ms. testified that she had several concerns regarding the classroom’s appropriateness. This included class size, poor classroom and school acoustics exacerbated by concrete flooring, frequent distractions as several groups engaged in different activities at the same time in addition to disruptions associated with children and service providers leaving or re-entering the classroom on multiple occasions during the day. Tr. at 238-239, 242; Exh. B. As a result, the Parent believed would be over-stimulated and distracted within this environment and unable to learn. Beyond this, she did not believe he could receive the he required and would spend an inordinate amount of time outside the classroom receiving

Having so testified, the Parent noted that a contract executed on March 21, 2014 along with an nonrefundable deposit to made that day, reflected the enrollment exigencies of , rather than any firm decision to reject the Department’s proposed placement. Tr. at 243; Exh. F. In sum, the Parent indicated that she was pleased with her son’s academic and social progress at .

THE SCHOOL DISTRICT’S POSITION

The Department maintains that the April 10, 2014 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1).

Inherent within this position, the Department asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational

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benefits. In view of the foregoing, the Department maintains that compliance with its IDEIA mandate is predicated upon the development of an educational , which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent.

Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

The District further maintains that is an inappropriate placement for the student as it does not comport with the notion of furnishing services within the least restrictive environment. Finally, the Department contends that the Parent’s actions militate against his equitable entitlement to relief. Tr. at 20.

THE PARENT’S POSITION

The Parent asserts that the Department stands in abrogation of its duty to provide with a free and appropriate public education for the 2014-2015 school year in violation of the IDEIA (See 20 U.S.C. § 1412 (a)(1)(1997). As such, counsel maintains that the IEP generated April 10, 2014 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. As such, the Parent was compelled to unilaterally enroll her child in a school placement

(Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with this argument, the Parent contends that the constituted an appropriate placement for her son during the 2014-2015 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

DISCUSSION

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all

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children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and embodied in an IEP. See 34 C.F.R. 300.13. An appropriate begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S.

359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New Aaron City Dep't of ’s

Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New Aaron City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch.

Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach " "); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v.

Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F.

Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G.

v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir.

1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v.

Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged

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test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the April 10, 2014 IEP reasonably calculated to confer an educational benefit upon during the 2014-2015 school year?

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. §

300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

Clearly, the IDEA does not itself articulate any specific of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n.21, 189. 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" as the IEP (Rowley at 192). Indeed, "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act" (Kerkham v. McKenzie, 862 F.2d at 886). Similarly, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). And, even if the record revealed a lack of progress under a particular IEP this too does not automatically render that IEP inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]).

A. Were the student’s present levels of performance appropriately incorporated into the May 20, 2014 IEP?

Turning to the question of ’s IEP, I find, ab initio, that the CSE was not duly composed. Consistent with 8 NYCRR 200.3 (a)(1):

(a) Each board of education or board of trustees shall appoint:

(1) Committees on special education in accordance with the provisions of Education Law section 4402 as necessary to ensure timely evaluation and placement of students.

The membership of each committee shall include, but not be limited to :

... (ii) not less than one regular education teacher of the student wherever the student is or may be participating in the regular education environment; (iii) not less than one special education teacher of the student or, if appropriate, not less than one special education provider of the student;

In the matter at bar, it is clear that there was no or special education provider of the child present. In fact, the only teacher present did not contribute to the discussion, according to Ms. ’s testimony as, “. .

. most of the conversation . . . focused on the . . . special education programming and reviewing the reports.” More importantly, other than the Parent, no one else had any ongoing knowledge of the child. Rather, Ms. testified that evaluative information and goals were extrapolated from provider reports. The failure to include the active participation of any of the child’s present teachers or providers is particularly significant as the parties were involved in the drafting of a “ ” IEP which would reflect the child’s ability to transition from a “medical” model into school age services. Tr. at 47-48. More significantly, is a flexible for young children while is the first step in the child's formal education.

In furtherance thereof, the school age experience demands greater autonomy in terms of self-care and activities of daily living. Increased expectations are anticipated. Had the child’s been present, for example, she would have been able to address ’s ability to negotiate a much larger educational facility serving , a building with longer hallways, staircases and, most likely, older children. The Department’s case is silent on these issues. Moreover, the CSE would have had greater insight into the child’s ability to follow a schedule, sit still and focus, follow classroom protocol, transition uneventfully and work cooperatively with others, all critical pre-academic skills. The records indicate that, even with to guidance, is often off-task or non-responsive. Exhs. 4 at 2; 5, 8, 9. Given this scenario, the child’s had no opportunity to discuss the value of a dedicated in a large classroom, a key component of the Department’s educational planning. In the absence of teacher input, the CSE could only rely upon progress reports from individuals not present at the proceedings. At best, it could only surmise and infer how would cope with escalating academic demands and a faster paced curriculum reflecting fewer play breaks and perhaps even homework.

The absence of a and during the CSE proceedings is similarly significant in view of the fact that, per Ms. , the teacher was a passive participant in the meeting, Tr. at 44. In furtherance thereof, the April 2, 2014 and progress report describes a child with moderate to severe expressive and receptive while the CPSE IEP

Exhs. 3 at 2; 7 at 3. The active participation of the child’s and the child’s and would have offered significant insight into how or if these deficits could be specifically managed within a class of staffed by and a

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B. Were the student’s present levels of performance appropriately incorporated into the April 10, 2014 IEP?

" "

" as the IEP (Rowley at 192). Indeed, "

" (Kerkham v. McKenzie, 862 F.2d at 886). Similarly, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). Finally, even if the record revealed a lack of progress under a particular IEP this too does not automatically render that IEP

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inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]).

The Department’s witness testified that, prior to conducting the CSE review, “. . .

we had ' classroom observation, we had his IEP, and then also various related service reports. and report, I believe--can't, you know, percent recall, but that there would be a report from the , which is typical of--you know, so we looked through those reports and [ ]

gave, you know, a general overall summary of what was contained within those reports.”

Tr. at 35; Exhs. 2, 5-9. Significantly, a private -Educational Evaluation conducted on November 14, 2013 was first produced by the Parent at this time. Exh. 8. It is unclear as to when the Parent furnished the CSE with a copy of Elizabeth , Ph.D.’s private classroom observation as this document was submitted separate and apart from Dr. ’s -Educational Evaluation. Exh. 4. Although both the -

Educational Evaluation and Classroom Observation occurred in November 2013, I note that these results are not referenced in the January 7, 2014 CPSE IEP, a document upon which the April 10, 2014 CSE relied. Having said this, Dr. ’s report includes the only standardized cognitive test scores available to the CSE. As a result, the Department’s assessments are essentially reflections of achievement and do not address the child’s cognitive ability, processing challenges, executive deficits or . While the Parent has argued that the CSE’s deliberations were not based upon adequate assessments, this was due in large measure to the Parent’s failure to share the results of private evaluations and assessments in a timely manner. While the absence of standardized cognitive scoring limits the context in which the child’s achievement can be appreciated, the CPSE’s IEP contains standardized measures which, in part, compensate for this lack. As such, the absence of cognitive scoring does not rise to the of a due process violation, although in aggregate with other procedural and substantive issues, this procedural infirmity may well establish the tipping point in which a denial of FAPE is determined.

C. Are the recom m endations articulated in the IEP of April 10, 2014 reasonably calculated to confer an educational benefit upon ?

Although the CSE possessed the requisite assessments, it failed to appreciate their

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contents. Rather, it simply offered the child what was available, rather than what needed. Thus, the CSE responded to the child’s severe and wide-ranging deficits by cobbling together a which included a classroom, assignment of a health and at least out of a week in which would be offered as or . Tr. at 47-48. It did NOT consider a in a community school. In fact, Ms. testified that this option did not even exist in her school and Ms. acknowledged that the Department was “ ” from this. Tr. at 131. Rather, the CSE offered the Parent a class with extensive supports because this w as all it had a class which w as deemed too restrictiv e. Ultimately, the real question is two-fold: (1) Can all of these educational enhancements compensate for the lack of a class and (2)

To what extent can ’s learning deficits be addressed within an classroom?

I find, at the outset, that the District’s description of an class as a “ ” is disingenuous. This is particularly so in view of the fact that there may be enrolled in that classroom supported by full time adults and additional related service providers at any time. Even if instruction is offered in small groups, this is clearly an educational environment ripe for distraction for a child such as

It should be noted, for example, that pupil/personnel is not the only factor which may determine the of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual and auditory stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of . More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented to a large group. Clearly, the delayed feedback, inherent within a larger class, would impact negatively on a child whose deficits in fall at an age equivalent of . Exh. 7 at 4.

Given the child’s limited (scores ranging from age

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equivalents of ) 2, his on the - Tests of

(reflecting his ability to remember and repeat short sentences),3 and repeated references to ’s lack of responsiveness and , an setting would clearly advance at a pace far out-stripping his ability to keep up. Exh. 9 at

The testimony and evidence indicate that has and struggles with anything more than a simple direction.

assessments indicate that both receptive and expressive are, at best, significantly delayed and fall at a . exhibits poor on-task performance and is described by the Department’s social worker as “ ”

“ ”

“ ” of all children to be educated alongside their non-disabled peers, none of the -other than a general reference to generalization - were addressed. Tr. at 131-132. The issue is not the child’s “ ” to be educated among his/her peers. It is, rather, the child’s right to an “ ” (Rowley, supra at 176, 206-207. Based upon the child ’s considerable deficits, I believe would always be struggling to develop foundation skills in the Department’s class while others were moving on to more advanced materials. Adding does not alter the initial pacing of instruction, the of instruction or the degree of distraction associated with increasing class size. This is particularly germane given Ms. ’s insistence that a class is “ ” a setting. Tr. at 69-70. Beyond this, the assignment of a health in the absence of a or simply constitutes a reactive to controlling ’s

Exhs. 8 at 5; 7 at 3

Exh. 8 at 5.

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in the absence of any structured plan to reduce the maladaptive which interfere with ’s ability to access an education.

Those who knew the child or – at the very least – observed the child, uniformly recognized ’s need for individualized instruction within a setting. Exhs. 4 at 2; 5 at 1-2; 8 at 7-8; 9. Clearly, at some point along the continuum, leveled curricular materials, educational modifications, testing accommodations and a schedule in which more than of the child’s week is spent with related service providers render the child’s participation in classes more illusion than fact. Given ’s , , and , the required accommodations and extensive in this setting transmute the very nature of an classroom. At some point, an array of modifications and simply cannot compensate for small classes. In view of the above, I find that the IEP of April 10, 2014 does not provide with FAPE.

Point II: Was an appropriate educational placement for during the 2014- 2015 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112).

While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. 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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New Aaron City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April

21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-

111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictiv e environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; com pare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the academic offered at correlates well with the student’s academic needs, as identified in the IEP. Principal noted that is very quiet and calm, an environment which eliminates distractions and ’s Findings of Fact and Decision minimizes overload. This is additionally achieved through the use of a , a and fidgets for his hands. Frequent “ ” are additionally incorporated into the child’s day.

There are children in ’s class whose /

delays and social deficits are similar to his own. Within this group, has appropriate peer models. Its pupil: personnel includes a

Students additionally “ ” into for and while are provided on-site. Tr. at 157, 170, 182. In this manner, ’s teachers are able to frequently “ ” with the child to ensure both comprehension and focus. The child’s teacher additionally testified that she utilizes

, , instruction and controlled text in order to facilitate ’s ability to absorb educational materials. In addition, she frequently relies upon in the form of to compare and contrast, sequence and The School utilizes a in which is presented with a grade curriculum. This includes the use of many computer programs such as , and . Many pre-academic skills, such as attending to instruction and demonstrating less dysregulation are specifically addressed during the day in a structured manner. Tr. at 167-168. While does not receive formal sessions, a weekly social skills class is offered by a . In this manner, ’s social deficits are not highlighted through either individual or small group . He simply receives these services along with the rest of the class. More significantly, the child’s teacher testified that her classroom contains several which broadcast the speakers’ microphones. In this manner, is not singled out as a child who requires a specific apparatus in order to learn.

The testimony of both the Parent and personnel indicates that as has become more proficient verbally, his ability to transition has improved as has his ability to self-advocate. Tr. at 211-212. As a result, many of the child’s dysfunctional classroom have decreased since the beginning of the year. Specifically, he has demonstrated greater on-task performance and is using to communicate

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Academically, the witness indicated that, based upon informal classroom assessments, has also shown improvement with responding to “ ” “ ” words, and counting syllables. Tr. at 194-196, 201-203.

Finally, Ms. additionally testified that had made progress in written expression and although his ability to focus remains problematic. In sum, I find that ’s includes a variety of interventions which are specifically designed to meet ’s needs and, given all of the testimony and evidence in the matter at bar, I find that has made substantive and meaningful progress ( Child with a Disability, Appeal No. 02-111).

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2014-2015 school year?

Prong three of Burlington, supra, provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v.

Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.

Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New Aaron

City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New Aaron

City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa

Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New Aaron

City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch.

Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.

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Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.

v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina

City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch.

Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

I find, at the outset, that the Parent has not entirely met her equitable duties consistent with 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

Specifically, Ms. ’s testimony that the Parent arrived late for the CSE proceedings and did not share the results of her private evaluations in a timely manner was credible. Similarly, I do not believe the Parent articulated any of her concerns about ’s during the proceedings and I am not persuaded that she was too

“ ” “ ” to contribute an opinion about the services being offered to her son. Exh. A. The Parent is expected to be an active participant in the formulation of an educational plan. The testimony indicates that the CSE was more than accommodating in facilitating Ms. ’s ability to understand the CSE process, helping her

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take photographs of documents so that she might recall all of the events later that day. Tr.

at 230. There is no indication that an atmosphere of hostility or negativism permeated the proceedings and the Parent could easily have asked questions about the acronyms used.

Although a letter dated April 23, 2014 was indeed sent to the CSE, Ms. ’s passive at the CSE convene militates against the parent-school collaboration anticipated by the IDEA. Given the fact that a contract with had been executed on March 21, 2014, can only wonder how serious the Parent was about her commitment to public education. Nevertheless, this action may well reflect the enrollment exigencies of , rather than any firm decision to reject the Department’s proposed placement.

Tr. at 243; Exh. F. I. The testimony is silent on this issue. Having said this, it is clear that Ms. did, in fact, visit the proposed placement although her lack of cooperation with the school’s must be noted. Tr. at 95-96; Exh. B. As such, I believe this facts must be weighed against the Parent’s right to equitable relief.

CONCLUSION

Although the Parent’s request for relief is granted for the 2014-2015 school year, it must be reduced based upon equitable considerations.

Wherefore, it is hereby ordered that:

Within sixty (60) days of the date of this Order, the District shall reimburse the Parents, and , in the amount of for expenses incurred during the 2014-2015 school year at the . This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated October

1, 2014.

Dated: June 22, 2015

LEAH BOTWINIK ALMELEH, ESQ.

Impartial

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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.

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DOCUMENTATION ENTERED INTO RECORD

PARENT

A Parent Letter, dated 4/23/14, 2 pages

B Parent Letter, dated 6/24/14, 3 pages

C 2014-2015 Mid Year Report, dated February 2015, 10 pages

D 2014-2015 Class Schedule, dated 2014-2015, 1 page

E 2014-2015 Attendance Record, dated 2014-2015, 1 page

F 2014-2015 Enrollment Contract, dated 3/24/14, 4 pages

G Affidavit of Payment, dated 2/9/15, 1 page

H Proof of Payment, Various dates, 4 pages

I FNR, 6/13/14, 1 page

DEPARTMENT OF EDUCATION

1 Due Process Complaint dated 10/1/14, 5 pages

2 Health Examination Forms, dated 4/22/13, 4 pages

3 Progress Report, dated 4/2/14, 5 pages

4 Private Providers Classroom Observation, dated 11/5/13, 2 pages

5 Letter from , dated 4/9/14, 2 pages

6 Evaluation, dated 8/15/13, 4 pages

7 CPSE IEP, dated 1/7/14, 15 pages

8 Psychoeducational Evaluation, dated 11/14/13, 11 pages

9 Classroom Observation, dated 2/27/14, 1 page

10 , undated, 1 page

11 IEP, dated 4/10/14, 17 pages

12 Notice of IEP Meeting, dated 3/24/14, 3 pages

Footnotes

[20] U.S.C. § 1400 et seq., and is with a hearing as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding . Finally, a list of persons in attendance and of evidence is appended hereto. The School District’s Case testified on behalf of the Department. She has never met or observed him within a classroom setting. Tr. at 76-77. Ms. is a teacher (hereinafter “ ”) at who

New York City Department of Education, Impartial Hearing Decision