New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 16, 2015

March 9, 2015

April 29, 2015

Actual Record Closed Date: May 22, 2015

Hearing Officer: Jeanne Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2015

Esq. (via telephone) — Student

No appearance — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2015

Esq. — Student

Parents

Program Director (via telephone — Student

District Representative — District

Social Worker (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2015

Esq. — Student

Parents

District Representative — District

INTRODUCTION

On December 12, 2014 I was appointed as the Impartial Hearing Officer (“IHO”)

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

BACKGROUND

is a year old student who is currently in the and attends the (“ ”) in a . (Ex. 2) was unilaterally placed at by her Parents for the 2014-2015 school year. Her classification of (“ ”) is not in dispute. (t. 36) The Parents assert that the District has failed to provide with a free and appropriate public education (“FAPE”) for the 2014-2015 school year and seek direct funding of the tuition for for the school year at issue as the Individualized Education Program (IEP) is procedurally and substantively flawed and the recommended program inappropriate. The

District contends that was provided with FAPE for the school year in question and that the recommended programs addressed her unique needs.

FINDINGS OF FACT

is diagnosed with a

. received

through age , then transitioned in to the Committee on Pre-School Education (“ ”) where she received related services of (“ ”), (“ ”) and (“ ”) as well as being in an program for years. When she aged out of the CPSE she went through the Committee on Special Education (“CSE”). started attending in (t. 164-66)

On April 28, 2014 the CSE met to develop an IEP for covering the 2014-2015 school year. This was a triennial evaluation which is a reassessment and reevaluation done every three years to establish a student’s current level of and to ascertain what progress, if any, has been made. As a general rule the CSE have full assessments done for a triennial evaluation. (t. 31) Prior to the hearing the DOE did a psychoeducational evaluation and an updated Social History. The Parent was provided with a copy of the Psychoeducational Evaluation prior to the CSE meeting. (t. 167-68)

The present levels of performance indicate where a student is currently performing and provide a , or . (t. 60-

61) In preparing for the CSE meeting Ms. , the district representative and social worker for the DOE reviewed ’s progress reports from her service providers, her teacher, the psychoeducational evaluation and social history update.

Reevaluations were not done for because the CSE felt that the provider progress reports were very complete. (t. 32) These documents were reviewed at the IEP

meeting. The reports indicated that was grade levels below her chronological grade level. The recommendation of the CSE was for a class ( students, teacher and ) in a school for , (“ ”), and . In addition related services of . (t. 37-38, Ex. 2) Ms.

testified that the other team members did not review the related service progress reports prior to the meeting but rather at the IEP meeting. While Ms. testified that skills are areas of deficit for she did not agree that her motor needs are impaired. Though she conceded that she had relied on the progress reports provided by the school and related service providers she did not recall reaching out to to find out what accommodations, if any, are in place for She did not recall if evaluative data was contained in the progress reports. (t. 47-51) A Social History update was done for the meeting and Ms. testified that such an update should contain information about the current family composition, current concerns, school performance and any changes in the child’s life and family since the initial Social History was done. Ms. stated that this is extremely important especially after a long period of time (three years in this case) as major changes could have occurred which could impact the student’s performance in school. She stated that she could not recall if the social history contained any information about any changes in ’s life but did feel it was shorter than usual. The Parent testified that she participated in the Social History but all she was asked was about ’s school and nothing about her or any changes in it. The Parent stated that she raised this at the meeting and the team members seemed surprised. The Parent was not provided with a copy of the Social History by the DOE either before, during or after the meeting. (t. 52-53, 169-70)

Ms. testified that the goals were created during the meeting and believes that the Parent was involved because she was present during the discussions. She particularly believes that the Parent participated in creating the goal because it was a new service and that the Parent had the opportunity to actively participate during the meeting. Ms. stated that the team relied a great deal on the reports sent in by as they are the ones who are providing the student with services and, along with the Parent, know the student best. The Parent testified that the only the had sent in goals and that she was given the option of coming back to develop goals for and or the goals would be created by them at that time which they did by keeping the goals from the prior IEP. Ms. testified that the baseline for goals, while not explicitly stated can be inferred from ’s present levels of performance and the skills that she already possesses. (t. 61-64) A goal was developed for education.

education is for children who have issues with student to teacher ratio with more . This allows for exposure to education adapted to meet the needs of the student. Ms. testified that it is her experience that when a child is in a setting that education is programmatic and therefore would not have to be delineated on the IEP. Ms.

stated that she did not contact to ensure that the school treated education as programmatic in their class. (t. 65-67)

The team was in agreement that required classroom setting and considered other alternatives of (“ ”) and a class in a school. Ms. stated that as best she could recall she discussed alternatives with the Parent. However, she conceded that it is hard to remember one meeting from the next especially if she did not do an observation of the student, as is the case here. The class was deemed to be and for and the class in a school was too restrictive. (t. 41-45, 56, 58-59, 170-71) The Parent testified that both she and ’s teacher did not believe that the psychoeducational was an accurate reflection of ’s abilities and that they believed that the class was not appropriate for as it was . ’s teacher stated that she felt that had made progress only because of the at . The Parent testified that there was no discussion about alternative programs, promotional criteria or participation in state and local assessments. (t. 172-73)

is described as a , . She’s

. She also

. has a number of

(t. 82-83, 127-28)

The Parent testified that she received a copy of the IEP in May and a recommended placement for in July. The recommended placement was for and the Parent stated that the school had been recommended for since .

In previous years the Parent has always found it inappropriate because of concerns with the program and because the building is and has . Each year the Parent advised the DOE of her concerns with the building and the program. (t. 174-75, Ex. C, D, E, F) The Parent attempted to visit the school for the 2014-2015 school year recommendation. The Principal advised her that since it was the summer there would not be anyone to show her around the school. The

Parent notified the DOE in a letter dated 8/12/14 that she was unable to visit the school until September, had concerns about the appropriateness of the program and also with the IEP. On 8/20/14 the Parent sent a follow up letter reiterating the information contained in the letter of 8/12/14, noting that she had not received a response to that letter and advising that would continue in until the Parent can visit the recommended placement and make a determination. The Parent did not receive a response to either letter. The

Parent made an appointment to view the school and program in September with the idea that since the DOE was recommending the same placement it might have changed and become appropriate. (t. 178-80, Ex. G, H) The Parent visited the school and found that the building was . The classroom was classroom which is a room with . would be in that classroom except for . The are not classes and the Parent felt would be for and . The Parent spoke to the teacher about whether they had a which

.

. The teacher advised that they do have a but not . Instruction is delivered

. There is no specific time to work on skills. (t. 183-88) The building itself is . The classroom is . The related services

are

After

visiting the school the Parent notified the DOE that he did not believe that it was an appropriate program for via a letter dated 9/23/14. The Parent did not receive a response to his letter. Since the Parent found the recommended program and placement inappropriate they continued in . A tuition agreement was signed dated 9/4/14.

The Parent acknowledged that if he does not prevail at an impartial hearing he will be responsible for payment of the tuition though he acknowledges that he has made no payments and is not in a financial position to do so. (t. 189-94, Ex. I, P) The Parent believes that has made progress this year and that her is clearer, she is and skills have improved. (t. 196)

attends which is school that provides education to children who have trouble in a classroom and there are approximately enrolled. The school consists of classrooms ranging from students in a class and generally in the classroom. The students have difficulties

. The school looks at where the child is and develop goals based on the level. in in a class with old with classifications of , , and . The students are grouped by levels. There are teachers, in the and in the , as well as and of the students has a . is

83-86) is described as presenting wide

range of delays,

.

. The educational impact of her difficulties it difficult for her to participate in class lessons and there is a impact of . In addition, she requires . Her needs are addressed daily at through modified lessons and . (88-91)

has made progress in her skills as well as her skills. (t. 93-95)

created an individualized education program for The goals were created by her teachers and the curriculum director. An educational plan was developed by ’s teacher, Ms. . (Ex. O) Ms. testified that she reviewed ’s IEP and found that the are insufficient because she needs in every subject and a approach and . She also needs . She also believes that the annual goals are at level for her as she is doing work and the goals are work. Ms.

also found that the testing accommodations were inappropriate and the promotional criteria was not appropriate. (t. 152-54) She testifies that needs in a and believes that appropriately meets ’s needs and she is making good progress. (t. 156-57) Ms. is the teacher for ’s class and teaches only subjects in the classroom. (t. 158-61)^[1]

CONCLUSIONS OF LAW

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

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

v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents.

School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S.

359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony and evidence adduced at the hearing the District has failed to provide FAPE for the 2014-2015 school year based on substantive and procedural violations and failure as well as failing to show that the recommended placement could implement the IEP.

The State Review Office (“SRO) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”.

(Rowley, 458 U.S. at 203)

The testimony and documentary evidence support the Parents position that was not properly evaluated for her triennial evaluation which is meant to reassess and reevaluate a student’s current level of . It is uncontested that the only evaluation done was the psychoeducational evaluation and a social history update. Ms.

testified that the CSE did not feel that updated evaluations for related services were necessary because the updates from the related service providers were very complete. This in spite of the fact that ’s classification is based on her diagnosis of which affects her in the area of needs and deficits. In any event those updates were not submitted in to evidence and there was no testimony regarding the related service providers updates.

The Parent testified that at the IEP meeting both she and ’s teacher were clear in their opinion that the psychoeducational evaluation did not accurately reflect ’s abilities and needs. In spite of this Ms. testified that they continued to rely on the psychoeducational evaluation in creating the IEP. As to the Social History Ms.

testified that the Social History is needed to see if there have been major changes in a child’s life which may affect them in school and characterized the information as extremely important. The Parent testified that when interviewed for the Social History Update she was asked no questions about other than those relating to . The

Parent testified that neither she, nor ’s classroom teacher, was included in discussions about participation is state and local assessments, alternative or promotional criteria as there was no such discussion. The Parent testified that both she and ’s classroom teacher clearly advised the CSE that a could not provide with the that she requires. In addition, the IEP recommends a setting for only and there is nothing in the record to support this as being appropriate for this student. I credit the testimony of the Parents, their witnesses and evidence. It is important to note that the District did not attempt to rebut or challenge the testimony of the Parents or their witnesses. I find that based on the foregoing the Parents ability to meaningfully participate in the IEP meeting was impeded and coupled with the failure to properly evaluate the student caused a deprivation of educational benefit.

In addition, I find that the DOE failed to provide FAPE for the 2014-2015 school year based on the failure of the DOE to present evidence to establish that was offered an appropriate placement. The DOE offered no direct testimony about the actual placement which was offered to the student or that said placement would be able to implement the IEP. It is incumbent on the school district to identify a school which is capable of implementing the IEP. TY v. NYC DOE, 584 F.3d 412 (2d Cir. 2009) The DOE takes the position that they do not have to present the testimony of a placement witness as the speculative allegations of the Parent do not warrant such a witness and rely on RE v. New York City Department of Education, 694 F.3d 167 (2012). In KR v. New

York City Department of Education, 2015 WL 1808911 (S.D.N.Y 4/20/15) the Southern District of New York wrestled with the contradicting case law interpreting the Second Circuit’s 2012 decision in RE. As the Court noted, some courts have held that any evidence regarding the proposed public school placement is retrospective and impermissible, while others have allowed it regardless of whether or not the student actually enrolled if the defects were reasonably apparent. The Court found that “All courts appear to agree that a challenge to a proposed placement will be successful where the evidence establishes that the placement would be unable to satisfy the IEP’s requirements. It seems clear, however, that in order to determine if a proposed placement will be unable to comply with a student’s IEP, evidence regarding the proposed placement must be considered-a categorical ban on any evidence relating to the proposed placement would frustrate that inquiry and allow a school district ‘carte blanche’ to assign a child to a school that could not fulfill the requirements of the IEP.” The Court found this reasoning to be consistent with the holding in RE. In the case at hand the Parent testified about his visit to the recommended placement and based on his observations and information provided that the school would not have met ’s needs. In addition, while there is an education goal on the IEP there is nothing in the record to support Ms. ’ assertion that an education class would be programmatic with the class. The question at issue is whether the student was provided with FAPE and testimony and/or evidence regarding the recommended placements ability to implement the IEP is an integral part of making that determination.

I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find that the testimony and evidence submitted by the Parents support this finding. The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original) I find the testimony of the Parents, teacher and administrator at credible in regards to the academic portions of the curriculum and related services. The testimony supports a finding that the school has crafted an individualized program that meets the student’s needs. A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v. Board of Education of Hyde Park., 459 F3d 356, at 364-65. The DOE did not address the curriculum at in any way.

The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. I find that the Parent cooperated fully with the IEP process. The Parent made her views known on the appropriateness of a program and her belief that the psychoeducational evaluation was not an accurate reflection of ’s abilities. In spite of the fact that the Parents had not found to be an appropriate placement in the past they made attempts to visit the school in the summer of 2014 and when unable to do so advised the DOE via letters which detailed their inability to visit and concerns with the IEP and received no response. When they were finally able to visit the school in September of 2014 and found it inappropriate they again sent a letter to the DOE and again received no response. There is nothing in the record to support a finding that the DOE did anything to address or remediate the concerns of the Parents as expressed in the letters that they sent. In view of the foregoing the equities favor the Parents.

The Parents seek tuition reimbursement in the amount of with an additional for related services (Ex. P) for a total of . The Parent asserts that receives a de minimus amount of instruction and that is not a reason to reduce funding. The only testimony on this point is from Ms. , the self-described

“ ” and I do not credit her testimony regarding the morning program or the daily schedule. I find disingenuous Ms. ’ testimony that in they are using the to assist in and to assist in . (t 158-61,

Ex. J) In view of the foregoing the annual tuition is reduced by from to . The total direct funding, inclusive of related services in the amount of is .

ORDER

Therefore, it is hereby ordered that the New York City Department of Education shall provide direct funding payment of the tuition at for the 2014-2015 school year in the amount of .

Dated: June 5, 2015

JEANNE KEEFE, 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 MARCH 9, 2015

1. Psychoeducational Evaluation Report, dated 3/18/14, 3 pages District

2. IEP, dated 4/28/14, 13 pages District

A. Impartial Hearing Request, dated 12/11/14, 4 pages Parent

B. Due Process Response, dated 1/8/15, 3 pages Parent

C. Letter from to with Parent

Fax Confirmation, dated10/29/10, 2 pages

D. Letter from to with Parent

Fax Confirmation, dated 9/26/11, 3 pages

E. Letter from to with Parent

Fax Confirmation, dated 9/27/12, 3 pages

F. Letter from to with Parent

Fax Confirmation, dated 9/30/13, 3 pages

G. Letter from to with Parent

Fax Confirmation, dated 8/12/14, 3 pages

H. Letter from to with Parent

Fax Confirmation, dated 8/20/14, 3 pages

I. Letter from to with Parent

Fax Confirmation, dated 9/23/14, 4 pages

J. Daily Schedule for , 2014-2015, 2 pages Parent

K. Teacher Progress Report, Parent

February 2015, 3 pages

L. Progress Report, Parent

February 2015, 1 page

M. Progress Parent

Report, January 2015, 1 pages

N. Parent

Progress Update, February 2015, 1 page

O. Educational Plan, October Parent

2014, 14 pages

P. Enrollment Contract and Parent

Addendum, dated 9/4/14, 3 pages

Q. U.S. Individual Income Tax Return, 2013, 3 pages Parent

R. Meeting Notice, dated 4/10/14, 3 pages Parent

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

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

Footnotes

[1] While identified herself as the ‘ teacher’ she insisted that the other teacher in the teaching instruction despite a large portion of being dedicated , and . (t. 158-61)