NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 4, 2015
July 14, 2015
Actual Record Closed Date: September 2, 2015
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2015
Advocate, Esq. Attorney Department Department of of Education Education Mother — Parents
School Psychologist — DOE
(via telephone)
Director — DOE
(via telephone)
TITLES OF PERSONS WHO APPEARED ON JULY 14, 2015
Advocate Parent
Attorney Department of Education
Mother
Clinical Social Worker Parents
(via telephone)
\
INTRODUCTION
On June 4, 2015 and July 14, 2015 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a , (“ ”). The hearing was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
is and is classified as having . The child
attended (“ ”) for the 2014-2015 school year.
On or about January 28, 2015 the parents, by their advocate of , filed a request for an Impartial Hearing (“Complaint”) (DOE Ex. 1).
In the Complaint the parents alleged that by its Individualized Education Program (“IEP”) and its proposed placement the Department of Education failed to provide with a Free and Appropriate Education (“FAPE”) for the 2014-2015 school year. As a remedy the parents asked that the Department of Education be ordered to reimburse them for the tuition at for that school year (DOE Ex. 1 at 5).
I was assigned as impartial hearing officer in the case on January 29, 2015 and the original compliance date was April 13, 2015. On March 4, 2015 at the request of both parties for the availability of witnesses the compliance date was extended to May 13, 2015. On May 1, 2015 at the request of District for the availability of witnesses and without objection by the parents the compliance date was extended to June 12, 2015. At the conclusion of a hearing on June 4, 2015, at the request of both parties or the availability of witnesses the compliance date was extended to July 12, 2015 and hearing dates were scheduled for July 9, 2015 and July 14, 2015. On July 13, 2015 at the request of both parties to receive and review the transcripts and submit Closing Briefs, the compliance date was extended to August 12, 2015. On August 4, 2015 at the request of the parents for the hearing officer to review the transcript and Closing Briefs and issue a Decision and Order, the compliance date was extended to September 11, 2015.
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and was not harmed by the extensions; (b) in accordance with due process the parties were entitled to submit written closing statements and have this hearing officer review the transcript, the evidence and the closing statements prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there were no prior delays in this case.
ISSUES TO BE RESOLVED
The issues remaining at the conclusion of the impartial hearing are: 1) whether the IEP developed for for the 2014-2015 school year provided with a FAPE; 2)
whether the recommended placement, , had the capacity to meet the mandates of ’s IEP; and 3) whether the parents are entitled to reimbursement for the tuition at for that school year.
FINDINGS OF FACT
is ’s mother ( : 119). has and he . He
began receiving when he was ( : 120). When
was he was diagnosed with and began with
(“ ”) and (“ ”) ( : 121). When was he went to a preschool program at “ .” The next year he attended (“ ”), a school for and kindergarten special education students, and he continued to receive his ( : 122).
When was “ ” , a
psychologist, evaluated at ( : 19-20, 33-34, 123-124; DOE Ex.
14).[1] She attempted several formal measures but was did not respond to the tasks and no formal measures of his abilities or skills were obtained. Instead, the testing was done “off limits,” meaning that the tasks were not presented in standardized form but presented in a different manner to obtain responses. did not respond to the tasks presented even when the questions were presented differently and with .
He was able to following some such as and
. made during the testimony but Ms. did
not recall that he said any words during that time ( : 34-37; DOE Ex. 16 at 1, Ex.
14).
Ms. participated in ’s IEP meeting on April 2, 2014 as the school psychologist and the District Representative. The Department of Education was also represented by a special education teacher, . The other participants at the meeting were ’s classroom teacher, , and her educational advocate, , all of whom participated by telephone ( : 17-18; DOE Ex. 17). The
IEP team had the evaluation, a classroom observation, a social history update and progress reports from ’s teacher and his providers ( : 20; DOE Exs. 8-11, 18). ’s teacher joined the meeting after the other participants had reviewed the evaluation and the reports ( : 19).
At the meeting noted that she was concerned about ’s sensitivity to loud noise ( : 21-22, 29, DOE Ex. 18 at 2). After reviewing the evaluations and reports
’s teacher gave her input as to how was progressing within the classroom ( : 22-23, 39-40).
The academic, functional performance and learning characteristics portions of the (“ ”) section of the IEP were based on the psychoeducational evaluation, the , the teacher report and the teacher’s input at the meeting. The social development portion of the was based on the teacher’s report and her input at the meeting and the physical development portion of the was based on the physical examination, the and progress reports and any relevant discussion at the meeting ( : 25-26, 39-42; DOE Ex. 16 at 1-3). The section of the IEP notes the supports and services that are necessary to meet the needs as stated in the ( : 26-27; DOE Ex. 16 at 3).
The annual goals on the IEP were developed to be than
’s as determined at the meeting. The goals include methods of measurement and noted that they should be measured quarterly. must meet each goal with in order for it to be considered mastered. Ms.
explained that a criteria of
( : 23-25, 46-47; DOE Ex. 16 at 4-7). While the IEP includes a goal for toileting, the parent did not express that need as a concern at the IEP meeting. The goal was included because was not and his teacher stated that he was showing an interest in the skill by pointing to his diaper ( : 29-30, 43-
44; DOE Ex. 16 at 4).
The IEP team recommended a placement. That recommendation was based on the information gleaned at the IEP meeting. A program was considered but rejected because that program is for students who are ( : 30-32; DOE Ex. 16 at 14, Ex. 18
at 4).
The IEP team recommended the of for , individual for , and (“ ”) for in the classroom and for outside the classroom ( : 124; DOE Ex 16 at 8-9). The amount of recommended on the IEP was based on the provider reports and the teacher’s input. Those services include . Ms. understood from her conversations with representatives that goals were individualized based on the mandates on the IEP ( : 28-29, 48-53; DOE Ex. 16 at 8-9).
The IEP indicates that used to request objects. There was no discussion or information in the progress report about him using an ( : 45; DOE Ex. 8 at 1). The IEP notes that is and follows a ( : 47-48).
Ms. took the minutes of the IEP meeting (DOE Ex. 18).
A Final Notice of Recommendation (“FNR”) dated May 9, 2014 recommended a program at , a new school site that was not yet open. gave the document to Ms. and Ms. , who works with Ms. , noted on the document that the parents could not accept or reject the placement because the school would not be open until September 2015 ( : 134-136; Parents’ Ex. 1). did not recall whether she mailed the document back to the Department of Education ( : 136-137).
On May 12, 2015 the parents signed a contract to send to for the 2014-2015 school year. The terms of the contract permitted the parents to withdraw and be released from tuition payments, except for the non-refundable deposit, if the enrolled in a public school placement and notified in writing by September 12, 2015
(Parent’s Ex. I at 2). The parents visited the school on September 10, 2014 ( : 92;
Parents’ Ex. N).
was the social worker assigned to ’s class at for the 2014-2015 school year ( : 91).2 Between 10:00 a.m. and 11:00 a.m. on the morning of September 10, 2014 Ms. accompanied ’s parents on a visit to . Ms. took handwritten notes during the visit and she subsequently typed up those notes ( : 91, 95, 97-98, 100; : 146; Parents’ Ex. N).
The school, which had just opened a week earlier. The parents and Ms. met with the , , who took them on a tour of the school( : 91-93, 99, 101-102; : 123; Parents’ Ex. N; DOE Ex. 20). The special education classes were on the and the ( : 107-109). did not bring ’s IEP with her to the visit but she had questions prepared “in [her] mind” to ask at the school ( : 137).
Ms. described the school as a “lovely building” that was “very clean [and]
very new” but had few supplies in that the school was waiting for a delivery of desks and other equipment. The / / room was “large” and for the most part
, and . asked about in the classroom, in a or in an / / room as was told that the school was awaiting equipment that had not yet arrived ( : 93, 105-107).
They observed a group of students in the , which was the same size as a classroom. Ms. recalled that the children were engaged in a circle activity with a circle of instructors while recalled that the Ms. is a licensed clinical social worker in New York State and works at ( : 89-90). on the tour. Ms. recalled and included in her notes that the / / room had ( : 106,
109-111, 125, 140; : 147; Parents’ Ex. N at 1). The school was also waiting for ( :
125).
Ms. told the parents and Ms. that there were four classes in the school ( : 105). They were shown a “huge” classroom that would “probably” attend. recalled that there were in the class and they met the teacher. The were seated at and there
. The classroom had but no or . There were and there was nothing hanging on the walls. The parents also asked when additional would be arriving but the teacher did not know.
In order to get a “sense” of what the class would be like the parents asked the teacher about the students who were attending and the students that were expected. The teacher did not know how many new students were coming in or when they would arrive.
was concerned about the teaching method used in the classroom because she did not believe that had been working for . When she asked the teacher about the teacher replied, “perhaps.” The teacher told the parents and Ms. the students would be formally assessed do determine the appropriate teaching method and that all of the teaching was individualized according to each child’s needs and goals as indicated on each IEP. When asked if the school had family training the teacher replied, “we could try.” testified that the teacher was “very vague” when asked what she would do if a student had a “ .” When asked if the school does because requires a lot of that stimulation, the teacher responded that she did not “think so” but that should talk to the . did not see or meet any providers and there is no evidence that she asked to do so ( : 93; : 125, 140-143,
148-150; Parents’ Ex. N at 1).
asked the teacher how she communicates with the parents and the teacher replied that she could do ( : 139). After the conversation did not feel “confident” that the people in the school had a “good background to do the best” for and she had “no confidence” about what would happen to if he attended the school ( : 125).
The parents and Ms. visited the . The room was a very clean and modern facility but it was extremely
. compared the size
of the
( : 115-
119; : 126, 145-146; Parents’ Ex. N at 1).
Ms. testified that it was “very difficult” to determine how ’s IEP would be implemented in the school because there was a “total lack of and ” and no information about the teaching method that would be used.
Based on those circumstances Ms. did not believe the school would be an appropriate placement for ( : 93, 99-103, 111-112; : 125, 144; Parents’ Ex.
N).
attended for the 2014-2015 school year.[3] has been the director of since it opened in 2006 ( : 55).[4] is a school for children with in . The school serves children from the ages of years-old and utilizes (“ ”), a developmental model. The school also provides the of , , and counseling ( : 56).
The teachers at are certified in special education. The assistant teachers all have Bachelor’s Degrees and about half of them either have Master’s Degrees or are enrolled in a Master’s Degree program. The providers all have Master’s Degrees and are certified and licensed in their fields ( : 56-57, 66-67). Before the school year starts the staff attends a in and in areas such as and . There are sessions every Friday throughout the school year on those topics as well as in and during the 2014-2015 school year ( : 57).
attended for the 2014-2015 school year. His teacher, has a Master’s Degree in special education and is a licensed special education teacher. There were ( :
58-59). Ms. has observed in his classroom, seen reports prepared about him and participated in conferences concerning him ( : 59).
When entered in September 2014 he made some sounds that were mostly approximations consisting of either a vowel or consonant sound. He had with . One of his greatest challenges was his in that he was “ .”
Specifically, while to the eye he may appear to be regulated he is somewhat “ ” and requires a lot of input to get to a state where he can become engaged, regulated and available for learning. did not use an for his issues and he was not . was on a and at he received a lot of . At the time of the impartial hearing was when brought there on a regular schedule ( : 60-63).
Ms. reviewed ’s weekly schedule at (Parents’ Ex. G). The schedule included . The was to address his “ ” in his which negatively affect his . During “ ” received and to work on his developmental needs and he also received his individualized that included for of ( : 64-66). Each week went with his class into the community, . The class in the area or the ( : 67). At scheduled times a came to the classroom and worked with the children in a group. That time was meant to address social skills such as including taking turns, who gets to go first, who gets which instrument ( : 67-68).
is when and his classmates have a “ ”
during which the class focuses on a book during which works on symbol recognition.
( :
68).
( : 72).
eats . can
( : 72).
enjoyed getting such as “ ”
and things that involved movement. He likes with “ ” ( : 73-74). He
( : 74).
The school issues narrative Progress Reports in December and June of each school year. When the Progress Reports are issued the parents come to a meeting with ’s team to discuss the report and any concerns that the parents might have ( : 74).
’s teachers were in contact with his parents at least and the providers were in contact with . A social worker was assigned to the family and she contacted the parents and also was available to provide ( : 75-76).
Ms. opined that made progress at during the 2014-2015 school year. For example, by the first week of June 2015 he had an increased ability to be , he of time more consistently and thus was more available for interactions and learning throughout the day. Specifically, the amount of time he was ( : 76-77). also was initiating
more
( : 77-78).
believed that had a very personalized approach that was able to meet his unique needs and properly address his skill levels. The school was also able to address his ( : 127). The school integrated the parents into the program and sent a report each week about if and/or how is progressing on his goals.
The school also had formal meetings with and her husband where they discussed what was happening in school and how to help the parents with issues that arise at home such as how to calm down ( : 128-129).
has made progress this year in that if calls his name he will “automatically move and respond,” his eye contact his increased and he acts more spontaneously with the environment. While
. He is also
( : 130-132).
The parents signed a contract with on May 12, 2014 (Parents’ Ex. I at 4).
The tuition for the 2014-2015 school year was ( : 78-79;
Parents’ Ex. I at 5). At the time of the impartial hearing in June 2014 the parents had paid toward the tuition. If the parents do not succeed at the impartial hearing they will be responsible for the balance of the payments ( : 79-80; : 128-129;
Parents’ Ex. L).
CONLUSIONS OF LAW AND DISCUSSION
I.
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D)
34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v.
Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. at 203. An IEP must accurately reflect the results of evaluations to identify the child’s needs, provide for the use of appropriate special education services to address the child’s special education needs, and establish annual goals and short-term instructional objectives that are related to the child’s educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013).
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 1 1 0 , 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. While school districts are not required to “maximize” the potential of students with disabilities or provide an education guaranteeing any particular outcome, Rowley, 458 U.S. at 189-192, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132, a school district must recommend a program that is reasonably calculated to allow the child to receive 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, and develop an IEP that is “’likely to produce progress, not regression”’ and “ affords the student with an opportunity greater than mere ‘trivial advancement’.” Cerra v. Pawling Cent. School District, 427 F.3d 186, 195 (2d Cir.
2005), quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck
Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Application of a Student With a Disability, Appeal No. 13-169.
Parents who unilaterally place their child in a private school do so at “their own financial risk.” M.O. v. New York City Dep’t of Educ., No. 14-1473-CV, 2015 WL
4256024 (2d Cir. July 15, 2015), citing Reyes ex. rel. R.P. v. N.Y.C. Dep’t of Educ. 760 F.3d 211, 214 (2d Cir. 2014). However, parents may file an impartial hearing request asking for tuition reimbursement if they believe that the Department of Education failed to provide the child with a FAPE for that particular school year. The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents’ claim.
School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985).
Unless otherwise indicated below I credit the witnesses who testified at the impartial hearing. This Decision and Order is based on that testimony and the evidence presented at the hearing as summarized in detail above with citations to the record.
The April 2, 2014 IEP
The Department of Education has the burden of demonstrating that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child.
Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005.
The detailed testimony by Ms. , the school psychologist who participated in the April 2, 2014 IEP meeting as the school psychologist and the district representative, as well as the notes of that meeting submitted as a Department of Education exhibit and the IEP itself, clearly met the Department of Education’s burden of demonstrating that the IEP provided with a FAPE for the 2014-2015 school year. The IEP was developed after a psychoeducational evaluation, a classroom observation and a social history update and the IEP team considered the Progress Reports submitted by ’s teacher and his providers (DOE Exs. 2, 3, 5, 8, 9, 10, 11, 14, 15, 18; : 19-20). All of the required members of the IEP team were present and ’s then-current classroom teacher, Ms. , provided input both through her written Progress Report and her participation at the meeting. The IEP includes relevant information about based on the documents considered and the discussion at the meeting. The goals identify ’s needs at the time the IEP was developed and were formulated to be “ ” than ’s as they were determined at the meeting ( : 23). The goals include the criteria used to determine whether each goal has been achieved as well as methods of measurement for each goal and the fact that the goals will be measured one time per quarter (DOE Ex. 16 at 4-8). The IEP also includes the of , , , and (DOE Ex. 16 at 8-9). Ms. explained that after considering an program the IEP team believed that a placement would be “ ” for . The team also considered and rejected a placement because the student in that program are ( : 30-32; DOE Ex. 16 at 14, Ex. 18 at 4).
The parent’s Complaint alleged that, for various reasons, the Department of Education failed to provide with a FAPE for the 2014-2015 school year (DOE Ex. 1 at 2-3). At the conclusion of the impartial hearing the parties asked to submit closing briefs. At that time I advised Ms. , the parents’ advocate, that any issues not raised in the parents’ Closing Brief would be deemed to be waived (Transcript: 151- 152).
The only issues raised in the parents Closing Brief regarding the IEP is are the assertions that the IEP is substantively defective and failed to provide with a FAPE because it does not include goals and because the mandate on the IEP was not sufficient “to allow [the parents] to receive the individualized assistance that [they] are entitled to receive under” that mandate (IHO Ex.
I at 2-3). As the Department of Education maintained in its Post Hearing Memoranda of Law (IHO Ex. II), these claims have no merit and must be rejected.
Ms. testified that both and ’s teacher noted at the IEP meeting that was not yet . Ms. recalled that did not present this as a
“concern” at the IEP meeting and that it was included as a goal on the IEP because it was mentioned in terms of one of ’s ( : 29-30: DOE Ex. 18 at 4).
A child’s IEP must contain goals measurable annual goals that meet the student’s educational needs that result from the child’s disability. 8 NYCRR §
200.4(d)(iii)(a). However, on its face the statute does “not require that the IEP contain goals that explicitly reference each need.” See R.B. v. New York City Dep’t of Educ., No. 12 CIV. 3763, 2013 WL 5438605, *14 (S.D.N.Y. Sept. 27, 2013), aff’d, 589 F.
App’x 572 (2d Cir. 2014).
In this case I find that the IEP reflects the fact that was not and that the IEP includes a goal to address this issue. In particular, the section of the IEP states that is “not and to eat” (DOE Ex. 16 at 1). The section of the IEP that notes the parent’s concerns about ’s academic, developmental and states that “needs to increase his independence in ” (DOE Ex. 16 at 2). The first annual goal on the IEP addresses this issue in that it indicates that “Within one year, given direct instruction and visual supports, [ ] will obtain new life skills including bathroom and hygiene routines” (DOE Ex. 16 at 4). I find that the specific inclusion of
“bathroom” routines in this goal, in conjunction with IEP’s description of ’s deficit with respect to and his need to become more independent in , provided sufficient information for ’s teacher and anyone else responsible for implementing ’s program to understand what the CSE intended to be working on with respect to during the course of the 2014-2015 school year. See M.M. ex.rel. A.M. v. New York City Dept. of Educ. Region 9, 583 F. Supp.
2d 498, 508 (S.D.N.Y. 2008).
Thus, I find that the information in the IEP and the goal for to obtain
” sufficiently addressed ’s
need to be and did not deprive him of a FAPE.
New York Regulations require that, for students with , “[p]rovision shall be made for .” The purpose of this requirement is “to
.” 8
NYCRR § 200.13(d); 200.1(kk); M.W. v. New York City Dep’t. of Educ., 725 F.3d 131, 142 (2d Cir. 2013). ’s IEP includes as a to be provided for (DOE Ex. 16 at 8). While the law requires that an IEP must provide goals to meet a student’s individual needs, 8 NYCRR § 200.4(d)(iii)(a), there is no requirement that a child’s IEP include goals or an otherwise detailed description of what constitutes in an individual case. Thus, ’s IEP conforms to the relevant legal standard. Moreover and in any event, the Second Circuit has held that even the complete failure to include as a on a child’s IEP ordinarily does not result in a denial of FAPE or warrant tuition reimbursement. M.W. 725 F.3d at 142;
R.E. 694 F.3d at 191.
Thus, the inclusion of as a in the
IEP and the specification that it be provided for clearly met the legal standard in this regard and did not deprive of a FAPE.
***
In light of the foregoing I find that the Department of Education met its burden of demonstrating the April 2, 2014 IEP provided with a FAPE for the 2014-2015
school year.
The Proposed Placement
The parents also allege that the proposed placement, , was not appropriate for because it was “not in full operation” at the time of the parents’ visit during the first week of school for the 2014-2015 school year and thus could not implement the April 2, 2014 IEP (IHO Ex. I at 4-6). The Department of Education refuted this claim (IHO Ex. II at 21-26).
Under prevailing law an IEP must be evaluated prospectively as of the time that it was created. Retrospective evidence by a Department of Education that that a placement might have provided certain services not listed on the IEP is impermissible as such a challenge would be speculative. M.O., No. 14-1473-CV, 2015 WL 4256024 (2d Cir. July 15, 2015); R.E., 694 F.3d at 188. The reference to “prospectively” in these cases refers to the “the time of the parents’ placement decision.” Id.; R.E., 694 F.3d at 195. Thus, as explained in M.O., testimony and evidence about the proposed placement is not precluded under all circumstances. Rather, the question is whether, at the time the parents were actually considering the proposed placement, the school would offer services in line with the IEP. Id., citing B.R. ex. rel. K.O. v. N.Y.C. Dep’t of Educ., 910
F. Supp. 2d 670, 677 (S.D.N.Y. 2012). While it is speculative to conclude that a school with the capacity to implement a child’s IEP will not do so, it is not speculative to find that a particular placement actually lacked the capacity to implement a child’s IEP at the time the parents made the decision to reject that placement. Testimony on that issue is not retrospective in nature and may be raised at an impartial hearing. Id. For example, it would not be speculative to conclude that an IEP that mandates outside of the classroom could not be implemented in a placement that only provides group inside the classroom. Id.
In M.O. the Second Circuit found that the conclusion by the SRO and the District Court -- - that the school district was not required to produce evidence on the adequacy of proposed placement -- was based on “an erroneous (emphasis added) determination that R.E. requires a child physically to attend a proposed placement school before challenging that school’s ability to implement the child’s IEP.” M.O., No. 14-1473-CV,
2015 WL 4256024, supra. Thus, a school district’s obligation to demonstrate that the program recommended on the IEP was designed to provide the child with a FAPE extends to the proposed placement when a parent challenges that placement based on its capacity to implement the IEP at the time the parents rejected the placement. That requirement stands regardless of whether the child has attended the proposed placement.
Id.
In their Complaint the parents alleged that could not implement ’s IEP since it was “
(DOE Ex. 1 at 2). Since these claims were based on information known to the parents when they made the decision to reject the proposed placement, the claim is not of the type precluded under R.E. and the Department of Education was required to provide evidence on the adequacy of the placement. M.O., No. 14-1473-CV,
2015 WL 4256024, supra. While the Department of Education did not provide any witnesses on this issue, the testimony by and her advocate, who visited the school together, was sufficient to conclude that did, in fact, have the capacity to implement the IEP. Moreover, some of the parents’ claims, while based on what they knew at the time they decided to reject the placement, were actually speculative in nature.
While, as noted above, any allegations not raised in the parents Closing Statement are deemed to be waived (Transcript: 151-152), I will address the allegations raised in the Complaint with respect to the proposed placement. First, the general and vague allegation in the Complaint that the school could not implement the IEP because of the
,” did
not assert that the school was unable to implement any specific aspects of ’s IEP.
Moreover, there were a sufficient number of chairs and desks in the classroom proposed for . Second, the assertion that the teacher could not explain the methodology she would use with or how she would handle his behaviors was, in fact, speculative
(DOE Ex. 1 at 2). The teacher had never met and knew nothing about him, and the parents did not provide the teacher with a copy of the IEP. Thus, the teacher had no way of determining the teaching method that would be appropriate for or what type of she would have to address. The teacher told the parents and Ms.
that the students would be “formally assessed” to determine the appropriate teaching method for each child and that all of the teaching would be individualized based on each child’s IEP (Parents’ Ex. N at 1).
The allegations in the parents’ Closing Brief also did not assert that the site was unable to implement any particular aspects of ’s IEP. Specifically, the parents’ allegation that was “not in full operation” at the time of the ’s visit to the school, does not indicate that the school did not have the capacity to implement the IEP (see IHO Ex. I at 4). The evidence and testimony at the hearing showed that the school had a seat for , that at the time there were other students in the class and that the school was expecting additional students to be enrolled. As per ’s own testimony there were a sufficient number of chairs and desks in the classroom, that here was a and that the students were engaged in an activity ( : 141-143).
The school had an , and room as well as an . Ms.
noted that there were . Ms. , who took them on the school tour, told them the school would be receiving additional equipment and supplies such as , , , and and that the school follows a . Since the school was brand new and the visit was on the first week of classes, it is speculative to suggest that the school would not receive the supplies that the classroom teacher and Ms. stated were forthcoming. In any event, ’s IEP does not mandate the use of any specific “supplies” or “equipment” to implement the goals developed for him except for “ ,” which could have been implemented at the time of the visit by the that Ms.
referred to ( : 106; DOE Ex. 16 at 4-8). [5]
Moreover, some delay in implementing an IEP is permissible as the IDEA does not specify a time frame for implementation of a child’s IEP. Federal regulations only require that an IEP be implemented “as soon as possible.” 34 C.F.R. § 300.342(b)(1)(ii).
The Second Circuit has recognized that this standard is “by design, a flexible requirement” that permits some delay in implementing a child’s IEP. Walsh v. King, No.
1:14-CV-1078, 2014 WL 5106997, *1 (N.D.N.Y. Oct. 10, 2014), citing D.D. ex. rel.
V.D. v. New York City Bd. of Educ., 465 F.3d 503, 514 (2d Cir. 2006). Thus, even if additional specific equipment were required to implement ’s IEP, the parents have “not shown that the school was unwilling or unable to obtain the equipment necessary to satisfy the IEP” if attended the school. B.K. v. New York City Dep’t of Educ., 12 F.
Supp. 3d 343, 372 (E.D.N.Y. 2014). Indeed, in this case, as noted, was a advised that the school was expecting additional and classroom supplies.
In sum, while the Department of Education did not present evidence about , I find that the testimony by and Ms. was sufficient to support a finding that at the time the parents’ rejected the placement the school had the capacity to implement ’s IEP. Thus, the proposed placement did not deprive of a FAPE.
***
In sum, I find that the evidence and testimony at the impartial hearing supports a finding that the Department of Education provided a FAPE for for the 2014-2015
school year.
II. and III.
In light of my finding that the Department of Education provided with a FAPE for the 2014-2015 school year I need not address the appropriateness of or the equities of the case.
Dated: September 16, 2015
RONA FEINBERG, 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
DEPARTMENT OF EDUCATION:
Exhibit 1 Petitioner’s Complaint dated
January 28, 2015, 5 pages
Exhibit 2 Department’s Notice of Social
History dated January 14, 2014, 1
page
Exhibit 3 Department Physical Examination
for dated January 3, 2014, 3
pages 12,
Exhibit 4 Department Meeting Notice dated
February 11, 2014, 3 pages
Exhibit 5 Department Social History Update
dated February 6, 2014, 2 pages
Exhibit 6 Department Meeting Notice dated
March 10, 2014, 3 pages
Exhibit 7 Department Meeting Notice dated
March 18, 2014, 3 pages
Exhibit 8 for Children’s
Services Student Progress Report
dated January 23,2014, 1 page
Exhibit 9 for Children’s
Services Student Progress Report
dated January 10, 2014, 1 page
Exhibit 10 for Children’s
Services Student Progress Report
dated January 31, 2014, 1 page
Exhibit 11 for Children’s
Services Student Progress Report
dated January 27, 2014, 1 page
Exhibit 12 Department Meeting Notice dated
March 26, 2014, 3 pages
Exhibit 13 Department Child Outcomes
Summary Form dated April 2, 2014,
1 page
Exhibit 14 Department Psycho-Educational
Evaluation Dated March 21, 2014, 3
pages
Exhibit 15 Department Classroom Observation
Dated March 6, 2014, 2 pages
Exhibit 16 Department Individualized Education Program dated April 2, 2014, 15
pages
Exhibit 17 Department Attendance Page dated
April 2, 2014, 1 page
Exhibit 18 Department Meeting Minutes dated
April 2, 2014, 4 pages
Exhibit 19 Omitted
Exhibit 20 Department Final Notice of
Recommendation dated May 9,
2014, 1 page
Exhibit 21 Department Events for
various dates, 3 pages
PARENTS:
Exhibit A Omitted as Duplicative
Exhibit B Program Description undated, 8
pages
Exhibit C Individualized Education
Program dated March 27, 2014, 18
pages
Exhibit D Omitted as Duplicative
Exhibit E Reply to Final Notice dated
September 15, 2014, 2 pages
Exhibit F Ten Day Notice dated August 12,
2014, 2 pages
Exhibit G Class Schedule for 2014-2015, 1
page
Exhibit H Interdisciplinary Report of Progress dated December 2014, 10 pages
Exhibit I Enrollment Contract dated May 12,
2014, 6 pages
Exhibit J Affidavit of Payments dated April
21, 2015, 1 page
Exhibit K Parent 1040 U.S. Individual Income
Tax Return for 2014, 2 pages
Exhibit L Proof of Payment for 2014-2015, 2
pages
Exhibit M Attendance Record for 2014-2015, 1
page
Exhibit N School Visit Notes dated September
10, 2014, 2 pages
Exhibit O Interdisciplinary Report of Progress dated June 2015, 9 pages
HEARING OFFICER:
Exhibit I Parents’ Post-Hearing Closing
Statement dated August 17, 2015, 11
pages
Exhibit II The Department’s Post-Hearing
Memoranda of Law dated August 17,
2015, 28 pages
Exhibit III Case Follow-Up Sheets with
Extension Information various dates,
5 pages
Footnotes
[1] Ms. has a Master’s Degree in school psychology with a specialization in and assessments. She is certified New York State as a school psychologist and in education ( : 13-15).
[3] Although I find that the Department of Education provided with a FAPE for the 2014-2015 school year, I am including a summary of the testimony regarding to ensure the completeness of the record.
[4] Ms. has a Master’s Degree in education and certification in New York State as a school administration supervisor and a school district administrator. She is also a licensed clinical social worker ( : 54-55).
[5] Any concern that the school would not be able to provide the social stimulation and social opportunities indicated on ’s IEP (Parents’ Ex. E at 1) is also speculative as both the teacher and Ms. told and Ms. that the school expected additional students. In any event, as there were already students in the class the school had the capacity to implement the socialization goals on ’s IEP.