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: April 27, 2015

Actual Record Closed Date: May 5, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2015

Father — Student

Mother — Student

DR., / (via telephone) — Student

District Representative — DOE

CSE Psychologist (via telephone) — DOE

PROCEDURAL HISTORY: — DOE

This hearing was requested on March 4, 2015 by the parents of the student, (hereinafter referred to as “parents”), (Ex H 1). The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEA) against the NYC Department of Education (hereinafter ― DOE). On March 5, 2014, I was appointed as the impartial hearing officer in this matter, (Ex H 2). A hearing was held on April 27, 2015. The record close date for this case is May 5, 2015, and the compliance date is May 18, 2015. A list of witnesses and documents marked for identification and/or received into evidence are submitted with this Decision and Order.

BACKGROUND:

is an -old student at the

(“ ”) in . His Annual Review

meeting was held on January 21, 2015. The Department of Education recommended that be classified under , and recommended he attend a State approved non-public school with a class ratio, and receive related services of , and , .

’ parents filed a Due Process Complaint because they disagreed with the fact that the IEP developed for the 2015-2016 school year did not contain verbiage in the section of the IEP that had been included in the IEPs for 2012, 2013 and 2014 school years. The specific verbiage is “

”

“ ” to .

This was added to the student’s IEP in 2012. The parents had filed a request for a Due Process hearing on February 7, 2012, and the hearing began April 19, 2012, (Ex P-2). The parents contended in that hearing that “ ”

“ ”

“

” as .

This hearing was requested to determine whether or not omitting this language from the IEP was a denial of FAPE.*

*The Request for Due Process additionally stated that the parent wished to have verbiage removed from the IEP, which stated, “Parent reports that has a diagnosis of

”. The DOE agreed to remove this verbiage from the IEP at the beginning of the hearing.

THE DEPARTMENT OF EDUCATION POSITION:

The Department of Education contends that the IEP meeting that was held on January 21, 2015 was both procedurally and substantively valid and provided with a Free and Appropriate Public Education **. The District contends that appropriate procedures were followed and the meeting complied with FAPE (Ex D 5-14). The team that met to prepare the IEP consisted of ’ classroom teacher, a general education teacher, a District Representative and the school psychologist. Additionally,

’ related service providers gave feedback. (Ex D 11, 12)

The Witness for the DOE was psychologist, , who attended the January 21, 2015 IEP meeting. The District qualified Dr. as a licensed psychologist with 22 years experience at the DOE (T19), who was present at the January

21 CSE meeting. Ms. reviewed the process of how the CSE came to make its recommendation for the student for the IEP (T 20-28). She testified that the DOE reviews all of the reports that are submitted by the schools, and goes over the reports and the goals at the meeting (T 25). The DOE contended that the CSE team relied on sufficient documentation and data to create an IEP that properly addressed that needs of the student for the school year.

The District also presented evidence from the , including a prior evaluation (Ex D 15,16) and information that the DOE believes distinguishes the difference between instructional and .

The DOE’s position is that the evidence that they provided and the witness demonstrated that the parents had ample opportunity to participate in the CSE meeting.

Additionally, it is their position that the CSE created an IEP that was reasonably calculated to confer benefits for the student, but that they are not mandated to “maximize the potential of students with disabilities or require everything that may be thought desirable by loving parents”(DOE closing statement).

**Note, the IEP created at the January 21, 2015 meeting was revised at to add transportation services to the IEP; the IEP is otherwise substantially the same. (Ex D14)

THE PARENTS’ POSITION:

As stated in the background section, the following verbiage was in ’s IEP since in the 2012/2013, 2013/2014 and 2014/2015 school year IEPs, “

”(Ex P- 8,9 and D 1-3). This verbiage was added to the IEP in 2012, and ’ parents withdrew an Impartial Hearing Complaint without prejudice. Again, at that hearing the parents maintained that “ was that should be on ’ IEP. (Ex P 2) In their closing statement, parents state that the verbiage is needed to allow to administer “ ” to . (Parents Closing Statement).

, the witness for the parents, is a

who also does and has been at for 23 years. (T 70) Dr. testified via telephone that the needs to have that verbiage on the IEP in order to justify since his time must be accounted for on the IEP, (T 87,88,95, 103,105). Dr. also testified that it is the approach (T81) and that it is which should be on ’ IEP, (T 74-8).*** Ms. described the program as one which

. (T 76-80)

Parents argued that the verbiage in question under the section of the IEP was not discussed at the CSE meeting, and that the CSE should not have removed the verbiage. Parents maintain that the CSE did not properly review the progress that had made using “ ” “ ” is referenced in (Ex P-7).

***Note, this testimony is contradicted in parents’ closing statement that says, “The case has nothing to do with . In fact, the terms “ ” “ ” are not (and never have been on ’ IEPs.” (Parents’ closing statement)

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see

Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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

Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The

IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v.

Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

Although an IEP must provide for specialized instruction in the child's areas of need, the IDEA does not explicitly require a CSE to specify methodology on an IEP and, in many cases, the precise teaching methodology to be used by a student's teacher is generally a matter to be left to the teacher (Application of a Child with a Disability, Appeal No. 07-052; Application of a Child with a Disability, Appeal No. 07-054; Application of a Child with a Disability, Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053; Application of a Child with a Disability, Appeal No. 94-

26; Application of a Child with a Disability, Appeal No. 93-46; Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27,

2010]).

1. Was there a Procedural Violation that led to a denial of FAPE?

The DOE conducted a CSE meeting on January 21, 2015 to create an IEP, also an amended IEP on the same date to add transportation. The parents contend that the CSE did not: do due diligence in considering the progress that made using and also that they assumed that the verbiage that was listed in the 2012-2014

IEPs would be carried over.

With respect to the issue of whether the verbiage should be carried over from one IEP to the next, it is the duty of the CSE to create an IEP that accurately reflects the results of evaluations to identify the student's needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The DOEs witness testified that to that and stated, “every year an IEP changes.

Actually we are cited by the State if things don’t change. You are not supposed to copy over or just keep moving things over. You are supposed to base information on new information, that’s what an annual meeting is about. It’s not that you take a document and you say, okay, this is what it is. Each document has new information that is provided by the child’s new teacher and new providers.” (T 54,55)

The witness testified that the goals were thoroughly reviewed with the parents and other members of the CSE. The IEP was created as a result of that meeting. Neither the parents or presented any input that “ ” was crucial to creating an IEP

"an IEP that affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

The CSE considered placing in a , in either a public or non public school, but concluded that the placement in a at the approved non public school with the related services of and was necessary to meet his needs.

The parents’ contention that the CSE created a procedural violation of FAPE because it did not copy verbiage over from the previous years’ IEP to the next is misguided, and does not demonstrate a procedural denial of FAPE.

2. Was there a substantive violation of FAPE?

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

The DOE maintained that the program, goals and related services put together on the January 2015 IEP for constituted a FAPE. Parent contends that omitting the language from the section resulted in a denial of FAPE. There were two “substantive” arguments that they based this assertion on through the testimony of their witness, Dr. However, the basis of the argument did become confusing due to discrepancies between the testimony and the parents’ written closing statement.

In addition to the “procedural” argument that I have addressed, the bulk of the parents’ witness’ testimony focused on the fact that had made progress using

“ ”, and also that needed to have the verbiage that was omitted from the IEP in order to provide it to him. As I have already discussed, the District maintained that they created an IEP that provided FAPE. Additionally, the District testified that could provide to the student; however the District did not put methodologies on an IEP. (T 49-53) (P EX 1). Although an IEP must provide for specialized instruction in a student's areas of need, generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher (Rowley, 458 U.S. at 204;

M.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085, 1102 [11th Cir. 2006];

Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988]; K.L., 2012 WL 4017822, at *12; Ganje, 2012 WL 5473491, at *11-*12; Application of the Bd. of Educ., Appeal No. 11-058; Application of the Bd. of Educ., Appeal No. 11-007; Application of a Student with a Disability, Appeal No. 10-056; Application of the Dep't of Educ., Appeal No. 08- 075; Application of a Child with a Disability, Appeal No. 07-065; Application of a Child with a Disability, Appeal No. 07-054; Application of a Child with a Disability, Appeal No. 07-052; Application of a Child with a Disability, Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053; Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-

46).

The parents’ witness, Dr. testified that had made progress using

(also see Ex P 7); however, there was no testimony or evidence showing that the use of this program times/week for was critical for to either “make meaningful progress” or to “access the curriculum”, as opposed to enhancing an appropriate FAPE that was already in place for him. In fact, the verbiage that was previously on the IEP used loose language stating that the student would benefit from a type of approach without specifically naming the program or stating that the approach was essential to the student regarding FAPE; nor were there goals included on the IEP regarding the approach. Dr. also testified that the reason that required that “ (or certain verbiage describing ) be incorporated on the IEP was because the school believed they needed the verbiage to justify . (T 103-105).**** The witness compared this to a service where the student is . However, when asked if viewed it as a related service, the witness stated “ ” (T 105) However, the witness was not qualified as an expert in . The District did put in evidence several exhibits showing the difference between (Ex D 16, 17) and the evaluation that had in 2012 (Ex D 15) which opined that “ ” is not and that would be free to use or programs without them being mandated on an IEP. Additionally, the witness stated that since it was not a service it did not need goals.

****The witness did also testify that could be delivered in the classroom, but that . (T 106) However, the Impartial Hearing Officer was not convinced that “needs” to have on a childs’ IEP to provide it as choice of methodology or as particularly since “ was provided to this student without having either it specifically named or specifically referenced on the childs’ 2012, 2013 and 2014 IEPs. It appeared to the Hearing Officer that could provide , and the District would have no objection. The subject of this hearing involves what does or does not constitute the provision of FAPE.

The hearing record does not show that the student's and needs could be addressed only via or that the program was required on his IEP to offer him a FAPE. (Application of a Child With a Disability, 10-126 – another case involving where “ had not yet been implemented for a child, but like here it was not shown that it was critical to the student to provide FAPE). In summary, the hearing record shows that it would not be inappropriate for to try the program as one possible option for implementing the student's IEP, but the specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).

The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

ORDER:

The parents’ request to have the verbiage “

”ordered into the student’s IEP is denied. Dated: May 15, 2015

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

PARENT

P1 E-mail to Parent, 2 pages

P2 2012 Impartial Hearing Transcript

P3 Score Report, , test date 11/20/12

P4 - , dated 12/21/13

P5 - , dated 11/24/14

P6 - progress report

P7 Progress History Report, 3/26/12 - 3/10/15, 5 pages

DEPARTMENT OF EDUCATION

D1 , dated 6/25/14, 3 pages

D2 Dated 4/9/14, IEP meeting notice, 2 pages

D3 Dated 4/29/14, attendance page

D4 IEP, dated 4/29/14, 15 pages

D5 Dated 1/15/15, Report, 15 pages

D6 Report, dated 2/12/14, 2 pages

D7 Dated 6/25/14, SESIS events,

D8 , dated 1/21/15, 3 pages

D9 Dated 3/4/15, , 3 pages

D10 Dated 1/12/15, IEP Meeting Notice, 2 pages

D11 Attendance Page, dated 1/21/15

D12 IEP, dated 1/21/15, 13 pages

D13 Physician Review, dated 1/30/15

D14 Revised IEP, dated 1/21/15, 15 pages

D15 Eval, 5 pages, dated 2/16/12

D16 Dated 1/1/12, Slide

D17 Materials Slide

IMPARTIAL HEARING OFFICER

H1 Hearing Request, dated 3/4/15

H2 Appointment Letter, dated 3/5/15

H3 Notice of Appt. dated 3/6/15

H4 Resolution Period, dated 4/3/15

H5 Pre-hearing Summary & Order, dated 4/9/15

H6 Business Day Rule, dated 4/20/15