New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Hearing Requested By: Parent

Date of Hearing: June 4, 2015

Actual Record Closed Date: June 18, 2015

Hearing Officer: Michael Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 4, 2015

For the Student:

Esq. Attorney

Parents

Director of

Educational Director

Clinical Director

For the Department of Education:

DOE Representative

INTRODUCTION AND PROCEDURAL HISTORY

The instant due process hearing was commenced on March 15, 2015 on behalf of ,a old student who has been classified by the New York City Department of Education (hereinafter “DOE”) as a child with an . The hearing involve a challenge to the appropriateness of the educational program offered by the DOE to during the 2014-2015 school year and a request that the DOE fund the unilateral placement of at the (hereinafter “ ”) during such school year. The Complaint Letter

The March 15, 2015 complaint letter (PE-A) raised a number of challenges to the appropriateness of the educational program offered to by the DOE during the 2014-2015 school year. My review of the complaint letter has caused me to conclude that the following challenges have been asserted:

1. That the July 14, 2014 Committee on Special Education (CSE) meeting was untimely in that should have been recommended for services due to the severities of his disabilities.

2. That the July 14, 2014 CSE was missing crucial mandated members, including ’s teacher, a psychologist, a social worker and a parent member. In fact, the CSE was comprised only of the parent, a special education teacher and a general education teacher.

3. That the CSE did not address the parent’s concerns regarding the appropriateness of ’s classification as a student with an and not as a student with .

4. Than an IESP with hours of ( ) in a setting along with , , and a for was not sufficient to address ’s needs. In fact, requires placement in a class where his needs could be addressed.

5. That the CSE failed to conduct a or develop a despite the discussion that took place at the CSE meeting regarding ’s and their impact upon ’s education.

6. That the IESP does not contain sufficient goals and strategies to address

’s , issues.

7. That the IESP also does not contain sufficient goals and does not include a for

8. That the IESP does not contain goals to sufficiently address ’s delays, delays as well as his delays.

9. That the CSE did not offer any other placement options. The Positions of the Parties The DOE

The DOE rested its case-in-chief without presenting any evidence. The Parent The educational program offered to by the DOE for the 2014-2015 school year was procedurally and substantively flawed, resulting in a denial of FAPE to was appropriate and the DOE should be ordered to prospectively fund ’s placement there during the 2014-2015 school year, as well as provide compensatory services based upon the failure to offer services in 2014. The Hearing Evidence

The DOE “rested” its case-in-chief without calling any witnesses or presenting any witnesses. In doing so, the DOE Representative acknowledged his understanding of “the potential consequences that may flow from that in terms of a finding as to whether or not the DOE has met its burden of proof with respect to any of the issues that were identified in the complaint letter” (T: 4). So as to ensure that the hearing record included some description of the educational program recommended by the CSE, I requested that a copy of the IESP that was developed by the CSE on July 14, 2015 be produced (T: 11). Such IESP was introduced into evidence as IHO-I (T: 129-130).

The Parent called three witnesses from in addition to the testimony of the father. Further, Parent Exhibits A through V were admitted into evidence without objection (T: 4).

The first witness called by the Parent was , who identified herself as the Director of and a licensed with certification (T: 15-16). She further indicated that she had received a Bachelor’s degree in from Hunter College in 1998 and a Master’s degree from Hunter College in (T: 16). Ms. indicated that she was the founder of and that it was in its second year of existence (T: 16; T: 33). Most of ’s students were on the (T: 33). utilized a variety of methodologies, including , which was identified as a key component of the program, teaching, , (T: 17). ’s staff included , , and an specialist (T: 17-18). In addition, staff included school psychologists, a social worker, a who was also a “licensed” special education teacher, supervisor, a and special education teachers and (T: 18). She described as a “ ”, which included classrooms, , , , room and a lunchroom (T: 19).

As of the date of Ms. ’s testimony, had students in attendance in classes. Each class had a classroom teacher and each student had a /instructor that worked with him or her throughout the school day (T: 37-38). Related services were provided throughout the day. Team meetings took place with all staff twice per week (T: 20-21). There was no taught at . A number of staff members spoke languages in addition to English, including (T: 25).

The 2014-2015 tuition at was , which covered all related services (T: 23-25). All students were charged the same tuition (T: 38-39). did not offer any scholarships (T: 23; PE-D). ’s parents had not yet made any tuition payments (T: 23-24; PE-E). In the event that the parents were unsuccessful in their impartial hearing seeking direct DOE funding of the tuition costs of ’s unilateral placement at , the parents would be financially responsible for such tuition costs (T: 24).

Ms. testified that began attending in September, 2014 (T: 23). All of the 1-1 who worked with , as well as his teacher and spoke both English and . ’s and did not speak , but they were able to communicate with in English (T: 26-27). There were a total of students in ’s class, ranging in age from . were and , but their varied slightly (T: 27-28). There were other students in his class who were (T: 28).

Ms. testified that had made “significant progress this year” (T: 29). When he first arrived at in September, he had a lot of , . He used and . He had and . He had , , (T: 29-30).

Ms. reported that had made definite progress with his . implemented a which led to a significant reduction in his and (T: 30). In this regard, she indicated that was during or instructional session, when he arrived in September (T: 30-31). In terms of , his had improved. His had increased. He was able to and . His was improved and he was and . His skills had likewise improved (T: 31).

The second witness called by the Parent was , who identified herself as the educational director and at (T: 42). Ms. indicated that she possessed a Master’s degree in special education, that she was certified in New York and that she had taken the coursework to be a , but had not yet taken the test to become a (T: 40-41). Ms. indicated that her role at was to work on the curriculum, create and and supervise the staff and teachers in the implementation of such (T: 42). It was her job to analyze the data taken as part of the program utilized at (T: 43).

Ms. testified that entered in September, 2014. At that time, he could not . He could , but had no . His , even with . His was likewise (T: 44-45). She indicated that, since then, he had made progress in . He now . He has . His had . He could . He can

He can . He can , and he has (T: 45). In the area of , had when he entered in September, 2014. correspondence was non-existent. He had no , although he had . He knew He could not . As of the date of her testimony, could now and could . He could . He understands . He could do (T: 46). His had improved so that he could now from a (T: 46-47). His upon his arrival at in September, 2014 were described as his most impeding factor. He would on a constant basis. He

He would and . He couldn’t (T: 47). put a in place to address these (PE-I; T: 48-51), which led to “ ” in ’s (T: 51). As of the date of Ms.

’s testimony, . His had significantly decreased. He . He no longer . The was gone and he had not in months (T: 51Case No.

52). There was “tremendous improvement” with respect to his (T: 53).

Ms. described ’s schedule at (PE-G; T: 54-58) and ’s progress, as assessed by (PE-M; T: 58-61). She testified that this data showed tremendous progress. ’s skills were at the month level when he started at . They were now at a level (T: 61). Many skills that had been lacking were now filled in (T: 61-62).

The third witness called by the Parent was , who identified herself as a licensed who served as the clinical director at since September, 2014 (T: 77-78). Her job was to set up and supervise the programs at (T: 78). She testified that she knew and that she treated him directly (T: 79). When he first arrived at , he was and (T: 79; T: 82-83). He was unable to . Among the supports provided to was a to address his needs (T: 80-81; PE-R). The has helped make his and available for learning (T: 83). was also seen times per week for services, as well as . All of these supports led to significant improvement in ’s and skills (T: 85-86). In addition, his skills had improved so that he was now able to (T: 86). His skills had improved (T: 87-88), as did his skills (T: 88-90) and his (T: 91-92).

The father was the final witness called in the Parents’ case-in chief. He testified that had previously been diagnosed with . He did not agree with a classification of (T: 105). He indicated that he did not know the difference between an Individualized Education Program (IEP) and an IESP (T: 105). He further expressed his belief that the hours of recommended by the CSE on July 14, 2014 was not enough for Mr. identified the letter that he sent to the DOE after the meeting expressing his disagreement with the classification and recommendations for programs and services (PE-C). He indicated that he did not receive a response that the letter and no follow-up CSE meeting was scheduled (T: 108-109). Similarly, no response was received to the subsequent letter sent by his attorney to the DOE (PE-B; T: 109). Mr. identified the contract with (PE-D) and indicated that he was financially responsible for the tuition in the event that he did not prevail at the impartial hearing (T: 110). Finally, he indicated that had made a lot of progress at (T: 112). Legal Standard

Pursuant to the Individuals with Disabilities Education Act (IDEA), all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir. 2005]). The Second Circuit Court of Appeals in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in Walczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (CypressFairbank s Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied

522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carm el Central School District, 2007 WL 465211, at *15). 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 School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v. Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonahLewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).” The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit (A pplication of a Student with a Disability , SRO Appeal Nos. 11-154, 09-034, 09-013).

Findings of Fact and Conclusions of Law

Based upon the above, I make the following Conclusions of Law: 1. That the failure on the part of the DOE to present any evidence in response to the claims advance in the complaint letter must lead to the conclusion that the BOE has failed to meet its burden of demonstrating the appropriateness of the recommendations made at the July 14, 2014 CSE meeting. Specifically, I find that the DOE has failed to meet its burden of proof with respect to the following matters:

a. ’s ineligibility for services; b. The appropriateness of the composition of the July 14, 2014 CSE; c. The appropriateness of ’s classification as a student with an ; d. The appropriateness of the special education program and services recommended by the CSE on July 14, 2014; e. The appropriateness of the failure on the part of the July 14, 2014 CSE to conduct an or develop a ; f. The appropriateness of the goals and strategies to address ’s , issues; g. The appropriateness of the goals and the omission of a ; h. The appropriateness of the goals to address ’s , and delays; i. Whether the CSE considered other placement options.

2. That the failure of the CSE to develop an IEP for during the 2014-2015 school year denied him FAPE for the entirety of such school year. In this regard, the hearing record was, at best, unclear as to what ’s status was as of the July 14, 2014 CSE meeting. The DOE proffered the position that, as was going to be attending a private school, the appropriate educational plan was an IESP. However, even if ’s parents had, at the July 14, 2014 CSE meeting, expressed an intent to unilaterally place in a private school during the 2014-2015 school year, the DOE had a continuing duty to offer FAPE to during such time period. FAPE is offered through a properly developed IEP that is reasonably calculated to lead to educational benefit. No such IEP was created at the July 14, 2014 CSE meeting. Moreover, even if I were to conclude that the DOE had been able to properly discharge its legal obligations under IDEA to through the development of an IESP, as opposed to an IEP, such conclusion cannot continue to be supported after the DOE received the July 28, 2014 letter from ’s mother in which she expressed her disagreement with the educational program recommended on July 14, 2014 and requested another CSE meeting at which a new educational program in a class could be developed (PEC). The failure on the part of the DOE to respond to this letter, or to the August 27, 2014 letter from the parents and their legal representative (PE-B), or to otherwise schedule another CSE meeting to develop an IEP that addressed the parent concerns must, under the facts of this case, lead to the conclusion that was denied FAPE for the 2014-2015 school year.

3. That the evidence in the possession of the DOE as of June, 2014 overwhelmingly established that met the eligibility criteria for services. The inexplicable failure on the part of the DOE to conduct a CSE meeting until July 14, 2014 (IHO-I) denied FAPE during the period July - August, 2014.

4. That the July 14, 2014 CSE meeting was not properly constituted. In this regard, there was no school psychologist and no evidence that the special and general education teaching staff who were present had any actual knowledge of or his special education needs.

5. That, by failing to present any evidence, the DOE, as a matter of law, must be found to have failed to meet their burden of proof with respect to the appropriateness of ’s classification as . However, I find that there is insufficient evidence in the hearing record to determine whether should have been classified as as of the July 14, 2014 CSE meeting. There was testimony that, within the two weeks prior to the instant hearing, an annual review was conducted at which, among other things, ’s IDEA classification was changed to (T:

65). In light of this fact, and in light of my other rulings as to the appropriateness of the educational program developed by the CSE on July 14, 2014, I find that the issue of whether met the IDEA criteria for classification as a student with is now moot.

6. That the program and services recommended by the CSE on July 14, 2014 were inappropriate and insufficient to address ’s needs. Upon considering the testimony of the staff concerning ’s levels as of September, 2014, it is difficult to imagine how such a child could be appropriately supported in a setting with hours of services, , and (IHO-I, page 12 of 14).

7. That the failure on the part of the CSE to recommend that an be conducted and a developed constitutes, under the facts of this case, an independent basis for concluding that the DOE denied FAPE during the 2014-2015 school year. In this regard, I credited the testimony of the staff concerning the that presented with as of September, 2014.

8. That, in light of the above findings and of the fact that the 2014-2015 school year is at an end, I find the remaining claims (relating to the adequacy of the IEP goals, whether the IESP adequately addressed ’s , or needs) to be moot.

9. I find that the special education program and services offered to by were appropriate and led to meaningful gains across a number of domains. In this regard, I have credited the testimony of , the Director of , , the Educational Director , and , the Clinical Director regarding what ’s levels were as of September, 2014 and where they were as of June 4, 2014. Such testimony, as well as the associated educational records admitted into evidence, clearly and convincingly demonstrate that has made gains during his months at .

10. I find that there are no equitable grounds for reducing or denying the relief sought by the parents.

ORDER

Based upon my finding that the DOE failed to offer FAPE to , during the course of the 2014-2015 school year, that was appropriate and that there are no equitable factors that should result in the reduction or denial of the relief being sought by the parents, I hereby Order the following:

1. That the DOE fund ’s placement at the during the 2014-2015 school year in the amount of .

2. That the DOE offer transportation to the and/or reimburse the parents for any direct costs (i.e., train, subway, or bus costs) that they have incurred in providing private transportation to to during the 2014-2015 school year.

Such reimbursement shall be provided within 30 calendar days of the parents providing to the DOE receipts or other appropriate documentation establishing any costs incurred by parents in connection with the provision of transportation to .

3. That the DOE offer hours of services as compensatory services for the denial of FAPE during the period July - August, 2014. Such compensatory services shall be provided at a mutually agreed-upon time, date and location during the 2015-2016 school year or, if agreement cannot be reached by September 30, 2015, at a time, date and location to be determined by the DOE.

SO ORDERED

Dated: June 30, 2015

MICHAEL K. LAMBERT, 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 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

PARENT EXHIBITS

A. Hearing Request (3 pages) 3/15/15

B. Notice Letter (3 pages) 8/27/14

C. Parents’ Letter to DOE with fax receipt (2 pages) 7/28/14

D. ( ) Contract (3 pages) 2014-2015

E. Affidavit (1 page)

F. Undated Mission Statement (2 pages) 5/3/15

G. Class Schedule (1 page) 2014-2015

H. Schedule (1 page) I. 9/29/14 (3 pages) 2014-2015

J. Progress Report (2 pages) 5/18/15

K. Educational Progress Report (3 pages) 12/20/14

L. Initial Educational Evaluation (3 pages)

M. 9/14/15 – 3/10/15 (1 page) 9/14/14

N. Summary of Progress (2 pages)

O. 9/16/14 Initial Assessment (2 pages) 5/17/15

P. Midyear Progress Report (2 pages)

Q. 9/3/14 Initial Assessment (2 pages)

R. Undated (1 page)

S. 9/18/14 Initial Assessment (2 pages) 3/30/15

T. Progress Report (2 pages) 1/15/15

U. Progress Report (1 page) V. 2014-2015 Annual Goals (3 pages) DOE Exhibits: None IHO Exhibits: 5/19/15

1. IESP (14 pages) 7/14/14 DOE