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 9, 2014

August 5, 2014

September 16, 2014

Actual Record Closed Date: March 10, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2014

Esq. Attorney — Student

Parents

Parents

For the — DOE

Esq. Attorney — Student

School Psychologist — Student

(via telephone) — Student

Special Education Teacher — Student

(via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2014

Esq. Attorney — Student

Parents

Principal, — Student

Teacher, Dean, — Student

For the — DOE

Esq. Attorney — Student

Teacher — Student

(via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2014

Esq. Attorney — Student

Parents

Parents

For the Dept. of Education: — Student

Esq. Attorney — Student

PRELIMINARY MATTERS

I was appointed to conduct the impartial hearing, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f)(1), regarding the special education program of , at Department of Education, on January 16, 2014. All hearings were conducted in accordance with the earliest convenient dates of the parties. Extensions were requested on the record by the parties’ attorneys. A list of persons in attendance and documents accepted into evidence on the various dates are attached to this decision.

THE DISTRICT’S POSITION

The District’s position is that in its Answer (Exhibit 2), it denied all allegations made in the parents’ request for an Impartial Hearing with three exceptions. First, there was an IEP meeting held on 2/25/13 (Ex.1), second, the student had previously been classified with a and, third, the committee had no reason to change that classification. The IEP recommended services with . The

District contends that this IEP offered FAPE to the student. On July 24, 2013, a FNR (Ex.

3) was issued to the parent in which placement at was offered. The district stated that the placement is reasonably calculated to enable the child to obtain meaningful educational benefits.

Counsel for the District stated that the District was not contesting the lack of FAPE in the 2012/2013 school year and thus the only year they were defending is the 2013/2014 school year.

THE PARENTS’ POSITION

This matter involved the allegation by the parents that the Department of Education failed to provide with a free and appropriate public education (“FAPE”).

As a result, the parent took unilateral action and placed the student the (hereinafter “ ”). The parents seek Compensatory education for the 2012-2013 school year. In addition, the parents seek reimbursement of tuition and costs at and additional services for the student as well as transportation for the student for school year of 2013-2014.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch.

Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-

7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-

055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No.

09-067) there was an articulation of what an appropriate IEP should contain.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R.§300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R.

§300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067).

In this case the CSE developed an IEP on February 25, 2013 (Ex. 11). The CSE review team was comprised of the necessary personnel. Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student’s educational status in preparation for the CSE Review . 8 NYCRR 200.4. Procedures for referral, evaluation, individualized education program (IEP) development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

The main issues presented by the Request for the Impartial Hearing are as follows:

1. The CSE meeting of February 25, 2013 was convened. The CSE relied heavily on “teacher observations” to the exclusion of objective testing which resulted in failure to provide “present levels of performance”, thus invalidating the recommendations of the CSE committee,

2. One issue that must be dealt with immediately is the time lines for scheduling the IEP meeting and the participation of essential members, The parent alleges there was not general Education teacher present at the meeting. The question of time lines is governed by regulation. I shall consider those first. Regulation 200.5 states as follows:

3. (4) School district response to the parent. (i) If the school district has not sent a prior written notice pursuant to subdivision (a) of this section to the parent regarding the subject matter in the parent's due process complaint notice, such school district shall, within 10 days of receiving the complaint, send to the parent a response that shall include:…The district did not responded in a timely fashion to the parents. The Due Process Request was dated 1/15/14 and the response

4/2/14. That is clearly beyond the 10 day requirement and the record does not reflect nor was testimony given that an extensions were requested by the District for additional time to respond. Once the meeting was commenced the parents objected to the manner in which the hearing was conducted. They allege that meeting started at least 30 minutes late and as a result the teacher was not available to testify because of other commitments that followed the time set aside for her testimony. No goals were developed or discussed in detail during the meeting. In addition lack of support for for the transition from a class to a much class was not included in the IEP or according to testimony not discussed at the meeting. The parents allege that all of these items when taken to gather made extremely difficult for the parent to have meaningful participation in the CSE meeting. After listening to the testimony of the District witnesses I conclude that in fact there was no realistic opportunity for the parents to participate in a meaningful way in the CSE review.

The district began its cases with the statement that it conceded it did not provide FAPE for the student for the 2012/2013 school year but was only defending the 2013/2014

school year.

The district then called a school psychologist attached to CSE who chaired the CSE meeting as District Representative and acted as a psychologist as well. She testified that a Ms. acted as both the general ed and special ed teacher at the meeting as she held both licenses. Later or Ms. testified that she did not work for the CSE but rather the Office of School Enrollment at the DOE. She confirmed that she did hold both a general ed and a special ed license both issued in 1974. She had no distinct recollection of the CSE meeting. She testified she did not introduce herself nor did anyone else introduce her as either a special education teacher or a general education teacher. She was normally introduced as the “teacher on the team” She further testified that she did not actively participate in the CSE reviews she attended but only answered questions she was asked and when asked about her participation in the CSE review by me she testified “ I supported what the psychologist was doing.” (TR. 263). This NYCDOE employee was licensed but not assigned to the CSE nor by her own admission did she participate to any real extent in the meeting. Her testimony and the testimony of others leads me to conclude she did not serve as either the general education teacher or the special education teacher at the CSE. My conclusion is that she may have been introduced as “the teacher on the team” but she certainly did not function in that capacity and was honest in her testimony that her role was to support the psychologist.

Returning to the testimony of the school psychologist, she testified extensively about the IEP, and how she recalled it was developed. Much of her testimony was based upon what was described as “her normal Practice” before and during IEP meetings.

She also testified that the Director of Special Education at the ( ) participated by telephone. In addition the CSE had reports from a teacher who worked with Ms. , the individual present at the meeting.

In fact the School Psychologist testified that she had reports before the meeting including the evaluation (Ex. 9), the Social History Update (Ex. 10). She testified she had progress reports, an evaluation, as well as reports from current providers including teachers, the provider and the provider. ( Tr. P

19.) All of these documents are in evidence. She testified that she looked at the reports and then discussed them area by area by area. She stated that she had read the evaluation and it was her practice to summarize it at the meeting but not rely on it directly. She then testified that she had no reason not to follow her usual procedure which she outlined as discussing the reports area by area. She also stated she noted any comments and added it to the IEP (Tr. p.23). The IEP on pages 11-1 through 11-4 contains the results of testing and observations made by various providers.

The results of the Psyco-Ed evaluation in the IEP place the student in the range based on of 4/10/16. The results show .

and were . However, the reported weaknesses are

.

The narrative on p, 11-2 of the IEP describe difficulty

.“ ”.

The next statement in the IEP says is able to The rest of this section of the IEP is just as incomprehensible. When I study, not just read, but study the IEP I find that there is no adequate picture of or his educational status. What I do take from the IEP is a very confused picture of a student

The IEP states

that he

Now that the cause of difficulties is identified what is the proposed solution. That solution should be in the Goals and objectives. The measurable annual goals and criteria simply call for a program. The IEP goals and objectives are so broad and unspecified as to be useless. The student has been measured by student observation in the past.

teach recognized that had made “slight progress in all areas”,

Again, the statement that is limited by his appears in this report. But there are no specific methods to help him overcome these difficulties.

This IEP along with many other statements in the various evaluations seems to be intent on “

”

The Social Update ( EX.10 ) reports that the parents are seeing in ’s despite in and .

The Assessment ( Ex. 10) makes two things very clear. First is a . Second, he is

Every report and person testifying who knew confirmed that his difficulties were and he was not making significant progress

Despite all of the information provided to the CSE, the CSE failed to hold a timely CSE review, failed to offer a timely placement and the conduct of the CSE failed to allow his parents an opportunity to meaningfully participate in the meeting or participate in decisions made with respect to his education. Nevertheless, the parents placed in at the start of the 2013/2014 school year because there was no other choice available at the time. and the IEP provide to be a disaster for . He did not receive his mandated related services, the class did not meet his needs as he received little

, just

. The parents finally withdrew him and paced him at the for the remainder of 2013/214 school year.

The CSE violated several regulations with respect to ’s educational program.

I have described several of them above. The procedural violations alone are so significant that based on those violations alone, the district did not provide with a FAPE. In additional to the procedural violations the CSE failed to provide a FAPE on substantive grounds. Even though there was ample evidence in the reports and evaluations, the district failed to even recognize his , and simply attributed his inability to make progress to his and other without ever exploring the causes of those issues nor providing meaningful goals and methodologies in the IEP to rectify those deficiencies. FAPE was not provided in the 2012/13 school year nor in the 2013/14 school year.

The parents chose as the nonpublic school where they hoped would be able to make progress.

The burden to establish as an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir.

2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C.§1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect")).

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct.

3034, it must provide such children with "meaningful access" to education, Walczak,142

F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v.

Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003)

(noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits."

Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See

Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001)

(holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M.S., 231 F.3d at 105.

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction."

Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G.

v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006)

With this relatively recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement was appropriate. The School is a state-approved non-public school for .

The testimony of the with respect to the type of student that attends is found in the transcript at p, 1278 and ff. s aray of positives and negatives meets the criteria for acceptance without question has classes with students in total in any one class. In some classes there are or students. The director’s testimony was candid about progress an certainly has much to make up but he was very clear that is good fit has not demonstrated (Tr.

p.1304) that she had observed and he is making progress to the extent that he has become (Tr. p.1342ff). While there is no he participates in a program that provides

The teacher testified to difficulties and the efforts that have been employed to overcome his deficits. His teacher is well qualified and experienced and appears to be making progress according to her testimony. One issue that the District has focused on is that the does used a program such as . That was a recommendation of when he evaluated him in has already been through and is now engaged in a program that has apparently been successful with several students with deficits and from the teacher’s testimony I would expect it will be successful with him.

I find the is an appropriate placement where can be provided "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction."

Rowley.

With this description of the requirements under the law for a school to be an appropriate independent placement by the parent we turn to . The principal of testified to the structure of the school it program and the qualifications of the teachers who taught during the 2013/14 academic year. Ex O describes the program. The first paragraph of the Description clearly sets forth what the nature of the school is.

is a setting for students with

The program

serves students in grades , and is designed to (Ex. O)

The program is a perfect fit for if the school does actually provide the experience described above. Even though the program brochure states that the classes start with the , the principal and others interview and his family and found him to be a good fit even though he was . The principal accepted and then made sure that fit in. He testified he saw practically every day and Because of ’s he fit in well with the students. The principal also noted that “ developed a plan to deal with the difficulties and then through team meeting at least monthly the school made sure that what was spelled out in August was still working in September and each month thereafter.

fit in well with other students because as the principal testified his whole class was and they were together. It gave them a chance to learn they were for learning.

carried over into the

After discussing ’s strengths and weaknesses he went on to discuss the teachers and their credentials at the school. While not every teacher is teaching in their licensed field each is working successfully with the students in the field that they are best equipped to foster the children’s education. They all fall within the description of teachers who would qualify to teach students with disabilities under the rubric of Frank G. (supra).

There was extensive testimony about how the school functioned on a day to day basis. ’s teacher, who was also his dean, testified as to progress and difficulties. She did opine that he was making progress in but was still struggling with some others. She noted that there were students in his class which was

All the students had a similar learning profile. The school also worked with She went on to describe how lessons were prepared to enable the student to make real progress despite their .

The teachers

There was not a mention of any of this type of activity throughout the entire district’s case in chief. Exhibit N is a seven page detailed report of ’s at for the first semester. Each teacher has a written narrative that clearly sets out where is, what progress he has made and what difficulties he is encountering. Each teacher articulated the progress he has made (and it was significant) and what he is expected to do in the future to continue to make more progress. is ab appropriate placement for under IDEA.

There were no equitable issues raised in the hearing that would suggest the parents failed to cooperate with the CSE in ’s educational planning. In fact, it was the CSE that failed to act appropriately throughout the process.

ORDER

The student was denied FAPE for both the 2012/13 school year and the 2013/14 school year. Therefore, for the 2012/13 school year, I find that the parents are entitled to compensatory education in the form of reimbursement for any private that they provide to for , and and shall be reimbursed by the Department of Education upon presentation of the appropriate documentation.

For the 2013/2014 school year the parents are to be reimbursed for any tuition, costs or fees incurred by the parent for ’s education, including appropriate related services and transportation. In the event there are any remaining outstanding items due to because of ’s enrollment and participation at the school, they shall be paid directly to . All reimbursement and direct funding shall be supported by the presentation of appropriate documentation.

SO ORDERED.

Date: March 18, 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.

DOCUMENTS RECEIVED INTO THE REORD

District Evidence

# Date Document Pages

1. 1/15/14 Due Process Complaint 9

2. 4/2/14 Due Process Response 4

3. 7/24/13 Final Notice of Recommendation 1

4. 2/20/13 Instructor/Teacher Report 6

5. 2/10/13 Student Progress Report- 3

6. 2/18/13 Student Progress Report- 2

7. 2/25/13 Student Progress Report- 4

8. 6/20/12 Evaluation 5

9. April/ Assessment 10

May 2012

10. 6/5/12 Social History Evaluation Update 2

11. 2/25/13 IEP 17

12. 9/17/13 Waiver of IEP Meeting to Amend IEP 1

13. 9/1/74 NYC Certificate of Teacher-

.

14. 7/20/82 NYC Certificate of teacher- 1

Parent Evidence

A. 1/15/14 Impartial Hearing Request 9

B. 2/3/14 Due Process Response 4

C. 12/20/12 Email exchange between parent and 2

D. 1/7/13 Email exchange between parent and 1

E. 1/3/13, 1/7/13, Email exchange between parent and 2

1/15/13

F. 1/25/13 Email exchange between parent and 5

G. 2/1/13 Email exchange between parent and 1

H. 9/11/13, Email exchange between parent and 5

9/12/13,

9/16/13, 9/17/13

I. 4/11/13 Final Notice of Recommendation 2012/2013 1

J. 9/24/13 Email from parent to 5

K. 10/11/13 Letter from to DOE w/fax report 2

L. 10/24/13 Email exchange between parent and 3

M. Fall 2013 Progress Report 9

N. Winter 2014 Progress Report 7

O. Undated School Program Description 1

P. 2013/14 Class Schedule 1

Q. 9/16/13 School Enrollment Contract 2

R. 3/19/14 Affidavit of Payment 1

S. Misc. Proof of Payment 1

T. 3/18/14 Attendance Record 1

U. 5/30/13 Email exchange between parent and 2