New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165415

Student’s Name:

Date of Birth:

District: LJ Hearing Requested By: Parent

Date of Hearing: November 2, 2017

November 13, 2017

Actual Record Closed Date: March 2, 2018

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2017

Advocate — Parents

Mother — Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2017

Advocate — Parents

Mother — Parents

DOE Representative — DOE

DOE

(via telephone)

Principal — Parents

(via telephone)

Director — Parents

(via telephone)

INTROD CTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement and program of for the 2016-2017 school year. The hearing was convened at the written request of parent (the “Parent”) by letter dated February 6, 2017. (Exhibit

A) A hearing was conducted on November 2, 2017, and November 13, 2017, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and alist of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGRO ND

_J is a , who was entering at the beginning of the 2016-2017 school year. He has been classified by the DOE’s Committee on Special Education (“CSE”) as a student with a disability The CSE convened on April 6, 2016, to develop an Individualized Education Plan (“IEP”) for for the 2016-2017 school year. (Exhibit 1) In the IEP created on that date, the CSE recommended placement in a full-time special education program in a with a ratio, along with the following related services:

II I

The CSE also recommended to support .1 By letter dated June 10, 2016, the DOE notified the Parent that the school at which I I would attend with the recommended education program was .(Exhibit 6)

The Parent, through her advocate, by letter dated August 25, 2016, advised the DOE that she would be enrolling at n ’ program and seeking tuition payment from the DOE. (Exhibit E) Thereafter, by letter dated February 6, 2017, the Parent requested an impartial hearing based on the DOE’s failure to offer a Free and Appropriate Public Education (“FAPE”) to for the 2016- 2017 school year. (Exhibit A)

The Parent is seeking an order directing the DOE to fund the tuition for to attend for the 2016-2017 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE

is a for the DOE and works at .

The school is a three-story school with through .

When was he was a student at and receiving special education services. was his zoned school and, therefore, was involved in the CSE process for to plan for the 2016- 2017 school year. She served as both the and the District Representative for the CSE at the meeting of April 6, 2016. then-current special education teacher, from , the Parent, and a DOE teacher participated in the meeting. n explained the CSE’s recommended program for described the reports relied upon at the meeting. They included a social history evaluation, a classroom observation conducted

The I P was subsequently amended to provide . ( xhibit 2) by , teacher reports and related service reports. The CSE classified J , based on his She stated that, at the time of the meeting, he was currently in a class. In his current setting, he had been moved from a smaller class to a [ class and the teacher reported that he was a very capable student and had met all of the demands of the class, academically and socially. He was making progress in the . The teacher also reported that he was appropriate for a school. At the meeting, the options of , in an class; a program; and a were all discussed. Some members of the CSE believed that was capable of participating in an . However, the Parent “firmly wanted a class,”

. (T. 25-32; 37-38; 40; 43)

explained that was recommended to support

J J J

7 c=

needs 7 _J was recommended to help work on those areas

I I

I I

7 . 7 was recommended to strengthen l skills. The was recommended

(T. 32-34) The CSE noted

c LJ n that would require

. (T. 41) LJ

testified that the would have arranged for the and other items needed once J registered in the school. Had the Parent come in to register , further details of the accommodations would have been discussed with her.

stated that all of the accommodations would “absolutely” have been in place at the beginning of school. (T. 44-45)

believed that could function in a class of n students and handle the curriculum. (T. 37) She also believed that his IEP could be implemented at . (T. 42) According to , the Parent’s concerns were in regard to and she did not want him to get lost in the school setting. (T.38) the Parent agreed with all of the related services. The Parent had really wanted a setting, which the CSE agreed to recommend, and the Parent “really felt comfortable with that.”

She was happy that the was going to be added. __J teacher also agreed with the related services. (T. 34-37) reiterated that the “the Parent was in agreement with everything during the IEP meeting.” (T. 41)

THE PARENT’S CASE

is the Principal of __J. During the 2016-2017 school

~ - - - - - -

year, had a total of students enrolled

. rents space from a host school, which is a school.

testified that, during the 2016-2017 school year, there were a total of L_ students in L_ class, ranging from . He explained that,

. had a to help

him

. stated that L_ had LJ

. reported that

. (T. 56-65; 74) explained which periods of the day are considered instruction. (T. believes that provided with an appropriate education for the 2016-2017 school year, as demonstrated by his progress in all academic ares. (T. 69-73; Exhibit F)

confirmed that the tuition for attendance at for the 2016-2017 school year was , broken down as follows: base tuition, for related services, and for the . The Parent paid of the tuition. (T. 66; Exhibit M)

is the Director at and was responsible for supervising program during the 2016-2017 school year. She did not work with

_J directly. She explained that the L_ students in __J classroom had . In addition to the classroom teacher, had a assigned to him . During that school year, received the related services of . explained that I I had access to peers. She

believes that provided with an appropriate special education. (T. 79-87)

is __J mother. She testified that _J had received related services and special education instruction through Early Intervention. Then, he attended and received the services there for two years, . explained that did well at . She

said that the CSE ultimately agreed with her that needed a smaller group and recommended a . said that when she visited , she became nervous because she was told that the class usually fills up to twelve to fifteen students and that it is a mix of different ages and levels. She explained that still needs help

_J At her visit, the classroom was under construction and being moved to a different part of the school, and the bathroom was far away. testified that, going to be able to accept him. So that was my biggest concern.” She also expressed that the cafeteria was very big, the benches were high and the food window was very high.

said CJ would need a . The he had at L_J was able to help with all of the issues she was concerned about. She testified that she did not know if the at would have been able to help him with everything. It was her understanding that there were limitations to the help he could receive from a in the public school. (T. 91-101)

explained that recommended . When

visited she liked that the classrooms were small and were all on one floor.

Everything was smaller and the teachers were very hands on. She did not think that would feel like he is different. During the 2016-2017 school year, LJ was happy at and made progress. He was integrated and the kids loved him. (T. 102-105)

confirmed that she owes money to and has to pay it if she does not prevail at the impartial hearing. (T. 105)

FINDINGS OF FACT AND CONCL SIONS OF LAW

The central purpose of 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 (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34

C.F.R. § 300.320).

A FAPE is offered to a student when the board of education: (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch.

Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch.

Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A.

v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch.

Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). 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. § 300.550[b]; 8 NYCRR 200.6[a][1]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that, "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000][internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union

Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEP’s that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at

132).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (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). Federal regulation requires that an IEP include a statement of the child's present levels of educational performance, including a description of how the child's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof, to determine the child's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).

An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability, to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. §

300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii]).

provided testimony regarding the manner in which the CSE meeting was conducted and the IEP was created, and the basis for the program recommendation. described the documents relied upon by the CSE, which included reports from current program, in which he had been successful, and which supported the CSE’s recommendation. She credibly represented that the Parent was in agreement will the class size, related services, and assignment of a one-to-one . It was the Parent who requested that class size, instead of the initial suggestion of an class. The Parent was also strongly advocating for a . The IEP indicates that, “Overall, Mom was firm in the fact that

_J should be placed in a class setting with the assistance of a , as well as the support of related services for his school year.” had first-hand knowledge and confidence that zoned school, , would be completely able to implement the IEP.

testimony fully supported the DOE’s position that was offered a FAPE for the 2016- 2017 school year.

The Parent’s impartial hearing request included many allegations challenging all aspects of the IEP development and its content. They ranged from the composition of the CSE, to the evaluations relied upon, to the Parent’s opportunity to meaningfully participate, to the goals established, and the inability of the proposed school to implement the IEP. However, these challenges were not supported by the record.

A review of the record establishes that the Parent’s objections, insofar as they were expressed in her testimony, were based on her safety concerns and fear that would be made fun of. ~ classes at contained students; the entire school had only _ -_J students, with no students except for those in the host school. There was no persuasive evidence to establish that any safety issue was handled differently by than it would have been pursuant to the IEP, with the recommended program in the designated school. While there might be a lower probability of LJ being made fun of simply because there was a smaller pool of students who could potentially do so at , this alone does not mean it will or will not happen. While safety is a legitimate parental concern, there was nothing demonstrated to establish that his program, classroom, or school environment at would be unsafe.

The arguments made by the Parent in this case reflected the Parent’s speculative concerns and did not represent or establish any flaws in the CSE meting, the IEP development process, or the program recommendation.

The Parent did not offer any evidence to rebut the testimony of the DOE’s witness regarding the appropriateness of the recommended program, with the exception of the Parent herself. The CSE’s recommended program was appropriate to meet individual needs for the 2016-2017 school year. The program was reasonably calculated to allow to make meaningful educational progress in the least restrictive environment.

The DOE has established that it offered an appropriate program. Therefore, I find that the DOE has prevailed with respect to the first criterion for an award of reimbursement under the Burlington and Carter decisions.

Although I have found that the DOE’s program is appropriate, and that the DOE offered a FAPE to LJ, I will briefly address the appropriateness of the Parent’s program. The Parent has the burden of establishing the appropriateness of the program she has provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, she must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) The Parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510 U.S. 7 [1993])

(

I find that while the program implemented by the Parent may have provided with a program that met his special education needs, it was a very restrictive environment. The classroom of LJ students, in a school of special education students, although located within a host school, is a highly restrictive environment. There has been no evidence presented to support a need for LJ to be educated in an environment that is so restrictive. While there were no details given with regard to his mainstreaming opportunities, reference was made to working in classrooms to some extent at . This is mentioned in his

Annual Student Report. (Exhibit G) It appears that he was successful in those classes.

This environment was particularly restrictive for a student with __J and abilities. I find that the Parent’s placement was not appropriate to meet special education needs for the 2016-2017 school year. Again, given the finding that the DOE offered aFAPE to , this is not amatter of comparing the two programs. Instead, the inquiry does not need to go beyond that finding.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Again, although I have already found that the DOE’s program is appropriate, and I would not need to consider the issue of equitable considerations, it will be addressed briefly herein. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.

Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s cooperation. Had there been a finding in favor of the Parent, equitable considerations would not serve to bar or diminish an award of reimbursement.

ORDER

The Parent’s request for tuition payment is denied.

Dated: March 16, 2018

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTS ENTERED INTO THE RECORD

DOE’s Exhibits

1. Individualized Education Program, 4/6/16, 18 pages

2. Individualized Education Program (revised), 4/6/16, 17 pages

3. Notice of IEP meeting, 3/21/16, 3 pages

4. Waiver of IEP meeting to amend IEP, 10/6/16, 2 pages

5. Prior Written Notice, 4/8/16, 4 pages

6. Prior Written Notice, 6/10/16, 5 pages

7. Rationale, 3/7/16, 3 pages

8. Classroom Observation, 2/12/16, 3 pages

9. Update, 1/14/16, 2 pages

10. Quarterly Report of Progress-Education, 11/12/15, 4 pages

11. Educational Progress Report, 4/20/15, 4 pages

12. Annual Report of Progress , 12/15/15, 4 pages

13. Quarterly Report of Progress ( ), 3/16/16, 4 pages

14. Annual Report of Progress ( ),12/3/15, 2 pages

15. Annual Report of Progress ( ), 12/11/15, 3 pages

16. Events Log, various dates, 6 pages

17. Form, 1/6/16, 5 pages

18. Summary Form, 4/4/16, 2 pages

Parent’s Exhibits

A. Impartial Hearing Request, 2/6/17, 5 pages

B. Program Description, undated, 1 page

C. Individualized Education Program, 3/9/16, 18 pages

D. Individualized Education Program, 4/6/16, 16 pages

E. Ten-day Notice, 8/25/16, 3 pages

F. Class Schedule, 2016-2017, 1 page

G. Annual Student Report, 2016-2017, 5 pages

H. Progress Report, 2016-2017, 2 pages

I. 7 Progress Report, 2016-2017, 2 pages

J. Report, 2016-2017, 1 page

K. Progress Report, 2016-2017, 2 pages

L. School Affidavit, 6/29/17, 1 page

M. Enrollment Contract, 9/7/16, 2 pages

N. Parent’s 1040 U.S. Individual Income Tax Return, 2016, 2 pages

O. Attendance Record, 2016-2017, 1 page