New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166557

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: June 28, 2017

August 21, 2017

October 27, 2017

November 17, 2017

December 8, 2017

Actual Record Closed Date: April 4, 2018

Hearing Officer: Judith Schneider, Esq.

APPEARANCES June 28, 2017 August 21, 2017 October 27, 2017 November 17, 2017 December 8, 2017

For, Esq., Attorney — Parents

For, District Representative (via telephone) — District

For, Esq., Attorney — Parents

For, District Representative — District

For, Esq., Attorney — Parents

For, District Representative, Assistant Principal, (via telephone), Esq., Attorney, Admissions Director, (via telephone) — District

For, District Representative, Special Education Teacher (via telephone) — District

For, Esq., Attorney — Parents

Parents

For, District Representative — District

On June 28, 2017, August 21, 2017, October 27, 2017, November 17, 2017 and December 8, 2017, an Impartial Hearing was conducted at the New York City Department of Education (“DOE” or “district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated June 21, 2017. (Ex. A) I was appointed Impartial Hearing Officer on January 3, 2018 after the recusal/s of one or more impartial hearing officers. At a telephone conference with the parties conducted on January 17, 2018, I was informed that the evidentiary phase of the hearing had concluded and that the parties wanted to submit closing memoranda.

Although a pendency hearing in this matter had been held on June 28, 2017 and it was anticipated by the parties and hearing officer that an order requiring DOE funding for a placement at (“ ”) would be issued there is no indication that it was. However, the DOE had issued a P-1 authorization (“Nickerson Letter)

pursuant to which the student was placed at , which is a State approved non-public school (“NPS”), for the pendency period commencing July 1, 2017 (12 month program).

The compliance date was extended on several occasions by a previous impartial hearing officer. Subsequent to my appointment, I extended the compliance date retroactively to enable the matter to continue. Thereafter the parties moved to extend the compliance date to enable the filing of closing memoranda and my consideration of the record in this case and those requests were granted. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to present their positions in accordance with the requirements of due process and to enable an appropriate consideration of those positions was greater than any delay in the resolution of this matter. Accordingly, the joint requests to me for extensions of the compliance dates were granted.

The current compliance date is April 27, 2018. The record closed on April 4, 2018, upon my receipt of all closing memoranda and transcripts.

Position of the Parties

The parent asserts that the IEP issued on June 21, 2017 for the 2017-2018 school year (“SY”) was substantively and procedurally defective and that the DOE did not timely provide a placement which could implement the IEP. Accordingly the parent claims the DOE failed to provide a FAPE. The student was placed at for the 2017- 2018 SY pursuant to a Nickerson letter issued by the DOE. The parent asserts that was appropriate for this student and that the equities in this matter support the parent. The parent seeks an order finding that the DOE failed to provide a FAPE and that he was entitled to a placement at for 2017-2018 SY. The parent asserts that notwithstanding the issuance of the Nickerson letter which permitted that placement, the issue is not moot. (Ex. II)

The district asserts that a FAPE was provided by the issuance of a valid IEP and the offer of an appropriate placement, that was not appropriate and that the equities support the DOE because the parent never intended to consider a public school at the time of the IEP meeting. (Ex. I)

Cases Presented

Both parties submitted documentary evidence. A list of documents in the record is appended.

The district presented the testimony of: , the DOE special education teacher who participated in the June 21, 2017 review; , an Assistant Principal at the .

The parent presented the testimony of: the student’s mother (“the parent”);

, Admissions Director.

(“the AP”)

The AP’s testimony included the following:

He is an Assistant Principal for which is a multi-site facility with 8 different sites. (T.40) His only familiarity with the student was via review of documents transmitted by the district’s representative. (T. 42) He was employed for 27 years at the site which was recommended for this student but has not been at that site for the last 5 years. (T. 43, 49, 50, Ex. 4-1) That site is serviced by another 2 APs with substantial experience at that school. (T. 53) That site currently has approximately 185

students pre-K through 8th grade with various disabilities in some 25 classes. (T. 43-44,

46) The AP opined that the IEP could be implemented in the recommended placement.

(T. 45) He also opined that he believes that things have not changed that much at the school since he was last at that school. (T. 52)

testimony included the following:

She is a DOE special education teacher who participated in the student’s May 11, 2017 review. (T. 70) She has no knowledge of the student other than her participation in that review. (T. 69) A DOE also participated in the review and was the district representative. (T. 70-71) did not have a full recollection of the meeting. (T. 72, 81, 82) Staff of the school the student was attending participated by phone and the parents also participated. (T. 71, Ex. 1) The team considered various assessments, including a March 30, 2017 educational assessment, an occupational therapy report and a speech language report, as well as information provided by the school he was attending. (T. 72-73) There was “a lot” of discussion at the review about the student’s emotional frustration. (T. 72) The student was classified as a student with a

Learning Disability. (Ex. 1) The CSE recommended a 12 month 12:1:1 placement with related service of speech language therapy (“SLT”), occupational therapy (“OT”) and counseling (to address low self-esteem issues) as well as an FM unit for hearing issues. (T. 73, 73-74, Ex. 1)

The related services recommended were not dispute by the parent or the student’s teacher and they also agreed with the related services goals. (T. 74-75) However, the parent and teacher discussed their belief that leaving the school he had been attending would be detrimental to both his academic and emotional needs. (T. 75-76) The CSE believed an NPS (a non-public school placement at a school approved by the NY State Education Department as a school with which the district could contract for the delivery of educational services) was not the “least restrictive environment” (“LRE”) at the time and that a placement was and that all the student’s needs could be addressed in that environment. (T. 73, 76-77)

’ testimony included the following:

She is director of admissions and is a special education teacher certified in secondary special education English. (T. 85-86) is an NPS for students with language-based learning needs with 118 students in its primary school grades 3-8 and a separate high school with 144 students in grades 9-12. (T. 87-88) Primary school students are within the average range of cognitive development and require multi-sensory education and many are school sensitive and afraid of taking risks. (T. 88, 123)

Professional development is provided weekly. (T. 91) There is frequent communication with parents. (T. 92)

There are 10 classes in the primary school, all 12:1:1, with one teacher and one teacher assistant and staff includes speech and language providers, occupational therapists (on contract), school social workers, reading and math specialists, classroom small group support assistants and art, gym, music and computer teachers. (T. 89, 118-

119, 120) The school is graded but if there is more than one class the students are grouped based upon cognitive, academic and social factors. (T. 89-90) All CSE mandated related services are provided. (T. 91)

reading program is Orton Gillingham based and it utilizes other programs for math and writing instruction; the school is Common Core aligned but all instruction and curriculum is modified and is individualized when possible. (T. 94-96)

Students are assessed with an online assessment tool as well as teacher input, rewporet cards, progress report and conferences. (T. 92-94, 95)

The student entered for the 4th grade and in the 2017-2018 SY is in the 6th grade. (T. 99) estimates his cognitive abilities to be at the low end of the average range. (T. 123-124) The student is extremely sensitive and self-aware and is academically and socially fragile with academic skills not approaching grade level

(falling within 2nd-3rd grade in September 2017); he requires and receives a lot of 1:1 support to start and complete tasks as well as is provided with frequent meetings with his social worker in addition to mandated counseling. (T. 100-101, 102, 118-119) He has a tendency to shut down when faced with something challenging. (T. 102) His academic skills have improved at . (T. 125-126)

The greatest progress made by the student is in his enjoyment in being at school and the decrease in time taken to resume participation when tasks are challenging. (T. 103-105) He is slowly developing self-advocacy skills and is more willing to accept help. (T. 103-105)

The school principal and all the student’s providers but his occupational therapist participated in the CSE review and informed that they questioned some of the recommendations which they thought were “grossly inadequate” but had little opportunity for discussion and that they had the impression that the decision had been made before the meeting. (T. 107-109) All staff believed the student should remain in a 12:1:1 placement in a non-public school because of his social emotional needs which required substantial support and believed that staff had not had the opportunity to communicate their recommendation. (T 111-112) At various meetings for other students has been told that the student had to be in a placement before a more restrictive NPS could be considered. (T. 112-113, 127-128)

opined that a placement would be “a disaster” for this student at this time because he has become comfortable communicating at and changing to another placement would require him to start all over again-taking him back to “square one” which, in view of his academic and social deficits would set him up for disastrous failure. (T. 113-114) She last observed a class about 10 years ago. (T. 128-129)

Student’s Mother (“the parent”)

The parent’s testimony included the following:

The student attended a public school for the first half of kindergarten and thereafter transferred to the (“the charter school”). (T.

181-182) He had problems with focusing and needed redirection throughout his attendance at that school. (T. 158) The parent provided 1:1 tutoring 2-3 times per week commencing in the 1st grade. (T. 160) In about the middle of the 1st grade he was referred for initial evaluation because of poor academic performance and trouble retaining information. (T. 142) The CSE’s recommendation was pullout SETSS and he received that throughout his attendance in the charter school. (T. 143) He remained at the charter school for the 2nd grade (2012-2013 SY) but did poorly and was not promoted.

(T. 144-145)

The family relocated and the student repeated 2nd grade (2013-2014 SY) in a public school and received some but not all mandated services. (T. 145, 159) The student continued to do poorly during his second 2nd grade year, adversely compared himself to his classmates and became very “down” on himself. (T. 159, 161) The parent requested various assessments and eventually an FM unit was provided. (Ex. 3) The parent believed that he was making no progress and the school was unable to offer only pullout SETSS as academic services. ((T. 159) The parent continued to provide private tutoring but although he progressed he was unable to transfer those skills to the classroom. . (T. 159-160) The student came home crying and did not want to go to school. (T. 159, 161) He was promoted to the 3rd grade for the 2014-2015 SY. (T. 145, 146)

A triennial evaluation commenced in November 2014. (Ex. 3) The CSE

convened about midway through the school year and recommended a special class placement 12:1. (Ex. 3) However, the school could not implement that placement. (T.

145, 146, Ex. 3) The CSE did not identify another placement and the student continued with a SETSS pullout as his only special education academic service. (T. 145, 182) The parent filed a due process complaint and the CSE issued a Nickerson letter for placement in an NPS. (T. 145-146, Ex. 3) In July 2015, the parent placed the student at , a 12 month school, for the 4th grade (2015-2016 SY). (T. 147-148, 182)

An IEP meeting to develop a program for 5th grade was scheduled but canceled and was not held until August 1 2016. (T. 150, Exs. 3, E) A 12:1:1 special class program in a community school was recommended at that time. (T. 149, Ex. E) The student did not receive ESY services in the 2016-2017 SY. (T. 148, Ex. E) The parent was provided with a placement letter designating the same school he had attended for the 3rd grade and upon inquiry was informed that that school continued to be unable to provide the recommended services and could not accommodate the student. (T. 152)

The CSE again issued a Nickerson letter and the student returned to for the 5th grade. (T. 148, 153, Ex. 3)

After additional testing, the CSE reconvened on May 11, 2017 to develop a program for the student’s 6th grade (2017-2018 SY). (Exs. 1, 3) The parent and various staff participated from and the CSE was at a different location. (T. 170-

171) The parent and staff informed the CSE that they were strongly in favor of the student remaining at . (T. 172-174) The CSE recommended a 12 month

12:1:1 program with various related services. (Ex. 1) The parent received two school location letters (dated June 19 and June 21, 2017), one for another student and the other designating for the student. (T. 175-177, 194-195, Ex. 4) The parent attempted to contact the and a telephone message stated that the school was closed. (T. 189) The parent had no recollection as to whether the message reported when it would reopen. (T. 189) On June 22, 2017, the CSE issued a Nickerson letter at the request of parent’s counsel. (T. 192-193, Ex. 3)^[1] The student attended commencing July 2017. (T. 148, 174)

Findings of Fact and Conclusions of Law

I find credible the testimony of the witnesses as set forth above in that it accurately reflects their current recollections and understanding and the opinions they hold.

In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C.

§§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S.

Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals 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). While school districts are required to comply with all Individuals with Disabilities Education Act 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 free appropriate public education (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, 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]), 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]). 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. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The

IDEA, however, does not require school districts to develop IEPs 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. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v.

Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR

200.6[a][1]).

The parent has asserted that the DOE has failed to meet its burden to establish that it provided a program reasonably calculated to enable the student to make progress in light of his circumstances. Further the parent claims that the procedural defects rendered the IEP a nullity. (Ex. II) The parent seeks an order requiring either the CSE placement of the student in , which it claims is appropriate, for the 2017-2018 SY or an IEP amendment requiring an NPS placement and directing deferral to the CBST for that placement. Appeal No. 11-048

I do not address those issues. I note that the student is attending for the duration of the 2017-2018 SY as a consequence of the CSE’s issuance of a Nickerson letter. The parent asserts that her request should not be determined to be moot because it is an issue capable of being repeated which would evade review if not determined herein.

Appeal No. 11-048.

However, I conclude that there is no longer a live controversy concerning placement and that the parent no longer has a stake in the outcome of this action. Knaust

v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998] The relief sought as a consequence of Case No. 166557 any alle ed DOE failures with re ard to the student’s 2017-2018 SY placement and school location has been provided. The “capable of repetition, yet evading review” exception to mootness principles, argued by the parent, is “severely circumscribed” and “applies only in exceptional circumstances, where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Knaust v. City of

Kingston quoting Spencer v. Kenna, 188 S. Ct. 978, 988 (1988)

The parent’s claim herein is grounded upon CSE action/inaction in connection with the 2017-2018 SY review. Should the parent disagree with a future CSE action, the impartial hearing process is available and pendency provisions of applicable law will enable the matter to be fully litigated prior to expiration without harm to the student.

Further, any future CSE review is required to consider the student’s situation at the time of that review which may or may not result in a different recommendation and which recommendation may or may not be appropriate in view of the student’s circumstances at that time. I note that the challenged IEP recommended a different program than previously as a consequence of CSE ongoing reconsideration. Further, although

Nickerson letters have been issued for three consecutive years, it is undisputed that for the earlier two years that the IEP program could not be implemented at the recommended school. In contrast, the DOE asserts and has presented evidence with regard to its claim that the proposed placement could implement the 2017-2018 SY IEP.

Accordingly, I find no reasonable expectation in the circumstances here that the parent will confront the same situation and be subject to the same action again. Therefore, I find that no basis for an exception to mootness doctrine and conclude that this matter should be dismissed as moot.

ORDER

This matter is DISMISSED as moot.

Dated: April 16, 2018

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a ri ht to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposin party no later than 25 days after the date of the decision sou ht to be reviewed.

An appealin parties' request for review shall be personally served upon the opposin party within 40 days from the date of the decision sou ht to be reviewed. An appealin party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedin s before a SRO are found in Part 279 of the Re ulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms available at http://www.sro.nysed. ov/part279home.html.

EXHIBITS

District

1 IEP, 5/11/17, 24 pgs.

2 PWN/Notice of Recommendation, 6/19/17, 4 pgs.

3 Events Log, various dates, 26 pgs.

4 School Location Letter, 6/19/17, 2 pgs.

Parent

A Due Process Request, 6/21/17, 5 pgs.

B 2016-2017 Elementary Progress Reports, Multiple dates, 12 gs.

C Psychological Evaluation Report, 7/18/16, 4 pgs.

D 2015-2016 Elementary Progress Reports, multiple dates, 12 pgs.

E IEP, 8/1/16, 2 pgs.

F PWN, 8/1/16, 2 pgs.

G 2017 Summer Progress Reports, 8/10/17, 5 pgs.

Impartial Hearing Officer

I District Closing Memorandum

II Parent Closing Memorandum

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Footnotes

[1] It is undisputed that the DOE did not place the student prior to June 15, 2017. On June 21, 2017 the parent, through counsel, had filed a request for Due Process Hearing and 10-Day Notice of Intent to place the student at for the 2017-2018 SY and seek DOE funding in which the parent requested, among other things, a pendency placement at . (Ex. A) The Nickerson letter dated June 22, 2017 had not been received by parent/counsel by June 28 but was received by August 21, 2017. (T. 22-23, Ex. 3)