Mount Sinai Union Free School District, Impartial Hearing Decision

REDACTED FOR SED

THE UNIVERSITY OF THE STATE OF NEW YORK,

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the Parents of ( and ) on behalf of Petitioners, v. Mount Sinai Union Free School District Respondent.

Case Identifier Number 509958 Findings of Fact and Order

I. Introduction and Jurisdiction

The undersigned, James A. Monk, a duly certified Impartial Hearing Officer (IHO), having been so designated by the State Education Department, and heretofore having been duly appointed by the Board of Education of the Mount Sinai Union Free School District (Respondent), pursuant to Chapter 853 of the Laws of New York (Section 4404 of the New York State Education Law) and in accordance with Section 200.5 (c), Regulations of the Commissioner of Education (Subchapter P, Part 200 - Children With Handicapping

Conditions) , to conduct a due process hearing upon the petition of (Child) , by his parents, and (Parents/Petitioners). The due process hearing was held and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. Section 1400 et seq. and its implementing regulations 34 C.F.R. section 300 et seq. and the New York State Education Law section 4404 et seq, and its implementing regulation 8 NYCRR section 200.5 et seq.

On November 16, 2017, I was appointed as Impartial Hearing Officer (IHO) by the

Mount Sinai Union Free School District to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 29 U.S.C. §1415(f)(1) and Part 200 of the Regulations of the New York State Commissioner of Education regarding the educational program of ( ). The case convened on January 29, 2018.

Two 30-day extensions were granted in this case. No post-hearing submissions were requested. The hearing was completed on February 1, 2018. Briefs were not submitted and the record closed on February 1, 2018.

is a fifteen-year-old student (DOB ???) classified as having a Speech Language

. As of September, 2017, the Mount Sinai School District indicated it had an appropriate in-district program for for 2017-2018 and presently her pendency placement is home tutoring. Her parents object to the district’s denial of their request to have educated full time in another district.

The Due Process Complaint Notice, dated and received by the district on November 9, 2017, was filed by the parents. The case was identified in the state's Impartial Hearing Reporting System (IHRS) as Case on the IEP of 7/19/17. Appearing in this case for the district was , Esq. and representing the parents was . On November 28, 2017, the district's Motion to Dismiss the Due Process Complaint was denied.

On December 20, 2017 a prehearing conference call was conducted. The parties participated in a pre hearing conference call and determined future hearing dates.

Hearing Officer’s Hearing Summary Case Number: Case on the IEP of 7/19/17 and Case Identifier Number Dates of Hearing: 1/29/18, 1/30/18, 1/31/18, and 2/1/18 Date of Decision: 2/16/18 Student’s Name: Address: DELETED, Mount Sinai , N.Y. 11766 Most Recent Designation of Handicapping Condition: Speech/Language Impairment Petitioner’s Name: Parents of ( and ) on behalf of Address: DELETED, Mount Sinai , N.Y. 11766

Respondent’s Name: Mount Sinai Union Free School District Board of Education Address: Central Administration Building,

Issue/ Purpose of Hearing: To resolve the parents request relative to Mount Sinai Union Free School District providing an appropriate placement and program for in 2016-2017 and 2017-2018 in a Special Education classroom with related services outside the school district.

Committee for Special Education Current Recommendation: 15-1 Special Education Classroom with related services in Grade Nine in the .

II. Issues in the Case

The Due Process Complaint Notice in the case before the Mount Sinai Union Free School District alleged that was being denied placement in another school district (such as or in violation of her right under IDEA to a free and appropriate education (FAPE), seeking as relief her enrollment and admission outside the Mount Sinai School District in a 15-1 or similar classroom with supplemental services. The parents’ contention is that the 15-1 class in was not appropriate for because was fearful that she might not be accepted and may be bullied by her peers in the Mount Sinai School District.

It must be noted that no one at this proceeding took exception to the IEP classification of for the 2016-2017 or 2017-2018 school years. Placement was the only contested matter, but all felt that was being provided with the appropriate classification recommendations needed to address her disabilities.

It is of great concern to this Hearing Officer in that not a single reference to specific incidents of any negative consequence are supported or confirmed by staff. Nothing in the original Parent Complaint justifies the change in placement to a setting outside the home school district.

The case against the Mount Sinai Union Free School District in the original claim challenged the recommendation made by the Mount Sinai Union Free School District CSE for 's program and placement inside the School District for the 2016-2017 and 2017-2018 school years. In addition the complaint claimed the district CSE recommended an educational placement inconsistent with the child’s record, the district CSE recommended an educational placement that is not in the best interests of , the district CSE recommended an educational placement without exploring the possibility of implementing ’s IEP goals outside the district, the district CSE recommended an educational placement that the parents claim would do harm to the child, and the district CSE recommended an educational placement that did not take into account the child’s concerns regarding her in-district school phobia and alleged bullying. This contention completely ignores the district CSE’s right to determine a placement and assumes incorrectly that the district has an obligation to provide whatever satisfies the parent and child.

The parent arbitrarily assumes that the LRE is “outside the district” but the program they suggest is simply not the LRE for at this time. The contention that implementing s IEP outside the district is the only feasible option was clearly disputed by numerous district witnesses and not well supported even by some of the parent witnesses.

I would be remiss if I did not note that I respect and sympathize with the parents efforts on behalf of their daughter and their desire to obtain the best possible placement for , however, simply conceding repeatedly to ’s insistence that she be allowed to transfer to a setting outside the district based upon her suspicion that she will be mistreated if she attends school in her home district cannot be supported.

III. Findings of Fact

is a 15-year-old child, classified as a student with a Speech Language

. attended in Grade eight in the 2016-2017 school year. She made good progress in all of her subjects according to her teachers. She was never bullied or treated unfairly by her peers in her 15-1 SE classroom, according to her teacher. The Mount Sinai Union Free School District recommended a 15-1 grade nine placement consisting of a Special Class with related services at the . Special education programs in the Mount Sinai Union Free School District have proven to be sufficient to address all of ’s emotional and social deficits. For resident students whose needs are more intensive and for whom the district does not have an appropriate program to meet the student's needs, placement is typically sought in another school district, a BOCES program, an approved private school, a day school program, or a state operated school or residential program.

From the start, the parents expressed their strong feeling that could not offer an appropriate educational setting, a theme voiced throughout many conversations, and that it was important that be transferred to a nearby school district and no longer be subjected to the scorn of her fellow classmates in .

Mount Sinai Union Free School Districts’ understanding of applicable law was that the district was obligated to enroll a student in a district school "unless there's a valid and sufficient reason to enroll the student elsewhere." There was considerable misunderstanding among all parties about the obligation of the Mount Sinai Union Free School District concerning .

The refusal by the Mount Sinai Union Free School District to educate out-ofdistrict was based on its belief that the district's 15-1 ninth grade special class was an appropriate placement for in 2017-2018. They claimed it would be appropriate for her to participate in that program since she did well in grade eight and none of her alleged concerns were observed by her 2016-2017 teachers.

, Director of Special Education, testified that there is no reason to believe that will not make reasonable academic progress in the district in 2017-2018. The district took the position that there would be nothing to be gained for in placing her outside the school district for the 2017-2018 school year as the parents repeatedly demanded.

The parents' actions were based on their belief that community integration was impossible for Ms testified at length about the importance of attending school outside of the home district, stating that her success in the future is going to be determined by her determination to adapt to a new setting and escape all of her alleged fears of the home school district.

The IEP had thirteen goals for in the 2017-2018 school year. The CSE meeting was contentious, and the concern was not so much about goals or classification but about the locale of the placement, which was the parents' biggest concern. The meeting addressed recommendations for placement. The parents objected to the recommendations of the Sinai Union Free School District CSE, and refused to accept that would attend school in the Mount Sinai Union Free School District. The parents continued to refuse to send to Mount Sinai Union Free School District, even on a trial basis and an IHO hearing ensued. Their objection was based primarily on location, although they also disputed the need for an updated evaluation and make up services in ELA, math, social studies, science and reading, and make up services in Speech/Language Arts. They also stated their objection to the 15-1 in district class as being inappropriate due to the composition of the children, although their refusal to place her was clear at the CSE meeting and long before they had seen any profile of the class. The parents' objection was consistent again declaring any in district placement to be an inappropriate placement because it was not in their child’s best interests.

My duty is to assess whether the district has offered a FAPE for , under IDEA, NY Education Law §4400 et seq., and federal and state regulations.

Assessment of s needs must include weighing the benefits that might accrue by attending school near to her home, as indicated by the preference in regulation for a child to attend school near to her home, against benefits only available out of the district. It was undisputed that the parents had no disagreement with the IEP goals and objectives. I note Mr. and Mrs. 's agreement with evaluations and goals on the Mount Sinai Union Free School District IEPs other than location. Ms was adamant that nothing else was at issue, that for the school year she had no complaint about review of s goals, evaluations, discussions relevant to those goals and evaluations, and that her complaint focused on geographic placement. There was no real dispute about the degree of counseling support needed by The parents have kept at home receiving two hours of daily home tutoring from September, 2017 to the present time. She receives no related services.

Although the parents disputed whether a suitable program could only be addressed in the district, there was no real dispute with the type of program. They agreed that implementation of 's IEP would require some related services in academic areas identified as weak.

PPS Director, , stressed the importance that a program with intense therapeutic counseling would be for because of her inability to accept and understand the requirements of attending school in district. Also placing in a classroom outside the district would be an inappropriate action, depriving her of educational benefit.

Central to this case are the questions of whether the district has an obligation to find an out of district program for the child and whether the child’s parents have the right to demand the district designate an appropriate program outside the district when they alone conclude that the in district program offered is inappropriate. The parents argued that the requirement governing least restrictive environment required a comprehensive definition of inclusion that included the option of educating the child out of district if they so choose, falsely assuming that this automatically entitles to placement other than in the Mount

.

The parties did not disagree on the size or structure of a program for . Thus the parties agreed about what constituted least restrictive environment for . Both and s parents expressed a willingness to seek an appropriate placement, the parents, however, only agreeing if offered out of district. Again, the only bone of contention was in the district or out of the district. In addition, the parents claimed that bullying was a major issue in the in district setting in 2016-2017 and would be in 2017-2018 but could not cite any incidents supported by staff observations between and any classmates to back up this claim.

The focus of the parents' claim was exclusively on their argument concerning location, stressing the importance of a transfer out of district above all other factors in 's success. Although much of their argument is based largely on speculation about how would react negatively if placed in in Grade Nine, the parents' concern for their child is unquestioned and their concerns for her welfare were genuine.

The implementation of ’s IEP as requested by the parents can be accommodated as currently structured within the Mount Sinai School District. The district does have a 15-1 program with all the related services offered at the high school location.

Clouding the matter further, in an attempt to gain support for their claims, the parents employed a consultant, , ,a to support their claim that a change of schools outside the school district would be appropriate to ’s continued success.

based her findings entirely on information she was provided by and her mother.

Unfortunately, failed to take into account that the district had an appropriate program for students with similar needs to and an appropriate setting was available in . She reviewed district records pertaining to the student, did not observe within the in-district setting where related services were to be provided, did not visit district classes, and never reviewed class profiles within the Mount Sinai UFSD. She disagreed with the CSE recommendation providing for s placement and arbitrarily recommended placement in a neighboring school district.

, School Principal, specifically found that the Mount Sinai UFSD did have available special education classes and instructional groupings that accommodated in grade eight in 2016-2017. He observed four things regarding while she attended .

1. Special Classroom Teacher addressed s social and student interaction disabilities.

2. was never bullied when observed in the classroom and during non academic activities (lunchtime, recess, etc.).

3. responded well to Ms. , Guidance Counselor, in accordance with her services under the IEP requirements.

4. ’s grades and evaluations indicated that she did well and made good progress in grade eight. She struggled somewhat in Math and Reading

Comprehension.

IV. Conclusions of Law

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the School District during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended statute took effect for impartial hearings commenced on or after October 14, 2007 (see Application of the Bd. of Educ., Appeal No. 08-016).

In order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 05-062; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ., Appeal No. 02-008). When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed. An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 (b)(1). Neither federal nor state regulations prescribe a particular set of tests which must be used in each evaluation (34 C.F.R.sect.300.532,8NYCRR 200.1)

The law requires that a child’s IEP include “a statement of the special education and related services and supplementary aids and services, based upon peer-reviewed research to the extent practicable to be provided to the child” 20 U.S.C. s 1414(d)(1)(A)(i)IV.

Under the IDEA and its implementing regulations an IEP must contain:

1. The student’s present levels of academic achievement and functional performance.

2. Measurable annual goals for the child.

3. The methods used to measure the student’s progress toward those goals.

4. The special education and related services that the IEP recommends.

5. An explanation of the extent to which the student will be educated with nondisabled peers.

6. The reasons for any alternate assessments.

7. The start date for recommended services, their duration, and their frequency. 20 USC s.1414(d)(1)(A); 8 NYCRR tit. 8 s. 200.4(d)(2).

Under IDEA all children with special needs are entitled to a free and appropriate public education (FAPE) and it must include special education and related services which meet the needs of the student and they must be reasonably calculated to enable the child to receive educational benefits. Hendrick Hudson CSD v Rowley (20 USC s1400(d)(1)(A). Nothing that the parents presented disputed the fact that the IEP offered in 2017-2018 would meet her needs and was reasonably calculated to enable her to receive educational benefits.

A FAPE has been defined as an education offered to a student when 1. A board of education complies with the procedural requirements set forth in the IDEA and 2. The IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (See Exhibit P). (again Rowley). The CSE met and adopted the educational goals and objectives in the IEP that included a setting in the district that provides for a program that can best serve to meet ’s needs with all the supplementary aides and services.

If procedural violations are alleged as set forth in the IDEA an IHO may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’s right to a FAPE (b) significantly impeded the parent's’ opportunity to participate in the decision making process regarding the provision of a FAPE to the child or (c) caused a deprivation of educational benefits. 20 U.S.C. s1415(f)(3)(E0(ii). Reference in this decision is also made to the Least Restrictive Environment. The students’ recommended program must also be provided in the least restrictive environment. 20 U.S.C. s 1412(a)(5)(A). 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”. I did not see any indication of procedural violations, nor did I see any evidence of any violation of the parents’ rights to participate in the decision making process.

The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, School Districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a School District must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 114 [2d Cir. 2008]. The IEP (Exhibit D6) developed on 7/19/17 meets the requirements as set forth in the above decisions.

The parents’ claim that a FAPE was not offered to in 2016-2017 and that they are entitled to equitable considerations which are relevant in fashioning relief. The parents, however, fall short in proving that a FAPE was not offered by the School District both in the 2016-2017 and the 2017-2018 school years at issue. In fact, nothing offered by the parents substantiates a denial of FAPE by the School District other than speculative arguments against the recommendations of the CSE to place in an appropriate setting in the School District. I find that the parents claim is not supported by equitable considerations. There is no evidence that the parents had a sincere interest in exploring options offered by the CSE and it can be inferred from their actions subsequent to and prior to each CSE meeting that the parents had no intention to accept the CSE recommendations unless the CSE agreed to out of district placement.

The principles of least restrictive environment apply to various self-contained placements across the continuum as well. The law recognizes the need to weigh the importance of providing an appropriate education and the benefits to be gained from services which cannot be obtained in a less restrictive setting. P. v. Newington Bd. of Ed., 546 F.3d 111 (2d Cir. 2008); Roncker v. Walter, 700F.2d 1058 (6th,Cir. 1983), cert. denied 464 US 864,104 S.Ct.196.

School Districts are required to ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. Under the law, however, placement does not mean a particular school, but rather a setting, such as regular classes, special education classes, and special schools. 34 CFR §300.115, 8 NYCRR §200.6. No federal or appellate court has recognized right to a specific school assignment under the IDEA.

Least restrictive environment for involves a procedural as well as a substantive review. “Case law regarding inclusion requires a demonstration by the district that programs and services could not be implemented within a regular education classroom with supplementary aids. Oberti v. Bd. of Educ. Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir·. 1993).” The testimony of both Director of Special Education, and , School Principal, demonstrated that programs and services could be implemented within a classroom inside the school district for .

Although geographic proximity remains a factor that the district must consider, the district has authority to select the school site as long as it is educationally appropriate, and the district has fulfilled its legal obligations by considering placing the student in his neighborhood school before deciding to implement her IEP elsewhere. IDEA §601 et seq., 34 CFR §300.116(b)(3),(c). Lebron v. N. Penn Sch. Dist., 769 F. Supp. 2d 788(2011). See also Beth v. Van Clay, 282 F.3d 493 (2002).” is required to examine whether s needs can be met within a district class with supplementary aids and services. I feel that they have conducted this examination and made a well informed determination.

V. Order

It is the decision of this hearing officer as follows: After careful review of the record before me I am issuing a final decision. The issues originally before me have remained constant. The dispute centered around the appropriate placement and program for for the school years 2016-2017 and 2017-2018.

The District has sustained its burden to demonstrate that it was fully prepared to provide a FAPE for the challenged school years. There is no reason to doubt that an improved level of progress resulted during the 2016-2017 school year and would have continued had attended the Mount Sinai School District in 2017-2018. The IHO finds that the District had both the intention and the resources to offer a FAPE in 2017-2018. In addition, the IHO finds that the parents preferred out of district placement for is not the LRE. It does not, in fact, meet any of the established criteria as outlined for the Least Restrictive Environment. The IDEA requires all students with disabilities be moved to a more restrictive school setting 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). The testimony and information produced in the record demonstrates that a reasonable accommodation can be made in the Mount Sinai School District and how ’s numerous academic deficits could be addressed within district. The record will also show ample proof of the need to address ’s academic deficits and IEP goals and these were best met in district.

’s inability to function in a mainstream setting because of her anxiety and skill deficits has been well established and with the appropriate support system she likely would have progressed in the CSE recommended program in 2017-2018.

It is the decision of this Hearing Officer that the Mount Sinai School District did, in fact, offer an appropriate program and placement for during the years in question. The testimony from district witnesses was consistent in explaining the intentions of the district in addressing ’s specific academic and social needs. Even though the parents were adamant in disagreeing with the contested IEP placement, the program that was to be offered as described by district personnel was appropriate and, in all likelihood, would have benefitted

.

After carefully reviewing the entire record, I have determined that the district's recommended program and placement for the 2016-2017 and the 2017-2018 school year was reasonably calculated to confer educational benefit and thus, offered the student a FAPE in the LRE. My decision was guided by my intention to apply the proper legal standard in determining whether was offered a FAPE in the LRE, including whether the Mount Sinai

School District complied with the procedural requirements in the IDEA and whether the recommended special education programs and services were reasonably calculated to confer educational benefit.

The parties are ordered to implement the CSE recommended IEP for 2017-2018. The parents’ insistence on an out of district program and placement are not a viable alternative for the 2017-2018 school year.

PLEASE TAKE NOTICE OF THE PARTIES RIGHT TO APPEAL AS DESCRIBED IN

THE ACCOMPANYING “FINALITY OF DECISION; APPEAL; IMPARTIAL REVIEW.

This decision rendered February 16, 2018.

_________________________

Impartial Hearing Officer

Dr. James A. Monk

WITNESSES

, Director of Special Education,

, School Principal, , MS Special Education Teacher, , Mother , Father

, Assistant Principal

, Special Education Teacher

, Special Education Teacher/English

, Superintendent of Schools,