New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 154743

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 4, 2015

May 25, 2016

Actual Record Closed Date: January 4, 2017

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2015

Advocate — Parents

Interpreter — Parents

DOE Representative — DOE

DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2016

Advocate — Parents

Interpreter — Parents

Mother — Parents

Parents

(via telephone)

DOE Representative — DOE

INTRODUCTION

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 2014-2015 school year. The hearing was convened at the written request of ’s parent (the “Parent”) by letter dated January 28, 2015, and amended by letter dated February 18, 2016. (Exhibits A and J) A hearing was conducted on June 4, 2015, and May 25, 2016, 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 a list 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)]

BACKGROUND

is a ,

. He has been classified by the DOE’s Committee on Special Education (“CSE”) as . The CSE convened on June 11, 2014, to develop an Individualized Education Plan (“IEP”) for for the 2014-2015 school year.

(Exhibit C) In the IEP created on that date, the CSE recommended placement in a , along with the related services of Case No. 154743

. By letter dated July 23, 2014, titled “School Location Letter,” the DOE informed the parent that would be attending “ ” for the 2014-2015 school year. (Exhibit 2) The Parent, through her advocate, by letter dated January 28, 2015, requested an impartial hearing based on the DOE’s failure to offer a Free and Appropriate Public Education (“FAPE”) to for the 2014-2015 school year. (Exhibit A) As noted above, the impartial hearing request was amended by letter dated February 18, 2016.

The Parent is seeking an order directing the DOE to fund the tuition for to attend the (“ ”) for the 2014-2015 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE

is a for the DOE who served on the CSE

which conducted a meeting on June 11, 2014, at which the IEP was developed for for the 2014-2015 school year. She listed the participants at that meeting, which included herself; , a general education teacher; , the Parent’s advocate

(participating by telephone); , a at

(participating by telephone); and, Mrs. , ’s mother (participating by telephone). (T.

11-14) Ms. explained that, at that time, during the 2013-2014 school year, was attending . There was no dispute regarding the classification of as a . (T. 15) Ms. testified that the information contained in the IEP regarding ’s present levels of performance came from previous evaluations and reports, including school, teacher, and progress reports. At the time, it was reported that and . In addition, ’s teacher, participating in the meeting, also provided the information pertaining to performance levels. There was a evaluation reviewed at the meeting which provided some information contained in the IEP. (Exhibit 3) The testing results contained in the evaluation reflected and described (T. 16-19) Ms.

stated that the CSE had a lot of information, including progress reports, which provided additional information and updates on . Therefore, there was no need to conduct a new evaluation. (T. 19) Ms. confirmed that, as reflected in the IEP, the CSE recommended . The class would have a . The CSE further recommended the related services of . Ms. recalled that there was agreement among all members of the CSE that needed , and that there was no dispute with regard to the related services recommended. (T. 20-21)

Ms. described the goals created for and included in the IEP, and on what information they were based. She testified that the goals were consistent with his reported abilities and needs, could be addressed by a and were appropriate. Ms. explained that the goals were created with ’s current school, based on what they believed would be appropriate goals. The school provided the goals based on teacher and progress reports. (T. 22-27; 34) Ms. stated that, during the meeting, it was reported by the school and the Parent, and documented in the reports, that had made “ .”

. (T. 47-48) The concerns raised were that , , and

. (T. 30) Ms.

expressed her opinion that the IEP provided for a FAPE for (T. 27)

THE PARENT’S CASE

is the . She explained that

“

.” During the 2014-2015 school year, there were attending the . (T. 67- 68) Ms. stated that attended during the 2014-2015 school year. He had ,

, . The related

service providers are licensed in their respective areas. was in a class with a ratio of . There were in the class:

. She explained his class

schedule and the topics covered during each class and each period of the day, including the related services of .

(T. 70- 83; 84-85) Ms. testified that in the 2014-2015 school year. (T. 73; 76; 91)

In Ms. ’s opinion, plays a role in ’s educational program. He needs

. (T.

84) Ms. agrees with the CSE’s recommendation that needs placement in a . However, she believes that a class with would be “ ” (T.86) Ms. believes that the program provided with an appropriate special education for the 2014-2015 school year since it “ ,” and “ ” (T. 91)

is ’s mother. Ms. testified that, at the CSE meeting, she disagreed with the CSE’s recommendation of a for , because he needs . Ms. confirmed that she had received a letter from the DOE with the name of the school in which he was being offered placement. She testified that she did not visit the proposed placement, since they did not have for him, and, as she stated, “ .” They had a class for him with , as recommended, but she was looking for “ .” (T. 111-113) Ms. stated that she objected to the because “ .” (T. 116)

Ms. confirmed that she signed a tuition contract with for the 2014-2015 school year for tuition of , for which she has not made any payment. (Exhibit G) She testified that there is “ .” If she is not successful in this matter, she would ask her family, or “ ” for help. (T. 113-114) Ms. stated that her family consists of . .

.

Their tuition is approximately a year each. (T. 118- 119)

FINDINGS OF FACT AND CONCLUSIONS 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]).

Ms. provided testimony regarding the manner in which the CSE meeting was conducted, the agreement on the classification and the related services, the manner in which the IEP was created, and the basis for the program recommendation. She confirmed that the participation of the from , along with that of Ms.

and her advocate, as well as the documents prepared by ’s teachers, played a vital role in the development of the IEP. A large amount of the information contained in the IEP was based directly on information from ’s staff. Ms. supported the DOE’s position that was offered a FAPE for the 2014-2015 school year.

The Parent’s Amended Impartial Hearing Request included allegations that: “

;” the DOE failed to administer the necessary evaluations;” , as described, warranted a “

;” and that the IEP does not contain goals. (Exhibit J) However, such challenges were not supported by the record. In addition, the Parent’s contention in the Amended Impartial Hearing Request that the goals contained in the IEP were not appropriate and sufficiently challenging was not supported. The participating in the meeting was highly involved in the construction of the goals and the teachers applied those goals in the 2014-2015 school year. Ms. , although not a participant at the CSE meeting, did not express any disagreement with the IEP, with the exception of . She did not note any dispute with the goals or any need to modify or add to them.

A review of the record establishes that Ms. ’s objection was solely to . In her opinion,

. Specifically, the only reason she provided for wanting was due to . It is not clear how is necessarily governed by, or even related to, . In her testimony, that was the only issue described by Ms. While she may have confirmed, by telephone, that his class would have at the proposed school, as recommended by the CSE, there was no mention of any questions regarding whether .

’s classes at contained ;

, . If the Parent’s

primary concern was , her unilateral placement at presented with restrictions far beyond . Finally, there was nothing contained in the IEP, or any other evidence, referring to an issue with

.

There was no testimony by any of the Parent’s witnesses with regard to the CSE meeting, except for the Parent’s testimony confirming her disagreement with the recommended. The staff member who participated in the meeting did not participate in the Impartial Hearing.

The Parent did not offer any persuasive testimony or evidence to rebut the testimony of the DOE’s witnesses regarding the appropriateness of the recommended program, with the exception of Ms. herself. The CSE’s recommended program was appropriate to meet ’s individual needs for the 2014-2015 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 , 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 Case No. 154743

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 some of his special education needs, it certainly was not the least restrictive environment. The , in a is a highly restrictive environment. .

Ms. had explained that the fact that , helps since “ .” (T.99-100) There has been no evidence presented to support a need for . This environment was particularly restrictive for a student with ’s abilities, which include . It is likely that the Parent would not have accepted any program recommendation from the DOE. While it may seem speculative to a degree, and is not necessarily germaine to this determination,

. It appears that the Parent prefers that her children, including , receive a private school education. While that is certainly within her discretion, I find that the Parent’s placement was not appropriate to meet ’s special education needs for the 2014-2015 school year.

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 that the Parent’s program was not 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: January 25, 2017

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

ALI:

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.

DOCUMENTATION ENTERED INTO THE RECORD

DOE’s Exhibits

1. Individualized Education Program, 6/11/14, 14 pages

2. Prior Written Notice, 7/23/14, 5 pages

3. , 4/23/12, 8 pages

4. , 4/26/12, 10 pages

5. , 4/23/12, 8 pages

6. , 4/23/12, 1 page

7. , 4/23/12, 1 page

Parent’s Exhibits

A. Impartial Hearing Request, 1/28/15, 3 pages

B. Program Description, undated, 2 pages

C. Individualized Education Program, 6/11/14, 14 pages

D. Student Progress Report, 12/2014, 5 pages

E. Class Schedule, 2014-2015, 1 page

F. Tuition Contract, 9/10/14, 1 page

G. School Affidavit, 5/19/15, 1 page

H. Attendance Record, 2014-2015, 1 page

I. 1040 U.S. Individual Income Tax Return, 2014, 2 pages

J. Amended Impartial Hearing Request, 2/18/16, 4 pages