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FINDINGS OF FACT AND DECISION
Case Number: 156722
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: November 24, 2015
December 9, 2015
December 21, 2015
February 3, 2016
Actual Record Closed Date: March 28, 2016
Hearing Officer: Judith Schneider, Esq.
APPEARANCES September 1, 2015 October 28, 2015 November 24, 2015 December 9, 2015 December 21, 2015 February 3, 2016
Attorney — Student
Parents
Parents
IHRO Representative — DOE
Attorney — Student
Parents
Impartial Hearing Representative — DOE
Attorney — Student
Parents
Parents
IHRO Representative — DOE
(via telephone) — DOE
Attorney — Student
Parents
Impartial Hearing Representative — DOE
(via telephone) — DOE
(via telephone) — DOE
Attorney — Student
Parents
Student
Impartial Hearing Representative — DOE
Attorney — Student
Parent/Mother — Student
(via telephone) — Student
(via telephone) — Student
Impartial Hearing Representative — DOE
On September 1, 2015, October 28, 2015, November 24, 2015, December 9, 2015, — DOE
December 21, 2015, and February 3, 2016, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, , 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 July 31, 2015. (Ex. A) I was appointed as Impartial Hearing Officer on August 20, 2015 after recusal by at least one hearing officer. A prehearing conference was conducted on September 1, 2015, and the hearing was scheduled for October 28 and October 29, 2015.
(Ex. I) The parent filed an amended hearing request by correspondence dated September 2, 2015. (Ex. II) Amendment was thereafter granted and the previously scheduled dates were canceled. A prehearing conference concerning the amended complaint was conducted October 19, 2015 and the hearing was scheduled for October 28, 2015, November 24, 2015 and December 9, 2015. (Ex. I) Thereafter February 3, 2015, was added.
A hearing concerning the parents’ request for an order concerning the student’s entitlements during the pendency of this matter was conducted on September 1, 2015. By order dated September 3, 2015, I specified that the student was entitled to receive during the pendency of this matter the following:
a) in a State approved non-public school (NPS);
b) program;
c) Related services to be delivered by the school of:
d) as follows:
;
;
.
(Ex. V )
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. 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 prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 28, 203, 315, 361-362, Ex. II)
The current compliance date is May 12, 2016. The record closed on March 28, 2016, upon my receipt of all closing memoranda. [1]
Positions of Parties
The parent asserts that the DOE failed to provide a FAPE for the 2015-2016 school year. She claims that both the March 27, 2015 IEP and the August 18, 2015 IEPs were procedurally and substantively defective and that that the placements offered by the DOE were not appropriate. The parent asserts that the student requires, among other things, a program that provides and that (“ ”), a non-public school which the student attended for the 2014-2015 school year pursuant to CPSE placement, continues to provide an appropriate program and should be ordered for the 2015-2016 school year. (Ex. III)
The DOE asserts that the CSE provided a substantively appropriate program that was developed in compliance with procedural requirements and that it offered placements that could implement the programs developed. (Ex. IV)
Cases Presented
An attached list specifies the documentary material entered into the record in this matter.
The DOE presented the testimony of: , DOE
who participated in the August 18, 2015 review; , ,
; , .
The parent presented the testimony of ,
; , , ;
(“ ”), ; and the student’s mother (“the parent”).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A) Facts
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. The relevant testimony is discussed below.
Background
The following is substantially undisputed:
The student is now and presently attends
(“ ”), a non-public school approved by the State Education Department as a school with which the district may contract for the delivery of special education services(“NPS”) in , pursuant to a pendency order in this matter.
(T. 370, 372, Exs. C-1, V ) He is classified as and has been diagnosed with . (Exs. C, Q, R) He , is , and . (Exs. C, D)
The student received various Early Intervention services including per week of by the age of . (Exs. S, Y)
During the 2013-2014 and 2014-2015 school years, the student attended as pursuant to recommendation and placement by the DOE’s
CPSE. (Exs. E, F, HH) When the student started in the program, he was . (T. 446) He ; his ; he , he had , did not and did not . His
. He did not and did not and he did not
. (T. 446)
The student was enrolled in a from September 2013. (T.
437) staff included a who was also a , a and . (T. 437-438) The class had students but the in view of the provision of related services to other students. (T.440) was provided and the student’s data and were constantly reviewed. (T. 439)
At the student required and to and could not
. (T. 455-457) He was not but
; . (T. 456) The student was but the student would
. (T. 457-458)
However, the student made slow but steady progress in the including , , , and and . (T. 455-459, Exs. C, F, CC, DD, EE, FF, GG, HH) The CSE , Ms. , acknowledged that the progress in although slow was very meaningful for this student in view of his challenges.
(T. 157)
A Assessment was conducted on January 15, 2015 by . It was noted that certain tests were intended to be administered but could not be due to . It was recommended that for the student receive and ( ) program. An was referenced. (Ex. Y)
By letter dated January 20, 2015 noted the student’s diagnosis and recommended, among other things, continuation of
. (Ex. W)
By letter dated January 20, 2015, ,
, who was treating the student,
“ ” recommended that the student remain in an program and in his then current school ( ). (Ex. V)
By letter dated January 22, 2015, ,
, , , recommended, among other things, that the student be placed in a based educational program. (Ex. U)
The CSE convened for the student’s review on March 27, 2015.
(Ex. D) Participants were: a DOE , a DOE , a district representative, the , the student’s and the student’s parents. The student’s disability classification was . The CSE recommended for the 2015-2016 SY a program (
with a and
(“ ”) ( ), (“ ”) ( )
(“ ”) ( ). (Ex. D) With regard to the , the CSE noted
, , , , and . (Ex. D)
The parents disagreed with the March 27, 2015 IEP. The student’s mother had visited about 13 schools prior to that review. (T. 522) The DOE recommended ( ) which the parent rejected as not appropriate. (T.
518, Exs. K, L, A) That school’s testified in this proceeding. She was not familiar with , had no knowledge with regard to and acknowledged that the school . (T. 289-290, 300, 296-297) Some staff, however, have some training in . (T. 45)
The DOE thereafter recommended a , a placement that the parent had previously visited. (T. 518-519, 522, Ex. 1) The parent again visited that school. She observed, among other things, that and was informed, among other things,that it did not offer an program and that none of the teachers was certified or trained in . (T. 510-511, 519-525) The parent rejected that school. (Ex.
1) That school’s testified in this proceeding. His sole knowledge of this student was through the IEP. (T. 210) He stated that the school did not employ or have a on staff but that it and some teachers were “ ” through some work but not board certified. (T. 211-212, 218, 238, 246) Students were placed in classes according to and . (T. 223) The classes were . (T. 227)
A Evaluation was conducted by on May 16, 2015 and it was again recommended that the student’s then current services continue. (Ex. S)
On July 14, 2015, conducted a
Evaluation of the student. (T. 319, Ex. Q) has a Ph.D in
(“ ”) (T. 316-317)
. (T. 317) Although the relationship between and is controversial,
. (T. 318) The student had previously been diagnosed with and confirmed that. (Exs. Y, W, Q)
also concluded that the student presented with and ,
, and was . (T. 323, 326-327) The student is and . (T. 324-325)
By letter dated July 31, 2015, the parent requested an impartial hearing. (Ex. A)
The DOE conducted a Evaluation on August 5, 2015. The
DOE evaluator noted that the student’s could not be assessed because the student was unable to , ,
or .
Further, the student did not acknowledge the evaluator’s attempts to engage him. It was reported that he was in the ,
, , , and
. His could not be evaluated. On the
( ) he rated
and it was reported that
. (Ex. P)
The CSE reconvened on August 18, 2015 at the request of the parent.
participated as did the student’s parents. The CSE had never met the student and the evidence indicates that none of the other DOE participants had. (T. 45, 115-116) The CSE considered the March 2015 IEP and certain evaluative material including evaluations and recommendations of various and or . (T. 85, 124-126) informed the CSE that she had substantial experience with the DOE’s programs and that although she had a good opinion of many of those she had seen, that a placement was not appropriate for this student due to (T.173, 337)
Further, she informed the CSE that the student required and which were not being provided in the proposed program.
(T. 337) The parent concurred and also disagreed with the CSE’s recommendation. (T.
80, 183) There is no evaluative material or recommendation in the record that recommends a program but for the March 2015 IEP and Ms. could not recall if she reviewed anything that made that recommendation. (T. 125)
The CSE again specified the disability classification to be . The program recommended by the CSE was identical to the March 2015 recommendation but for the addition of and the addition of and which had been omitted from the prior IEP. (T. 137-138, Ex. C)
By letter dated September 2, 2015, the parent filed an amended hearing request.
(Ex. II)
Pursuant to pendency order requiring continuation at , from September 2015 the student has been enrolled in a program. The school is . The student’s class has students, , and . The the academic programs and the address , , and as well as . (T. 374-375) A who is a provides and . (T. 368-369) Data is collected and graphed every day by staff trained in appropriate procedure and program changes are implemented whenever the data indicates it is necessary. (T. T. 381-397, Ex. O) Progress is measured by the and . (T. 399) The student has progressed in the program provided at . (T. 404)
B. Conclusions of Law 2
The parent asserts that the DOE failed to provide a FAPE for the 2015-2016 school year. The DOE bears the burden of proof with regard to that issue. Educ. Law
4404[1][c]
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 (A pplication of a Child with a Disability , Appeal No. 04-046; A pplication of a Child with a Disability , Appeal No. 02-014; A pplication of a Child with a Disability , Appeal No. 01-095; A pplication 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. Paw let 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
Record references not in the Background section.
the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see A rlington 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 (W alczak, 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; W alczak, 142 F.3d at 132. 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 asserts, among other things, that the IEP is substantively defective. I agree and find that that the DOE has failed to establish that the program it provided was reasonably calculated to enable this student to make meaningful educational gains.
Accordingly, it failed to provide a FAPE for the 2015-2016 school year. My conclusion is based upon the following findings and conclusions:
It is undisputed that the student has .
provided a program with and but the student’s progress had nevertheless been and he . The DOE Report and the IEP are consistent with the testimony of the staff. However, notwithstanding his , the CSE considered the progress he had made to be very meaningful.
The CSE had before it numerous evaluations and recommendations from familiar with the student all recommending the continuation of student’s then current program, some specifically referencing , and none recommending the program offered by the CSE.. Further, participated in the August 2015 review and stated that the program proposed was not appropriate for this student and that he would not be able to unless was provided.
Ms. characterized her knowledge of as a “ ” and there is no indication that any other DOE participant had even that. (T. 45)
I give no weight to the CSE’s conclusion that the student could in the program and conclude that there was no evidence before the CSE to support that. (T. 70) The inclusion of such as , without quantity/time specifications does not support a conclusion that appropriate would be provided in the circumstances here where there is no indication by the CSE of how much is required.. Further, there is not testimony to support a conclusion that adequate for this student’s needs could be provided with the provided. The was not provided by the CSE for . (Exs. C,D) Finally, I note that although the CSE is not required to specify a methodology, it is not precluded from doing so if a specific methodology is required to enable meaningful educational gains. See R.E. v. NY CDOE, 604 F.3d 167,
193-194 (2nd Cir. 2012); R.K. v. NY CDOE, 2011DOE WL 1131492 (E.D. 2011)
In this proceeding, persuasively testified that the only methodology with which student, with his profile of strengths and weaknesses, could learn was which provided the , type of teaching he required and included . (T. 326-327) Her testimony concerning this student and has not been rebutted. Further her testimony was consistent with the testimony of the coordinator, based upon her personal knowledge of the student over considerable time, as to what was required to enable even limited gains. I find the testimony of the coordinator persuasive and note that it was not rebutted.
In view of the foregoing findings, I do not address the parent’s other claims except to note that I find persuasive and not rebutted ’s testimony concerning the importance, with regard to ability to make educational gains, for students generally and this one in particular and the unlikeliness of finding a sufficiently in a program. It is also noteworthy that the DOE witnesses from each of the proposed placements acknowledged
.
Requested Relief
The parent seeks an order requiring placement in for the 2015-2016 school year. is an NPS which the student attended for pursuant to CPSE placement and continues to attend pursuant to pendency order in this matter. The parent has not asserted that is a unilateral parental placement with which she has contracted and for which she is seeking reimbursement or direct funding pursuant to a B urlington/Carter analysis. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Departm ent of Educ. of M ass., 471 U.S. 359 (1985))
Impartial Hearing Officers have broad authority to grant such relief as they deem appropriate where there has been a violation of FAPE. 20 U.S.C. §§1412[a][1], 1415[i][2][C][iii]; Frank G. v. Bd. of Educ. 459 F.3d 356, 371 [2d Cir. 2006]. However, the sole authority cited by the parent purported to support issuance of an order requiring a placement in a designated NPS is a footnote in Appeal No. 11-105 which suggests I may have authority to do so in certain cases. In this matter, the request for an order directing the DOE to place the student at is denied.
However, the evidence shows that the proposed program is not appropriate for this student and that he requires a program with and necessary related services in a to make meaningful educational gains. The district will be directed to place the student accordingly. I note my findings that the evidence shows that provides a program entirely consistent with those requirements.
Further, the student is familiar with , the school year is almost at an end and the evidence shows that he will benefit from continuity and familiarity.
ORDER
The CSE shall reconvene and shall defer this matter to the CBST to locate a non-public placement that will provide a program in a similar to that provided by . The CBST is directed to specifically consider placement at in view of the student’s need for and his past progress in that program.
Dated: April 15, 2016
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right 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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
PARENT
A Demand for Due Process Hearing, 7/31/15, 4 pp.
B DOE Due Process Response, 8/4/15, 3 pp.
C IEP, 8/18/15, 13 pp.
D IEP ( ), 3/27/15, 13 pp.
E IEP (CPSE), 2/5/15, 11 pp.
F IEP, 1/8/13, 7 pp.
G DOE Confirmation of Receipt of Ten-Day Notice, 8/17/15, 1p.
H Ten-Day Notice of Unilateral Placement, 8/17/15, 1 p.
I CSE Meeting Notice, 8/14/15, 2 pp.
J Letter to ( ) from Parent, 6/22/15, 1 p.
K Emails between Parent and CSE, 6/2015, 5 pp.
L Prior Written Notice, 5/31/15, 2 pp.
M CSE Meeting Notice, 2/26/15, 2 pp.
N Final Notice of Recommendation, 2/5/15, 1 p.
O Authorization of IEP Change, 2/5/15, 1 p.
P DOE Evaluation Report ( ), 8/5/15, 7 pp.
Q Evaluation ( ), 7/14/15, 6 pp.
R ( ), 7/14/15, 6 pp.
S Evaluation ( ), 5/16/15, 4 pp.
T , Parent, 3/3/15, 6 pp.
U Letter From , 1/22/15, 1 p.
V Letter From , 1/20/15, 1 p.
W Letter From , 1/20/15, 2 pp.
X , 1/16/15, 3 pp.
Y Report, Assessment ( ), 1/15/15, 10 pp.
Z , 6/7/12, 2 pp.
AA , 6/6/12, 1 p.
BB , 6/6/12, 2 pp.
CC Progress Report, 6/25/15, 2 pp.
DD Progress Report, 6/23/15, 1 p.
EE Progress Report, 6/19/15,[1] p.
FF Progress Report for IEP Goals, 4/13/15, 3 pp.
GG Progress Report for IEP Goals, 1/7/15, 4 pp.
HH Annual Report, 12/2/14, 2 pp.
II Amended Due Process Complaint, 9/2/15, 4 pp.
JJ Omitted
KK Omitted
LL Omitted
MM Progress Report for Goals and Objectives, 11/6/15, 6 pp.
NN Omitted
OO , October 2015 to January 2016, 8 pp.
PP Progress Report for Goals and Objectives, 1/4/16, 7 pp.
DEPARTMENT OF EDUCATION
IMPARTIAL HEARING OFFICER
I Prehearing Conference Memo
II Compliance Date Extension Decisions
III DOE Closing Memorandum
IV Parent Closing Memorandum
V Interim Order on Pendency, 9/3/15
VI Email re Record Closing
Footnotes
[1] The failure to issue this decision in accordance with regulatory time requirements is acknowledged and regretted. It was occasioned by .
[1] Letter from Mother to (phonetic), 7/29/15 RE: Placement Recommendation at , 1p.