New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 161824

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 23, 2016

October 14, 2016

Actual Record Closed Date: December 12, 2016

Hearing Officer: Edgar DeLeon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 09/23/16 10/14/16 (T) CSE Representative DOE 09/23/16

(T) DOE 10/14/16

(T) DOE 10/14/16

Attorney PARENT 09/23/16

10/14/16

Mother PARENT 09/23/16

10/14/16

(T) PARENT 10/14/16

On August 1, 2016, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a student attending a and the New York City Department of Education (“DOE”) - Home District: , Service District: , concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on September 23, 2016 and October 14, 2016. The parties opted to submit written closing statements which were due on November 11, 2016. After requesting extensions of time, the closing statements were received on November 30, 2016. (T-327, D-7 & P-B) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’ has been denied a “free and appropriate public education” (“FAPE”) for the 2014-2015, 2015-2016 and 2016-2017 school years, on procedural and substantive grounds. (P-A) In relevant part, at the impartial hearing, the Parent is seeking the following relief:

(a) Placement and Program. A more restrictive placement is in a more specialized school program in a nonpublic school to address the specific recommendations in the student’s private . (P-Q)

(b) Evaluation. An independent, comprehensive evaluation by a certified .

(c) Evaluation. An independent, comprehensive evaluation. (Parent Rescinded this Request at the Hearing - T-23)

(d) An order requiring the Committee on Special Education (“CSE”) to promptly reconvene once all the evaluations are ordered and completed.

(e) Compensatory services. Compensatory, or make-up services to compensate for the DOE’s failure to provide appropriate instructional services during the 2014-2015, 2015-2016, and 2016-2017 school years; specifically, the individualized program developed by the or other similar providers of whereby the DOE is ordered to pay for the ( ), ( ), and

(at the rate of an hour), and provide

.

(f) Related Services Compensatory services. Compensatory, or make-up services , specifically at the enhanced rate as well as of (i) services at the enhanced rate ( an hour), (ii) services at the enhanced rate ( an hour)

in an amount to be determined.

(g) Educational Records. A complete set of the student's educational records.

(h) Parent's Attorney Fees. An order requiring the DOE to pay the Parent's attorney fees and costs in connection with representation in this matter.

(i) Any further relief that the Hearing Officer may deem just and proper to ensure the provision of a free and appropriate education to the Student.

THE DOE’S CASE

The DOE argues that the student in this case is a “ ” who . (T-34) The agency asserts that it provided the student with a FAPE for the 2015-2016 and 2016-2017 school years, and adds that the student did not have an IEP during the 2014-2015 school year because she was not designated for special education.

(T-35-6)

The DOE called (3) witnesses to testify on its behalf and submitted (7) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is a . (T-51) She acted as the District Representative at the student’s IEP meeting in June of 2016. (T-53) The meeting was an “ ” and was attended by herself, the classroom teachers, the and the Parent. (T-54) At the time, according to the “ ”, the student . (T-58-9) According to the , the student . (T-59-60) However, her indicated that she . (T-60)

The provided the CSE with a copy of the teacher report, as well as their proposed drafted goals for the student. (T-72 & D-4) The teacher report indicated that

,

. (T-73 & D-4) There were no concerns concerning the student’s . (T-73) There was also no concern with the student’s progress that would warrant a more restrictive setting. (T-74) The student’s mother did not present any concern with the student remaining in the . (Id.) The student’s mother was in agreement with the recommendation. (T-74-5)

The witness testified that the student’s mother did inform them that an outside evaluation of the student had been conducted. (T-75) However, no such report was furnished or provided to the CSE. (Id.) Neither was there any discussion about “ ” at the annual review. (T-76) The “ ” told her that the student’s mother had requested a evaluation, but had not provided consent for the evaluation. (ID.) Instead, the student’s mother had insisted on obtaining a private evaluation for services. (Id.)

On cross examination, the witness testified that the CSE did not provide the Parent with the teacher’s report before the meeting. (T-79-80) However, they did provide the Parent with “ ” (T-80) The student , . (T-83-4) However, when you look at the student’s , she which indicates progress. (T-85)

The witness further testified that the student’s goals were provided by her and the Parent did not request a evaluation at the meeting. (T-87-8) They did not refer to any of the student’s previous evaluations at the meeting. (T-90) She did not do a comprehensive review of the student’s previous IEP.

(T-91)

On re-direct examination, the witness testified that there was no “ ” at the meeting because it was an “ ” that does not require one unless there is a new evaluation to consider. (T-92) On re-cross examination, the witness conceded that the independent private was provided to their offices at the conclusion of the meeting. (T-94) She reviewed the independent evaluation but did not call another CSE meeting. (T-95) At that point, school was still in session. (T-96)

The DOE’s second witness is a . (T-123) She

previously worked as a and as an . (T-

125-6) At the June 4, 2015 IEP meeting she is “ ” who was the . (T-132-4 & P-B) The meeting was an “ ” (T-136) She cannot recall the mother’s exact concerns at the meeting. (T-137) The student was deemed an “ ” who needed to be evaluated . (T-139)

The student received a evaluation. (T-140 & P-P)

On cross examination, the witness testified that she never met the student. (T-

143) Nevertheless, she did an of the student which she did not discuss with the Parent. (T-145) She did not personally go through the student’s progress reports, report or report with the Parent at the June 4, 2015 IEP meeting. (T-150) Neither does she believe that the “ ” was reviewed at the IEP meeting. (T-155) Neither can she recall discussing the evaluation’s recommendation that should be considered for the student. (T-156) The witness conceded that the IEP does not even recommended the student for “ ” (T-157) The student was at the time. (T-158-9)

The witness further testified that the from the student’s school did not feel that she was a candidate for . (T-160) She could not recall why they did not give the student a goal for . (T-162)

Although the student was , she cannot recall

why they did not create a goal for that issue. (T-163) The student was not given

, because and

. (T-166)

On re-direct examination, the witness contradicted herself and testified that all the reports that were provided to the team and are reflected in the student’s IEP are reviewed by everyone at the meeting. (T-168) There was no re-cross examination. (Id.)

The DOE’s third and final witness is the ’s “ ” (T-172) The uses the are the basis for our curriculum, with and . (T-173-4) She observed the student and “ ” she did her assessment for the first year at the . (T-176) The student was . (T-179) Later the witness stated that she “ ” for the student and did not recall anything in specific. (T-184)

The witness testified that the student was . (Id.)

However, the student and

. (T-185 & D-5) She never discussed the student’s progress with the student’s mother. (T-192) The student in the 2014-2015 school year. (Id.) The student . (T-200) During the 2015-2016 school year the student made improvements, but . (T-202) The teacher report was reviewed at the IEP meeting. (T-205-6 & D-4)

The witness testified that the student’s mother was not opposed to their recommendation. (T-208) During the 2015-2016 school year, the student made significant progress, but still struggled with . (T-209) The teacher was still concerned about her progress. (T-209-10) During the 2016-2017 school year, the student . (T-210) She would probably not recommend because .

(T-215-6)

On cross examination, the witness testified that the student’s IEP indicates she should be in an , but the did not think that and placed her in a . (T-222) However, the student is not progressing there. (Id.) The student and is now (T-

223) The student’s and were not present at her IEP meeting in June of 2016. (T-223-4) She cannot recall anybody discussing at the IEP meeting. (T-225-6) Neither did they discuss .

(T-227) The Parent also was not invited to attend the . (T-

230) She does not know why the student’s June 2016 IEP doesn’t say

. (T-232)

There was no substantive testimony developed during the witness’ re-direct or re-cross examination. (T-234-40)

THE PARENT’S CASE

The Parent argues that “ ” of the student’s IEPs have recommended placement at a . (T-38) At the student’s June 13, 2016 IEP meeting, the CSE recommended an and no related services. (T-38-9)

The student’s Evaluation dated May 8, 2015 found the student , and recommended . (T-

39) At the student’s IEP meeting on June 4, 2015, it was noted that

, and

. (T-40) During the 2015-2016 school year, the student failed to make meaningful progress and . (T-41-2)

The Parent argues that the student’s private

diagnosed her with and that was rule out. (T-42-3) The recommended that the student be placed in a

,

, and

. (T-43) The student should also receive services, and . (Id.) The Parent further argues that in a letter dated April, 2016, she specifically requested an independent evaluation. (T-46)

The Parent called (2) witnesses to testify on her behalf and submitted (28)

documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness gave her direct testimony by affidavit. (P-AA) She is the and testified that several tests were administered to the student:

the , the

, the , the

, the (), , and . (Id.)

As a result of the above-mentioned tests, found the student . The student was found . (Id.) Based on the totality of the testing, she would characterize the student’s

. (Id.)

The witness further testified that in order to and allow her to progress , she determined that it would take approximately . (Id.) This number was calculated by looking at the student’s strengths and weaknesses, as determined by their testing in , , , , and , and then making a determination as to how many hours it would take to allow the student to progress . (Id.)

. (Id.) The recommended is necessary to allow the student to make anything more than trivial academic advancement. (Id.) She prepared a “ ” specifically for the student based upon their findings regarding . (Id.) The is informed directly by the results of the student’s evaluations noted above, and t

. (Id.) The witness concluded

her direct testimony by affidavit as follows:

(P-AA)

On cross examination, the witness testified

. (T-244) The student’s IEP was considered in establishing her “ ” (T-248) The student was tested at the in April of 2016. (T-249)

. (T-252)

. (T-254) The only that they administer is the . (T-

255) . (T-

268)

On re-direct examination, the witness testified that there is no prescription as to the intensity of the schedule. (T-273) There have been students who were inappropriate for their program because they were either , or . (T-275-6) There was no substantive testimony developed during the witness’ re-cross examination. (T-276-8)

The Parent’s second and final witness is the student’s mother. (T-279) She testified that she did give consent for the student to be evaluated. (T-286 & P-I) She also attended the student’s June 4, 2015 IEP meeting and requested a evaluation many times. (T-287-8) For the 2015-2016 school year, . (T-

290) The told her that

. (T-292-3) for the student was never discussed. (T-294) She provided the independent evaluation at the June 2016 meeting because it took a couple of months to prepare. (T-296) The student is currently in a class with and is still struggling. (T-297-8) The student is not an “ ” (T-301) The student’s first is . (T-302)

On cross examination, the witness testified that the student began to have difficulties in the . (T-307) Every day the teacher would tell her that the student was not doing well, but the teacher would not endorse giving the student . (T-310-1) When she was asked to consent to evaluations, she told the that she was waiting for her independent report. (T-317)

There was no substantive testimony developed during the witness’ re-direct and there was no re-cross examination of the witness. (T-319-21)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck

Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch.

Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See 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] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.

2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch.

Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist.

of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-

71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

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. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S.

at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch.

Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.

2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty

v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-

120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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."

(See 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, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.

(See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (SRO No. 04-049)

I first turn to the question of whether the DOE offered the student a FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years. The DOE argues that the student did not have an IEP for the 2014-2015 school year because she was not designated for special education. (T-35-6) “ ” were put in place but the student significantly struggled during the 2014-2015 school year and . (T-185, 192, 200 & D-5)

Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See 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. (SRO No. 08-016) Accordingly, the burden to show if it offered the student a FAPE for the 2014-2015 school year falls squarely on the DOE at the impartial hearing.

The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. (See Handberry v. Thompson, 446. F.3d 335, 347-48 [2nd Cir. 2006], A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd, 2010 WL 1049297 [2nd Cir. March 23, 2010], see also 20 U.S.C. § 1412[a][3][A], 34 C.F.R. § 300.111 and 8 NYCRR 200.2[a][7])) The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services." (20 U.S.C. § 1412[a][3], 34 C.F.R. §

300.111[a][1][i], Forest Grove, 129 S. Ct. at 2495, see 20 U.S.C. § 1412[a][10][A][ii], see also 8 NYCRR 200.2[a][7] and New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004])) The “child find” requirements apply to “children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade.” (34 C.F.R. § 300.111[c][1], see 8 NYCRR 200.2[a][7])) To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children. (SRO Nos. 10-009, 09-132,

07-062, 05-090, 04-054, 01-082 & 93-41)

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. (SRO Nos.: 11-092, 11-094, 05-

127, 05-040, 03-043 & 01-082) A district's child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” (See New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001] and SRO Nos.: 06-092, 06-087, 05-127, 05-040, 04-087, 04-037, 03-043, 02-092 & 01-082)

To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate. (See A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007])) States are encouraged to develop “effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education.” (See Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008], referencing 20 U.S.C. § 1400[c][5])) Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program. (8 NYCRR 200.4[a])

The DOE interventions clearly did not work, because the student continued to struggle and . (Supra) While there was testimony that the Parent did not consent to the student having a evaluation, that came from the discussing the student’s IEP meeting in June of 2016. (T-53, 76 & 317)

The record shows that the DOE did not evaluate the student until May 8, 2015, almost at the end of the 2014-2015 school year. As noted above, there was no IEP created for the student for the 2014-2015 school year. (Supra) Accordingly, I find that the DOE violated the “No

Child Left Behind” law and denied the student a FAPE for the 2014-2015 school year.

Turning towards the 2015-2016 school year, I note that the relevant IEP dated June 4, 2015, was submitted in evidence by the Parent, not the DOE. (P-B) The testifying on behalf of the DOE was not sure if there was a at the meeting. (T-132-4 & P-B) She did not discuss her “informal observation of the student with the Parent. (T-145) Neither did she personally go through the student’s progress reports, or evaluation with the Parent at the June 4, 2015 IEP meeting. (T-155) She did not recall discussing the evaluation’s recommendation that the student should receive . (T-156) Goals addressing the student’s and for were not included in the student’s IEP for the 2015-2016 school year. (T-162-3)

I did not find the testimony of the witness credible as later, on re-direct examination, she testified that “ ” (T-168) It appeared to the undersigned that the witness, who testified by telephone, had no actual recollection of the student’s June 4, 2015 IEP meeting and was drawing conclusions from the IEP she was at the time her testimony was being given.

As noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (34 C.F.R. §

300.320[a][1] and 8 NYCRR 200.4[d][2][i]) Additionally, the IDEA sets forth procedural safeguards that include providing parents an opportunity “

" (See 20

U.S.C. § 1415[b][1]) Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. (See 34 CFR 300.322; 8 NYCRR

200.5[d]) Here, the record indicates that the failure to discuss the student’s various reports and evaluation, either as a whole by the CSE, or specifically with the Parent, denied the Parent an opportunity to meaningfully participate at the June 4, 2016 IEP.

What’s more, the student was not provided with services, even though the DOE’s own Evaluation recommended she receive those services. (P-B, P-O & P-P)

For the reasons stated above, I find that the CSE failed to meaningfully discuss and consider the student’s various reports and evaluations and denied the Parent the opportunity to meaningfully participate at the June 4, 2015 IEP meeting. Accordingly, I also find that the student was denied a FAPE for the 2015-2016 school year.

Turning towards the student’s 2016-2017 school year, the relevant IEP is dated June 13, 2016. (D-1 & P-C) Here, the acting as the district representative, first denied getting the student’s independent for the CSE meeting, but later conceded that it was provided to her at the end of the meeting.

(T-75 & 94) She acknowledged that the student’s mother had informed them that an outside evaluation of the student had been conducted. (T-75) Even though school was still in session, the CSE did not reconvene to consider the independent

. (T-95-6) Neither did the CSE team review the student’s previous evaluations, or do a comprehensive review of the student’s previous IEP. (T-90-1)

The DOE’s Evaluation recommended that the student receive . (P-P) So does the student’s independent . (P-Q)

Nevertheless, the district representative testified that there was no discussion about “ ” at the IEP meeting. (T-76) In developing the recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. (See SRO No.

14-101, citing 34 CFR 300.324[a] & 8 NYCRR 200.4[d][2]) Here, the record indicates that did not occur and as a result, the IEP does not reflect the results of evaluations to identify the student's needs. (34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i])

Accordingly, I also find that the DOE has denied the student a FAPE for the 2016-2017

school year.

Having found that the DOE has denied the student a FAPE for the 2014-2015, 2015- 2016 and 2016-2017 school years, I now turn to the question of whether the Parent’s recommended program and services are appropriate for the student. Here, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (Gagliardo and Frank G., supra)

The most recent evaluation for the student is her independently obtained dated February 29, 2016. (P-Q) The evaluation makes the following recommendations:

(P-Q)

The requested by the Parent thoroughly evaluated the student and made the following findings and recommendations: The student is and has . (P-AA) The student’s . (Id.) In order to and allow her to progress , it would take approximately such as those they employ at .

(Id.) The recommended is necessary to allow the student to make anything more than trivial academic advancement. (Id. Given the student’s results on the , the student needs which will take her approximately

( to achieve. (Id.) is part of the .

They propose and have to

. (Id.)

The findings of the student’s and the testimony of the and her recommendations, were completely uncontroverted by the DOE. (T-

244-68) (T-244), the record

supports a finding that its program mirrors many of the ’s recommendations and will provide the student with educational instruction specially designed to meet her unique needs, supported by such services as are necessary to permit her to benefit from that instruction. (Supra) Accordingly, I find that the recommended program is appropriate for the student.

Absent the Parent’s admission that she did not consent to having the student evaluated, there is nothing in the record that sustains a finding that the Parent has not otherwise cooperated with the CSE. However, the Parent’s failure to consent to the student’s evaluation by the DOE is not to be taken lightly. As noted above, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for Case No. 161824 evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.

(Supra) In the absence of evidence demonstrating that the 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 tuition reimbursement. (SRO No. 04-049)

Here, the Parent did attend the student’s IEP meetings and provided the CSE with the student’s independent which the CSE did not consider. The

DOE was not prevented from producing IEPs for the student which it argued at the hearing were appropriate and offered the student a FAPE. Certainly, the DOE received sufficient notice to challenge the Parent’s DPC and her requested relief at the impartial hearing.

Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

There is no request for reimbursement of the independent paid for by the Parent’s health insurance. (T-321-2) There is also no amount of specifically addressed on the record. (T-322) There is no specific school recommended in the student’s independent , but there is a description of a “ ” (T-323 & P-Q) State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer. (See 8 NYCRR 200.5[j][5][v])

Accordingly, I decline to award any requested relief not addressed or supported by the record.

NOW therefore, it is hereby

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and specifically address the specific recommendations in the student’s private , as well as the ordered below, and any related services that she should receive for the remainder of the 2016-2017 school year; and it is further

ORDERED that the Parent’s request for an independent, comprehensive evaluation by a certified is denied and that the Parent and DOE will cooperate to immediately conduct a comprehensive evaluation of the student; and it is further

ORDERED that the independent, comprehensive

requested by the Parent is denied because the Parent specifically rescinded this request at the hearing (T-23); and it is further

ORDERED that the Parent’s request for compensatory, or make-up services by the is granted and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE is ordered to pay for the ( ), her ( ), and (at the rate of an hour) by the , as well as provide

; and it is further

ORDERED that upon it receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay the cost of the student’s receipt of at a rate not to exceed per hour; and it is further

ORDERED that the Parent’s request for compensatory, or make-up services , specifically with at the enhanced rate as well as of (i) services at the enhanced rate ( an hour), (ii) services at the enhanced rate ( an hour)

in an amount to be determined is denied at this time; and it is further

ORDERED that any of the additional relief requested by the Parent is either denied or is outside the scope of the IHO’s authority.

Dated: December 28, 2016

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL:

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

Number/Letter Title Dated For # of Pages

01 IEP 06/13/16 DOE 30

02 05/08/15 DOE 02

03 CSE Meeting Notice 06/06/16 DOE 03

04 Teacher Report 06/02/16 DOE 04

05 10/19/14 DOE 02

06 Progress Report 06/08/16 DOE 02

07 Closing Statement 11/30/16 DOE 13

A Demand for Hearing 08/01/16 PARENT 10

B IEP 06/04/15 PARENT 11

C IEP, Incomplete Document 06/13/16 PARENT 09

D Request for an IEP 03/17/15 PARENT 02

E Request for Records 04/22/15 PARENT 01

F Assessment Planning 050/8/15 PARENT 01

G Interpreting Timesheet 05/08/15 PARENT 01

H 05/08/15 PARENT 01

I 05/08/15 PARENT 01

J 05/15/15 PARENT 04

K CSE Meeting Notice 05/28/15 PARENT 03

L Prior Written Notice 06/16/15 PARENT 03

M Request for IEE 04/21/16 PARENT 01

N Prior Written Notice 06/22/16 PARENT 02

O 05/08/15 PARENT 02

P 05/08/15 PARENT 05

Q 02/29/16 PARENT 02

R 04/23/16 PARENT 58

S Progress Report 12/15/13 PARENT 02

T Progress Report 03/15/14 PARENT 02

U Progress Report 06/18/14 PARENT 02

V Progress Report 12/16/14 PARENT 02

W Progress Report 03/12/15 PARENT 02

X Progress Report 06/26/15 PARENT 02

Y Progress Report 11/20/15 PARENT 02

Z Progress Report 03/11/16 PARENT 02

AA Affidavit of 10/06/16 PARENT 09

BB Closing Statement 11/30/16 PARENT 2