New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156301

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 27, 2016

June 29, 2016

September 19, 2016

Actual Record Closed Date: October 7, 2016

Hearing Officer: Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2016

Parent Advocate – — Parents

Father of Student — Parents

District and Committee Representative — DOE

Served as a General Teacher at the Committee Meeting of — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 29, 2016

Parent Advocate – — Parents

Father of Student (by telephone) — Parents

(by telephone) — Parents

District and Committee Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 19, 2016

Parent Advocate – — Parents

Father of Student — Parents

District and New York City Department of Education Representative — DOE

The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on May 27, 2016; June 29, 2016 and September 19, 2016.

The proceeding was commenced by Parent by correspondence sent on Parent’s behalf by

Educational Advocacy Service to the New York City Department of Education’s Impartial Hearing Office, dated July 1, 2015, and received by the Impartial Hearing Office on that date. The undersigned was notified of his appointment as Impartial Hearing Officer on July 7, 2015. The Transcript of the hearing conducted on September 19, 2016 was received on October 7, 2016, whereupon the Record was closed. The Record Close Date is therefore October 7, 2016.

Parent’s Due Process Complaint (Exhibit A) alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2014-2015 school year, in that District’s Committee on Special Education (C.S.E.) proposed a program for Student that was unable to meet Student’s needs or enable her to receive educational benefits, as well as being procedurally improper. Parent sought reimbursement for the costs incurred as a result of Parent’s unilateral placement of Student at for the 2014-2015 school year.

Hearings in this matter were scheduled to be conducted on September 25, 2015;

December3, 2015; and March 9, 2016. However, in each case, those hearings were adjourned at the request of Parent’s Advocate due to the unavailability of witnesses. On

May 27, 2016, the hearing commenced with the submission of District’s case. Parent commenced her case on June 19, 2016 with the presentation of the testimony of , Student’s teacher of at during the 2014-2015 school year. However, Parent was unable to conclude Parent’s case on that date. The case was, however, concluded on September 19, 2016, with the receipt of testimony by Student’s father.

Student is presently of age, having been born on . However, at the time District’s C.S.E. met on January 14, 2014 to prepare Student’s Individualized Education Program (I.E.P.) for the 2014-2015 school year, Student was of age and in the at

.

As previously noted, District’s Committee on Special Education (C.S.E.)

convened on January 28, 2014 to conduct an Annual Review and plan Student’s Special Education program for the 2014-2015 school year. In preparation for such, District had obtained a Progress Report that had been prepared by , dated January 20, 2014 (Exhibit 2) and an Progress Report that had been prepared by , dated January 27, 2014.

The Committee that met on January 28, 2014 was composed of , who served as both the General Education Teacher and District Representative; School Psychologist ; and School Social Worker . Participating by telephone were Parent and , who was Student’s then-teacher at . The Individualizes Education Program (I.E.P.) issued as a result of that meeting classified Student as and recommended that Student receive her special education program in a in a , with a staffing ratio of , together with the Related Services of ,

, ; and

, , , and ,

(Exhibit 1).

After the conclusion of the Committee meeting, a School Location Letter was sent to Parent, dated July 24, 2014, offering Student at placement at , located at (Exhibit 6). By letter, dated August 15, 2014, Parent Advocate wrote to District (Exhibit D), describing such letter as a “10 Day Notice Letter” and advising that parents would enroll Student in the program for the 2014-2015 school year, stating that Parent maintained that the Committee on Special Education had failed to offer their (sic) child a free, appropriate public education. Thereafter, and on September 9, 2014, Student’s father enrolled Student in the 2014-2015 school year program at , signing on that day a Enrollment Contract, committing Student’s father to pay the sum of ) Dollars for such enrollment (Exhibit I) and an additional sum of ( ) Dollars for its provision to Student of certain Related Services (Exhibit H).

Some time thereafter, one of sent to Parent a statement, written upon the School Location Letter that had been sent to Parent by District under date of July 24, 2014, in which is described Parent’s visit to the proffered placement on November 2, 2014 and a rationale for Parent ’s for finding such inappropriate (Exhibit C). Although introduced by Parent at the hearing, there is nothing in the Record before me as to the accuracy of the statements contained therein, as neither

Parent nor Ms. testified in this proceeding. Indeed, there is nothing to establish that the document was sent to District. However, as being written long after the “10 Day Notice Letter” (Exhibit D) and the enrollment by Student’s father of Student at (Exhibit H), it is certainly not entitled to any consideration of Parent’s claim that Student’s I.E.P. could not be implemented in an appropriate manner at the recommended site (Exhibit 1).

As previously noted, Parent, filed her Due Process Complaint (Exhibit A), in which Parent alleged that the I.E.P. was both procedurally and substantively improper to offer FAPE, as a result of which Parent seeks reimbursement for the tuition costs associated with her unilateral placement of Student at for the 2014-2015 school and/or direct payment to for such tuition costs.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim.

Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.

Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York would not be dispositive of a parent’s claim for Case No. 156301 tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). However, as the Supreme Court stated in Burlington (ibid):

“…parents who unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.”

471 U.S. 359 at 374

BURDEN OF PROOF

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parent’s request would cease at that point, for if a district has offered an appropriate program, Parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parent’s unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parent (N.Y.S. Education Law §4404).

Should Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the parent. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement rests upon District.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, exactly what criterion is employed to determine if – or whether – a free, appropriate public education has been provided? It has often been stated that a FAPE is offered to a student when a board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA oftimes resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. Courts and reviewing officers, as well as the United States Congress itself, were concerned with such outcome.

Courts considering that issue therefore ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel

Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Such also resulted in the United States Congress amending IDEA, so as to now require that 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 FAP E, (b)

significantly impeded the Parent’s' 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii];

There have been other judicial, quasi-judicial or regulatory determinations that provide beneficial guidance to my review of the issues presented in this proceeding. The student's recommended program must be provided in the Least Restrictive Environment (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., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 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 (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" (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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (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).

It is this last requirement – that the IEP must be "reasonably calculated to provide some ‘meaningful' benefit" - that will guide my review in this matter.

The actions of the C.S.E. that met on January 28, 2014 were attested to by District’s sole witness . As noted, Mr. had served in that Committee meeting as both the General Education Teacher and District Representative. While

Witness ’s testimony appeared stilted and consisted more in simply reading the provisions of Student’s I.E.P. and explaining why such would be appropriate for Student, I do not fault Witness for the paucity of his specific information, as the Committee meeting – one of many Witness conducts - had occurred well more than two years and four months prior to his testimony. I note that Parent, although stating in the “10 Day Notice Letter” of August 15, 2014, written by Parent’s Advocate, that Parent would seek reimbursement and/or direct payment for Student’s tuition at for the 2014

2105 school year (Exhibit D), had not filed her Due Process Complaint until July of 2015 (Exhibit 1) – almost one year later – and then postponed a number of hearing dates due to

“Witness Unavailability”, so that Witness was unable to testify until May of 2016 – two years and four months after the meeting of January 28, 2014.

Witness testified that the Committee had before it when it met the Evaluation Report of March 11, 2011 (which was not introduced into evidence), the Progress Report provided by Student’s at ; the Progress Report provided by Student’s at , and the information provided by Student’s then- Teacher at . A review of the Committee Minutes of that meeting (Exhibit 4) reflects that most of the information before the Committee came from Student’s Classroom teacher. It was noted that Student was ; that Student’s

; and that Student’s

. The Minutes also noted that Student needed

and (Exhibit 4). As previously noted, the Committee recommended that Student receive her special education program in a class having a staffing ratio of , together with the Related Services of and . It also noted Student’s need to receive

; ;

; ’

; ; and

(Exhibit 1)

While I acknowledge that the Committee might have had more current test data before it, I find that the Committee had before it sufficient awareness of Student’s current levels of performance and sufficient specificity of Student’s needs to properly prepare and recommend a program sufficient to meet those needs. The Committee found it appropriate to place Student in a having a staffing ratio of . In determining

Student’s recommended program in a public school, the Committee is required to follow the provisions of the Commissioner’s Regulations and determine an appropriate placement within the Continuum of Services (8 NYCRR 200.6). An examination of that

Continuum reveals that there is a progression , consistent with the obligation of the Committee to place a student in the Least Restrictive Environment, from a general education setting to placement in a Special Class, when such is needed to meet a particular student’s needs. Here, the Committee bypassed all general education settings, deeming Student’s needs to be of such significance as to warrant placement in a Special Class (8 NYCRR 200.6(h)(4)). Within the category of a Special Class are further, increasingly more restrictive settings, the first – and least restrictive – being a class with a staffing ratio of . Commissioner’s Regulations (8 NYCRR 200.6(h)(4) states that:

“Special class size for students with disabilities:

(i) The maximum class size for those student s whose special education needs consist primarily of the need for specialized instruction which can be best accomplished in a self-contained setting which shall not exceed 15

students…”

I note that Student, while at during the 2014-2015 school year, was in a class of (T.R.91). I also note that, in the opinion of her

Teacher at during that school year, Student required (T.R.86). I find that such confirms the appropriateness of the Committee recommendation of Student’s placement in a with a staffing ratio, as I find that Student’s educational needs can be fully met in such setting.

It is my finding and determination that District has successfully borne its burden of establishing that it offered Student an appropriate program for the 2014-2015 school year – one that was reasonably calculated to provide Student with meaningful educational benefit and sufficient to meet Student’s needs.

Having made such determination, I find it unnecessary to review the appropriateness of Parent’s unilaterally selected placement nor the equities of the parties.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED.

Dated: October 24, 2016

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JW:

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 RECORD ON MAY 27, 2016

A. Parent’s Impartial Hearing Request, dated Parent 7-1-15 (4 pages; Parents)

B. Parent (2 pages; Parents)

C. School Location Letter, dated 7-24-14 Parent (2 pages; Parents)

D. Letter from to C.S.E., dated Parent 8-15-15 (2 pages; Parents)

E. Student’s Schedule (2014-2015) Parent (2 pages; Parents)

F. Report by, dated Parent 1-6-15 (2 pages; Parents)

G. Student’s Report Card from Parent – – 2014-2015 School Year (2 pages; Parents)

H. Statement of Related Service Costs at Parent (1 page; Parents)

I. 2014-2015 Enrollment/Tuition Contract, Parent dated 9-3-14 (4 pages; Parents)

J. Affidavit by, sworn to on 9-17-15 Parent (1 page; Parents)

K. Student’s Attendance Record – 2014-2015 Parent (1 page; Parents)

L. Parents’ 2013 Federal Income Tax Return Parent (2 pages; Parents)

M. Application by Parents for Automatic Parent Extension of Time to File (1 page; Parents)

1. Student’s I.E.P. as developed by District’s C.S.E. on 1-28-14 (15 pages; DOE)

2. Progress Report, dated 1-2014, by (1 page; DOE)

3. Progress Report by, dated 1-27-14 (2 pages; DOE)

4. Minutes of the C.S.E. Meeting of 1-28-14 (2 pages; DOE)

5. School Placement Request by C.S.E. to (3 pages; DOE)

6. School Location Letter, dated 7-24-16 (1 page; DOE)

DOCUMENTATION ENTERED INTO RECORD ON JUNE 29, 2016

None

DOCUMENTATION ENTERED INTO RECORD ON SEPTEMBER 19, 2016

None