New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156422

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 30, 2015

October 16, 2015

October 22, 2015

Actual Record Closed Date: January 4, 2015

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 30, 2015

Esq. Attorney (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 16, 2015

Esq. Attorney — Student

Legal Intern — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 22, 2015

Esq. Attorney — Student

Parents

(via telephone) — Student

(via telephone) — Student

District Representative — DOE

(via telephone) — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by and , the Parents (“Parents”) on behalf of , the student (“Student”), through their attorney, , Esq. from the Law Offices, by filing a Due Process Complaint dated July 6, 2015.

The Parents are alleging that their son, , was denied a free and appropriate public education (“FAPE”) for the 2015 – 16 school year and are seeking

, per week for per session, ;

, per week for per session

; as well as compensatory services.

There were three (3) days of hearings in this matter. Hearings were conducted on July 30, 2015, October 16, 2015 and October 22, 2015. Extensions were granted in this case making the final compliance date January 12, 20161. Briefs were prepared by the parties and were due on November 30, 2015. A list of Exhibits is attached as Exhibit A.

The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND:

This case involved a student. During the 2015-16 school year, attended the (“ ”) where the Student was placed by the District.

With respect to the 2015 – 16 school year, an Individualized Education Program (“IEP”) was developed on April 20, 2015. Pursuant to the April 20th IEP2, the following recommendations were made:

1. , , , per

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that they were in accordance with the requirements of due process. Accordingly, requests for extensions of the compliance date were granted. Tr. 111; IHO-I.

It should be noted that the Parent testified that they never received a copy of the April 20, 2015 IEP. D-1.

week, each time in a , beginning April 20,

2015;

2. , , per week, each time,

, from April 20, 2015 through

June 30, 2015;

3. , , per week, each time, beginning April 20, 2015;

4. , , per week, each time, beginning April 20, 2015;

5. , per month, per time, beginning April 20, 2015;

6. , , per week, each time, beginning April 20, 2015;

7. , , per week, each time,

, from April 20, 2015 through

June 30, 2015;

8. , , per week, each time, beginning April 20, 2015; and

9. , , per week, each time, beginning April 20, 2015.

The Parents filed a Due Process Complaint on July 6, 2015. P-A. I was appointed as an Impartial Hearing Officer on July 6, 2015.

POSITION OF THE PARTIES

Parents’ Case

The Parent called three (3) witnesses, , and the Parent, and placed eight (8) documents in evidence. P-A - P-H.

Ms. testified that she has a Master’s Degree in and is licensed and certified by the and also has her . Tr. 66. She works as a for . Tr. 67. She

participates in continuing education courses and also has training in . Tr. 67.

is a program which is used for children with

. Tr.

67.

Ms. provides to a week for each time. Tr. 68. The Student can

and

. Tr. 68. He is able to

. Tr. 68. He is also able to

. Tr. 69. She said that he

is, at times, . Also, and is unable to . This affects and

. Tr. 69.

Ms. testified that most of the goals she created pertain to the , and for the purpose of and for . The goals she created are in the progress report she prepared for P-F.

is making progress with respect to these goals which are included in his IEP. Tr. 71.

In order to measure progress, she takes data on how he is able to complete these goals

. Tr. 72.

Ms. recommended to the CSE that continue to get so that he receives including and . Tr. 72. She believes these are important

. Tr. 72. She was paid by for her work

with the Student based on an RSA. Tr. 73. She stated that he still requires in order to make meaningful progress. Tr. 73. Ms.

indicated that she was not at the CSE meeting for the 2015-16 school year. Tr. 74.

On cross examination, Ms. testified that she went through an intensive training program for in August of 2013. Tr. 75. She also testified that she is familiar with and that has but now he’s

. Tr. 76.

Ms. testified that he is making nice progress with and as well as and and . Tr. 77. She testified that she thinks she has been in contact with his teacher but is familiar with what is doing to meet his by and

. Tr. 78.

The next witness was . Ms. has a Master’s Degree in and has a New York State license. Tr. 79 – 80. She is employed at , an agency that provides . Tr.

80. At , she . She has been treating

since 2009, per week for each time

. Tr. 81. ’s services are delivered in a because he has and

. Tr. 82.

Presently, is working on , , and to . Tr. 82. He has made good progress with and he is . Tr. 82. They are also focusing on

. Tr.

82. Ms. testified that

. Tr. 83.

Ms. testified that she included specific goals in her report dated April 15, 2015 which was presented to the CSE. Tr. 83. She also testified that she participated in the April 20, 2015 IEP meeting. Tr. 84. At the meeting, she recommended that continue at a frequency of per week, each time , and that recommendation was back-up by his . Tr. 84. Ms. made that recommendation because she feels that the are crucial to his progress, not only because he benefits from additional services but also because it helps him to and . Tr. 85.

At the meeting, Ms. was only on the phone for part of the meeting. She was aware that the , agreed with her recommendations and that her report was presented at the meeting. Tr. 86. As a result of the goals that Ms. created in her report, is making slow and steady progress. She measures that progress by taking data and she compares her notes from previous sessions to his performance during present sessions. Tr. 87. He is specifically making progress in

. Tr.

87.

Ms. believes in her professional opinion that continues to require in order to make meaningful educational progress. Tr. 88 89. She is being paid for her services through an RSA.

On cross examination, Ms. testified that she did not recall if she spoke to the provider prior to the April 20, 2015 IEP meeting but she communicates back and forth through the Parent. Tr. 90.

The last witness was the Parent. She stated that is and currently attends , which is a and was placed by the District. Tr. 92. He has been attending since but this particular school since he was . Tr. 92. He has a classification of . Tr. 92.

They first discovered that had a disability when they started noticing

. Tr. 92. They then had him evaluated

and he started including , , , and . Tr. 93. When he , he attended the and received , , and , . Tr. 93. The Parent testified that he received the services because . Tr. 93. In addition, he has a and and needed . Tr. 94.

The Parent testified that when he transitioned from CPSE to CSE, his after school service recommendations continued. Tr. 94. He lost services when he was and the were reduced but he has maintained the level of services in the 2013 IEP of since he was

. Tr. 94.

The Parent testified that the last agreed upon IEP was in 2013. P-C. During the 2014-15 school year, was always in agreement that the Student required the outside services. The Parent, however, stated that the told her that the decisions had already been made before the CSE meeting and that the Student would not receive . She stated that the Department of Education had given them a policy that if a child attended a , they were not able to receive and still be accepted at the . Tr. 96. In order to get for the 2014-15 school year, the Parent got a Pendency Order and then received an Order providing him with the services he had gotten in 2013. Tr. 96; P-B.

The Parent testified that a meeting took place in April of 2015. She was told that the purpose of that meeting was to put the services on the IEP that the hearing officer had ordered and the meeting would also serve as his annual review. Tr. 97. Everyone at the meeting agreed, including the and that he needed to continue with . In this regard, the Impartial Hearing Officer had mandated and given the three weeks before the CSE meeting and put it on his IEP for the 2014-15 school year but did not put it on his IEP for the 2015-16 school year. Tr. 98. At the meeting, the was not available; however, the was there. Tr. 99. The Parent testified that she spoke to the at the meeting. Tr. 99. The agreed that she is not certified and has no knowledge of and is not a . She also stated that they do not have the ability to work on . Tr. 99. The Parent stated that . She indicated that

. Tr. 99.

The Parent stated that the and and communicate through the Parent. She stated that she speaks to the teacher four times a week and there is not a week that goes by that the don’t know what he is doing in school so that different things can be worked on at different times and it’s worked on in a complimentary way so he gets what he needs. Tr. 100. The Parent testified that she provided the CSE with the goals and report from the at the meeting. Tr. 100. She stated that they did not discuss the report or the goals at the meeting. Tr. 100. The at the meeting felt he should continue with his current mandate. Tr. 101. With respect to , the discussed her goals and the agreed that the goals needed to be addressed and could not be addressed at . Tr. 101. The Parent testified that only Ms. and the Parent were present for the entire meeting. Ms.

’s response to the was that she was not putting them on the IEP.

Tr. 102. At the end of the meeting, Ms. , the chairperson came down to the meeting and the Parent expressed her disappointment and surprise at the results of the meeting. Tr. 103. Ms. stated that they were not going to put the on the 2015-16 IEP. Tr. 104. The chairperson said she did not feel comfortable putting them on the IEP without having an or from the District at the meeting and she would set up a reconvene to do that. The Parent testified that she never got any notification from the CSE after the meeting. Tr. 104. The

Parent also stated that she never saw the IEP dated April 20, 2015 until the hearing started. Tr. 105; D-1. She stated that the goals provided by the were not included on the IEP. Tr. 105. The Parent also did not receive a Prior Written Notice before the start of this hearing. D-9.

The Parent testified that she believes the Student still requires . is and is with . He needs the . Tr. 108. In addition, he needs the for and . Tr. 109.

. Tr. 109. He also has

and

. Tr. 110.

District’s Case

The District called one witness, , and place ten (10) documents in evidence. D-1 – D-10.

Ms. has been employed by the District for the past two (2) years. She is presently a at and has been there for a week. She conducted the IEP meeting for for the 2015 – 16 school year as chairperson when she was employed by CSE . She stated that she recommended at that meeting that continue at his current placement in a but she didn’t remember the ratio. Tr. 52. She stated that she recalled reviewing a and an . Tr. 53. She said that at the meeting, the Parent did not agree with the program recommendation. Tr. 54. Ms.

stated that they considered services but rejected them because they reviewed all of the goals provided by the service provider and they believed they were able to be set . Tr. 54. She did not recall if any other related services were considered at the meeting. Tr. 55.

On cross examination, Ms. testified that she never evaluated or observed the Student. She was aware that he was receiving but was not aware whether he was receiving . Tr. 55.

She remembered that a was provided by the Parent from ’s . She does not recall what her recommendations were though she recalls that he needed and and .

Tr. 56-57. She does not however, recall why they weren’t included in the IEP. Tr. 56.

She also stated that she reviewed the goals provided by the at the meeting but doesn’t recall why they weren’t included in the IEP. Tr. 58.

She also does not recall the indicating that there was and stating that continues to need

. Tr. 58.

Ms. recalls the Parent calling the CSE chairperson to participate in the meeting due to the fact that she was unhappy with the recommendation. She called her at the end of the meeting. Tr. 59. Ms. said that she thought this was not the final IEP meeting and that there was to be a follow-up meeting. Tr. 60.

FINDINGS

Two purposes of the 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 individual 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 (20 U.S.C.

1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the 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]). 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., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; 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 (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

A school district offers 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 parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]

[citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in Case No. 156422 the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see 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]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; 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).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

First, the Parent testified that she did not receive a final IEP for the 2015-16 school year and never saw the IEP dated April 20, 2015 until the hearing commenced. Tr.

105; D-1. The District’s only witness, Ms. testified that she thought the April 2015 IEP was not the final IEP and that there was to be a follow-up CSE meeting. Tr. 60. This was corroborated by the Parent. The Parent testified that at the end of the April 20, 2015 CSE meeting, the CSE chairperson, came down to the CSE meeting and stated that she did not feel comfortable putting the related services on the IEP without having the District’s at the meeting and that she would set up a reconvene to consider that. Tr. 104. In this regard, no reconvene ever occurred, and the Parent testified that she did not see the April 2015 IEP until the start of the hearing. Tr.

105; D-1.

It is the District’s burden to establish that it provided this child with FAPE for the 2015-16 school year. They must establish that they created an IEP that was designed to provide educational benefit to the Student. The only witness presented by the District,

Ms. lacked credibility. Her testimony was contradictory. She could not remember if were discussed at the hearing and if the Student had, in fact, received . She could not recall why the ’s goals were not included on the IEP even though she stated that she reviewed the goals of the and believed they were able to be set . Tr. 54-58.

Although she testified that the (P-F) was provided to the committee at the meeting, and that the report indicated that he needed , , and , she did not recall , Ms.

indicating that she was not trained and does not work on . Tr. 57. Although an was also present for part of the meeting, Ms. , Ms. did not recall any discussion of and the need for . Tr. 58.

It is clear that the of and were added to the Student’s IEP at the April 2015 CSE meeting for the 2014-15 school year as a result of an Impartial Hearing Officer decision dated March 16, 2015. P-B. At the same meeting, the were denied for the 2015-16 school year. Based upon Ms. ’s testimony there does not appear to be justification for terminating these services. In fact, based upon the progress reports submitted by the and available at the CSE meeting (P-F; P-G), and the testimony of both Ms. and Ms. at this hearing, it is evident that continues to require these and that they are . Specifically, Ms.

testified that continues to need

so that including and to address his and in Case No. 156422 order to make meaningful progress. Tr. 72. She also testified that she is familiar with what is doing to meet his needs by ,

, and by . Tr. 82.

Ms. was on the phone for part of the CSE meeting, even though Ms.

did not recall her participation and advised the committee that he needs because of his and need for in order to make meaningful progress but also because

. Tr.

85. In addition, the is also working with him on , which he is not receiving . Tr. 82. Even though Ms. was not listed on the April IEP, she testified that she was present for part of the meeting, as was the . Tr. 86. Both Ms. and Ms. testified that is making progress in meeting their goals, however, both agree that they continue to require in to make meaningful progress and receive academic benefit. Tr. 88; Tr. 73.

I credit the testimony of the Parent who testified that both the and the stated, at the CSE meeting, that should continue with his current mandate and that the ’ goals could not be addressed and needed to be continued. Tr. 101-102. She also testified that the stated that she was not certified and is not a and that they do not have the ability to . Tr. 99. In addition, the indicated that his goals could not be addressed and needed to be continued. Tr. 101.

It is the Parent’s contention that the CSE determined that the Student was not entitled to related services because of “a directive issued by the New York State Education Department (“NYSED”) advising all districts and state approved nonpublic schools (“NPS Programs”) that a child cannot remain at a NPS program unless that program can provide all of the services provided on a child’s IEP”. P-A; P-D. The

Parent testified that she was told this by the staff who indicated that that the decision to not give services had been made before the CSE meeting even took place based on this policy. Tr. 96 It is my belief that the state policy does not exempt a district from making appropriate recommendations to address a child’s unique special education needs. I decline, however, to find that the District violated Section 504 by applying “blanket policies to the development of ’s IEP” based on the evidence presented to me at the hearing. P-C.

I hereby find that based on the totality of the evidence and in view of the foregoing findings, the District failed to establish that it provided FAPE to for the 2015-16 school year Accordingly, I find that the District did not provide FAPE to for the 2015-16 school year. and that the Student is entitled to related services of and on a for the 2015-

16 school year.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

The District shall provide with the following after school related services on a for the 2015-16 school year:

1. , ,

, per week for each time; and

2. , ,

, per week, each time.

A new CSE meeting shall take place to put these services on the IEP. In addition, the District shall provide the Parent with related service authorizations (RSA’s)

for the services to be provided.

The Student shall also receive make-up related services for all missed and from

. P-E.

RSAs shall be provided for these additional services and shall be effective through the 2016-17 school year, until June 30, 2017.

Dated: January 12, 2016

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:

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

District’s Exhibits

No. Date Document Pages

1. 4/20/2015 IEP 20

2. 3/24/2015 Notice of IEP Meeting 3

3. 4/13/2015 Progress Report 4

4. 4/17/2015 Progress Report 2

5. 4/2015 Progress Report 1

6. 4/2015 Progress Report 2

7. 4/2015 Annual Report 3

8. 4/17/2015 Student Progress Report 3

9. 7/27/2015 Prior Written Notice 4

10. 3/12/2012-8/11/2015 Events Log 5

Impartial Hearing Officer Exhibit

I. misc. Compliance Decisions 4

II. 11/30/2015 Closing Brief and Memorandum of Law for the Department of Education 9

III. 11/30/2015 Parent’s Closing Statement and Memorandum of

Law 15

Parent’s Exhibits

A. 7/6/2015 Impartial Hearing Request 9

B. 3/16/2015 Findings of Fact and Decision in case #151833 15

C. 6/4/2013 IEP 18

D. 7/2/2012 NYC DOE Memo re: Non-public Schools

Redacted 4

E. 8/17/2015 Order of Pendency in Case #156422 6

F. 4/15/2015 Related Service Student Progress Report ( )

( with Prepared Goals) 8

G. 4/15/2015 Related Service Student Progress Report ( )

( with Proposed Goals) 5

H. 3/15/2015 with Proposed Goals 22