Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which determined that the educational program respondent’s Committee on Special Education (CSE) had recommended for her son for the 2004-05 school year was appropriate. The appeal must be sustained in part.
At the time of the impartial hearing, which was conducted on March 23, 2005 and April 8, 2005, the student was 14 years old, attending I.S. 72, and placed in a regular education eighth grade classroom. The student’s March 31, 2005 individualized education program (IEP) (Dist. Ex. 20) states that he is currently eligible for special education programs and services as a student with an emotional disturbance (ED) (8 NYCRR 200.1[zz]).
During the 2003-04 school year the student attended I.S. 72 (Dist. Ex. 19; Tr. pp. 63, 76). In January 2004, following a superintendent’s suspension, he was assigned to attend Project Restore (Dist. Exs. 1, 6) at P.S. 25. On February 10, 2004, a CSE convened (Dist Exs. 3, 15, 17) and recommended that the student be placed in a 12:1+1 special class in a specialized school with counseling as a related service (Dist. Exs. 1, 3, 17).1 The student’s father reportedly consented to the program and placement (Dist. Exs. 1, 15; Answer ¶ 18; Tr. p. 9) although the student’s mother claimed that she had been unaware of this and was not in agreement (Dist. Exs. 15, 19; Tr. p. 9). The record reflects that the student’s mother claimed that the student’s father may not have had custody at the time he consented to the 12:1+1 placement and that she did not give consent (Tr. p. 9). From April until the end of June 2004, the student attended a therapeutic 12:1+1 class at South Richmond High School (P.S. 25) (Dist. Exs. 1, 15, 19). In June 2004 the student’s mother withdrew him from school and reportedly refused to send him to anything other than a general education placement (Dist. Exs. 1, 15, 19; Tr. pp. 9-10), hence, the student remained at home. In November 2004 petitioner requested an impartial hearing seeking that her son be returned to I.S. 72 (Dist. Ex. 19). On November 16, 2004 the CSE met and developed an Interim Service Plan (ISP) for the student that included placement in general education, along with a full-time crisis management paraprofessional and weekly counseling sessions (Dist. Exs. 8, 16 at pp. 1-2, Dist. Ex. 19). The ISP offered the student a temporary placement pending the completion of a psychoeducational evaluation and updated social history (Dist. Exs. 8, 16, 19). The student returned to I.S. 72 on November 17, 2004 (Dist Exs. 18, 19 at p. 3).
In December 2004 the school district conducted a psychoeducational evaluation of the student that included intelligence, achievement and projective testing, as well as a functional behavioral assessment (FBA) (Dist. Ex. 6 at p. 4). Additionally, the student’s social history was updated and the student was observed in language arts class on two occasions (Dist. Exs. 11, 15). On January 5, 2005 the CSE met and recommended the student for a 12:1+1 special class in a community school, with counseling as a related service (Dist. Exs. 2, 7, 19 at pp. 2-3). Testimony indicated that petitioner was provided notice of the meeting by certified mail and it was returned to the district signed by petitioner, however, the student’s mother did not attend this meeting (Tr. p. 21). She reportedly indicated that she was not interested in the proposed program (id.).
The impartial hearing that is the subject of this review was initiated by respondent by request for an impartial hearing, filed on or about March 1, 2005, seeking to move the student from general education to the more restrictive special class setting (Dist. Ex. 1). The record does not demonstrate that petitioner was provided with a copy of respondent’s request for an impartial hearing.
An impartial hearing was held on March 23, 2005 and April 8, 2005 and the impartial hearing officer issued a decision on May 2, 2005. Granting respondent its requested relief, the impartial hearing officer ordered that the March 31, 2005 IEP should be upheld and the student should be placed in a 12:1+1 classroom at I.S. 7 with additional related services and accommodations as set forth in the March 31, 2005 IEP (IHO Decision, p. 12). 2
At the impartial hearing, the district’s representative presented nine witnesses. Petitioner was not in attendance at either impartial hearing date and no one appeared on her behalf. On appeal, petitioner asserts that neither she nor her son was notified of the time and location of the impartial hearing (Pet. ¶ 3). A case manager from respondent’s Impartial Hearing Office testified on the first hearing date that “it looks like” on March 11, 2005 notices of the March 23, 2005 impartial hearing date were sent out (Tr. p. 42). The case manager further testified that “usually” the notices sent by her office were sent next day delivery, with one copy sent via regular mail and one via next day delivery (Tr. p. 42). However, despite being asked by the impartial hearing officer, she could not establish receipt of a confirmation of delivery of a hearing notice to petitioner (Tr. pp. 42-43). In addition, the impartial hearing officer stated that she made a number of telephone calls in an attempt to reach the parent prior to the March 23, 2005 hearing date (Tr. p. 5). She stated that the last telephone number she had was not a correct number for petitioner, but she did leave a message at petitioner’s home with a male who said he was not petitioner’s son (Tr. p. 5). The hearing record does not contain a copy of any hearing notice sent to petitioner pertaining to the March 23, 2005 hearing date, nor any documentary evidence of such a notice having been sent. Moreover, the record does not contain documentation of any written notice pertaining to the March 23, 2005 hearing date that identified time, date, location and nature of the hearing.
The second impartial hearing date was scheduled for April 8, 2005. According to respondent’s case manager, notice regarding the April 8, 2005 hearing was sent to petitioner on April 1, 2005 (Tr. p. 44). Although she testified that the notice “should have been sent by next day delivery and regular mail,” she stated, “it’s not in the record” (Tr. p. 44). She further testified that she also called petitioner’s phone number and left a message on the answering machine informing her of the impartial hearing date which the case manager, according to hearing transcripts, identified as April 4, 2005 (Tr. p. 43). Upon questioning by the impartial hearing officer, the case manager affirmed that she had left the message and sent a letter by next day delivery (Tr. p. 44). The hearing record does not contain a copy of any written notice sent to petitioner pertaining to the April 8, 2005 hearing date, nor any documentary evidence of such a notice having been sent. Moreover the record does not contain any documentation of any written notice pertaining to the April 8, 2005 hearing date that identified time, date, location and nature of the hearing.
The impartial hearing officer ruled that petitioner was properly notified of the impartial hearing and proceeded with the impartial hearing in petitioner’s absence.
On appeal, petitioner requests that the impartial hearing officer’s decision be set aside to allow petitioner the opportunity to be heard in another impartial hearing, that her son be allowed to remain in his current placement at I.S. 72, that he be given the quality education to which he is entitled, that he be able to catch up on missed schoolwork and that he be returned to a normal school environment.
Respondent asserts that petitioner had actual notice of the impartial hearing (Answer ¶ 31).3 Respondent further argues that the recommended placement was in the least restrictive environment (LRE) and requests that the impartial hearing officer’s decision be upheld.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the program itself, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
I will first address the question of whether petitioner was provided adequate notice of the impartial hearing that was requested by respondent. Adequate notice of hearings is an essential element of due process of law in administrative proceedings (Alvarado v. State, 110 AD 2d 583; Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 432; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-24). Due process does not require that petitioner be present at the impartial hearing, rather it requires, in part, that notice be given that is reasonably calculated under all of the circumstances to apprise that the impartial hearing would be held and afford an opportunity to be heard (Mullane v. Central Hanover Trust Co., 339 U.S. 306 ; Marcus v. Ambach, 136 AD 2d 778 [3rd Dept., 1988], Application of a Child Suspected of Having a Disability, Appeal No. 94-25).4 Moreover, federal and state regulations require that when a hearing is requested by either party, the parent shall be given notice which shall inform them of the availability of mediation and of any free or low-cost legal and other relevant services available in the area (34 C.F.R. § 300.507[a]; 8 NYCRR 200.5[i]).5 Adequate notice of the impartial hearing was essential in this case, because petitioner did not request the impartial hearing and the results would significantly impact the student. The record does not demonstrate that adequate notice of an impartial hearing was given.6 It was also incumbent upon the impartial hearing officer to obtain sufficient evidence of respondent's compliance with the requirement of adequate notice, before concluding that petitioner had waived her right to attend the hearing and allowing the impartial hearing to proceed in her absence (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-24). Under the circumstances, I find that it was unreasonable for the impartial hearing officer to proceed with the hearing in the absence of petitioner.
Even assuming arguendo that proper notice was provided to petitioner, the record before me does not demonstrate that respondent offered an appropriate educational program to petitioner’s son. While the student demonstrated interfering behaviors in his interim placement, it is not clear that the district adequately implemented strategies designed to address those behaviors. When the student returned to I.S. 72 on November 17, 2004, he was placed in general education pursuant to an ISP (Dist. Exs. 8, 16). The ISP referred to the student’s February 10, 2004 IEP for a description of the student’s performance levels and IEP goals (Dist. Ex. 16; Tr. p. 13). According to the student’s February 10, 2004 IEP, a behavioral intervention plan (BIP) had been developed for the student, however, it was not incorporated into the IEP as indicated (Dist. Ex. 3 at p. 6). The record contains no other behavioral plan relevant to this time period. In its request for an impartial hearing, respondent asserts that numerous interventions had been implemented during the interim placement to address the student’s interfering behaviors. The student was assigned a full-time crisis management paraprofessional and counseling services were provided (Dist. Ex. 1). The student’s class had been changed, he was placed on a daily conduct card, and he was given extra time to complete assignments and projects (id.). Respondent’s impartial hearing request alleged that behavioral management techniques and positive reinforcement were used in an effort to assist the student in improving his behavior. However, although numerous district employees described the student’s non-compliant, disruptive and aggressive behaviors (Tr. pp. 50, 55, 60-62, 64-67, 73, 77, 79, 80-81, 83-84; Dist. Exs. 6, 10, 11, 12, 18), there was little discussion, explanation, or evidence of strategies employed pursuant to an IEP to address the inappropriate behavior. The student’s crisis management paraprofessional and classroom teachers talked of redirecting the student (Tr. pp. 49, 56-57; Dist. Ex. 11 at p. 2) and temporarily removing him from the class (Tr. p. 55), but there is little evidence in the record that a BIP was implemented or that behavioral management techniques and positive reinforcement were actually employed prior to the recommended removal to a more restrictive setting contained in the March 31, 2005 IEP. Based on this lack of information, I find that the record does not show that respondent offered an appropriate educational program to petitioner’s son, therefore, respondent has not met its burden of demonstrating that it offered a FAPE.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the impartial hearing officer is annulled.
1 The February 10, 2004 IEP lists individuals in attendance at the CSE meeting, but the parents’ names are not included.
2 A CSE meeting was convened between the two hearing dates on March 31, 2005 per direction of the impartial hearing officer.
3 Respondent claims in its answer and argues in it memorandum of law, that it gave adequate notice of CSE meetings to petitioner (Dist. Exs. 22, 23) and apparently submits that the CSE notice was sufficient for the purpose of providing notice of the impartial hearing.
4 Impartial hearing rights under federal and state law include, in part, that a party shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing. Moreover, the hearing shall be conducted at a time and place which is reasonably convenient to the parent and student involved and shall be closed to the public unless the parent requests an open hearing (8 NYCRR 200.5[i][x]) and each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing (34 C.F.R. § 300. 509; 8 NYCRR 200.5[i][xii]).
5 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the law as it existed prior to the 2004 amendments. Petitioner initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
6 Testimony was given asserting that petitioner was aware that a “meeting” was to take place (Tr. pp. 68-69). I am not persuaded under the circumstances of this case that the notice of a “meeting” adequately provided notice of an impartial hearing.