New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 126325 Student’s Name:

Date of Birth: District: 15 Hearing Requested By: Parent Date of Hearing: May 28, 2010

October 21, 2010

October 28, 2010

November 29, 2010

December 15, 2010 Hearing Officer: Michael S. Lazan, Esq.

2nd CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 28, 2010

Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 21, 2010

Student

Student

Student

DOE

DOE

Education (via telephone) — DOE

School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 28, 2010

Student

Student

Student

(via telephone) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 29, 2010

for — Parents

Parents

of — Student

(via telephone) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 15, 2010

Student

DOE

By request dated February 2, 2010, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The matter was extended numerous times on joint application to January 28, 2011, as a result of witness availability, complexity of issues, decision writing, and related issues. No objection was raised in connection to any extension. The record close date was January 28, 2011.

The Complaint dated February 2, 2010 alleges free appropriate public education (FAPE) violation for 2009-2010 and requests tuition reimbursement at for ( ).

(Exh. 1) The disputed issues in the Complaint are membership of the Committee on Special Education (CSE) team; the development of an Individualized Education Program (IEP) without objective measures of academic performance; goals and objectives that are not specific to and do not accurately reflect her current levels or needs; inappropriate lowering of promotional standards; an inappropriate school program with grouping of students, a program that did not meet the management needs in the IEP.

TESTIMONY AND EVIDENCE

,a education at School , teaches a . (46-47) This is a class with and graders, age range was through with students the first day of 2009-2010.

(47-48) Math ranges were grade through grade, with the same reading levels. (49)

Children were classified as and . (49) The New York State Scoping Sequence is used as a curriculum guide. (49) Internet resources are used, there are -made materials, there is a - approach employed, there are computers, laptops. (49-50) There is mainstreaming in gym, lunch, talent. (54) She would be able to meet the IEP’s academic management needs requirements. (56) She has similar students in her class.

(57)

There is no record of the parent visiting the school. (57)

The school goes from grades 6-12. (62)

, a school , participated in the annual review for on March 3, 2009. (70)

was the general education , Ms. from was the education . (70-71) All were present for the entire review. (71) Information was provided from school. (72)

The team recommended a school in a school with and twice a week in a small group for thirty minutes. (72-73)

This recommendation was appropriate because required smaller class size with additional . (73) She has deficits in expressive and receptive learning, as well as across the curriculum in math, reading, writing. (74) Higher order critical thinking is a weakness, including inferences and comparisons. (74) She needs to work on longer writing compositions, multi-step work in math. (75) She requires redirection, planners to organize work. (75-76) is inappropriate because it does not offer mainstreaming and does not offer a full related services mandate. (80)

The parent did not disagree with any aspect of the IEP or request that it be changed. (80) The special education had a full opportunity to present and was an active participant in the review. (81)

She has not met or observed . (82) They did not rely on documents other than the reports. (83) They did not rely on the December, 2007 psycho-educational evaluation. (83)

The IEP does not contain any goals relating to expressive or receptive language.

(85) It does not contain goals for encoding, but encoding and decoding go hand in hand.

(88-89) Auditory processing are not listed on the IEP, but this was addressed in the goals and they discussed read and class discussions which would address this need.

(89) Goals were created on paper after the meeting, during the meeting they were discussed generally. (90) It was mentioned at the meeting that the goals would be based on the discussion at the meeting and on the reports submitted. (90) The was not privy to these goals when they were written. (90) wasn’t brought up at the meeting. (91)

, a at School, taught grade homeroom, media literacy, English class, and Math class in 2009-2010. (110-111) was in her computer class for grade, a current events class for grade, and homeroom and media literacy for grade. (112)

is a complicated person, eager to learn, excited to be in school, but this was not the case in grade when she entered the school. (113) At that point, she was withdrawn. (113) For 2009-2010, she was the same kind of withdrawn child but with more motivation to connect with peers, do school work. (116) When she left, she was quite motivated to go to school. (116)

She with in all its forms, including written language comprehension, spoken language comprehension. (116-117) In regard to expressive language, she seems comfortable and engaged, but you then hear syntactical errors. (117)

She benefits from one-to-one interaction; she looks like she understands what is going on but doesn’t. (118) She is good at picking up small details but doesn’t see the big picture. (118)

There were children in her class with for classes such as current events and history, but literacy and math would have five students and . (119) Progress in the 5-

1 ratio classes was good; in the - classes, she to contribute ideas or stay engaged.

(119-120) She would be uncomfortable sharing her ideas with a group. (120) She needed more support in these classes to be successful. (120) The second would then check in on her to make sure she was understanding. (120)

A reference in her Second Trimester Report to shutting down in the 13 person classes is accurate. (133) This was when the second would help her get connected with what was being discussed. (134)

She may look like she “gets it” but she might not get it. (135)

Reading and writing improved significantly at the school, especially during 2009- 2010. (121) Comprehension was the focus of reading, through created materials. (125)

She improved in fluency. (126) End of year reading testing measured her at the 6.5 grade equivalent, which shows progress. (126-128)

In math, she initially struggled with memorized facts and long problems, but was extremely successful in algebra by the end of the year. (129) Teacher-created materials were used. (130) Grade equivalent was 10.7 (130) She was in a group of children who were all very successful in math. (166)

In writing, she was taught through -created materials and a program by called Basic Writing Skills. (131) The focus was on creating interesting sentences that are complete rather than getting in touch with your “inner writer.” (132) It was a tools-based approach with structured outlines. (132-133)

The school is an “ ” where comments are not tolerated. (136-137)

Overall, there was quite a bit of progress. (141) She learned a great deal of content, she has a good memory for things she learns, allowing her to progress -on- in particular. (141) Social and emotional progress was marked; she was really motivated to work towards becoming a strong personality, and social skill building was built into her day. (143) By the end of the year, she was more confident. (143)

Related services include and two or three times a week pushed into science or social studies for 40 minute sessions. (144) The environment at the school was designed to deal with the student’s and . (144-145)

Children in the class are ages and . (145) She would not be appropriately placed in a class with children of ages - ; she is focused on becoming a and she needed to be socially successful with children her own age. (146) She would not be appropriately placed in a classroom with children, this would have identity.

(147)

She is not a licensed education though she has taken all the tests, she is just missing paperwork. (149)

The literacy , , was on for three months during the year. (151)

was the in her place. (151)

language was appropriate for her, she was able to learn some rules and follow them. (154) She did well in the class. (155)

She has observed her in literacy, Math. (157-8) She wrote the second trimester report with her co-in consultation with the other teachers. (161)

The school is a school, meaning that the school is based on service, peace, integrity, , equality, simplicity. (163) They have silent meetings twice a week for about ten minutes. (164)

The testified that has been diagnosed as having , has challenges with comprehension, with multi-step direction, with responding to direct questions quickly. (190)

She went to public school until grade, when she went to . (191)

She did well at for 2009-2010, she was named a scholar athlete at an awards banquet, made friends. (192-193) She made a lot of progress in math. (193) The at the school, which helps their and out external . (194) The children in the class were all roughly the same age and at her level socially. (194-195)

Tuition was $41,400. (196) This has been paid. (196)

At the CSE meeting of 3/3/09, she mostly listened. (196) , one of homeroom , was on the phone the entire meeting. (197) The team relied on the one page report created by the general education , who had observed the classroom. (197)

They did not review the short-term and long-term objectives, there was no input regarding the goals, goals were not reviewed by Ms. on the phone. (198) They did not review social and emotional functioning, did not review levels of academic achievement other than Ms. phone report. (198-199) She did not mention that she had signed a contract to attend . (210)

She objected to the placement because she was not convinced would be able to provide with the additional support needed. (199) She visited the proposed placement by visiting the school in person after not getting messages returned. (202) She received an unfriendly reception, and then was showed around. (202-203) She didn’t have the opportunity to see the classes because they were doing testing. (203) Students were very , . (204)

She saw no students at the school, it is extremely far from her , and the administration of the school does not return calls. (206-207) She did not observe any academic instruction at the school. (214)

, of School at , described the school as a school for children with . (224)

Almost every has a master’s degree in special education and have bachelor’s degrees. (226) Related services for school are provided by a and ; they try to children out of class. (228)

did very well for 2009-2010. (230) She was still , but was learning a great deal and the school was meeting her needs so that she is now able to be in a public school in a much larger environment. (230)

Assistant teachers are not required to have backgrounds in special education.

(233)

IEP goals and objectives relate to decoding content-related grade vocabulary, comprehending grade reading matter, developing writing skills to a grade level, developing calculation skills to a grade level, develop mathematical reasoning skills in connection to certain multi-step directions to a grade level, demonstrating age appropriate pragmatic language skills. (Exh. 2)

reports from also indicate that the student requires and (Exh. 3).

A psychoeducational update by dated December 7, 2007 revealed an abbreviated IQ of 85, 16th percentile. (Exh. 4) Deficits were found in achievement in reading, spelling, writing fluency, math fluency. Reading scores ranged from 10th percentile to 13th percentile. Weaknesses were found in phonological processing and visual attention. Recommendations were suggested in language including breaking down instruction into steps, explaining homework and assignments in a linear, sequential format, using simple clear language when explaining graphic material. In regard to reading comprehension/fluency, incorporating the use of letters to represent sounds and using alliterative language is recommended. In regard to writing, providing a partially completed outline and reducing the amount copied is suggested; it is also suggested to offer paper with the assignments already written on them. In math, drilling and timed tests are suggested.

Behavioral testing revealed largely average range scores, with a 5th percentile in “internalizing” on the CBCL.

The parent’s notice to the District is dated August 24, 2009 raises the composition of the review team, the evaluations used, the inadequate goals in the IEP. (Exh. 8)

IEPs of children in the proposed class include one child who spends quite a bit of time being disruptive. (Exh. L) Another child was experiencing poor impulse control and experiences significant difficulty with various social and emotional issues. (Exh. N)

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of

2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School

Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S.

359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7

(1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.

300.513(a)(2).

The record indicates that the March 3, 2009 CSE review which formulated the IEP in this matter was flawed. 8 NYCRR 200.3(a)(ii) indicates that a review must include a regular education “of the student.” The review here did not include a regular education “of the student.” Caselaw has since held that it is sufficient for a District to have a at the review if they “may be” teaching the student in the forthcoming year.

Application of a Child with a Disability, Appeal No. 02-046 (regular education ).

However, the District’s witnesses did not touch on this requirement. In fact, the general education at the review, , did not testify in this proceeding. This violation cannot be dismissed as a mere technical violation since the District specifically argued that the child needs to be mainstreamed, i.e., placed with a general education population with a general education for part of the day.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations that identify a student’s needs and then establishes annual goals related to those needs. Application of a Student with a Disability, Appeal No. 09-077.

The CSE did not review any formal testing in connection to the child, including the most recent psychoeducational evaluation conducted by the District itself. Instead, the CSE relied solely on the reports for this child, although the CSE ultimately would not consider as a placement for the child. The regulations are clear: the CSE must consider the results of the most recent evaluation in developing recommendations for the IEP. 8 NYCRR Sect. 204(d)(2).

With respect to goals, the CSE’s duty is to establish annual goals related to those needs and abilities established by the evaluations and reports. 8 NYCRR 200.4(d)(2)(iii). The December, 2007 evaluation by the District indicates that the student has with . However, there is no goal relating to or receptive language.

reports from also indicate that the student requires and (Exh. 3 at 23). The

District did recommend and for this child, but included but and goal in the IEP, a general goal relating to pragmatic language.

Finally, school reports and testimony here indicate that has challenges in regarding to expressing her in large groups. In particular, will appear to know something when in fact she will not, requiring the assistance of a to inquire into understanding. The IEP does not contain any goals in this connection.

Underscoring the issues with the goals is the fact that they were developed entirely outside the CSE meeting. The goals were in fact formulated after the meeting without the participation of the parents or the special education teacher. Application of a Child with a Disability, Appeal No. 01-028 (parents must have opportunity to discuss goals with the

CSE).

Finally, the District did not show that the child would appropriately grouped in the proposed placement. Students with disabilities who are placed together for the purposes of special education shall be grouped so that individual needs are similar and that the instruction required to meet the individual needs of any one student in the group shall not detract from the instruction provided other students in the group. 8

N.Y.C.R.R.200.1(ww)(3)(ii), 200.6(a)(3). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. 8 NYCRR

200.6(a)(3)(ii), (iii). State regulations further provide that the composition of the students in a special class program shall be based on the similarity of the individual needs of the students according to academic achievement characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom. 8 NYCRR 200.6(h)(2). Moreover, a special class shall be composed of students with disabilities with similar individual needs. 8 NYCRR 200.6(h)(3).

The record reveals that two of the students in the proposed class have significant that would likely distract a child such as , who can have difficulty when in groups.

also indicated that such students would hurt ’s self-identity, a point that was not rebutted by the District. Further, the record shows that the student’s proposed class would have been with children with ages 11 through 15. The maximum age span in the proposed special class is 36 months pursuant to applicable regulation. 8 NYCRR Sect.

200.6(h)(5). There is unrebutted testimony in the record that such a wide age span would adversely affect . As a result of the above, the District impeded the child’s right to a FAPE and significantly impeded the a parent’s opportunity to participate in the decision making process. The parent prevails on the first criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S.

ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as licenses or LRE requirements. Frank G. v.

Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address

Daniel’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record indicates that the student has special education needs in reading, decoding, expressive and receptive language, math calculation, math reasoning, participating in a group. The record also shows that the placement at provided for small class size, individualized instruction, multi-sensory instruction to allow the student to progress on her special education needs. The program addressed her tendency to disguise her comprehension issues by using a second to “check in” on her during lessons. The result was progress in reading and quite a bit of progress in math, with a estimating that rose from a grade level in math all the way to the grade level equivalent. The record also shows that was withdrawn when she first entered and now is more motivated to connect to peers.

The District argues that the placement provides no opportunities for mainstreaming at and that the school does not have all certified teachers, but parents may not be held to certain requirements that Districts are held to such as licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). Further, Ms.

testified that most head teachers have master’s degrees in special education. Finally, the District’s appears to concede that the child requires a class with entirely IEP-driven students since the proposed placement is also a class.

The District also argues that the program at is insufficient because it does not address issues with transition. However, the record does not support the contention that transition is a particular problem area for . Further, there is insufficient support in the record to suggest that there is any problem with transitions at this small school.

Finally, the District argues that the parent has presented insufficient objective evidence in regard to the second criterion. However, the parent has presented the school’s report cards and progress reports and written reports. reports, report cards and progress reports should be considered objective evidence in regard to the second criterion.

M.S. v. Board of Educ. of the City of Yonkers, 231 F.2d 96 (2d Cir. 2000); Application of a Student with a Disability, Appeal No. 09-048 (progress reports should be considered objective evidence); Application of a Student with a Disability, Appeal No. 09-015

(progress reports and written reports should be considered objective evidence). Further, the progress reports from the school include clearly objective Terra Nova testing indicating that the child made progress in reading and especially math. The parent prevails on the second criterion.

On the third criterion, the IDEA allows 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, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect.

1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District suggests that the parent did not really consider the District program.

However, since private schools routinely require a contract well before the start of a school year, the equities do not and should not prevent a parent from entering into an enrollment contract with a preferred school prior to the date of the CSE review.

Application of a Child with a Disability, Appeal No. 03-091. Further, the parent here indicated she was open to the public school site and endeavored to visit the school after calling the school repeatedly.

The District also argues that the parent’s notice of placement was defective because such notice does not particularize the parent’s allegations pertaining to the District’s proposed program and placement. The District appears to argue that the parent must particularize each and every factual allegation in the notice or be subject to a denial of award. The District appears to base this argument on the parent’s duty to send a notice “stating their concerns” as per the applicable federal regulation. However, the parent’s notice does in fact raise several issues, including the composition of the review team, the evaluations used, the inadequate goals in the IEP. There is no record of the District responding to this letter and then addressing these issues. Moreover, I have found no authority requiring the notice to include every single factual issue to be raised at the hearing, as the District suggests. Nor have I found any authority where an award is reduced or denied because the notice failed to particularize issues that were later raised by the parent. It should be noted that the District did not provide any specific authority in support of this argument.

It is clear from the record that the parent gave the District a fair opportunity to create a program for the child. There is nothing in the record to suggest that the parent failed to comply with any directive from the District or failed to respond to phone calls from the District. On the contrary, the record indicates that the District failed to call the parent back after she tried to visit the proposed placement. The parent prevails on the third criterion and is awarded reimbursement for 2009-2010.

Dated: January 28, 2011

Corrected Date: February 4, 2011 (Corrections made to body and evidence)

2nd Corrected Date: February 28, 2011 (Corrections made to the evidence)

_________________________

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL:jj

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 MAY 28, 2010

DEPARTMENT OF EDUCATION

1 Hearing Request, 2/2/10, 5 p. 2 IEP, 3/3/09, 12 pp. 3 Trimester Report, 9/08 to 6/09, 24 pp. 4 Psycho-Educational Report, 12/7/07,^[9] pp. 5 Homeroom Report, Winter 2009, 3 pp. 6 Final Notice of Recommendation, 6/4/09, 1 p. 7 Classroom Observation, 10/28/08, 1 p. 8 Letter from to , 8/24/09, 1 p. 9 Email from , 10/27/10, 1 p. 10 Case Details, 10/28/10, 3 pp.

DOCUMENTATION ENTERED INTO THE RECORD OCTOBER 28, 2010

PARENT

A Second Trimester Report For 2009-2010, 5 pp. B Third Trimester Report For 2009-2010, 4 pp. C End of Year Testing Report for 2009- 2010, 1 p. D Mission Statement from , Undated, 1 p. E Curriculum, Undated, 4 pp. F K-65 Progress Report 2009-2010, 2 pp. G Proof of Payment 2/1/09-12/1/09, 3 pp. H Parent's Response to Final Notice, 6/17/09, 1 p. I Contract dated 2/1/09, 2 pp. J Report 9/09-6/10, 23 pp.

DEPARTMENT OF EDUCATION

10 Computer Generated Case Details Form, 10/28/10, 3 pp.

DOCUMENTATION ENTERED INTO THE RECORD NOVEMBER 29, 2010

PARENT

K IEP, 2/9/09, Child 1, 13 pp. L IEP, 5/15/09, Child 2, 11 pp. M IEP, 4/8/09, Child 3, 14 pp. N IEP, 3/31/09, Child 4, 11 pp,

Footnotes

[9] Email from , 10/27/10, 1 p.