New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number:

NYS Case Identifier Number: N/A

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: 10-29-10

1-27-11

3-7-11

3-9-11

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 29, 2010

Student

DOE representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 27, 2011

(Via Telephone) — Student

DOE representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2011

Student

Student

education (Via Telephone) — Student

DOE representative — DOE

School, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 9, 2011

Student

(Via Telephone) — Student

(Via Telephone) — Student

DOE representative — DOE

— DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is a -year-old child who was classified as and and recommended for general education with of ( ) and . In August 2010, the DOE determined that did not have a disability and services were discontinued. , (Mrs. , or parent) argued that the IEP discontinuing services for the 2010-2011 school year denied the child a free appropriate public education (FAPE), and brought this hearing asking for related services at the previously provided level, education support ( ), an assessment authorization for a evaluation, and a new CSE review.

The parents also asked for a pendency order directing continuation of services during the pendency of the hearing. A hearing was convened on October 29, 2010, and a pendency order was subsequently issued ordering twice a week for 30 minutes, in a group no larger than two; / twice a week for 30 minutes, in a group no larger than ; and / twice a week for 30 minutes, on an individual basis. The hearing reconvened on January 27, March 7, and March 9, 2011. Extensions of time for decision were granted in this case, making a final deadline for decision of May 4, 2011.

DISTRICT CASE

, school , testified that she conducted an evaluation of in August 2010, which included the WISC, the WIAT, a clinical interview and review of records. Tr. 9193; Ex. F She stated that on the WISC IV, tested within the range of intelligence, but h h with a lot of scatter on those tests. On the WAIT II, her academic scores ranged from to percentile, also within the range, meaning she should be able to do grade level work. Tr. 53-54 The results did not seem to differ very much from previous testing done with on the WPPSI in the previous year, in June 2009. Tr. 55 Ms. stated that intellectual potential on the whole was in the range. Her processing speed at the percentile was a particular weakness, which Ms. termed significant. Tr. 55-56 One of her strengths was her perceptual h h reasoning, with subtest scores at the and percentile. Tr. 56-57 Ms. did not participate in the IEP conference. Tr. 57 She did not think needed services, based on her report, and she agreed with a recommendation for general education services for the child. Tr. 57, 60 On cross examination, she conceded that she did not have an independent recollection of the evaluation other than what was included in her report. Tr. 69 She testified that she never observed the child in school or talked to her , or read any reports from the child’s teachers. Tr. 60-61 She conceded that her report stated was receiving and in a general education class, but stated that she assumed these were not mandated services as she knew the parent went to a review meeting and was not given services. Ms. stated that she was told the parent went to the CSE review for services by someone on the review team. She was not aware the child had an IEP prior to her evaluation or to the review. Tr. 63-64 When asked repeated questions about whether the child’s previous classification as and would have surprised her, Ms. gave several non-responsive answers, and questioned the purpose of the child being reevaluated. Tr. 65-66 She repeated that her results indicated that the child was not eligible for services as she was on grade level. Tr. 66 Ms. conceded that the areas in which had could impact her school performance, and that she was , but argued h that a percentile did not by itself indicate eligibility for services and that her evaluation was merely a snapshot; the determination of services was for a review team with access to other sources of information. Tr. 68-69 She testified that was also given two Connors teacher questionnaires, the results of which indicated a significant marker for . Tr. 70 Her report indicated was evaluated by an in May 2010, but she did not recall whether she saw the results of that evaluation. Tr. 72-73 Ms. conceded that the student presented with literary skills, although her auditory perception in the one-to-one setting, an artificial environment, was “okay.” Tr. 73-74 She testified that the child’s average IQ was one of the factors in her conclusion that didn’t need special education services, and conceded that a child with an average IQ can have a . Tr. 74 When asked what other information she based her conclusion on, Ms. stated that it was information contained in the file, but she didn’t know what that information was and it was not included in her report. She conceded that the report didn’t state that didn’t need special education services. She then testified that she based her testimony that the child didn’t need special education services on her report. Tr. 75-76 She agreed that had a lot of sub-test scatter, and stated that it could be indicative of a lot of , including a or . Tr. 76-77 She testified that some kind of testing might have been indicated, and agreed that a evaluation could be beneficial for the child. Tr. 77-78 When asked to comment on the findings in former IEP of November 2009 that she has and delays and delays in fine motor skills that could not be adequately addressed without the related services of and , Ms. stated that did have delays in fine motor skills, particularly in speed, and that she had and delays, but only “a little bit.” Again she was citing her report. Tr. 79 She did not know the child had services nor that they were terminated. She testified that she would have done the same kind of evaluation had she known the child was receiving services. Tr. 79-80

PARENT CASE

, of Education for Students ( ), through , testified that she had permanent state licensure in reading , education to , and common branches . Tr. 85-86 She described as a - school for children with , , and , for students in through grade. is located in a mainstream - in . Some of the students are mainstreamed for part of the day, some for academics and for specialties for socialization. Tr. 86 She stated that she tutored in the summer of 2010, in reading and writing. Sessions were twice a week for 30 minutes per session. Tr. 87 Ms. stated that showed a lot of weakness in her ability to focus and stay in task, and pay attention. She needed a lot of redirection and refocusing, even in a one-on-one setting, and writing was very for her. Tr. 88-89 Ms. stated that definitely needs special education support to help her stay in a mainstream classroom. She has normal intelligence, and support would allow her to stay in a mainstream setting. Appropriate support would be on a daily basis, providing repetition and structure and routine. Tr. 89-90, 91, 96-97 Ms. also stated that and would be beneficial for the child, citing poor letter formation and sense of where she is, which makes it so hard to write she loses track of her thoughts. In terms of she needs skills focused on conversation and being able to expand her ideas. Tr. 90, 92-93 Ms. described to what was just presented to her, citing her , and stated that a evaluation would be appropriate at this time to understand what is going on with her. The academic picture presents is not typical, and is usually in line with a child with weaker cognitive ability. Tr. 93-94 In reading she is , and has slow decoding. Tr. 94 She responds to as well as . Tr. 96 Ms. stated that the child’s were not so extreme as to need an class, that she could be in a mainstream class with some support. Tr. 97-98

Mrs. , , testified that was presently in the grade. She realized had early on in her years; her had many concerns, and as she got they just increased. Tr. 102 Initially would fall a lot, and her wasn’t perfect. Tr. 103 explained that she has a Masters degree in early childhood education, and she had evaluated at an age. When was in it was suggested that she be evaluated, and the parents sent a letter requesting evaluation by the DOE in November 2009. Tr. 103-105 An IEP was completed in November 25, 2009, and she was given and , services with which the parent was in agreement. was in grade at the time. Tr. 105-106; Ex. B As the grade year progressed, the parents were called in for a meeting with the , the , her and her , and told that needed more help and that they should apply to get her reevaluated so she could get . It was also suggested that they should have a evaluation done. Tr. 106 identified a letter she received from her concerning in the classroom and in transitions and testified that she submitted it to the DOE, sometime around March or April 2010, requesting reevaluation for further services. Tr. 107-109 She cited scores on the Stanford report done at h h the end of grade, which showed very poor results, from the to the percentile. Tr. 109 She did not hear from the DOE until July 2010, when she was contacted to come in to have reevaluated. was given a evaluation; no other testing was performed. She did not request any further testing. She never receive a copy of the report. Tr. 110-111

There was an IEP meeting on Friday, August 13, 2011. When she arrived at the school, people were standing outside the building, which had been evacuated. The who was to conduct the meeting approached her and told her to go , because they didn’t know what was happening. Mrs. said she would rather stay, but he approached her again and brought her over to another person and asked her to reschedule with that person. She was then told yhat they didn’t know when the next appointment would be, but certainly not within the next two weeks, so she again said she would wait. She was then approached again and told there was a Freon leak in the building, and everyone was allowed back in the building except for the 2nd floor where the meeting was to take place. Again Mrs. said she would wait. She asked if the meeting could be held on another floor, but was told no and told to go . The said he would call her on the phone when they were allowed back in the building and the meeting would be conducted over the phone. Mrs. testified that she felt very uncomfortable about it, and was very nervous because she wanted to have her services in place by September. Tr. 111-113 Later in the day she received a phone call telling her she had not come to the meeting. When she protested that she had come and was told to go , the response was, Oh, yes, the whole team’s here; we’ll have the meeting now. She was told that ’s IQ was too high to get services. said she presumed he meant the -related services. No other services were discussed at the meeting; neither nor services was discussed. Tr. 113 She stated that there was a general education teacher at the meeting, not ; there was no one at the meeting who had met her . There was no one at the meeting from the school her attended nor was anyone from the school invited. There were no related services providers at the meeting. Tr. 114-115 The evaluation was discussed, although she did not have a copy, so she had to go on what they told her on the phone, which was that could not get . She was also told they did not have previous IEP in front of them. Tr. 115-116 She was told the best they could do was to tell her to ask for a “B meeting” and to bring along documentation like her IEP. did request such a meeting over the phone and in writing, as well as in person when she found out her services were terminated, but another meeting was never held. Tr. 116-117 There was no other meeting reconvened between the August 13, 2010 meeting and the current date on which she testified (March 7, 2011). Tr. 117 When school started in September 2010, called and told that she was not going to see , and had better get help right away because the child really needs it. Mrs. immediately drove to the DOE to ask for a hearing and to ask for the new IEP created at the August 2010 meeting, which she had never seen. She also asked for a copy of the child’s evaluation, but was given nothing. She was told to go and they would mail the documents to her. She received the IEP in about a week, and the evaluation within a month or two. Tr. 117-119; Ex. 1 Although the IEP indicated no disability, and general education for , there had been no discussion at the meeting that this was what was being planned Tr. 118 Had she know she would have disagreed, citing the services that needed due to her expressing herself as well as in writing, and her need for due to her slow writing, her enormous fatigue, and her poor spatial awareness. Tr. 119 Goals were not discussed at the meeting, as they didn’t have the IEP with them. Tr. 135

In the summer of 2010, had received services twice a week, which were of benefit to her. This year she is . Her spelling is very poor, although her reading is improving. Her math skills are all right, but she gets if there is too much work. A sheet with ten questions will exhaust her. works with her each night for at least an hour. Tr. 121 identified a letter written by grade in October or November 2010 outlining the she was having in the classroom, saying she was profoundly. She agreed that she was having the cited, as well as reading and completing tasks, and organizing herself at school and at She has a hard time making and keeping , but likes to be with friends. Tr. 125-128 stated that needs a evaluation because they don’t know what is the issue with her, whether it’s her inability to focus or losing her because it’s so hard for her to do work. Tr. 121 stated that when she finally received and reviewed the DOE’s evaluation, she was shocked by the many discrepancies in scores and how low her processing speed was. She testified that Mrs. , who did the DOE’s evaluation, told her that she thought special ed services would be beneficial for . She discussed it with another , who told her that processing speed affects the child most in class, especially doing independent work. She testified that it had been discussed at the August 2010 meeting, and she was told that although she had taken her for a test on processing speed the report had no significance. She was told it doesn’t matter what the letter said, they are only looking at the IQ score. Tr. 123-125 The evaluation had been sent in by her prior to the DOE’s evaluation. Tr. 122-126; Ex. E On cross examination, testified that they saw a when was in 1st grade, who advised to get her tested for , which can sometimes be mistaken for , as well as further and educational testing. The April 2010 evaluation found she had an problem. Tr. 127-129 In response to questioning by the hearing officer, she stated that there were no evaluations or evaluations done subsequent to those done for the January 25, 2009 IEP. Tr. 135-136; Ex. B testified that she is an working for She has provided services to for about two years, since 2009-2010. Ms. has seen twice a week, in 30-minute sessions, until a month before her testimony, when her IEP was rewritten to once a week in school and once a week at a sensory gym, reducing her sessions with to once a week. Tr. 146-147, 156-157 Ms. described several of . She stated that exhibits awareness which affects her in a classroom, explaining that she can a or find because she doesn’t know where the is. It also affects ’s overall functioning, as well as her interaction with her peers, as she is unaware of personal space. She also has in her , affecting her fine motor skills and her writing, both the legibility of what she writes and the pace of writing, and affecting her ability to perform tasks in a timely fashion. also has some , such as , which keeps her from doing certain activities that involve touching certain things. She also has poor endurance, tiring easily, which affects her overall performance. Tr. 147-148 Ms. stated that has made progress with her, but continues to need services. benefits from just the overall muscle strengthening, increasing her ability to do tasks. Tr. 149 Ms. stated that she could benefit from a 12-month program, citing the possibility of her falling even further behind the classroom, her peers, and her grade level. Ms. cited the extra two months in which she could regress further as a definite risk for , and the increased challenge she would face in the future as the work becomes more difficult and the classroom demands more independence. Tr. 150 Ms. worked with in 2009-2010, and completed progress reports that were submitted to her agency in June 2010. She was never contacted by the DOE or the CSE about , nor asked to participate in a meeting. Had she been invited, she would have recommended a continuation of services, and stated that the child definitely required additional services. Tr. 192-193 At the start of the current school year, Ms. found out from that her services were terminated over the summer. She was surprised, especially since her services had been increased just last year to twice a week, because it was thought that “desperately desperately” needed the increased services. received twice-a-week services from December 2009 to June 2010 and had been making progress, and the discontinuation of all services was just “out of the blue.” Tr. 153, 157 Services were begun again while the “court case,” meaning the instant hearing, was in progress. Tr. 157 On cross examination, Ms. described with transitioning, as well as with multiple step directions, explaining that she often leaves things behind or doesn’t realize where the class is going. The strategies she uses with include work with organizing, not keeping too many things on her desk that her, and work on focusing on the teacher so she can remember more than one directive. She also mentioned things to increase awareness. Tr. 194-195

,a and for the DOE, testified that she has provided services for since 2009-2010; this is her second school year working with the child. She stated that has expressive and receptive delays. has a lot of with , in terms of both oral narrative and written expression. She has with order and in writing it takes her a long time to get started and produce even two sentences. She also has following directions and sustaining attention and focus for a task, and needs a lot of repetition and constant and prompting. She works with twice week, in a 30-minute pull-out session in the school. Tr. 163-166 She testified that had definitely made progress in the past year, and they were now working on different goals. She has made progress in phonemic awareness, in maintaining and pragmatic goals, as well as following directions during structure tasks with specific prompts, although that remains a for her. On cross examination, Ms. elaborated, stating that she had seen more progress in ’s receptive skills, in a one-to-one “very structured” context. Ms. also saw slow progress using a graphic organizer, models and prompts to elicit information from her. Tr. 165, 169-171 Ms. participated in an annual review at the beginning of the previous school year, but no IEP meeting since then. Tr. 166 She doesn’t write a progress report unless she is asked for it for a triennial review, and she was not asked for a progress report for in the summer of 2010. Tr. 166 Nor was she contacted by the DOE to participate in an IEP meeting; she didn’t know there had been one until September or October when she tried to find out whether a meeting had been held for . She was then told that ’s services had been terminated. Tr. 167 She was surprised, as ’s had told her that there had been a meeting at which had not been given , but that she would be continuing to get her . Tr. 168 Ms. stated that she believed could benefit from services, which are very important for her. Had she participated in the IEP meeting she would have recommended that services be continued. Tr. 168

FINDINGS

The purpose of the IDEA is to ensure that all children with disabilities have available a free appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of their parents are protected. An appropriate program is one which is reasonably calculated to allow the student to receive educational benefits and that the recommended program is offered in the least restrictive environment for the child. 34 C.F.R. 300.550(b); 8 N.Y.C.R.R. 200.6(a)(1); see also Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. 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.

In this case, the district failed to sustain its burden that it had provided FAPE to . There was simply no evidence to support the decision to remove services, and the DOE’s action in that regard are beyond comprehension. There was no witness present at the meeting other than the parent, and I credit her testimony about the meeting. That the meeting was inadequate is clear; that the IEP team acted to discontinue all services when they were told the child had an active IEP is deplorable. Certainly, the events described by the parent presented an IEP meeting that in all respects denied the parent the right to participate. It was undisputed that did not receive the report, until after the child’s classification was eliminated and her related services were terminated, and then only after traveling to the school, which refused to give it to her and had it mailed to her a month later. Tr. 115-116, 117-119 The committee refused to look at the child’s evaluation; unbelievably, it also refused to consider or look at the child’s current IEP. Tr. 115-117, 135; Ex. 1 There was no explanation for these actions, other than a mind set that the child’s IQ precluded services. There was no attempt to get progress reports from the very providers that had been providing services – services that had just been increased during the school year – pursuant to DOE authority. Tr. 114-115, 192-193 The was herded away for the meeting, it did not have the required people, neither a teacher or provider of the student as provided in regulations, and there were no reports or evaluations from providers although their services were terminated. See 8 NYCRR 200.3(c)(2). Tr. 111-113 Most astonishing was that the team knew there was an IEP, yet did not refer to it. was told she would have to have another meeting for the IEP to be looked at. Tr. 116-117 There was no explanation as to why another CSE meeting was not convened as the parent requested. She didn’t receive the evaluation and the team made decisions without any look at the child’s record, evaluations and IEP. Tr. 117-119 Entries on the August 2010 IEP about present performance indicate several deficits, and specific academic management needs, and there is absolutely no explanation on the IEP for the two-word conclusion that there was “no disability.” Ex. 1 In declassifying without assessments in all areas of suspected (in this case, previously identified) disability, the CSE failed to provide any of the rights afforded under regulations, specifically 8 NYCRR 200.4. Regulations require that the recommendation of a student’s ineligibility for special education indicate the reason the student was found ineligible, an entry that was conspicuously absent from the August 2010 IEP. 8 NYCRR 200.4(d)(1). In addition, declassification requires a reevaluation of the student prior to declassification, and the DOE must identify the provision of educational and support services to the student upon declassification. 8 NYCRR 200.2(b)(8). When a child who has been receiving services is determined to no longer need them, regulations also require that the recommendation further indicates the projected date of initiation of such declassification services, the frequency of provision of such services, and the duration of such services. 8 NYCRR 200.4(d)(1). The clear conclusion is that in acting to declassify , without any discussion with her parent of their intent or any reference to the various evaluations that were brought to their attention or any consideration of her need for declassification support services, the DOE failed totally in its duty to the child.

Ms. testimony was unconvincing, in that she based her entire opinion about eligibility for education on the fact that she scored with an average IQ, despite wide scatter h including processing speed at the a percentile. Ms. tried to state that she based her testimony solely on her report, but also testified that she based it as well as on other sources that she neither remembered nor could cite, nor that were mentioned in the report. She also conceded that an average IQ did not mean a child did not have education needs. She testified that she was unaware that the child had been previously classified and receiving services, and expressed doubt that it was so, citing as fact her misinformation that the parent had been seeking services. Yet Ms. ’s own report, which was admittedly the only source of her testimony, expressly cited services of and . Ex. F Although Ms. knew the child had been evaluated by an , and the report expressly cited the evaluation that found “ timing which is associated with literary skills and perception,” she argued that in the one-on-one testing situation it was okay. Tr. 73-74 Her entire testimony was suspect, leading to the conclusion that she was trying to defend a recommendation in which she did not participate and of which she had only minimal knowledge. It must be stated that had her testimony been credible, it would not have altered my decision in this matter, based on the CSE’s myriad failures. I note that Ms. had no information on the child’s classification or her IEP, and she was not a participant in the review that terminated the child’s services.

The testimony of amply support her entitlement to continued and services. I note the many documents in evidence that support the parent’s 2010 request for services, including letters from citing , , and organization issues. Exs. C, G These items were also noted on the DOE’s discontinuance IEP. Ex. 1 I also note the report of the , who found that had an with academic , cited her index, and expressly recommended remediation and for 2010-2011. Ex. E

Based on the foregoing, I shall be ordering the CSE to reconvene and issue a new IEP, with original classification of and and including on the IEP related services of , , and . In addition, is entitled to “makeup ,” or a tutoring program for the time missed during the present year.

is also entitled to a meaningful review, which shall include appropriate reports, results of any evaluations, the requested evaluation, and any other reports or evaluations that the parent presents. Following evaluation, the CSE shall convene to classify and provide a recommendation for an appropriate program of special education services for the child.

ORDER

1. The DOE shall continue to provide the following services to for the 2010-2011 school year:

a. twice a week for 30 minutes, in a group no larger than 2;

b. / twice a week for 30 minutes, in a group no larger than 5; and

c. / twice a week for 30 minutes, on an individual basis.

2. The DOE shall provide , five days a week. Services are to begin immediately.

3. The DOE shall convene immediately to reissue an IEP for that includes the original classification of and and that includes the related services on the child’s IEP detailed in Paragraphs 1 and 2 of this Order.

4. shall be reevaluated, reevaluation to include a evaluation. The parent shall be issued an assessment authorization for a evaluation.

5. Upon completion of the evaluation and other appropriate evaluations, the CSE shall reconvene to recommend appropriate special education services for . The CSE review shall include current provider reports, results of any evaluations, the evaluation, and any other reports or evaluations that the parent presents.

6. The DOE shall create a bank of 200 hours of tutoring services for , to be provided by a qualified . Authorizations for such services will be provided as needed. The bank of services may be drawn upon for the remainder of the 2010-2011 school year, from the date of this Order until June 30, 2011, and through and including the next school year of 2011-2012, from July 1, 2011 to and including June 30, 2012.

IT IS SO ORDERED. Dated: May 4, 2011

____________________________

ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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 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 - or 35-day period. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and forms can be found in the Office of State Review website: www.sro.nysed.gov//appeals.htm.

EXHIBITS

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 29 2010

PARENT

A Hearing Request, 9/20/10, 3 pages B IEP, 11/25/09, 20 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 27, 2011

PARENT

None

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2011

PARENT

C Letter, , , and , undated, 1 page D School Report, 4/15/10, 3 pages E Report, 6/9/10, 1 page F Evaluation, 8/3/10, 4 pages G Letter, -grade , undated, 1 page H Stanford Test results, 5/10,^[1] page

DEPARTMENT OF EDUCATION

Footnotes

[1] IEP, 8/13/10, 5 pages DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 9, 2011 PARENT None DEPARTMENT OF EDUCATION None