New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 129722

Student‟s Name:

Date of Birth:

District: 29

Hearing Requested By: Parent

Date of Hearing: January 10, 2011

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

(via telephone) — Parents

Parents

DOE

(via telephone) — DOE

This is New York City . On January 10, 2010, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the education of at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The New York City Department of Education was represented by ,a , and the parent was represented by , of . A list of witnesses who testified and documents received into evidence is attached to this decision.

PARENT’S POSITION

The parent contends that the Department of Education has not paid for an “independent educational evaluation” ( ) and that the Student is entitled to four hundred hours of individual tutoring at an enhanced rate.

DEPARTMENT OF EDUCATION POSITION

The Department of Education conceded that it must pay for the , but it contends that the nature of the requested is not appropriate.

FINDINGS OF FACT

is a bright year old student who has attended the School, a school in New York City, since he was years old. (Tr. 105) He is in grade there no He does well socially, he has friends, and he participates in sports. (Tr. 46)

requested a education evaluation in 2007 for academic delays in reading. (Ex. 2 at 1) was then in grade. The Department of Education responded by conducting a psychological/education evaluation on April 24, 2007. (Ex. 2) A Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV) was administered, and all of subtest scores were at the mean score of ten or well above in the average to superior range. (Ex. 2 at 1) His index scores were verbal comprehension 112, perceptual reasoning 121, working memory 116, processing speed 103, with a full scale IQ of 110. On the processing speed subtests, he scored 11 on coding, and 10 on symbol search and those scores are solid average scores. (Id.) The Department of Education conducted a Wechsler Individual Achievement Test, Second Edition (WIAT-II) and found all of achievement sores to be in the high average range, except for a solid average reading comprehension score. The reading comprehension grade equivalent was 3.9 when the Student was in grade. (Ex. 2 at 2) The Committee on Special Education (CSE) convened, and found ineligible pursuant to the IDEA. The did not challenge that decision that year.

attended grade at the School in the 2009 – 2010 school year. grade , , is not certified although he does have a master‟s degree. (Tr. 36) He reported that with reading comprehension last year. He is not sure whether was “unable to retain inform or whether he ever understood the information he read to begin with.” (Tr. 42) was not able to concentrate in class although he never in class. (Tr. 42-3) was not distracted in math, and “oddly enough, even if, given math word problems or problem solving, he seems to be more engaged in the math.” (Tr. 45-6) understood spoken directions, but he was easily and he had a . (Ex. O, Q) I found Mr. testimony to be credible.

The again requested a education evaluation in 2009 when was in grade. (Ex. N) The Department of Education conducted a second evaluation dated October 29, 2009 in response to the request. (Ex. C) A second Wechsler Intelligence Scale for Children-IV (WISC IV) established that verbal and nonverbal reasoning abilities are in the high average range. (Ex. C at 2) All WISC-IV subtest scores were at the mean of ten or higher, except for a weakness in processing speed. (Ex. C at 6) Processing speed is based on two subtests: coding and symbol search. Coding was a 6 while symbol search was a 7. Symbol search is down one standard deviation from the previous score, and coding is down almost two standard deviations from the previous level. Despite the lower processing speed, the WIAT-II establishes that all achievement scores are grade level or well above. His reading comprehension was at 6.9 grade level although it was based on a weighted raw score.^[1] (Ex. 4 at 6) The CSE reconvened on November 5, 2009, and it found to be ineligible again. (Ex. 3)

The disagreed with the second evaluation “(B)ecause on one of the reports it says that he has a 9% processing delay. . . I want to know why. And even his s are saying there's something wrong. I know there's something wrong with my .” (Tr. 98) She repeatedly requested an “independent educational evaluation” ( ) in writing, and then she obtained one on her own. (Ex. G, Ex. 1 at 2)

, , conducted a neuropsychological evaluation in spring 2010 when was in grade. (Ex. J; Tr. 84, 127) It appears that there was no new cognitive testing, and that the did not speak with any of s. (Ex. J at 1) Two standardized instruments were used. The first instrument was a Woodcock-Johnson Achievement Form A that establishes that all achievement scores are at or above grade level, except for weaknesses in math and reading fluency and passage comprehension. (Ex. J at 3) The second instrument is the IVA+Plus Comprehensive ( ) Scales that revealed an uneven attention profile of scores that range from the superior range in quickness to the range in and other scales. (Ex. J) The gave the diagnostic that has an / , combined type, and a . (Ex. J at 1)

The agreed with the evaluation. (Tr. 108) She has not pursued any , , or for . (Tr. 109-110) She had assess on May 17, 2010. (Ex. H , and of , opined that needs -on- - in reading comprehension and written for four hundred hours. (Id.) uses certified tutors who would come to home to provide tutoring using multi-sensory methodology. (Tr. 61-2)

I note that has a conflict of interest as her business both and it may provide tutoring services for him. Furthermore, she testified that “His s also discussed--his grade has discussed that even though he can do math, he obviously has a problem with the reading comprehension portion of that. (Tr. 136) To the contrary, grade specifically testified that the Student does not have a problem with reading comprehension in math. (Tr. 45-6) I note that testified about her evaluation of but it was not brought into evidence at this impartial hearing. I also note that is the only to opine that the Student - which is what her business provides. I found testimony and opinion subject to self-interest and less than fully

credible.

The CSE reconvened on June 10, 2010, it reviewed the , it found to be IDEA eligible as a student with a , and it classified his as “other ” ( ). The CSE developed an “individualized education program” (IEP) that placed in general education with “special education support services” ( ) five periods per week in a separate location with a staffing ratio of up to students to one . (Ex. 6 at 1) There is no evidence that the shared the evaluation or May 27, 2010 letter with the CSE.

On June 11, 2010 the New York City Department of Education issued a letter to the offering a placement at School. (Ex. R) The testified that only goes through grade and was entering grade. (Tr. 116-120) She kept him in his school for grade. On July 18, 2010, the consented to the recommended services and school “based on the following conditions, I receive a P-3 Letter because NYCDOE is unable to provide Special Education Support Services for daily (sets) at his present school . . . “ (Ex. R, Ex. E) She attached a letter in which she wrote: “During the meeting I was informed that if my child remains in his Private School setting that I would receive a P-3 letter. . . “. (Ex. E) The had already selected to provide tutoring instead of receiving for . (Id.)

The Department of Education complied with the request for a P-3 authorization. (Ex. M) The P-3 letter is undated and it does not specify the kind of service or number of hours of service that will be funded. (Id.) The testified at the hearing that she could not locate any service at the payment rate offered. (Tr. 103-4)

current grade reading and English is who is not a certified , and she does not have a masters degree. (Tr. 16-18) She is not really familiar with Orton-Gillingham methodology although she has heard of it. (Tr. 22-3)

Ms. gave inconsistent testimony. She testified that is “a little below average” in her class. (Tr. 21-2) His current average in English is 86 and he has an 80 in reading. (Tr. 22) Then she explained that is currently missing homework, but he will have an 80 in the course when he completes the missing homework. (Tr. 30) She

also explained that -to- would raise his grade point average from 77 to at least a B or better. (Tr. 29) But she admitted that he could also raise his current grade to 80 by turning in two missing homework assignments. (Id.)

Ms. was not familiar how is doing currently in his other subjects. (Tr.

31) She also has no access to the results of standardized testing results or his English Language Arts assessment results or his IEP. (Tr. 31-2; Ex. S) I found the testimony of Ms. so uninformed that I gave it little weight.

The requested this impartial hearing on October 4, 2010. (Ex. 1)

CONCLUSIONS OF LAW

The first issue before me is payment for the . The Department of Education conceded that it owes the remaining payment for the dated April 14, 2010.

The second issue is tutoring based upon missing services and compensatory education or additional services. The established that the June 10, 2010 Individualized Education Program (IEP) offers one hour per day of Education ( ) in a group of up to eight students to one and that the were not provided. These services are still owed.

The sole remaining issue is compensatory education or additional services. Compensatory education may be awarded to students who are no longer IDEA eligible if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990) Additional services may be awarded when the student is still IDEA eligible, but the same standard of gross violation resulting in the denial or exclusion from educational services applies. See Application of the Board of Education, Appeal No. 02-061

In the instant case, there is a vague allegation of a “child find” violation that gives rise to a claim for additional services although the did not suggest any particular trigger for the „child find‟ obligation. In 2007, the Department of Education located W., evaluated him, and convened the CSE. The CSE found the Student to be ineligible. There is no evidence in this hearing to establish that displayed of in school at that time or that he should have been found eligible then. To the contrary, all testing establishes that he functioned at or above grade level in all subjects at the time. I find that the Department of Education fully complied with the “Child Find” mandate in 2007 and thereafter.

On November 5, 2009, the CSE reconvened and again found ineligible pursuant to the IDEA. The CSE had a copy of Mr. ‟ s October 28, 2009 report that noted that is easily and that he has a . (Ex. O, Ex. 3 at 4) Furthermore, Mr. attended the November 5, 2009 CSE meeting for and the resulting document reflects the Student‟s short attention span. (Ex. 3 at 2)

I find that the CSE first had notice that might have an on November 5, 2009. The November 5, 2009 should have considered the possibility that has an , and it should have conducted additional testing following the meeting. Failure to test all areas of suspected disability is a violation of the IDEA.

Not all violations of the IDEA rise to the level of gross violations that must be addressed with compensatory education or additional services. In the instant case, the pursued the additional testing with an conducted on March 10, March 17, March 24, and April 8. The report is dated April 14, 2010. (Ex. J) The CSE reconvened to review the additional testing on June 10, 2010. I find that the failure to evaluate in all areas of suspected disability is a violation of IDEA, but it is not a “gross violation.” It did not deny the Student educational services for a substantial period of time. I find that the Student is not entitled to additional services.

SUMMARY AND ORDER

I hereby order the Department of Education to pay for the outstanding balance for the after the presents the Department of Education with the proper documentation of the amount still owed.

I hereby order the Department of Education to provide with the missing services of one hundred eighty (180) hours of individual tutoring at an enhanced rate of $110 per hour for the 2010 – 2011 school year.

I hereby order the Department of Education to date all future P-3 letters and to specify the frequency and duration of the services covered by the P-3 letter. Dated: January 18, 2011

__________________________

BARBAA J. EBENSTEIN, ESQ

Impartial Hearing Officer

BJE:gc

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

PARENT DESCRIPTION

A IEP, 11/5/09, 6 pages B Social History, 10/27/09, 2 pages C Comprehensive Evaluation Report, 10/29/09, 7 pages D Letter to CSE, 6/7/10, 1 page E Letter to , 6/10/10, 1 page F Letters to , 5/24/10, 5/7/10, 4/23/10, 5 pages G Letters to , 11/12/09, 12/3/09, 2/11/10, 4 page H Letter from , 5/27/10, 1 page I Letter to , 7/18/10, 2 pages J Neuropsychological Evaluation, 4/14/10, 28 pages K Request for Evaluations, 6/3/10, 2 pages L IEP, 6/10/10, 10 pages M P3 Letter, 2 pages N Request for Evaluation, 9/30/09, 1 page O 's Report, 10/28/09, 1 page P Report Card, 2009-2010, 1 page Q 's Report, 6/9/10, 1 page R Letter to Parent with Response, dated 6/11/10 and 7/18/10, 1 page S Stanford Achievement Test, dated April 2010, 1 page

DEPARTMENT OF EDUCATION DESCRIPTION

1 Impartial Hearing Request, 10/4/10, 3 pages 2 Psychological Report, 4/24/07, 3 pages 3 IEP, 11/5/09, 5 pages 4 -Educational Report, 10/29/09, 6 pages 5 Social History, 10/27/09, 2 pages 6 IEP, 6/10/10, 12 pages

Footnotes

[1] I note that there is no evidence or testimony explaining the meaning of the weighted score in this impartial hearing