New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: January 24, 2011

March 8, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED January 24, 2011

Student

Student

Student

Student

Student

Student

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED March 8, 2011

Student

Student

Student

Chairperson Designee — DOE

INTRODUCTION

On January 24, 2011 and March 8, 2011, I conducted a hearing pursuant to the Individuals with Disability Education Act (IDEA) 20 U.S.C. section 1415 (f)(3) regarding a special education for a student with a disability, New City Impartial Hearing Case No. The hearing was conducted at the impartial hearing office of the New York City Department of Education, 131 Livingston Street, Brooklyn, New . The student’s parents made a request to the impartial hearing through their on October 11, 2010. At the hearing, the Department of Education, hereinafter referred to as “The Department” was represented by it Chairperson Designee, and the Parent was represented by counsel, . A list of witnesses and documents received into evidence is attached hereto.

BACKGROUND

The child, hereinafter referred to , is a ( ) year old student who is classified as “ ”. He is enrolled as an grader at the School and his include , and mixed - .

The Committee on Special Education (CSE) conducted an IEP meeting on August 28, 2010 and classified the child as and recommended a general education with education teaching ( ), with related services including one time per week individually for thirty minutes and and two times a week for thirty minutes in a group size of .

The Department conceded Prong I of the Burlington/Carter Test and the only issues to be determined are whether or not the School, hereinafter referred to as “ ”, was an appropriate placement and if equitable considerations favor the parent.

PARENT’S POSITION

The Parents maintain that “ ” is an school and an appropriate placement for their child. It has small classrooms with a “ ”, which provides support for children with and its classroom utilize special education techniques to address the need for the children. Additionally, “ ” utilizes a “tracking system”, which is beneficial for children with special needs. “ ” has an “Edline ” which is useful for children such as who have organizational issues, as it helps the Parent to “stay in the loop”.

Lastly, the Parents maintain that they attended all meetings, provided documents, were cooperative and are seeking reimbursement for tuition at “ ”.

THE DEPARTMENT’S POSITION

Although the Department conceded that it failed to provide with a FAPE, it was their position that the Parent must establish that the educational they selected was appropriate and if in fact there is a decision favoring the Parent, that reimbursement should be limited to the portion of reimbursement which is the “ ”.

THE PARENT’S CASE

The first witness to testify after being duly sworn was , the Parent, who stated that is her and that he was born on and currently is in grade. She first noticed with her when he was approximately ( ) years old and had a very limited vocabulary (trans. 7). He was initially evaluated by the Department in or grade and she was told that his were “ related”, however they provided support for “fine motor skills” (trans. 8). attended and grade at and thereafter attended the School and repeated first grade at the school’s recommendation (trans. 9) and that he attended the school for seven years. She first noted he was having in grade, primarily with reading and writing (trans. 10). Due to the aforementioned difficulties, Ms. stated that her was re-evaluated both privately and by the Department (trans. 11). The witness was directed to Exhibit A, which she identified as a copy of the Educational Evaluation (trans. 12). It was her understanding that the report confirmed that her child had reading, comprehension and (trans. 12).

The witness stated that she decided to enroll at “ ”, as she was told by the staff at that her child was not doing well, he required , reevaluations and she believed that the School could no not provide what her child needed (trans. 13).

The Parent testified that her child was in a class with students at and with or students at . In her opinion, her required a small class setting, and had a with children in a class with appropriate support. She described the “Edline” which provides the Parent and child with an opportunity to see what the child is working on every day so that she could assist in following up to insure that her child could keep up with his work, etc. (trans 14). She was impressed with the training and credentials of the staff, wherein both she and her child were able to email with the staff and plan extra help in the morning or at lunch time (trans. 15).

described the “tracking system”, wherein her child is benefiting and working in a group with children on the same level as he is, and feels good about himself. (trans. 17). She stated that she participated at the IEP meeting in August of 2010, and provided the CSE with all the reports that she was requested to do (trans. 18). She was not told of the committee’s proposed placement for her child until sometime in mid September 2010, when she was informed that it was . (trans 18). The Parent identified Exhibit “B”, as correspondence that she sent to the Department advising that the recommended placement was not appropriate and that she would be seeking reimbursement for his placement at (trans. 19).

The Parent testified that in her opinion her has made progress during the 2010/2011 school year, is more confident, organized, is comfortable with his and understands the material (trans. 20). She attributes his success to the staff of being able to “break down the material” and repeat constantly, so that her child needs are addressed daily.

The witness described the “ ”, wherein her child was assigned to , who meets with and communicates with her on a daily basis, as she provides extra tutorial assistance.

Upon cross examination the witness stated that she made application to “ ” in March 2009 and that to the best of her knowledge, her is on Track II within his current grade level. The witness also stated that she purchased “insurance” in connection with her enrollment at , in the event that she needed to cancel her contract, if the Department were to offer an appropriate placement. The witness was directed to the child’s progress reports and stated that in her opinion, her child is making “meaningful educational progress at ”.

The next witness to testify was Mr. , who stated that he is employed at “ ” and teaches math for and grade students and also serves a “ ” (trans. 29). The witness testified that is currently in his grade class and described his as having in learning, especially when it comes to receptive and (trans. 31). is currently in the lowest track in his math class (trans. 31). He stated that he was provided with significant information from the school regarding case notes for each child (trans. 32).

In describing the child’s difficulties, he stated at the beginning of the school year was slightly inattentive and easily , so that instruction would need to stop, so that he could redirect him. He also stated that has improved “quite a bit”, especially in the last month or so (trans. 33).

Mr. reiterated that the child has receptive issues and that he provides with a “second explanation” as necessary which is less verbal and more visual in order to assist the child to learn. He described as having the ability to process visual information and that instructing in this way is “very compensating” (trans. 35). He also noted that since verbal abilities were compromised that he has taught him techniques which do not require writing sentences and instead uses tricks, symbols or a type of short hand for him to learn (trans. 36).

Mr. testified that early in the school year, he presented the children with graphic organizers to assist them in learning and then gradually tries to wean them off. He also utilizes multisensory devises such as “Power Point”, having a student’s “sing, rap and mime”. He utilizes overhead projectors and “Smart Boards” as multisensory assistive devices which is more interesting, wherein the children readily pay more attention (trans. 41).

Mr. described “task analysis” which is essential for a classroom with students with disabilities. Within such instruction, he teaches the children to take little steps, understanding that instruction cannot be taken for granted. Within the instruction, the child practices “steps over and over” and then builds on the next step (tans. 44). Mr. stated that from time to time daydreams and is easily ; he gives him signs to bring him back to the lesson and if that doesn’t work he walks over and put a couple of fingers on his desk and bring him back to the lesson at hand (trans. 48).

Mr. described the technique of “reciprocal teaching”, which is taught with instructional intensity, wherein the lessons are broken down into small components and presented in “chunks”; it is a more segmented way to teach and he never assumes that can sustain attention for more than a few seconds. He stated that there is preferential seating and that sits closest to him (trans. 49).

The witness testified that a “ ”, he is available to see children in the morning between and , in the afternoon at study between and and several times during the week during lunch and or other time periods (trans. 50). He stated that is the child’s and that he communicates with her on a daily basis in order to provide feedback on how he is doing and what his needs may be (trans. 51). Additionally, there are constant email communications and informal conversations in the hallways about the child’s progress or lack thereof. He stated that e-mails him at night if he has with a and that he schedules appointments for instruction as needed (trans 52).

Mr. stated that has made progress with reference to comprehension and paying attention and that the child now is the one alerting him if he doesn’t understand something or has a problem (trans. 53). Mr. stated in his opinion, is an appropriate placement for the child and that he would have difficult time learning in a general education curriculum in a large class setting; was “just surviving” at the beginning of the school year and now I would consider him “thriving” (trans. 54).

Upon cross examination of the witness, he stated that there are children with learning difficulties similar to in his classroom.

The next witness to testify was who stated that she is employed at the School as a “ ” and is licensed and certified in special education to instruct in grade 7-12 in English. She described the “ ” as including a resource room typesetting two times a day; consisting of a morning check in and an afternoon study hall with private tutoring sessions twice a week (trans. 60). The individual instructions are 45 minutes and she is also available to provide additional assistance at lunch and for extra help during exam time. At the beginning of the school year, she had children in her case load and currently has . She has reviewed evaluation reports which were prepared before came to school and after reviewing them and working with him, she described as having issues with reading comprehension, general / receptive and motor skills (trans. 62). She stated there were other students in her class who have similar learning deficits and probably “four of them with similar issues”.

The witness described her instruction for as breaking down information, i.e. “by chunking” wherein projects are broken into much smaller, manageable pieces (trans. 64). The witness stated that in her opinion, requires individual instruction every day. Ms. testified that in the individual sessions, she tries to focus on reteaching content from the school day in each subject (trans. 65). She described the process wherein information is presented to each day and needs to be retaught and presented in a different way to increase his understanding (trans. 67). Ms. stated that she also utilizes a multisensory approach through the utilization of graphic organizers, drawing on a board, in order to assist in presenting the concept which is being taught. Sometimes a video clip will be utilized or an on line interactive quiz. (trans. 68).

The witness described how she works with regarding reading comprehensive skills which involve reading passages together, looking for context clues, circling names, explaining vocabulary; all to utilize strategies of what he is reading (trans. 72). She also described a technique in the form of annotation or highlighting as a way to get to focus.

Ms. confirmed that Mr. testimony with respect to their collaborative efforts to address needs. She made recommendations before the last semester ended that be exempted from the foreign requirement and that it would be more beneficial to put him in a fundamental reading class which was implemented (trans. 76).

With reference to academic progress, Ms. stated that from the first to second semester, has made the most progress in his Science class (trans. 77). In collaboration with Mr. , she was advised that completed every single assignment from the beginning of January which was a big accomplishment. She noted that he attends , is better organized and does not have to spend time figuring where “his stuff was” (trans. 78); he comes to her with an idea of “what he wants to accomplish”, which was a big change. Emotionally, the child is also making progress and is willing to take advise and invest in his own education (trans. 78).

organizational deficits are addressed through the use of planner, where every assignment is written down and revisited through the Ed line system which posts homework assignments. These techniques assist him to stay focused in the classroom wherein he can pay attention to the lessons and not be concerned with writing every single thing down.

The witness testified that placement at is appropriate and that he requires re-teaching, chunking and a multisensory approach in order to learn; socially, he is in the inclusionary class with other students, who are on his level.

The next witness to testify was , who after being duly sworn, stated that she is employed at the School as an English for , and graders; she is also a parent/student event (trans. 89). She has also previously been employed by as of for five years. She described her educational background and stated that she is certified in secondary English Education, grade through . was a student in her grade English class in the lowest track (trans. 90); there are students in her class, and of the students have ; students with and (trans. 90).

The beginning of the school year, she stated that the ’ receive a memo from the School , and the of the , in order to review the children’s evaluations and reports. She described the meeting with , his and in October or November to review his report and to devise a strategy to work with him. (trans. 91). main area of deficit was in receptive and expressive , reading comprehension, writing and attention difficulties in class (trans. 91). More particularly, had a time with decoding, understanding and comprehension. She implemented various multisensory techniques including movies and tapes, for listening visual resources an it helpful (trans. 93). She described techniques with as moving at a slow pace, utilizing repetition, and overhead projectors and stated that he “responds really well”. (trans. 94).

Ms. also stated that she uses “modeling” and that skills have improved in terms of finding important information within text (trans. 95). With respect to reading comprehension, Ms. testified that “chunking material into categories; makes it easier for him to learn. Additionally, he responds well and learns with power point and anything visual (trans. 97).

Upon further questioning of the witness, she stated that her class meets one time a week for forty minutes in the writing lab which is an additional class period that the English Department utilizes for writing skills; requires assistance in basic mechanics of grammar, punctuation, capitalization, and spelling (trans. 98).

In order to assist with his difficulties, she requires to sit in the front row, which he “happily does”. She described his confidence level as having increased in the last few months (trans. 103). She also stated that each day, he comes into his classroom, copies his homework into his planner and that the information is also posted on Ed Line which is an “online tool” utilized for to post homework assignments, quizzes and tests (trans. 103).

Ms. stated that is a and who works with students at and that she came up with strategies of how to utilize different techniques and recommends books on tapes, etc. (trans. 104).

Ms. stated that she and meet every Tuesday after school individually, during the Study and that she collaborates with Ms. .

Lastly, the witness stated that placement at is an appropriate placement wherein the school incorporates strategies, for children like who have very challenging issues, the is critical for him to learn.

The last witness to testify was Mr. who testified after being sworn, nd that he is the of and that he is in his 42 year. His education includes three degrees in from as well as a Degree in Teaching. Mr. described his school as providing a sense of structure and compassion with small class size, usually fifteen, wherein the children are tracked in different classes according to their abilities and subjects (trans. 115).

He stated that the school follows the IDEA, wherein children should have an education in the and that the school introduced “the ” to students who are diagnosed with but who could function in a mainstream school. He testified that there are approximately students in and that slightly over 1/3 of the students are “ ” (trans. 118).

In order to address a child’s disability, Mr. stated the first order of business is to get a evaluation in order to get information about the child, or in some cases, IEP’s from school to assess their needs (trans. 119). He described the as having who are all New State Certified Special Ed. , and match up the appropriate for a child.

The witness stated that was assigned to who has students in her group. His recollection was that is in a weak placement in English and in a pre Algebra Class with Mr. who is a Certified with a specialty in “math weakness” (trans. 121).

Mr. stated that there are students in the school and that classes are divided into groups of or children. A usually has students, wherein the provides an extended day for the students. Instead of beginning at as other students, they begin at with their who will assist and organize for the day, check their homework and answer questions. Additionally, during the week, the children are pulled out two times a week for individual sessions with their and pulled out of a double period of physical ed, art, drama or music for an additional one period, twice a week (trans. 123). Additionally, at the end of the school day at , the children who are in the “ ” will meet again with the until 4 (trans. 123).

The witness described the tracking wherein the goal is for the child to move up as he improves and ultimately to be of (trans. 126). The school also provides accommodations, such as computers, preferential seating, and quiet testing environment. The students such as also have their work “chunked” wherein lessons are presented in small pieces. The witness stated that permitting a disabled child to participate in mainstream modalities in terms of behavior and social skills are important and that the students have an opportunity to learn in a least restrictive environment (trans. 129).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 US;C. 1400 [d) [1]; Board of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes 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 [9] [D]; 34, RCNY 300.17. A board of education may be required to ~(J Education, 471 U.S. 359 [1985]; Florence County School. District Four v, Carter, 510. D'S. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when( a) the board of education if complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is 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 FAPE, (b) significantly impede 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 1415 [f] [3] [E] [iiij.

An appropriate educational begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes .annual goals related .to those needs. (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with disabilities to be educated to the maximum extent, appropriate with their non disabled peers" See Walczak v. Union Free Sch. Insi.. 142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent School. Disi., 2007 WL 465211, at 10* [S;D.N.Y. Feb. 9,2007], citing Walczak. 2 F.3d at 122). In determining an appropriate placement in the LRE; the IDEA requires that .children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, -separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a] [5][5J [AJ; 8 NYCRR 200.6 [a] [1];see also Bay Shore Union Free School. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate. or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ .. 874 F.2d 1036. 1044 [5th Cir, I]. The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education

(Oberti v .Bd of Educ 995 F. 1204,1213 [3rd Cir. 1993]). The Daniel R.R .. Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including: 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. and role modeling with no disabled peers (Geer v. Rome City School, Dist.. 950 F.2d 688 [11th Cir, 1991]).

In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended was Application. of a Child with a Disability. Appeal No. 01-'096).

I agree with Parent's counsel that when the Department concedes prong one, that it well settled law that the Department should be precluded from asserting a defense that the Parent's claim should be barred if equitable considerations do not favor the Parent. (M.H. and E.K. v. NYC Department of Education, reported at 2010 U.S. LEXIS 45400, S.D. of New .) However ,in this case, if I was to make a determination as to whether the Parent was cooperated with the Department and if there were any equitable considerations that would be a bar to an award supporting the Parent, I find that the Parent was cooperative.

The Board of Education may be required to reimburse parents for their expenditures for private educational services, obtained for students by his or her parents, if the services offered by the Board of Education were inadequate or inappropriate, the services selected by the Parent were appropriate and equitable considerations support the parent's claim (Florence County School District No 4 v. Carter, 510 U.S. 7 [1993]' School Commissioner of Burlington v. Department of Education ,471 U.S. 359, 369-70. As principle relief, the parent is requesting an order, directing that the Department pay for tuition and for the " " at “ ”. The Department is seeking that an order be issued that only the portion of the tuition be paid as it is the that relates specifically to the child's . The .Parent's maintained that has , and delays and other organizational deficits. Additionally, there is no dispute that suffers from a and that the Parent is in agreement with the Department's classification of same. After hearing all the evidence, including testimony from the , and two classroom , I find that “ ” is an appropriate placement for . is an school with approximately students out of students with IEP's. The typically has to students and meet twice a day in the mornings and afternoons and twice a week individually. The also described a between the , the classrooms and all . The acts as a point person in assisting the child with throughout the school. Mr. described the tracking system, small classes and particularly how the small classes and tracking system is beneficial for-a child like with a disability.

The evidence described the Edline and how its value was profound for children with organizational deficits such as , as it allows the Parents to remain informed as to their child's education as well as the progress or lack thereof. , the described how she works with and provided detailed examples of how she helps him with his organizational deficit including the use of binders, planners, and homework folders. There was testimony from the witness concerning the use of graphic organizers, chunking and scaffolding in order to break down and build time learning materials. The evidence established that is allowed to use a laptop at school and receives extended time for test taking. It is uncontroverted that has made progress, his grades have gone up and he has made emotional/social progress and has become somewhat of a “ ”.

As stated above, I agree with parent’s counsel the equities in the instant case favor the parent. The testimony was credible to establish that she provided requested information to the CSE, in the event that the Department found a placement for her child. She was ready willing and able to send her child to a public school if the appropriate was offered. The parent participated in the CSE meeting and freely exchanged information and produced documents requested. I also find that she made reasonable efforts to investigate the recommended placement.

In conclusion the evidence demonstrated that “ ” had awareness of needs and provided an individually tailored to meet his academic, social, emotional, and needs with an appropriate class grouping, an appropriate class size/staffing ratio, a close range of chronological age and academic functioning, use of multisensory and hands on approaches and a highly individualized plan to meet the child’s needs. The evidence established that the placement at was appropriate as the child has made meaningful educational progress.

Accordingly, based on the weight of the credible evidence, I find that the Parents have met their burden with respect to prong two and three of the Burlington/Carter analysis, that the they have provided for was uniquely devised to address his need in the LRE and therefore appropriate under IDEA and that the Parent has cooperated with the Department. I award full reimbursement for the School for tuition and for the . Dated: May 16, 2011

____________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New City Department of Education has a right to appeal the decision to the State Review Officer of the New 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 JANAUARY 24, 2011

PARENT

A Evaluation, 5/25/09, 12 pp. B Tuition and Fees, 3/18/10, 9 pp. C Enrollment Contract, 3/18/10, 3 pp. D IEP, 8/27/10, 24 pp. E Final Notice of Recommendation, 9/14/10, 1p. F Parent Letter to CSE, 9/30/10, 1 p. G Impartial Hearing Request, 10/11/10, 5 pp. H Letter from , 12/13/10, 3 pp. I Academic Report (1st Quart), 10/13/10, 1 p. J Academic (2nd Quarter), 1/6/11, 1 p.