New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District: 29

Hearing Requested By: Parent

Date of Hearing: April 12, 2011

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 12, 2011

Advocate — Parents

Principal — Parents

Father — Parents

Department Designee — DOE

Teacher — DOE

DOE

INTRODUCTION

On April 12, 2011, I conducted a hearing pursuant to the Individuals with Disabilities in Education Act (IDEA) 20 U.S.C. 1415 (f) (3), regarding impartial hearing case# 13014. The hearing was commenced at the impartial hearing office, 131 Livingston Street, Brooklyn, New York. The Parents submitted a request for an impartial hearing through their advocate, Dr. on October 13, 20 . The Department of Education, hereinafter referred to as “the Department” was represented by its chairperson designee, and the Parents were represented by their advocate, Dr.

. A list of witnesses who testified and documents received into evidence are attached hereto.

BACKGROUND

The student is currently a ( ) year old , who is classified as . On June 2, 20 , a Committee on Education, hereinafter referred to as Committee on Education (CSE) was conducted an Individualized Education Program (IEP) meeting regarding a education program for the 20 /2011 school year. The child hereinafter referred to as “ ” was recommended to attend a class in a community school with a staffing ratio of with related services as follows: individual once a week for 40 minutes and individual and therapy, two times per week for 30 minutes, individually. Additionally, the following accommodations were recommended: time and a half for test taking, questions to be read aloud, directions to be read and re read and use of a calculator.

THE PARENT’S POSITION

The Parent maintained that the individualized education plan, hereinafter referred to (IEP) was substantively invalid, the goals were insufficient and an appropriate recommendation was not made for their child.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department maintained that the child was properly classified as “ disabled” and that an appropriate recommendation was made for her to attend the School, with an appropriate class size and related services.

THE PARENT’S CASE

The first witness to testify was Dr. , who affirmed that he has been the educational Director of for the past twenty two years and is also an assistant professor at Touro College in and disabilities. Additionally, he stated that he was a certified facilitator for schools attuned to developmental variation, which is a program that was adopted by the New York City Department of Education, to assist children with individual specific disabilities (trans. 97).

The witness stated that has several schools throughout the country and that the facility located at School for is a “Flagship Program” with approximately 250-300 students; 25 of them are in the self contained program, with other children who get resource services. The 25 students fully partake in mainstreaming activities whenever possible for academic and non academic activities (trans. 98).

th

The witness stated that is a grader at and that students may take and RCT‟s in a fully accredited New York State Program. He also testified that there th were ten students in the grade class, divided into two groups and that was part of the lower functioning group. Further, has a schedule like any other student in the school, except that her classes are smaller, wherein accommodations could be made to service her needs (trans. 99).

Dr. stated that there are 11 periods a day and that two involve studies. Major secular studies such as reading, math, English and social studies, have four to five students per class and some of the other subjects have 8 or 9 children in the class. Additionally, is mainstreamed for periods, such as club, lunch, etc. (trans. 2). The witness further stated that is not mainstreamed for any academics at this time, due to the severity of her disability. (trans. 2). She began at last year after spending many years in elementary school and was “very far behind”, with very poor study skills, serious deficits, particularly in the realm of and processing”. requires that things be broken down with great detail as she has difficulty with retrieving information in the sphere with a poor active working . Her strengths lie in the social sphere and that is why the school, while providing services is an ideal setting for her (trans. 3).

Dr. testified that in his opinion, a student to teacher ratio was “much too large” as evidenced on the fact that when she came to she was so far behind (trans. 4). He also stated that receives and therapy and through a licensed and and therapist. Students graduating from receive New York State Diplomas and he stated that is struggling to reach that goal, however that she is making strides (trans. 5).

Dr. stated that is the second year at and has made progress in study skills and “knowing what it means to be a student and handle academics”. As her retrieval skills are poor, she receives a “word bank” and multiple choice tests in order to build up her ability to process and perform on different tasks (trans. 7).

The witness was directed to the child‟s observation report dated May 18, 20 , th h and noted that is working on grade math, her basic skills are on a grade level and a goal was to build up her skills so that she could take a grade math RTC (trans. 8).

The witness stated that the child shuts down in a large group and requires a small group where a teacher could redirect, break down material and provide encouragement that she needs (trans. 9).

Dr. was directed to Exhibit # which is a student enrollment contract, dated October 6, 20 and stated that the Parents are encouraged to visit public school sites and that if they find an appropriate placement, any money that is paid to may be refunded. Additionally, the was contract is dated subsequent to the beginning of the school year, as the Parent had difficulty visiting the Department recommended school site (trans. 1 ). He clarified by stating that even though the contract was dated October 6, 20 , the child was a returning student from the prior year and did begin classes at the beginning of the school year.

Dr. stated that there were two classes including “ of a and (Exhibit 12) (trans. 112), however, / is one class for 45 minutes and that Law is not considered instruction, as it is “history” (trans. 113), however conceded that it is a History / Cultural Class and that American History is taught in another course (trans. 114) He described the school day as beginning at 9:00 am and ending at 5:00pm and that all classes were approximately 45 minutes and that the students learn , which is a foreign , wherein they take a New York State

(trans. 115), however conceded that it is a History / Cultural Class and that American History is taught in another course (trans. 114)

The next witness to testify was the child‟s father, hereinafter referred to as “Mr.

.” who after affirmed and stated that he received a letter from the Department, wherein it was recommended that attend the School. He believed he received the notification in June or July 20 and went to the school to visit sometime in September, shortly after the school year began (trans. 120). He further stated that he went to the education department and was told that the person who was in charge was unavailable and that the education class was available for observation once a week and that he would have to return. The witness was directed to Exhibit “A” wherein he stated that he attempted to visit the recommended placement on September 22, 20 and a new appointment was made for him to visit with Ms. on October 8, 20 . He observed that the school was crowded and stated that his daughter would be unable to learn in such an environment; additionally, the children were not polite to each other and or to the teacher (trans. 122). He stated that to the best of his recollection, there were 15 to 16 students in the classroom, however, if a placement in a class with 8-9 children in an appropriate environment was recommended, he would have accepted same (trans. 123).

Upon cross examination of the witness, he believed that he received a notice of placement in June or July of 20 , however at that time, had not yet reregistered for (trans. 124). After he visited the School, he decided to send and reenroll his daughter at (trans. 127)

Upon further questioning of the witness, he confirmed that he signed the contract with on October 6, 20 and was uncertain exactly, when his child began attending in the 20 school year.

The witness stated that he paid the sum of $3,860 to from August 20 through March 22, 2011 as evidenced by an affidavit from Ms. . Lastly, the witness stated that she had cooperated with the Department, attended conferences and provided any documents requested.

THE DEPARTMENT’S CASE

The first witness to testify was , who stated that she has been employed as a consultant at the School for the past seven years. Prior to that, she has had experience as a teacher, assistant principal and member of the IEP team; in total, she has 48 years experience. She has supervisory/administrative degrees and is licensed in General Education and Education. She described the School as having various programs including collaborative team teaching, and placements in and type classrooms. There are resource rooms and the guidance counselors who are attuned to the education population, related service counselors and providers (trans. 17). Additionally, there is a great deal of emphasis placed on motivational techniques and self esteem; she described School as “a great school”.

The witness was directed to Exhibit 2, the child‟s IEP, and stated that based upon her experience the child was properly classified and appropriate recommendations were made for placement. (trans. 18). Additionally, there is a great deal of differentiation instruction, wherein the students could achieve intellectually, and .

The witness was directed to the class profile dated 4/6/11 and stated that the class had a variety of behavior and cognitive levels, wherein students get (trans. 19). There is differentiated instruction and a great deal of rapport between teacher to teacher and teacher to counselors through meetings wherein children‟s goals and objectives are constantly being reviewed (trans. 20). She opined that based upon review of ‟s academic scores, , functioning, that her needs could be met in the recommended placement (trans. 21).

Upon cross examination of this witness, she described the class profile and stated that would fit in. Additionally, many of the students have successfully received

Diplomas and others attain diplomas, based on passing required exams. (trans. 24).

The witness also stated that if a child wants to ensure that they are going to be able to graduate, it would not necessarily make a difference whether or not he or she were placed in a , or ratio, as each case is individual and it depends upon the student (trans. 26). She further stated that was not placed in a classroom as they are more typically reserved for “ ” children.

The witness stated that would have been sixteen at the time she began school and that the Department is permitted to have a three year expanse in education, more particularly, wherein the children could range from ages - in the recommended placement (trans. 37).

The last witness to testify was , who stated that she is currently employed by the Department of Education at CSE 3 as a school , case manager and district representative at CSE reviews (trans. 47). She evaluates / observes children, meets with teachers to create behavior modification plans if necessary and creates IEP‟s (trans. 47).

As a , she administers cognitive assessments, i.e., Intelligence Scale or

Individual Assessment Test. The witness was referred to the educational evaluation Exhibit 5 and stated that she reviewed same prior to the IEP meeting. On the basis of the evaluation, she described the child‟s intellectual abilities as “ ” and “drastically ” (trans. 53). Except for “working ” and her processing speed which was in the range, her full scale IQ was (trans.

th 53). At the time of the evaluation, the child was in grade and her academic performance was between nd and th grade levels, which all translate to a child who is low functioning (trans. 53).

Recommendations were made for placement in a small class setting with a ratio. It was also her recollection that the parents were interested in the program which is not part of the public school. She also had recollection of discussing smaller class sizes in District 75 which is , however those recommendations were not appropriate. Additionally, it was her understanding that the child was attending the program at the time of the IEP meeting which is a general education small class environment and a restrictive environment. As the Department is obligated to place the child in the least restrictive environment, a was too restrictive for her.

Ms. stated that the present IEP was a “no change IEP” and the child was recommended for a small class, however it was the Parents choice to place her at University for Girls with a general education environment with Education Teacher Support Services (SETSS). She conceded that SETSS with a general education diploma or Diploma are goals which can be achieved, but in a smaller setting with more support (trans. 57).

Upon cross examination, the witness stated that in differentiating between making a recommendation for versus , based on the child‟s severe disability, the first things considered are “least restrictive environment” (trans. 60). Additionally, she described the classroom and classrooms as being different in each school and that school based support would be the best source to decide under teaching techniques (trans. 61).

The witness reiterated that at the school level, recommendations are made for , however if one were to look at class profiles, in certain classes there would be less students for certain courses. (trans. 62)

She reiterated that at the time of the IEP meeting, was already in a regular general education program in a small classroom setting. Upon further cross examination, the witness conceded that Ms who participated at the IEP meeting was in fact a Education Teacher and that she was unfamiliar with exactly how to characterize the child‟s instruction at the . Ms. further testified that in her opinion, needed to be in a smaller environment with instruction and be taught all subjects by education teachers. When describing a small class, she stated it is not the size of the class, it is the provider in the classroom who actually provides the program for the students like and that once in the program, it could be decided if she would be able to achieve her goals (trans. 71)

Ms. stated that she had an involved lengthy conversation with the child‟s father in and explained to him what the Department‟s recommendation was and that he gave his reasons for preferring the program “due to his beliefs”. She responded by stating that it was his right to do so, however in her opinion that the child would have a difficult time (trans. 73).

The witness stated that typically, there is a draft IEP at the meeting and that items are added at the meeting and sometimes after the meeting.

The witness reiterated that Mr. . had no concerns about his child‟s education at and reiterated that he wanted her to continue there. The witness was also referred to the IEP wherein it was stated that the goals were created with the parents and teacher participation however, University did not provide goals for the Department as it was incumbent upon the Department to create its own goals (trans. 82). The witness was directed to Exhibit #6, student observation, dated May 18, 20 , wherein Mr. , the observer, noted that the child was weak academically, and required considerable teacher assistance with little or no intervention; with respect to these observations, the witness stated it was her recommendation that could be provided with a meaningful education in the recommended class.

Upon redirect examination, the witness stated that a class would not be appropriate as it has a second person in the classroom and is usually for children with behavioral difficulties.

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] [A]; Bd. of Educ. v Rowley, 458 US. 176, 179-181,200-01. FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 US.C. 1401 [9] [D]; 34 RCNY 300.17. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, 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 (Sch. Comm. of Burlington v. Dept of Education, 471 US. 359 [1985]; Florence County Sch. District Four v. Carter, 5 us. 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 complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the 'IDEA's procedures are 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] [ii] An appropriate educational program begins with an. IEP that 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 educational (Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd. 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. Fla. Union Free Sch. Dist.; 142 F, 3d 119,122 (2nd Cir. 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 Sch. Dist., 2007 WL 465211, at *S.D.N.Y. Feb. 9, 2007], citing Wa!czak, 14'2 F.3d 2t122). 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 36. 44 [5th Cir, I].

The fact that a student with a disability might make greater academic progress in a education class may not warrant excluding the student from a regular education program (Oberti v. Bd of Educ.• 995 F. 1204,1213 [3rd Cir. ]993]). The Daniel R.R. Oberti test for" determining whether a school district has complied with the LRE requirement consists of two prongs: l) 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 main streamed the student to the maximum extent appropriate (Daniel R.R. at 48). 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, and 3)the possible negative effects of the inclusion of the child in the education of the other students in the class (Oberti, at 1217-18). With Respect to Prong I The attorney for the Parent/child stated that the testimony from the two witnesses from the Department, both displayed a complete lack of understanding as to what the ‟s actual needs were. I agree that the education teacher described the program at the School and stated that she was familiar with same, however it became apparent that she was only at the school since November 2010. Additionally, the witness stated that if the child was placed in a class and that it was in fact too large for her that changes could be made. Her testimony was confusing as she initially testified that a class was for children and the stated that it could be for disabled children. This witness was not able to testify with certainty as to what „criteria” would be used to determine if a smaller class would be required, but that determination would need to be made by a .

The ‟s testimony was also confusing in that it was unclear if she based her recommendations on the 2007 or 2008 evaluations. It is difficult to understand how in what manner the IEP team could make a recommendation at the IEP meeting by utilizing the 2007 evaluation. Additionally, the Department‟s incorrectly stated that the ‟s class at t was a general education class as opposed to a education class, which indicated a lack of understanding of the child‟s program at I agree with Parent that the recommended placement was inappropriate and that the class size that was recommended was too large for the child to obtain a meaningful education as she was significantly delayed and behind grade level. Additionally, I find that the Department's witnesses failed to present sufficient credible evidence to establish that it understood the child's prior program at . The Department witnesses failed to establish that could make meaningful educational progress in the recommended placement and failed to present credible evidence that the recommended program was reasonably calculated to confer educational benefit.

Lastly, the proposed placement does not offer a suitable and functional peer group for instructional and social/emotional purposes. According to New York State Law, students with disabilities, while placed together, for the purposes of receiving educational services, must be grouped with a suitable peer group. In particular, to be in a class with students that share a similarity of needs in terms of academic or educational achievement, characteristics, development, levels of development and management needs (8 NYCRR § 200.1 (ww)(3)(ii); 200.6(a)(3)). The evidence was convincing to establish that the CTT placement offered for this child would not be suitable for instructional and social emotional progress. With Respect to Prong II

In establishing the appropriateness of the services sought by the Parents, the Parents need only demonstrate that the services sought provide educational instruction specifically designed to meet the unique needs of a child with a disability, and that such services are necessary to permit the child to benefit from the instruction. Evidence of progress is also a relevant factor in determining appropriateness Id., 459 F. 3d 356.

The NYS Education Department in its August 1995 field memorandum, recognized that while the child required education services beyond the school day, the SRO applied this standard in Application of a Child with a Disability, Appeal No. 9730, where he concluded that a child who received both school and home based services continued to require the home based services, in view of the child's relatively severe educational deficit, as well as the fact that he did make significant educational progress while participating in the district recommended program and the program provided by his parents. "Further, while the SRO found that it could be determined with certainty whether the child's educational progress was a result of the district program, the home program or both, he was not convinced that the child could have made the progress without the parent's home program. The SRO has also held that recommendations must be based on the level of services that are appropriate to meet the child's "unique education needs", rather than the length of the school day.

The testimony of Dr. , the school Principal at supported the finding that the education being supplied to was reasonably calculated to enable the child to receive educational benefit. is receiving instruction to address her difficulties relating to processing, and . The educators at the school are utilizing individualized interventions, including / therapy, and a multi curriculum. I find that her placement in a small class setting as described herein was appropriate and afford with the opportunity to obtain a meaningful educational benefit and it is undisputed that she has experienced "measurable academic and progress". The parents' witness provided detailed testimony describing ‟s deficits and needs. It is undisputed that her program is working and is successful in the LRE.

I find that the parent has established that the was an appropriate placement for the child. I have considered the totality of the child's success, and find that the parent's unilateral placement provides educational instruction designed to meet the child's needs. With Respect to Prong III Equitable consideration for the fact finder to consider in determining whether reimbursement and related relief is appropriate "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability, Appeal No. 05-087 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530,533 (N.D.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773,801-02 (1st Cir. 1984) aff'd, 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized, "in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See supra, Appeal No. 05-087 (referencing Application of the Board of Educ. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).

‟s parents complied with every request for evaluation or assessment and gave appropriate and timely notice to the Department; acted reasonably, and cooperated at every stage. Accordingly the Prong III equities amply support and her parents. The District argued the equities in this case is weighted against the parents for initiating placement at prematurely before even looking at the recommended placement. I find that the parent acted reasonably and satisfactorily explained the reasons for making such enrollment to ensure that he had placement for his child if the recommended placement was not appropriate.

Based on the evidence and testimony at trail and the relaxed standard of ., and for all of the foregoing reasons, I support the Parent that the and the additional therapy services that are being provided are an appropriate placement and program for and is "reasonably calculated" to provide her with a meaningful education benefit. has made meaningful progress and I award reduced reimbursement as hereinafter ordered.

However, the IDEA is clear in its intent and purpose to provide children with educational programming and services that will help them achieve self sufficiency and progress towards the general education curriculum. I find that the district failed to offer a FAPE and order as follows:

I find that an award of reimbursement should be reduced by the percentage of instruction provided to the student at the unilateral placement selected by the Parent. As there were two classes each day out of a total of 11 periods, this would translate to an 18% reduction in the amount that the Department would be obligated to pay. As the total tuition is $35,000.00 less 18%, the Department shall pay the sum of $28,700.00. Dated: June 7, 2011

________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP: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 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‟S EVIDENCE

Exhibit# Description Page/s 1 NYC BOE IEP dated 6/2/20 14 2 Placement Notice Dated 6/04/ 2 3 Impartial Hearing Request – /11/ 3 4 Letter Notice dated 9/13/

2 5 Progress report dated 12/17/09 2 6 Student Observation - dated 5/18/20 2 7 CSE Review 06/02/ 2 8 Parent Letter Re: School Visitation 1 9 educational Evaluation 12/12/08 5

Contract 2 11 Connors Affidavit 1 12 Class Schedule 1 13 and Evaluation 1/9/08 4 14 Update 12/18/07 3 15 Authorization of Representation 9/2/ 1

DEPARTMENTS EVIDENCE

1. Impartial Hearing Request – /13/ 2

2. IEP 6-2- 14

3. Final Notice 6-4- 2

4. Class Profile 3

5. -Educational Evaluation 12-5-07 9

6. Student Observation 5-18-