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: November 30, 2010

January 4, 2011

January 19, 2011

February 8, 2011

February 18, 2011

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 30, 2010

-, — Student

Parents

Parents

CSE Chairperson Designee — DOE

School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 4, 2011

-, — Student

Parents

Parents

CSE Chairperson Designee — DOE

Education, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2011

-, — Student

Parents

Parents

School — Student

CSE Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 8, 2011

-, — Student

Parents

Parents

School — Student

CSE Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 18, 2011

-, — Student

Parents

Education (via telephone) — Student

CSE Chairperson Designee — DOE

The matter of came before me on November 30, 2010. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. s. 1415(f)(1) was October 18, 2010. The hearing was convened at the request of the parent, which was received on October 13, 2010. The hearings were held on November 30, 2010; January 4, 2011, January 19, 2011; February 8, 2011 and February 18, 2011. The parties made no request to submit post-hearing memoranda. The compliance date is extended. Appended to the record are the lists of persons in attendance and of documents submitted into evidence.

Parent has requested this Hearing seeking (1) tuition reimbursement at The School (“ School”) for the 2010-2011 academic year. The Parents allege (1) the Committee on Special Education (“CSE”) failed to reference any testing or evaluations when designing the student’s Individual Education Program (“IEP”); (2) that the Education was not qualified to participate as a member of the CSE; (3) that the IEP lacks any measurable standard to assess the student’s progress.

BACKGROUND

This student is currently in the grade, years old and classified by the IEP (Exhibit 3) as . He is currently grouped in an age appropriate at the School. The of the student is not in contention. This is a unilaterally parent chosen school which terminates at the grade. The School is a special education institution and is not a NYS approved school for the placement of education students. The student has attended this for the previous years either via placement by or settlement with the NYCDOE.

THE POSITION OF THE PARTIES

The specific complaints of the parent against the New York City Department of Education (“NYCDOE”) are that the CSE meeting of May 2010 was deficient in that there was (1) no qualified regular education teacher present at the meeting (Ex. 1-2) ; (2) the CSE team failed to obtain current evaluative tests to ascertain the functioning levels of the child (by criterion referenced tests, standard achievement or diagnostic exams) and

(3) the student requires a small class for educational progress to be achieved (Ex. 4;and Ex. 6-2). Parents allege that the most recent exams from 2005 are stale and current reliance solely upon teacher evaluations is unacceptable and deficient for evaluating the student’s present levels of performance. Parent further complains that the evaluation methodology for determining annual goals and short-term objectives are vague and insufficient for measuring student progress. Parents definitively state that the - (“ ”) class is too large and would not provide the individual attention the student requires (for re-direction, re-focusing and prompting) and as such a small dedicated class is necessary for the student to maintain educational progress (Exhibit 1-3). Lastly, the parents challenge the qualifications of the general education teacher attendant at the CSE meeting.

The NYCDOE takes the position that the regular education teacher attending the CSE meeting was highly qualified. Further, it is the position of the NYCDOE that the CFinal Notice of Recommendation (Ex. 7) constituted a proper placement and that the IEP was thorough accurate and used the available documents and evaluations (Ex 6-2) of the qualified teachers and service providers from the School. Tr. p. 23-26. Further the NYCDOE alleges that the student’s need for re-direction and re-focusing can be managed by the classroom . The NYCDOE takes the position that the results of the 2005 assessment would not vary significantly and that the teacher reports are detailed and sufficiently competent to be relied upon. Tr. p. 29-30.

THE PARENT’S CASE

The Parent represents that this student is a functioning student to cognitive skills) in daily life but whose handicap manifests academic difficulties ( and within the Demand for an Impartial Hearing challenges the NYCDOE for its lack of “necessary evaluations and assessments” and its failure to use appropriate criterion referenced tests, standard achievement tests or diagnostic tests to develop a proper IEP (Ex. 1-2). Parent credibly testifies that no formal or standardized testing has been performed since 2005. Tr. p. 380-383; Exhibit 4. This allegation is supported by the documentary evidence submitted by the NYCDOE, and the lack of any recent standardized testing instruments documented within the IEP (Ex.3-3). Tr. p. 27-29. There appears to be some subtle acquiescence between the parties to not be anxious in conducting evaluative testing. Tr. p. 206-214. The parties subsequently have agreed to conduct testing.

The qualifications of the staff at the parent unilaterally selected school are more than meager, they are substantial. The education school that the student attends is a graded and last year’s possesses multiple graduate degrees and is currently awaiting finalized state certification for grades (general and special education). Tr. p. 221-223. This Teacher’s Evaluation is one of the instruments relied upon by the CSE in the challenged IEP (Ex. 5; Tr. p. 26).

The student’s current possesses a Master’s degree in education and is New York State certified in education with more than a decade of teaching experience. Tr. p. 297. The instructional personnel at the School present as highly qualified and intensely involved in the academic and psychological development of their students and the testimony of both indicate same. Tr. p.226 and at 321-323. The class size at the School is small permitting focused attention with an average population of about students to one teacher; these small classes provide intense and individual instructional opportunities maximizing specialized individual attention for each student. Homework is regularly assigned and the student is reported as doing well both academically and socially. The goal of the School is to prepare its students to integrate into mainstream school placements and succeed within the general education environment; many Student go on to higher education notwithstanding their handicaps. Tr. p. 359-365. The School indicates this grade placement is the first year of a projected two-year program before transitioning into high school.

By teacher estimates School the student is reading at the grade level and similarly his math estimates are also at the grade level. This teacher estimated assessment of June 2010 was used at the May 2010 CSE meeting (conclusion of the grade) in the development of this contested IEP. Exhibit 6. As indicated, the student struggles with decoding and sequencing which affect his reading comprehension and math word problems. Tr. p. 311-316. The student currently has a math pre-algebra curriculum and in ELA one current literature project is a novel by George Orwell, teacher adapted modified and supplemented with films lectures and other aids. Tr. p. 315-322. The student is reported to be very receptive to higher level work not withstanding the he must work through. Tr. p. 327-328.

It is acknowledged between the parties that this student has issues and and these form the of his . Tr. p.229-230.

THE NYCDOE CASE

The NYCDOE maintains that the and related service evaluations of the School staff were sufficiently detailed and comprehensive to accurately assess the needs of the student. The student’s and sessions have previously concluded. Simultaneously the NYCDOE acknowledged that standardized testing evaluations were overdue and have agreed to conduct same prior to the next CSE meeting. The School teacher who participated in the IEP review further indicated that his behavior was not an issue however his educational needs mandated a small class, said opinion was carefully documented (see Ex. 6). The CSE Rationale and IEP indicate it considered a self-contained class but assessed the student as inappropriate for such a restrictive environment as his cognitive abilities were appropriate for the general education curriculum with modifications. Tr. p. 28-31 and 41-42. The NYCDOE programmed this child for an ICT general education program meeting the mandate of placement within the least restrictive environment. The parents and educators have denied any . (“ ”)

The NYCDOE presented the projected Education who is - within the class to which the student was assigned. Her testimony carefully explained the systematic approaches modifications supports and modes of differentiation employed in the education of her IEP students. Her credentials and experience are as impressive as are her statistics of success with 100% promotion of last year’s assigned students. Tr. p. 109-110 and 149-152. This student’s IEP provides for supplemental aids and strategies (Ex. 3-3) to give guidance to instructors and teachers on how best to achieve success in educating the student. The IEP also identifies specific accommodations to be afforded the student during standardized testing to assure his handicapping condition is being addressed (Ex. 3-11). The Special Education Teacher upon cross-examination gave clear testimony concerning her interpretation of the strategies and supports need and the methods of measurements identified within the IEP and how they would be implemented. Tr. p. 172-

191. The parents claim that various goals to address specific identified needs of the student were not addressed within the IEP; upon cross-examination the NYCDOE Education acknowledged that organization and attention goals were not listed but it is clear that goals and standards of measurement were identified for math and English (Ex. 3-7 and 3-8). Tr. p. 192-194.

The final challenge to the composition of the CSE team that created the IEP is that the NYCDOE General Education Teacher who participated was unqualified (Ex. 1-2). The Parent through subpoena submitted the NYS license and certification of the individual. Her testimony clearly confirmed her qualifications (Ex. E). Tr. p. 493-494. The documented experience of 21 years junior high school teaching and her continuing performance in that role qualifies her undeniably.

FINDING OF FACTS AND CONCLUSIONS OF LAW

Initially I find that the NYCDOE has failed to conduct a current standardized test to further confirm the extent of this student’s handicapping condition. The NYCDOE has indicated that the 2005 evaluation (Ex. 4) and the 2010 detailed Progress Report of the School (Ex. 5) together were accurate and sufficient to permit the development of an IEP that was competent to provide a proper program for the student. Tr. p. 51-54.

A Free Appropriate Public Education (“FAPE”) includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 USC sec. 1401[d][1][A]. The core of the statute is the collaborative process between parents and schools primarily through the IEP process.

“A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v.

Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . .

affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388[S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Application of a Child with a Disability, SRO Appeal

No. 07-10.

Here, the parent and school have disagreed on two crucial points. First, The hearing record indicates that the parents disapproved of the program and placement recommendations in the May 2010 IEP (does an class provide an environment so overly large such that the student would be unable to obtain an educational benefit and therefore denied a FAPE) Ex. 6; secondly has the absence of a current evaluative test prevented the CSE from designing a proper IEP such that the student is denied a FAPE? In this instance, according to the testimony of the NYCDOE (Tr. p. 50-54) her opinion about the lack of a current test was that “the cognitive skills don’t change much over time”. Together, when bolstered by the detailed teacher evaluation submitted by the School Teacher she opined that the information was detailed and sufficient to construct an effective IEP. Tr. p. 49. I concur that the IEP was accurate and proper in its formulation of a program for this student notwithstanding Parent’s allegation that the 2005 evaluation was stale and therefore invalidates the 2010 IEP process and result. The parties have agreed to schedule testing in time for results to be available for the upcoming CSE meeting.

The disagreement between the NYCDOE and the parents (including the educators of the School) about the class size (Tr. p. 497-498) is diminished when comparing the difference in the nature of the private school philosophy/methodology (a totally selfcontained special education small class institution without possible integration with nonhandicapped peers) with that of the NYCDOE. One of the mandates of the Individuals with Disabilities Education Act (“IDEA”) is that special needs children are to be educated within the least restrictive environment to the extent possible. This goal is not within the framework of the School, it operates solely as a special education institution based on small self-contained class philosophy. The NYCDOE is mandated to comply with state determined standards demonstrating a level of academic/educational accomplishment measured by standardized state-wide examinations. does not participate in this process. Small (self-contained) special education classes are available for students (within the NYCDOE) who cannot be expected to meet state-wide standards due to their handicapping conditions; this student is not so impacted and not an appropriate candidate for such a program. The NYCDOE has determined that this student can be educated (with the appropriate identified supports) within a general education environment and I concur. This is an acknowledged bright diligent student cognitive abilities) that can succeed within the ICT class as programmed by the CSE.

The last objection by the parents to the May 27, 2010 NYCDOE CSE composition challenges the qualifications of the General Education Teacher that participated in the CSE meeting. Pursuant to the documentation submitted by the Parents (Ex. E) and the testimony of the Teacher (Tr. p.493) I find this claim to be without merit.

Although it has not been addressed by either of the parties during the course of this hearing it is clear from the submission of Exhibits A and B (the payment documents) that parents intended to enroll this student at the School 3 months prior to the CSE meeting, regardless of the outcome. The contract was executed in February 2010 and substantial payments were made in February and May 2010 (prior to the CSE meeting). Further there is no 10 day notice produced (or indicated) declaring the intention of the parents to charge the NYCDOE with tuition payment for the parentally placed student. Perhaps this has been an assumed state of affairs between the parties given the history of this student’s educational placements.

Based upon the foregoing I find that the parent has not sustained its burden in its challenge to the sufficiency and appropriateness of this IEP and therefore this matter is DISMISSED. Dated: March 15, 2011

_____________________________________

, ESQ.

Imparial Hearing Officer

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 ON NOVEMBER 30, 2010

PARENT

None

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 10/13/10, 3 pp. 2 NYCDOE Response, 10/22/10, 4 pp. 3 IEP, 5/27/10, 11 pp. 4 Evaluation, 8/9/05, 12 pp. 5 Progress Report ( School), 2009-2010, 10 pp. 6 CSE Review Rationale, 5/27/10, 2 pp. 7 Placement Offer, 8/5/10, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 18, 2011

PARENT

A Enrollment Contract, 2/20/10, 2 pp. B Proof of Payment, 2/20/10-1/12/11, 5 pp. C Class Schedule, 1/3/11, 1 p. D Class Profile P.S. , 2/16/11, 3 pp. E General Ed Teacher Credentials, Various Dates, 2 pp.

DEPARTMENT OF EDUCATION

None