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: May 26, 2011

September 23, 2011

October 18, 2011

November 8, 2011

Actual Record Closed Date: November 15, 2011

Hearing Officer: Susan C. Lushing, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 26, 2011

Attorney — Student

Chairperson's Designee, CSE — DOE

School (Via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 23, 2011

ESQ., Attorney — Student

Parents

Chairperson's Designee, CSE — DOE

Special Education Math/Science — DOE

Teacher, (Via Telephone) — DOE

Special Education ELA Teacher, — DOE

(Via Telephone) — DOE

Assistant Principal, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 18, 2011

Attorney — Student

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 8, 2011

For the Student:

, ATTORNEY

, PARENT

, Director , Teacher

For the Department of Education

,

I was appointed as the Impartial Hearing Officer in this matter on October 20, 2010 after a request for an impartial hearing was received by the Department of Education (DOE) from the attorney representing the parent. The impartial hearing was begun on May 26 and continued on September 23, October 18 and November 8, 2011. Dr. represented the DOE and , Esq. from the Law Offices of represented the parent. The parent is seeking tuition reimbursement for the for the 2010-2011 school year pursuant to School Committee of the Town of Burlington v Department of Education, Massachusetts, 471 U.S. 359 (1985) and Florence County School District v Carter by Carter, 510 U.S. 7 (1993). Upon joint request of the parties, the compliance date was extended with a final decision date of November 17, 2011.

DEPARTMENT OF EDUCATION’S CASE

The DOE presented ten documents as DOE Exhibits 1-10 and called four witnesses in support of its recommendations on the Individualized Education Program (IEP) of June 11, 2010 (DOE Exhibit 3) and placement offer at dated August 12, 2010 (DOE Exhibit 8).

was the and District representative at the IEP meeting on June 11, 2010. Also present were both parents, a DOE special education teacher who was also a licensed and two educators from the School: the special education coordinator and the student’s classroom teacher. No DOE general education teacher was present or a parent member as they were not available. The IEP team reviewed the documentation in the file. (DOE Exhibits 4, 5, 6, 7 and 9). There was no classroom observation nor more current evaluations conducted by the DOE. There does not appear to have been a social history update performed.

The conclusion of the team was that the student presented as a youngster of and issues of . Although the wrote that “his difficulties are features”, Dr. ruled out placement with children. (DOE Exhibit 6). The IEP team considered this letter to rule out an disorder diagnosis. Instead it found the student’s deficits to be in the areas of that resulted in his functioning in the classroom below grade level at in reading and in math. In addition he presented with a in reading social cues. The IEP included goals to address . The team changed the student’s classification from learning disabled to impaired without any dissention and recommended as the least restrictive environment a 12:1 special class in a community school with related services of . (Tr. of 5/26/11 at 758).

Three witnesses testified from the recommended placement at . taught weekly eight periods of math and four periods of science in 2010-2011 to two special education grade classes using and small group instruction: class 707, [a class that was discussed at some length by the witness during his testimony but is actually irrelevant to this hearing] and class , a class. In September 2010 there were 11 students in class with two assigned paraprofessionals for health and language purposes. The students were between ages , classified as or and were functioned in math between high grade to low grade. They received related services of ). The school occupies of the building and has about 600 students in grades . There is also on the floor using common stairwells. About 250-300 students eat together in the lunchroom supervised by six adults: a dean, an assistant principal plus teachers and aides. (Tr. 65-113).

taught ten periods a week of English Language Arts to class . The students were primarily and functioning between the grade in reading and grade in writing. She used differentiated instruction and strategies including a Smartboard. The students in the class were similar to this student in their classification, and , academic levels of performance in reading and writing and distractibility with the need for redirection. (Tr. 116-138). , assistant principal in charge of special education, testified that during 20102011 school year all students received their mandated services at the school. She met with the father when he came to visit the school early in the year with an IEP and an authorization letter for a class. There are no students at with . Several classes of special education students have gym together two periods a week in groups of 24-30 with paraprofessionals present. The students also have music and technology taught by a general education teacher. (Tr. 140-175). PARENT’S CASE:

The parent called three witnesses and introduced 14 documents in evidence as Exhibits A-N.

The father testified that teachers in pointed out issues with his son at or that he did not understand subtleties of and would become without and explanation. The family returned to New York when the student was . He began at a small nonpublic and did well the with extra help from the teacher plus an outside . By the fifth grade he was less successful academically and became sad. The parents obtained a evaluation (DOE Exhibit 4) and then contacted the Committee on Special Education (CSE). His son attended the ) in the sixth grade in 2009-2010 in a class with a special education teacher and only four students. With a lot of praise and support, he began to understand his social environment and was able to function without although he did not manage to have a best friend. An incident highlighted the risk if he were not adequately supervised and protected in . The student was persuaded and and was .

The father attended the IEP meeting on June 11, 2010. During the meeting he was very satisfied and felt the team was communicating well about his son and his needs. There were insightful questions from the DOE personnel and a lot of discussion about pragmatic skills and his need for a and a small . When he received the written IEP however, it did not reflect his . His son continued at - in mainstream classes and with a teacher responsible for . He made progress and with social issues with this support.

When he received the final notice of recommendation in August (DOE Exhibit 8), the parents called but were told to come when . They also wrote to the Committee on Special Education (CSE) (Parent’s Exhibit A). The father visited on September 15, 2010 and was given a tour by helpful DOE personnel. When he asked about s and his son’s needs, the suggested that his son not attend the school as had experience primarily with specific and ). The father also had concerns that his son would not be able to navigate the school environment alone without stress and that the grade would be assigned to the arts program rather than the math and science one where his son was likely to excel. He wrote a letter to the CSE specifying his objections and continued him at where the tuition was $31,270 (Parent’s Exhibit B). (Tr. 186-223).

Two witnesses testified from the . , the director of special education, described the school generally. There are 540 students from , about 50 of whom are special education students. In the grade this student was a who had difficulty with and . He was excellent in skills. Socially he was friendly ; he worked hard to be accepted but misinterpreted social cues and interacted inappropriately. He needed guidance and support to overcome the effect of ’s syndrome. The special education students in the were mainly in with support from a special education teacher who provided skills periods per week. For the first half of the year she also provided ELA to this student in a of two students; for the second half he was in a class with and reading to his skills level. There are ten periods per week of studies. Lunch consists of about 50 grade boys supervised by teachers though not necessarily a special education teacher. The student has made progress academically during 2010-2011. He could more easily follow schedules, and be more independent. With the help of modeling and review of his actions, he was better able to understand and handle stressful social situations and to know when to stop. There were on staff to provide and help him to as happened after an incident when he felt picked on during a recess soccer game.

was the special education teacher during 2010-2011 for this student and three other boys. For math, science and social studies she followed him into mainstream classes with 22 students. In English she taught him for part of the year and then he moved into mainstream ELA. During the skills periods she worked with the four boys on their weaknesses and previewed, reviewed and modified the material. Although the student’s reading is . He is affect his performance on though he excels at . In writing she used organizers to help him organize his ideas. Socially he has difficulty in differentiating teasing from more serious conduct. She talked to him and used to .

FINDINGS OF FACT AND DECISION

A Board of Education may be required to reimburse parents for their tuition cost if the services offered by the Board are inappropriate, the services selected by the parents are appropriate and equitable considerations support the parents claim. School Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 510 U.S. 7 (1993). As the State Review Officer repeatedly emphasizes, appropriate recommendations start with an IEP that accurately reflect the results of evaluations, identifies the student’s needs, establishes annual goals related to those needs and provides for appropriate special education services. (8 NYCRR 200.4[d][2]; Appeal No. 01-088, 07-018).

Having carefully reviewed the IEP and the supporting material available to the team, I find that the IEP did not accurately and adequately describe the student and his combination of educational needs. The IEP emphasized some of his deficits and properly addressed them: his , skills; his issues with require small group and/or other supports for . However there were some omissions in the IEP. There was minimal attention to his weakness in auditory processing as described by Dr. in 2008 in DOE Exhibit 4 and by Ms. , his , in her progress report of January 17, 2010, the only evaluative material reasonably current that was available to the IEP team.

The IEP was , however, in that two significant elements of the student’s disability and resulting educational needs were mentioned but under-addressed, namely his . Under present performance, he is described as “ ” with “some with ”, as “ at beginning of school year” and having “ surrounding ”. (Exhibit 3-6). These descriptions grossly distort and de-emphasize more significant needs. Dr. described more prominent anxiety (Exhibit 4-7). Dr. reported that his , and difficulties suggested . According to Mr. the DOE chose to ignore possible ’s – and did not include it on the IEP - because Dr. ’s ruled it out. This was a misinterpretation as what Dr. actually ruled out was placement in a setting of children with not the diagnosis (DOE Exhibit 6). In any event the IEP made no entries for specific management needs on page 3-6 and recommended only 1x40 (combined with speech 2x40) to address his significant deficits in, and . Without a complete educational description of the student on the IEP - and independent of the confusion in the record as to the actual recommended class - placement at was not and could not be established as appropriate to meet his educational needs.

As to the proper classification, while he has a complexity of , his dominant deficits arise from a . Whether the educational classification should be or a disability is difficult to decide. Ultimately what is critical is that the IEP properly address these needs as well as his , issues, As the IEP of June 11, 2010 did not do so, I find the student was not afforded a FAPE for the 2010-2011 school year.

Turning to prong 2, I find that the parents proved that the was an appropriate placement for this student. Academically he was able to be – in an -type class with Ms. present for individualized support, for math, science and social studies for the entire year and ELA for the second half. He also received the equivalent of daily in a group of . While not licensed in special education, Ms. was an experienced teacher who modified the curriculum to his level when necessary and used techniques such as previewing and reviewing the lessons and assignments and graphic organizers for writing. She also was available as a social coach to talk about and to provide modeling for with his peers. There were available for . Because the school was small, the student was observed and supervised at larger group activities, such as lunch with 50 students in the and grades. Thus I find that the parents have established prong 2.

As to prong 3, the parents were cooperative with the CSE throughout: sharing documents, attending meetings, visiting the proposed placement and communicating promptly. I find no equitable impediment to reimbursement under Burlington and Carter. While the tuition at MDS of $31, 270 is reasonable, ten periods or 28% of the school week is devoted to religious studies and cannot be reimbursed.

THEREFORE IT IS ORDERED that upon proof of payment, the DOE shall reimburse the parent for tuition at the in the amount of $22,514 for the 2010-2011 school year. Dated: November 16, 2011

SUSAN C. LUSHING, ESQ.

Impartial Hearing Officer SCL: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

A Parent Letter, 8/20/10, 2 pages B Parent Letter, 10/3/10, 2 pages C Report, 12/10, 8 pages D Report, , 6/9/03, 9 pages E Initial Referral and Medical Forms, 2/19/09, 4 pages F Affidavit, 10/11, 1 page G Attendance, 10/11, 1 page H Tuition Contract, 11/11, 1 page I Class Schedule, 11/11, 1 page J Parent Proof of Payment, 10/11, 5 pages K Description, 10/11, 1 page L Report Card, 10/11, 3 pages M IEP Update, 6/11, 8 pages N Cancelled Checks, 11 pages

DEPARTMENT OF EDUCATION

1. Impartial Hearing Request, 10/19/10, 2 pages 2 Department Response to Parent Request for Impartial Hearing, 10/29/10, 3 pages 3 Individualized Education Program (IEP), 6/11/10, 18 pages 4 Evaluation, 9/12 & 19/08, 11 pages 5 Related Services Student Progress Report, 1/10/10, 4 pages 6 Clinical Summary, 6/4 & 14/09, 1 page 7 Physical Examination Form, 8/24/10, 2 pages 8 Placement Officer, 8/12/10, 1 page 9 Teacher Report, 1/6/10, 2 pages