New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 21 Hearing Requested By: Parent Date of Hearing: January 20, 2011

March 7, 2011

March 8, 2011 Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 20, 2011

Attorney — Student

Parents

CSE Representative — DOE

IEP Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2011

Attorney — Student

Parents

CSE Representative — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 8, 2011

Attorney — Student

Parents

Parents

Educational Director — Student

Ph.D. Psychologist — Student

CSE Representative — DOE

I. Introduction — DOE

On October 26, 2010, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the education program of (" "); the hearing was held on January 20, March 7, and March 8, 2011. Lists of persons in attendance and documents received in evidence are appended to the record.

II. Background

is a year old student classified with as (“ ”). On June 17, 2010, the Committee on Education (CSE) held a review and issued an IEP (Exh. 1) recommending an integrated co-teaching (“ICT”) class in a community school, with and therapy twice per week for 30 minutes and once per week for 30 minutes 3:1, occupational therapy (“OT”) twice per week for 30 minutes , counseling once per week for 30 minutes and once per week for 30 minutes , and a crisis management para. A final notice of recommendation sent to ’s parents on June 24, 2010 (Exh. B) did not list a specific site; a place in was offered in a FNR dated July 30, 2010 (Exh. 3). ’s parents unilaterally placed him in the program at (“ ”), a non-approved private program. On October 25, 2010, , Esq., attorney for ’s parents, requested the instant hearing (Exh. A), alleging, inter alia, that the department of education failed to offer free appropriate public education (FAPE) to , that the CSE improperly classified as , the Individualized Education Program (IEP) has substantive and procedural defects, and that the recommended program and site are inappropriate; the hearing request seeks classification with , and tuition reimbursement for ’s 2010/11 tuition at

III. The CSE’s Case

, a department of education education teacher, testified that has been an “IEP teacher” assigned to for 10 years, and that his duties include participating in annual reviews, IEP compliance, and working with students in crisis; he is part of the school’s school-based support team (“SBST”). Mr. state that has education classes for students in kindergarten through grade, including self contained 12: and ICT classes; there are two grade ICT classes. Mr. said that an ICT class can have no more than 32 students, and no more than 40% of them may be students classified with disabilities. All related services are available in , and there are some academic intervention services (“AIS”) available, including reading teacher services and after school tutoring. Mr. reviewed ’s IEP; he never met . ’s parents visited on September 13, 2010. Mr. stated that they did not have any “materials” with them and told him they wanted to see a grade class; they were shown a grade class. Mr. said that he usually asks visiting parents for the student’s IEP, and did not recall if ’s parents had his IEP with them; Mr. acknowledged that the IEP clearly states that will enter grade in September, 2010; Mr. said that the school principal gave him written instructions to show ’s parent a grade class, that he believed he showed the parents the recommended class, that he did not realize his error until he received ’s IEP one week before the hearing, and that the parents should have been shown a grade class. Mr. said that the class actually recommended for had 31 students, including 8 classified with disabilities, which met the “40%” requirement. Mr. said that the grade class shown to ’s parents had 11 classified students and that he did not tell the parents that at least half the students in the class were classified with disabilities. Mr. stated that the functional levels of the students in the class vary, and that ’s scores are consistent with those of the students in the recommended class. He said that the class “covers all required subjects,” and that there are 3 report cards per year. Mr. stated that none of the students in the recommended class have ’s Disorder.

, Ph.D., a department of education school assigned to CSE 6, testified that her duties include evaluations, annual reviews, and observations. Dr. participated in ’s June 17, 2010 IEP meeting as district representative and schoo

; she stated that the team recommended counseling, and therapy, and a para to address ’s poor focus and issues. Dr. stated that no one at the meeting objected to the related service recommendations and testing accommodations, and that the “Health and Physical Development” section of the IEP was based upon information supplied by the parent. ’s parent disagreed with the recommended classification, and told the team that “ ” was the appropriate classification; the parent told the CSE that she would not enroll in a public school, and was investigating several to place him. Dr. stated that the team telephoned ’s school and learned that ’s teachers were not available to participate in the IEP meeting; the school principal participated via telephone (Exh. 4). Dr. did not know if the CSE sent prior written notice to the school to secure the teachers’ participation. She stated that ’s parent gave the CSE the private evaluation (Exh. C) in which is diagnosed with ’s Disorder; she did not recall if the team discussed the evaluation during the review. Dr. stated that test scores in the evaluation indicate that has above average reading skills, slightly computation skills, and a 1.5 year in problem solving skills. Dr. acknowledged that the - evaluation indicated that achieved a 1.8 grade level score on the WIAT reading test, and a 5.0 grade level score on the GORT reading comprehension test. Dr. did not remember what other documents the team reviewed, and did not recall if the department of education evaluated . Dr. testified that is classified as because he has various “issues,” including sensitivity, poor , “cognitive inflexibility,” problems, poor and pragmatic skills, and unusual responses. Dr. stated that is not an appropriate classification, because has average cognitive functioning, and because students with ’s Disorder usually do not exhibit delays. Dr. testified that she agrees with the - ’s diagnosis of ’s Disorder. Dr. stated that the IEP does not have a “staffing ratio” for the recommended program, and that the FNR does not list a school. Dr. stated that does not exhibit threatening or aggressive behavior, and that the CSE recommended a crisis management para to help focus and function in class; the - evaluation does not recommend that have a para. The CSE wrote a BIP for ; they did not do a FBA, and Dr. could not state what is the “ behavior” which cause to become upset.

IV. The Parent’s Case

, Ph.D., testified that he has advanced degrees in and therapy, education and administration, and has been Educational Director of for 29 years; his duties include supervision and admissions. Dr. stated that is a program for students with a broad spectrum of disabilities; there are 7 or 8 students in a class, teachers are certified and receive training in -developmental delays, and teaching assistants are enrolled in education or and programs. The program offers related services and adaptive physical education; the students have a social skills plan, developed by a therapist, teacher and psychologist. Dr. meets with each student’s team twice per month, and maintains frequent communication with them. programs are housed in mainstream schools, and students have recess, lunch, “ ” subjects, and field trips with general education students; mainstream academic subjects are available when a student’s progress indicates readiness. There is a Site Coordinator who is a licensed educator. Dr. interviews all prospective students, and reviews all relevant evaluations, reports and other documents regarding them. entered in 2010/11; during the admissions process in June, 2010, Dr. met with and his parents, reviewed the evaluation, and spoke with ’s previous school. Dr. testified that has a “spectrum” of issues, including difficulties with , comprehension, / skills, , stimuli such as noise and large groups, and executive functioning and organization. He stated that requires a small, structured environment with mainstream opportunities, and strategies such as break down of and tasks, and graphic organizers. Dr. stated that the school days is from 9:00 a.m. until 4:30 p.m., and that approximately 20% of the school day is devoted to studies. ’s class schedule (Exh. E) indicates that 1.5 hours of the school day is for and studies; academic subjects include arts, math, science, social studies, and “ s” such as gym, art, and music. There are seven grade students in ’s class. Dr. has observed in class, and has discussed his progress with ’s teacher and program coordinator; he stated that prepares a yearly IEP with progress notes (Exh. F), and administers standard tests in June. Dr. testified that reading and math are assessed by informal inventories, and that has progressed in problem solving, understanding abstract text, expressive writing, math computation and problem solving; his social skills and peer relationships have improved. Dr. stated that does not exhibit aggressive behavior and does not have a para at ; he opined that a para would have an adverse impact on ’s educational progress and self-esteem. ’s parents signed a contract with in August, 2010 (Exh. H); tuition for 2010/11 is $34,400.

, Ph.D., testified that he is a pediatric with certifications/licenses in , clinical , and clinical -psychology, that he has had a private practice for 12 years, and that he is affiliated with two hospitals. Dr.

evaluated on March 24, March 25, and April 12, 2010 (Exh. C); the evaluation included tests and measures of cognitive functioning, academic skills, executive functioning and skills, and skills, and behavior. achieved an average score in the WISC-IV, but there was a considerable degree of variability across different parts of the test. had difficulty with syntactic formation, semantic understanding and pragmatic ; his skills were weak and he exhibited significant problems with written expression. exhibited pronounced difficulties with executive functioning skills. Dr. diagnosed with ’s Disorder; his evaluation states that while ’s most prominent symptoms are and a -based disorder, “...his overall pattern of behavior and adjustment and social difficulties place him on the [“ ”] spectrum, and (he) can be characterized as having ’s disorder.” Dr. testified that has a qualitative impairment of communication skills, and meets the criteria for a diagnosis of spectrum disorder (“ ”). Dr. stated that has a noise sensitivity and would have problems in a large and noisy class setting. He also has problems with transitions, and requires routine or predictability in his educational program. Dr. testified that requires a small, structured class with few distractions and much attention; he stated that requires OT because of his poor graph-motor and organizational skills, and individual and group and therapy to address and social pragmatic issues. Dr. stated that will require accommodations to address his problems with , flexibility, and social perception. He said that could not receive educational benefit in a class, such as the ICT class recommended for him by the department of education. Dr. ’s evaluation notes that on the GORT test of oral reading, achieved a grade equivalent score, and on the WIAT reading test, he achieved a 1.8 grade equivalent score. Dr. stated that the GORT is an oral test with structured questions, and the WIAT requires the child to make inferences and conclusions; he said that the WIAT result is a more accurate reflection of ’s ability, and that the reading comprehension level on ’s IEP is not accurate. Dr. said that is not aggressive and does not require a crisis management para.

’s father testified that exhibited delays and poor peer interaction at 2.5, when he was in a pre-school program; he was evaluated and received EI services. A later evaluation diagnosed with developmental delays. Mr. stated that has a passive demeanor and does not have aggressive tendencies; he exhibits some obsessive and repetitive behaviors, and is extremely sensitive to noise. Before entering , attended a “mainstream” for six years; he sometimes exhibited poor behavior during recess periods because of his problems initiating appropriate social interactions. can understand words, but has problems processing and picking up social cues. ’s parents decided that the mainstream was inappropriate, and had Dr. evaluate him because of poor academic performance and social issues. ’s parents visited in September, 2010; they found the proposed class too large, distracted and noisy. Mr. stated that is appropriate for , because it offers small classes with two adults, attention, and a social skills program. Mr. maintains regular contact with ’s teachers. He stated that has progressed: he does his homework, follows classwork, and has improved self-esteem.

’s mother denied that during the June 17, 2010 IEP meeting she told the CSE she would not send to a public school.

V. Findings of Fact and Conclusions of Law

I find that ’s parents have met the burden of showing that should be classified as a student with , and that they are entitled to reimbursement for ’s 2010/11 tuition at because they have shown to be an appropriate site for , the CSE failed to recommend an appropriate program or placement for him, and equitable considerations support a tuition award. A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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]). 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]). 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). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). 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'" (Walczak, 142 F.3d at 130). 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 Walczak, 142 F.3d at 132). 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 education services (Application of the Dep't of Educ., Appeal No. 07-018). In Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 (1993), the Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the State Education Agency pursuant to IDEA. This decision expands the Court’s decision in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which held that court may order reimbursement to parents who disagree with a proposed IEP and unilaterally place their child in a private school. Such a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that: (1) the public placement violates the IDEA; and (2) the private placement is proper and is reasonable calculated to enable the child to receive educational benefits. The Court must also consider equitable factors, such as communication and cooperation between the parent and the school board, the parent’s awareness of and timely exercise of due process rights, and the appropriate and reasonable level of reimbursement.

I find that the June 17, 2010 IEP is substantively and procedurally insufficient. There is nothing in the record or in the IEP itself to indicate that the CSE conducted its own evaluations prior to holding the review; both the IEP and the record indicate that the CSE relied upon Dr. ’s - evaluation in drafting ’s IEP. That evaluation diagnoses with ’s Disorder, and states that ’s and -based disorder, which are presumably the basis of the CSE’s decision to classify with , are “symptoms” of an overall pattern of behavior and adjustment and social difficulties. Dr. testified that meets the requirements for diagnosis/classification as autistic.^[1] The CSE’s witness admitted that the diagnosis of ’s Disorder is correct. I find that the CSE improperly classified as , and conclude that he shall be classified with .

I find that the CSE mis-stated Dr. ’s evaluation when they drafted the “Academic Performance and Characteristics” section of ’s IEP; they grossly over-estimated ’s reading comprehension level by using the result of one test (the GORT) administered during the evaluation while totally ignoring the result of another test administered (the WIAT-IV). I find that the IEP did not “accurately reflect the results” of ’s evaluations, and therefore cannot be the basis for identifying ’s needs and developing an educational program for him. I find there is nothing in the record to support the CSE’s recommendation for a crisis management para for , and credit the testimony of the parent’s witnesses that a para may have an adverse impact on ’s self-esteem and ability to progress. I find the CSE’s program recommendation inappropriate: the class size is too large, the staffing ratio inadequate, and the classroom environment too noisy and distracting to meet ’s needs for a small, structured, non-distracting environment with intense work opportunities. Even if the program recommendation were appropriate, the department of education did not meet its burden of showing it offered an appropriate class: they did not present any information regarding the students in the proposed class, and whether the functioning levels and needs of those students are similar to ’s. I do not credit the testimony of the department’s witness that ’s parent asked to be shown a grade class, and find that by showing ’s parent a class which could not have been appropriate, the department of education deprived the parents of their right to participate in ’s educational planning. For all the reasons given, I find the IEP substantively and procedurally deficient, and conclude that the department of education failed to offer FAPE for 2010/11.

I also find that ’s parent met the Carter requirements for tuition reimbursement. As stated above, the CSE failed to recommend an appropriate classification, program and placement for for 2010/11. I find that the is appropriate for , even though it is not a State Education Department-approved program. I find that has significant difficulties with , attention, social/pragmatic skills, transitions, and sensory stimulation. I find that he requires a small, structured, non-distracting class setting with a great deal of individual attention, and strong and social skills components. offers a supportive, structured class environment, with a small student to teacher ratio, individual attention, and small group activities. The program offers intense, -based, multi-modal instruction, and has a strong skills component. The pace of is geared to ’s needs, and the other students in ’s classes are of similar age, abilities and needs as . The program offers mainstream opportunities, so can model appropriate behavior. Teachers are appropriately certified, and staff regularly monitors students’ progress and modifies their programs to suit their developing needs. Related service providers coordinate their programs with classroom teachers. There are frequent team meetings and parent communication. The record indicates that has made academic and social progress. The program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition. I find that ’s parents cooperated and communicated with the CSE, that they made a timely hearing request, and that the amount of reimbursement requested is reasonable.

I conclude that ’s parents are entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the secular part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that ’s part-curriculum does not preclude an award of tuition reimbursement. The record indicates that about one-fifth of ’s school day is devoted to instruction; therefore the parent shall be reimbursed for 80% of the cost of ’s program, exclusive of any fees or contributions.

VI. Order

IT IS THEREFORE ORDERED THAT: a) by June 27, 2011, the CSE shall meet to change the classification on ’s IEP to ; and b) upon presentation of proper proof of payment, 's parents shall be reimbursed for 80% of the cost of 's 2010/11 tuition at , exclusive of any scholarships, fees or contributions, in an amount no greater than $27,520. Dated: June 2, 2011

______________________

CRAIG TESSLER, ESQ.

Impartial Hearing Officer

CT:jj

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 JANUARY 20, 2011

PARENT

A Impartial Hearing Request, 10/25/10, 4 pp. B FNR, 6/24/10, 1 p. C Evaluation, 3/24/10, 3/25/10, 4/12/10, 10 pp. D DOE Due Process Response, 11/3/10, 3 pp.

DEPARTMENT OF EDUCATION

1 IEP, 6/17/10, 17 pp. 2 Evaluation, 4/12/10, 10 pp. 3 Final Notice of Recommendation, 7/30/10, 1 p. 4 Contact Sheets, 6/17/10, 2 pp.

DOCUMENTATION ENTERED INTO THE RECORD MARCH 7, 2011

PARENT

E Class Schedule, 2010/2011, 1 p. F IEP/Progress Report, 11/30/10, 8 pp. G Related Service Progress Report, 11/22/10, 2 pp. H Contract, 8/27/10, 2 pp.

Footnotes

[1] Commissioner’s Regulations §200.1(zz) has the following definitions: (1) means a developmental disability significantly affecting and communication and social interaction, generally evident before age , that adversely affects a student’s educational performance. Other characteristics often associated with are engagement in activities and stereotyped movements, resistance to environmental or change in daily routines, and unusual responses to experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age could be diagnosed as having if the criteria in this paragraph are otherwise satisfied. (10) means having limited strength, or , including a heightened to environmental stimuli, that results in limited with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.