New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

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

March 7, 2011

March 15, 2011

March 18, 2011

April 8, 2011

May 12, 2011

May 19, 2011

July 7, 2011

October 19, 2011

November 3, 2011 Actual Record Close Date: December 29, 2011 Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 21, 2011

Attorney — Student

Attorney — Student

Parents

Pathologist (Did not testify) — Student

Attorney — DOE

School Psychologist, CSE Manhattan (via telephone) — DOE

Assistant Principal, (Did not testify) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2011

Attorney — Student

Parents

Therapist (via telephone) — Student

Attorney — DOE

), Assistant Principal,, — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 15, 2011

Attorney — Student

Parents

Principal, (via telephone) — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 18, 2011

Attorney — Student

Attorney — Student

Parents

Pathologist (via telephone) — Student

Ph.D., (via telephone) — Student

Attorney — DOE

Paralegal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 8, 2011

Attorney — Student

Parents

Former Head Teacher, (via telephone) — Student

Educational Supervisor, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 12, 2011

Attorney — Student

Principal, (via telephone) — Student

Teacher, (via telephone) — Student

DOE Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 19, 2011

Attorney Representing the Family — Student

Parents

Special Ed Teacher, (via telephone) — Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2011

Attorney — Student

Parents

Former Teacher, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 19, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2011

Attorney — Student

Teacher, (via telephone) — Student

Attorney — DOE

The parent’s impartial hearing request pursuant to the Individuals with Disabilities Education Act was received on November 8, 2010. Hearing dates were immediately scheduled by me upon receipt of notification that the resolution period had ended. The hearing commenced on January 21, 2011 and, with the cooperation of the parties, proceeded as expeditiously as possible. There were delays caused by witness availability, procedural and substantive issues that had to be resolved, extensive, but essential, testimony, and closing briefs. Almost every adjournment request was denied and every effort was made to limit delays. Compliance date extensions were granted only for good cause shown. The extensions did not deprive the student of FAPE nor did they prejudice the school district. However, the attorneys for the school district and for the parent are reminded that greater efforts will be made in the future to ensure that hearings are resolved swiftly in accordance with the statutory requirements and timelines. Appeal No. 11-112

The parent contends that the student was denied a free appropriate public education for the 2011-12 school year and therefore seeks reimbursement for the cost of the parent’s unilateral placement. School District The school district presented testimonial and documentary evidence in support of its position that it offered a FAPE to the student. (Testimony and Exhibits 1-14) Witnesses included a school psychologist and the assistant principal of the recommended placement.

The school district developed an IEP on January 20, 2009. The annual review team included a school psychologist and a special education teacher, who also served as the district representative. A parent member, the student’s special education teacher and the parent also participated in the meeting. Appropriately, no general education teacher was present because general education was not being considered. The recommended classification was speech and language impairment. The recommended placement was special class in a community school, with the related service of . (Exh. 3)

Placement was deferred until the commencement of the 2009-10 school year. A timely final notice of recommendation was sent to the parent on July 22, 2009, offering to place the student at the recommended school for the 2009-10 school year. (Exhs. 7, 8) The parent declined the offer by letter dated August 21, 2009. Subsequently, after the start of the school year, the parent sent a second letter, dated September 30, 2009, again declining the offer. (Exh. T)

A school psychologist testified on behalf of the school district. She has a Bachelor’s degree in elementary education and a Master’s degree in educational psychology. Additionally, she is certified as a school psychologist by New York State. She has been employed by the school district as a school psychologist since January 1997.

She conducted a classroom observation on November 5, 2008 and was a member of the January 20, 2009 IEP annual review team. In preparation for the meeting she reviewed reports pertaining to the student including a , a recent school report and the classroom observation she conducted. (Exhs. 4, 5, 6) The reports were also discussed and taken into consideration during the IEP meeting. She and the other school district member in attendance at the meeting were familiar with the services and programs available in the school district. She testified credibly that everyone present had an opportunity to participate in the meeting and did, including the student’s parent. She also testified in great detail about the student’s and and how her needs were considered and addressed while developing the IEP recommendations, goals and the means by which the goals would be measured.

The recommended services were chosen largely to address the student’s weakness in speech and language, her most salient need. A small class was recommended with individual and group . was for the purpose of allowing her to interact with a peer during therapy so as to support social language. The team did not recommend counseling because the student did not require it. During the meeting the parent did not express any disagreement with the recommendations. The school psychologist opined that the team’s recommendations were appropriate. (Tr. At 20-106)

The assistant principal of recommended school also testified on behalf of the school district. She has been employed by the school district since 1984. She has a Bachelors in sociology and a Masters in special education and administration. She is New York State certified as a special and general education teacher and in school administration and supervision.

She was familiar with the student because she was recommended for placement at her school, and she reviewed the student’s IEP. The student was assigned to a , and grade special education class. The classroom teacher had a Masters and New York State certification in special education and the classroom paraprofessional had many years of experience. As of the commencement of the school year in September 2009 there was room in the class for the student. The ages of the students and their functional and instructional levels were similar to the student’s. The classifications of the students were learning disability and speech and language impairment. The teacher received ongoing support and assistance from other school professionals including a literacy consultant, a mathematics consultant, the assistant principal and other teachers. She was observed frequently in the classroom by the assistant principal. Sound amplification would have been available to the student if needed.

Had the student attended the class, her skills would have been reassessed by the teacher. If changes in the IEP were required, the teacher would have requested a reconvening of the IEP review team. The students in the class received group and individualized, differentiated instruction as per their individual needs. The assistant principal gave specific examples of how the student’s IEP goals in all areas, including reading, writing and speech, would have been measured and met by the teacher, paraprofessional and other staff. An extended day program was also available for after school help if the student required it. The student would also have received her related services in school. The assistant principal opined that the student would have received an appropriate education at her school. (Tr. At 112-297)

Parents

Witnesses for the parent included a , a , a former head teacher, an educational supervisor, the principal of the unilateral placement, a learning specialist and two teachers. The principal and the classroom teacher of the recommended placement also testified, under subpoena.

The student’s providers testified regarding the student’s needs and the services she received at the unilateral placement. They opined that the school district’s IEP and recommended placement were not appropriate, that the unilateral placement was appropriate and that the equities favor the parent.

FINDINGS

As was recently set forth in Appeal No. 10-105, two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 17, 200.5[j][4][ii]; Winkelman, 550 U.S. at 525-26; A.H., 2010 WL 3242234, at 2; E.H., 2008 WL3930028, at 7; Matrejek, 471 F. Supp. 2d at 419).

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 least restrictive environment (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]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Having reviewed the entire record in the instant case, which includes extensive testimonial and documentary evidence submitted by both parties, I find that the school district offered a FAPE for the 2009-10 school year.

The parent asserts that the IEP was procedurally inadequate. I disagree. I find that the IEP review team properly considered the results of the student’s most recent evaluations and her educational needs. They did not rely on any single assessment or the opinion of any one evaluator or provider. Instead, they carefully weighed all of the information before them in making recommendations and developing the IEP. At the IEP meeting, all participants were given an opportunity to meaningfully contribute to the discussion of the student’s needs.

The parent also alleges that the IEP was substantively inadequate. I disagree. I find that the IEP provided for individualized and differentiated instruction with sufficient support to permit the student to benefit from that instruction. The IEP adequately described the student’s current levels of performance and needs and provided for them in the services recommended and in the goals, which were all measurable.

The parent also challenges the appropriateness of the recommended placement. I find that the recommended placement was appropriate and would have met the student’s needs. The principal and assistant principal testified credibly and in great detail how the student’s needs and annual goals would have been met in an appropriate classroom setting.. The teacher and paraprofessional would have received ongoing support and supervision from other well-qualified school staff and the student would have had access to after school services if needed. The class grouping was appropriate for the student and her instruction would have been individualized and differentiated as needed. Her related services would have been provided as mandated.

For all of the above reasons, I find that the school district offered a FAPE and therefore met the requirements of prong one. As such, it is not necessary to reach prongs two or three.

I have considered the parties' remaining contentions and find that it is unnecessary to address them in light of my determinations herein.

Order

The parent’s requested relief is denied. Dated: December 29, 2011

___________________________

ESTHER MORA, ESQ.

Impartial Hearing Officer

EM: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

PARENTS

A Impartial Hearing Request, 11/1/10, 5 pp. B Findings of Fact and Decision, 5/25/10, 25 pp. C Application of the NYC DOE No. 10458, 9/10/10, 5 pp. D Pathology Report, 12/16/10, 3 pp. E Brochure, 2005, 9 pp. F Fall Report, November 2009, 7 pp. G Mid-Year Report, February 2010, 10 pp. H Spring Report, May 2010, 10 pp. I Therapy Plan, October 2009, 2 pp. J Therapy Progress Report, May 2010, 6 pp. K Affidavit of , 1/27/10, 1 p. L Re-Enrollment Contract, 3/3/09, 2 pp. M Sept2009 – June 2010 Attendance Report, 6/18/10, 1 p. N Proof of Payment/Cancelled Checks, Miscellaneous, 4 pp. O Aaron School Class Schedule Room 127- Grade 5, 2009-2010, 1 p. P IEP, 03/04/08, 13 pp. Q Correspondence Related to Requested Subpoena, Miscellaneous, 5 pp. R Response to Subpoena from Parents, 2/18/11, 38 S with Fax Transmission Report, 9/30/10, 5 pp. T , cc: , with Fax Transmission, 8/21/09, 3 pp. U Letter to , cc: , with Fax Transmission Report, 7/30/09, 6 pp. V Notice of Recommended Deferred Placement with Response, 1/30/10, 2 pp. W Every Day Mathematics Center, 9/29/08, 8 pp. X NYC DOE Progress Report Overview –P.S. 241, 2009-10, 2 pp. Y NYC DOE Progress Report – P.S. 241, 2009-2010, 2 pp. Z Special Education Delivery Report, 5/28/10, 1 p. AA Profile, April 2010, 3 pp. BB NYC DOE School Survey – P.s. 241, 2009-2010, 17 pp. CC NYC DOE Quality Review Report – P.S. 24, 2009-2010, 17 pp. DD Assessment Report, 2/26/11, 32 pp. EE NYC DOE Contract with Bilinguals, Inc and Department State Entry Information,

5/22/07 and 4/14/09, 40 pp. FF Excerpt from: The Final Report of the National Math Advisory Panel, 2008, 3 pp. GG Every Day Mathematics, Program Goals , Undated, 14 pp. HH NYC DOE Qualifications for Paraprofessional Emp., Undated, 2 pp. II Wilson Reading System Description, 3/25/11, 8 JJ Differentiated Instruction – Wikipedia, 3/28/11, 6 pp. KK Differentiation Central, 4/1/11, 3 pp. LL Teaching Today Differentiating Instruction, 4/1/11, 4 pp. MM Auditory Processing Disorder in Children, 4/1/11, 3 pp. NN Hearing Association Social Language Use (pragnatics),

3/28/11, 2 pp. OO Response to Subpoena Duces Tecum: , 3/24/11, 6 pp. PP NYSED Teaching Assistant Qualifications, 3/2/11, 4 pp. QQ NYCDOE Teaching Assistant Qualifications, 3/2/11, 2 pp. RR IHO System Notice of Signed Subpoena, 12/29/10, 3 pp. SS Email Thread Regarding Subpoenaed Documents, 3/30/11, 1 p. TT Email Thread Regarding Subpoena Request for Contact Info., 3/31/11, 3 pp. UU Email to Re: Subpoena of , 4/5/11, 4 pp. VV SRO Decision, Appeal No. 09-080, 9/17/09, 7 pp. WW Petition Pursuant to Article 78 and Related Documents,. 4/08, 11 and 12/ 28/11, 15 pp. XX Email from , 5/11/11, 1 p. YY Subpoena to and Fax Transmission Report, 4/08, 11/11, 2 pp. ZZ Subpoena to and Fax Transmission Report, 4/8, 11/11, 2 pp. AAA Settlement Agreement, 5/11/11, 4 pp. BBB Stipulation of Discontinuance , 5/11/11, 2 pp. CCC IEP, 6/14/10, 11 pp. DDD IEP, 11/12/08, 12 pp. EEE IEP, 4/27/09, 13 pp. FFF IEP, 11/12/08, 18 pp.

GGG IEP, 8/25/09, 15

HHH IEP, 10/14/08, 12 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 11/1/10, 5 pp. 2 Amended Due Process Response, 1/12/11, 3 pp. 3 IEP, 1/20/09, 13 pp. 4 Assessment Report, 11/18/07, 21 pp. 5 Fall Report, Fall 2009, 8 pp. 6 Classroom Observation, 11/5/08, 2 pp. 7 Notice of Recommended Differed Placement, 1/21/09, 1 p. 8 Final Notice of Recommendation, 7/22/09, 1 p. 9 NYS Department of State Division of Corporations, 2/16/11, 1 p. 10 The Mathematics Project, Everyday Mathematics,

3/21/11 accessed, 7 pp. 11 Cover Letter to Enclosing Subpoena, 11/15/10, 3 pp. 12 Email Chain, 4/27/11, 3 pp. 13 Observation Evaluation, Various Dates, 6 pp.