New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 127179 Student’s Name:

Date of Birth: District: 21 Hearing Requested By: Parent Date of Hearing: September 27, 2010

November 8, 2010

December 20, 2010

January 3, 2011 Hearing Officer: Michael S. Lazan, Esq. Case No.: 127179

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 27, 2010

For the Student:

NO APPEARANCES

For the Department of Education:

NO APPEARANCES

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 8, 2010

Student

Student

Student

DOE

Education, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2010

Student

Student

DOE

DOE

-, School CSE 7 — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 3, 2011

Student

Parents

Student

(via telephone) — Student

/ (via telephone) — Student

DOE

By Complaint dated April 10, 2010 (Exh. A), the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). The Complaint alleged that the IEP dated May 19, 2009 did not offer FAPE. The matter was extended numerous times on joint application to February 18, 2011, as a result of witness availability, complexity of issues, decision writing, and related issues. No objection was raised in connection to any extension. The record close date was February 18, 2011.

TESTIMONY AND EVIDENCE

, a special education teacher, works at .

(15) She taught students in 2009-2010, with a ratio for grades , , . (17) There were three in this class, one with a bachelor’s degree. (18-19) There were students in this class, and year olds. (21) Reading levels ranged from to grade. (21) She did not teach the students math. (22) Children received and , . (24) There is repetition in the classroom. ( ) Most students had problems with phonetics and vocabulary. (28) She did work on these areas and also on expressive and receptive language. (29-30) To work on and , she will role play, do “rap” sessions.

(31) Reading was taught through a called Reading Mastery. (32) This involves sounding out words, comprehension, talking out loud, written assignments, phonics, stories, graphic organizers, spelling. (32-35) A called Soft Wall is used for reading, phonetics, building vocabulary. (36) This involves computers and flash cards. (36)

The math teacher addressed single/double digit addition and subtraction. (39) Manipulatives were used in the class. (40) modification charts are used.

(42) Assessments are completed at the beginning of the year. (43) There is differentiated small group instruction, with and 3-4 in a group. (44-46) The school goes from - to grade. (48) Children travel from class to class with . (51) In addition to English and Math, there was Science, Social Studies, Art, Gym, Dance, Computer. (53)

- ,a school , attended the IEP meeting of May 19, 2009. (68) Also attending was the child’s classroom teacher and a special education teacher. (70) The parents participated by phone; they were sent a letter and given a choice to participate in person or by phone, they chose phone. (70) The education is a DOE special education teacher. (71) She is not from the school. (71) The team reviewed the teacher progress report dated May 18, 2009, a psychoeducational evaluation dated January 24, 2007, a progress report dated January 29, 2009; other data was made available, including a pathology report dated June 19, 2008, an . (72-73) The meeting added and occupational for summer 2009. (74) The teacher indicated that she learns best when presented with visual information, had poor phonological awareness, a poor vocabulary. (76) Decoding is difficult for her. (76)

No information was provided on listening comprehension or reading comprehension or problem solving, so those were left blank. (77-78) The teacher indicated that she needed repetition. (79) Also, she has a hard time , which causes disputes with peers. (81)

Goals were developed from information from the teachers. (84-90) There was no objection to the goals. (90) Cognitive testing reveals the child to have an IQ of 42, within the deficient range. (92) The recommended class had a education that could accommodate their learning styles and skills, with an assistant in the classroom to provide additional support. (95) Related services were to be carried over to 2009-2010. (102-104)

, special education teacher in the , indicated that the is located in , a mainstream school. (114) She teaches children who are on grade level through mid- /beginning level, though this is a class of graders aged through . (114-115) She would teach language arts by working on decoding and encoding, this was reading and writing instruction. (116) There was an with in the class. (116) The assistant did not have any teaching credentials. (116) They used the State standards modified; with , they were using the . (117) This is an alternative reading that provides mnemonic clues to help memory. (117) They were working on individual letter sounds and sound combinations. (119) They worked on reading by asking comprehension questions of passages, worked on writing to enhance the reading. (120)

Before they used , they used a more traditional approach. (123-124) They then felt they needed to do something new, because they had not been meeting with any success. (124) She mastered the material that was taught, including the O-A combination, the E-A combination; this is greater progress than they had seen before.

(125) She is highly, highly ; she needs to be refocused and redirected constantly. (121) Progress was very, very, very slow, but they have seen progress all across the board. (121) She needed to work slowly with a lot of repetition and review.

(121) The reason they found success was that the was offering a lot of mnemonic clues which worked. (121) Her memory is weak. (121) Eventually, the information would click with her after the same person would repeat it over and over. (122)

She is manipulative, tries to test limits, and it can impede on her learning if she’s not given limits. (121) She needs the consistence of a approach. (122) She tries to get out of working hard, will rationalize a lot, will reason a lot. (123) This stems from being for her. (123) She needs a , - approach. (123)

For Social Studies, they used a modified state standard; they would discuss holidays, read Scholastic News Weekly, discuss current events. (126-127) She was passive in this class. (127) She showed small progression. (129) For Science, they used a modified state standards with mostly teacher-made materials with similar progress to social studies. (131-132) For Math, they modified the State standard by working with the Scott Foresman Addison Wesley book. (132) There were a lot of teacher-made worksheets, a lot of repetition was provided. (132-133) The three biggest areas for focus were counting money, telling time, additional and pre-addition skills. (133) When she started school, she was working on a pre-level. (133) By the end of school, she was able to tell time to the nearest quarter hour, she was counting money, doing single digit addition with manipulatives. (134)

There was mainstreaming for all extra-curricular activities, snack, swimming, gym, art, computer. (135) Other children in the class had , high functioning , , . (136) There was a plan in place, a token economy system. (137-139) She made sure to be - so would not be able to “push her buttons.” (140) Social affect is a very big strength of hers, she needs an opportunity to interact with the other . (140-141)

She did not teach studies and was not at some activities like art. (142-143) She taught from to . (143) She definitely needed small group instruction, and for academics, she needs small class. (148) She was grouped with other children.

(159) There were children in her class. (149) There were times of large group instruction for , wherein she needed to be refocused at times. (149) She needed , her pronunciation is very ar. (150) There are receptive language issues as well. (155)

At the end of the year, she was still on first grade level because she had learned long vowel sounds but had not mastered the short vowel sounds. (151-152) She ended the year in the grade range in math. (153) The key with her is consistency. (155) She didn’t have with . (156) She was not ready for double digit adding and subtracting until the end of the year. (157) , the , indicated that are licensed and are generally seeking a special education degree.

(164) The school employs a al consultant. (165)

class had and . (168) requires and . (169) She has receptive and expressive . (169) She receives during the school day, paid for by the DOE. (169) Occupational was provided in the same manner. (170) Her focusing is , she needs a small setting so that the teacher can see what she is doing. (171) Because of her with and academic , she needed minimal instruction. (172) They gave her reading a couple of times a week, reading fluency for , and prayer time. (172) $17,000 was the agreed amount of tuition. (174)

The child’s testified; he lives in the same house as the parents, helps her, goes over the homework, talks to the teacher. (177) They visited the proposed school, , at the beginning of the school year, September 2 or 3.

(180) He spent a minimum of 2 and ½ hours at the school. (181) He thought that a number of the children were not paying attention to the board, and the teacher was not paying attention to them. (183) He was told that would have four teachers during the day. (183) This would be a problem for . (184) He was concerned about the low math levels of the students, they didn’t know how to count.

(185) The also did not repeat instruction. (185) He was also concerned with plans in the class; he did not see any charts, and the said she didn’t use them. (205) He was concerned that she would be left with an unfamiliar during lunch. (207) He was concerned that she will try to get out of doing classwork by getting in trouble. (207)

The IEP dated May 19, 2009 (Exh. C) classifies with and places her in a class with a ratio. No general education or is listed. Academic Performance and Learning Characteristics indicates gradual progress, with decoding on grade level, poor phonological awareness, a poor vocabulary. In math, it is indicated that enjoys completing two digit addition problems. She needs constant repetition of each new learned skill. She can produce a basic sentence. She has and has graphomotor skills.

A second section, also called Academic Performance and Learning Characteristics, indicates a friendly child with expressive and receptive . This section details related services needs and appears cut off. Academic Management Needs are listed as repetition of directives and presentation of information in various modalities. Social/Emotional Performance indicates that is a friendly child who loves to play with peers but sometimes ends up in peer disputes. There is no box checked in connection to the section entitled “ and the Instructional Process.” There is nothing written in the section requiring a description of present levels of support including personnel responsible for providing al support. Social/Emotional Management Needs are listed as Refocusing, Counseling, Positive Reinforcement.

Reading and Math goals were to improve writing skills to a second grade level, to improve math skills to a third grade level, to improve reading skills to a second grade level.

A letter from dated July 29, 2009 provides 10 day notice of the Placement, pointing to the parent not being able to observe the school while in session. (Exh. F) The Academic Progress Report dated Spring, 2010 indicates work covered includes two digit addition and subtraction. (Exh. G) Language Arts focused on broadening word usage, learning to encode and decode words, building vocabulary usage; also covered were capitalization, completing sentences, punctuation. With much repetition, she was able to retain sight words and is beginning to compose short paragraphs. She was able to read and write singular and plural words using certain vowel pairs. The Progress Report indicates that has made great strides this past terms and more readily accepts mistakes and adult guidance.

The teacher progress report by dated May 18, 2009 indicates that is completing math work with two digit addition problems and is to add correctly. (Exh.

1) She needs constant repetition of each skills. She decoded on a beginning grade level, can produce a basic sentence. It is indicated that she often refuses to complete school work and feels she can negotiate with the teacher; charts have been implemented for her. It indicates that she is often frustrated in class and has disputes with peers.

The Psycho-Educational Evaluation of dated January 24, 2007 indicated very low scores in all domains, with a 42 IQ on the WISC-IV. (Exh. 2) Per the WoodcockJohnson-III, reading levels were at low level, with passage comprehension at the below level. Math levels were at late level. Writing performance was estimated at the grade level.

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to reimburse for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are 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 a FAPE, (b) significantly impeded 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. Sect. 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2].

The parents allege in their closing statement that issues relating to the appropriateness of the IEP were raised in testimony. The Complaint reserves the right to raise issues relating to the IEP. The District did not object to this statement, at least insofar as the first criterion of Carter is concerned. Cf. M.H. v. NYC Department of Education, 2010 WL 1904005 (S.D.N.Y. 2010)(allowing parent to raise issues not particularized in the Complaint).

A review of the testimony reveals that this student has significant individual al needs. The child’s testified that the student is highly and needs to be refocused and redirected constantly. The teacher indicated that the child is manipulative, tries to test limits, requires firm limits, tries to get out of working hard, needs a firm, nononsense approach. This testimony is consistent with the progress report from that was before the CSE during the May, 2009 CSE review. In the report, Ms. indicated that the child often refuses to complete school work and feels she can negotiate with the teacher. There is nothing in the record to suggest that these needs can be met by generalized classroom interventions that are applicable to all students.

The May, 2009 IEP addresses only in a limited way. It does mention that the child can have disputes with peers and can have difficulty complying with class rules when she feels challenged. The IEP recommends that the student receive “(r)efocusing, (c) , “(p)ositive reinforcement,” without any further explanation

However, the IEP section entitled “ and the Instructional Process” is not filled out. The CSE is given four choices here: 1) is age appropriate; 2) does not interfere with instruction; 3) with instruction and requires additional adult support; 4) requires highly . None of the four boxes are checked off, and there is no explanation on the record as to why this portion of the IEP is left blank. Additionally, the IEP section entitled “Describe present levels of support including personnel responsible for providing al support” is not filled out. There is no explanation in the record as to why this portion of the IEP is left blank. Finally, at the bottom of the IEP page entitled “Social/Emotional Performance,” the CSE is asked whether a is required for the student. Neither box is checked. Again, the CSE did not fill this part of the IEP out.

The State Review Officer has held that it is appropriate for a CSE to take “proactive” measures such as considering whether a al intervention plan is appropriate. Application of the Board of Education of the West Seneca Central School District, Appeal No. 04-006. Moreover, the regulations indicate that a should be considered for students who exhibit persistent that impede her learning despite consistently implemented school-wide or class-wide interventions. 8 NYCRR Sect. 200.22(b)(1)(I). The record indicates the student required a in her class at and would have required one for her class at the proposed school. The CSE erred by not even considering whether there should be a for this student. Though the classroom teacher at the proposed school indicated that she used modification charts in the class, the District did not meet its burden to show that the District’s created an individualized educational plan to meet this student’s particular al needs.

Additionally, a review of the IEP reveals that the goals in the IEP are not sufficient for this student. The IEP does not contain any goals relating to al issues although the student has significant . Additionally, the IEP contains but one reading goal, a generic goal indicating that the student should improve her reading skills to a second grade level by identifying the main ideas and supporting details in informational texts, with assistance, with 75% accuracy. The record indicates that this is not a realistic goal for this student, who progresses at a very slow rate and was decoding only at the beginning first grade level going into the 2009-2010 school year. In fact, the student did not progress beyond the first grade level for the 2009-2010 school year, even though the implemented a new and successful reading strategy for the year.

There are additional issues with the CSE review and corresponding IEP. The review did not contain a regular education teacher in violation of the applicable law and regulations. 8 NYCRR Sect. 200.3(a)(1)(ii). It should be noted that there is testimony in the record that the student benefits from mainstreaming at . The review also did not contain a . 8 NYCRR Sect. 200.3(a)(1)(viii). No explanation is given as to why there was no general education teacher or parent member at the review. The parents participated by phone, but there is no testimony establishing that the parents had access to the materials available to all the meeting as is required. Application of a Child with a Disability, Appeal No. 01-028. Further, portions of page 3-B of the IEP, in the Performance Section, appear to be cut off and illegible.

As a result of the foregoing, the child was denied a FAPE for the 2009-2010 school year. The parents prevail on the first criterion.

On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

As noted previously, the student is a learner with significant al concerns. The student is highly and is , requiring firm limits. The record reveals that has implemented a plan allowing for constant refocusing and redirection that has worked for this student. The credible testimony from indicated that the student requires consistency in approach, which she has received from Ms. . Ms. described in detail how a token economy system was implemented in a very “ - ” way with consequences for .

Ms. also described how the school used the “ ” for reading because the student had not been progressing in a more traditional . This , which uses mnemonics, has resulted in this child’s slow progress in reading. The testing scores are consistent with Ms. testimony in this regard. psycho-educational evaluation from January, 2007 found that the student was at a low level in reading. According to the unrebutted testimony of Ms. , the student was working on the first grade level in reading during the 2009-2010 school year, slow progress for a child who has tested with a 42 IQ. Ms. credibly testified about progress in other areas through repetition of lessons and small group instruction, including progress in being able to tell time, counting money, and doing single digit addition.

The District’s main argument on the second criterion is that the failed to provide the child with and and . However, as the District points out, the student did receive and and for the 2009-2010 school year. In fact, the District itself provided and and for this student. It should be pointed out that Districts can be obliged to provide special education services to non-public school students pursuant to Section 3602-c of the New York State Education Law. It should be underscored that parents need not show that their placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The Circuit stated in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007)):

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Cf. G.R. v. New York City Department of Education, 53 IDELR 9 (S.D.N.Y. 2009)(school did not provide child with and language , which would have been appropriate for student; reimbursement ordered, reversing SRO; was only one area where the student had deficiencies); Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no provided by summer , and District had recommended ; parental placement deemed appropriate).

In sum, the parents haves shown that the is designed to meet special education needs. Accordingly, the parents prevail on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of Case No.: 127179 an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District argues that the parent’s notice of placement was defective because such notice does not particularize the parents’ allegations pertaining to the IEP. The District appears to argue that the parent must particularize each and every factual allegation in the notice or be subject to a denial of award. The District appears to base this argument on the parents’ duty to send a notice “stating their concerns” as per the applicable federal regulation. However, I have found no authority requiring the notice to include every single factual issue to be raised at the hearing, as the District suggests. Nor have I found any authority where an award is reduced or denied because the notice failed to particularize issues that were later raised by the parent. It should be noted that the District did not provide any specific case authority in support of this argument. It is clear from the record that the parents gave the District a fair opportunity to create a for the child. There is nothing in the record to suggest that the parents failed to comply with any directive from the District or failed to respond to phone calls from the District. The parents prevail on the third criterion and are awarded reimbursement for for 2009-2010. Dated: February 18, 2011

_________________________

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL:jj

PLEASE TAKE NOTICE

1. 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 NOVEMBER 8, 2010

PARENT

A Hearing Request, 4/10/10, 4 pp. B School Description, Undated, 1 p. C IEP, 5/19/09, 11 pp. D Final Notice of Deferred Placement, 6/4/09, 2 pp. E Final Notice, 7/9/09,^[2] pp. F Ten Day Notice, 8/10/09, 1 p. G Academic Progress Report, 2009-2010, 3 pp. H Class Profile, 2009-2010, 4 pp. I Class Schedule, 2009-2010, 1 p. J Affidavit of Payment, 2009-2010, 1 p. K Proof of Payment, 2009-2010, 11 pp. L School Contract, 2009-2010,^[1] p.

DEPARTMENT OF EDUCATION

Footnotes

[1] Teacher Progress Report, 5/18/09, 1 p.

[2] Psycho Educational Evaluation by , 1/24/07, 7 pp.