New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 20

Hearing Requested By: Parent

Date of Hearing: May 17, 2011

June 14, 2011

July 6, 2011

July 18, 2011

Record Close Date: July 19, 2011

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2011

Attorney — Student

Parents

CSE 7 Chairperson Designee — DOE

IEP Teacher at (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2011

Attorney — Student

Parents

Director, (via telephone) — Student

Education Teacher (via telephone) — Student

School Psychologist and Chairperson Designee — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 6, 2011

Attorney — Student

Parents

CSE 7 District Represetative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2011

Attorney — Student

CSE 7 Chairperson Designee, — DOE

On November 17, 2010 the parents of.,(“ ”) filed a request for impartial hearing seeking tuition reimbursement for their unilateral placement of at School for the 2010-2011 school year. I was designated to hear this matter on November 18, 2010. An amended request for impartial hearing was filed on February 18, 2011. The hearing commenced on May 17, 2011 and concluded on July 18, 2012. The compliance date was extended, on four occasions, with a final compliance date of August 2, 2011. (IHO Ex. I). Department of Education’s Position

The Department of Education (“DOE”) position is that it offered a Free Appropriate Public Education (“FAPE”) for the 2010-2011 school year. (Tr. p. 9).

, a teacher at , and , a school psychologist, testified in support of the DOE’s position. Parent’s Position

The parents’ position is that they are entitled to be reimbursed for their unilateral placement of at for the 2010-2011 school year, because the DOE failed to make a timely offer of placement in a bilingual class, as recommended in ’s Individualized Education Program. (“IEP”)` 1 In addition, the parents argue that the CSE failed to conduct a vocational assessment, as required. (Tr. pp. 12-13). E., ’s mother, , the director of and ,a Education teacher employed at testified in support of the parents’ position. Evidence at Hearing is a year old young woman with a classification of . Her classification is not in dispute. (DOE Ex. 1; Tr. p. 10). She attended a bilingual ( ) education class in the public schools, during her elementary school years, repeating her fifth grade year. (Tr. p. 264). During the 2008-2009 school

1 The parents are not seeking tuition reimbursement for one-half hour per day, which is devoted to . (Tr. p. 204). On the final date of hearing, they indicated that they were seeking reimbursement in the amount of $37,000, which represents the portion of ’s instruction which does not include . (Tr. p. 288). year, when was entering the grade, she was recommended for ; however her parents placed her at , a private, parochial school, where she remains to date. (Tr. pp. 11, 266-267).

On April 22, 2010, a bilingual psychological evaluation was conducted. was described as a “bilingual dominant girl”. ’s full scale IQ score was in the moderately deficient range. She scored from the first to early grade level in all areas of academic achievement. Her adaptive functioning was described as low. She is trained, but needs reminders to complete all of her personal on her own. Her projective drawings indicated that she sees herself as happy and enjoys the environment she is in. She presented with difficulties in her expression. (DOE Ex. 8).

On May 25, 2010, was classified by the Committee on Education (“CSE”) as and recommended for placement in a class in a school with a staffing ratio of , with bilingual ( ) instruction and related services of / therapy two times per for week thirty minute sessions ( ); therapy twice per week for thirty minute sessions and therapy twice per week for thirty minutes. (DOE Ex. 1).

Ms. , a school psychologist who participated in the May 25, 2010 CSE review, as a school psychologist and district representative, testified that the review team also included a education teacher assigned to the CSE, two providers form

, a parent member and the parent. (Tr. p. l03). ’s IEP reported her academic levels, as determined in the April 22, 2010 testing. (DOE Ex. 1, p. 3; Tr. p. 105). Reviewing the IEP goals, Ms. testified that the reading, spelling, and math goals are consistent with ’s functioning. She testified that the goals were discussed at the CSE review meeting, and that no objection was raised. (Tr. pp. 106-112). Nor was there any disagreement with the recommended related services, the class size or classification. She testified that all of the participants had the opportunity to voice their opinions with regard to the IEP. (Tr. pp. 113-114). Ms. testified that Mr.

, who wrote the psychological evaluation, provided the proposed goals and the information for the academic management needs, as set forth in DOE Ex. 1, p. 5. (Tr. pp. 140-142).

The May 25, 2010 IEP contains goals for reading, spelling, math calculation,

- goals, / , perceptual skills, fine motor and graphomotor skills. (DOE Ex. 1).

According to DOE records, on July 14, 2010, the CSE issued a Final Notice of Recommendation, recommending placement in a class in a school . The final notice states however, as follows:

“Due to the immediate needs of your child and the unavailability of a bilingual program at this time the following Interim Placement has been recommended pending the availability of a bilingual class Class in a School English. … ” (DOE Ex. 89).

The parents claim they never received the July 14, 2010 final notice. (Tr. p. 16).

Ms. ,a education teacher at , testified that she oversees all of the IEP’s in the school to make sure all of the students are receiving their mandated services. (Tr. p. 20). The school has two classes, with a staffing ratio of that provides bilingual instruction to , and grade students. (Tr. p. 22). Both classes are taught by certified education teachers who speak fluent . (Tr. p. 32). The school has on staff five / providers, three therapists and one therapist. (Tr. p. 24). Two of the / providers speak fluently in . (Tr. p. 26). All of ’s related services could be provided at the school. (Tr. p. 43).

Ms. testified that the school always had two bilingual teachers for the middle school. The school also has a monolingual class. The DOE presented evidence regarding one of the bilingual ( ) classes, taught by Mr. . (Tr. pp. 31, 54) At the start of the school year, the class had nine students with reading levels range from .5 to 5.5 and math levels ranging from .5 to 5.5. All of the students were below average in their intellectual functioning. (Par. Ex. E). Most of the students in the bilingual classes have . (Tr. p. 60). All of the students in the class receive / therapy. (Tr. p. 81). The students are divided into groups for instruction based upon their reading and math levels. The program includes life skills such as creating a shopping list, cooking and shopping. (Tr. pp. 35, 38). Ms. was not aware if anyone in the school every spoke to the parent about a seat becoming available in the program. (Tr. p. 55).

The monolingual class for middle school students had nine students, with reading levels ranging from pre-primer to 2.5, and math levels ranging from .5 to 2.5. All of the students are below average in their intellectual ability, and four of the students need assistance/support for specific areas of development. (Par. Ex. F).

has a total of 890 students. The middle school, which is usually on the fourth floor, has approximately 300 students. (Tr. pp. 57-58).

Ms. , a certified education teacher, testified that she is the director of education for . (Tr. pp. 146-147). The school has four education classes. ’s class consists of twelve children. There are always five staff members in the class. Instruction is provided to the whole class, in small groups and on an individual basis. (Tr. p. 159). The class has two teachers. Mrs.

, who is one of the teachers, is certified in education. (Tr. p. 193). The other teacher, Ms. , is bilingual. (Tr. p. 192). She is working towards a Master’s Degree in management. (Tr. p. 197). The school also has on staff and providers and an therapist. (Tr. p. 161).

For reading, the class utilizes elements of the Wilson program, the Edmark program, and the program. They also have guided reading and shared reading at points of the day. (Tr. p. 151). Ms. meets with the teacher at the beginning of the year and divides the girls into groups; and decides what each group should be working on. A reading is also available, as needed. (Tr. pp. 152-

154) receives Wilson, Guided Reading and and Verbalizing. The Slingerland is used for teaching her how to read and write . (Tr. pp. 177-178). ’s class is mainstreamed for lunch, and extracurricular activities. (Tr. p. 155). The students are also mainstreamed for morning or afternoon meetings, and for assemblies on Fridays. (Tr. p. 156), is an all girl’s school, which includes typical peers. Being in an all girl school benefits because issues can be addressed very openly. In addition, issues are at a very low level, and the girls can focus on academics. (Tr. pp. 158-159) Ms. testified that is appropriately placed in her class, in which she falls in the middle academically. Her class is bilingual She is very social, and benefits from the mainstreaming opportunities in the school. (Tr. pp. 165, 170). During the morning, when the focus is on social skills, instruction is in , with English, as necessary. In the afternoon, the teachers try to stick to using English. (Tr. p. 198). ’s school day goes from 9:00 A.M. to 4:00 P.M., except for Fridays, when school ends at 12:30. In total, she attends school 31.5 hours per week. (DOE Ex. 12). receives / therapy twice per week and therapy twice per week, as part of her program. (Tr. p. 216). Both therapists are certified. The school does not provide therapy. (Tr. p. 217).

Ms. ,a education teacher, testified that she has been ’s education teacher for three years. Ms. provides small group instruction, rotating among groups, with four assistants. (Tr. pp. 220-223) is taught reading using the Orton-Gillingham methods for decoding. She is also instructed in reading sight words. (Tr. p. 227). is skilled at telling time, but has more difficulty with money. She can do double digit addition with regrouping. (Tr. pp. 226-227) Her reading and math skills are on a grade level. (Tr. pp .240-241)

Ms. testified that she prepared goals and submitted them to the CSE via fax, prior to the May 25, 2010 meeting. She testified that her goals were read during the CSE review meeting, but were not discussed or incorporated into the IEP. (Tr. pp. 236).

Progress reports in evidence reflect ’s progress, during the current school year, in comprehension, grammar, writing numbers, and understanding money concepts. She has also progressed in and therapy. (Par. Ex, I, J)

Mrs. ., ’s mother, testified that she went to visit when it was first recommended for in September 208; and felt it was too large and unstructured for her. (Tr. p. 267). Mrs. . participated in the May 25, 2010 CSE review by telephone. She was not provided with the evaluations available to the CSE, prior to the meeting. She recalls that there was a discussion about goals; but she did not voice any objection, because she was not aware that goals needed to be more specific. (Tr. p. 269). Following the meeting, she received the evaluations; but she never received a recommendation in the mail. (Tr. p. 270). She did not learn about the availability of a seat in the bilingual program at until she came to the hearing. (Tr. pp. 271-272). She testified that she is very pleased with ’s progress at , both academically and socially. (Tr. pp.272-273).

The annual tuition for ’s attendance at , for the 2010-2011 school year is $42,000. Of that amount, the parent made five payments totaling $26,000, as of May 12, 2011, with a balance owing of $16,000. (Par. Ex. H). Mrs. . testified that she has applied for a loan from two organizations, so that she can pay the balance. (Tr. p. 176).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). I find that the DOE failed to meet its burden of proving that it recommended an appropriate program for .

I find that the math goal in the May 25, 2010 is inadequate. There is a goal for calculation skills, but no goals for learning time and money concepts or word problems. The record indicates that time and money skills and math word problems are an important component of ’s educational program; and the IEP should include goals in all three areas. In addition, the CSE failed to conduct a vocational assessment, as required by 8 NYCRR 200.4(b)(6)(viii). Most importantly, the DOE’s failure to make a timely site offer to , consistent with her IEP, clearly resulted in a denial of FAPE.

The parent disputes that she ever received any site offer. However, even assuming the final notice in evidence was sent to the parent, by its terms, the class offered to was not consistent with the IEP, which recommended bilingual instruction. was offered an interim monolingual class, until a bilingual class became available.

Although the record indicates that a bilingual class subsequently became available at the start of the school year, this fact was never communicated to the parents. The parents of a child with a disability are entitled to receive an offer of a specific placement with sufficient information to enable them to make an informed decision whether to accept the offer. Application of a Child with a Disabiity, Appeal No. 96-30. For all of the foregoing reasons, the DOE failed to prove that if offered a FAPE for the 2010-2011 school year. Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction 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.” See Frank G. v. Bd. Of Educe. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). Cert. denied, Board of Educe. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parents satisfied their burden of proving that provided with educational instruction designed to meet her unique needs. The record indicates that the school provided with instruction in all academic areas, a bilingual program, and with related services of / therapy and therapy. has made academic progress during the current school year. Equitable Considerations The 1997 IDEA amendments clarify that tuition reimbursement may be reduced or denied, if parents neither inform the CSE of their disagreement with the 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. Sec. 1412[a][10][C][iii][I]; Rafferty v. Cranston Public School Committee, 315 D. 3d 21 (1st Cir. 2002); Application of the Board of Education of the Briarcliff Manor Union Free School District, Appeal No. 04-022. The purpose of the statute is to give the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiencies in the IEP. Application of a Child with a Disability, 03-062.

On August 24, 2010, the parents provided the CSE with notice of their intent to place at , effective September 8, 2010. The parents cooperated with the CSE by participating in the CSE meeting.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parents for ’s tuition expense at , up to $37,000, for the 2010-2011 school year, upon presentation of proof of payment thereof. Dated: July 27, 2011

________________________________

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

DL:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 17, 2011

PARENT

A Hearing Request, 11/17/10, 3 pages B Amended Hearing Request 2/18/11, 4 pages C Notice of Placement, 8/24/10, 2 pages D Due Process Response, 11/23/10 3 pages E Class Profile, Undated, 2 pages F Class Profile, LTSE, 5/17/11, 2 pages

DEPARTMENT OF EDUCATION

1 IEP, 5/25/10, 22 pages 2 Parent Consent, 3/23/10, 1 page 3 Teacher Report, 11/6/09, 2 pages 4 Report, 2/2/10, 3 pages 5 Report, 5/11/10, 1 page 6 Observation, 3/23/10, 1 page 7 Social History, 4/30/10, 3 pages 8 Psychological Evaluation, 4/22/10, 4 pages 9 Final Notice, 7/14/10, 1 page 10 Medical Report, 3/24/10, 3 pages 11 Omitted

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 14, 2011

PARENT

G Admission and Description of Program, dated 2010-2011, 3 pages H Tuition Agreement, dated 5/12/11, 1 page I Progress Report, dated December 2010, 3 pages J Progress Report, dated February 2011, 4 pages K Progress Report, dated 5/6/11, 3 pages L Class Notes, dated October 2011,^[12] pages

DEPARTMENT OF EDUCATION

Footnotes

[12] Class Schedule of , Undated, 1 page DOCUMENTATION ENTERED INTO THE RECORD ON JULY 18, 2011 PARENT None DEPARTMENT OF EDUCATION None IMPARTIAL HEARING OFFICER I Case Extension Follow Up Sheets, Various Date, 4 pages