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: February 14, 2011

March 2, 2011

March 9. 2011

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2011

Parents

Parents

CSE- District Representative — DOE

CSE- Supervisor (via telephone) — DOE

Director (via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 2, 2011

Parents

Parents

CSE- District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 9, 2011

Parents

Parents

CSE- District Representative — DOE

CSE- Chairperson — DOE

Special Education Teacher — DOE

— DOE

The Matter of . (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on February 14, 2011, March 2, 2011 and March 9, 2011. The undersigned was appointed by the Impartial Hearing Office of the New York City Department of Education to preside over this matter on December 2, 2010. The Actual Record Close Date was March 9, 2011.

Student is presently , having been born on Student has been determined to be in need of special education and related services. Student is classified as having a . Student had been placed by District‟s Committee on Special Education (“C.S.E.”) at for (hereafter “ ”), a non-public educational facility approved by the New York State Education Department, located at , , at least for the 2008-2009 and 2009-2010 school years. For the 2010-21011 school year, District continued Student‟s placement at with the Related Services of twice weekly, thirty minutes per session, individually; once weekly, thirty minutes per session, individually; and once weekly, thirty minutes per session, five times weekly, on a push-in basis. Student‟s classification is not at issue in this proceeding, nor is any recommended provision of Student‟s current I.E.P., regarding his placement, his program or his Related Services contested by Parents. Rather, Parents, according to their Due Process Complaint (Exhibit 1), seek an Order directing District‟s Committee on Special Education to include the words „ ” on Student‟s Individualized Education Program (“I.E.P.”) or that the C.S.E. include the following:

“[Student] would benefit from a

Program utilizing methodology similar to components found on programs such as „

(Exhibit 1)

According to the testimony of Parent and others, Student had been making acceptable but slow progress in such placement at until Student began participating in a computer program called “ ”. Such program had been recommended by District‟s C.S.E in Student‟s I.E.P for the 2008-2009 school year (Exhibit A), where specific reference was made, in the area of Student‟s “Academic Management Needs”, that Student was to receive “ ( ”, and was continued, with , in Student‟s 2009-2010 I.E.P (Exhibit B), wherein was stated, in the area of Academic Management Needs, that “[Student] would benefit from a Utilizing Methodology Similar to Components Found in Programs Such as „ )”.

was described by the Director of as a computer program which changes the signal in slowing down the rate at which such are presented, so that the . According to all witnesses, after Student commenced such program, his academic progress showed remarkable progress, which progress continued until the conclusion of the 2009-2010 school year.

At the commencement of the 2010-2011 school year, program was no longer afforded to Student by , as the term “ ” or any reference to such program was replaced in the “ ” section of Student‟s 2010-2011 I.E.P. with the notation:” ” (Exhibit 12). Parents contend that, because of the failure of the District to properly place an appropriate reference to the utilization of a program similar to in Student‟s I.E.P., or a refusal by to permit the implementation of the program to Student because such program is not specifically contained in Student‟s current I.E.P, Student is presently being deprived of a valuable and necessary component of his program and seek its immediate implementation.

Parents appear to have been caught in the middle of a Battle of Interpretations being waged between the Department of Education, on one hand, and on the other. According to the District Representative and District Witness , the Department of Education considers a methodology. According to the testimony of C.S.E. Chairperson , a specific methodology, pursuant to Department policy, may simply not be included in a student‟s I.E.P.

In fact, contrary to the testimony of the Committee‟s Chairperson, there appears to be no such absolute prohibition to the inclusion of a methodology in a student‟s I.E.P. Indeed, the Department‟s Representative, in a closing statement, made reference to decisions handed down the New York State Office of State Review (SRO), in which there were specific statements to the effect that a C.S.E. may, but are not required to, place a particular methodology in a student‟s special education program. In support of such position, District cites the decision of the State Review Officer in Application of a Child with a Disability, Appeal No. 07-052. In such decision, it is stated by the State Review Officer that:

“Although an IEP must provide for specialized instruction in the child‟s areas of need, a CSE is not required to specify methodology on an IEP and the precise methodology to be used by a child‟s teacher is generally a matter to be left to the teacher.”

(See also Application of a Child with a Disability, Appeal No 07-065).Thus, it is the District‟s position that its C.S.E. either may not, or cannot be compelled to, place the “methodology” of in Student‟s I.E.P. Indeed, the Department contends that, even placing in Student‟s I.E.P. the phrase sought by Parents to be placed in Student‟s I.E.P. that “Student would benefit from a program utilizing methodology similar to components found in programs like „ ), was inappropriate and precluded, even though such was, in fact, the very phrase utilized by District‟s C.S.E. in preparing Student‟s I.E.P. for the 2009-2010 school year, even to the point of containing the magic word “methodology” (Exhibit B). Of course, by the very reasoning expressed in the above-quoted State Review Officer decision, Student‟s teacher could have simply made the decision that had been specifically left to her, that is, that “the precise methodology to be used by a child‟s teacher is generally a matter to be left to the teacher” and initiated Student‟s access to the program at the commencement of the 2010-2011 school year.

However, such did not happened, as through its Director, has, taken the position that is not a methodology, but an device, whose utilization by must be premised on a specific reference to such in a student‟s I.E.P. As Witness the Director at , explained, is a device and not a methodology. A methodology is employed by teachers as part of their teaching – devices do not involve teachers or teaching. In the case of the utilization of for Student at , Witness testified that Student would be taken by a paraprofessional to a technology lab, where Student would to the computerized program and , which responses were then evaluated by the computer program provider at a center located in , which would then speed up or slow down the program, depending upon Student‟s success in appropriately . The paraprofessional accompanying Student is not involved in the process except for supervision of the mechanics of the device and of the student. Witness explained that the program listened to by Student had as its goal the alteration of Student‟s , so that Student would then be more prepared and more able to respond to his teacher‟s instruction. Witness further explained that would not provide Student with the requested program absent a specific direction to do so set forth in Student‟s I.E.P., either as an component or an authorization to utilize a device with elements similar to the components found in programs such as . Responding to an inquiry as to whether had ever requested an Evaluation of Student for the purpose of getting an authorization, Witness advised that, to the best of her knowledge, the New York City Department of Education did not perform or request evaluations for processing deficits, which, she had concluded, Student had.

I note with interest that the Office of State Review had the occasion in a recent decision to contrast the very differences in approach to as are set forth herein (Application of the Blank for Review of a Determination of a Hearing Officer, Appeal 10126, dated January 21, 2011), but avoided making any statement as to the correctness of either position. As such determination as to which position is correct is unnecessary to this Decision, I, too, decline the opportunity.

However, faced with the stand-off between the two educational entities as to the specific language or verbiage to be included in student‟s I.E.P. by which Student might be afforded the particular program that unquestionably effected a significant improvement in Student‟s academic progress, Parents have initiated this Due Process Complaint, seeking, as previously indicated, an Order requiring District‟s C.S.E. to make a mandated part of Student‟s special education program for the 2010-2011 school year at . However, I must find that there is no basis in the record before me to so order.

Parents have not specifically attacked the sufficiency or adequacy of Student‟s Special Education program as established by the C.S.E. in its I.E.P of April 27, 2010 (Exhibit 12), and I am without authority to consider any issues except those set out in Parents‟ Due Process Complaint (8 NYCRR 200.5(j)(1)(ii)). And, indeed, such a complaint, had it been made, would have failed, as the testimony of both witnesses from confirmed that, while Student is not receiving the benefits of and is, perhaps, not progressing academically as fast as he might otherwise, it was the testimony of Witness , a at , that Student is still making progress through classroom instruction, including instruction in the Program. Admittedly, Student might well progress in a more substantial manner were he to be provided with the program, but such is not the mandate under which the New York City Department of Education and the District labor. The Department and the District need not maximize Student‟s potential, but must simply offer to Student a special education program that is reasonably calculated to enable the child to receive meaningful educational benefits. Once that is established, it is irrelevant that additional or different services would likely result in greater educational benefit or progress.

However, my inquiry into Parents‟ Complaint does not end there. Parent testified that, at the C.S.E. meeting of April 27, 2010, the Committee completed the preparation of Student‟s Individualized Education Program for the 2010-2011 school year, including, under Academic Management Needs, the specific statement that:

“[Student] would benefit from a utilizing methodology similar to components found in programs such as ”

Such testimony was confirmed by Witness , who had served as the Special Education Teacher on the Committee which met on April 27, 2010. Witness explained that, while she was no longer assigned to that Committee on Special Education when it met on April 27, 2010, she had been so assigned during the 2008-2009 and 2009-2010 school years and had been a member of the Committees which had prepared Student‟s I.E.P. for those school years and, as a consequence, had been asked to return to District and participate in the preparation of Student‟s program for the 2010-2011 school year. Witness unqualifiedly stated that the Committee on that date agreed that such statement as appears above, and had appeared in haec verba, in Student‟s I.E.P. for the 2009-2010 school year, would be placed in Student‟s I.E.P.

The Regulations of the Commissioner of Education of the State of New York mandate that the recommendations of a Committee on Special Education be developed at meetings of the Committee (8 NYCRR 200.4(d)(4)(i)). Such recommendations constitute the Student‟s recommended program. The finalized I.E.P. as issued by District and its C.S.E. must reflect – fully and completely - the decisions and determinations made by the Committee during its meeting. Clearly, the document submitted by District as Student‟s I.E.P. for the 2010-2011 school year does not contain the statement, under Student‟s Academic Management Needs, that:

“[Student] would benefit from a program utilizing methodology similar to components found in programs such as

„ ‟”

and thus fails to fully comport with the decisions and determinations made by the Committee at its April 27, 2010 meeting. Witness testified that she had not prepared the I.E.P. submitted by District as Exhibit 12, but believed that such had been prepared by the School Social Worker who had attended the meeting. To the extent that the written I.E.P. (Exhibit 12) differs from the recommendations and determinations made by the Committee at its meeting, it is the recommendations made by the Committee at its meeting that must prevail. I note that District offered no rebuttal to the testimony of Parent or Witness and offered no testimony that the Committee‟s recommendations were anything other than those described by Parent and Witness . Witness , while denying any knowledge or involvement with the preparation of the Committee‟s 2010-2011 I.E.P. as written, opined that, perhaps, the inclusion in the 2008-2009 and 2009-2010 I.E.P‟s of the specific reference to the program, were the result of an error or “mistake”. However, such opinion is irrelevant to this proceeding, as it was the very determination of the Committee –erroneously or not – made on April 27, 2010.

It is, therefore, my finding and determination that the Committee, at its April 27, 2010 meeting, prepared Student‟s special education program for the 2010-2011 school year, which included his placement at , his Related Services of , once weekly, thirty minutes per session, individually; , twice weekly, thirty minutes per session, individually; , on a push-in basis, once weekly, thirty minutes per session, in a group of five, and that Student would benefit from program utilizing methodology similar to components found in programs such as . To the extent that Student‟s written I.E.P. (Exhibit 12) does not comport with the recommendations made by the Committee at its April 27, 2010 meeting, it will be deemed amended to include the statement that Student would benefit from a program utilizing methodology similar to components found in programs such as .

District is hereby directed to amend its I.E.P so as to correct the erroneous description of the Committee findings immediately. It is not necessary to reconvene, as the Committee recommendations simply must be accurately represented in the written document. Further, is hereby advised that Student‟s Individualized Education Program for the 2010-2011 school year is now revised so as to contain the specific language that Student would benefit from a program utilizing methodology similar to components found in programs such as . Based upon the testimony of the Director of , such is all that is required by for to initiate Student‟s immediate participation the program.

ORDER

Based upon the above review, it is HEREBY ORDERED that District and its Committee on Special Education correct its erroneously-prepared Individualized Education Program for Student for the 2010-2011 school year (Exhibit 12) so as to accurately reflect the determination of its Committee on Special Education that, under Student‟s Academic Management Needs, “Student would benefit from a program utilizing methodology similar to components found in programs such as .”; and it is

FURTHER ORDERED that The School for Development, Student‟s current special education placement, immediately deem Student‟s I.E.P. to contain the statement that “Student would benefit from a based program utilizing methodology similar to components found in programs such as .”, and immediately commence Student‟s access to its program. Dated: March 29, 2011

_________________________________

, ESQ.

Impartial Hearing Officer

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 FEBRUARY 14, 2011

PARENT

A IEP dated 6/26/09, 13 pages B IEP dated 5/11/08, 16 pages

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, dated 11/29/10, 1 page 2 Due Process Response, dated 12/9/10, 5 pages 3 Programs dated 2/7/10, 3 pages 4 Annual Review Notice, 2/1/10, 1 page 5 Full Report Review 2010/2011, 2 pages 6 Recommendation, dated summer of 2011, 2 pages 7 Least Restrictive Environment Statement 2010/11, 1 page 8 Testing Accommodations, 1 page 9 Progress Report/Goals, June 2010, 7 pages 10 Final Notice of Recommendation, dated 4/27/10, 1 page 11 Minutes of CSE Meeting, dated 4/27/0, 1 page 12 IEP dated 4/27/10, 13 pages 13 Notice of IEP Meeting, dated 4/7/10, 1 page 14 Annual Review/ Progress Report, dated 1/25/10, 3 pages 15 Annual Review/ Report dated 2/20/10, 3 pages 16 Scores, 1/4/10, 1 page 17 Test #3, dated 1/4/10, 7 pages 18 Annual Review/Classroom Report, dated 2/1/10, 2 pages 19 Goals February 2010, 6 pages 20 Profile, 2009/2010, 2 pages 21 IEP dated 6/26/09, 13 pages 22 Social History Update Report, 25 25dated 6/3/09, 4 pages 23 Comprehensive - 25 25 Report, dated5/17 & 6/8/07, 10 pages

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 2, 2011

PARENT

None

DEPARTMENT OF EDUCATION

20B Report, 1/25/10, 3 pages 20C , 2009-2010, 1 page