New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 22

Hearing Requested By: Parent

Date of Hearing: March 25, 2011

May 3, 2011

May 18, 2011

June 15, 2011

June 23, 2011

Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 25, 2011

Attorney — Student

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 3, 2011

Attorney — Student

DR., CSE 6 Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 18, 2011

Attorney — Student

Parents

District Representative — DOE

School Psychologist (Via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 15 , 2011

Attorney — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 23, 2011

Attorney Representing the Family — Student

Parents

Program Director, By Telephone — Student

Representing the — DOE

Teacher, Via Telephone — DOE

This matter came before me on March 25, May 3, 18, June 15 and June 23, 20111, pursuant to the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §1415(f)(1). The applicable timelines were extended for each adjournment. Appended to the record are lists of persons in attendance and documents submitted into evidence.

BACKGROUND

The student is an year old girl who is classified as and impaired; she is in the grade. The Committee on Education (CSE) convened an annual review on April 12, 2010, wherein they recommended a ten month school program, class in a community school, student to teacher ratio and related services. and therapy ( ) was recommended twice weekly, thirty minute sessions in a group of three and one individual session; only therapy was to be provided for July and August, 2010. therapy ( ) was recommended twice weekly, thirty minute individual sessions and a full time health paraprofessional (para) was to be assigned to the student.

The parents argue that the Department of Education (the Department) conducted an annual review that was procedurally and substantively flawed. The parents contend that the Department failed to provide the student with a “free, appropriate, public education” (FAPE).Consequently, the parents unilaterally placed their daughter in a nonapproved public school, . They are seeking prospective tuition funding for in the amount of $52,000 minus the cost of the religious instruction component.

THE DEPARTMENT OF EDUCATION’S CASE

The Department’s first witness was , a New York State certified school psychologist, who has worked for the Department over 11 years. She described some of her duties which include performing psycho-educational evaluations, doing classroom observations, participation in CSE meetings and making program recommendations. She identified the participants at the April, 2010 annual review and discussed what was said at the meeting. She noted that the classification was not an issue and was carried over from the previous year. She did not recall any disagreement regarding the recommendation and everyone had an opportunity to discuss the recommendation. (Tr. 22-24 and 26-27)

On cross examination, she admitted that she has never seen the student, nor observed her and has never tested her. She recalled that the mother spoke at the meeting regarding her daughter’s medical problems. The therapist stated the child was progressing slowly and recommended summer services. The educational director from the child’s school addressed her and academic status and needs. She had no recollection of anyone at the meeting expressing concern or disagreement with the recommendation. (Tr. 27-30 and 35-36)

The next Department of Education (DOE) witness was , a New York Stated licensed - teacher, who works at . She is the Individualized Education Program (IEP) teacher at her school, she does the Wilson reading program and push in to the CTT class. She described the education classes offered at her school, discussed the supervision of the teachers and the professional development for the teachers, which is provided on an ongoing basis. (Tr. 53-55) The children are grouped in subject matters based on the levels of their academic skills. There is differential in each classroom. The school provides all the related services on the premises by certified and licensed providers. The school provides professional assistance to the teachers when needed. She spoke about some of the services offered at the school during regular hours and after school. She opined that her school, based on the child’s IEP, would have met her , and academic needs. (Tr. 57-60)

On cross examination, she admitted that her knowledge of the child was solely based on the IEP faxed to her. She stated that according to information given to her, the child would have gone to a class and did not know why the student was not directed to a as noted on her IEP. She testified that the proposed class was cognitively a lower functioning class than the other .(Tr.63-65 and at 66) (Exh. 5)She reviewed the math and reading scores for the proposed class and stated that the students would be grouped on the basis of their level of need. (Tr. 69-70)

THE PARENTS CASE

The parents’ first witness was , program director of in Brooklyn. Ms. testified that she is a licensed education teacher and is certified by the Board of Education. She has held her current position for ten years. Some of her duties require her to hire staff, develop curriculum, conduct observations and collaborate with her teachers, service providers and parents. (Tr. 74-75) She described the program as a self-contained program that is housed in different mainstream schools; each school covers one grade. The program covers grades one through eight; all of the students have various learning disabilities. Each class has one certified education teacher and one teacher assistant. Some students may have a paraprofessional ((para). The students are taught in mainstream schools, in an effort to provide the least restrictive environment. The goal of the program is to mainstream as many of their students as they develop the requisite skills. (Tr. 76-77)

The director stated that she has known the student since she entered the program as a grader; the student is in the grade. Ms. noted that she has observed both Ms. , the student’s teacher and the student in the classroom setting. She described the student as having severe receptive and expressive delays, attention difficulties and juvenile arthritis. Also, the student suffers with urinary tract problems and gets lethargic at times. Her skills are weak; she has strong rote skills. the student has difficulties due to her impediments; she is liked by her peers and is obedient. There are eight other students in her class, ranging from ten to twelve years old, a classroom assistant and her health para. (Tr. 79-81)

The student receives one to one reading instructions daily, for forty minutes, from her teacher. The Wilson program is used, her overall reading is at a beginning grade and her is on a grade level. She is in a small group for grade math, with two other students on her level. The program uses Handwriting without Tears, the student struggles with writing because of her issues. Time is allocated for improving skills; a worker works with the student. The director discussed some of the student’s goals, in each area. She noted that the student has made slow and steady progress across the board. The student receives her related services at the school and each provider interacts with the director and the teacher, so that all are on the same page with respect to the student’s needs and progress. The student performs best in small groups; larger groups make her shy away. A class of twelve students would be difficult for the child to handle. Mainstreaming opportunities are available during lunch time and recess. The director opined that her program is appropriate for the student because it has met her needs and she is progressing. (Tr. 82-85; 87-89 and 93-95)

During cross examination, she acknowledged that the estimated grade levels are based on teacher observations and teacher made testing materials. The child is not ready for mainstreaming in any subject classes because her reading, writing and math skills are not up to par. The teacher writes goals for the student based on the Department of Education’s criteria and follow its methodology. (Tr. 97-100) The director estimated that two s of the curriculum is focused on secular studies, the remaining on religious studies. (Tr. at 101)

The mother testified that her daughter has had developmental problems since infancy. She has been receiving services, , and therapies since she was months old. She struggled in the mainstream setting until the end of the grade when her teacher recommended that she be placed in a education program. The mother described the April, 2010 IEP meeting as very short, there was no discussion regarding the recommendations. The CSE recommendations remained unchanged from the previous year as did the related services.(Tr. 103-106)

She visited the proposed school in September; she was shown two class, one class was higher functioning than the other. Her daughter was slated for the lower functioning class. She inquired as to the children’s reading and math levels. She wrote a letter to the DOE expressing her concerns. She opined that there was no visible cohesion in the classroom, the children are mainstreamed for gym and lunch and the larger mainstreamed groups would be overwhelming for her daughter .Generally speaking, the size of the school is too large for her daughter to navigate successfully. The mother stated that both classes cognitively were lower functioning than her daughter, the proposed class. Her daughter has progressed this year academically and . She is more organized, she does her homework independently and is conscientious about getting her parents signature when required. She has maintained her friendships with three persons from the previous year. The teaching staff at provides a lot of one to one instruction and break down the academic work into small steps for her daughter. (Tr. 107-109, 111-114) (Exhs. 1 and F)

On cross examination, the mother admitted she visited the school for about forty minutes. Most teaching was done on a one to one basis, rarely were there groups.(Tr. 114-

115) The mother acknowledged that she has made no payments to the school and believes that if she does not succeed in the hearing process, she will be responsible for the full $52,000 tuition. The family’s annual income for 2010 was approximately $98,000. (Tr. 116-117)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 free appropriate public education (FAPE)4 that emphasizes 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]).

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 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]). program for the next school year" (34 C.F.R. § 300.324[b][1]; 8 NYCRR 200.4[f]; see 20 U.S.C. § 1414[d][4][A][i]; Educ. Law § 4402[1][b][2]). A district must have an IEP in effect at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6 [stating "[a]n education department’s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement … for the beginning of the school year in September'"]; Application of the Bd. of Educ., Appeal No. 10-006; Application of a Student with a Disability, Appeal No. 09-111; Application of a Student with a Disability, Appeal No. 08157; Application of a Student with a Disability, Appeal No. 08-088). ]). As a matter of State law, a school year runs from July 1 through June 30 (Educ. Law § 2[15]). Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).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 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 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 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008].

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). This relief was extended to prospective payment for services. Connors v. Mills, 34

F. Supp. 2d 795(NDNY 1998)

I have reviewed all the testimonial and documentary evidence. Clearly, the central issue here is whether the CSE provided this child with a FAPE for the 2010-11 school years when it convened an IEP meeting on April 12, 2011.The CSE recommendations were for a class in a community school with a student to teacher ratio of 12:1and related services. The parents contend that the proposed class was not appropriate because the children in it were lower functioning then her daughter. The children were being taught either in very small groups or one to one. However, a review of the class profile revealed that the children’s reading and math scores respectively were 01.0-03.1 and 01.3-02.8. (Exh. 5) Based on the information obtained from the student’s teacher, her reading ranged from in to in decoding and listening . Her math score, again, based on her teacher’s estimate was . Clearly, her reading and math scores fall within the proposed class range. (Exh. 1) The mother testified that offered… “a lot of one to one instruction”… and that instructions were presented in small increments. (Tr. 113-114) She noted that during her visit to that rarely did she see groups of three, “it was mostly one on one.” Ms. noted that instructions are taught based on the child’s skill level, “so that one can differentiate instruction.” (Tr. 6061)The mother contends that the class size is too big, however, the proposed class has nine students without the student; has nine students including the student. The difference is only one additional student.

Based on the foregoing, I find that the Department has satisfied its burden of showing that its recommended placement is appropriate; the Department provided the child with a FAPE. Therefore, it has satisfied the first prong of the Burlington/Carter test. Having found the Department of Education’s recommended placement appropriate to meet the student’s educational needs, I need not consider the other prongs of Burlington/Carter.

Accordingly, it is ordered that the Department of Education shall not be liable for tuition at for the 2010-11 school year. Dated: July 15, 20111

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TRJ:gc

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

PARENT DESCRIPTION

A Tuition Contract 2010-11, 1 page B Affidavit of Tuition Costs 6/12/11, 1 page C Parent 1040 Tax Return 4/6/11, 2 pages D School Progress Report 3/20/11, 2 pages E Grade Schedule 2010-2011, 1 page F Parent Letter to CSE 10/24/10, 3 pages G Parent Letter to CSE 9/1/10, 1 page H Hearing Request 5/3/11, 1 page

DEPARTMENT OF EDUCATION DESCRIPTION

1 New York City DOE IEP, dated 4-12-10, 18 pages 2 Report, dated 4-1-10, 3 pages 3 Report, dated 4-1-10, 3 pages 4 Prescription Letter from Parent, dated 4-12-10, 1 page 5 Class Profile, dated 8-16-10, 1 page 6 Parental Letter to CSE to Request Continuation of Services, dated

5-1-10, 1 page 7 Final Notice of Recommendation, dated 8-10-10, 1 page