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: May 6, 2011

May 9, 2011

June 17, 2011

September 8, 2011

Record Close Date: October 4, 2011

Hearing Officer: Jean Marie Brescia, Esq.

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

Advocate, Educational Advocacy Services — Student

Mother — Student

School /Chairperson Designee CSE- — DOE

Special Education Teacher, CSE- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2011

Advocate, Educational Advocacy Services — Student

Mother — Student

School /Chairperson Designee CSE- — DOE

Assistant Principal (via telephone) — DOE

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

Advocate, Educational Advocacy Services — Student

Parents

Principal, — Student

District Representative, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2011

Advocate, Educational Advocacy Services — Student

Mother — Student

District Representative — DOE

— DOE

On February 9, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on February 8 (1) to challenge the alleged failure of the Committee on Special Education for District 21 (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year and (2) to seek reimbursement for tuition expenses at the , a non-public school. The hearing convened on May 6, was continued on May 9 and June 17, and completed on September 8.

The compliance date for the submission of this written decision was extended to May 23 to accommodate , and then to June 22 and July 22 in order for the school district‟s and the parents‟ witnesses to be available. The compliance date was then extended to August 21 and September 20 in order to permit the completion of the testimony and the preparation of the transcript. At the conclusion of the hearing, the parties requested permission to file written closing statements on or before October 3. Permission was granted, and the compliance date was extended to October 20 in order to permit the parties to file such memoranda. The parents‟ advocate informed the hearing officer on October 4 that the parents did not wish to submit such a memorandum. On the same date, the Department‟s advocate informed the hearing officer that the Department‟s memorandum had been forwarded to the Impartial Hearing Office. The hearing officer offered the Department the opportunity to provide the memorandum to her. She did not receive the memorandum. The record closed after the close of business on October 4. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

-old boy who attends in His disability is classified, for the purposes of the IDEA, . The parent disputes this classification.

The School District‟s Case was evaluated in November 2009. A CSE school performed a evaluation (Department Ex. 7). The evaluator noted that during the evaluation, ‟ had a “rather component”— “interrupted directions with irrelevant comments and questions” and demonstrated a “quick and impulsive style of responding,” tasks (Department Ex. 7 at p. 1). He was to . was and .

On the , obtained the following scores: verbal comprehension, ; perceptual reasoning, ; working memory, ; and processing speed, ; for a full scale score of , placing him in the (Department Ex. 7 at p. 2). The evaluator observed that due to the “ his verbal and performance scores, his score “may not be .” Furthermore, the “ ” in his responses suggested “ ” than indicated by his full scale score (Department Ex. 7 at pp. 2-3). On the , attained the following : , , , , (Department Ex. 7 at p. 6).

, a certified special education teacher employed by the Department of Education, testified that she was the “teacher assigned A on an IEP team developing IEPs” for of the CSE (trans. 9-10). She has participated in several IEP meetings for , including a meeting on December 12, 2009 (trans. 11; Department Ex. 1). Ms. attended this meeting as the district representative. The meeting was attended also by the parent, a Department special education teacher, a Department general education teacher, a parent member, (an advocate for the parent), ‟ teacher and provider, and a Department school psychologist (trans. 12).

Ms. testified that the recent evaluation of was a evaluation (trans. 28). Ms. believed that the evaluation did not include a classroom observation of . The evaluation showed that ‟ reading decoding was at an level, reading comprehension was at an upper grade level, math calculation was at grade level, and math applied problems was at a grade level (trans. 14, 28). His I.Q. was in the ” (trans. 15). The IEP notes academic management needs for : , and , , and (trans. 15-16).

Ms. stated that, even though has a deficit, the CSE recommended a classification of because the CSE “felt that was more prominent” than impairment; “in several reports, as well as the interview with the teachers at the school, were brought out” and his issues” (trans. 17). Ms. explained that the evaluations revealed that had “ issues, problems adapting to the environment and adapting to certain changes, and it seemed like this was a — , this is a ” (trans. 31). According to Ms. , ‟ issues required a plan (“ ”), and the CSE included a in the IEP (trans. 17-18; Department Ex. 1 at p. 18). The IEP notes that “presents with . . . . may have a difficult time confronting situations that are ” and “ in responding to things that he was uncertain about” and that his and requires ” (Department Ex. 1 at p. 5).

The CSE recommended that attend a class in a community school and receive the related services of ( ), week 3:1) and ( and sessions per week ) (trans. 20; Department Ex. 1). The parent and personnel from ‟ school requested a smaller student: teacher ratio (trans. 32). The CSE also discussed assigning a crisis management paraprofessional to ; the parent “rejected this offer” (trans. 24; Department Ex. 8). Ms. opined that the IEP “constitute[d] a free appropriate public education” for (trans. 26).

By notice dated August 10, the CSE informed the parent of a placement for at in (Department Ex. 9). , the assistant principal of , testified that the school had special education classes, including classes (trans. 50). The school also provides , , (trans. 51). opportunities are available for students (trans. 53). In September 2010, class E-31 included a special education teacher (Ms. ), a paraprofessional and nine students (trans. 54). The students were reading on through levels, and their math scores ranged from grade levels and were consistent with ‟ scores (trans.55-56, 7374). Four of the students were classified with (trans. 58). Five of the students received (trans. 58). One of the students was assigned a (trans. 68). All the students‟ related services mandates were met within the school (trans. 63, 69-70). There are students in the class with , and these are addressed in the classroom (trans. 64). According to Mr. , ‟ could be implemented in Ms. ‟ class (trans. 65).

Mr. reviewed the goals set forth on ‟ IEP and stated that these were the goals Ms. was working on in class E-31 (trans. 59-63). In particular, working with students on “staying focused on tasks is one of our primary purpose[s]” in the small setting. Teachers work with students in small groups and individually to emphasize prompting, directions and follow-through (trans. 65). Mr. opined that ‟s could be implemented by the personnel at the school (trans. 66).

The Parents‟ Case

The parent testified that she participated in the December 2009 CSE meeting by telephone (trans. 109-110). At the time of the meeting, attended the School. At the meeting, the CSE recommended that ‟ classification be changed from impaired to (trans. 112). School personnel informed the parent that the change was due to factors, and “ ” (trans. 112). The parent did not agree with the change in classification. There was no discussion at the meeting of recommending a paraprofessional for (trans. 114).

When the parent received the placement notice in August, she wrote a note to the CSE stating that she could neither accept nor reject the placement until she visited the placement in September (Parent‟s Ex. C). The parent also provided notice to the CSE on August 18 that would be attending in September (Parent‟s Ex. D). The parent visited the placement proposed by the Department for (trans. 115-116). The parent stated that the children in the class were not “ ” to because they “just needed ” and “were ” (trans. 117). She explained that “ because of his . . . . So whereas his in terms of . . . He to or he ” (trans. 117-118). After she visited on September 21, she followed-up with a note to the CSE stating that the placement was not appropriate for because “academically it was him” (Parent‟s Ex. C). The parent rejected this placement and sent to for the 2010-2011 school year (trans. 118).

The parent chose for because the staff at the school work with students on , and skills both in the small classes and during recess (trans. 119).

Classes include students and are taught by teacher, and the teachers have been able to give the (trans. 121, 139). The parent stated that made progress during the school year with respect to his skills, mastering mathematics skills such as multiplication and division, reading comprehension and (trans. 122-126).

The parents signed a tuition contract to enroll in in February 2010 (Parent Ex. F). Tuition at the yeshiva is $22,000.00 (trans. 87; Parent‟s Exs. E, F). The parents have paid the 2010-2011 tuition at in full (trans. 119-120).

testified that he was the principal of and also served as a teacher in the school (trans. 83). The school includes grades for approximately 30 boys with “some learning issues” who “haven‟t been successful in the school that they were in” (trans. 83). The staff includes the , his son, an assistant principal, two English teachers, two licensed special education teachers, a licensed school psychologist, a “consultant” for “difficult situations” and three tutors. Each student receives per week of instruction (trans. 85, 97).

The school day includes instruction from 7:45 AM until 12:30 PM (trans. 87; Parent‟s Ex. H). subjects are covered in the afternoon until the school day ends at 5:15 PM (trans. 88). On Fridays, the school day ends at 12:00 PM (trans. 91). Classes are also conducted on Sundays from 7:45 AM until 12:30 PM (trans. 91).

has been enrolled in the for the 2010-2011 school year (trans. 89). According to , has which impact his learning and difficulties with activities (trans. 89). is also “ ” to in the classroom (trans. 90). There are 10 to 15 students in his class during the school day (trans. 90). receives much individual assistance from the special education teacher both in class and during his tutoring (trans. 90-91). He also receives from the .

explained that has made progress during this school year in the areas of concentration, remaining on task, skills and writing (trans. 92, 98).

Findings of Fact and Decision

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 the 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 school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District‟s Program The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended special educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “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 School District, 142 F.3d 119, 130 (2d Cir. 1998); see also 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 School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for set forth information from the psychoeducational assessment, described in his current levels of performance and identified his special education needs.

Furthermore, the CSE considered the evaluative information and input from CSE participants and determined that ‟ disability should be classified as . is defined as:

a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student‟s educational performance:

(i) an inability to that cannot be explained by , or factors.

(ii) an or maintain s with and ;

(iii) inappropriate types of under normal circumstances; (iv) a generally or or

(v) a tendency to or associated with personal or school problems.

The term includes The term does not apply to students who are , unless it is determined that they have an . 8 N.Y.C.R.R. §200.1(zz)(4).

Ms. clearly described how ‟ learning problems were grounded in his issues, specifically his difficulties . He has a history of an . While this difficulty is , the appear to be the primary source of his . In addition, also appear rooted in his - . As a result, the CSE‟s determination to classify ‟ disability as was appropriate. The next step is to examine the IEP to determine whether it sets forth a program that sufficiently addresses ‟s identified special educational needs. The recommended 12:1:1 program, with a special education teacher and a paraprofessional in the classroom, provides teacher support sufficient for redirection and encouragement to address ‟ distractibility and to enable him to make meaningful educational progress. Furthermore, the related services set forth in the IEP and provided at the proposed placement would address ‟ language and socialization difficulties.

The evidence presented at the hearing establishes that the Department offered a free appropriate public education for the 2010-2011 school year. As a result, the Department prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of the

The parents bear the burden of proof concerning the appropriateness of the for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459

F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parents must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‟s individual needs . . . . 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.” Frank G., 459 F. 3d at 364.

Considering the “totality of the circumstances,” the evidence does not support a finding that the program at was appropriate for . The descriptions of the special educational program at the do not provide sufficient explanations of how, if at all, that program addresses ‟ special educational needs. While the seems to have offered a nurturing environment in which he was encouraged to socialize with fellow students, the parent did not meet her burden of demonstrating that the provided with “instruction specially designed” to address his educational needs. According to Dr. had made progress during the school year. However, this, by itself, does not demonstrate that was an appropriate setting under the IDEA for . See Gagliardo v. Arlington Central School District, 489 F.3d 105, 115 (2d Cir. 2007) (reimbursement denied where “the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not”). As a result, the Department prevails on the second Burlington/Carter criterion.

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parents‟ claims, the evidence establishes that the parents cooperated with the CSE by attending the CSE meeting, visiting the proposed placement and then communicating their concerns to the CSE.

Therefore, for all the above reasons, it is hereby ordered that:

The parents‟ request for tuition reimbursement is denied. Dated: October 6, 2011

___________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JB: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 6, 2011

PARENT

None

DEPARTMENT OF EDUCATION

1 IEP, dated 12/17/2009 18 pages 2 Report, dated 1/20/09, 2 pages 3 Report, dated 12/16/09, 1 page 4 Report, dated 3/22/09, 1 page 5 Report, dated 03/31/2009, 1 page 6 Teacher Report, dated 12/17/2009, 1 page 7 Evaluation, dated 11/16/2009, 6 pages 8 Notes from the Student's CSE File, dated 12/17/2009, 1 page 9 Final Notice of Recommendation, dated 08/10/2010, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 17, 2011

PARENT

A Impartial Hearing Request, 2/8/11, 5 pages B Deleted C Placement Letter and Fax Confirmation, 8/10/10, 2 pages D Ten Day Notice, 8/18/11, 1 page E Affidavit of Payments, 2010- 2011 SY, 1 page F Tuition Contract 2010-2011 SY, 1 page G Year Attendance Record, 2010-2011 SY, 1 page H Daily Schedule, 2010-2011 SY, 1 page I Progress Report, undated, 2 pages, J Proof of Payment, 2010-2011, 9 pages K Program Description, undated, 1 page

DEPARTMENT OF EDUCATION

None