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: April 6, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 6, 2011

Student

DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The New York City Department of Education will be referred to as District, the guardians as Parents and the student will be referred to as Student. Based on the following analysis, I find that the requested related services are necessary for the balance of the 2010-2011 school year and that the District shall convene a meeting of the Committee on Special Education (CSE) within the next ten weeks to further evaluate the Student and integrate all appropriate recommendations and strategies offered by the Student’s .

PARENTS’ POSITION

The Parents assert that the District has failed to grasp the need and propriety of ( ) for the Student. They contend that the current proposed program cannot provide an appropriate education for the Student who requires . During the 2010-2011 school year the Parents continued the Student in . With these services, they claim, she progressed. In this hearing the Parents are seeking reimbursement for the payments incurred thus far during the 2010-2011 school year. They also seek an order directing continued payment for related services going forward. (See generally, Ex. A)

DISTRICT POSITION

The District argues that there are no procedural issues which might invalidate the IEP. Moreover, the IEP was reasonably calculated to provide meaningful educational benefit for the Student while providing for mainstreaming to the maximum extent appropriate. The District also argues that are not a recognized service available for the Student. The District asserts there is no legal basis to provide privately-selected at public expense. (See generally, opening statements of District advocate (Tr. p. 11))

STUDENT HISTORY

At the time of the hearing the Student had recently turned years old (Ex. A2) and was a grader classified as . (The Student’s classification is not in dispute in this hearing) She . (Ex. C1) She is an who has made significant progress during the last two years. (Ex. 3) Her initial evaluation indicates that she has visual acuity of / in each but that her are . “[She] has tracking a target with alone but must move her and in order to align a target.” (Ex. 1 January 31, 2008) Her frequently cause while reading or copying from a chalkboard. (Id. P.1) The clinical picture improved following the receipt of . reportedly improved in the evaluation provided on January 18, 2011. (Ex. 2) Her IEP dated 10/22/2010 indicates she would benefit from a less restrictive environment with support for specific deficits. ((Ex. C, p. 11) She had been receiving ( ) and and ( ) per her IEP, however, these services have been curtailed recently per the report of the Parents during colloquy at the hearing. (Tr. p. 88 & Ex G1)) This is so despite recommendations for continuation of related services. (Ex. 5(See evaluation which recommends resumption of services to address gross motor skills, coordination, balance and trunk control.)) In a teacher report which reflects evaluative data as of March 2011 it is reported that the Student reads at grade equivalency of as far as fluency and comprehension skills. Although the Student is able to decode words at a higher level however, while the Student reads, “she tracks with her finger to maintain place.” (Ex F2) In addition, while “ . . . she does not have difficulty copying accurately from the board . . . she to do so with the speed expected to maintain at pace with the routine of the class” (Ex. F2)

LEGAL FRAMEWORK

This case deals with payment by the District to the Parents for educationally related expenses incurred in the placement of the Student in private therapy. The standard is set forth in the applicable federal regulation and requires boards of education to provide such related services "as are required to assist a child with a disability to benefit from special education." (34 C.F.R.§ 300.24[a]) (emphasis added) The same standard should apply in New York (Application of the Bd. of Educ., Appeal No. 01-041; Application of a Child with a Disability, Appeal No. 00-006).

IDEA

The (IDEA) is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate , , or school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002) In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” N.Y. Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c) With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

ANALYSIS

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20010-2011 school year, or as the Parents claim, was the program deficient in not providing . Substantive Issue

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo) 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 11751176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104

(D. Minn. 1998) (citing Rowley). The question is then, did the Student need to benefit from her special education?

The District called a single witness who did not know the Student nor did he attend the relevant CSE meeting. (Tr. p. 45) However, he is very well qualified (Tr. p. 19) and was familiar with the District program and policy regarding (Tr. p.20). He testified strenuously that were not warranted and that are not on “the continuum of service.” (Ex H1)

On the other hand, the Parents called the who testified that are extremely important to the Student in her educational setting. “[I]t’s going to make her aware that she is not using both her . . it is strengthening the of her ” (Tr. p53). Further she testified that the resulted in improvement (Tr. p. 56) but she indicated that “We have not really gotten to the point where her is full and . . .” (Tr. p.57) The has been collecting data and administering exams for the Student for several years. She has a wealth of information that can be transferred to the Committee on Special Education (CSE) but as yet, this has not happened. (Tr. pp. 75-80) She is willing to work with the Student and the District in making recommendations to the CSE to improve the Student’s special education program. It was her opinion that the Student would continue to benefit from until the end of the current school year. Given the forgoing and in consideration of the entirety of the record in this matter it is herby

ORDERED

That the District pay for the cost of eleven sessions of provided that said services are utilized during the balance of the 2010-2011 school year; (ie before June 30, 2011)

That this order is not to become pendency;

That I direct the Parents to execute authorization to allow the to freely communicate with related service providers and the CSE so that suggestions from the can be integrated into the related service of to the extent that the CSE deems such suggestions to be appropriate; That I further direct the District to conduct an updated evaluation which should include input from the . This should be completed before June 15, 2011;

That when the report is concluded but in any case before June 30, 2011, I direct the CSE to reconvene to prepare an appropriate IEP for the following year. Dated: April 19, 2011

_________________________

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 APRIL 6, 2011

PARENT

A Initial Evaluation, 1/31/08, 2 pp. B Follow-Up, Faxed 1/18/11, 1 p. C Re-Evaluation, 2/3/11, 2 pp. D Estimate for , 3/28/11, 1 p. E Evaluation, 5/10/07, 2 pp. F Progress Report, 10/18/10, 1 p. G Progress Report, Undated, 1 p. H Letter, 11/7/05, 1 p. I Randomized Trial of for n Children, 10/2008, 19 pp. J Success with Disabilities: Parent Testimonials,

1996-Present, 12 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 3/4/11, 8 pp. 2 DOE Due Process Response, 3/11/11, 4 pp. 3 IEP Package, 10/22/10, 21 pp. 4 Final Notice of Recommendation, 10/22/10, 1p. 5 Authorization to Attend, 10/25/10, 1 p. 6 Classroom Progress Reports, 10/8/10, 2 pp. 7 Progress Report and , 10/18/10 and 3/24/11, 2 pp. 8 Educational Service Statement, 3/16/11, 1p. 9 The Continuum of Services for Students with Disabilities, 2008, 2 pp. 10 Network: What is or Training?

3/30/11, 4 pp.

Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in and , and in other settings; and (B) instruction in physical education. The term " " is defined as , and such developmental, corrective, and other supportive services (including and , services, and , recreation, including , social work services, services, including rehabilitation counseling, and services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).