New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 12

Hearing Requested By: Parent

Date of Hearing: June 21, 2011

August 2, 2011

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2011

Attorney Mother — Parents

Student

Chairperson’s Designee District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 2, 2011

Attorney — Parents

Parents

Parents

Director, 2 — Parents

(via telephone)

Center Director for — Parents

(via telephone) Bell

Chairperson Designee, CSE District 12 On April 28, 2011, I was designated by the New York City Department of — DOE

Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York on in the matter of .

The parent through her attorney initiated this hearing on April 26, 2011. On June 2, 2011, I scheduled this hearing for June 21, 2011. Hearings were held on June 21, 2011 and August 2, 2011. The parent seeks direct funding for tutoring services at ( ) for for 1,200 hours. The parent also seeks transportation funding to and from from the date of my decision until 2014. The parent had sought evaluations including, but not limited to a psychological evaluation, an educational evaluation, a and evaluation and a vocational assessment. I ordered the district to complete the requested evaluations by interim order dated June 23, 2011. At the hearing on August 2, 2001 the parent withdrew her request for evaluations and for the Committee on Education (CSE) to develop an appropriate Individualized Educational Program (IEP) (Tr. at 108). The parent seeks to obtain direct payment for or the academic years 2009-2011, and for the academic year 2008-2009 for individual tutoring in the amount of $117 per hour for 20 hours per week for 60 week or 1,200 hour from the date of my decision until 2014. The parent also seeks transportation funding.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

is a -year-old student who has not been identified as a student with a disability. He graduated from School in the . His mother requested CSE evaluate in October 2010 to determine whether had a disability that required education services (Exh. 0 at 5). The psychoeducational evaluation conducted by , PHd, Certified School Psychologist on July 8, 2011 indicated significant deficits comprehension and math (Exh. O at th 4). Dr. noted scored which placed him at the percentile in th comprehension and he scored which placed in him the percentile in comparison to other students his age (Id.). Dr. concluded that ’s performance indicated “significant weakness in skills and possibly processing deficits.” Dr. further concluded that met the criteria of a student with a disability in mathematics. Dr. recommended the would benefit from support and instruction in and comprehension (Exh. O at 6)

THE POSITON OF THE PARTIES

The parent’s attorney asserted that Department of Education failed to provide a free and appropriate public education (FAPE) over his entire school years. parent’s attorney asserted that the student was denied FAPE for the 2010-2011 school and the 2009-2010 school year. This assertion was not contested (Tr. at 35). The parent seeks an Order that the Dept. of Education provide the following: (1) direct payment for tutoring at the for 1,200 hours in the amount of $117 per hour; and (2) transportation to and from the located at 110 East 55th Street, New York, New York by issuing a Metrocard.

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , District 12 representative who conceded that the District failed to provide FAPE for for the academic years 2009-2011 and conceded prongs one and three of the Burlington/Carter test (Tr. at 35).

THE PARENT’S CASE

The Parent’s case as presented in the testimony of ’s mother, ,

, Director of 2 and , the Center Director of . The parent testified that was diagnosed with a disability and disorder ( ) at the age of by a counselor recommended by ’s primary care physician (Tr. at 45). She stated that she requested the school staff evaluate during his and school years (Tr. at 45). She stated that repeated th grade and repeated grade (Tr. at 52).

On cross the parent stated that she repeatedly requested that be evaluated in middle school in writing, but the school staff did not allow her to keep a copy of her request (Tr. at 53). She stated that she requested evaluations in 2005, 2006, 2008 and 2010 (Tr. at 55).

Mr. , Pastor and Director for 2 Church, testified that he was certified in Illinois to teach years through (Tr. at 58). He stated that he was familiar with for the past 3 to 4 years as he had assisted with his homework. Mr. stated that the school originally attended, the School was not able to meet his needs so he looked for alternative school for and discovered the Academy which used alternative types of assessment. Mr. felt that the Academy would able better able to meet ’s needs. (Tr. at 61) Mr. maintained that was not able to do simple things like read something and communicate what he had read (Id.) Mr. recalled that he contacted the parent’s attorney to assist him in obtaining education resources for (Tr. at 63). Mr. further recalled that he requested that staff at the Academy evaluate on or about November or early December 2010 (Tr. at 66; 71).

th

testified that he attended the School in grade in 2005 (Tr. at 75) He stated that he was not aware that his transcript (Exh. E) indicated that he did not pass any during his years at the School (Tr. at 77). He stated that at the Academy he was able to graduate by passing the English and by passing portfolio projects for math, history and science (Tr. at 78. 112) He explained he was interested in receiving help in the form of tutoring from in and math if tutoring services were offered (Tr. at 114).

, Center Director of , testified that she was familiar with as she had read the report from the and pathologist (Exh. P) and the psycho-education report (Exh. 0) and noted that both documents revealed that had receptive and expressive weakness (Tr. at 84) She stated that had a program called “Visualizing and Verbalizing” that specifically addressed receptive and expressive weakness (Tr. at 85). She further noted that the psycho-educational evaluation noted had a weakness in math and she noted that had a program called “On Cloud Nine” that would teach how to visualize a number line and see numbers in relation with eachother and then apply that imagery to remembering how to add and subtract, borrow and carry, multiply and divide (Tr. at 86). She recommended receive 20 hours per week for 4 hours per day at the cost of $117 per hour for 60 weeks (Tr. at 87;95) She based her recommendation for based on her experience with students with similar strengths and weaknesses as (Id.)

FINDING OF FACT, CONCLUSION OF LAW

Direct payment of tuition for a non-approved school may be ordered if the legal standard applicable to a request for reimbursement for educational services is met. The standard, such as in this case, is well established: 1) the services offered by the Department of Education are inadequate or inappropriate; 2) the services selected by the parent are appropriate; and 3) equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985])

The District representative conceded prong one and prong three of the Burlington test for the 2009-2010 school year and the 2010-201 school year. The parent’s attorney asserted that was entitled to compensatory services during for the 2005-2006 school year through the 2010-2011 school year. Compensatory education refers to education for a person to compensate for educational deficiencies that occurred between the ages 3 to

21. It is a remedy granted to students deprived of FAPE and students who have endured educational failures, and who have regressed during their school age years. Garro v. Connecticut, 23 F.3d 734 (2d Cir. 1994); Melvin v. Bolton School District, 100 F.3d 944 (2d Cir. 1996); Application of a Child Suspected of a Disability, Appeal No. 91-6. The SRO reviewed the issue of compensation and in Application of a Student with a Disability, Appeal No. 08-054; Application of the Bd. of Educ., Appeal No.04-085; Application of the Bd. of Educ., Appeal No.02-047. See also Bd. of Educ. v. Munoz, 16 A.D.3d 1142, 1145 (N.Y. App. Div. 2005) (affirming an SRO decision to award “makeup services” to a student where the district failed to provide services described in his IEP). To award compensatory services, there must be a finding of a denial of FAPE. Application of the Bd. of Educ., Appeal No.04-085; Application of a Student with a Disability, Appeal No. 08-054; Application of a Child with a Disability, Appeal No. 07-

109. The SRO actually increased the additional educational services awarded by the Impartial Hearing Officer because of the denial of a FAPE in Appeal No. 07-109. It was undisputed that no FAPE was provided to for the 2009-2010 school year and the 2010-2011 school year. I find persuasive the parent’s testimony that she requested the school staff evaluate for Education services since 2005. I further find persuasive the pastor’s testimony that he attempted to assist the parent to have the school staff evaluate during his school years. Therefore I find that did not receive FAPE throughout his educational career from 2005 and was entitled to compensatory services.

The parent has the burden to prove that the services she obtained for was appropriate to his needs. The fact that the facility selected by the parent to provide the educational services to the child is not approved as a school for children with disabilities is not dispositive of the parents’ claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]) The parent must prove that will receive an appropriate educational benefit from the program at the nonpublic school, and the parent offered evidence to meet this burden. The evidence demonstrated that the tutoring at was appropriate to meet his needs as had achieved success in improving skills of their students with similar deficits as and provided one-on-one instruction in the areas of , spelling, comprehension, and math and the program was research-based. I find the “Visualizing and Verbalizing” Program and the “On Cloud Nine” program were appropriate to teach comprehension and math and that the staff at was trained in implementing the program for improving and math.

Order

Therefore, it is hereby ordered that the Department of Education shall pay for following: (1) direct funding for 1,200 hours of tutoring services at the rate of $117 per hour. I further order that the Department of Education shall provide to the parent transportation to and from by issuing the student a metrocard.

The relief set forth herein shall be effective immediately upon the issuance of this Order is remains in effect until 2014 as the student was entitled to compensation beyond the school years 2009-2010 and 2010-2011. Dated: August 23, 2011

______________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:nn

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 JUNE 21, 2011

A Impartial Hearing Request, 4/26/11, 3 pp. Parent

B Student Permanent Record, 11/24/08, 2 pp. Parent

C Letter, 10/14/08, 1 p. Parent

D Student Permanent Record, 3/29/11, 2 pp. Parent

E Official Transcript, 10/28/08, 2 pp. Parent

F Answer Sheet, 10/15/08, 1 p. Parent

G Report Card, 3/31/09, 1 p. Parent

H Report Card, undated, 1 p. Parent

I Report Card, 2010/2011, 1 p. Parent

J Report Card, 11/24/10, 1 p. Parent

K Entrance Exam, 12/13/08, 1 p. Parent

L Intake Writing Sample, undated, 1 p. Parent

M Diploma, January 2011, 1 p. Parent

N Evaluation Request, 11/15/10, 1 p. Parent

1 Student Letter & Fax, 5/31/11, 2 pp. District

2 Attendance History, 5/2/11, 1 p. District

3 Admission and Discharge History, 5/3/11, 1 p. District

4 Student Permanent Record, 3/29/11, 2 pp. District

5 Notice of Discharge, 3/25/22, 1 p. District

6 Temporary Notice, 1/11/11, 3 pp. District

7 Reasons for Delay, 5/19/11, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 2, 2011

O Psycho-Educational Evaluation, 6/29/11 & 7/8/11, 8 pp. Parent

P and Evaluation Report,7/14/11, 5 pp. Parent

8 Initial Social History Rep ort, 6/28/11, 5 pp. District