New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: August 2, 2011

Actual Record Closed Date: September 1, 2011

Hearing Officer: Robert L. Nisely, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 2, 2011

ESQ., Attorney, Society — Student

ESQ., Attorney, Society — Student

Intern, Society — Student

Intern, Society — Student

Parents

Center Director, Center (via telephone) — Student

Administrator for Education for CFN 101, District Representative — DOE

On May 13, 2011 the New York City Department of Education (DOE) appointed — DOE

me to act as the impartial hearing officer (IHO) in a case brought under the federal — DOE

Individuals with Disabilities Education Act [20 USC § 1415(f)(3)](―IDEA‖) by the Parent of (the Student) (IHO #I). The Parent requested the hearing by filing a due process complaint notice with DOE on April 25, 2011 (Parent A).

I conducted the hearing on August 2, 2011 at the DOE Impartial Hearing office in Brooklyn, New York. The Parent was represented by counsel. A list of witnesses and exhibits is attached to this decision.

BACKGROUND

The Student was born in 1998 and currently resides in District 2 in Manhattan where he attends the Community School. At all times relevant to this proceeding, the Student has been classified as and impaired (Parent E, F and G). The Student was in grade during the 2010-11 school year and will enter grade in September (Parent G at p.1; T. at 30).

Before discussing the specifics of this case, I shall give a brief overview of the Student’s problems.

In March and April of this year, the Student underwent a psychoeducational evaluation at Beth Israel University in Manhattan at the Parent’s request (Parent H at p.1). She requested the evaluation because she was dissatisfied with the progress the Student was making at school (T. at 24).

In a report, dated May 23, 2011, the two examiners, one of whom was a clinical psychologist, found that the Student had a Full Scale IQ of , as measured by the WISCIV, which placed him in the average range (Id. at p.3). However, the report also noted that there was a ― degree of scatter‖ within the various domains comprising the test (Id.).

After administering a battery of 7 tests over a period of 4 days, the examiners concluded in the summary section of their report that:

― exhibits significant weaknesses in academic tasks such as comprehension, writing, spelling and mathematics. While he has adequate academic fundamentals, he struggles significantly to apply problem solving skills to academic knowledge (Academic Applications score).

When he did have to write sentences, he demonstrated significant weaknesses in writing fundamentals such as punctuation, capitalization, and sentence construction. His handwriting was also poor and hard to read. In school, is likely to have difficulty from lecture or independent study, and he is likely to need structure and encouragement from teachers. Mathematically, is well below grade level. He needed extra time to sit with each math problem. This is another area where he should receive extra help and support, as will be described in the recommendations section. However, ’s and skills need profound support and services as well.‖ (Exhibit H at pp. 9-10)

In the recommendation section of the report, the examiners noted that the Student ―will need several ongoing educational services to help him overcome his issues‖ (Id. at 11). In particular, they recommended weekly remediation in mathematics and writing and the use of ―multiple instruction modalities‖ (Id. at pp. 11-12).

The findings and recommendations in this report closely parallel those contained in an earlier neuropsychological evaluation prepared at Lenox Hill Hospital in 2008 (Parent D).

At approximately the same time as the Beth Israel evaluation was being conducted, the Parent took the Student to the Center ( ) for an educational assessment (Parent C). The resulting report showed that the Student was performing either poorly or below grade level in the areas of , writing and mathematics (Parent C at pp. 1-3).

On November 15, 2010, before these evaluations had been performed, the Committee on Education (CSE) had convened to conduct the Student’s Annual Review (Parent G at p.1). The Individualized Education Program (IEP) prepared at this meeting recommended that the Student be placed in a collaborative team teaching class and receive counseling, and ( & ) therapy and therapy ( ). This was essentially a continuation of the placement that the Student had been in for the prior 2 years (Parent E and F).

The IEP described the Student as a ―diligent and polite‖ grader (Parent G at p. 3). However, the test scores reported in the IEP showed him as performing below grade level in all major academic areas (Id).

On April 25, 2011, the Parent through her attorney filed a due process complaint against DOE, alleging that, despite the education services he was receiving, the Student was not making progress and that his ― and math skills remain far below grade level‖ (Parent A at p. 1). The complaint further alleged that, based on the results of the testing, the Student required 300 hours of one-on-one tutoring to remediate his academic skills (Id. at p. 2).

In her request for relief, the Parent requested that DOE pay for 300 hours of tutoring at ; reimburse the Parent for the testing fee; and pay the registration fee (Id.).

The complaint also alleged that DOE had failed to provide certain & and related services mandated in the IEP and requested compensatory services (Parent A at p. 2). However, these allegations were resolved at the resolution session and are not before me (Parent B).

DEPARTMENT OF EDUCATION’S CASE

DOE did not dispute the Parent’s allegations about the Student’s lack of progress. In fact in his opening statement, the DOE representative noted that ―it’s very apparent that he [the Student] is not making …the kind of progress that we expect he would make‖

(T. at pp. 8-9).

In a colloquy with the IHO, the representative observed:

―And that—you’ll see that when the parent presents the IEPs, that when he entered the school, two years ago, he was on a grade level. His current IEP indicates that, as of November, he was on a grade level. So, that’s not indicative of the kind of growth and progress that I feel I could stand and defend.‖ (T. at p. 11).

In response to a question from the IHO, the representative conceded that DOE was not disputing prong one of the three prong test enunciated by the Supreme Court in Sch. Comm. Of Burlington v. Dep’t of Educ (471 U.S. 359 [1985]) (T. at p. 11).

PARENT’S CASE

Counsel for the Parent called two witnesses: the Parent and Dawn , who is the Center Director for .

The Parent testified that she thought the Student had not been improving in the last two years and had actually been regressing (T. at p. 15). She expressed her concern that the Student would not be able to graduate, adding that she could not imagine him ―going on to school‖ (T. at 16).

She testified that she had expressed her concerns to the Student’s teachers, but they did not offer any remedial services (T. at 17). She testified that she had the Student tested at Beth Israel, because of her concern that the Student was getting worse. According to her testimony, the evaluators told her that the Student would need ―intensive tutoring to remediate his deficits‖ (T. at p. 25).

She explained that she choose for further testing based on her ― ‖ about the school and that the test results essentially confirmed what she already knew (T. at pp. 26-27).

, who was the second witness, testified that she is the Center Director of , which is located at Avenue in Manhattan (T. at 32, 62). She has worked for in various capacities for 10 years (T. at pp. 33, 52). She holds a Master’s degree in Music and is certified in California in childhood and elementary education (T. at p. 33).

Ms. testified that provides individualized instruction based on placement testing (T. at pp. 33-34). All of teachers are certified and the staff includes education teachers (T. at p. 34). She testified that is accredited by the States Association of Colleges and Schools (T. at p. 35).

Ms. reviewed in detail the results of the diagnostic test administered to the Student on March 2011 (Parent C). She pointed out, for example, that the Student had difficulty in recognizing consonant sounds in isolation, short vowels in isolation and consonant blends in clusters (T. at p. 40). According to her testimony, the Student only achieved a grade equivalency of on the Oral Test and a grade equivalency of on the comprehension subtest of the California Achievement Test (T. at pp. 43, 45).

Summarizing her findings, she testified that the student was ―significantly, if not severely behind grade level, across the board and in dire need of some intervention and remediation.‖ (T. at p. 51).

Ms. opined, based on the test results and her own experience that the Student needed 300 hours of instruction on a one-to-one basis to bring him up to grade level (T. at p. 52). She further testified that could address the Student’s needs and that she had personally worked with dozens of children like the Student (T. at pp. 51, 53).

In response to questions from the IHO, she testified that uses a approach in teaching academic skills and gave specific examples (T. at pp. 58-61). She also explained that, in teaching , uses elements of various programs, such as the Wilson and the Orton Gillingham programs, but was not ―married to any particular system‖ (T. at p. 58).

On cross-examination, Ms. discussed the various monitoring techniques that uses to insure that the students are progressing (T. at p. 62). She also testified that holds monthly conferences with the parents (T. at p. 63).

The Parent’s documentary evidence, including the IEPs and the evaluations, has already been discussed in the Background section of this decision. However, the Parent also submitted into evidence a letter from one of the Student’s current teachers, in which the teacher expresses the opinion that the Student needs support in addition to his coteaching class ―to grow academically‖ (Exhibit I).

FINDING OF FACTS AND DECISION

Under legislation enacted in 2007 by the New York State Legislature, the burden of proof with respect to unilateral parental placements rests with the Parent (Chap. 583 of Laws of 2007). Thus, the Parent must prove that the services to be provided by are appropriate.

As noted before, prong one of the Burlington Test is not in dispute. Thus, the only issue in this case is prong two – i.e., the appropriateness of the parental placement.

The courts have held that, in determining the appropriateness of a private placement, the Parent is not required to show that the placement is perfect (Warrant v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3rd Cir. 1999]).

After reviewing the testimony and evidence in this case, I find that the Parent has met her burden of proof with respect to the tutoring services to be provided by .

I credit Ms. ’s testimony that the Student is ―significantly behind grade level‖ and ―in dire need of some intervention and remediation‖ (T. at 51). I also find persuasive her unrebutted opinion that the Student needs 300 hours of one-on-one tutoring and that his needs could be addressed at (T. at 51-3).

Her opinion is fully consistent with the findings in the Beth Israel evaluation, which concluded that the Student’s and skills need ―profound support‖ (Parent H at p. 10).

In addition, Ms. ’s testimony about the use of a approach at shows that will be implementing one of the major recommendations made by the evaluators at Beth Israel (T. at pp. 58-61; Parent H at 12, 14).

I also credit Ms. ’s testimony that has successfully taught students with profiles similar to the Student’s (T. at pp. 53-4).

The fact that does not exclusively follow a particular teaching method, such as the Wilson method, does not bar the granting of the requested relief. In reviewing whether IEPs provide FAPE, the courts have held that the CSE is not required to specify a teaching method and that the choice of methods should be left to the teacher (Westchester Cty. v. Rowley, 458 U.S. 176, 204 [1982]; Application of Student with a Disability, Appeal No. 09-058). The application of this principle to the present analysis means that the Parent should not be required to prove that would use a particular teaching method.

Therefore, I am granting the Parent’s request for relief insofar as it relates to . As noted, the other issues raised in the complaint have been resolved. However, to insure that the Student receives instruction targeted to his needs, I shall require in my order that the services be provided by a certified education teacher.

However, I am denying the oral request made at the hearing that DOE pay for the Student’s travel expenses to and from , since this relief was not requested in the complaint and no request was made to amend the complaint (Parent A at p. 2; T. at 67).

For all of the foregoing reasons, it is hereby ordered that:

(1) DOE shall pay the Student’s tutoring fees at for 300 hours of academic remediation services at a rate not to exceed $85.00 per hour.

(2) All tutoring services shall be provided by a teacher certified in education in either New York State or another state. These services shall be completed by the end of the 2011-2012 school year and DOE shall have no liability thereafter.

(3) The DOE shall pay the registration fee in an amount not to exceed $100.00.

(4) DOE shall reimburse the Parent for the testing fee, in an amount not to exceed $295.00.

(5) The Parent’s request for transportation expenses is denied. Dated: September 14, 2011

ROBERT L. NISELY, ESQ.

Impartial Hearing Officer

RLN: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 RECORD

None