Impartial Hearing Decision

IN THE MATTER OF THE IMPARTIAL HEARING CONDUCTED ON BEHALF OF X

BY Parents, FROM THE ACTION OF THE COMMITTEE ON SPECIAL EDUCATION

OF THE SCHOOLS

SED #

Parents’ Counsel: School District Counsel:

INTRODUCTION

This hearing is governed by 8 NYCRR 200.5 and IDEA. Parents requested this hearing by letter received by the School on 06/14/11. SD 1 I was appointed by the President of the Board of Education by letter dated 06/17/11. SD 2 Page 2 of that letter reads in part: “Please contact the above parties to schedule hearing dates and fax the Schedule Availability Form to [fax #].” I then faxed the Form as requested, and attempted to schedule hearing dates. By emails dated 06/21/11, the School Attorney advised me that it would be premature for me to discuss or schedule a pre-hearing conference or hearing dates, or to communicate with the Parents, during the Resolution Period. The Resolution Period ended in mid-July. There was a pre-hearing conference call on 07/25/11. We agreed on a hearing date of 09/09/11. The initial decision date was 08/28/11, but it has been extended until 09/28/11. TR 8 - 10

[The School Attorney requested a 30 day extension of the 45 - day limit because of witness unavailability. The School Attorney alleged that X’s educational interest would not be negatively affected by the extension. The School Attorney further alleged: The hearing issue is to decide between a self-contained class and an integrated co-teaching class for . The Parents prefer an integrated co-teaching class. Under stay-put, X will begin the school year in the integrated co-teaching class. There are no financial ramifications to an extension, and there have not been prior delays in this case due to the actions of a party. TR 8 – 9]

[The Parents agreed with the School Attorney’s statement of the hearing issue, but objected to the extension request. The Parents stated: We feel that the delays in setting up meetings (resolution and mediation) on the part of the School District, and now the lack of availability of the District and its Attorney for the hearing, has caused this hearing to be scheduled past the beginning of the school year. We have put off scheduling our vacation to the last week of August so we could be available for the hearing. As I recall, you [that refers to me, the IHO] encouraged [the School Attorney] to set up a date early in the process, but he did not want to. We do feel that X will be negatively impacted if your decision causes him to be moved from one class to another, disrupting his schedule and likely causing him some anxiety due to the changes. That said we understand that an extension will be granted. TR 9 – 10]

This hearing was held on 09/09/11. Five witnesses testified: X’s 2 grade teachers, the CSE Chair who is also the District’s Director of Special Education, and X’s 2 Parents. The transcript contains 278 pages. Exhibits entered into evidence numbered SD 1 – 25, and P 1 - 8. TR 21-25 Written closing arguments were submitted with postmarks dated 09/21/11. The record closed on 09/21/11. TR 276-277

My findings of fact and conclusions of law [total # of pages herein 10] are attached hereto and have been mailed to Parents and by certified mail, return receipt requested.

PLEASE TAKE NOTICE! Within 35 days of the receipt of this decision, the Parent and/or Board of Education has the right to appeal this decision to the State Review Officer of the NYS Education Dep't under Education Law Section 4404 and IDEA.

"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." 8

NYCRR 279.2(b)

Directions and sample forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm. YOU WILL WAIVE YOUR RIGHT TO

APPEAL THIS DECISION IF YOU FAIL TO FILE A NOTICE OF INTENTION TO SEEK

REVIEW or if you otherwise fail to follow the procedures set forth in the Commissioner of Education's Regulations Part 279.

Impartial Hearing Officer:

Date: 09/26/11

ISSUE

In which class shall X be educated for his grade year (2011-2012): a special class recommended by the School District, or an integrated co-teaching class with additional supports and modifications preferred by X and his Parents? SD 1, SD 3 – 4, TR 9

DECISION

I order that X be placed in a special class for for 2011-2012. I find that the School District met its burden of proof that the IEP (SD 4) provides a FAPE to X. I order the District to fully support X in his transition to that special class, and to a changed schedule.

FINDINGS OF FACT

Background

X is a year-old male special education student in the District. SD 4 X is classified as . SD 4, SD 7 Last year for grade X attended, and this year for grade X is attending one of the District’s schools. SD 4, SD 7 X was a student in a grade integrated co-teaching class (2010-2011). SD 7; TR 43-45

X’s skills and achievement levels in are far below the level needed for a grade integrated co-teaching class (TR 45-46, 106, 150, 152), were below even grade level, and are estimated to be at a grade level. TR 107-109, 168, 170, 172; SD 7 at 2, 4, 5, 7; SD 4 at 6, 7 X has a strong , but difficulty with , and difficulty with . SD 4 at 4; TR 150-151 X didn’t realize that he wasn’t meeting expectations. TR 68

The IEP provided for X to be taught in a “special class” as defined in § 200.6 of the Regulations of the Commissioner of Education. SD 4 That class is denominated as a 15:1 class, which means that the class is taught by a Special Education teacher and can have up to 15 students. SD 4 The teacher of the actual proposed special class is dually certified in Special Education and in . TR 225 That actual class: (1) (TR 225), and (2) has only students at this time (i.e., graders, graders, males and females TR 233-234). There is no indication that the number of students would increase (except for the addition of X) during the school year, although it is possible that that could happen. TR 225 In that class, the instruction for X would be highly individualized. It would be based on: (1) working with X at his current skill and achievement levels, (2) teaching X additional skills and (3) developing those skills. TR 59, 213, 224-225, 244

X and his Parents prefer an integrated co-teaching class for his grade year. P 8; TR 250, 256; SD 12, p. 9; SD 14, p. 9 An integrated co-teaching class is a general education class taught by a General Education teacher and a Special Education teacher, and composed partly of general education students and partly of special education students. 8 NYCRR § 200.6(g). In the District, an integrated co-taught class could have up to 25 students. TR 211

X wrote that: (1) going to a special class (rather than a co-taught class) for would be torture for him, (2) would be boring, (3) having graders in class would not cut it and (4) he would not feel as smart. P 8; TR 249, 261 The delay in setting a hearing date (TR 8-10) has caused X to be anxious about the outcome of the hearing, asking several times over the summer when they will decide about his placement. TR 249

Under the stay-put provisions during the pendency of this hearing, and at Parents’ request, X has begun the grade (2011-2012) school year in an integrated co-teaching grade level class. See 8 NYCRR § 200.5(m). X’s schedule will have to be changed in order to accommodate the special class. TR 261 A schedule change will: (1) cause all of his core classes to be at the end of the day, and (2) prevent him from eating lunch with his friends. TR 249 In grade, X was bullied in the lunchroom, and it caused him to wander the halls at lunchtime and it increased his anxiety. TR 252-254

Parents’ Point of View

For years, the District has recommended restrictive settings for X, and for years, X’s Parents have fought that recommendation. X’s Parents believe that: (1) X has always been successful in inclusive settings, (2) When they’ve followed the School’s recommendation, always against their better judgment, it has been a negative experience for X, (3) X learns from his peers, (4) It’s therefore important, for his academic success, to be exposed to higher achieving learners in a heterogeneous setting, (5) X relates better to older students, and (6) The recommended setting includes many students who are a grade below X. TR 246-247, 256-258

X’s Parents described X as . TR 253 However, X . TR 254, 271

X’s Parents believe that : (1) X received grades (TR 224), (2) X didn’t receive as much help as he should have received, (3) he would have done better if he’d had more help, (4) differentiation is the key educational strategy, and (5) his IEP wasn’t consistently followed. TR 254-255; Parents’ Conclusions of Law.

Parents proved that: (1) the General Education teacher’s Masters Degree is in Education and (TR 201), (2) the Special Education teacher is not a content expert in (TR 115), and (3) in grade , X read all the same books as his classmates, and wasn’t provided with leveled readers, even though his IEP provided for modification. TR 131-132 Parents asked about: (1) the teachers’ compliance with the increased wait times, and modified assignments and tests, all required by the IEP (TR 203-207, 211), and (2) whether X was taught and if so, the strategies which were used, and whether visuals were used. TR 212 See also 216219

Even though the District argues that X would receive more support in the special class which already has students (with X, it would be students), all with IEPs, the special class has only one certified teacher [ ratio]. TR 210, 243-244 In X’s current co-taught setting, there are students with certified teachers. TR 242 1 Parents point out that the grade Special Education teacher agreed that it was helpful to have both a Special Education and a content teacher in a classroom. TR 124

Despite recommending the special class, neither of his teachers has firsthand knowledge of the setting. TR 210, 115 Furthermore, the special class may or may not repeat . TR 237 X’s current setting is with graders only, and all with no repeats.

The special class setting may include 1 or more students who have bullied X in the past. TR 266, SD 7 Being in a class with a student who has bullied X will have a negative effect on X’s ability to learn, and increase X’s anxiety and stress levels.

When the CSE discussed a special class for X, his parents were advised to observe a special class setting. They observed students who were disengaged, and concluded that the setting was not appropriate for X. This occurred both in 02/ 2010 and 06/2011. TR 256, 235

X was placed in a co-taught class in grade where he achieved a as a final grade vs. , respectively, as final grades in and grade special class . P 2 – P 4; TR 247, 259 2 X was unhappy in a multi-grade special class in in grades and . X complained

1 The similarity of ratio doesn’t change the CSE’s recommendation. TR 243-244

2 The grades don’t change the CSE’s recommendation.. X’s skill set deficiency was present in and still remains. TR 260 daily about being bored and not liking it. SD 6 at 2; TR 246 One of the reasons that he disliked it was that he was TR 257

Although the Special Education teacher testified that X did not meet grade expectations (TR 115, 118, 138), X’s program was reviewed at 8 weeks, and no changes were recommended. SD 7 While the District argued that X did not pass , X’s in-class tests

^[3]

were graded as follows: . P 5 At 40 weeks (P 7 dated 06/11), X had “progressed gradually” on his goals # 1, 2,^[4] – 7 The Special Education teacher didn’t work 1-1 on with X, but she taught those skills to the entire class, and she assisted X with as best as she could. TR 137 The General Education teacher worked 1-1 on with X. TR 153, 212 ( is a goal on his IEP for 2010-2011. SD 7 at 11) Parents believe that it was not worked on sufficiently. TR 255

The Special Education teacher referred to X’s being in the percentile (TR 47). Parents note that that score came from 2007 testing. SD 12 at 7 (I note that X’s 2010 evaluation reported X’s score as . SD 7 at 7; SD 12 at 8 4)

Grade in a Co-Taught Class

For grade , (2010-2011), X was in an integrated co-teaching class. SD 7, TR 44 Coteaching classes prepare their students for the examination. TR 44-45 Both teachers in X’s grade co-teaching class agreed that: (1) X’s work was very far below grade level. TR 115, 139, 143-144, 150, 155-157, 167-168, 170, 172, 176, 184-186; SD 4 and (2) X’s achievement and abilities were the lowest of any student in that class (considering both the general education students and the special education students). TR 44- 46, 138; see TR 143-144

That class: (1) had only 12 students for virtually the entire year (but a 13th moved in very late in the year), TR 46, (2) was composed of 5 students with IEPs, 1 student with a 504 plan, and 6 general education students, TR 46, and (3) was staffed by a General Education teacher and a Special Education teacher. TR 45-46 Both teachers are highly qualified, experienced and testified convincingly. TR 43-44, 141-143

In the grade co-teaching class, X generally showed little or no understanding of the and of the assignments, other than a basic understanding of lines. TR 4647, 49, 52, 62, 77, 81, 91-93, 159, 161 As one example of misunderstanding an assignment, despite extensive in-class discussion of that assignment, everyone in the class was assigned to write about the , but X wrote about . X earned a passing grade because of his time and effort, even though he did not focus successfully on the assignment. TR 127

X’s written work was far below grade standards and showed huge deficiencies with respect to: (1) understanding , (2) the nature and parameters of the assignments, and (3) writing conventions (i.e., sentence structure, grammar, punctuation) and style. TR 48-55, 70101, 163-178, 183-188, 190-193; SD 16, 17, 18, & 20 (at 5-12) X tried to do the class work, but even with 1:1 support, was unable to do so. TR 51-52, 57-59, 93, 96, 100, 154 - 157

X’s written work showed some minor improvement over the course of his grade year in terms of developing a better sense for the format of assignments, but X’s skills did not improve to any significant degree. TR 137, 149-154, 185-186, 202-203; SD 5, 10 The Special Education teacher assisted X in by modeling, discussing and breaking down material into smaller amounts. TR 54 As one example, the class read and then the class discussed some of the characters and the . After the class discussion, the class was assigned to write about some of the characters and the . Original thinking was not required. The assignment was to write some of what had been discussed. The other students did wonderfully, but even with 1-1 support, X did not. (X had been present for the class discussion.) TR 55-57

Parents proposed that two than X’s in-school work. Those items, however, are not X’s independent work. TR 110-113, 199-200 They were produced in X’s home, and with Parental assistance, and according to Parents, . TR 250-251, 110-113, 199-200. See also TR 103-104, 195-196 Furthermore, a review of the put into evidence by the District makes this blatantly obvious when one reads the text of P6 and P8 and then compares them to X’s in-school work. The are totally inconsistent with X’s other work and do not show X’s abilities or skills. TR 111, 199-200. See also TR 103-104, 194-196

X’s grade teachers have worked with special education students and general education students in for many years. X is among the lowest student in terms of level of skills and achievement of any student ever taught by either of the teachers. TR 45-46, 138, 143-144 The Special Education teacher taught special education in New York State for 11 years, worked with hundreds of students on language skills, and knows “expectations” for students in . TR 138

The General Education teacher stated that X is able to . However, the teacher testified in great detail that X was not, even with the significant and continuous 1:1 support provided to him throughout his grade year, able to . TR 197-198 The Special Education teacher agreed. TR 107-109

In his grade integrated co-teaching class, X often provided oral and written responses that showed that X had little or no understanding of: (1) or assignment being covered and (2) how to address the questions or assignments. TR 47-48, 109, 144-147, 152-154

X participated very little in class discussions in grade because he did not understand the or the assignments, even with the continuous 1:1 support of the two teachers. TR 46-48, 144145, 209 Both teachers stated that other students in the class would roll their eyes or otherwise express exasperation when X participated in class discussions because X’s comments were so far off-base. TR 106-107, 152-153, 208-209, 214-215

The General Education teacher awarded X a (SD 5) but testified that X’s work did not warrant . Rather, the teacher awarded the because she believed that X had tried and she wanted to reward his effort and heart. TR 156-157, 178, 190191, 208, 220 The Special Education teacher agreed that X did not deserve based on the quality of his work. TR 139

The Special Education teacher communicated regularly with Parents during the 20102011 year. She emailed on an almost daily basis about what X had done in his Resource period with her, and what assignments were being given, as well as whatever assessments were planned, with a great deal of specificity about those assessments, so that X could prepare as fully as possible. TR 104 - 106, 196 This was in compliance with the IEP. SD 7 at 2 The General Education teacher provided X with notes from class and both teachers provided X with modified tests in compliance with the IEP. SD 7 at 2; TR 116, 146-148, 160 X was tested on smaller word banks than the other students. TR 203-204 The General Education teacher recognized that the IEP required X to take his own notes, and then the teachers were required to provide X with their notes to supplement X’s own notes. SD 7 at 6; TR 154, 211 However, X rarely took his own notes, and at times was clearly off task. TR 117, 154-155, 207

In compliance with the IEP, the Special Education teacher provided study guides (TR 4950), notes (TR 49-50), 1-1 assistance with writing assignments (TR 51-52), and modified (i.e., less demanding than his peers) tests (TR 53).

The CSE Recommended A Special Class For

In 12/10 or 01/11 and continuously thereafter, the Special Education teacher expressed her opinion to X’s Parents about X’s 2011-2012 placement, saying that the demands were too heavy on him in the co-taught class, and that he should instead be in a special class. TR 105 The General Education teacher expressed the same opinion to X’s Parents mid-year. TR 196198 5 District witnesses testified convincingly that the co-taught class moved too fast for X, and the pace would be slower and more appropriate for X in a special class. TR 218, 224-225, 244

One teacher recommended the special class because she knows the special class teacher, and “She’s wonderful”, and both teachers recommended the class because X didn’t meet expectations in 9. TR 210, 115, 118 The CSE recommended the special class because: (1) the grade co-taught class put X at a disadvantage considering his levels of achievement and ability, and rate of learning, (2) the grade co-taught class would be even worse for X than the grade cotaught class, (3) his skills, achievement and progress in grade was far below standards for the 5 At 20 weeks (SD 9 dated 01/11), X had neither “met” nor “made sufficient progress” toward any of his 6 goals in . TR 60-64 grade co-taught class, and (4) the special class would start skill-building at a level closer to X’s skills than would the co-taught class. TR 50-51, 106, 118, 123, 134, 178-179, 197, 213-214, 218

Furthermore, the special class would afford the opportunity for more direct and intensive instruction in the areas that are problematic for X. It would give the School the opportunity to support X’s growth in the basic development of skills. TR 224 X’s skill set didn’t improve during grade . TR 224 – 225

The special class observed by X’s Parents is more like a self-contained setting, where many students spend multiple periods per day in that class with the same teacher. In contrast, the special class recommended for X is an isolated special class working on the curriculum in an adapted manner. In the recommended class, content is used to support growth and development towards a diploma. TR 226-227 The students in the recommended class have academic needs and abilities similar to X. TR 230-233

Since X is far, far grade ability to do course work in a co-taught class, the District recommended a special education special class. This recommendation is made because in the special class, the teacher will work with each student based on where the student is in terms of skills and development. Even though an integrated co-teaching class would have two teachers, and even if the class turned out to have a relatively modest number of students, it would not serve X’s needs. This is because the integrated co-teaching class is a general education class that provides support for students with respect to grade level work rather than working with students in developing their skills based on where they actually are. TR 243-244 Even with continuous 1:1 assistance by one or both teachers in an integrated co-teaching grade class, X would be unable to perform anywhere near grade level or to develop or improve X’s skills. TR 152-153, 179; see TR 105-106.

Assistance With Schedule Change

If X is placed in a special class as recommended by the District, then X will likely need to change the time for lunch and thus, be eating lunch with different individuals than those with whom X is currently eating lunch. TR 261

Parents expressed concern that X could have some difficulties or needs with respect to this transition because X is currently having lunch with students with whom he is comfortable, and he will be eating with others if his class assignment is changed as a result of the hearing.

If X’s grade class is changed to the District-recommended special class, then the District will provide individualized assistance to X to aid in any transition issues concerning lunch and in transitioning into the special class. TR 266-270

CONCLUSIONS OF LAW

The District Recommendation Satisfies Rowley

X’s education must be provided in accordance with the Rowley standard. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). Rowley requires that a student be provided with a Free Appropriate Public Education (FAPE). This standard means that the District must provide, and X must receive, “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 458 U.S. at 203. Stated in other words, X is to be provided education reasonably calculated to enable him to receive educational benefits. 458 U.S. at 207

The evidence is clear that X will not benefit educationally from instruction in a grade integrated co-teaching class. Placing X in an integrated co-teaching class, together with the supports provided in the 2010-2011 IEP, unspecified additional supports, and those requested by X’s Parents in their hearing request, cannot be construed as reasonably calculated to enable him to receive educational benefits. The evidence is clear that in an integrated co-teaching class, even with extensive modifications, services and supports, X would be lost and faced with instruction and expectations far beyond his abilities and skills.

Furthermore, given that X is beginning grade and is so far grade level skills in , it is critical rather than merely desirable for X to be in a special class for 2011-2012. X must be taught starting at his current skills level, and provided with support to develop from that level. This is the only way that X will have any reasonable chance to develop sufficient skills.

Placing X in an integrated co-teaching class for 2011-2012 could never be construed as consistent with the Rowley standard. The District’s recommended special class for for 20112012 is upheld as reasonably calculated to provide educational benefit for X.

A Special Class for 2011-2012 is the LRE for X

Federal and State law provides that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 USC 1412 (a)(5)(A); 8 NYCRR 200.1 (cc), 200.6 (a)(1)

In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R. v. El Paso ISD, 874 F.2d 1036, 1044 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp. 968, 982 [NDNY 1994]; SRO 05-010; SRO 03-027; SRO 03-009; SRO 02081; SRO 93-4). The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon SD, 995 F.2d 1204, 1213 [3d Cir. 1993]). SRO 06132

The court must consider the following factors in reviewing placement in a restricted setting: (1) whether the School made reasonable efforts to accommodate the child in a general education setting, (2) how does the educational benefit to the child compare between the general education setting and the restricted setting, and (3) what is the likelihood of negative effects of inclusion on the child’s nondisabled peers in a general education setting. SRO 11-002 at 18-19; P v. Newington Bd of Ed, 546 F. 3d 111, 120 (2d Cir. 2008).

In addition, 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. SRO 11-002 at 10

I find that: (1) X did not meet his IEP goals in his grade co-taught class setting, (2) the School and its staff made consistent and reasonable efforts to accommodate X in that general setting, by (among other things) modifying the curriculum and providing 1-1 assistance, (3) the School and its staff properly complied with and followed the grade IEP, (4) in the general setting preferred by X’s Parents for grade, the educational benefit to X would be insignificant but in the restricted setting recommended in the IEP (SD 4), X would be likely to reach his IEP goals, (5) the students in the restricted setting are more similar to X in their academic needs and abilities than are the students in the general setting, and (6) if X were to be included in a general setting for grade, then there is little likelihood of negative educational effect on X’s nondisabled classmates.

There is no doubt that Parents deeply love X, but X would be poorly served by being in an integrated co-teaching grade class in which he would not be taught and supported in the development of his skills from where he currently is, which is far, far below grade level.

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Footnotes

[3] The Special Education teacher said that those tests are reflective only of X’s ability . TR 125 The General Education teacher said that those grades don’t change her mind about her recommendation of the special class. TR 220

[4] Results of X’s 2010 evaluation are reported at SD 4 at 3,4 as follows: