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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 31
Hearing Requested By: Parent
Date of Hearing: August 30, 2011
Actual Record Close Date: September 8, 2011
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 30, 2011
For the Student:
Advocate (via telephone)
For the Department of Education:
DOE Representative (via telephone)
By Complaint dated August 15, 2011, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review ’s program for 2011-2012, and to request placement at the Community School for 2011-2012.
TESTIMONY AND EVIDENCE
, the IEP teacher at , has never worked with . (46) She is not familiar with any of the programs or academic programs at the school. (47) She does not know what methodologies are employed in the program. (62) She usually works with teachers, she covers some classes, she attends meetings. (49) She was the education teacher at the review. (49) She felt the small class recommendation was a good one. (51) The parents had a question about the bus ride. (54) The recommendation was based on the private evaluation submitted by the parent. (58) The school has about 650 students. (66) , the director of Community School, can meet ’s needs as per his IEP in terms of the school, . (77) issues are dealt with through instruction five times a week, with writing five times a week as well. (78) Subject matters areas are taught through age appropriate content without much . (79) The program is geared for children who are average or above average in intelligence with a -based disability. (79) They use Project Read, Framing Your Thoughts, Benchmark, Kurzweil Writing Program, Kidspiration, sight word approaches. (80, 86) groups are usually two children with one teacher. (81) The school is approved by New York State and New Jersey. (81)
There is arts and math five times a week for forty minutes, in small groups. (84) There is Social studies, science, computer, health, literacy, education. (85-86) There is instruction on motor skills. (87) There is a class on self-regulation. (87) The program can meet the child’s needs in terms of processing, . (88-89)
He would be in their group one classes, with a maximum of 12 students with three education teacher assigned to the homeroom. (92) He would be in a class with mixed and graders. (92)
The mother testified that ’s problems began to manifest themselves in . (94) He didn’t know his letter sounds. (94-95) He never caught up and learned how to read. (95) He was never evaluated at the school. (95) Promotion was in doubt for grade. (96) They had him evaluated in June, 2009. (96)
The initial IEP was in October, 2010. (100) The team suggested a self-contained education class with less children in the class. (101) This would require him to leave the school. (103)
He was at “Level ” when he entered in November, 2010. (105) He didn’t want to go to the school. (110) He wasn’t . (111) There were issues in the classroom. (111) His homework got worse. (112) Report cards do not indicate improvement. (113) His dropped to “Level .” (114) SETTS services were provided over the summer. (114-117) She did not see any progress for that service. (117) The services were a education teacher working with him on . (126) She did not use any particular methodology. (126-127) It was at a tutoring center. (127) A Neuropsychological Consultation by of Staten Island Hospital dated 6/25/10 diagnosed with and Disorder. (Exh. C) Recommendations include Orton-Gillingham instruction. Testing revealed low average to extremely low scores on the WIAT-II, with Average to borderline scores on the WISC-IV.
A letter from , M.D., dated 7/11/11 (Exh. G), indicated that the child had and . Educational training for phonemic awareness was suggested. The report card for grade (Exh. E) indicates that his Level was at Level throughout the year. The previous report card (Exh. B) does indicate that his Level was at Level G.
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The parent’s complaint alleges that has regressed at . Given the parent’s claims, and given the District’s burden, in my view it was incumbent upon the District to show that the program at would have met this child’s education needs and provided this child with a FAPE. However, there was little testimony from the District as to how the school would implement the IEP. There is no testimony from the District to rebut the parent’s claims that the child has regressed in during his time at . There was no testimony about the academic programs employed at . There was no testimony about the specific class that would be placed in at . There was no testimony from anyone who had worked with the child. There was very little evidence submitted by the District. I agree with the parent that the District has not shown that it will provide with a FAPE for 2011-2012.
There is also compelling testimony describing how the Community School would provide with an appropriate education for 2011-2012. Testimony from the director of the school indicates that the school’s program meets ’s education needs, particularly in regard to . The school provides Wilson instruction, which was recommended for by a Neuropsychologist. This Neuropsychologist’s report was the basis of the District’s CSE review. The school provides , a variety of other interventions, interventions. The school also provides small group instruction with a wide variety of methodologies. The record indicates that the child would be appropriately grouped in classes at the school. There is no testimony rebutting the parent’s claims that the school is appropriate for .
The Impartial Hearing Officer has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113. Given the facts presented to me, I agree that the child should attend the Community School for 2011-2012. Accordingly, I will order that this child attend the Community School, at District expense, for the 2011-2012 school year.
Dated: September 8, 2011
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:jj
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
PARENT
A Hearing Request, 8/12/11, 3 pp.
B Second Grade Report Card, 6/2010, 2 pp.
C Neuropsychological Consultation Evaluation, 6/25/10, 10 pp.
D IEP, 10/22/10, 14 pp.
E Grade Report Card, 6/2011, 2 pp.
F IEP, 6/28/11, 13 pp.
G Pediatric Developmental Report Evaluation, 7/11/11, 4 pp.
H Due Process Response, 7/11/11 and 8/16/11, 2 pp.
I Notice of Scheduled Resolution Meeting, 8/18/11, 2 pp.
DEPARTMENT OF EDUCATION
1 Stricken
2 State Scores, 1 p.