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: October 31, 2011 Actual Record Close Date: November 8, 2011 Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2011

Parents

School /District Representative — DOE

The mother of . requested an impartial hearing on September 19, 2011, requesting that ’s Individualized Educational Program (“IEP”) be updated to reflect his need for , and that continue to receive the service uninterrupted for the 2011-2012 school year. (DOE Ex. 1). I was designated to hear this matter on September 21, 2011 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on October 31, 2011.

Following the parent’s request for due process in this case, on October 22, 2011, the CSE issued a Related Services Authorization (RSA) authorizing one sixty minute session per week of for . (DOE Ex. 5). The Department of Education (“DOE”) believed that the hearing request was resolved by the issuance of the requested RSA. (Tr. pp. 72, 104). The parent feels that the issue has not been resolved, as was not made part of ’s IEP. (Tr. p. 89). ^[1] DOE Position The DOE’s position is that notwithstanding the fact that it funded for for two years, pursuant to RSA’s, vision therapy is a medical service, and not a related service within the meaning of the law. (Tr. pp. 19-20; 46). The DOE maintains that it is not legally obligated to provide to . (Tr. p. 46).

, a certified school who served as the CSE’s designee for this hearing, testified that based upon the academic testing submitted by the parent, has no difficulty reading. (Tr. p. 74). She acknowledged that she has no expertise with regard to his visual difficulties. (Tr. p. 74). She stated that the DOE would like to review ’s file and conduct a new CSE review. (Tr. pp. 74-75).

The CSE submitted into evidence a June 28, 2011 IEP reflecting an annual review which occurred on that date. According to the Conference Information, the meeting was attended by , who served as District Representative and Special education teacher, and a teacher. The mother is not listed as a participant. The IEP notes that notice of the meeting was sent to the parent on June 24, 2011. The IEP notes ’s difficulty with perceptual skills/binocularity (not using both eyes at the same time), but makes no mention of any discussion or consideration of as part of his IEP. The IEP resulted in continuation of and with no change in service. (DOE Ex. 3).

Ms. requested an adjournment of this hearing to call Ms. as a witness to testify that the mother was present for the June 28, 2011 meeting, but that she refused to sign as a conference participant when her request for was denied (Tr. p. 52, 104). She stated that Ms. was out sick, on the date of hearing, and she was the only person who could be called as a witness. (Tr. pp. 6-7, 17). She later explained that she spoke with Ms. earlier, and believed that the case had been settled. (Tr. pp. 72, 104). I denied the requested adjournment because I concluded that the CSE would be unable to demonstrate the validity of the June 28, 2011 IEP. There is no indication in the IEP that the parent was present but refused to sign. Nor is there any indication that was considered and rejected at the meeting, although was receiving the service pursuant to an RSA during the 2010-2011 school year(DOE Ex. 2). In addition, according to the IEP, only four days’ notice of the meeting was provided to the parent; which was insufficient. 8 NYCRR 200.5© (1). Finally, the CSE failed to explain why it failed to call as a witness Ms. , who was also listed as a participant in the June 28, 2011 meeting. Parent’s Position

The parent’s position is that requires in order to make educational progress. The parent is requesting that the IEP include therapy consistent with what is being provided in the RSA. She believes this would establish ’s entitlement to the service. (Tr. p. 89).

is a year old boy with a classification of impairment. His classification is not in dispute. He attends . On May 28, 2010, n was recommended for related services of Therapy. (DOE Ex. 4).

On June 28, 2010, Dr. , an performed an Academic Evaluation of . Dr. recommended to address ’s weak skills, convergence excess, and . On testing, efficiency was measured at a grade equivalent. On the Achievement Test-Second Edition, ’s reading composite was in the percentile, his was in the and his written composite was in the . Dr. recommended and instruction with a specialist to address his skills. (Par. Ex. A). In a letter dated April 20, 2010, , an , explained that ’s difficulty may cause him to , and in reading and math. (Par. Ex. C). In another undated letter, Dr. noted ’s improvements in visual tracking and in shifting from point to point. She noted that he still has difficulty with visual perception necessitating (Par. Ex. B).

Mrs. . testified that she submitted Dr. ’s testing to the Committee on Special Education (“CSE”) sometime after it was completed, in or about June of 2010. (Tr. p. 38). Thereafter, on October 4, 2010, the CSE issued an RSA, authorizing to receive once per week for sixty minute sessions. (DOE Ex. 2). Nevertheless, the was never made part of ’s IEP.

Mrs. . testified that sometime in late June 2011, she went to the CSE to review ’s records to make sure that the testing was included in his record. (Tr. p. 23, 26). At that time, she met with , Chairperson of the CSE; however a formal meeting did not occur. (Tr. p. 27). Although Mrs. initially denied being with a meeting with Ms. on June 28, 2011, (Tr. pp. 9-10); she later testified that may have also been present during her meeting with Ms. ; and the meeting may have occurred on June 28, 2011. (Tr. pp. 29-30), She testified that the only issue discussed was vision services; and that she was assured by Ms. that the service would be included in ’s IEP and that the parent would receive an RSA. (Tr. p. 39; Par. Ex. D). She believes that Ms. was referring to ’s 2010 IEP. She testified that she was not aware of the 2011 IEP. (Tr. p. 58).

Although the CSE was given the opportunity to call Ms. as a witness, it declined to do so. (Tr. pp. 87-88).

Mrs. testified that performed well in school last year, receiving grades of and , due to the fact that he was receiving and at . (Tr. pp. 67, 68, 70).

In the fall, the parent learned that no RSA was issued for . Accordingly she requested a due process hearing. (Tr. p. 40).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. V. Rowley, 458 U.S. 176 [1982].

I concluded that the CSE was unable to meet its burden of proving the appropriateness of its recommendations because the June 28, 2011 IEP is invalid. The IEP indicates that the parent was given less than five days’ notice of the meeting, as required by 8 NYCRR 2900.5©(1). According to the June 28, 2011 IEP in evidence, the parent did not participate in the development of the IEP.

Substantively, the IEP is deficient because there is nothing in it to reflect that there was any discussion of ’s need for vision therapy, notwithstanding the fact that the DOE had funded the service during the 2010-2011 school year. The CSE acknowledges that it needs to conduct a new review of ’s IEP.

The DOE’s argument that vision therapy is not a related service is incorrect. Dekalb County School District, 45 IDELR 30 (11th Cir. 2006). The service is provided by an optometrist, not a physician, and therefore is not excluded as a related service by 34 CFR 300.34. Vision therapy is a supportive service, not a medical service. See LODI Unified School District, 28 IDELR 218 (SEA CA 1998). Significantly, the DOE’s position is inconsistent with the fact that it has funded the service as a related service for two years.

While the documents in evidence establish ’s need for , as of June 28, 2010, when he was tested by Dr. , I am unable to determine, based upon the documents submitted at the hearing, whether should be part of ’s IEP at this time. This is a determination that should be made by the CSE, following the review of any relevant progress reports from ’s providers, and his educational records. The CSE review team should include ’s , or another individual with expertise in this area. 8 NYCRR 200.3(a)(1)(ix).

For all of the foregoing reasons, it is hereby ordered that the CSE shall obtain a progress report from ’s t, and such other updated information as may be required from his school and other service providers; and that it shall reconvene by January 31, 2012 to review ’s IEP. At that meeting, the CSE shall consider whether should be added as a related service to ’s IEP. Dated: November 15, 2011

______________________________

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

DML: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 Academic Evaluation, 6/28/10, 7 pp. B Letter from Dr. Undated, 1 p. C Letter from Dr. , 4/20/10, 2 pp. D Email, 9/19/11, 1 p.

DEPARTMENT OF EDUCATION

1 Request for Due Process, 9/15/11, 4 pp. 2 RSA, 10/4/10, 1 p. 3 IEP, 6/28/11, 17 pp. 4 IEP, 5/28/10, 15 pp. 5 RSA, 10/22/11, 1 p.

Footnotes

[1] Arguably, the parent’s hearing request is moot, since she has already received and implemented an RSA for the vision therapy she requested. See Application of the for review of a determination of a Hearing Officer, Appeal No. 11-082. Nevertheless, as both parties have requested that the CSE reconvene to review ’s IEP, I have proceeded to review the merits of her hearing request.