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: November 17, 2010

February 3, 2011

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 17, 2010

Student

Parents

, CSE REP

, (via phone)

, CSE (via phone)

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 3, 2011

Student

Parents

(Via Telephone) — Student

CSE Representative — DOE

The matter of, came before me on November 17, 2010 pursuant to — DOE

the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). The — DOE

hearing was continued on February 3, 2011. Appended to the record are lists of persons — DOE

in attendance and documents submitted into evidence — DOE

ISSUE

Is parent entitled to funding for her tuition at the Special Education Program ( ) for the 2009-2010 school year?

THE DEPARTMENT OF EDUCATION’S POSITION

, the representative for the Department of Education stated that at the last review on April 22, 2009, was almost years old. He was classified as having , taking for , and had a , as well as and : all addressed in his Individualized Education Program (IEP). His instructional level was within the range as stated by his and by a evaluation conducted the previous year. The Committee on Special Education (CSE) recommended a , twelve month program at in District , a program which addressed all of his academic and issues. The IEP also recommended a and a in and out of the classroom. had some and that the would be able to address. The recommended site had all of the services, transitional classes as well as a . (Tr. at 9-11) The parent requested the for ( ) for the summer of 2009 and that was put on the IEP. However, added that she did not know if attended that program. (Tr. at 11-12)

THE PARENT'S POSITION

, the for and his parent, stated that participated by phone at the IEP meeting of April 22, 2009, as did an from and a school representative. The parent did not agree with the recommendation but did agree to look at the program which she did in the fall of 2009. did not agree with the student to staffing ratio and felt that the recommendation did not offer a free appropriate public education (FAPE). (Tr. at 13-14)

STIPULATION OF THE PARTIES

The IEP meeting of April 22, 2009 was procedurally validly composed.

DISCUSSION AND FINDINGS

I find that the Department of Education has met its burden in proving that the program it offered to for the 2009-2010 school year was appropriate, and therefore, the Department is not required to reimburse parent for tuition at for that school year.

A board of education may be required to pay for educational services obtained for a student by his or her parent if the services offered by the Board of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]). The Supreme Court, in 1993, further clarified that parents could place their children in a program that is not approved by the State and still receive reimbursement if it is appropriate under the IDEA. (Florence County School District Four v. Carter by Carter, 510 U.S. 7 [1993])

The first inquiry in this case is to determine whether the services offered by the Department were appropriate. A purpose behind the IDEA to ensure that all students with disabilities have available to them a FAPE. (20 U.S.C. § 1400[d][1][A], Schaffer v. Weast, 126 S. Ct. 528 [2005]) A FAPE is defined in relevant part as special education and related services that are provided in conformity with an IEP that meets the requirements of Federal Regulations. An IEP is a written statement that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[11]) A free appropriate public education (FAPE) is offered to a student when the district (a) complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (New York State Review Officer’s Decision No. 05-101 citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]) A FAPE includes special education and related services designed to meet the child's unique needs, provided in conformity with a comprehensive written IEP and provided in the least restrictive environment. (New York State Review Officer’s Decision No. 05-102)

The first part of the above requirement: that the Department complied with the procedural requirements as set for in the IDEA was stipulated to by the parties (see Stipulation above). Therefore, the inquiry focuses on whether the Department offered a FAPE to for the 2009-2010 school year. I find that it did.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 07-008; 08-116) I find that the IEP developed for did reflect the evaluations that identified his needs, established goals related to those needs, and provided for appropriate special education services.

An IEP was created for on April 22, 2009 that classified him as having , and recommended a class in a school with a staffing ratio of . (Exh. 2 at 1). The IEP also recommended the related services of / - 4 X 30 individual sessions and 1 X 30 in a group of 2, per week. was also on the IEP for 4 X 30 individual sessions per week and for 5 X 60 individual sessions per week. A full time was recommended for in and out of class as was a for the bus. (Exh. 2 at 20)

The IEP notes under present performance that "according to the information provided by the school" he is working on attention and focusing, and completing multitasks in his ADL skills, as well as recognition of objects and letters. He can sort objects by shape and color. (Exh. 2 at 3) The / from his school participated by telephone at the IEP meeting, as did his , and a parent . (Exh. 2 at 2) The reading and writing skills are noted as being on a level by estimates as are the math skills. (ibid) Under the topic of academic present performance, the IEP notes that he has a , motor skills, and receptive and expressive . His are characterized by poor comprehension of "wh" questions, and following 2-3 commands. (Exh. 2 at

4) He has and and presents with motor skill , / , balance skills and gait. He however is in general good but takes at to address . (Exh. 2 at 5) The IEP notes that the is needed for and . (Exh. 2 at 6) The and physical development page also notes that he is currently receiving services to address his fine motor skills, attention span, ADLs, bilateral integration, and visual perceptual skills. (Exh. 2 at 6)

The request for a hearing states that the parent did not agree with the recommended placement because she believed that requires a smaller student to staff ratio in order to be an appropriate education. She also felt that the drafted annual goals are not consistent with present levels of functioning at the time of the review. The complaint states that the parent rejected the recommended program when, during her observation, she saw that the other students in the classes were physically much larger than and did not exhibit similar academic social and emotional functioning. (Exh.. A at 2 I have reviewed the goals and find them consistent with the information given by the school at the IEP meeting and the evaluation in the record. The progress report of April 25, 2010 confirms that for the 2009-2010 school year he was working on identifying letters of the alphabet and their sounds. He also learned some sight words which are reviewed using flashcards. He answered basic comprehension questions listening to a story. (Exh. G) The goals for the related services were developed by the providers of those services. (Tr. at 48) special education testified that at the end of the 2009-2010 school year he was not yet reading and they were working on letter identification, phonics and some sight words. (Tr. at 88) I find that these goals were consistent with levels at the time of the review.

A evaluation in the record, conducted on April 7, 2008 for triennial evaluation, was based on an interview with a , an observation, a Stanford Binet evaluation, a Woodcock Johnson III Test of Achievement, a test of visual motor integration and a Vineland Adaptive Behavior Scales evaluation. On the Stanford Binet no basal was achieved due to his cognitive skills. On the Woodcock Johnson he achieved level in all areas. On the Test of Visual Motor Integration he scored at less than years and , and in the Vineland Scales he scored at for communication, self-care, and socialization (Exh. 5 at 1) The evaluator noted that was functioning in the to range of intellectual functioning and are generalized across all areas of functioning. He is at the -school level in academics. He is not yet fully and is able to with a . He has with chewing and thin . He is dependent on others in all areas of - . (Exh. 5 at 2)

, the at the CSE meeting of April 22, 2009, testified by telephone at the hearing. She stated that had the same recommendation previously. The team reviewed the information that they had and decided it was still appropriate for him. had significant academic delays, fine motor , and a could address these issues. A was recommended due to his : and and . She could not recall objections from anyone at the meeting to the recommendations opining that everyone was quite satisfied. (Tr. at 50-52)

The goals on the IEP concern, inter alia, visually discriminating similar 3 letter words, rhyming pairs of words, developing a sight vocabulary, recognizing beginning sounds of given words, recognizing ending sounds, demonstrating growth in reading comprehension, telling stories about pictures, answering who and what questions about a story he has heard, matching words to pictures, and identifying main ideas of stories. There are expressive writing skills that include: copying, dictating a story, and creating a new end to a story. ( Exh. E at 11) There are also goals for ).

, , and to improve his express and expressive language. (Exh. E at 12-18) These goals are consistent with the evaluation results discussed above and the input at the CSE meeting.

, the of the recommended site at testified concerning the recommended placement. He oversees two sites, one of which is the recommended one in He testified that they did have one at that site for the 2009-2010 school year for school aged students with the age ranges of - , in an accessible building. (Tr. at 20-21, 31) The academic levels of the students were in "the vicinity" of through grade. The school consisted of classes housed in another building, but was a separate school with its own . The special education youngsters would be invited to assembly program or special activities with the general education students. (Tr. at 23-24) He testified that the school could meet the IEP mandates of adaptive education, , , and , , and a . (Tr. at 24-26,29) The school has a transition linkage who helps make the transition from school life to post-school life. There are also a variety of transitional activities in school and in the community such as job-based instruction. The students are with the once per week for a double period where she can take the youngsters out into the community for community activities such as shopping, visiting a site, or a recreational activity. (Tr. at 30-31)

A typical school day would start with being bused to the school where the staff escorts him to the school building. Period one is used for skills such as putting books and clothing away, and the start of activities. The second period of the day is mealtime following IEP mandates such as pureed food, and using IEP goals to foster independence. Third and fourth period are the literacy component of the day using . Fourth period might be used for the Equals Math Program, a that focuses on functional math skills geared towards the lower level that works in conjunction with the math goals on the IEP. Lunch is built into the program and related services are given throughout the remainder of the day. There is a star reporter program, social studies, science, and at the end of the day the class again concentrates on activities for ( ) skills. The students then gather materials to share with parents, and there is , homework assignments and getting in preparation for dismissal. (Tr. at 26-28) The school has : a creative arts who encompasses music and drama, and a vocational to work with vocational types of job skills such as working a copy machine, delivering messages, manipulating a time clock and other job related skills. (Tr. at 31-32)

The parent argues that the student to ratio recommended by the Department is not appropriate. In the complaint she states that from and believe that he needs a smaller student to staff ratio in order to be appropriately education. did not testify at the hearing. The education at did state that she could see children being an issue as gets with" a lot" of in the class. (Tr. at 101) I do not find students to be "a lot" and not much more than the students in his class at . (Tr. at 70-71) As for the student to ratio, the recommended program had ,a , and own . That is a very student: : ratio and appropriate to meet needs. There is nothing in any of the evaluations to indicate that he needed a smaller student: staff ratio.

The parent also felt that the school environment was not appropriate for and I see little merit in her claim. She testified that when she visited the school she heard the students from the regular school using , as she had to enter via the main entrance. (Tr. at 140-141). However, the recommended school for is a school within a school. Mr. testified that the proposed school is separate from the school and the only time the classes get together is at or assemblies. (Tr. at 23-24). As would be accompanied to these programs by his own and the many in his recommended program, I see her fear as being . His even admitted in her testimony that academically the program may be "ok". (Tr. at 143) She felt that he would learn the and they would then be from her and . (Tr. at 144) This kind of conjecture is not a valid reason to find that a program does not offer a FAPE.

The parent argues that small and was ignored when the site was recommended. (Exh. II at 3). was concerned that his small stature makes him fit in better with students. She noted that the age range in is through so he fits in better. (Tr. at 145). However, the Department must group students appropriately by age, and they have done so. I again, find her argument purely speculative and inappropriate.

As I find that the Department has met their burden of proof that the program they offered a FAPE to for the 2009-2010 school year, there is no reason to examine whether or not the parent's unilateral placement is appropriate.

Therefore, I find and order that the parent's request for tuition reimbursement for the program for her son for the 2009-2010 is denied. Dated: March 17, 2011

ESQ.

Impartial Hearing Officer

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 DESCRIPTION

A. Impartial Hearing Request, dated 7/1/10, three pages

B. School Description - , five pages

C. Certificate of Incorporation - , nine pages

D. Ten Day Notice, dated 08/10/09, of one page.

E. IEP, dated 04/22/09, twenty-three pages

F. Final Notice of Recommendation, dated 06/08/09, two pages.

G. Progress Report - , 04/25/10, three pages

H. Report, dated 04/27/10, one page

I. report, dated 02/22/10, one page

J. 2009-2010 Class Schedule, one page

K. 2009-2010 Attendance Record, one page

L. 2009-2010 Tuition Contract, one page

M. Affidavit of Payment, 2009-2010, one page

N. Parents Proof of Payment, various dates, one page

DEPARTMENT OF EDUCATION DESCRIPTION

1 Impartial Hearing Request dated 7/1/10, one page 2 IEP dated 04/22/09, twenty-two pages 3 (removed) 4 Final Notice of Recommendation, dated 6/8/09, one page 5 Evaluation, dated 04/07/08, three pages