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: August 10, 2012

Record Close Date: August 15, 2012

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2012

Attorney — Student

Student

Intern — Student

Director of (via telephone) — Student

District Representative — DOE

Teacher at (via telephone) — DOE

Ms.., the of., (hereinafter referred to as “ ”) requested an impartial hearing on June 8, 2012, seeking prospective funding for her unilateral placement of at a non-approved private school for the 2012/2013 school year.^[1] I was designated to hear this matter on July 20, 2012 after the prior hearing officer recused. An impartial hearing was held on August 10, 2012. The compliance date was extended by one week, to August 29, 2012, in order to allow for receipt of the transcript. (IHO Ex. II).

is a year old boy with a classification of. His classification is not in dispute. (Par. Ex. A). He is scheduled to begin the grade in September 2012. He has been receiving special education services since 2009, when he was a grade student.

(Par. Ex. I, p.1). In September of 2011, he was placed in an Integrated Co-teaching class for grade, with counseling and a paraprofessional. (Id. at 2). After Ms..

requested a re-evaluation for a possible change of placement, a evaluation was performed in May 2012. (Id. at 2).

It was noted that has been diagnosed with (“ ”)-Combined Type, and that he tends to be,, and. (Id. at 2). On the WISC-IV, achieved a Full

Scale, in the. (Id. at 3). It was noted that there is a significant point difference between his ( ) and his / ( ). In reading, his level was level; and

his was measured grade equivalent. His score was grade equivalent. In math, his skills were at to ( for math concepts and application; for computation). (Id. at 7). The evaluator wrote that the issue of greatest clinic significance is his “

” (Id. at 8).

On May 18, 2012, the Committee on Special Education (“CSE”) met to review ’s program.,a (See Par. Ex. I, p. 8) who also served as the District Representative,

Ms. ., , a general education teacher, , a special education teacher, a social worker, guidance counselor and all participated in the meeting. (Par. Ex. G, p.13; Par; Tr. pp. 18, 20). The CSE recommended continuation of Integrated Co-Teaching Services (“ICT”), with related services of group counseling once per week and a full-time paraprofessional). (Par. Ex. G, pp. 6-7).

The May 18, 2012 Individualized Education Program (“IEP”) included the results of the testing described above. In the description of ’s academic achievement, functional performance and learning characteristics, it was noted that his reading skills were at the grade level, which is consistent with his teacher’s report of his reading level in the classroom. It was noted that he earned on the ELA exam in Spring 2010 and Spring 2011. (Id. at 1). In the description of his , it was noted that despite significant , continued to be and at times. (Id. at 2). With respect to his management needs, it was noted that , and requires a great deal of , and support in order to complete assignments. (Id. at 3). On the same date, the CSE developed a Functional Behavioral Assessment (“FBA”) and a Behavior Intervention Plan (“BIP”). The targeted behaviors were ’s failure to complete . (Par. Ex. H).

’s IEP goals include and his ; utilizing skills to an grade level; skills to an level; utilizing skills to an grade level (by the steps for completing ), of grade level; and demonstrating an understanding of level. The IEP does not include any goals for improving ’s or . (Par. Ex. G, pp. 4-6).

In a letter dated May 25, 2012, the CSE sent the parent a final notice of recommendation, recommending placement for in a collaborative team teaching class at , with related services of counseling and a paraprofessional. (Par. Ex. E).

, a certified special education teacher, testified that was her student during the 2011-2012 school year, in an integrated co-teaching program. She also participated in the May 18, 2012 CSE review. (Tr. pp. 15-16). The CSE had available ’s IEP, copies of standardized tests, ELA tests and testing performed within the classroom. (Tr. p. 17). Ms. testified that the team recommended that remain in the integrated co-teaching program with Special Education teacher Support Services (“SETSS”) and counseling.^[2] She testified that had been receiving SETSS all along, and that he would benefit from getting these support services in a small environment. (Tr. p. 19).

She testified that during the 2011-2012 school year, in his ability to periods of time and in math. She also noticed in his ability . (Tr. p. 21) In , he in his . She testified that he participated in the extended day program, which consists of a minute period, Mondays to Thursdays, where students receive additional services. (Tr. pp. 23-24).

Ms. testified that Ms. . disagreed with the CSE’s recommendation, and was seeking a private school placement for . (Tr. p. 19).

Ms. . testified that she requested a re-evaluation of , because she felt that he was rather than in his program. (Tr. pp. 60-61). At the May 18, 2012 CSE review, she explained that she was requesting a school because she saw his and go from in the grade to having . In September 2011, she was informed that received a score , and he was offered extended day services. (Tr. pp. 62-64).

Ms. . testified that did not benefit from the extended day services he was provided, as the ; and not on . In addition, there was going on, and would . (Tr. pp. 65-66). had the books he was given at school, stating that there were “too many words and the words were busy.” Ms. . provided him with books which were easier; however the teacher stated that the books were not sufficient. (Tr. p. 69).

Ms. . testified that after she received the final notice of recommendation in late June, she spoke with someone about it over the telephone; since she had difficulty visiting due to the fact that she . She was told that the recommended class would have between students, of which would have disabilities. (Tr. p. 70). 3 Ms. . felt that the class would be too in a class with -some odd students. (Tr. p. 71).

Ms. explored other schools for , including the School, the and the School. She felt that the School would be an appropriate setting for because of the . (Tr. p. 72). She testified that she is unable to pay the tuition at the School Ms. testified that an ICT class can have only students with an IEP. (Tr. p. 78). ($39,000) and seek reimbursement, as her income consists of a (approximately $ ,000 per year) ($ per month). (Tr. pp. 72-74; Par. Ex. N).

On June 8, 2012, the parent requested an impartial hearing seeking prospective funding at a non-approved private school. In her hearing request, she alleged that the most recent IEP fails to address ’s . She wrote that she was “seeking a placement that can appropriately address the delay and his ”. (Par. Ex. A).

, the principal and founder of the School, testified that she is has a Master’s Degree in Reading and state certification as a reading specialist. She is a certified member of the (“ ”) Academy. (Tr. p. 27). She has worked as a public school teacher and ran the reading clinic at the . (Tr. p. 29).

The School is a very small school based upon the philosophy, providing instruction. All of the students have needs in reading, writing, spelling and sometimes math. (Tr. pp. 29-30). Reviewing the evaluation in evidence, she noted that that the large discrepancy between ’s and his skills was significant; and indicated that ’s preferred learning style is . (Tr. pp. 32-33). Reviewing his scores on the educational testing, she testified that while the scores indicate that is able to compensate, to some extent, for his ; as he goes further in school, this will become for him. (Tr. pp. 3638). For example, it will be for him to a science or social studies textbook because he . (Tr. pp. 41-42). Even in math, which is a , has . (Tr. p. 42).

At the School, will be placed in a class with students, a teacher and an aide. In addition, he will receive support daily. (Tr. pp. 39-40). The teacher of his proposed class has worked at , a school for . She has state certification and his currently working on a master’s degree. She has completed the coursework required for certification. (Tr. pp. 40-41). She testified that the school can also address ’s management needs. The school has a full-time guidance counselor who can meet ’s IEP mandates. The counselor meets with the class each week, and and . The school has a school-wide behavioral management program with tangible rewards. (Tr. pp. 5152). Instruction is , and is not dependent upon . (Tr. pp. 52-53). She believes that will benefit from the methodology because it is very structured, provides visual support; and because he will be motivated by his ability to move from step to step. She testified that ’s learning profile, including his diagnosis of , is very similar to many of the students at . (Tr. pp. 53-54).

Reviewing ’s May 18, 2012 IEP, she noted that it includes goals for increasing ; but no goal addressed to his skills, which is his area. (Tr. pp. 49-50). With respect to the writing goal, she testified first needs to work on developing a well written sentence, before passages. (Tr. p. 51).

On August 8, 2012, Ms. sent Ms. . a letter informing her that had been accepted to the School for the 2012-2013 school year, with a tuition of $39,900. (Par. Ex. B).

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]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program

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 a Student with a Disability, Appeal No. 11-162 (citations omitted).

The record indicates that ’s greatest area of weakness is in ; specifically let and . Nevertheless, his IEP does not contain any goal for improving his letter/word recognition or decoding. More importantly, the recommended special education program, as described by Ms. , does nothing to address his specific deficit. Ms testified that within the recommended program, would continue to receive remediation from SETSS, provided in an extended day program. Nevertheless, ’s IEP does not provide for SETSS.

Ms. later clarified that the service Ms. was describing was a nonspecial education academic intervention available at the recommended site. I credit Ms. ., however, that during the 2011-2012 school year, did not receive remediation in the extended day program at . Rather, what he received was homework help. I credit Ms. . that he was impacted by the extended day program. In a recent evaluation, the issue of greatest clinical significance was his , and signs of and .

For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving that it provided with a Free Appropriate Public Education. (“FAPE”) Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128

S. Ct. 436 (2007).

I find that the parent demonstrated that the School is an appropriate educational program designed to meet ’s unique needs.

At the School, will be placed in a small class and will receive instruction in , using methodology, including instruction. He will be placed with students with similar needs. The school also provides counseling services, which requires, and a school-wide behavioral program. I credit Ms. that the small setting and the structure of the academic program will satisfy ’s academic management needs. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. I find that the parent cooperated with the DOE by participating in the CSE review, and communicating with the recommended site. In addition, the parent clearly communicated to the CSE that she felt that ’s needs could not be met in a public school setting.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall prospectively fund ’s tuition expenses at the School for the 2012-2013 school year Dated: August 23, 2012

__________________________________

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

DL:dl

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 ON AUGUST 10, 2012

PARENT

A Request for Hearing, 6/8/12, 1 page B Letter of Acceptance to the School, 8/8/12, 1 page C Brochure for the School, Undated, 1 page D Standard Space Report Card, 6/21/12, 2 pages E Final Notice of Recommendation, 5/25/12, 1 page F School Placement Offer, 5/23/12, 2 pages G IEP, 5/18/12, 13 pages H Functional Behavior Assessment & Behavior Intervention Plan, 5/18/12, 3 pages I Evaluation, 5/10/12, 8 pages J Paraprofessional Log, 9/20/11 - 3/21/12, 22 pages K Research Study, 5/9/11, 9 pages L IEP, 9/16/11, 11 pages M Social History, 8/4/11, 2 pages N Financial Information, 6/29/12, 3 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Summary of Prehearing Conference, 7/24/12, 1 page II Case Follow-Up Sheet, 8/10/12, 1 page

Footnotes

[1] At the outset of the hearing, Ms. . clarified that the school for which she was seeking funding was the School. (Tr. p. 6).

[2] IEP does not include SETSS. (Par. Ex. G). , the District Representative, later explained that that the service Ms. was referring to was not a special education service (SETSS); but rather an academic intervention service. (Tr. pp. 55-56).