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: July 30, 2012

Actual Record Closed Date: August 16, 2012

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2012

Parents

Administrator of Special Education — DOE

Principal (Via telephone) — DOE

the father of., requested an impartial hearing on June 29, 2012; for the purpose of obtaining summer services, tutoring for, an / evaluation and a evaluation for his daughter. He noted that his child is being grade for the 2012-2013 school year. (DOE Ex. 3). I was designated to hear this matter on July 2, 2012 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on July

30, 2012.

At the outset of the hearing, the parties indicated that they had resolved all issues raised in the complaint with the exception of the request for tutoring. (Tr. p. 11).^[1] The parent is seeking during the summer. (Tr. pp. 56, 58).

is an year old girl with a classification of . Her classification is not in dispute. (DOE Ex. 3). On August 17, 2011, the Committee on Special Education (“CSE”) met to review ’s program. was recommended for Special Education Teacher Support Services (“SETSS”) times per week, and (“ ”) per week. (DOE Ex. 1). It was noted that “her overall reading ability is ; reading tasks the grade will be for her.” (DOE Ex. 1).^[2]

According to Ms. , the school district’s representative, during the 2011-2012 school year, received her mandated Special Education Teacher Support Services (“SETSS”) times per week, but did not receive her . This omission was remedied through the issuance of an RSA for sessions of . (Tr. pp. 11, 13).

On June 26, 2012, the Committee on Special Education (“CSE”) recommended that receive SETSS times per week, per week, and counseling services per week. (DOE Ex. 2). It was noted that she made little progress. It was further noted that her reading level was grade”. (DOE Ex. 2, p. 1).

According to Ms. , although letters were sent home to alert the parents to the fact that would be , they did not make any inquiry until they received the at the end of June. She testified that was late to school 26 days, which impacted her instruction. (Tr. p. 14). She was days. (DOE Ex. 9).

Ms. testified that the school attends ( ) will be instituting a Wilson Reading program in September, providing small group instruction with no more than students, days per week from A.M. She testified that this will be available to as a state mandated “at risk service”, independent of her IEP. (Tr. pp. 15-16).

Ms. , the principal of . testified that she is certified in early childhood education, and in supervision and administration. (Tr. pp. 20-22). She has known since she entered as a student. During the 2011-2012 school year, was placed in a combined and grade class. She in , and was grade student for the 2012-2013 school year. (Tr. pp. 25-26).

Ms. testified that did not meet the standards required for her to on to grade. She testified that letters were sent to the parents alerting them to the fact that would be ; but that they did not respond to the . (Tr. p. 32). Calls were made, and conferences were rescheduled, but the family did not attend. (Tr. p. 33). Ms. testified that the ” is recommended for students who are ; and that many students use the program. (Tr. p. 31).

Ms. testified that as did not make much progress in the program she received during the 2011-2012 school year, the CSE recommended that SETSS services be increased from times per week to times per week. (Tr. p. 29). She testified that will benefit from the recommended program. In addition, because is at risk and needs extra support, she can receive the Wilson Reading Program, individually or in a very small group, mornings per week, from ., in addition to her IEP mandates. (Tr. pp. 34, 47-48, 50). Ms. testified that the school “will absolutely give it to her”. (Tr. p. 50). She testified that would benefit from the Wilson reading program. (Tr. p. 34).

On cross-examination, Ms. acknowledged that did not receive her mandated during the 2011-2012 school year, but did not feel that this had a major impact on her reading. (Tr. p .42). She testified that made six months in her during the 2011-2012 school year. (Tr. p. 45).

Mr. . testified that he is seeking summer for . (Tr. pp. 16, 19). He believes that the school’s failure to provide with during the 2011-2012 school year impacted her overall educational goals, and led to her being the grade. (Tr. pp. 17-19). He testified that at the end of the school year, he requested summer services for and was referred to “ ” an outside provider. When he contacted the program, he was told that they had no more room and that he would have to sign up for the following year. (Tr. p. 19).

Mr. testified that will be remaining at ; and that he will investigate the Wilson reading program being offered by the school. He made it clear, however, that what he was seeking in the hearing was extra remediation during the summer. (Tr. pp. 5658).

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]. The attainment of passing grades and regular advancement from grade to grade is an important factor in determining educational benefit. See Board of Educ. v. Rowley, supra.

In these proceedings, the parent did not challenge ’s IEP or placement. He requested summer , to compensate for the school district’s failure to provide during the 2011-2012 school year; and in light of the fact that is being .

Within the Second Circuit, compensatory education, in the form of supplemental special education, has been awarded to students who remain eligible for special education, where there has been a denial of FAPE. Application of a Student with a Disability, Appeal No. 11-021 (citing P. Newington Bd. Of Educ., 546 F. 3d 111 (2d Cir. 2008). An award of compensatory education should be tailored to meet the unique circumstances of each case. Application of a Student with a Disability, Appeal No. 11021, p. 22 (citing Wenger v. Canastota, 979 F. Supp. 147 N.D.N.Y. 1997).

There is no question that was denied a significant portion of her mandated services during the 2011-2012 school year, when the school failed to provide her any .

The DOE has made arrangements to compensate her for this omission by providing an RSA for sessions, effective through June 2013.

While the parent argues that the denial of also impacted ’s progress in reading, there is no way of knowing what the impact was. began the 2012-2012 school year with at least a , and made approximately six months in her reading level.

The school has also made arrangements to provide with a Wilson Reading Program, mornings per week individually or in a small group, as an extended day, non-special education intervention. I find that the combination of compensatory services and the Wilson Reading Program offered by the school adequately compensates for the denial of her during the 2011-2012 school year; and that she was not entitled to additional summer , as requested by the parent. Nor was any evidence presented that qualifies for twelve month programming.

For all of the foregoing reasons, it is hereby ordered as follows:

1. The parent’s request for summer is denied;

2. By agreement of both parties, the CSE shall provide with an RSA for sessions of , effective through June 2013. Dated: August 24, 2012

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer DL:gc

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

None DEPARTMENT OF EDUCATION DESCRIPTION I.D. IN EV. 1 IEP, 8/17/11 11 pp. 2 IEP, 6/26/12 14 pp. 3 Request for Due Process, 6/28/12 2 pp. 4 Due Process Response, 7/9/12 2 pp. 5 Evaluation, 8/8/11 9 pp. 6 Evaluation, 8/8/11 6 pp. 7 Social History Report, 8/8/11 2 pp. 8 Request for Initial Referral, 5/19/11 3 pp. 9 Attendance History Inquiry, 7/16/12 1 pg. 10 SETSS Service Records for Student, 7/23/12 7 pp. 11 Literature,7/24/12, 3 pp.

IMPARTIAL HEARING OFFICER

I Pre-Hearing Conference Summary, 1 pg.

Footnotes

[1] On the hearing date, the DOE agreed to extend the Related Services Authorization (“RSA”), which it had previously issued (for 70 sessions of therapy), through June 2013. (Tr. p. 10-11, 61).

[2] When tested on August 8, 2011, was at a . Her overall were at an grade level. (DOE Ex. 5, p. 1).