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 31, 2012

September 24, 2012

October 12, 2012

October 22, 2012

Record Close Date: December 3, 2012

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 31, 2012

Advocate (via telephone) — Student

District Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24, 2012

No Appearances — Student

No Appearances — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2012

Advocate — Student

Parents

Parent (via telephone) — Student

LCSW CSE- District Representative — DOE

Psychologist (via telephone) — DOE

Special Ed Coordinator (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012

Advocate — Student

Parents

Administrative Director (via telephone) — Student

ABA Therapist (via telephone) — Student

LCSW CSE- District Representative — DOE

INTRODUCTION

On August 20, 2012 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of Levi S. (“LS”).

BACKGROUND

is . The classification is not in dispute. On 5/29/12 an Individualized Education Program (“IEP”) meeting was held and a recommendation for the 2012-2013 school year was made. (District Ex. 1) The recommendation was for a special class with related services as follows: Therapy in Yiddish (“ ”) 4x30, (“ ”) 2x30 and (“ ”) 4x30. The IEP recommends that the class be in Yiddish as well as the but that if a provider is not available in English that a bilingual paraprofessional be provided. (DOE Ex. 1) A Final Notice of Recommendation (“FNR”) was sent to the Parents on or about 6/15/12 with a program recommendation of a special class ( ) in a NYC DOE specialized school located at . (District Ex. 2) In the Due Process Complaint (“DPC”) (Parents Ex. A) the Parents assert that the DOE has failed to provide a free and appropriate public education (“FAPE”) to LS based on the failure to provide LS with an appropriate placement. Parent states in the DPC that there is no special Yiddish class at the site and that the placement is too restrictive. The Placement was rejected based on the foregoing. The Parent seeks the services provided to in his pre-school IEP to be continued. The services are as follows: 22 hours of Special Education Itinerant Teacher Services (“SEIT”) at the pre-school rate, 2 hours of , 1 hour of and 1 hour of .

The Department of Education maintains that the student has been provided with FAPE for the 2012-2013 school year.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An IEP meeting was held to create an IEP for the 2012-2013 school year. There were two separate IEP teams involved in the creation of this IEP because the meeting was held on a Sunday to accommodate the Parents. The team which participated in the meeting had input and did some editing but the IEP was written, for the most part, before the meeting. (t. 38) In preparation for the meeting Ms. , school psychologist/district representative, testified that the team read all of ’s pre-school reports, updated reports from the SEIT provider, and all related service progress notes (t. 39-40) as well as a classroom observation dated 3/21/12. (t. 47) The team asked the Parent whether she was going to place in a mainstream program in which case they would have created an IESP which would have given him some support in a mainstream setting. The Parent opted to have an IEP and a recommendation for a DOE program. (t.42, 57, 66) As a result the team recommended a small class , with an interim alternate bilingual paraprofessional. Children recommended to a program generally benefit from a lot of 1 to 1 instruction and having tasks broken down in to very small, hierarchical levels so they can master a task before attempting a large, generalized task. (t. 49-50) The bilingual paraprofessional was recommended because is Yiddish dominant and the team assumed that he would be placed in an English class and would benefit from having someone who spoke Yiddish. (t. 51) While the Parent asserts that basically does not understand English (t. 208, 142) the record reveals that while Yiddish dominant the student understands English to. The Bilingual Yiddish and English Psychological Evaluation dated 5/12/10 done (District Ex. 8) states that is conversed to in Yiddish with some exposure to English in the home but prefers Yiddish. The testing was done in both Yiddish and English. A Social History dated 4/29/10 (District Ex. 7), also prepared by , notes that the child speaks both Yiddish and English. The IEP team determined that was Yiddish dominant based on the opinion of people who were working with him (t. 50) and the team felt that exposure to both English and Yiddish in his program would help strengthen the students knowledge of English. (t. 45) Based on the Parents desire to have in a mainstream setting the team considered an integrated program with a lot of support but rejected that type of program. (t.43) The team assured the Parent that there would be opportunities for mainstreaming and it would be something to discuss with the teacher. (t.

56) The goals for were developed based on the progress reports of the service providers. (t. 52-53) The educational goals were developed based on the reports of the SEIT and the classroom observation. The goals were prepared prior to the meeting in draft and reviewed generally during the meeting. (t. 54-55).

The class that was recommended to is at . The school has eight classes for emotionally disturbed students, six classes for students and eight inclusion classes for both emotionally disturbed and autistic students. The students range to very . (t. 73) The teachers each have at least one paraprofessional in the classroom and there is a crisis team that is always in the hallways. Related services ( ) are available in the building. Parent training is offered on a monthly basis. The teachers are exposed to regular training and because it is a small school students are known on a one to one basis by the staff. (t. 74-76) Ms. unit coordinator for special education at the school reviewed s IEP and testified that the school would have been able to meet his needs. She noted that his IEP states that he has been using ABA techniques and that is what they use in their classrooms. A lot of the work done in the classroom is on a one to one basis and the work is differentiated to the needs of each student. The functioning level of the students in the class that would have been placed varies. (t. 77-79) The school would have been able to provide a Yiddish paraprofessional but they would have to request one if there was not one on site. While it is unusual that the FNR would not reflect that an interim service paraprofessional is recommended for the student there is a process in place to address the issue and obtain the paraprofessional though it would take at least a week. The role of a Yiddish speaking paraprofessional is to translate any information the student does not understand. The school does not have a Yiddish speaking but would also be able to provide one. (t. 79-81, 103 ) The school provides the opportunity for socialization during lunch and the 6:1:1 classes work together in groups. There are also opportunities to mainstream, if a student shows improvement they can be moved in to the inclusion classes. To make that determination the school reviews the student’s improvements through the school year and speaks to the service providers to determine if the improvement warrants moving in to an inclusion setting. The student generally must be at the school for a year before they can determine their growth (t. 84-85, 104) The recommended placement does not have any students who are considered unserved, meaning that they are not receiving the recommended services. (t. 95, 113-115)

currently attends a mainstream kindergarten class for three hours a day. He is accompanied by a SEIT for two of those three hours. (t. 144, 197) This school year is the first time that has been in a mainstream classroom. (t. 218) does not have much to do with the kids in the class but does have two children he interacts with. (t. 221) There are 20 to 25 children in the class. (t. 188) Ms. , an ABA therapist, testified that she is the lead therapist for and is employed by and provides SEIT services. (t. 167) Ms. Katz describes as having a hard time understanding the concept and idea of emotions, his own or those of others though she believes he is moving along cognitively. has a lot of difficulty initiating and talking or talking to new people. He has learned to communicate with the teachers in the classroom to make his needs known. (t. 168-170) receives 22 hours of SEIT a week, 10 of which is in a mainstream classroom. However, it is a characterized as a fluid process because he is pulled out of the classroom on a daily basis. The additional 12 hours of SEIT are one to one instruction and discrete trials. The discrete trials are defined as a method to maximize learning such as breaking down skills in to smaller steps, teaching it intensively until it is mastered, prompting the correct response and then fading the prompts as soon as possible and then using positive reinforcement from there. (t. 171-172) The goals that are used in the discrete trials come from the IEP. (t. 193) The related services for are not provided at the mainstream school but rather at the . (t. 177)

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010). In the case at hand the Parent asserts that the DOE has failed to provide FAPE and as a remedy is seeking to maintain the SEIT services and related services ( ) that were provided in the students pre-school IEP.

I find that based on the testimony adduced at the hearing that the DOE has provided the student with FAPE for the 2012-2013 school year. The Parent did not assert in the DPC any procedural or substantive defects in the IEP. While they raised some issues in the course of the hearing as well as in the closing statement I will not address them except to note that I did not find that any of the issues they raised was enough to result in a finding of a denial of FAPE. The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). The SRO noted in Application of the New York City Dept. of Edu., Appeal No. 11-112 that the statute assures an appropriate education not the best education possible which may be considered optimum by the student’s parents. While both parties appeared to be treating this case as a “Burlington” case, to wit tuition reimbursement, it is not. It is a case where the Parent found the placement by the DOE to be inappropriate and sought instead to maintain prior services. There was no testimony regarding the actual program/school that the student attends. I find that based on the testimony and documentation submitted that the placement recommended by the DOE was appropriate. While the IEP recommends a Yiddish program it also takes in to account the possibly that there will not be one available and therefore includes the services of a Yiddish speaking paraprofessional. The testimony reflects that the IEP team took in to account the concerns of the Parent regarding her desire for LS to be in a mainstream setting. They discussed with her the alternative of doing an IESP if she wanted to attend a mainstream with support services. The IEP team considered the documentation they had before them which included reports prepared by the SEIT provider and related service provider as well as a classroom observation when making the determination that the recommendation of a classroom was appropriate. The fact that the FNR did not note the Yiddish paraprofessional was not fatal as the testimony reflected that while it was unusual that it was left out it could be corrected in a short time. It is unclear what the level of ’s proficiency in English is, but from the documentation submitted it appears an exaggeration to characterize him as monolingual. While the concerns of the parent are understandable regarding mainstreaming both the IEP team and the school were clear that there would be opportunities to mainstream, albeit in the future. The testimony of the SEIT providers, as well as the Parent, did not support a finding that the student is currently benefiting from being in a mainstream setting. In view of the foregoing I find that the recommended program with related services are designed to meet the unique educational needs of LS and therefore provided him with FAPE.

ORDER

Therefore, it is hereby ordered that the Parents Due Process Complaint is dismissed.

Dated: December 14, 2012

______________________________

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

JK: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 OCTOBER 12, 2012

PARENT

A Impartial Hearing Request, dated 8/16/11, 3 pages B IEP, dated 7/1/10, 17 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 5/29/12, 12 pages 2 Final Notice of Recommendation, dated 6/15/12, 1 page 3 SEIT Progress Report, dated 5/3/12, 3 pages 4 Progress Report, dated 4/30/12, 2 pages 5 Progress Report, dated 1/15/12, 3 pages 6 Classroom Observation, dated 3/21/12, 2 pages 7 Social History, dated 4/29/10, 3 pages 8 Evaluation, dated 5/12/10, 8 pages 9 Outcome Summary Form, dated 5/29/12, 12 pages

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 22, 2012

PARENT

C SEIT Progress Report, dated 5/3/12, 3 pages D Report, dated 4/30/12, 2 pages E Report, dated 5/22/12, 2 pages F Report, dated 1/15/12, 3 pages G School IEP, Undated, 31 pages

DEPARTMENT OF EDUCATION

None