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 10, 2012

October 18, 2012

October 24, 2012

Actual Record Closed Date: November 2, 2012

Hearing Officer: Daniel Ajello, Esq.

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

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2012

ESQ., Attorney — Student

ESQ., Attorney — Student

ESQ. Attorney/Observer — Student

Parent/Mother — Student

Center Director, — Student

Center (Via Telephone) — Student

Administrator of Special Education — DOE

School Psychologist, P.S. (Via — DOE

Telephone) — DOE

Special Education Teacher, PS (Via Telephone) — DOE

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

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Psychologist — Student

Chairperson Designee — DOE

INTRODUCTION

On 09/05/2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f).

Parent hearing request, dated August 29, 2012, alleges a free and appropriate education (FAPE) was denied the student for the 2010-2011 and 2011-2012 school year. Parent also alleges that the June 22, 2012 Individualized Education Program (IEP) fails to provide a FAPE. Parent requests relief in the form of placement in a state approved nonpublic school, intensive tutoring from ( ) in the amount of 750 hours to compensate for the lack of FAPE, reimbursement for the cost of evaluation, and transportation or reimbursement for transportation to and from HLC. (Ex 1, 1.4)

Parent had requested an interim order recognizing a classroom as the last agreed upon placement, however, this matter was resolved and this sought relief withdrawn at the pre hearing conference. (T 6)

A pre-hearing conference was conducted on October 10, 2012. Parties coordinated hearing dates and witnesses.

A hearing on the merits was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Post hearing submissions were not requested, nor submitted.

I note that Doctor Joan Hittleman is referred to as Dr. in some areas of the testimony and transcript.

BACKGROUND

Parent Hearing Request and IEP, of 08/29/2012, includes basic information regarding the student. Student is year old female, in the , placed in and attending a class program, classified . (Ex 5.10 & T 22)

Parent hearing request outlines student history. (Ex 1)

THE PARENT’S POSITION

) presented the case for the parent and student.

Parent position was outlined in Due Process hearing request, dated August 29, 2012, alleging a free and appropriate education (FAPE) was denied the student for the 2010-2011 and 2011-2012 school year. Parent request relief in the form of placement in a state approved non-public school, intensive tutoring from ( ) in the amount of 750 hours to compensate for the lack of FAPE, reimbursement for the cost of evaluation, and transportation or reimbursement for transportation to and from HLC. (Ex 1, 1.4)

described the student as a year old child diagnosed with a and ( ). (T 23)

Student as received special education services since preschool, and has been in a since 1st grade. (T 24)

Student failed to make even minimal progress in grade, the student was not learning, and the DOE failed to provide an appropriate education for those, the 2010through 2012 school years. (T 24)

Evidence presented will show the parent was misinformed regarding student progress, proper information was not provided to the parent at the latest IEP meeting, parent was not aware of student lack of progress until receipt of a copy of the June 2012 IEP, parent was not provided with the latest evaluation, parent does not agree with the current or proposed placement. (T 24-25, Ex 5 & 6)

Regarding the ultimate placement for the student, the parent attorney made the following statement, to clarify the issue and possible appropriate placement relief:

“It would be a small group setting, depending on what a particular school would have. But it would be a program that is designed for children, such as…(the student)…where they are providing significant work on her current learning, while moving her forward. may be doing some of the backup, but she continues to need to work progressing, and work with her in a more--in small groups, such as a perhaps less, where they can ensure that someone is helping both with her understanding of the curriculum, as well as her attending to the curriculum. So, a program that…is experienced in working with the type of children, in a small group setting...” (T 234-235)

PARENT WITNESS ANGEKA HARRIOTT

( ), the student’s mother testified. (T 156)

described her child as pleasant, friendly, quiet, likes school, does not like reading, and has difficulty with homework. (T 156)

described homework behavior during grade.

“It was very frustrating. She could , at the most. Any longer than that she started

She gets . She starts .” (T 156)

states that her daughter did not understand the work being provided to her. (T 157)

continued that homework was difficult in for her child, with . (T 157)

feels her child is not progressing. (T 157-158)

feels her child was making some math progress in second grade, based on her homework. (T 158)

raised her concerns with school staff, and was told her child was improving. (T 158-161)

had asked for additional services, and raised the possibility of a District

Program. She was told her daughter did not need these services. (T 162-163)

agreed with the proposed grade placement at the 02/28/2011 IEP meeting as everyone felt her daughter was doing really well. (T 163)

The placement continued for , where her daughter continued to struggle and grow . (T 165)

continued to contact the school with her concerns. (T 165-166)

In the fall of 2011 her husband became very ill. (T 166)

At the 02/15/2012 IEP meeting she was told that her daughter was doing great, and they discussed a change in placement, to a CCT class (known now as an ICT class).

did not agree with the proposed change, as her daughter could not handle the present work she was given. (T 168)

continued to contact the school with her concerns. (T 171)

agreed to have her daughter tested for the upcoming 06/22/2012 IEP meeting. (T 174)

was not provided a copy of the evaluation for the meeting. (T 174)

At the meeting she was advised that her daughter was doing well, and the CTT (ICT) program was to be recommended because the team felt it would be beneficial for her daughter. (T 174-175)

was told the proposed class would have general education and special education students. (T 175)

continued that the team did not state the proposed placement would be appropriate academically or socially, but that the environment would be better for her. (T 176)

agreed, though she felt pressured at the meeting, with the proposed placement. (T 176)

On 06/24/2012 received a copy of the IEP. For the first time was able to see the testing results indicated by grade level in the IEP, and she then questioned the ICT class recommendation. (T 176)

brought her concerns to the psychologist, Dr. Hiddleman, whom her daughter had been seeing for the past several years. (T 178)

stated why she felt the proposed placement is not appropriate: “Because now, you know when I thought about it, it was class is too large…she is having a difficult time learning in a , much less to be in a class with kids that's over 25 kids in a class.” (T 180)

“…she has been in for the last three years, this is year number four. And she hasn't made any progress. She is still at the same--she knows a few words, but she's still in the same spot.” (T 180)

signed the FNR prior to receiving the IEP which indicate the evaluation results. (T 180-181)

AH states that she is trying to obtain individual one-on-one for her daughter.

(T 181-182)

would like her daughter to go to a private school. (T 182)

In the summer of 2012, obtained evaluations from , and visited Dr. , but did not consider calling for another IEP meeting, or contacting with her concerns, until filing for an Impartial Hearing. (T 192-194)

requested the hearing to prevent her child from being placed in a larger class, via pendency. (T 195)

PARENT WITNESS

( ) testified as the ( ). (T 197) stated her professional and educational background. (T 198)

provides individualized instruction in basic academic skills such as reading, writing, study skills, math, and exam prep, from . (T 199)

reviewed student testing which is entered as Exhibit E.

identified, and reviewed, test instruments used as the Slosson Visual Motor Performance Test, the Slosson Oral Reading Test, the Shaw Phonetic Analysis, The Rosners Test of Auditory Perception, the California Achievement Test, the Informal Reading Inventory, a writing sample, and the Exam. (T 200-217)

Testing results indicate reading performance and math skills generally at up to a 2.5 grade level. (Ex E-1-2)

Based on the assessments assembled a program for the student to remediate skills the student is lacking or has yet to master. This is indicated on the Student Program Map, and was reviewed by . (T 217-225, Ex M).

Teachers who work with students are all New York State certified, has worked with children with disabilities, and multi sensory instruction is utilized. (T 226-227)

DH was asked if the student would benefit from the program: “Well, based on what she has shown us in the testing. You know it is clear that she has made some gains. You know she does understand some things about how reading is supposed to work. And if we give her work to do now that is within her capabilities, and sufficient attention in the form of one to one instruction, so that when she gets struck she doesn't stay stuck, then we will see her motivated by success, to continue to acquire skills. And given sufficient practice, with each of the skills, there is no reason to suspect that she cannot make significant progress, and in fact, I would say, you know, go all the way to grade level.” (T 227-228)

Upon IHO inquiry, stated that the rate for services is $85.00 per hour. (T 231)

PARENT WITNESS JOAN HITTELMAN

( ) testified as the student’s psychologist. Attorney for the parent, , noted for the record that Mrs. is her mother. (T 242)

reviewed her professional and educational background. (T 242-246)

began working with the student in May of 2009. (T 246)

Psychological Evaluation by reports on visits from 05/2009 through 07/24/2012, and included interviews with the student and her mother, a chart review of all IEPs, the psycho educational evaluations and other testing. (T 248, Ex A)

reviewed her report and chart indicating reading and math grade equivalence and grade expectations. (T 248)

diagnosed the student with , a , and . (T 250)

The charts regarding reading and math were assembled using data from information she obtained beyond her own evaluations. Charts generally indicate slow, if any growth in academics for the student, and areas of regression. (T 254 270)

For example:

In reading the student made progress one year, but then continuously fell further behind.

<K level on 07/21/2009 – >1 grade behind grade level; level on 04/10/2010 – above grade level (student at the end of kindergarten); level on 10/2010 – 8 months behind grade level; level on 06/18/2012 – grades behind grade level.

(T 253-254 Ex A-6 & I-4)

In math calculation student had slow progress, but continues to fall further behind.

level on 07/21/2009 – 4 months behind grade level; level on 04/10/2010 – above grade level (student at the end of kindergarten); level on 02/14/11 – 9 months behind grade level; level on 06/18/2012 – grade behind grade level.

(T 270-272, Ex A-7 & I-4)

was asked what may have better affected student outcomes:

“I think that she needed to be in a class that even though it was because of the Board of Ed's policy of core curriculum, which means that they're going ahead at the curriculum rate of the grade I believe a lot of her time was not spent learning what she needed to learn and she was in a classroom that was way over her head and she was not using the time to learn what she had to learn…I think she needed to have much more 1:1 in the IEPs” (T 276)

“I think she needed more intensive instruction in reading and in math that would have allowed her to keep pace with what she's doing. The higher the grade if you're not keeping up, the more it's above your level. It becomes--I think if we looked at some of the work she was doing it was way above her level the way she performed. So I think a class that worked at her grade level with instruction that was more intensive would have been much better. I think she needed tutoring. I think she needed a more hands-on probably approach. She needed shorter and more frequent sessions, paying attention to her attention levels. I think there are things they could have done to facilitate reading comprehension.” (T 276-277)

does not believe the student would benefit from an ICT class. “I think the recommendation for ICT, going into fourth grade made absolutely no sense, given how she was falling further and further behind. More children in the room makes it harder for a child who's inattentive. More children in the room who are now functioning at grade level.” (T 278)

does not believe the student requires one-on-one attention all day long. (T 280)

described an appropriate placement for the student:

“I think a class that functions at her level with individual tutoring to try to bring her up to grade level would be appropriate. And I think that they need to use strategies that are interesting to her and that would allow her to focus on the material, a lot of hands-on kind of things--Orton-Gillingham, Wilson method. Some kind of multi-sensory approach would be good. I think--and I think the socialization could occur in other places. I mean other places at school.” (T 282-283)

does not believe the DOE can provide such a placement. (T 283)

describes the evaluation as “…quite consistent with her performance done by the Board of Ed testing.” (T 284)

believes the student would benefit from the program. “They have an exquisitely detailed evaluation of where the child has holes in their learning, which is what we're looking at.” (T 285)

IHO asked if she felt the services would be required regardless of placement.

“…she needs both catch-up and she needs to be working in a classroom setting where they yes still are going to modify it to her level, but I think it would be too much to expect the teacher to make these kind of gains when she's so far behind.” (T 295-296)

DEPARTMENT OF EDUCATION POSITION

Aristed (DA) presented the DOE case.

Student is attending a program, through pendency, instead of the recommended Integrated Co-Teaching (ICT) class as indicated on the 06/22/2012

IEP. (T 22, Ex 5)

IEP indicates the student is making tremendous progress socially and the occupational therapy (OT) provider recorded progress. (T 22-23)

IEP reduced the OT mandate and witnesses will testify that the student made adequate progress in the classroom last year, which warranted a move to the ICT class, and that the DOE has provided educational benefit and a FAPE to the student. (T 22-23)

DOE WITNESS CHAIKE GRUMET

( ), reviewed his professional and educational background, and testified as the school psychologist employed by the DOE assigned to PS and PS , the author of the 06/18/2012 triennial psychological evaluation, and who the school psychologist who attended the 06/22/2012 IEP meeting. (T 30-32, Ex 4)

Evaluation was shared with the parent at the 06/22/2012 IEP meeting. (T 32)

was provided with teacher and therapist reports prior to the meeting. (T 35)

reviewed her report which indicated reading levels of , math levels of to , listening comprehension of and spelling of . (T 36, Ex 4.2)

An ICT class was recommended with two full time teachers to work one-onone with and support the student, and work more closely to help focus the student and work on deficit areas. (T 37)

Additionally, the team recommended 5 periods of special education teacher support services (SETSS), where the teacher would work one-one-one with the student to support her in reading. (T 37)

Counseling, and were also recommended. (T 38)

indicates no disagreement to the recommendations. (T 38)

describes the student as shy with difficulty expressing her feelings. Guidance counselor was working with the student to prevent her from shutting down. Student needed a little more support in feeling secure, and in being able to relate to her peers. (T 38)

Final Notice of Recommendation (FNR) was returned by the parent and a copy of the IEP was sent home before the end of the school year. (T 40)

On cross examination reviewed her previous testing of the student dated 04/06/2009. (Ex D)

Student was in at the time of the evaluation, as PS The evaluation generally indicated the student was functioning at a level. (T 43-44)

Comparing the two evaluations conducted 04/06/2009 and 06/18/2012, CG acknowledged that the student appeared to progress one year in some areas. (T 4445)

does not recall comparing previous reports or notes at the 06/22/2012 IEP meeting. (T 48)

did not know the exact number of students for the proposed ICT class, though she estimated 25 or 27 children, a special and a general education teacher. (T 55-56)

stated that the class would be working on a 4th grade curriculum, and the student is on a 1st grade reading level and a math level. (T 56-57)

stated the student is functioning on a level for listening comprehension. (T 57)

testified regarding the student’s management needs indicated on the IEP. “The lessons need to be personalized for her, that's when she works in the small group-- when the teachers in the class break off into small groups; they are able to personalize the lesson. And then the resource room teacher comes in, she can personalize the lessons…” (T 58-59)

SETSS teacher would come in for one period daily, 45 minutes, as a push in service. (T 59)

continued that she did not know how often the class would work in small groups, and that the student requires a small setting to participate in age appropriate learning. (T 60-61)

confirmed that she felt the student has made progress in math computation, but not in other areas. (T 78-79)

was directed to testify regarding student goals which appear on various IEPs. (T 79-84)

IHO directed the witness to testify regarding the goals specifically indicated on the 06/22/2012 IEP (Ex 5-4) and the 02/15/2012 IEP (Ex G-4). Witness was asked if the goals could be implements as written, to which the witness responded: “I can’t say.”(T 84-88)

IHO and CG had the following exchange regarding the goals on the

06/22/2012 IEP. (Ex 5)

HEARING OFFICER : Can you look at any of the goals, in that IEP, and explain to me how that would be implemented for this student, by a teacher in an ICT

classroom?

MS. : I can't say.

HEARING OFFICER : Is it your opinion that these goals can be carried out in the classroom for this student?

MS. : Yes, it is my opinion.

HEARING OFFICER : Can you tell us how?

MS. I can't say. (T 88-89)

continued that she believes the goals are appropriate. (T 89)

continued that she the teacher at the IEP meeting, Mr. , understood the goals and would explain them to the parent. does not remember if this actually took place. (T 91)

In response to IHO questions stated that the ICT students should be close to grade level, and the student in question is not. (T 64)

Class curriculum in the ICT would be at a level. (T 67)

did not know how the student would be grouped, considering the other students would be functioning on a level. (T 68)

IEP does not indicate the SETSS teacher will work one-on-one with the student. (T 71)

IEP does not indicate any direct one-on-one instruction to the student. (T 72)

CG feels the student needs individual attention during the course of the school day. (T 72)

stated that she described the ICT class to the parent as: “A classroom with two teachers, full time teachers, special education teacher and a—a general education teacher will break up the kids into--into groups and work with them on their ability.” (T 74)

DOE WITNESS

( ) (AM), reviewed his professional and educational background, and testified as the teacher at the 06/22/2012 IEP meeting, and the student’s teacher for the 2011-2012 school year, in a 12:1:1 setting. (T 93-94)

described the student’s reading performance for the 2011-2012 school year.

“Initially…in September of the previous school year…probably early first grade reading level. She was a very on her own, also did not like to read aloud. By the end of the year…significant progress, not only , but also in the level that she was actually reading on.” (T 95)

described the student’s math performance for the 2011-2012 school year.

“Her math skills also especially in areas of . Her computation skills were definitely higher. She was around a level when I met…(the student)…and she was approaching grade level by the end of the year, in terms of computation. Her word problem ability was still delayed, as a result of her low reading level.” (T 96)

Assessments were done and discussed with the parent. (T 98-99)

identified the student as . (T 99) Later he corrected his testimony to the correct classification. (T 152)

constructed the reading and math goals, and believes them to be appropriate.

(T 100)

continued that the student had made the most progress in her social and emotional development. The student became more verbal and was able to voice her opinion. (T 101-102)

described parent contact as confrontational and homework was only completed if done in the afterschool program. (T 102-103)

described strategies used in the classroom for the student.

“Instructionally…it was very difficult to actually bring her up to grade level, because she is still responsible to be taught and instructed on a third grade level with third grade content. Bringing that down to…(the student’s)…reading level at the time proved to be challenging. But what we did was spend during extended day and for a few reading blocks during the week, working on basic phonics instruction. And I was also collaborating with… and . service providers, to make sure that they could provide some remedial instruction, to try and bring her up to the content level that we were using in the classroom.” (T 105)

PP explained his view of the ICT recommendation:

“Initially, when I spoke to…(the student)…she was overly concerned with being in that classroom. In a setting, the—I wouldn't say the majority, but the--the most severe cases in my room were emotional disturbances. So, a lot of the school day was spent triaging those cases…(the student)…was also extremely aware of the classroom that she was in. She was aware of the label that was placed upon her. And we worked together throughout the year, trying to--trying to make her understand that she was working towards a goal. She was working towards being in a larger classroom in the following year. And she really--and that really seemed to motivate…(the student)…It was a really big factor, I think, in all of the progress that she made towards the end of the school year. And it was really a pre-agreed upon placement between her mother and myself, provided that…(the student)…made the necessary progress to warrant it.” (T 106-107)

On cross examination reviewed levels indicated on past and present IEPs from 2011 and 2012. (T 112-118, Ex 5, g & H)

To perform grade level work the student required a lot of time, and support from the classroom para . (T 142)

Student required tasks broken down into steps and presented directly to her.

(T 142)

Responding to the IHO, the witness testified that the instructional level is usually higher that the

Performance level. (T 118)

Instructional level indicated on the 06/22/2012 IEP is a result of DRA testing.

(T 119-120, Ex 5)

stated that, for the IEP, he is responsible for anything that makes reference to academic progress, except for the WIAT testing. (T 121)

continued that his ICT recommendation was primarily based upon the student’s ability to handle a full scale classroom. (T 123)

was asked if someone at the meeting described the ICT class to mom, to which he replied:

“Well, an ICT class can work one of many different ways. And there would be no way to inform mom about that, especially in terms of the level of the class, because the class wasn't formed at that time. When an ICT class is combined, when an ICT class is generated, the portion of students on the special ed side, yes are all on the special ed side, but the general ed kids is either a random pick or they are deliberately selected by the school. There would be no way to inform mom of the instructional level without the kids being selected.” (T 123-124)

explained the ICT class to the parent and included supports he felt necessary for the student, including SETSS services, which were intended as a push in, one-on-one service. (T 125-126)

clarified by stating that at the time of the meeting he hoped and intended the service would be , but if there were other students that shared similar disadvantages or similar needs, they would work in a group of three. (T 126)

continued that related service providers should continue to provide remedial services to the student. (T 126)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "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 "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

Although not required by the IDEA (20 U.S.C. § 1414[d][1][B]; see 34 C.F.R. § 300.344), New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005]; Application of the Dep't of Educ., Appeal No. 09-024; Application of the Dep't of Educ., Appeal No. 08-105; Application of the Dep't of Educ., Appeal No. 07-120; Application of a Child with a Disability, Appeal No. 07-060; Application of the Bd. of Educ., Appeal No. 05-058). New York State law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]). Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (8 NYCRR 200.5[c][2][v]). New York State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member (Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][2]-[5]; see Application of the Dep't of Educ., Appeal No. 09-078).

DOE 06/22/2012 IEP AND PLACEMENT FOR THE 2012-2013 SCHOOL YEAR

The IEP of 06/22/2012 was intended for the 2012/2012 school year. (Ex 5)

identified various student needs to be met in the ICT, including two full time teachers to work one-on-one with and support the student, and work more closely to help focus the student and work on deficit areas. (T 37) Also, the SETSS teacher would work one-on-one with the student to support her in reading. (T 37)

The IEP itself does indicates SETSS as a group service, not one-on-one as CG testified was needed for the student.

indicated the student needed a little more support in feeling secure, and in being able to relate to her peers. (T 38) There is no indication in the IEP of how this support is to be given to the student.

did not know the exact number of students for the proposed ICT class, though estimated up to 27 students, who would be working on a curriculum. (T 5557)

stated, and the IEP confirms, the student is on reading level, a grade math level, and is functioning on a level for listening comprehension. (T 56-57) No information is given on how this gap in levels is to be addressed in the classroom.

testified the student needs lessons to be personalized, which could be done when the class works in small groups, and the resource room teacher comes in, she can personalize the lessons…”, and that the student needs individual attention during the school day. (T 58-59 & 72) No information is provided in the IEP as to how this is to be accomplished. Assuming the resource room teacher referred to is the SETSS teacher, there is no indication of any service to meet the student need set forth by and within the body of the IEP. (Ex 5.2)

SETSS teacher would come in for one period daily, 45 minutes, as a push in service. This is not the one-on-one service identified as a need by the witness, and throughout the testimony. (T 59)

continued that she did not know how often the class would work in small groups, and that the student requires a small setting to participate in age ap propriate learning. (T 60-61) However, recommended a larger class setting than the current , even though the other students were anticipated to be functioning on grade level, two or three years beyond the level of the student.

did not know how the student would be grouped, considering the other students would be functioning on a level. (T 68)

Despite the fact that felt the student has made progress in math computation, but not in other areas, the student class ratio was increased and no allowan ce was made as to how instruction would be provided in a class that functioned beyond her instructional level. (T 78-79)

Though CG felt the goals were appropriate, she could not explain how any IEP goal could be carried out in the classroom. (T 88-89) It does not seem logical that could make a recommendation with goals that could not be carried out in the proposed placement, yet she was unable to explain how any goal could be carried out for the student.

cites significant progress, however, the instructional levels of the IEP remain at a grade instructional levels indicated on the IEP. (Ex 5.10) seems to rely on some social progress the student made in the course of the year. (T 101-102)

believes the reading and math goals to be appropriate. (T 100)

The IEP contains two math and two reading goals. I find each goal to be immeasurable, vague and inappropriate for the student.

Reading goal states student will make appropriate effective use of strategies to construct meaning from print, such as activating prior knowledge about a subject and structural and context clues, to comprehend challenging text. The strategies to be used, type of meaning to be obtained, prior knowledge, and level of challenging text, are all lacking. This makes it impossible to determine how one is to measure how the goal is met with 75% accuracy, 3 out of 5 trials, once a month.

notes that it is difficult to bring the student up to grade level. (T 105)

indicates he is still working on basic phonics with the student, and collaborating with the therapists to provide remedial instruction. Additionally, the student required a lot of time and support from the classroom para to perform grade level work, requiring tasks to be broken down into steps and presented directly to her. (T 105 & 142)

Despite the individual needs of the student and being done, at the time of the IEP meeting, felt the ICT was appropriate. This is despite the fact that he could not inform the parent at the meeting about the instructional level of the students, even going so far as to say some of the students may be chosen at “random”. (T 123-124)

The DOE at hearing did not present any information to indicate an appropriate class placement would be made for the student. This is particularly troubling considering the testimony of PP, which added to the finding that the student was inappropriately placed.

testified as to his classroom setting at the time for the student: “In a setting, the—I wouldn't say the majority, but the--the most severe cases in my room were emotional disturbances. So, a lot of the school day was spent triaging those cases…(the student)…was also extremely aware of the classroom that she was in.” (T 106) Since the current placement was inappropriate for the student, consideration should have been given, and service indicated in the IEP, that the next placement would be appropriate, so that unwanted aspects of the class could be avoided.

continued that he felt the student needed the support of a one-on-one push in service, then clarified that that is what he hoped, though they may work in a group of three. (T 125-126)

also indicated that he felt the related service providers would continue to provide remedial services to the student. (T 126)

indicated in his testimony student needs that remain unmet in the actual IEP. acknowledges the student needs one-on-one services and remediation, but this is not set forth in the IEP.

DOE psycho educational evaluation indicates the student worked well in “…the one to one structured situation.” (Ex 4.1) However, no provision is made to provide any such service in the IEP.

Considering the testimony of the DOE regarding the student’s needs, and the evidence indicating the student continued to fall further behind academically (after 1st grade) I find that the IEP did not properly consider current evaluations and did not accurately reflect the results of evaluations to identify the student's needs on the actual IEP.

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]). Short-term objectives are required for a student who takes New York State alternate assessments (8 NYCRR 200.4[d][2][iv]).

I find that the IEP of 06/22/2012 did not establishes annual goals related to the needs of the student, did not provide for the use of appropriate special education services, and was too vague as to be able to be properly implemented.

LACK OF PARENT MEMBER

In this case, it is undisputed that an additional parent member did not attend the 06/22/2012 CSE meeting.

The question at hand is whether or not the absence of an additional parent member was a procedural error that impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H., 2008 WL 3930028, at *7; Matrejek, 471 F. Supp. 2d at 419).

Parent appeared by telephone, and was not able to have materials available to review and consider, as did other members of the CSE team.

It is possible that the inclusion of a parent member, and the resultant full CSE team, may have been able to address, at least to some degree, the deficiencies off the IEP outlined herein, which denied the student a FAPE. For instance, parent member may have been able to relate current performance and instructional levels, or other important information to the parent to consider.

Based on the foregoing, I find that the absence of an additional parent member at the 06/22/2012 meeting contributed to the student being denied a FAPE and contributed to significantly impeding the parent's opportunity to participate in the decision-making process.

IEP FOR 2010-2011 AND 2011-2012 SCHOOL YEARS

IEP dated 04/15/2010 was formulated for the 2010-2011 school year. (Ex I)

This IEP also lacked a parent member, and contained standard promotional criteria, for the upcoming school year. As indicated in the record, the grade school year seems to be the only year in which the pace of academic progress moved forward during the school year.

This IEP does contain proper goals, detail academic management needs, and list services to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability.

IEP dated 02/28/2011 was formulated for the 2011-2012 school year. (Ex H)

This IEP also lacked a parent member, and was designed for the upcoming 3rd grade school year. This IEP removed standard promotional criteria and modified promotional criteria as follows:

For the then current 2nd grade school year:

% 2nd grade ELA

% 2nd grade Math

For the upcoming 3rd grade school year:

% 3rd grade ELA

% 3rd grade Math

No explanation was given to explain how these criteria were devised, or to be met, considering the student continued to fall further behind academically.

This IEP also did not establish measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability.

IEP reading goal refers to strategies and meaning to be obtained from print, difficult word, and a cryptic measure, which is unable to be understood, let alone carried out in the classroom. (Ex H-4)

I find the IEP dated 02/28/2011, formulated for the 2011-2012 school year, to be insufficient and therefore denied the student a FAPE for the 2011-2012 school year.

APPROPRIATE PLACEMENT FOR THE STUDENT FOR THE 2012-2013

SCHOOL YEAR

As indicated herein, the DOE failed to provide an appropriate IEP and FAPE for the 2011-2012, and current 2012-2013 school year.

Parent set forth a position of an alternative to the ICT placement.

Parent would like her daughter to go to a private school. (T 182)

Witness testimony regarding placement included:

“It would be a small group setting…it would be a program that is designed for children, such as…(the student)…where they are providing significant work on her current learning, while moving her forward. may be doing some of the backup…small groups, such as a perhaps less, where they can ensure that someone is helping both with her understanding of the curriculum, as well as her attending to the curriculum…a program that…is experienced in working with the type of children, in a small group setting...” (T 234-235)

“I think she needed more intensive instruction in reading and in math that would have allowed her to keep pace with what she's doing. The higher the grade if you're not keeping up, the more it's above your level. It becomes--I think if we looked at some of the work she was doing it was way above her level the way she performed. So I think a class that worked at her grade level with instruction that was more intensive would have been much better. I think she needed tutoring. I think she needed a more hands-on probably approach. She needed shorter and more frequent sessions, paying attention to her attention levels. I think there are things they could have done to facilitate reading comprehension.” (T 276-277)

“I think a 12:1:1 class that functions at her level with individual 1:1 tutoring to try to bring her up to grade level would be appropriate. And I think that they need to use strategies that are interesting to her and that would allow her to focus on the material, a lot of hands-on kind of things--Orton-Gillingham, Wilson method. Some kind of multi-sensory approach would be good. I think--and I think the socialization could occur in other places. I mean other places at school.” (T 282-283)

I find that an a placement is appropriate for the student so long as it is in conjunction with the services and such a program is properly composed of students with similar learning needs and functional and instructional levels, as the student in question.

Any placement will also require appropriate goals, which have not yet been constructed for the student.

DOE testimony indicated direct, individual SETSS services should be provided to the student. the SETSS teacher would work one-on-one with the student to support her in reading. (T 37) continued that he felt the student needed the support of a one-on-one push in service, then clarified that that is what he hoped, though they may work in a group of three. (T 125-126)

I find that provision of the individual SETSS service is necessary as part of an appropriate program for the student for the 2012-2013 school year, for five periods weekly.

Related services were not disputed and shall continue as part of the student’s appropriate program and education. This includes:

Therapy, in a group of 3, 2 times weekly, for 30 minute sessions;

, in a group of 3, 1 time weekly, for a 30 minute session; , individual service, 1 time weekly, for a 30 minute session.

HLC SERVICES AND COMPENSATORY EDUCATION

Courts have held that unless the district committed a gross violation of the IDEA resulting in "the student's complete deprivation of a FAPE," the student would not be entitled to compensatory education for those years (French, 2011 WL 5222856, at *2-*3; see Somoza, 538 F.3d at 109 n.2; Mrs. C., 916 F.2d 69; Burr, 863 F.2d 1071).

I find the student is entitled to the HLC services.

I find that by failing to provide an appropriate IEP for two years, and by failing to address the student’s continued regression, the DOE committed a gross violation of the IDEA.

Additionally, even the DOE set forth the basis and need for remedial services for the student, which went unmet in the proposed placement and IEP.

identified student needs, including, two full time teachers to work one-onone with and support the student, and work more closely to help focus the student and work on deficit areas. (T 37) Also, the SETSS teacher would work one-one-one with the student to support her in reading. (T 37)

notes that it is difficult to bring the student up to grade level. (T 105)

indicates he is still working on basic phonics with the student, and collaborating with the Speech and Occupational therapists to provide remedial instruction, which he felt would continue. Additionally, the student required a lot of time and support from the classroom para to perform grade level work, requiring tasks to be broken down into steps and presented directly to her. (T 105, 126 & 142)

continued that he felt the student needed the support of a one-on-one push in service. (T 125-126)

indicated in his testimony student needs that remain unmet in the actual IEP. PP acknowledges the student needs one-on-one services and remediation, but this is not set forth in the IEP, and not properly put upon the Speech and Occupational therapist.

Parent set out and obtained an evaluation and plan from to address the needs identified by the DOE, but not met in the proposed IEP or placement.

DH presented the assessments of and assembled a program for the student to remediate skills the student is lacking or has yet to master. This is indicated on the Student Program Map, and was reviewed by . (T 217-225, Ex M).

Upon IHO inquiry, stated that the rate for HLC services is $85.00 per hour. (T 231)

testified regarding student need for the services regardless of placement: “…she needs both catch-up and she needs to be working in a classroom setting where they yes still are going to modify it to her level, but I think it would be too much to expect the teacher to make these kind of gains when she's so far behind.” (T 295-296)

I find that the services, including transportation, are required at this time to provide the student with an appropriate education for the 2012-2013 school year.

EVALUATION REIMBURSEMENT

Parent also requested reimbursement of the evaluations, however, no request was made to the DOE demanding evaluations and no documentation was submitted regarding the billing and payment for those service.

This demand by the parent is therefore denied.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. Considering parent concerns and time constraints, such as the upcoming 2012-2013 school year, the parent cooperated and appeared at the requested meeting, consented to evaluations, sought out outside services and conducted research into how best to obtain an appropriate education for her child.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement for the 2010-2011 &

2011-2012 school years, and therefore, a FAPE has been denied the student, for the 2011-2012 and 2012-2013 school years.

2. A placement is appropriate for the student for the 2012-2013 school year.

3. DOE shall immediately convene to compose a IEP, for the 2012-2013 school year, to deliver services in a setting, in a class properly composed of students with similar learning needs and functional and instructional levels, as the student in question.

4. DOE IEP to be composed shall contain appropriate goals, for the 2012-2013

school year.

5. DOE shall pay directly the for 730 hours of services for the student at the rate of $85.00 per hour.

6. DOE shall provide, or reimburse parent, reasonable cost of transportation to and from for the sessions referred to herein.

7. DOE shall immediately issue any required documentation to facilitate delivery of the services to the parent representative attorney and as necessary.

8. The parent shall have one calendar year from the receipt of the appropriate paperwork from the DOE to obtain the delivery of the services.

9. Related services shall continue as part of the student’s appropriate program and education for the 2012-2013 school year. This includes:

Therapy, in a group of 3, 2 times weekly, for 30 minute sessions;

, in a group of 3, 1 time weekly, for a 30 minute session; , individual service, 1 time weekly, for a 30 minute session.

10. DOE to provide individual SETSS service is as part of an appropriate program for the student for the 2012-2013 school year, for five periods weekly.

11. This decision is subject to appeal and review by the State Review Officer. Dated: November 8, 2012

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

DA: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

A Evaluation by Dr. , dated 8/22/12, 7 pages B DOE Report, dated 6/18/12, 3 pages C Comprehensive Evaluation, dated 7/21 & 7/22/2009, 16 pages D DOE Psycho Educational Report dated 4/6/09, 4 pages E Report Student Academic Evaluation Results,8/25/12 & testing records 44 pages F Omitted G IEP, dated 2/15/12, 13 pages H IEP, dated 2/28/11, 12 pages I IEP, dated 4/15/10, 15 pages J IEP, dated 7/30/2009, 7 pages K IEP, dated 4/22/09, 5 pages L Report Card for 2010-2011, 1 page M Program Map, 1 page N Comprehensive Social Evaluation, dated 3/31/10, 5 pages O Evaluation dated 3/31/10, 5 pages P Omitted

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, dated 08/29/2012, 5 pages 2 Due Process Response, dated 09/05/2012, 3 pages 3 Consent for New Testing, dated 06/12/2012, 1 page 4 Evaluation, dated 06/18/2012, 2 pages 5 IEP, dated 06/22/2012, 13 pages 6 Final Notice of Recommendation, dated 06/22/2012, 1 page 7 Email w/fax notification from Parents' attorney to revoke placement authorization for ICT recommendation for 9/6/12, dated 09/05/2012, 3 pages 8 Classroom Progress Report, dated 06/20/2012, 2 pages 9 Therapy Report, dated 06/20/2012, 2 pages 10 Progress Report, dated 06/18-2012, 2 pages