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: December 5, 2012

Actual Record Close Date: January 17, 2013

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2012

Parents

Parents

Paraprofessional — Student

Director-Special Education — DOE

Principal (via telephone) — DOE

Guidance Counselor (via telephone) — DOE

General Education Teacher (via telephone) — DOE

Special Education Teacher (via telephone) — DOE

Physical Therapist (via telephone) — DOE

Speech Teacher (via telephone) — DOE

Occupational Therapist (via telephone) — DOE

The parent requested an Impartial Hearing on October 31, 2012. Due to the storm, the hearing was held on December 5, 2012. The parents represented themselves. The District was represented by . Neither party requested an extension of the compliance date.^[1]

The student’s date of birth is . She is classified as . She has been diagnosed with . She currently attends . The parents are challenging the IEP dated May 1, 2012. The parents in their request placement at a non-public school named . (Exh. 1) The IEP dated May 1, 2012 recommends integrated co-teaching services for math, ELA, social studies, sciences; adapted physical education four times per week, speech-language therapy one time per week, individually for 30 minutes, physical therapy twice a week for 45 minutes, occupational therapy twice a week individually for 30 minutes, counseling services once a week individually and once a week in a group for 30 minutes each session. The student has a paraprofessional all day. (Exh. 7)

The student has attended from . The IEP dated May 1, 2012 states that the student’s Evaluation Results indicate that she is performing on a Math and she is an reader. In the Academic Achievement Functional Performance and Learning Characteristics, it specifies that “When reading, [the student] invents words as opposed to decoding the word at hand [the student] requires in most skill areas. She seems ” Under the heading Student Strengths, Preferences, Interests: [The student} in class activities. It is very important to her that she succeeds in all endeavors. She on most spelling tests. She .” Under the heading Academic Developmental and Functional Needs of the student: “Due to her disability it is important to all concerned that [the student] is included in all class activities. However, throughout the day affects her participation and academic growth.” Under the heading Social Development, The Degree and quality of the student’s relationships with peers and adults, feelings about self; and social adjustment to school and community environments: [The student] is a . She in all her endeavors including class activities. She has in . She may if she is . She and responds . Under the heading Student Strengths: [The student] has and a somewhat .” Under the hearing Social Development Needs of the student: [The student] is disappointed with her physical limitations.” [The student] is a 1st grade student with a diagnosis of . Based on her current motor functioning, she performs on a GMFCS level of 4.(Exh 3.1) Under the heading Management needs: [The student] continues to require assistance with transfers and with school negotiation, but has made significant progress in this area. The student receives adaptive physical education.” (Exh. 3.2) The IEP team recommended Integrated coteaching, physical education, , physical therapy, and . (Exh. 3.14)

An Amended IEP was created on May 1, 2012 which included a full time paraprofessional for . (Exh. 7.10)

, the school social worker who provides counseling to the student testified that he has known the student for three years and presently provides her with counseling twice a week. (T. 42) He testified that the student is more aware that she’s isolated from the other children, that she’s had a number of when she to do certain things. She’s very about participating and there were some shows that she was not able to do exactly what other children did. (T. 45) The student interacts well with other children. She’s made a lot of progress in in not getting her way. Sometimes she’s and she’s not especially about what’s on her mind. Mr. stated he was at the IEP team that created the IEP dated June 2012. He went through the goals from the previous IEP and talked about three girls in the class that have a and they spend a lot of time together. Previously the student was excluded for a while and it . The group feels isolated from the other girls in the class physically. (T. 49 – 51) The other two girls have trouble walking and have adaptive physical education. (T. 51)

, the student’s second grade general education teacher at testified that the student has been in her class since September and has improved in recalling her sight words. Math is a but she has improved since September. The student is a in reading. Skills from the common core are worked on in class. (T. 54) She stated that she supplements and works with individuals according to their needs. The student words . The words are reinforced. The teacher uses little books and flashcards and other word search to reinforce the skills. Previously, the student was not in class at 8:40 but arrived at 9:30 because of a bussing issue. Therefore the student missed an hour of reading. (T.

55) The student gets along well with other students and participates in class. The paraprofessional, Ms. works with the student in social studies, science and every other subject. (T. 57) Ms. testified that she believes the student is appropriately placed in her class. (T. 58) The student goes outside with her class to play at recess. (T. 60) Ms. stated that she does not believe the parent is necessary in the class because there are four adults providing the services in class. (T. 61) The student is ” the other students except for two or three others. (T. 68) She is currently working at a low first grade, end of kindergarten because her skills are very, very low. (T. 68) Ms. testified that the student would benefit from another class. Her physical disability does not inhibit her ability to do the classwork. The student’s academic levels do not prohibit her from doing the classwork with the extra help. (T. 69)

, the student’s special education teacher testified that he knows the student for the past two years and as his student since September 2012. (T. 73) Mr. stated that the student is making some progress in the class. She can read the site word and copy work from the board. She needs a C level book but she can read the site word and write whatever writing is necessary in the classroom. (T. 74) The student is reading on a first grade level. (T. 80) The student is performing at a first grade level for math. (T. 82) Socially the student is doing very well with her peers. Mr. testified that the class is an appropriate class because there are several students on the same level. (T. 75) The teacher addresses her by having extended time in the morning at 8:00. In math, the teacher goes over the basic counting and skipping. (T. 82)

, the student’s physical therapist testified that she knows the student since November 2010. The student has made a lot of progress. Previously she was wheelchair bound. She had a walker that she was able to use for very short distance with someone supporting her. She walks most of the day in her walker without assistance. She also made progress in transferring from her wheelchair to other areas such as chairs and floor. She’s made progress in her ability to be involved with other students like on the playground. The student can participate in activities with other students. (T. 89) Ms. testified that she trained the student’s paraprofessional to transfer the student (T. 95 – 96) Ms. ’s report dated March 23, 2012 states the student is able to participate in all aspects of her class with assistance. The report indicates that the student is able to participate in a few activities on the playground. (T. 98 – 99) The student has made a lot of progress in toileting since the March 23, 2012 report. (T. 101) The student has also made a lot of progress in transitions since the report. (T. 101) Ms. testified that the amount of physical therapy services she receives is appropriate. (T. 103)

is the student’s teacher. She has worked with the student since she arrived in kindergarten. Initially the student had problems with , listening, reading comprehension, attention span and memory. The student is now able to respond to most WH questions presented in oral form. She is able to recall, retell and restate some information from memory. She has made good progress. (T. 106, 108) The IEP dated May 7, 2012 indicates that the student is to receive individual speech therapy. Ms. stated that is an error, the student never received individual services. (T. 110)

, the student’s occupational therapist testified that the student’s handwriting was not very good when she first started working with the student in September 2011. (T. 114) The student has been doing very well. (T. 115) The student’s ability to sit upright has improved. Her ability to stay on task has improved. Ms. ’ observation of the student’s handwriting indicates that she has more control. (T. 116) Ms. uses a weighted pencil and wedges in the past. (T. 122, 123) Ms. testified that the sessions are appropriate.

(T. 124)

, the student’s paraprofessional testified that she has worked with the student since the second week of September. (T. 153) The physical therapist showed Ms. how to transfer the student from the wheelchair to the school chair, how to properly take her to the restroom, how to hold on to the bars, walk in the walker property, transfer from the walker to wheelchair and maintain her safety throughout the school building. (T. 154) The students goes outdoor when the other students go out. She plays with the other students, turning the rope, throwing the basketball, following the other students. (T. 155) Ms. reinforces what Ms. teaches and helps her by reading instructions to her. She helps with vocabulary words and pronunciation. (T. 156) The student tends to be a little sleepy in the morning but otherwise she is not. (T. 156) The student interacts with the other students. She has a group of girls that named themselves the . (T. 157 – 158)

The parent testified that the student is getting older and going to need more assistance. The student’s prior teacher was sensitive to the parent’s needs. In the prior grades she was able to come into the classroom and participate. After the parent expressed her concerns in August, the faculty was not told of those concerns until a month later. The date of the memo is October 4th. (T. 128) The parent is not welcome in the class. The parent wants the student to be placed in an environment where she can be with peers like herself, where she’ll be able to get the attention that she needs. The equipment would be there for her. (T. 129) The student is sitting in an office chair with a pillow propped up behind her back. (T. 129) The student is “ ” because she is taken out of the classroom for services. (T. 130) The parent stated that she can no longer go into her daughter’s classroom but must go the office. She must make an appointment to get the student’s report card. (T. 132 – 133) The parent stated she wants the student at the or . (T. 137) , she’s not been supported. (T. 138) She needs an environment that helps her physically. (T. 140)

The parent admitted the following documents into evidence: Application to NYS Commissioner for Approval for an Evaluation to attend a 4201 state-support school; UCP Acceptance Letter; Outpatient Service Approval; Department of and Rehabilitation Medicine; Letter from for screening; Letter from for medical documentation; Memo from Assistant Principal of dated October 4, 2012.

DISCUSSION

In determining whether the IEP proposed by the district was appropriate, the Court must determine "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free School Dist. 142 F.3d 119, 129 (2d Cir.1998) quoting Board of Educ. v. Rowley, 458 U.S. at 206-07.

The student has physical challenges which are met by her physical therapist and her one to one paraprofessional. The parent has not requested additional physical therapy. The student’s classroom chair may or may not be appropriate. However, the parent has not provided the district or myself with recommendations from the student’s treating orthopedist as to an appropriate chair for class.

The student’s from most of the students in her class. However, there are several others with similar performance. The student’s delays are addressed by the special education teacher, her one to one paraprofessional and additional help given at 8 a.m. in the morning.

The student at times seems to be . Without additional information provided by the student’s treating physician, it is impossible for the school to know if and how they can address the student’s fatigue.

The recommended program must be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The requirement that each child with a disability be placed in the LRE (20 U.S.C. § 1412[a][5]) does apply to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000]). However, it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). The School District has recommended a co-teacher class with general education and special education student in a community school. The student is not isolated. There are two other students with physical disabilities and the testimony from the teachers and aide is that the student is social and participates. The social worker’s testimony as to the student’s feeling of isolation is addressed in the counseling sessions.

The District has met their burden in recommending

Therefore, I find that the District’s recommended program for this student addresses the student’s specific needs in reading.

Because I have found that the district recommended an appropriate program, I need not address the school the parents have suggested, although there was no testimony regarding that school. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000] ["If the challenged IEP was adequate, the state has satisfied its obligations under the IDEA and the necessary inquiry is at an end"]; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 134 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 03-058).

IT IS HEREBY ORDERED that the parent’s requests are denied. Dated: December 27, 2012

____________________________

MARY NOE, ESQ.

Impartial Hearing Officer

MN:jj

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 Application for Evaluation, 10/16/12, 2 pp. B Acceptance Letter, 9/13/12, 1 p. C Neighborhood Health Provider Letter, 11/2/12, 1 p. D Department of Orthopedics Letter, 11/20/12, 1 p. E Letter, 10/22/12, 1 p. F Letter, 10/1/12, 1 p. G Memo to Parents, 10/4/12, 1 p.

DEPARTMENT OF EDUCATION

1 Request for Hearing, 9/24/12, 1 p. 2 Physical Therapy Report, 3/23/12, 3 pp. 3 IEP, 5/1/12, 16 pp. 4 IEP Attendance Sheet, 5/1/12, 1 p. 5 Waiver to Hold IEP Meeting, 6/28/12, 1 p. 6 Amendment Letter, 6/28/12, 1 p. 7 Amended IEP, 5/1/12, 16 pp. 8 IEP Attendance Sheet, 5/1/12, 1 p. 9 Attendance Records, Various Dates, 3 pp.

Footnotes

[1] SRO Decision 11-150 Footnote 2 “The hearing record also reflects that at on several hearing dates, the impartial hearing officer solicited a request for extension of the compliance date for issuing a decision from both parties…Such a solicitation on the part of the impartial hearing officer violates federal and State regulations governing impartial hearings which require that requests for extensions be initiated by a party, and that the impartial hearing officer’s written response regarding each extension requires be included in the hearing records, even if granted orally.”