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: June 23, 2011

September 20, 2011

October 26, 2011 Actual Record Close Date: January 1, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 23, 2011

Advocate — Student

Mother — Student

Principal/Director- — Student

Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 20, 2011

Advocate — Student

Mother — Student

Principal/Director- — Student

Designee — DOE

Teacher — DOE

Assistant Principal- — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 26, 2011

Advocate — Student

Mother — Student

Designee — DOE

INTRODUCTION

On June 23, 2011, September 20, 2011, and October 26, 2011, I conducted hearings pursuant to the Individual with Disability Education Act (IDEA) 20 U.S.C. 1415 (f)(3) regarding impartial hearing case number , The hearing was commenced at the impartial hearing office, 131 Livingston Street, Brooklyn New York. The parents submitted a request for impartial hearing, through their advocate on October 7, 2010 and filed an amended hearing request on June 23, 2011.

The Department of Education, hereinafter referred to as “the Department” was represented by its chairperson designee, and the parents were represented by their advocate, . A list of witnesses who testified and documents received into evidence are attached hereto.

BACKGROUND

The student is currently a ( ) , who is classified as “ ”. On February 5, 2010, the Committee on Special Education, hereinafter referred to as the “CSE” conducted an individualized education program (IEP) meeting for the 2010/2011 school year. The child, hereinafter referred to as “ ” was recommended to attend a special class in a community school, with a staffing ratio of with related services as follows: in a separate location, twice a week for 30 minutes in a group size of and two times a week for 30 minutes individually, also in a separate location. Additionally, the student was recommended to participate in state and local assessments with accommodations including time, extending up to time and a half in a separate location with directions read and re read.

THE PARENT’S POSTION

The Parent maintained that the IEP was substantively invalid, in that the goals were insufficient and that an appropriate recommendation was not made for their child.

THE DEPARTMENT’ OF EDUCATION’S POSITION

The Department maintained the child was properly classified as and that an appropriate recommendation was made for her to attend , an appropriate class size dand related services.

THE PARENT’S CASE

The first witness to testify was who affirmed that he has been the Educational Director of for the past 30 years. He is an Assistant Professor at specializing in Language and Learning Disabilities and has a New York State License is in

Pathology and a post masters degree in Special Education and a Doctorate in Supervision and Administration (trans. 65).

stated that he is familiar with , as she has been a student at Elementary School, which he described as a “mainstream program for children” with learning and difficulties. (trans. 65).

The witness stated that for the 2010/2011 school year, the child was in a grade class and described her as having , that get in the way of her functioning within a mainstream on any consistent basis. (trans. 66). She attends class in a small group with a teacher and an assistant with a to student/staff ratio. He described the child as processing things “ ”, which is an overlap of her attention, organization and problem solving difficulties. He also stated that does “very nicely” when things are very structured for her, spelled out for her on a step by step basis and that there are accommodations made for her (trans. 66).

described the process of scaffolding as reinforcing academic support and stated that last year; went up approximately one year in reading and math. (trans. 67). She also e made strides in socialization wherein she was able to be mainstreamed for history. (trans. 67).

stated that upon review of the child’s IEP, a special class in a community school with a ratio and related services was recommended, which is different from that which provides. More particularly, the class that the child was in had children with a teacher and an assistant, which is what requires in order to function at productive level and make progress (trans 68).

stated that he was familiar with a setting, in the New York City Department of Education and stated that the “class is too big”. Additionally, she needs a second adult in the classroom to . (trans 69).

testified that after reviewing the child’s classroom observation dated 1/20/10, Exhibit I, which describes the child’s difficulties, wherein she gets “ ”. (trans. 70). He also commented that during the 2010/2011 school year, there was definite improvement to the point wherein, by the end of the year, they were able to mainstream her in a class (trans. 71). In his opinion the child would not have been able to function in a setting for the school year in issue and that same “would have been impossible (trans. 72).

stated that the mainstream class was a success for her both socially and academically, and that her reading scores improved to a grade level by the end of 2010/2011 school year and her math scores improved as well (trans. 72).

Upon cross examination of the witness, the witness reiterated that he is the educational Director at the program at the (trans. 75) and he personally goes down to the school for at least 12 hours a month to observe. The witness stated that and are available at the school. (trans. 76) Additionally, there were girls in classroom and that he is unable to answer whether or not, from a developmental prospective, if the child desires to interact with boys, however, that in her cultural environment, it is not done. (trans. 80).

The student’s in class were children and were within two years of reading level at grade. (trans. 82).

stated that the evaluations including reading are not standardized tests and evaluations are carried through from the previous school year. However, there is standardized testing, as received a Test at the end of his school year.

The witness stated that in addition to following the goals as indicated on the child’s IEP the school implements and creates their own goals. (trans. 84. stated that the goals in the IEP were lacking, as they did not address the and , which is the reason for her difficulties in the first place (tans. 84). Additionally, they do not address her , and and in his opinion the goals were “ ” (trans. 84).

described a typical day at the school, and referred to Exhibit E which was a class schedule. He stated that three times a week, from 10:45-12:15, Hebrew subjects are taught, and two times a week during the same time slots. Children are taught by a Licensed Speech Pathologist and also participate in an industrial arts program and music program, which are appropriate for the child’s cognitive and executive functioning skills (trans. 87).

stated that twice a week, when the children are involved with it is strictly a language course. He also stated that the Test is a standardized test, however, there is no report generated and rather that it is used as a “base line” to monitor progress (trans. 87).

Socialization skills are measured through teacher observations and parent’s reports (trans. 88). The witness stated as reflected in report that the child has made remarkable progress in her functioning. (trans. 88).

further stated that a functional behavior assessment was not necessary and that the best indication was that the child was able to be mainstreamed and interact with other children (trans. 94). The school utilizes IEP and progress reports to assess the children’s progress and IEP’s are completed twice a year.

The witness described methodologies employed at the school including phonics, scaffolding, reading comprehension programs, specific literature programs, which is part of an integrated reading and writing program (trans. 96).

stated that although he has not observed the particular classroom that was recommended by the Department, that he is able to state the program is inappropriate, as the class ratio is too big.

The next witness to testify was the child’s mother hereinafter referred to as “Ms. .” who affirmed that after reviewing the 2010 IEP, that her daughter was a grader going into grade in September 2010. (trans. 104). She was also aware that the Department recommended a special class in the community school with a ratio and that she visited the school, however was shown an grade class instead of a grade class (trans. 105).

An assistant principal by the name of took her to the class located in room and she believed there were girls in the classroom and that she observed the class only for a “few minutes” (trans. 106). It was her opinion that her child would not do well in the class, as she was behind.

The parent described her child’s progress during the last school year as “immense” and that her self esteem was good. She described her child as happy, self sufficient and feeling fulfilled (trans. 108).

Upon cross examination, she believed that she visited the proposed class in September 2010. She also stated that she has three children who all go to private school and that she would consider public school for if she would meet her needs (trans. 110).

Upon further cross examination, the witness stated that when she visited the proposed school and saw that the level was not for her daughter, she decided to have her child return to (trans. 112). The witness was referred to Parents’ Exhibit D, Tuition Contract, which was signed on August 17, 2010, at least two weeks prior to her visiting the proposed class. It was also her understanding, that her deposits and tuition payments were refundable. (trans. 113).

The witness testified that to the best of her knowledge, her husband took care of tuition payments and she did not have knowledge as to the amounts that were paid (trans. 114). For the 2010/2011 school year, the witness believed that there were or girls in class; she received once a week for 30 minutes and that two time a week for 30 minutes would certainly meet her needs (trans. 115).

When questioned as to whether or not her child required a ten month or a 12 month program, she stated that she “leaves that to the professionals”. Additionally, the summer before she began grade, she went to day camp.

Upon further questioning of the witness, she was asked whether or not her child could have her needs met and achieve a meaningful education in a classroom with up to children and she stated that “I don’t know”. It was also her understanding that her child received (trans. 123).

THE DEPARTMENT’S CASE

testified after being duly sworn, that the assistant principal at and his duties and responsibility include being in charge of the entire special education program for the school, and also supervising the math, science and social studies department. (trans. 16). In describing the special education programs within the school, he stated that there is a self contained classroom, a collaborative team teaching classroom, SETSS, related services and also a special class (trans. 17). Additionally, the school has related services including and . All the teachers and providers are licensed and certified. The witness described the school as a middle school, and “fairly small” wherein there are students. The administration is familiar with all the students in the building, and there are a lot of extracurricular activities, including an extended day in the morning in order to provide help to the students. (trans. 18).

The witness was directed to the child’s IEP dated February 5, 2010, and testified that the IEP was comparable to the IEP’s of other students who are in the classroom in his school with related services (trans. 20). The witness was directed to review the goals on the IEP and stated that his school would be able to provide an appropriate education and meet the goals as described in the IEP (trans. 21). More particularly, the class that was recommended for the child was which was a classroom. He described the class as being a self contained classroom wherein the students will switch classes on the same floor (trans. 22).

Additionally, the students’ would receive art, gym and lunch. Student’s also come in for an extended day at 8 o’clock in the morning and receive small group instruction which is no more than students in a classroom with a teacher. (trans. 22). Additionally, with respect to related services, students may be pulled out for a minor subject, or the related service could be a push in, typically, when engaged in and therapy. However, sometimes the students would be pulled out or during lunch, could meet a related service provider (trans. 22).

The witness testified that based on his reading of the IEP, would have fit into the class profile (trans. 22). In situations where the teachers need to address variations in math and reading levels between the student’s, the teachers are trained to use differentiated instruction in order to meet the need of the student’s (trans. 23). Mr. described differentiating instruction as instruction to the students who learn in different ways such as visual learners, kinesthetic learners, audio learners, and stated that the children would be accommodated to provide for their individual learning style (trans 23).

The program was described as a ten month program, wherein the school hours for the class would be Monday and Fridays from 8am – 2:20 pm and Tuesday, Wednesday and Thursday from 8-3pm. He further stated that reading is incorporated into every subject area throughout the day (trans. 24).

stated the school was located on approximately five blocks from the child’s home.

Upon cross examination of the witness, he conceded that he was not part of the IEP team, however stated that when a student is accepted to the school, they become part of an annual review and are reevaluated by the subject teacher wherein goals are adjusted and that recommendations and programs are made in conjunction with the parent. Additionally, the child is evaluated by a (trans. 26).

was directed to Page 3A on the IEP wherein it was noted that the child’s cognitive skills fall into the extremely to range’s, academics range from grade level in math to quite grade level in reading (trans. 27). He also noted that the child’s teachers stated that “is progressing nicely but gets very easily” (trans 27)

Mr. acknowledged that is at least years behind in reading and that he would not have recommended an or a more restrictive environment and that the appropriate placement was recommended (trans. 28). Mr. stated the child could make up deficiencies that she had in a setting (trans. 29). Optimally, when the children are in a program, they progress and are able to move into a less restrictive environment (trans. 31). Upon further cross examination he stated that if the child is not making progress in reading and is need of an setting that they could be changed to a smaller class setting.

The next witness to testify on behalf of the department was who stated that he possesses and Administration Supervision Degree, Advanced Certificate, as well as a degree in Learning Disabilities Special Education including a Masters (trans. 35).

He is currently employed by The Department of Education, Committee on Special Education, District as a “Teacher Assigned”. He has been in that position for five years and his duties include administering a language assessment battery in order to determine if children know enough English to be evaluated by a psychologist; he performs classroom observations, sends out notification for appointment letters/evaluations and also works in conferences to assist in developing IEP’s with a psychologist, social worker, parent member, parent and school personnel (trans. 36).

was directed to page “2” of the IEP and identified the people in attendance. He stated that the team reviewed the child’s abilities and deficits, wherein it was determined that she should be classified as “learning disabled” and recommended a special class in a community school a program with related services (trans. 39). The recommendation was made based upon classroom observations, teacher reports, evaluation and “input” from the parents (trans. 40). Upon further review of the IEP he stated that a evaluation was performed on January 19, 2010 and a classroom observation performed on January 26, 2010, shortly before the IEP meeting (trans. 41). Regarding related services, recommendations were made and modifications for two times a week for 30 minutes in a group of 1 and therapy two times a week for 30 minutes in a group of 3 and counseling was modified as “ ” still had unresolved issues.. (trans.42).

stated that everyone at the meeting had an opportunity to discuss all issues and that he did not recall any disagreement about the classifications or recommendations made at the meeting.

stated that he is not involved in recommending a particular placement for the child; however, he believed that the IEP in conjunction with the school placement that was offered would have provided the child with a “FAPE” (trans. 43).

The witness was directed to page 3A of the IEP, wherein he noted the child’s cognitive skills fall in the extremely to ranges with a higher potential estimated and that academics range from grade level to quite grade level in reading (trans. 45).

The witness conceded that a reading delay was “ ” and that in his opinion, an setting would be too restrictive (trans. 47). stated that as the child was coming from a SETTS program, recommendation was made for a special class and that “ ” would go to the least restrictive setting with an opportunity to see if the program worked (trans. 49). The witness also stated that a child could succeed in high school even without a grade reading level and receive a diploma (trans. 50).

The witness stated that he did a classroom observation for the child and confirmed that on the date of his observation, the child was having a “ ” (trans. 53). He stated that she was in a classroom of and that even if this was the child’s typical behavior, it would not have changed the child’s recommendations as modifications to the child’s behavior would be addressed in the classroom (trans. 56).

conceded that the IEP team is not involved in the actual placement; however, the parents have the right to observe the program, refuse the program and to look at other possibilities (trans. 57).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400 [d][I][A]: Bd. of Educ. V. Rowley, 458 U.S.

176. 179-181,200-0l. FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 US.C. 1401 [9] [0]; 34 RCNY 300.17. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept of Education, 471 US. 359 [1985]; Florence County Sch. District Four v. Carter, 510 us. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures are reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b) significantly impede the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits {20U.S.c. 1415 [f] [3][E] [il] An appropriate educational program begins with an. IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special educational (Application of a Child with a Disability. Appeal No. 07-008, Application of the Bd. of Educ., Appeal No. 06-076). The IDEA "expresses a strong preference for children with disabilities to be...educated 'to the maximum extent," appropriate with their non-disabled peers." See Walczakv. Fla. Union Free Sch. Dist.; 142 F, 3d 119,122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at lO*S.D.N.Y. Feb. 9, 2007], citing Walczak. 14'2 F.3d 2tl22). With respect to Prong I:

The IEP issued by the Department recommended a special class in a community school with a student/teacher ratio in a grade class. I find that the IEP team failed to provide an appropriate recommendation to meet with special education needs. The first witness presented by the Department, Mr. stated on page 26 that “typically what happens is that we you know we receive students incoming students, they come to the school with an existing IEP”. When asked by Dr. “it its possible that after two, three, four months, and you would see the student in action, would you change tour testimony about whether she needs a , an a ?”, the witness responded by stating “its not necessary to look at her reading scores which are in order to determine the appropriate teacher/child ratio. It was stated on page 28 "that's very typical and therefore she doesn't need an ratio." I agree with Dr. , that special education needs were not met by the Department. Mr. further agreed on page 31 "that we see if the student is not making any gains, or has, you know declined or has progressed, we'll then determine the appropriate place for the student" and that she may need to be moved to a more intensive level such as a setting with an . special education needs was were not addressed as it appears that the Department’s recommended program would monitor student's progress and not truly make a recommendation based on the child’s ability at the time if the IEP meeting.

Additionally, Mr. conceded that a reading lag is very , however when asked why he didn't recommend a ratio of instead of , he stated that the "District program” is an extreme recommendation, and that “we have to go step by step and cannot go to from a general ed class." On page 49 when questioned as to whether a student could succeed in high school without a grade reading level, Mr. stated that it was possible and that "I taught special ed in high school for over 15 years and my special ed students were not on a grade level." He thereafter stated that these students never got a high school diploma in four years.

Mr. testified on page 53 regarding his visit to to observe “ ” and stated how she was even in a class with a student ratio of . However, on page 54 the witness conceded that the only change that was made was to modify the child’s counseling program and that the IEP team didn't recommend a smaller class.

On redirect, Mr. testified that parents were part of the IEP team, however on page 62 he conceded that the IEP team is not the final step of the process and stated that "we're just making a recommendation of a program, not a placement." Prong II:

Dr. , the principal of , testified on page 66 that “ has serious language, cognitive and executive functioning impairments that impede her from functioning within a mainstream and hinders her functioning in a group other than the small group which she attends at with a teacher and an assistant with a ratio. He described as processing things , with executive , which affects her , and skills. Although he stated that the child’s organization skills happen to be “pretty good”, her are “ ”, especially on a . Further, she does nicely, when things are very structured for her; spelled out for her on a step by step basis. Additionally, there are accommodations made for language deficits, wherein she is allotted individual attention to slow down her rate of responses, especially , as she tends to be . The witness described “ ” as being very with a . When scaffolding is utilized performs “very nicely." Dr. testified that l requires a much smaller ratio than a stated p. 69 that " would need another adult, in the class, to really , to be able to handle it in a way that she can succeed and that a setting is too large of a group and 's report when he visited the classroom to demonstrate why she needs an 8:1.

Dr. in his testimony on page 72 testified as to the progress has made in reading comprehension, wherein she went from a grade level of . and her total reading score went up to a grade level.

During cross examination Dr. , stated on p. 83 lines 6-17, that the goals on the IEP were not appropriate for and that they are insufficient. He further stated on p. 85 lines 13-17 that all the teachers in the program are licensed and that in class, the assistant was also licensed. With Respect to Prong III Equitable consideration for the fact finder to consider in determining whether reimbursement and related relief is appropriate "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability, Appeal No. 05-087 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530,533 (N.D.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773,801-02 (Ist Cir. 1984) aff'd, 471-U.S. 359 (1985).

As the State Review Officer has expressly recognized, "in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See supra, Appeal No. 05-087 (referencing Application of the Board of Educ. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).

parents complied with every request for evaluation or assessment and gave appropriate and timely notice to the Department; acted reasonably, and cooperated at every stage. Accordingly the Prong III equities amply support and her parents. The Department argued that the equities in this case are weighted against the parents for initiating placement at prematurely before even looking at the recommended placement. I find that the parent acted reasonably and satisfactorily explained the reasons for making such enrollment to ensure that he had placement for his child if the recommended placement was not appropriate.

Based on the evidence and the relaxed standard of and for all of the foregoing reasons, I support the Parent in that the and the additional therapy services that are being provided are an appropriate placement and that the program for and is "reasonably calculated" to provide her with a meaningful educational benefit.

The Parent (mother) affirmed her belief that her daughter's special education goes before anything. In her testimony on p. 110, she stated that she would consider a public school placement for the 2010/2011 school year if her daughter's could succeed and it would meet the needs of her child, but would have to discuss it with her husband. She considered the Department’s placement, however, when she saw that it was an older class and would not meet her child’s needs, she decided to send her to . When questioned about signing the contract at prior to visiting the proposed placement, she answered on page 113, that the contract which was signed by her husband was fully refundable and if they decided to send to public school.

Ms. testified that when she visited the recommended school she was escorted by the assistant principal, Mrs. and taken to an eighth grade class as opposed to a seventh grade class. Mrs. stated that would be in grade class. Clearly, the Department failed to provide for 's special education needs; the Parents convinced me that they would consider a public school and that if the Department recognized her year lag in reading mandated small class setting such as an rather than ratio.

The IDEA is clear in its intent and purpose to provide children with educational programming and services that will help them achieve self sufficiency and progress towards the general education curriculum. I find that the Department failed to offer a FAPE and order as follows:

I find that an award of reimbursement should be reduced by the percentage of religious instruction provided to the student at the unilateral placement selected by the Parent. As there is one class each day out of a total of 9 periods, this would translate to an reduction in the amount that the Department would be obligated to pay. Dated: January 5, 2012

_______________________________

Impartial Hearing Officer

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 Impartial Hearing Request, 10/7/10, 3 pp. A1 Amended Hearing Request, 6/23/11, 2 pp. B Letter Notice, 8/27/10, 2 pp. C C1 Final Notice Recommendation, Undated, 1 p. D Contract, 8/17/10, 2 pp. E Class Schedule, 2010-2011, 1 p. F Affidavit Letter, 11/29/10, 1 p. G Parent’s Visit to School, Undated, 1 p. H NYC IEP, 2/5/10, 14 pp. I Classroom Observation, 1/20/10, 2 pp. J Evaluation, Undated, 12 pp. K Realty Test, 5/3/11, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 2/5/11, 14 pp. 2 Observation, 1/26/10, 2 pp. 3 Evaluation, 1/19/10, 12 pp. 4 Teacher Report, 12/1/09, 1 p. 5 Teacher Report, 11/18/08, 1 p. 6 Final Notice of Recommendation, 8/5/10, 1 p.