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: November 29, 2011

December 2, 2011

January 6, 2012

January 13, 2012 Actual Record Close Date: March 1, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2011

Attorney — Student

Parents

Associate — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011

Attorney — Student

Parents

Advocate — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2012

Attorney — Student

Parents

Associate — Student

Attorney — DOE

School (via telephone) — DOE

Director of Special Education Enrollment (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2012

Attorney — Student

Associate — Student

Parents

Director- School (via telephone) — Student

Special Education Teacher- School (via telephone) — Student

Attorney — DOE

Director-Office of Student Enrollment (via telephone) — DOE

An impartial hearing was held on November 29, December 2, 2011, January 6 and January 13, 2012, pursuant to the Individuals with Disabilities Education Act (IDEA). A pendency order was issued December 1, 2011pusuant to the parents’ request. All timelines were extended to accommodate the witnesses’ testimony and closing briefs.

BACKGROUND

The student is a year old boy, who is . He attends the School ( ) a New York State approved school, in the grade. The parents requested this hearing seeking a Nickerson letter, a deferral to the Central Based Support Team (CBST) for placement at the School or tuition reimbursement for tuition at the school. The parents are alleging that the April, 2011 IEP contained multiple procedural and substantive errors, thereby denying the student a “free appropriate public education” (FAPE).(Exh.1) The Department of Education (DOE) is defending its IEP program.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s first witness was , a licensed and certified New York State school psychologist. Her duties require her to conduct evaluations, manage cases, meet with parents and participate at IEP meetings. She testified that she participated at the student’s April, 2011 IEP meeting. She described the various things that she did in preparation for the meeting and identified the documents that she reviewed prior to the meeting.(Tr. 7173; Exh. 3)Next, the identified the attendees at the meeting. Also, she discussed the student’s areas of and explained how the recommendations noted on the IEP were designed to target his and them. The commented that the best way to deal with the in , and skills was to encourage his behaviors. It was critical to him and him because once the student and , he may his .(Tr. 77-79)

She reviewed and discussed the goals which were provided by his based on the provider’s observations and the teacher’s comments. Everyone agreed that the goals were appropriate to address his . She reviewed the rest of his goals, identified who recommended them and identified the they were targeted to remediate. She explained the other programs considered and rejected. The School was too restrictive, it provided no access to general education peers. Next, the team considered a school, it was rejected because the student did not present with and . A 12-1-1 placement In a community school was the next option on the continuum. His and could be met in a special class, situated in a general education environment. Hearing education services were recommended to address his and a of to help him with his . (Tr. at 79; 83-85 and 86-87) (Exh. 3) She discussed the accommodations to be provided for the student for assessments and promotions. (Tr. 87-89)

On cross examination, she stated that she had access to the file prior to the meeting and that she contacted the mother to let her know that she would be handling the student’s IEP since he was attending school in and not in the . She recalled that a evaluation was done in March, 2011 and that she personally conducted an observation of the student at his school. There was neither a or conducted, the observation was not submitted as part of the record. However, she mailed the parent a copy of the evaluation and observation prior to the IEP meeting. The recalled that the special education teacher at the meeting was working full time for the CSE and fully participated in the meeting. ( Tr. 93-95 and 96-98)

She acknowledged that the student had to repeat grade and was approximately and a years . Both the parent and the School participants recommended that he continue at his current school. During her observation, there were adults in the room. She opined that the student needed a full time setting for his core subjects and could participate with general education students for the remainder of his educational program.(Tr. 103-105 and 109-110) She admitted that no general education teacher was present to discuss how he would perform outside of the setting . She noted that she had the authority to defer the matter to the CBST without conferring with a supervisor. (Tr. at 111 and at 114)

Next, the DOE called , the Director for special education and general education enrollment for the borough of the . Her office handles all admissions and enrollment in the She testified that a seat was available for the student in for the 2011-12 school year. (Tr. 136-139) On cross examination, she stated her office received an email from the CSE regarding the availability of a seat for the student in his home zoned school. She testified that she did not know anything about the proposed class’ profile, the related services at the school or specifically the program at the school. (Tr. 143-144)

THE PARENTS’ CASE

The parents called as their first witness; she is the Director of the school that the student attends. She has a permanent New York State (NYS) certification in general education and special education. Her duties require her to hire teachers and teacher assistants, develop curriculum for them and supervise them. In addition, she participates at all IEP meetings, is a member of the admissions committee and makes sure that the students with IEPs are receiving mandated services. There are students in the school, through grade, most are as . (Tr.148-151) She discussed the qualifications of her teachers and teacher assistants. The teachers are all NYS certified to teach special education students. The assistants must be graduates and must pass a NYS competency test and receive a teacher assistant certificate. (Tr. 152-153)

The are grouped in their classes based primarily on their abilities in reading and math. She placed the student in his current class because there were in that class, of which were . The classroom provides a rich environment. The teacher works closely with the provider and incorporates the work into the classroom. The student is receiving all of his mandated related services in her school. All of the providers are NYS licensed and certified. She has observed the student in class, he is and in his class. The student is and does not present with any . She opined that the class was appropriate for the student because of the small class size, the student population is predominantly . The classroom teacher is able to provide him instruction, on an as needed basis. Also, his class has a adult in it. There are team meetings with the teachers and providers, regarding each student. (Tr. 154-156 and 157-159) She noted that the curriculum follows national standard. The student does participate in state assessments and is provided with accommodations. (Tr. 160-161) The classifications of the other students are, are other , is and are .(Tr. at 164)

testified that she is the student’s teacher; she teaches him in all of his core subjects. She has other students in the class, the school has a NYS variance to have a in the class. There are boys and girls in the class. Students are grouped on reading levels, math levels and social skills. Reading levels in the class range from to grade in comprehension, oral reading levels are about grade. The math levels range from to grade. The student in reading, math and socially. (Tr. 169-171 and 172-173) She discussed some of the student’s , in math his skills are at a . He needs and to stay on task. His math skills vary from to early grade level. are on an level, his comprehension skills are .

His are that he is a motivated student, however, when he is not able to follow the task, he very . He with and . She has her assistant work with him closely, to give him and to . He works well with the system. When the student becomes , he either or he will have and or or . (Tr. 175-177 and 178-179)

When the student support, the is available. He has a , which he uses most days. He is about the . She supports and encourages him to use it. He is improving in his use of the .( Tr. 181-183) The teacher stated that she communicates with all of his providers. A lso, there are formal and informal meetings with the providers. She testified that she is able to meet his academic management needs, provide small group instruction. She is working on his goals and objectives as set forth in his IEP and provides accommodations for tests. (Tr. 186-189; Exh. 3) Ms. described what a typical day in school consists of regarding subjects covered and strategies to assist the student to stay on task. She discussed his progress report, the student continues to with routines and instructions as well as assignments. Often times, she will have the teacher assistant sit with him during some periods to keep him on task and place him in the smaller group. The student and every academic period.(Tr. 190-192; 193-195) (Exh. B)

She discussed his academic performance in his core subjects and the importance of placing him in a small group with or other students. The small group setting helps him to stay and , without it, he would get . ( Tr. 198-199) She opined that if he were in a class setting he would become . He is making academic progress in each of his subjects due to the extra support he gets. Also, he is making with his and . He has learned to his out as opposed to at . She stated that she is able to address his and opined that he is appropriately placed. (Tr. 204-206)

Ms. reviewed the IEPs of the other students in her class, they were and a grade level, as was the student. The classifications of the students were are , are , was and students are classified as . She noted that all of the students participated in the statewide assessments. The student is receiving spelling words on a grade level, he is reading from a book on a grade level and his are approaching a . His math skills are on a level. The student does not have any opportunity to interact with general education students because the school is a special education school. (Tr. 211-213 and 214-216) The teacher reviewed the student’s IEP; she found the to be appropriate, as well as the goals for each of them. (Tr.229-231 and 234-235)(Exh. C)

The mother described her son’s educational background. He has been in a special education program since ; he was in an program. The student attended school from through the grade; he was in grade. The student has a in his ; he is and . year in school was for the student. She was in with his school; the school decided to offer him resource room. However, the resource room was provided sporadically as were his . The school was ; he would be pulled out for his related services at any time during the day and thereby on his academic instructions. There were no makeup sessions. He would come home and not be able to do his homework. He , and . (Tr. 238-240 and 241-244)

She described her son as an who needs and with . Reading has always been a for him and since he started at his current school he has developed some with reading. The he has made in reading has made him about it. Her son is now able to what he covered in class on any day and his . She stated that the April, 2011 meeting took about minutes and it appeared to her that the CSE had already made a decision. She was not given an opportunity to voice her opinion or discuss her son’s educational needs. She discussed the evaluation that was done in March, 2011. She was not requested to give her consent, was not informed of the evaluation until the day that it was conducted. She was not provided with a copy of the evaluation nor the observation prior to the April meeting. There was no discussion of the evaluation at the meeting.(Tr. 245-247 and 249-251)

The School advocated continuation of his program at their school as did the mother. The meeting closed with the CSE’s recommendation for a placement. She discussed her May, 2011 letter sent to the CSE expressing her concerns regarding the program and noted that she was available for another CSE meeting. She never received any response to her letter. The final notice of recommendation (FNR) dated July 22, 2011 was for placement at . The FNR did not identify the related services he was supposed to receive. (Tr. 252—254; 255-256 and 257-258) (Exhs.3,5,9 and 10)

After receipt of the FNR she wrote another letter informing the CSE that she disagreed with the program and placement. She indicated that she would at the School and would exercise her due process rights. She has seen in his reading this year. He is able to , if something him or im Tr. at 259)(Exh. 11

On cross examination, she recalled being given a Nickerson letter last year because the proposed placement at did not have a special education class for him. She acknowledged that she and the school staff were given an opportunity to express their concerns. She stated that the was appropriate because with adults her son can get the and he needs in order to progress. She admitted that when she wrote the May, 2011 letter that she intended to send her son to the School. (Tr. 269-271; Exh.9) The mother testified that she has had no discussion with the school regarding tuition costs if she should not prevail. (Tr.at 289)The mother revised her previous statement regarding that the was in a special education class from through grade. He was in a general education class and received related services. The first special education class he attended began at the School in September, 2010, third grade.(Tr. 293-295)

FINDINGS OF FACT AND DECISION

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized educational program. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a with a Disability, Appeal No. 04-043).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a with a Disability, Appe al No. 04-046; Application of a with a Disability, Appeal No. 02-014; Application of a with a Disability, Appeal No. 01-095; Application of a Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). If a student’s behavior impedes his or her learning or the learning of others, the CSE must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” when developing,, reviewing and revising an IEP ( 20 U.S.C. §1414[d][[3][B][i]; see 34C.F.R. §300.324[a][2][i]; 8 NYCRR [d][3][i]).

The burden of persuasion in an administrative hearing challenging the IEP is on the party seeking relief. Schaffer v. Weast, 126 S.Ct 528,537[2005] In New York, it is the local educational agency (the DOE) that has the burden to establish that it appropriately ascertained the ’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Bd. Of Educ. v. Rowley, 458 US 176, at 205[“the importance Congress attached to these procedural safeguards cannot be gainsaid”]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 US at 206; M.S. v. Bd. Of Educ. of the City of Yonkers, 231 F.3d at 102).Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129[2d Cir. 1998]) These detailed procedures “lie at the heart” of the statute ( Evans v. Bd. Of Educ. of the Rhinebeck Cent. Sch. Dist., 930F. Supp.83, 93 [S.D.N.Y. 1966]) They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 24 [S.D.N.Y. 2000]; Evans, 930 F.Supp. at 93. Under the IDEA, if a procedural violation is alleged, an administrative 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 , 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]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]).

In the instant matter the parent alleges that the DOE committed a number of procedural and substantive violations. The records shows that this student has been receiving special education services since . He attended public school from the grade through the grade. He was the grade. He was in a general education class with resource room being provided sporadically; the student . The mother noted that because of his he developed . The mother recalled going to school with her son for the entire grade and helping him in the classroom, he required .(Tr.240-243 and 244-

245) Ms. , his current teacher testified that he with and ; she has her assistant work closely with the student providing him with a substantial amount of instruction. The student requires constant review and praise to stay on task.(Tr. 176-178; 194-195) The student is making academic progress in all of his subjects and has learned to .(Tr. 205-206)

The CSE convened an IEP meeting on April 27, 2011; they recommended a special class in a community school with a staffing ratio of and related services. The student’s IEP, indicates under academic management need that he requires “ and , small group or instruction…full teacher support in the beginning of a which is as he and …”(Exh. 3)(Tr. 77-78) The - evaluation revealed the student suffers from and arising from what he perceives “… as academic performance and peers.” (Exh. 5) In addition, the student is about using the in the classroom which helps to compensate for his in . (Tr. at 182 and at 246) Ms. , the school explained that the reference to groups and was based on the students and the teacher walking around assisting students on a one to one basis. She explained that she did not recommend the School because it was ; it did not offer any opportunity for mainstreaming. She opined that the student’s and delays did not warrant such a restrictive class setting. (Tr. 109-110 and at 114)

The testimonial and documentary evidence clearly establish that a class setting was not appropriate for the student. The record is replete with testimony and documentation showing that this student is , , even in his current setting; however, he is . The student requires a significant amount of instruction to make any progress; he requires and on . The proposed class does not afford him any real opportunity for individual instruction since there are eleven other students that the teacher must attend to. Moreover, this student is not at the point where he could for any length of time due to his and . It is apparent that the student needs a small, structured and nurturing class setting in order to progress.

The DOE failed to have a general education teacher present at the meeting, which is significant since the student was going to be mainstreamed in his non-core subjects. Ms , director of special education enrollment was not able to confirm that there was a seat available for the student at the beginning of the school year. She was only able to state that “Per the current policy, the school should be able to accommodate the , for the current IEP.” Tr. at 143) She was not able to provide a profile of the class. I find based on the totality of the aforementioned substantive and procedural violations that the DOE has failed to provide this student with a FAPE. The school selected by the parent has developed a program to meet his , and . In sum, the parent’s placement at the School is an appropriate placement and the equities requirements weigh in favor of the parent.

ORDER

The Department of Education is directed to continue funding the tuition at the School for the 2011-2012 school year. Dated: March 12, 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 IEP, 1/6/11, 13 pp. B Progress Report, School, 10/27/11, 7 pp.

DEPARTMENT OF EDUCATION

1 Petitioners Complaint, 9/2/11, 2 pp. 2 Due Process Response, 9/12/11, 4 pp. 3 IEP, 4/27/11, 18 pp. 4 Omitted 5 Evaluation, 3/3/11, 5 pp. 6 Omitted 7 Omitted 8 Goals, Undated, 2 pp. 9 Letter from Parent to CSE, 5/25/11, 1 p. 10 Final Notice of Recommendation, 7/2/11, 1 p. 11 Letter from Parent, 1 p. 12 Certification, 12/2/11, pp. 13 Final Notice of Recommendation, 9/10, 2010, 1 p. 14 Letter to the Parents of , from the Committee on Special Education One, 12/13/10,