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: September 23, 2012

February 21, 2012

April 20, 2012

May 22, 2012 Actual Record Close Date: June 13, 2012 Hearing Officer: Robert L. Nisely, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 23, 2011

Advocate — Student

Parents

Parents

CSE Representative — DOE

School Psychologist — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 21, 2012

Advocate — Student

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 20, 2012

Advocate — Student

Parents

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 22, 2012

Advocate — Student

Parents

Parents

Private School Teacher (via telephone) — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 20, 2012

Advocate — Student

Parents

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 22, 2012

Advocate — Student

Parents

Parents

Private School Teacher (via telephone) — Student

CSE Representative — DOE

INTRODUCTION

On February 9, 2011, the New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)](“IDEA”) by the parent (Parent) of the (Student). The Parent requested the hearing by filing a due process complaint with DOE on February 8, 2011.

BACKGROUND

The Student was and resides in District (Parent C-1). The Individualized Education Program (IEP) for the 2010-11 school year classified him as (Id). At the hearing, the parties stipulated that the classification was not in dispute (T. at 157). During the 2010-11 school year, the Student attended ), which is located (Parent B and H).

Before discussing the testimony and evidence presented at the hearing, I shall give a brief overview of the Student’s learning problems.

On March 23, 2009, a licensed psychologist at ., which is located , conducted a evaluation of the Student (DOE #2-1). As part of this evaluation, he administered the WISC-IV, WIAT-II and the Rorschach Inkblot test (Id).

Based on the results of the WISC-IV, the psychologist found that the Student placed in the in verbal comprehension and perceptual reasoning (DOE #2-2). The Student’s cognitive functioning was with most other children his age,” he observed (Id).

However, the results of the WIAT-II test, which measured the Student’s actual levels of academic performance as opposed to his innate abilities, presented a different picture. These results showed that the Student’s academic functioning ” in reading and ” in mathematics (Id). The Student had ,” the report’s author concluded (DOE #2-3).

The report cautioned three times, however, that the Student’s academic delays had to be interpreted in light of the fact that, at the time of testing, he was only receiving instruction in Hebrew, not English (DOE #2-1,3,4).

. also conducted and (OT) evaluations at approximately the same time as the psycho-educational evaluation (DOE #4,5). The pathologist concluded that the Student had “ ” and recommended that he continue to receive therapy (DOE #5-3,5).

The concluded that the Student’s gross motor, fine motor and visual motor integration skills were normal, but to address his (DOE #4-2).

On June 16, 2010, the Committee on Special Education (CSE) convened to prepare the Student’s IEP for the 2010-11 school year. The Parent participated in the meeting by telephone (Parent C-2).

The CSE recommended that the Student be placed in a general education class with special education support services (SETSS) (Parent C-1). The IEP provided that the SETTS class would have a student teacher ratio of no more than and meet 5 days a week (Parent C-11).

The CSE also recommended that the Student receive one day a week for thirty minutes in a group of three; two days a week for thirty minutes in a setting; and therapy two days a week for thirty minutes in a group of (Parent C-13). In addition, the IEP mandated that the Student receive special testing accommodations, including and a (Id).

In the “Academic Performance and Learning Characteristics” portion of the IEP, the CSE took note of the results of the WISC-IV test discussed above. In addition, relying on the results of a Woodcock-Johnson II test administered in June 2010, it found that the Student’s reading skills were at a level, but added that his mathematical skills were “ ” (Parent C-3).

The CSE explained that it had rejected a general education class without support services because such a placement would not have addressed the Student’s current delays (Parent C-12). On the other hand, the CSE stated that it had rejected an integrated coteaching class because it would have been too restrictive (Id).

On February 8, 2011, the Parent filed a due process complaint with DOE, challenging the IEP on a variety of procedural and substantive grounds (Parent A). As a remedy, the Parent demanded that DOE reimburse her for her tuition expenses at the private school for the 2010-11 school year. She also demanded that DOE provide the Student with bus transportation to and from the (Parent A-3).

DOE CASE

DOE’s first witness was , who is employed by DOE as a bilingual school psychologist and holds a Master’s degree from Touro College (T. 11-12, 38).

Ms. testified that she observed the Student in class at the private school for 45 minutes in June 2010 and attended two of his IEP meetings (T. at 14). She also explained that she administered the Woodcock Johnson Test of Academic Achievement to the Student prior to the CSE meeting, because the last psychological evaluation had been done in 2009 and she wanted to know “how he’s doing right then and there, academically” (T. at 18-9).

After acknowledging that she did not prepare a “classic report” concerning the test results, she explained that she incorporated the results on page 3 of the IEP (T. at 19).

She described the Student as falling into the “ of [intellectual] potential” (T. at 27). She also opined that he did not have , but did have delays in decoding and other academic areas (T. at 28,35-6). However, she explained that the ” when considered in light of the fact that the Student had only been receiving English instruction for two years at the private school (T. at 36).

Concerning the June 2010 CSE meeting, Ms. testified that the Parent participated by telephone, but none of the Student’s teachers at the private school were present, although the school had been invited to send a representative (T. at 24-5). She added that the CSE asked the Parent whether she was willing to continue without a representative from the school (T. at 25).

Ms. also acknowledged that a parent member was not present, but explained that the Parent was asked if she was willing to proceed without a parent member. Although she could not recall the Parent’s precise response, she observed that the meeting would not have continued if the Parent had objected (T. at 25-6).

On cross examination, she testified that the general education teacher present at the CSE was not currently teaching and that his primary responsibility was to attend CSE meetings (T.at 39-40). She reiterated that a private school teacher was invited to the CSE meeting, but she could not recall how the invitation was extended (T. at 43).

She explained that she conducted the Woodcock Johnson test because she did not have any reports from the Students special education teachers (T. at 45). She also acknowledged that a social history was not done prior to the meeting (Id).

DOE’s next witness was , who testified that she holds a special education license from NY State and has worked as a special education teacher at for 4 years (T. at 51-2). She described SETSS as a small group setting consisting of 8 children at a maximum (T. at 53). She explained that children benefitted from SETSS instruction because, among other things, the classes are small and the classroom teacher and the SETTS provider are able to collaborate with each other (Id.). Ms. noted that SETSS would have been available to the Student at in the 2010-11 school year (T. at 54). She also pointed out that a and would have been available to provide the related services (T. at 55). On cross examination, she testified that a typical second and third grade class would comprise 25 to 27 pupils and only one teacher would be in the room (T. at 56-7).

PARENT’S CASE

The Parent testified that her son had attended religious schools through the grade (T. at 76-7). She placed him in the for the 2009-10 school year, she explained, because he was “ ” at the religious school he had been previously attending (T. at 79). The Parent testified that she choose the private school, because it had a program (T. at 80). She described the program as a “small setting” that allowed children to “learn on their own level” (Id). The Parent observed that her son has (T. at 85). She added that, during the 2010-11 school year, she paid out of her own pocket (T. at 87). Concerning the June 16th CSE meeting, the Parent testified that she attended via telephone (T. at 82). She quoted the school psychologist, , as saying at the meeting that the Student’s “delays were okay” because he had not received English instruction before he started attending the private school (T. at 83). The Parent disagreed with this opinion, arguing that the Student has “delays in all areas of learning” (T. at 85). The Parent testified that the Student had “made a lot of progress” during the 2010-11 school year, which she attributed to the small school setting and the school’s teaching methods (T. at 88-9). She also declared the DOE’s recommended program was inappropriate, because there “would be “too many children” in her son’s class (T. at 90). On cross-examination, the Parent acknowledged that the private school is not able to provide related services (T. at 106). She has been able to obtain for the Student, but is still trying to find an , she explained (T. at 98). She further testified that she had observed a public school class, but could not recall if she had ever spoken to a SETSS provider (T. at 102). She would consider a public school placement if it were appropriate, she asserted (T. at 104). The Parent’s only other witness was , who testified that she holds a Master’s degree in Middle School to Adolescent Education and has been certified as a teacher since 2006 (T. at 123). She is currently employed by the as a lead teacher and was the Student’s lead teacher in the 2010-11 school year (T. at 124-5). Ms. described the as an , in which the children learn in small groups and receive systematic follow-up instruction (T. at 124, 124). The school also uses manipulatives and concrete materials as teaching tools, she added (T. at 124). She testified that the Student’s class in 2010-11 consisted of thirteen children and that she was the only teacher in the classroom (T. at 127). However, she also pointed out that the Student received instruction “almost every day” and spent two hours a day in a small group of three to four children (T. at 136, 151). Ms. testified that when the school year started, the Student was functioning at a second grade level in language arts (T. at 125). The Student also displayed uncaring and avoidant attitudes towards his work, she observed (T. at 126). She declared that the Student had made progress during the school year, noting that he had begun to in class and had improved his decoding skills by “leaps and bounds” (T. at 135). She also opined that the Student needed a small class and that the private school was an appropriate placement for the 2010-11 school year (T. at 129, 135). However, on re-direct, she testified that the DOE’s proposed placement of the Student in a general education class with five periods of SETSS per week would also have been appropriate for him and would have provided enough support (T. at 150). On cross-examination, Ms. acknowledged that she was not a certified special education teacher and that the Student did not receive and at the (T. at 139-142). She also testified that four children in the Student’s class had IEPs and that the age range for all of the children in the class was seven to ten years (T. at 146, 148). In response to questions posed by the IHO at the end of her testimony, she pointed out that the has a total enrollment of ninety-six children, who range in age from three to twelve years (T. at 154). She also testified that the Student received therapy twice a week for thirty minutes per session during the 2010-11 school year (T. at 155).

FINDINGS OF FACT AND DECISION

This is a tuition reimbursement case and is, therefore, governed by the three-prong test enunciated by the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). The first prong of this test requires me to determine whether DOE offered the Student a Free and Appropriate Public Education (“FAPE”) for the 2010-11 school year. Under state legislation enacted in 2007, DOE bears the burden of proof on this issue (Chap. 583 Laws of 2007). The Supreme Court has held that the standard for determining whether an IEP provides a child with FAPE is whether it is “reasonably calculated to enable the child to receive educational benefits.” (Westchester Cty. v. Rowley, 458 U.S. 176 (1982) [hereinafter Rowley]). After reviewing the evidence and testimony in this case, I find that the IEP at issue satisfies the Rowley standard, and that DOE has met its burden of proof in showing that the IEP provides FAPE. The IEP developed at the June 16, 2010 CSE meeting represents a considered and balanced approach to the . The proposed program would have allowed the Student to interact with typically developing children and obtain the benefit of a mainstream curriculum while receiving instruction from a special education teacher for five periods a week in a small classroom setting. I credit the testimony of Ms. the school psychologist, who opined that the Student did not have a ; his were “ ,” and children with his profile are generally placed in a general education class either with or without SETSS (T. at 28, 35-6). I also credit the testimony of Ms. , the special education teacher, who observed that the SETSS provider would have been able to “collaborate with the classroom teacher as to what skills the child is having a hard time attaining.” (T. at 53). Moreover, the IEP itself mandates that the general education teacher, SETSS provider and related service providers collaborate with each other (Parent C-11). In addition, the IEP would have provided the Student with therapy twice a week in a small group setting (Parent C-13). This therapy would have helped the Student improve his which the Parent herself identified as one of his major problem areas (T. at 85). It is true that the 2009 psychological evaluation found that the Student’s functioning was “ in reading and “ ” in mathematics (DOE #2-2). However, the report itself noted at least three times that the Student’s lack of formal English instruction may have affected his test results (DOE #2-1,3,4). In addition, the Parent herself acknowledged that the Student had not received any formal English instruction prior to entering the private school (T. at 84). Thus, the CSE had ample grounds for giving more weight to the views of the school psychologist, who had evaluated the Student more recently and found that the Student’s delays were “ ” (T. at 22, 36). I therefore conclude that the IEP would have conferred an educational benefit on the Student, since one can reasonably assume that the Student’s language delays would have decreased as a result of his greater exposure to English in the classroom and the specialized services that he would be receiving under the IEP. Bolstering this conclusion is the testimony of the Parent’s own witness, the private school teacher, who acknowledged that the DOE’s proposed placement would have been appropriate for him (T. at 150). The relevant portion of her testimony reads as follows:

“MS. The Department of Education recommended a general education class-

MS. : (Interposing) Mm-hmm.

MS. --with five periods of SETSS per week, meaning he would be pulled for one period a day, with up to eight children in the class. But the rest of the time, he’ll be in a general education setting.

MS : Oh, yes. I believe that would be appropriate.

MS. : You think that that’s enough support for him?

MS. Yes.” (T. at 150).

Before concluding, I shall address several specific objections to the IEP raised by the Parent in the impartial hearing request and at the hearing.

(1) The Parent alleges that the IEP was procedurally defective because no parent member was present at the CSE meeting (Parent A-2). However, the SRO has ruled that the mere absence of a parent member is not grounds for nullifying an IEP (App.

of the Dep’t. of Educ., Appeal No. 09-059). Further, the Parent has failed to show that the absence of the parent member contributed to any particular defect in the IEP.

(2) The Parent alleges that the IEP did not sufficiently describe the Student’s present level of academic performance (Parent A-2; T. at 157-8). However, my own review of the IEP shows that it contains a detailed narrative description of the Student’s academic levels, along with the scores from the Woodcock-Johnson III test administered by Ms. in June 2010 (Parent C-3).

Moreover, the parties in this case do not have any significant dispute about the magnitude of the Student’s deficits. Instead, the dispute centers on whether the IEP addresses those deficits in a way that complies with the IDEA.

(3) The Parent complains that the goals in the IEP are not specific, measurable and individualized to the Student (Parent A-2; T. at 158). However, I have reviewed the nine goals in the IEP and find that they provide specific and measurable metrics by which to evaluate the Student’s future progress (Parent C5-7). Further, the record does not contain any evidence that the Parent voiced any objection to the goals at the meeting.

Therefore, for all the reasons discussed above, I find that the DOE has met its burden of proof under prong 1 of the Burlington test. Accordingly, it is not necessary to address prongs 2 and 3.

ORDER

The Parent’s request for tuition reimbursement for the 2010-11 school year is denied and the due process complaint is dismissed in its entirety with prejudice. Dated: June 21, 2012

__________________________________

ROBERT L. NISELY, ESQ.

Impartial Hearing Officer

RLN: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 ON SEPTEMBER 23, 2011

PARENT

A Impartial hearing Request, 2/8/11, 5 pp. B Program Description, Undated, 1 p. C Department of Education IEP, 6/16/10, 13 pp. D Final Notice of Recommendation, 6/16/10, 2 pp. E Ten Day Notice, 8/18/10, 2 pp. F Progress Report, 2010-2011, 14 pp. G Class Schedule, 2010-2011, 2 pp. H Attendance Record, 2010-2011, 1 p. I Tuition Contract, 2010-2011, 1 p. J Notarized Affidavit, 5/5/11, 1 p. K Parent’s Proof of Payment, Various Dates, 6 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 2/16/11, 4 pp. 2 Evaluation, 3/23/09, 5 pp. 3 Social History, 3/6/09, 3 pp. 4 Therapy Evaluation, 3/23/09, 2 pp. 5 Evaluation, 3/22/09, 5 pp. 6 Classroom Observation, 6/7/10, 1 p.

IMPARTIAL HEARING OFFICER

I Notice of Appointment, 2/10/11, 2 pp.