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: January 17, 2012

Actual Record Closed Date: January 17, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012

Mother — Student

Father — Student

Attorney — Student

Clinical Coordinator (Via Telephone) — Student

Teacher (Via Telephone) — Student

Counselor (Via Telephone) — Student

Pathologist (Via Telephone) — Student

Reading Specialist (Via Telephone) — Student

District Representative — DOE

Principal (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

Psychologist (Via Telephone) — DOE

The parent by their advocate requested an Impartial Hearing on September 20, 2011. The parent is represented by Esq. The District was represented by . I was appointed on September 20, 2011. Two hearing dates, November 17 and December 20 were adjourned at the request of both parties. A motion to extend the compliance date was granted. The hearing was held on January 17, 2012.

The student’s date of birth is He is classified as . He currently attends the . The parents are challenging the IEP dated June 9, 2011. The parents request tuition reimbursement for the for 2011 – 2012 and reimbursement for private evaluations.

The student attended grade at . For grade, he attended (school year 2010 – 2011) in a collaborative team teaching, general education students and special education student with one general education teach and one special education teacher. The principal, Ms. recommended that the student repeat the grade. (T.

21) The teachers indicated to Ms. that the student was grade level in all areas for several months. (T. 13) Ms. , the student’s teacher testified that the student was below grade level in reading, writing and math. The student . (T. 30) In October/November 2010 the student was in , . (T. 33) Ms. the Education teacher testified that in October 2010 the student was . (T. 45) The student found math a big challenge and he . (T. 45) Paraprofessionals would sit with the student throughout the day even though they weren’t assigned to him to help him read and clarify. (T. 46)

Dr. , the school psychologist testified. Shortly after the student came to the school in the second grade, Dr. , other providers and the principal had several meetings with the parents to discuss a different placement for the student. The parent indicated that she wanted an evaluation of the student. (T. 53, 54) Based on all the information provided and the , the student was closer to . (T. 54) The IQ testing from the private evaluator, Dr. that the student was about on the . (T. 55) Dr. indicates that he is areas. However he was closer to the level when he was tested at the grade. The student was about across the different areas, including reading, math, spelling and writing. (T. 57) Dr. testified that he believes the and . (T. 60) The teachers have been trained in a and some techniques to work with students such as this. (T. 64)

The district’s school psychologist Dr. performed a on May 19, 2011. Dr. reviewed Dr. . He states that Dr. indicates the student was of but showed significant academic delays which is in contrast to the student’s prior evaluation dated February 2010 that the student was . Dr. observed the student in his classroom and found that the student did only a and had to be . The student was , . The teacher told Dr. that the student is . He , who . Dr. states that the student is level, his . Dr. recommends a setting . (Exh. 3) Based on the testing and also that the student and , a recommendation of a in a would address the . (T. 57, 63)

The IEP dated June 9, 2011 recommended a class in a community school, twice a week for thirty minutes in a group of , once a week for thirty minutes in a group of ; twice a week for 30 minutes, once in a group of and once in a group of for the 2011 – 2012 school year was. The IEP recommends the following testing accommodations: extended time (1 ½) for all tests exceeding 40 minutes, testing, in a separate location with no more than students, directions read and reread aloud, excluding tests that assess reading comprehension and questions read and reread aloud, excluding tests that assess reading comprehension. (Exh. 7)

, testified. At the present time there are students in grades three through eight. (T. 67) The classes are a staffing ratio. (T. 67) The annual tuition is $ for a ten month school year. (T. 68) The student attended on the first day of school, September 8, 2011. Ms. testified that she did not consider holding the student back in the second grade because the program is geared to address the learning needs to ameliorate the deficits in of would [not] benefit him and . (T. 70) The student is in a third grade class in a ratio. He receives twice a week for 30 minutes, once in a ratio and once in a ratio. (Exh. I-4) The student receives services twice a week for 30 minutes in a ratio and ratio. (T. 147) The student also received reading twice a week for 45 minutes. (Exh. I-1, T. 116) All classrooms are conducted in a style of teaching. (T. 71) Ms. testified that the student needs , and he’s beginning to make .

(T. 73)

, the student’s grade special education teacher at testified. The student has a . He has as well as . He has as well as comprehension of information. (T. 86) The student requires a great deal of , (T. 86) , , and . (T. 87) The a week, . (T.

87) Ms. testified that she has taken workshops from the author of PAF, Preventing , which is based to . (T. 88) The student has made . At the beginning of the school year the student was . He came to level. He is now level. (T. 90) The student’s math level is at a . (T. 92) The student’s writing level when he came to was beginning to mid level. (T. 96) He is now on a level. (T. 93)

The student is functioning on a level. (T. 105) Ms. testified that the student needs a 12 month program. The student has regress over long weekends. (T. 103, 104)

The parents obtained Evaluation by Dr. . The evaluation was admitted into evidence. The evaluation dates were March 2, 9, 18, 2011. Dr. states in his report that “Soon after [the student] began school this past fall, it is reported that the administration had wanted to place him in a class. However, his parents declined.” (Exh. C-1) In Dr. ’s Summary and Recommendation, he states that the , with . The the student’s which he describes as . The student has as well as , processing. The student has , , particularly if it’s . The students are although he has week . Dr. finds that the school’s proposal that the student repeat grade “…does not seem to be appropriate in considering the difficulties he has and their underlying .” Dr. states that placing the student in a class is not appropriate. Dr. recommends a smaller, highly adaptive and individualized as well as supportive, so as to accommodate his . The program should be geared towards students with , of and manage the both in adaptation in the classroom as well as appropriate instructional methods and materials of a . Instruction needs to be individualized to suit the student’s rate of learning and need for reinforcement as well as accommodate the student’s . (Exh. C-6)

The student’s report card for the 2010 – 2011 school year has four levels for grading: 1 – far below grade level standards; 2 – approaches grade level standards; 3 – meets grade level standards. The student’s received the following grades: Reading Overall grade ; Writing Overall grade ; Listening and Speaking overall grade ; Mathematics overall grade ; Science overall grade ; social studies overall grade ; art, physical education technology and music overall grade . (Exh. 4-1)

The student had an Processing Evaluation dated February 9, 2011. The Summary and Recommendations were as follows: peripheral hearing within normal limits. The student had and a . A repeat of the test was suggested when the student . A recommendation for , , , , ratio; study guides; visual supplementation of information, homework in written form, system for , , phonemic awareness multisensory approach, . (Exh. B)

DISCUSSION

A board of education may be required to pay for educational services obtained for a student by the student's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]).

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.

Both the School District and the Parent have chosen the same program of a small class with a teacher – student ratio of 12:1:1. (Exh. 7, T. 67) However, the District’s recommendation is in a community school, whereas the Lowell School has no general education students. (T. 112, Exh. 7)

Both the School District and the agree that the student is grade level and his math ability is . (Exh. 4-12, 7-1, Exh. H, Exh. C, Exh. 3, T. 90, 92, 118, 135) However, the District recommended that the student because his level. The recommended that he enter . Coordinator testified grades (T. 67) The Coordinator’s testimony regarding the student’s appropriate class as the is disingenuous. Furthermore, the student’s current special education teacher in testified that the student is currently reading on a , writing on a and his math except for computation, which is on a . (T. 90-105). There was no testimony or evidence submitted that this student is capable of doing reading or mathematics.

The Parents’ contend that the IEP is inappropriate because the student’s instructors need to use the and that he needs additional reading services, specifically twice a week for 45 minutes one to one to address the . The District’s IEP recommends that the student receive eight periods of reading per week. (Exh. 7) Dr testified he agreed that the student is and that the special education teachers used both the and Wilson reading methodology. (T.67)

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 special class ( ) in a community school where there could be opportunities to be with the general education population. There was no testimony or documents admitted indicating that this student could not be mainstreamed with his peers for gym, lunch, recess and perhaps other subject areas such as art.

The District has met their burden in recommending that the student repeat second grade, in a program in a community school. 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 appropriateness of the Lowell program selected by the Parent or equitable considerations (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).

At the Impartial Hearing there was testimony regarding a 12 month program. However, the Impartial Hearing Request (Exh. 1) has no such request and a modification of that request was not made. (Exh. 1.6) Therefore, I need not address this testimony.

The parents have requested reimbursement for private evaluation. The Code of Federal Regulations § 300.502 provides in relevant part that the parents have the right to obtain an independent education evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.

The Parent testified she disagreed with the placement and not the evaluations. She wanted to obtain private evaluations. (T. 163) There was no testimony that the parent disagreed with the School District’s evaluation and requested new evaluations. No evaluation prior March 18, 2011 was submitted into evidence. There is no basis to award reimbursement for the parent’s independent educational evaluation.

IT IS HEREBY ORDERED that the parent’s requests are denied. Dated: January 24, 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 DESCRIPTION

B Evaluation, 2/9/11, 6 pages C Evaluation, 3/18/11, 10 pages D Parent Correspondence to CSE, various dates, 8 pages E School Contact Sheet, 3/31/11, 1 page F Proof of Payment Checks, 4 pages G Report Card, Q1, 2011-12, 1 page H DOE Report Card, 2010-11, 2 pages I Progress Report, 12/2011, 9 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 Impartial Hearing Request, 9/19/11, 8 pages 2 Final Notice Letter, 6/8/10, 2 pages 3 ed Update, 5/9//11, 4 pages 4 IEP, 3/17/11, 14 pages 5 IEP, 3/22/10, 18 pages 6 IEP Attendance Sheet, 3/17/11, 1 page 7 IEP, 6/9/11, 15 pages