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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 16, 2011
December 6, 2011
Record Close Date: January 18, 2012
Hearing Officer: Robert L. Nisely, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2011
Education Advocate — Student
Parents
District Representative — DOE
Assistant Principal (via telephone) — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2011
Advocate — Student
Parents
English and Math Principal — Student
District Representative — DOE
Assistant Principal — DOE
INTRODUCTION
On February 16, 2011 the New York City Department of Education appointed me to act as the impartial hearing officer (“IHO”) in a case brought under the federal Individuals with Disabilities Education Act (“IDEA”) [20 USC § 1415(f)(3)] by the Parent of (“the Student”) The Parents requested the hearing by filing a due process complaint with Department of Education (“DOE”) on February 15, 2011.
BACKGROUND
The Student was and resides in District in . On his Individualized Education Program (“IEP”) for the 2010-11 school year he is classified (DOE #1-1). Since 2008, he has (hereinafter the “ ”), which is a (Parent DOE # ).
Before discussing the specific issues in this case, I shall give a brief overview of the Student’s learning problems.
On October 5, 2008, a school at conducted a evaluation of the Student at the private school’s request (DOE #2). After administering the WISC-IV test, he found that the Student’s full Scale IQ (FSIQ) was which placed the Student in the (DOE #2-4).
The evaluator also administered the Woodcock-Johnson III test to determine how the Student’s academic achievements compared to his FSIQ. The test results revealed that his achievements in the areas of reading, spelling/written language and mathematics were “significantly” below the expected level (DOE #2-6).
In terms of grade levels, the report showed that the Student was two grade levels below expectation in reading; three grade levels in spelling/written language; and two in mathematics (Id). After describing the Student’s basic reading skills, sight reading skills and spelling as “negligible,” the evaluator concluded that the Student suffered from a “ ” (DOE #2-5,6).
On March 2, 2010, the Committee on Special Education (“CSE”) convened to consider the Student’s IEP for the 2010-11 school year. The Parent, a teacher from the private school and an educational advocate for the Parent participated in the meeting by telephone (DOE #1-2).
In the IEP developed at the meeting, the CSE changed the Student’s classification from learning disabled to (DOE #1-2). It also recommended that he be placed in an integrated co-teaching class and that he receive twice a week for 30 minutes in a group of three students. (DOE #1-1,12) The IEP also mandated that the Student be given extended time and a separate location for taking tests (DOE #1-12).
In the “Academic Performance and Learning Characteristics” portion of the IEP, the CSE noted that the Student was in a class at the private school and was making “significant progress” (DOE #1-3). Relying on an assessment provided by one of the private school teachers, the CSE described the Student as performing at a level in decoding, reading comprehension and computation and at a level in mathematical problem solving (DOE #1-3; DOE #6).
In the IEP, the CSE also explained that it had rejected a general education class with support services because the Student “presents with delays which warrant remediation” (DOE #1-11). However, it also rejected the more restrictive alternative of a special class, because, in the Committee’s estimation, the Student was performing “close to or at grade level” (Id).
On August 2, 2010, the CSE sent a Final notice of Recommendation (“FNR”) to the Parent, informing her that her son would be placed in a co-teaching class at a school located at 600 Kingston Avenue in Brooklyn, NY (DOE #4-3). The FNR identified the school by number, but not by name (Id). At the hearing, the school was identified as the (T at 85) [“hereinafter HR”].
On October 12, 2010, the Parent returned the FNR to DOE with a handwritten annotation declaring that she was re-enrolling her son in the private school, because “school personnel” had told her that “they do not have a Collaborative Team Teaching (“CTT”) class for my son’s grade” (DOE #4-2).
On February 15, 2011, the Parent filed a due process complaint with DOE, alleging that DOE “failed to draft an IEP that is reasonably calculated to allow her son to make academic, social and emotional progress” (Parent A-1). It also alleged that DOE “failed to recommend a school placement that had the appropriate collaborative team teaching class available” for her son (Id).
As a remedy, the complaint demanded that DOE reimburse the Parent for her tuition costs at the private school year for the 2010-11 school year. It also demanded that DOE provide the related services mandated in the “last IEP” or reimburse her for the cost of obtaining them on her own (Parent A-2).
DOE CASE
DOE’s first witness was , who testified by telephone that, during the 2010-11 school year, he had been the Special Education Coordinator at HR (T. at 8, 23). He holds a Bachelor’s degree from John Jay College in forensic psychology and an education degree in special and general education from C.W.Post (T. at 7). He is also licensed to teach special education (Id).
While acknowledging that he had never met the Student or his parents, he testified that CTT class available for the Student if his parents had chosen to enroll him at (T. at 15, 17-18). He observed that he would have been one of the Student’s teachers in the CTT class(T. at 15).
Referring to DOE Exhibit #3, Mr. pointed out that there would be 6 special education students in the class (including the Student) and their ages would range from 10 to 14 years (T. at 15, 17). Both a general education teacher and a special education teacher would be in the class room for English Language Arts and mathematics (T. at 23).
He also described some of the additional services that would have been available for the Student, including tutoring and academic intervention services (“AIS”) (T. at 20). The school’s counselors would have provided the latter service, he explained (Id).
He testified that in the CTT class “every lesson plan is differentiated” and includes visual, kinesthetic and audio components (T. at 21). The teachers also use manipulatives, he added, giving as an example the use of blocks to teach fractions (Id.)
Mr. also pointed out that could have provided the therapy mandated in the IEP, because it has a full time therapist on staff (T. at 14).
On cross examination, Mr. testified that 4 schools are located at 600 Kingston Avenue and each one has its own distinctive student uniform so that the students can be identified (T. at 24). In addition, he pointed out, the start times for the schools are staggered (T. at 26).
According to his testimony, the Student’s CTT classes for ELA and math would have had a total enrollment of 20-23 students (T. at 30). This number includes both the general education and special education students. The Student’s other classes, including social sciences, science and music would have been general education classes, he observed, and would also have had a student to teacher ratio of approximately 23 to 1 (T. at 31-32).
He further testified in response to a question from the hearing officer that the students in the CTT classes traveled “as a group” for all their subjects (T. at 36).
DOE’s second witness was , who is employed by DOE as a bilingual psychologist (T. at 42). She holds a BA in psychology, a Master’s in education and an advanced certificate in psychology with a bilingual specialization (T. at 41).
In her testimony via telephone, Ms. discussed the CSE meeting held on March 2, 2010, which she attended, noting that the Parent participated by telephone (T. at 44). She testified that in making its recommendations the CSE relied on various reports, including the classroom observations made by a social worker, who also attended the meeting; a report from one of the Student’s teachers at the private school; and a progress report from the therapist (T. at 46-7).
Concerning the CSE’s decision to change the Student’s placement from a special education class to a CTT class, she opined that placing the Student in a special class with lower functioning students would be inappropriate because he was “functioning at close to grade expectation” (T at 49).
She acknowledged that the Student’s advocate who attended the meeting wanted the Student to be placed in a “special education setting” (T. at 48). However, she pointed out that the advocate’s attention was drawn to the fact that the private school currently attended by the Student was a “General Education school” (T. at 48-9).
On cross examination, Ms. defended the change in classification from learning disabled to on grounds that that the “Student has a history of lack in formal instruction in English and language arts and math, and other subjects” (T. at 54). The Student “previously went to a school which taught Judaic studies only,” she continued, and had only been “formally taught” for two years (Id).
However, she acknowledged that DOE did not perform a new and evaluation and that the CSE relied on a progress report from the therapist (T. at 55). She also testified that the CSE’s information about the Student’s grade levels came from the Student’s private school teacher and that no independent evaluation was done (T. at 56).
When asked to review the DOE’s 2008 psychological evaluation (DOE #2), Ms. agreed that the report showed the Student performing below grade level in several areas
(T. at 66). However, she reiterated her opinion that the IEP would provide the Student with the LRE, because it placed him a general education environment while allowing him to receive “extra support’ from a special education teacher (T. at 67).
DOE’s final witness was , who is the Assistant Principal for supervision at HR
(T. at 78). Ms. holds a Master’s degree in education from Pace University (T. at 77). She testified via telephone.
Ms. briefly reviewed the special education programs and related services available at HR, including (T. at 78-80). She testified that all of the related service providers were licensed and certified (T. at 80).
She further testified that she had never met the Student (T. at 82). On redirect examination, she amplified this testimony by declaring that she had also never met the Parent (T. at 89).
On cross examination, she explained that three other schools were located in the same building as (T. at 83). She added that one of the schools included grades 6 through 12 and the other two were high schools (Id). Each school had its own floor and telephone number, she testified (T. at 84).
According to her testimony on cross examination, a parent visiting the building would be sent to the placement center, which would then direct the parent to the correct school (T. at 84-5). She added that once the parent of a special education student arrived at HR, a secretary would direct her to Mr. Burns (T. at 86).
Ms. further testified that the number “531”, which appears on the FNR (Parents’ Ex C, refers to T. at 85). She also observed that she did not know of any cases where parents had been directed to the wrong school and that she was not familiar with a teacher named “Hassan” (T. at 86, 88).
In response to a question from the IHO, she elaborated on her earlier testimony about the other schools that shared the building with HR, by pointing out that each school had its own principal and that the schools did not share staff (T. at 91).
PARENTS’ CASE
The Parents first witness was the Student’s mother. Concerning the CSE meeting, she denied that she had agreed to the placement, but had only agreed to visit HR (t. at 95-6).
The Parent discussed in detail her two visits to the building housing HR, which, she said in response to a question from the IHO, occurred in October 2010 and June 2011
(T. at 108). On the first visit, she testified, a security guard directed her to a Ms. who told her that there was no CTT class (T. at 97). On the second occasion, she continued, she met again with Ms. who was accompanied this time by Ms. (T. at 98). Again, according to her testimony, she was told that there was no sixth grade CTT class.
The Parent also spoke about the Student’s current placement at the private school, where, she said, he was making progress (T. at 101). She expressed her view that the school was providing her son with an “appropriate” education and that his curriculum was “individualized” and “differentiated” (T. at 99).
On cross examination, she acknowledged that her advocate had only asked DOE to produce Ms. as a witness and had not asked for the production of Ms. (T. at 107).
The Parent’s only other witness was , who testified by telephone that he is currently employed as the English and mathematics principal at the private school (T at 113). He further testified that he had “earned” a Master’s degree in Special Education, but added that it had not yet been “conferred” (T at 111-2). According to his testimony, he also holds what he described as a “transitional B {teaching] license” from NY State (T at 112).
He described his exposure to the Student as “limited,” adding that he had only taught him in an English class for two and a half months in 2011 (T at 115). He testified that the class functioned at ” and “ ” level (Id).
In response to a question from the hearing officer, he said that there were 11-12 students in the class and that a majority had IEPs (T at 127). He also observed that the total enrollment of the private school was 40-42 pupils ((T at 114).
Describing the Student’s learning problems and levels of achievement, Mr. noted that his writing abilities were at a fourth grade level, but that he was at a in decoding and comprehension (T at 115, 117). He also observed that his spelling was “not very good” (T at 115).
Commenting on the Student’s , he explained that directions had to be explicit and tasks had to be broken down into smaller steps (T at 116). He also described the Student as “ ” (T at 119).
The witness further testified that the Student “worked really well” in his class and had made progress (T at 115, 119). For example, he pointed out, the Student could not even write a single paragraph when he joined the class, but could write a 3 paragraph essay by the end of the school year (T at 119).
Mr. described his teaching method as one that relied on cooperative learning and a revision process that required students to improve their work (T at 120-1).
On cross-examination, Mr. admitted that he did not know whether the curriculum at the private school was state approved (T at 124). He also acknowledged that in evaluating the Student he used “teacher made assessments” and did not compare the Student to the rest of the class (T at 125).
FINDINGS OF FACT AND DECISION
This is a tuition reimbursement case and is therefore governed by the three prong test enunciated by the US Supreme Court in Burlington 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 Free 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).
To determine whether DOE offered FAPE, I must answer three separate questions: did the IEP for 2010-11 provide the Student with FAPE; was the proposed placement in a CTT class at HR actually available; and, if it was available, did DOE illegally deny the Parent an opportunity to observe the class. I shall now address these questions in order.
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, 198 [1982]) [hereinafter Rowley].
After reviewing the evidence and testimony in this case, I find that 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 March 2, 2010 CSE meeting represents a considered and balanced approach to the Student’s learning problems. The proposed co-teaching program would have allowed the Student to interact with regular education students and receive the benefit of a mainstream curriculum while receiving the assistance of a special education teacher in his English and mathematics classes (T at 23).
I credit Mr. testimony about how “every lesson plan is differentiated” and the lessons include visual, kinesthetic and audio components (T at 21). I also credit the testimony of , the bilingual who opined that placing the Student in a special class with lower functioning students would be inappropriate because he was “functioning at close to grade expectation” (T at 49).
In addition, the IEP would have provided the Student with therapy twice a week in a small group setting (DOE #1-12). This therapy would give the Student individualized assistance in two of his major problem areas, reading and writing.
It is true that the 2008 psychological evaluation concluded that the Student was performing “significantly” below grade level (DOE #2-6). However, the CSE had ample reason to give more weight to the 2010 assessment from the private school teacher, who noted that the Student was performing at in three out of four academic areas (DOE #13; DOE #6).
Aside from the fact that the assessment was more recent than the evaluation, the IEP provides a plausible explanation for the Student’s progress during the intervening period. As pointed out in the IEP, prior to 2008, the Student had been enrolled in a school where only religious subjects were studied (DOE #1-3). Thus, the CSE had fair grounds for concluding that the Student’s exposure to secular subjects in the private school had improved his academic performance.
To counter DOE’s case, the Parent relied on the testimony of Mr. who was one of his private school teachers. However, he did not demonstrate any familiarity with the Student’s IEP or offer an opinion on whether it would confer an educational benefit, which is the crucial issue under Rowley.
In one respect, Mr. Jacoby’s testimony lent support to DOE’s position, since he spoke about how important it was to have students constantly revise their work (T at 121). However, in the section of the IEP dealing with academic management needs, the CSE specifically mandated the use of “drill & repetition” in teaching the Student (DOE #1-3).
Concerning the issue of whether the proposed CTT placement was available, I find that DOE presented substantial credible evidence at the hearing that it was.
Mr. credibly testified that he taught the CTT class, which the Student would have attended and corroborated his testimony by submitting a copy of the class profile (T at 15-7; DOE #3). I also credit his testimony that therapist on its staff, who would have been able to provide the Student with the mandated therapy (T at 14).
In addition, Ms. credibly testified about the procedures that were in place at to make sure that visitors to the campus of the four schools reach their intended destination (T at 84-6).
The Parent’s testimony that school staff told her that there was no sixth grade CTT class is not credible. For example, she testified that she visited HR in October 2010 and June 2011 (T at 108). However, the latter date is obviously incorrect, since the 201011 school year was almost over by this time.
Further a letter from the Parent’s advocate to DOE, dated August 18, 2010 and countersigned by the Parent, shows that in all likelihood the visit occurred in the summer of 2010 and explains why the Parent could not observe the class (Parent D-1). The letter states that the observation did not take place “because the school was not in session” (Id).
The Parent’s testimony about the other visit was flatly contradicted by Ms. , who is an Assistant Principal at credibly testified that she had never met the Parent and did not know of a teacher named “ ”, who was allegedly present during the visit (T at 869). The Parent’s testimony is also undermined by her acknowledgement at the hearing that her advocate had never sought the production at the hearing (T at 107).
I also find the Parent’s claim that she was improperly denied an opportunity to observe the CTT class to be without merit for two reasons. First, as discussed above, I did not credit her account of the two visits. Second, the SRO has ruled that, although school districts should try to cooperate with parents who wish to observe special education classes, the parents have no legal entitlement to do so (Application of a Child with a Disability, Appeal No. 07-013).
For all of the reasons discussed above, I find that DOE has met its burden of proof under prong 1 of the Burlington test. Therefore, it is not necessary to address prongs 2 and 3.
Before closing I must address the Parent’s demand that DOE either provide or pay for the related services specified in the IEP. I must deny this demand, because the IEP is an integrated document and the CSE has properly determined that FAPE requires that the related services be provided in conjunction with the CTT program. By rejecting the IEP and placing her child in a private school, the Parent has forfeited her right to these services.
ORDER
The Parent’s due process complaint is dismissed in its entirety with prejudice. Dated: January 31, 2012
___________________________________
ROBERT L. NISELY, ESQ.
Impartial Hearing Officer
RN:dl
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 16, 2011
PARENT
A Impartial Hearing Request, dated February 15, 2011, 4 pages B Mission Statement, Undated, 1 page C Placement Letter and Fax Confirm, dated August 2, 2010, 2 pages D Ten Day Notice Letter, dated August 18, 2010, 2 pages E Tuition Contract, Undated, 1 page F Amendment to Tuition Contract, Undated, 1 page G School Affidavit, dated March 22, 2011, 1 page H Proof of Payment, dated January 7, 2011, 4 pages I Remedial Math & English Scores, Undated, 1 page J Staff Members, dated May 9, 2011, 1 page K Attendance Record, dated May 9, 2011, 1 page L Weekly Point Update, Undated, 3 pages M Report Card, Undated, 2 pages N Math and English Curriculum, Undated, 3 pages O Board of Ed IEP, dated March 2, 2010, 12 pages
DEPARTMENT OF EDUCATION
1 NYC DOE IEP, dated March 2, 2010, 13 pages 2 Report, dated October 5, 2008, 11 pages 3 Class Profile, dated August 4, 2010, 1 page 4 FNR, dated July 27 – August 2, 2010, 6 pages 5 Classroom Observation, dated January 14, 2010, 1 page 6 Teacher Report, Undated, 1 page 7 Progress Report, dated January 7, 2010, 2 pages
IMPARTIAL HEARING OFFICER
I Notice of Appointment, dated February 16, 2011, 2 pages