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 25, 2012

February 14, 2012

March 14, 2012

Record Close Date: May 8, 2012

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2012

Attorney — Student

Parents

Parents

Chairperson Designee — DOE

Assistant Principal (via telephone) — DOE

Special Education Teacher (via telephone) — DOE

Social Worker (via telephone) — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2012

Attorney — Student

Father — Student

Mother — Student

History Teacher, (via telephone) — Student

Jump Start Teacher, (via telephone) — Student

Parent Representative, (via telephone) — Student

Chairperson's Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2012

Attorney — Student

Parents

Parents

Psychologist (via telephone) — Student

Headmaster — Student

Teacher — Student

Chairperson's Designee — DOE

Principal — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Disabilities Act (“IDEA”). In accordance with the Parents’ request for a hearing dated October 11, 2011, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. The hearing took place on January 25, 2012, February 14, 2012 and March 14, 2012, at the request of the parties, timely extensions were granted. The parties submitted post-hearing memorandum on May 7, 2012. The parent was represented by . The DOE's case was presented by , DOE Representative. The parents submitted 10 exhibits, hereinafter referred to as “Exhibits A-J”. The Department of Education submitted 20 exhibits hereinafter referred to as “Exhibits 1-20” (the list of exhibits is attached hereto as “Attachment A”). The following witnesses testified on behalf of the parent: Teacher. Additionally, the student’s parent testified. The witnesses on behalf of the DOE were . Parent’s Position

The Parents assert that the Committee on Special Education (“CSE”) and the Individualized Education Program (“IEP”) were substantively and procedurally flawed and thus, deprived the student of a free and appropriate public education. (“FAPE”) The Parents assert that the goals were not discussed or prepared at the meeting, the goals and objectives were not reasonably calculated to confer education benefit, the goals and objectives do not meet all of the student’s unique needs, and that they do not all contain evaluative criteria, procedures or schedules to measure progress. The Parents also assert that CSE team was not duly constituted. The Parents assert that the recommended program and placement do not offer the child an appropriate education. The Parents claim that recommended placement did not have a vacancy, that the school, the class size and student and teacher ratio is not appropriate for the child. Additionally, the Parents claim that the child would not be placed with children of similar needs and abilities and that the student requires instruction. The Parents assert that they placed the child in a private school that provides an appropriate program for the student because of the DOE’s failure to provide the student with FAPE and thus, they are entitled to tuition reimbursement for the unilateral placement of the student in the School. DOE’s Position

The DOE’s position is that the CSE was duly constituted and that the IEP generated on June 16, 2011 provided the student with FAPE. With respect to the Parents’ assertion that there were no available seats in the recommended program, the DOE argues in the alternative that there was a seat in the beginning of the school year and even if there wasn’t, the Parents never intended on placing the child in the program, and as such, the availability of the program for the student is not material. Further, the DOE argues that, in any event, tuition reimbursement is not warranted as the parental placement is not appropriate and equities do not support such reimbursement.

The student, whose date of birth is , is classified as ; his classification is not in dispute. The child was initially classified as when he was in the . (TR 176) The student received Special Education Teacher Support Services (“SETSS”) in the third grade. The parent testified that the student started receiving homework help in the sixth grade, as an unclassified student, and that during the 2010-2011 school year, when the student was in he received . His mother described his and that he was at . She testified that the student had . (TR 178) For the 2011-2012 school year, the student was unilaterally placed in the , an unapproved.

In order to establish that the parent is entitled to tuition reimbursement for the unilateral placement of the student in a private school, there must be a finding that the DOE failed to provide the student with a free and appropriate public education, “FAPE”, that the parent’s chosen program is appropriate, and that equitable considerations support the granting of tuition reimbursement. School Committee of Town of Burlington, Mass. v. Department of Educ. 471 U.S. 359, (1985); Carter v. Florence 510 U.S. 7, (1993)

Furthermore, a parental placement may be found to be appropriate even if it does not meet the State standards that would otherwise apply to education provided by the

DOE. 34 CFR 300.148 (c)

Accordingly, in determining whether a parent’s chosen program is appropriate, the parent’s selected private school does not have to be a state approved school for the education of students with disabilities, the teachers do not have to be certified, and the program does not have to provide the student a setting in the least restrictive environment. The determination of whether the parent’s selection is appropriate is determined by whether the program provides specialized education or services that meet the student’s unique needs. Carter v. Florence 510 U.S. 7, (1993)

The Assistant Principal of the recommended placement testified regarding the collaborative team teaching class. (“CTT”) He testified that the school had 2 CTT classes in the grade, which included a SP CTT class for students above grade level. (TR

21) The Assistant Principal further testified that the teachers who are assigned to the class are certified special education teachers, that the school provides professional development opportunities and that the school has a literacy coach. (TR24)

The Special Education teacher testified regarding the CTT SP class. She testified that the students’ reading levels range from a year and to above grade level. Additionally, she testified that the ages of the class range from 12 to 14. (TR 49) The Special Education teacher also testified that there are some students who have behavior plans, but that for the most part, the students’ development is similar to their peers. (TR 50) The witness testified that she provides individual or small group instruction as she sees fit and also, students may participate in extra help two days a week. (TR52) She further testified that she provides communication with parents through emails and telephone calls. (TR 54) Upon review of the student’s IEP, the witness testified that she believed he would be appropriately placed in her class. (TR 56, 57)

The DOE social worker testified that in May (2011) he performed a social history as part of the initial evaluation of the student. He further testified that he participated in the CSE meeting. (TR 79, 80, 82) The witness testified that the student was recommended for counseling goals based on the . (TR 88) The school psychologist testified that the student was first brought to the school based support team in February 2011. (TR 111) He testified that the following participants were present at the student’s CSE meeting: the special education teacher, the general education teacher, the parents, the social worker, the , the parents’ advocate and himself. He testified that the parents’ declined the participation of the parent member. (TR 113) The witness testified that the co-teaching class with the related services of group and individual was recommended based on the student’s difficulty in literacy. (TR 118) The witness testified that the team considered other programs, but, determined the student needed on site support so that he would be able to remain on task. (TR 119) Counseling was recommended based on the student’s difficulties with his attitude towards school, self-perception and soci al situations. (TR 119)

The school psychologist described the functioning as high average, with superior perceptual reasoning and superior receptive and expressive vocabulary. The child also was assessed with low average processing speed. The witness also testified that the student was two years below his curriculum level in reading comprehension, three years below in spelling and three years below in math fluency, but generally above in his other academic areas. (TR 128, 136) Additionally, the witness testified that the student’s needs could be met in an integrated co-teaching program. (TR 143) He also testified that there was discussion regarding a smaller class for the student, but the team believed that the co-teaching class was the least restrictive environment for the student.

The student’s mother testified that the decision to place the child in the private school was due to the student’s . She testified that she placed him in the private school to address his needs. She also testified that she decided to enroll the child in the private school based on the small class size, the homogeneous environment, the higher assistance and the Edline program. The Edline program helps the school to connect the families with what’s happening in the classroom, as well as providing information to the parents with the homework and assignments. (TR 179) The witness testified that she privately secured a which showed that the student had a very , but also had . (TR

186) The evaluation indicated that the student . (TR 188) The parent admitted that the child always that he scored . (TR 191, 192) She further testified that his performance on the State Competency Exams did not match his class performance. (TR 193) The parent also described the child as . (TR 206) According to the parent, the child was in the beginning of December. (TR 209) Additionally, the parent testified that she agreed with the recommendation made at the June 16, 2011 CSE meeting with regard to the classification, recommendation for the . (TR 215, 216)

The child’s father testified that he visited the recommended placement in September and was told that his son would , where the other children scored on the State Competency Exams. (TR 240, 241) He also testified that he was told the classes were at capacity. (TR 241) The witness testified that the student is performing well, has more confidence and has responded positively to the educational techniques used by the private school. (TR 245)

The child’s testified regarding the private school. She testified that each Jump Start teacher is assigned about and that they meet twice daily as a group. The focus is planning, organization and homework. (TR 250) She meets with the student every morning to make sure he has all of his homework assignments and all of his materials are organized. She also meets individually with him twice a week for 45 minutes, where she gives him prompts to help him be organized. She . (TR 252, 253) She described the ability for the student to access class notes through Edline as another strategy that has been helpful for the student. (TR 255) The also testified that she uses graphic organizers and to help the student with his reading. (TR 257, 259) The teacher testified that she communicates regularly with the classroom teachers. (TR 263) She also testified that the student is making immense progress. (TR265) She testified that he needs someone to (TR 266)

The parents’ advocate testified she was present at the CSE review and also accompanied the father to tour the recommended placement. She testified that when she went to the school the Special Education teacher and the school secretary told her the class was at capacity. (TR 292) She testified that she agreed with the recommendation made by the CSE for counseling. (TR 297) She testified that the student’s goals were not discussed at the meeting. (TR 300)

The child’s history teacher testified that the student has some . (TR 305) She testified that the student has difficulty with his organization, especially with homework assignments. (TR 307) She addresses his by requiring him to have a notebook that is divided and by having a set routine. Further, she testified that she provides a physical copy of assignments and she also places the assignments on Edline. (TR 307, 308) Additionally, she testified that she provides all of her students with a checklist that allows them to physically see the steps. (TR 311) She also testified that she multiple formats. (TR 313) Additionally, she is available to provide . (TR 316) The teacher testified that she has seen the student progress and that he has become students. (TR 319) She also testified that based on her observations the . (TR 328)

The neuropsychologist testified regarding the assessment that she performed. The assessment was performed over the following dates: February 24, March 3, March 8, March 29 and March 31, 2011. The assessment included qualitative and quantitative procedures and described the child as . The results of the cognitive testing showed the child has in perceptual reasoning and general abilities. He scored in in processing . His academic achievement scores were in the with comprehension, spelling and math fluency. (See Parent’s Exhibit A) The witness testified that she observed the child in his literacy class, which had one teacher with 30 students, which, in her opinion was too large of an environment for the student. (TR 348) She testified that the student was classes and that he was having a lot of that she attended the CSE meeting and her point was that it was very important that the student be enrolled in a smaller classroom setting. (TR 354) She further testified that two teachers would not have made much of a difference. (TR 357) She testified that a small CTT class would be appropriate, but that the class size had to be smaller. (TR 360)

The Headmaster testified that the was a mainstream school that accommodates students who were bright but have learning issues. He testified that the program is designed to support students with . (TR 394) He testified that the faculty is taught techniques such as to help children who have special needs. (TR 398) He testified that mainstream school. (TR 404)

The student’s English teacher testified that she has to make sure that he is writing down notes that she puts on the blackboard for him. She also testified that she uses a handout to keep the students organized. (TR 433, 434) She also testified that she believes that is appropriate primarily because of the . (TR 452) Additionally, she testified that the student is reading and writing between a . (TR 461, 462)

The issue in determining whether the Parents are entitled to tuition reimbursement rests on whether the district make a free appropriate public education available to the child in a timely manner prior to the parent’s unilateral placement?

Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 student, 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]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

Children with disabilities may not be removed from the regular educational environment unless "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A).

The Parents’ argument that the student was denied FAPE because there was no vacancy in the recommended school is not convincing. It was clear in the course of their testimony that the student was not going to return to public school. (See R.E. v. New York City Dept. of Educ., 2011 WL 924895, at *10 [S.D.N.Y. Mar. 15, 2011]). [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program] Application For Review Of A Determination Of A Hearing Officer Relating To The Provision Of Educational Services To A Student With A Disability No. 12-022

I am persuaded by the witnesses that the student is a needs. Additionally, I am persuaded that the student . The IEP provides goals in Math Fluency, Reading Comprehension and Spelling. It also lists counseling goals. The IEP reflects the child’s . Additionally, based on the testimony and evidence submitted, I am not persuaded that the team did not discuss the Parents’ concerns. While I am persuaded that the goals were not specifically reviewed, the essence of the child’s needs and abilities were incorporated into his IEP and as such, I find the failure to discuss the goals did not deny the child FAPE.

Moreover, I find that the student’s needs would appropriately addresses in a class with one special education teacher and a general education teacher. I find that the special education teacher and the general education teacher would provide instruction that would meet the student’s academic weaknesses as well as his strengths. Accordingly, I find the CSE offered the student a FAPE. I find the student would be appropriately placed in an integrated co-teaching class with the related services of counseling.

I have determined that the student's IEP and placement offered by the district was appropriate for the student. Having found that the district offered the student a FAPE in the LRE, I need not reach the issue of whether the private educational services obtained by the parents were appropriate for the student and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

ORDER

The IEP developed June 16, 2011 is appropriate and provides the student with a free and appropriate public education in the least restrictive environment. The Parents’ request for tuition reimbursement is denied. Dated: May 22, 2012

____________________________

ROSLYN ROTH, ESQ.

Impartial Hearing Officer

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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 JANUARY 25, 2012

PARENT

A Reevaluation, 3/31/11 24 pp. B IEP, 6/16/11, 10 pp. C Contract, 7/5/11, 4 pp D Final Notice of Recommendation, 8/15/11, 2 pp. E Parents' Letter to the CSE, 8/22/11, 2 pp. F Parents' Letter to the CSE, 9/28/11, 2 pp. G Impartial Hearing Request, 5 pp. H Proof of Payment, 7/5/11, 7 pp. I Academic Report, 1/6/12, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 10/10/11, 4 pp. 2 IEP, 2011-2012 school year, 6/16/11, 9 pp. 3 Social History Evaluation, 5/12/11, 3 pp. 4 Teacher Assessment Report, 5/12/11, 2pp. 5 Parent Consent for Evaluation, 5/12/11, 1 p. 6 Vocational Interview, 5/9/11, 3 pp. 7 Parent Request for Evaluation, 4/28/11, 1 p. 8 Observation of Student at IS289, 3/29/11, 3 pp. 9 Re-Evaluation, February and March 2011, 24 pp. 10 Physical Examination, 5/9/11, 4 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 14, 2012

PARENT

J Teacher Recommendation Form, 6/28/11, 2 pp.

DEPARTMENT OF EDUCATION

11 Due Process Response by NYCDOE, 10/14/11, 3 pp. 12 NYCDOE Request for 2 Subpoenas, 1/27/12, 6 pp. 13 School Application Checklist, Undated, 1 p. 14 District’s Response to Parent’s Request for Subpoena, 1/27/12, 3 pp. 15 NYCDOE Exam History, 1/20/12, 1 p. 16 Educational Update by , 6/24/08, 2 p. 17 Evaluation, May 2006, 13 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 14, 2012

PARENT

None

DEPARTMENT OF EDUCATION

18 Teacher Recommendation Form, 6/23/11, 2 pp. 19 Facsimile Cover Sheet, 3/19/12, 1 p. 20 Conference Notes, Undated, 1p. 21 Parents’ Application to , 5/4/11, 4 pp. 22 Student’s Writing Sample, Undated, 2 pp.