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: December 29, 2011

January 4, 2012

February 15, 2012

February 28, 2012 Actual Record Close Date: March 13, 2012 Hearing Officer:

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

Attorney — Student

Attorney (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2012

Attorney — Student

Parent/Mother — Student

Attorney — DOE

Special Education Teacher- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2012

Attorney — Student

Mother/Parent — Student

Assistant Head of (via telephone) — Student

Teacher (via telephone) — Student

Teacher (via telephone) — Student

Coordinator- (via telephone) — Student

Attorney — DOE

Special Ed Teacher-CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2012

Attorney — Student

Parents

Coordinator- (via telephone) — Student

Attorney — DOE

Principal (via telephone) — DOE

Mrs. ., the mother of ., requested an impartial hearing on October 18, 2011, for the purpose of obtaining funding for her unilateral placement of at the for (“ ”) for the 2011-2012 school year. (Department Of Education [“DOE”] Ex. 8). I was designated to hear this matter on October 19, 2011 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on December 29, 2011, January 4, 2012, February 15, 2012 and February 28, 2012. The compliance date was extended on three occasions, due to the unavailability of witnesses, and because of the extensive testimony. The final compliance date was March 29, 2012. (IHO Ex. I, II, III).

is a year old young man with a of . His classification is not in dispute. (DOE Ex. 8).

The most recent evaluation in evidence was performed on September 25, 2007, when was years old. At the time, his was in the overall, with and skills. (DOE Ex. 6).

For his grade year, was enrolled at . (DOE Ex. 7). A classroom observation was performed on November 12, 2010 by , a school . She observed in a class of students with teacher and assistant, during a social studies lesson. was and throughout the observation. (DOE Ex. 5).

On June 14, 2011, the Committee on Special Education (“CSE”) met to review ’s program. The review team included Ms. , a school , a special education teacher ( ), a parent member, Mrs. , Dr. , (the Assistant Head of ), and Mr. , ’s math teacher. (DOE Ex. 1, p. 2; Tr. p. 170). ’s was measured based upon testing and teacher estimates. It was estimated that his reading and writing skills were on a grade level; and that his overall math skills were on a grade level. (Id. at 4).^[1] His math teacher reported that took the math and it. His ELA teacher reported that does best with sentence and ; but with . In , he was working on his skills and receiving instruction to support what he is learning in his class. (Id. at 3). Following discussion with ’s teachers regarding what supports needs in the classroom, the CSE recommended that he receive small group instruction, repeated, , and , and cues, teacher and , and a approach. (Id. at 4; Tr. p. 177). The IEP includes math goals, which were developed in conjunction with ’s math teacher, and agreed to by the parent. (Tr. p. 178; DOE Ex. 1, p. 7). language arts goals and goals for were developed in consultation with Dr. , and based upon ’s level. (Tr. pp. 179-180). The CSE also reviewed the progress report; and based upon the report developed goals to address the use of language, - and - , and to . (Tr. p. 181; DOE Ex. 1, p. 10). ’s / goals address and skills needed in setting up an appointment and having an interview. (Tr. p. 183; DOE Ex. 1, p. 5).

The recommended program was a special class in a community school with a staffing ratio of ; with related services of and per week for - minute sessions in a group of and counseling per week for - minute sessions in a group of . He was recommended for instruction in a class periods per day. (DOE Ex. 1, pp. 1, 13, 15). The recommendations for related services were based upon the school’s recommendations. (Tr. p. 184). A special class with a staffing ratio was recommended because requires the support of a small class ratio with a special education teacher, and with peers who are on a similar to him. (Tr. p. 184). The CSE recommended goals for . One goal was for to in experiences that will highlight his and to help as he transitions into post-secondary life. Another goal is for to choices and about the search process. He will explore the training and education needed to secure a job in his chosen field. The teachers and parent also participated in . (DOE Ex. 1, pp. 11-12; Tr. p. 187). As services, the IEP provides that will participate in a program that integrates with ; and that he will receive instruction to support his goals. It further provides that he will integrate into the community by within the community. The IEP further provides that will learn skills, training and skills. (DOE Ex. 1 pp. 16-17).

On July 14, 2010, was offered a seat in a special class ( ) at , the Academy, (“ ”). (DOE Ex. 3). On August 9, 2011, Mr. , the parent’s attorney, wrote a letter to the CSE rejecting the recommended program, as inappropriate, and stating that the parent was unable to view the recommended program prior to the start of the school year. He stated that the parent would be re-enrolling at for the 2011-2012 school year and seeking reimbursement. (Par. Ex. A).

In the summer of 2011, (by August) the parent signed a contract re-enrolling at . (Tr. pp. 147-148; Par. Ex. C). The tuition for the 2011-2012 school year was $ The parent did not pay any portion of the tuition. (Tr. p. 148). She testified that her family’s income is $ and she could not afford to pay the tuition and await reimbursement. (Tr. pp. 128-129).

On September 23, 2011, Mr. sent another letter to the CSE after the mother visited the recommended site, reporting that the core classes at the recommended site are collaborative team teaching classes, inconsistent with the recommended program. (Par. Ex. B).

Ms. , a certified special education teacher employed at , testified that she had years of experience as a special education teacher at . At present, she teaches - classes in science, math and English, with a staffing ratio of . (Tr. pp. 40-41). She testified that if were to attend , he would have been assigned to her classes. (Tr. p. 76). He would have been instructed by Mr. , for history, in a - class. (Tr. p 80). 2.When school started, there were fewer than students in Ms. classes.^[3] The students were and grade students. Generally, the students were on a to grade level, with most students between a and grade level. (Tr. pp. 45-46). Most of the students were as ; although the classes also include a student with a , a student with a and a student with . (Tr. p. 47).

2 For part of his remaining four periods he would have had a lunch period, and an advisory period with two teachers, during which the students deal with life after high school, including building a resume and interview skills. (Tr. pp. 82-83, 93). would most likely have been assigned to Ms. for his advisory period. The class is taught by Ms. and an English teacher; and classes have approximately students. Various electives are also offered in classes of approximately students. (Tr. pp. 84-86). Mr. ,a special education teacher, also runs an internship class, which is an elective. (Tr. pp. 86-87). This class is offered to only; and would have been available to . There are two internship classes. (Tr. p. 92).

Reviewing ’s IEP, she testified that his academic needs in math and language arts were similar to those of the students in her classes. (Tr. p. 48). She testified that she would have been able to implement the academic management needs described in ’s IEP within her class. (Tr. p. 50). She provides small group instruction, in groups of or students, and groups the students according to their functional levels. (Tr. pp. 5152). She described how she would address ’s distractibility by setting rules for acceptable , allowing him to lead activities, and by keeping activities short. (Tr. pp. 5253). She also described how she would implement ’s goals within her class. (Tr. pp. 58-62). She testified that ’s related service mandates could have been met at the school. (Tr. pp. 63-64).

Ms. testified that the school coordinates with to assist students with their post-secondary life. Mr. , the IEP coordinator at the school, deals with coordinating services. (Tr. pp. 65-66). Ms. also talks with the students about what they are interested in doing after high school; and the students write a paper on a career or a place they would like to work. (Tr. p. 67). The students also participate in activities during school including the , visiting in and . (Tr. p .68). In math class, she discusses and . (Tr. p. 70). Students sometimes travel by on school trips; and Ms. explains how they will get to their destination. (Tr. p. 71). They also talk about keeping a clean room. (Tr. p. 72). Most of the students take Tests ( ) rather than exams. (Tr. p. 80).

Ms. , the principal of , testified that the school has two special education models; the Integrated Co-teaching (ICT) model and the self-contained model, with a staffing ratio. (Tr. pp. 293-294). She testified that when parents come to see the school, she explains that the school offers both models. She explains the benefits of the ICT classes, which are smaller than in other schools, and sometimes have a para assigned. She does not recall, however, if she had this conversation with Mrs. . (Tr. pp. 295299).

Ms. testified that the school provides an program taught by Mr. . (Tr. p. 302). In the fall, he spends some time with the students figuring out their , and then a to the student. They work on writing as well. (Tr. pp. 303-304). have been arranged at the Attorney’s office, a home, a company and an . (Tr. p. 305). She testified that the school is served by a full-time and a full-time , and that all of the students who are mandated to receive and have been provided those services for the school year. (Tr. pp. 306-307).

Mrs. ., ’s mother, testified that is currently in his year at . He is a grade student. (Tr. p. 99). Mrs. . testified that has a ; and that she agrees with the description of his levels, as they appear in his IEP. (Tr. p. 100). She also agrees with the IEP goals (including the goals) and with the IEP’s description of ’s needs and his performance. (Tr. pp. 132-134, 135). began school at a school and to the program in the or grade. In or grade, he entered . ,a School. (Tr. pp. 101102).

When was in the grade, he was recommended for a public school placement in a class for his grade year. (Tr. p. 103). Mrs. . felt that the recommended program was inappropriate and enrolled at , where he has remained to this date. (Tr. p. 104). She filed for an impartial hearing each year; and his tuition was funded through settlements. (Tr. p. 105).

Mrs. testified that she attended the June 14, 2011 CSE review and that she expressed her disagreement with the recommended program. She felt that needed a smaller setting with an extra teacher. The Center representatives also felt that he needed a smaller setting with two teachers. (Tr. p. 109). She agrees with the recommended level of related services. (Tr. p. 134).

On September 9, 2011, she went to visit , the recommended site, with , an employee of .^[4] She brought ’s IEP and spoke with the principal and the assistant principal. (Tr. pp. 137-138). She spoke with the principal about ’s classification and what he needed and asked whether they offer it and the principal told her “yes”. (Tr. p. 140). The principal told her that would be placed in a class, with related services of counseling and . She testified, however, that she was shown a classroom with students and teachers. (Tr. pp. 112-113, 140-141). She was not told that this would be the ’s classroom. (Tr. pp. 140-141). She testified that the school did not have any , or program on and . (Tr. pp. 114-115). She felt that the classroom was too big for , and that he would be and . (Tr. pp. 115-116). At , his classes have to students. (Tr. p. 121). Following her visit to , she decided to continue ’s enrollment at because it offers him a smaller setting with teachers, which is a setting in which he has . (Tr. p. 117). She described his in various , and how he . (Tr. p. 118). Academically, she testified that he has in , and . He has passed of his and plans to take more in January. (Tr. p. 123). She testified that she cooperated with the DOE by attending meetings and making available for evaluations. (Tr. p. 127).

Dr. , the assistant head of , testified that he has a Master’s Degree in Special Education and a Doctorate in (Tr. pp. 198-199). He testified that the high school program services students aged to ; with a separate location for students aged to - . (Tr. p. 200). He testified that when first entered in the school in the grade, he had significant , however his was much . His general is within normal limits; however he has some and ; and his general fund of knowledge is to . (Tr. p. 204). He has from a to a grade level in math. He has also made in reading. He receives and instruction per week in a small group. (Tr. p. 205). The school has been working with toward obtaining a and he would be capable of doing. He was also to the last year and this year. (Tr. pp. 206-207).

At present, is in a grade class with students, which is taught by different teachers. Each classroom has a teacher and an assistant teacher; with a smaller class for math. (Tr. p. 207). In addition to his core classes, he takes classes geared to his / and including , and ; and a class which deals with writing. Last year he took a seminar class to explore . He also has skills classes and gym. (Tr. p. 208). He also participates in the yearbook club. (Tr. p. 209). All of ’s classroom teachers are special education certified; and the assistant teachers all have degrees. (Tr. pp. 209-210).

As part of ’s program, works in a office hours each week, where he does and . This ties into his long term goal of being an or . (Tr. pp. 220, 232). has passed four of the required for him to earn a . (Tr. pp. 221-222). Dr. testified that, in his opinion, is an appropriate educational placement for . (Tr. p. 225).

Dr. testified that he participated in the June 14, 2011 meeting, and objected to the recommended program of classes with students. He felt that due to his and , would not be able to work in a program of that size. (Tr. pp. 226-227).

Mr. , ’s math teacher, testified that due to his , requires small group instruction, one on one re-instruction after an initial lesson, , and directions read and re-read and and in order to math. Much of the instruction provided at is directly connected to a goal or personal goal of the student. (Tr. pp. 236-239). The also includes , and . (Tr. p. 241). is instructed in a group of students with math skills ranging from the grade to the grade. performs on a late grade to early grade level. All of the students have with and and . (Tr. p. 244). is a leader in class and has been to times. During the current school year, has progressed from a grade to grade level in math and has passed his in math. (Tr. p. 245). He testified that is an appropriate educational placement for because it provides the level of support which he requires. (Tr. p. 247).

Mr. testified that he participated in the June 14, 2011 CSE review; and that he recommended that be placed in a class with a staffing ratio of ; because a smaller class size has been particularly effective for him. He was told that ’s grade level was for him to be placed in a setting. (Tr. p. 248). He testified that a class size would not provide with the level of support he requires. (Tr. p .249). At , ’s maximum class size is ; however his math class has only students. (Tr. p. 252). Mr. testified that he helped create ’s IEP; and that he uses the goals and the management needs identified in the IEP. (Tr. pp. 253-254).

testified that she has worked in education for years in both mainstream and special education settings, including . At , Ms. liaises with families to support the IEP process, which includes visiting school placements recommended by the DOE. (Tr. p. 255). On September 12, 2011, Ms. accompanied Mrs. on a visit to . She testified that the school’s principal, , told them that the model they were offering at the school was an ICT setting for four subjects and then general education for electives. According to Ms. the principal specifically stated that the school does not have a program.^[5] The ICT classes combine general and regular education students in a class of up to students. The classes have one general education and one special education teacher. Contrary to Mrs. testimony, Ms. testified that the principal indicated that would be placed in an ICT class. She testified that in her opinion, the ICT environment would not be supportive enough for to make educational gains. (Tr. pp. 262-264, 271 ). She testified that did not provide or programs that would build , such as , skills or work. She testified that they were given no evidence that was integrated into the curriculum. She testified that they were also informed that there were no internships available at the school. (Tr. pp. 265-266).

Ms. testified that shares a location which includes high schools. She testified that this would present a very overwhelming environment for . In summary, she testified that the program was not an appropriate educational placement for . (Tr. p. 268).

On September 13, 2011, after her visit to with Mrs. ., Ms. prepared a “FNR Placement Site report” which was received in evidence. In it, she identified “Key Issues Regarding Placement.” She reported that all core classes are collaborative teaching with offered for prep classes. She further reported that there was no programmatic internship program. (Par. Ex. G).

testified that she teaches ’s English and Social Studies classes at . She described him as , and . He needs to take his time and (Tr. p. 277). He has a based which his reading and his . He has a in his . (Tr. p. 278). He needs to be in groups, with , , , and presented in . (Tr..p. 29). For English, is instructed in a group of students with similar . Instruction is provided to the whole class and in group activities. (Tr. p. 280). An aide is available in both classes. (Tr. p. 281). During the current school year, has in his to apply and . (Tr. p. 284). She testified that the program is appropriate for because he is able to get the level of support he requires. (Tr. p. 285).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be 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). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program

An appropriate educational program begins with an IEP which includes a statement of the student’s present levels of academic achievement and functional performance, establishes annual goals designed to meet the student's needs resulting from his disability and provides for the use of appropriate special education services. Application of the New York City Department of Education, Appeal No. 12-022.

The parent does not dispute the appropriateness of the description of ’s levels of achievement and functional performance, the academic management needs, or the goals set forth in ’s IEP. The parent maintains that the recommended class size does not provide a sufficient level of support; and that the school did not offer to implement the recommended program or provide sufficient transition services.

Based upon the testimony of Ms. and Ms. , I find that the recommended special education program was consistent with ’s IEP goals, management needs and recommended transition services. I further find that the June 14, 2011 IEP could have been implemented at .

Mrs. . testified that the principal of the school informed her and Ms. that while they were being shown an ICT class, the school could provide a program to . This is consistent with Ms. ’s testimony. Ms. testimony on this point was inconsistent. In her direct testimony, she testified that the principal specifically stated that the school does not have a program. In her rebuttal testimony, however, she testified that Ms. described the ICT model; and did not specifically mention a class. In her written “site report”, she noted that the school offered prep classes.

Ms. testified that she provided instruction in Math, English and Science in a class with students functioning on a similar level to . She further testified that the self-contained social studies class was taught by another teacher. She also described an additional internship class, taught by a special education teacher, which would have been available to .

I also attach little weight to Ms. testimony regarding the lack opportunities or instruction to build independent living skills, at . Ms. described how she incorporates and into her math curriculum. Ms. also talks with the students about what they are in doing after school; and the students write a on a or a place they would like to . The students participate in activities within the including the , visiting in and . While the school does not have a specific ; the students take trips into the community using which Ms. explains to them. She testified that would have been able to take class taught by Mr. , a special education teacher.

Ms. described how Mr. works with students to identify consistent with their interests, and then places them in those . Ms. also coteaches an advisory period, during which the students deal with life after high school, including building a resume and interview skills. Ms. testified that Mr. , the IEP coordinator at the school, deals with coordinating services. I find that was capable of implementing the two IEP goals for transition contained in ’s IEP; as well as the transition services. In summary, I find that the recommended school was capable of satisfying ’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).

To the extent that there was any deviation from ’s IEP, I find it was not substantial. See Application of the New York City Department of Education, Appeal No. 12-022, p. 14, citing P. v. Woodstock Bd. Of Educ . 2010 WL 1049297 [2d Cir. March 23, 2010] and Van Duyn v. Baker Sch. Dist. 5J, 502 F. 3d 811 [9th Cir. 2007].

For all of the foregoing reasons, it is hereby ordered that the parent’s request for funding for her unilateral placement of at for the 2010-2011 school year, is denied. Dated: March 15, 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 Letter from , August 9, 2011, 4 pp. B Letter from , 9/23/2011, 4 pp. C Center Enrollment Contract, 2011-2012, 2 pp. D Center Progress Report, 12/2011, 14 pp. E 2010 Federal Income Tax Return for Mr. and Mrs. , 2/9/11, 2 pp. F Affidavit , 1/3/12, 1 p. G FNR Placement Site Report, 9/13/11, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 6/14/11, 17 pp. 2 IEP Meeting Minutes, 6/14/11, 3 pp. 3 Final Notice of Recommendation, 7/14/11, 1 p. 4 Notice of IEP Meeting, 5/27/11, 1 p. 5 Classroom Observation, 11/12/10, 1 p. 6 Report, 9/25/07, 6 pp. 7 Center Progress Report, 6/2011, 15 pp. 8 Impartial Hearing Request, 10/18/11, 7 pp. 9 Due Process Response, 10/25/11

IMPARTIAL HEARING OFFICER

I Pre-Hearing Conference Summary, 12/13/11, 1 p. II Case Followup Sheets, Various Dates, 2 pp. III Case Followup Sheet, 2/28/12, 1 p.

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Footnotes

[1] The math teacher reported that tested on a or grade level in math; but that with support he can work on a grade level. (Tr. pp. 175-176)

[3] She testified that the program is departmentalized, and that the classes consisted of the same students, with some variations. (Tr. p. 43). A student may have a - class for subject and collaborative team teaching in another. (Id. at 43-44).

[4] She called the school in August, but was told she would have to wait until school was opened to visit. (Tr. pp. 136-137).

[5] In her rebuttal testimony, Ms. testified that Ms. described the ICT model; and did not mention a class. (Tr. p. 324). In her written report, Ms. noted that the school offered prep classes. (Par. Ex. G).