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: Parents

Dates of Hearing: January 25, 2012

February 28, 2012

March 22, 2012

Actual Record Closed Date: May 16, 2012

Hearing Officer: Judith Schneider, Esq.

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

Esq. Attorney — Parents

Esq. Attorney — Parents

Mother — Parents

Esq. Attorney — DOE

Dr. School Psychologist — DOE

Teacher – Public School — DOE

NAMES AND TITLES OF PERSONS WHO APPEAREDON FEBRUARY 28, 2012

Esq. Attorney — Parents

Esq. Attorney — Parents

Mother — Parents

- Coordinator –Private School — Parents

(via telephone)

Special Education Teacher- — Parents

(via telephone) Private School

Esq. Attorney — DOE

Dr. School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2012

Esq. Attorney — Parents

Mother — Parents

Esq. Attorney Impartial Hearing Officer Observer — DOE

On January 25, 2012, February 28, 2012 and Mach 25, 2012 , I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated October 19, 2012. (Ex. 1). I was appointed Impartial Hearing Officer on October 19, 2012. I was available to conduct a hearing within 14 days. At a prehearing conference with the parties conducted by telephone on November 18 2012, the initial hearing was scheduled for January 25, 2012 , the first mutually available date for the parties, their witnesses and the hearing officer. (T. 5, Ex. I)

The initial compliance date in this matter was January 2, 2012. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. Documentation of my decisions with regard to the compliance dates has been provided to the parties. (T. 5, 166, 172-173, 361, 398, Ex. I, II)

The current compliance date is June 1, 2012. The record closed on May 3, 2012, upon my receipt of all post-closing memoranda.

BACKGROUND AND POSITIONS OF THE PARTIES

At the commencement of the 2011-2012 school year the old and his disability classification was . (Ex. 1) That classification is not in dispute. He has been receiving special education services since the , attended a DOE funded , a class for the 20082009 school year, class located in school, for the 2009-2010 school year and attended first grade in an in the same school for the 2010-2011 school year. (T. 367)

On February 14, 2012, the CSE convened at the request of the parent. Participating in the review as school psychologist and district representative was Dr. who had conducted a evaluation (Ex. 5) and a class observation (Ex. 6) (both dated February 3, 2011), the student’s then current ( ) special education teacher (the SE T), the student’s then current ( ) general education teacher, the , guidance counselor and therapist who were providing the student with (“ ”), therapy (“SL”), the student’s mother (“the parent”) and a Assistant Principal. (T. 20-23, Ex, 11-20)

The CSE considered the evaluation and class observation (Exs. 5, 6) as well as reports from the occupational therapist, the therapist and the counselor which were incorporated into the IEP. (T. 35, 37, 371 , Ex. 11-1 through 11-4) The CSE also had before it the Diagnostic Psychiatric Assessment dated November 1 and November 8, 2010 of Dr. (“ ”) (Ex. 4) the Neuropsychological and Educational Evaluation dated January 7, 2011 of Dr. (“the ”) (Ex. 5) and a letter dated December 17, 2010 from Dr. of the (Ex. 3). (T. 25-26, 28, 38-37)

The CSE developed an IEP for the balance of the 2010-2011 school year and for the 2011-2012 school year ( grade) (10 month program). It recommended continuation of the ICT class with the immediate addition of a para. (Ex. 11) Also recommended were the following related services: (1x30 per week individual and 1x30 per week in a group-both in a separate location); (2x30 per week individual and 1x30 per week in a group, all in a separate location) and (2x30 per week in a group, both in a “General Education Classroom Separate Location” (Ex. 11-12) But for the description of the location of the , the services were the same as those previously provided and which the student was receiving. (Ex. 10-17) Approval for the added para was thereafter obtained by and that service commenced about the beginning of March, 2012. (T. 147, Ex. 12)

On or about May 26, 2011, the parent telephoned Dr. , told her she did not believe the program was appropriate and requested another review to consider a different program. (T. 147-148, Ex. 15) By letter dated May 26, 2011, received on May 27, 2011, the parent requested an “emergency IEP meeting” before the end of school to discuss “new documentation that shows …[the student] requires additional levels of support for special education services.” (T. , Ex. F) In a letter dated May 26, 2011 addressed to the Chairperson of the District 2 CSE, which Dr. characterized as an “update” to her initial [November 2010] Assessment she acknowledged “sustained improvement in terms of symptoms of and inattention” and provided her “current treatment recommendations” which included transition to a specialized non-public education setting because the addition of the para had not been sufficient to address his needs. (Ex. 16)

No meeting was scheduled or held.

On June 27, 2011, the parent executed a contract with ”) for a 10 month program 2011-2012 school year specifying tuition of $47,950. (Ex. A) She paid $8000 as a deposit on June 28, 2011 and thereafter made additional payments. (Exs. B, H)

By letter dated August 8, 2011, to the principal and the CSE Chairperson, the parent stated that she was never contacted about the IEP meeting she requested, did not believe the placement or IEP was appropriate and would place the student at Aaron and seek reimbursement if a response was not made and an appropriate placement not offered. (Ex. G)

The student commenced attendance at in September 2011. (Ex. C)

By letter dated October 19, 2012, the parent requested the instant impartial hearing. (Ex. 1) The parent asserts that February 14, 2011 IEP was procedurally and substantively defective and, further, that the DOE had failed to respond to the parent’s request for another meeting to consider her claim that the recommended program was not appropriate. The parent asserts that the DOE has failed to provide a FAPE for the 20112012 school year. The parent also claims that the program she unilaterally provided is appropriate and that equitable considerations warrant reimbursement. (Ex. III)

The DOE claims that the February 14, 2011 IEP was procedurally and substantively valid and that the parent did not provide a new evaluation or provide information that would require a new meeting. The DOE claims that therefore it provided a FAPE for the 2011-2012 school year. Further, the DOE asserts that is not appropriate and that even were that not the case equitable considerations would bar reimbursement. (Ex. IV)

WITNESSES PRESENTED

The DOE presented the testimony of the following: Dr. the school psychologist who participated in the review and conducted the Evaluation and the classroom observation; the teacher of the class in which the student would have been placed.

The parent presented the testimony of the following: , the and Coordinator who provides direct services to the student the student’s special education teacher; the parent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that each testified truthfully in accordance with her current recollections and knowledge and as to the opinions she holds. Transcript and exhibit references not specified below are included above.

Prong 1

It is undisputed that the parent requested that the CSE reconvene and that was not done. The DOE notes that the outside evaluations had recommended a para, that the para had been provided (as well as the recommended services) and that insufficient time had elapsed to enable a determination as to the efficacy of that program. It asserts that preliminary information indicated that the program was addressing certain student’s needs. It asserts that another meeting was not required because there was no new information or evaluation. (Ex. IV )

However, the outside evaluations were, I conclude, meant to provide an interim recommendation and were not a conclusion that that an para was appropriate for the 2011-2012 school year. The December 2010 Moyal letter (Ex. 3) recommends additional supportive measures such as a para “in the interim” before an adjustment of his educational plan after consideration of his abilities. The November 2010 Dieter Psychiatric Evaluation recommended that the student continue the current ICT class “at the present time” with the addition of a paraprofessional for classroom management pending further evaluation and the expansion of services included in the IEP. (Ex. 4-10) The January 2011 and Educational Evaluation (Ex. 5) noted that it was “possible” that the student’s need for more support and individual instruction time could be provided in a mainstream stetting with one to one support from a “specially trained teacher’s aide” guided by frequent input from a special education teacher and a speech language professional. However, Dr. recommended a re-evaluation before the end of the school year to determine if an additional support or an alternative placement was necessary given his behavioral and academic challenges. (Ex. 5-10) These limited recommendations do not provide the support the DOE asserts.

Further, although Dr. that testified persuasively that the teacher informed her that there were certain benefits from the provision of the para, conclude that is not determinative as to whether or not it was reasonable to reconvene. (T. 137) The parent asserts that the teacher opined to her that the program was not working (T. 395) That testimony was not contested by the DOE and I find it credible.

At the end of the school year Dr. , in her May 26, 2011 letter (Ex. 16) acknowledged that there had been improvement in attention and transitions but nevertheless opined that the program could do “nothing” to address fundamental difficulties with acquiring core competencies in reading math and communication skills. (Ex. 16-2) This was not an unreasonable conclusion in view of the student’s deficits.

The persuasive evidence shows that the student has attention issues which lead him to become unfocused (T. 365) and processing in understanding even with (T. 245, 364) with global delays in all domains including , , (T. 270). His opined that he benefited from size (Ex. I-3) and, based upon her observations reported on the BASC-2 Teacher Rating Scales, he had . (T. 41, Ex. 6-9) His teacher as well as evaluators rated him as below grade level, low or very low in all subject areas. (Exs. 4, 5, 6, I-3) It is noteworthy that he was compared to first graders although he had been left back and therefore was even more substantially below his age level cohort. Further, that teacher described him as sad and noted arising from his , (Ex. I), the parent persuasively testified as to that and I find those observations credible and reliable. I note that the testimony of staff describing the student when he entered the school is consistent with the foregoing. (T 247, 270-271, 290, 353 )

The CSE did not respond to the parent’s request, in effect denying it. When a child has been previously classified as having a disability, federal regulation requires that a school district grant a reasonable request for a CSE meeting. 34 CFR Part 300, Appendix C, Question 11). In the circumstances here, I conclude that the parent’s request was reasonable. The DOE’s failure to reconvene the CSE precluded the parent from presenting her reasonable concerns, supported by , as well as her observations about the negative impact on the student overall from having the para (T. 373) for consideration and appropriate inquiry. I therefore conclude that the parent was denied a meaningful opportunity to participate in the IEP development process. See, Application of the XXX, Appeal No. 10-070. In the circumstances, the DOE’s failure constituted a procedural infirmity which “significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student” thereby denying the student a FAPE. See Application of the New York City Department of Education, Appeal No. 12-048.

In view of the foregoing findings and conclusion, I do not address the parent’s other claims.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

In the instant matter the parent seeks reimbursement for . I conclude that the evidence shows that provides an education attuned to the student’s particular strengths, deficits and abilities and specially designed to meet his unique needs.

full time special education school in which all the children have special needs with regard to attention, language processing, sensory processing and regulation, social/emotional cognition and/or behavioral regulation. (T. 238-239) The student is in a . (T. 24-243) Homeroom class reading levels range from end of and math levels range from . (T. 348) Writing levels range from and this student is at . (T. 326-327) The student’s homeroom class has two special education teachers for students and no more than may be in the class. (T. 239) This ratio is maintained for all academic and specialty classes. (T. 239) Unstructured periods such as recess, lunch and school assemblies never have more than and usually have a . (T. 250-251) This permits substantial individualized attention from special education teachers who address both attentional and language processing difficulties (T. 245, 250, 252, 324-325). Graphic organizers and hand-on manipulatives are utilized, material is broken down so that the student can receive and retain the information and repetition is provided. (T. 247-248) Biweekly meings of the student’s teachers, related service proviuders and the education supervisor are held to ensure consistency. (T. 240)

Although the student is in a , based upon his age, the students are grouped in separate instructional classes according to their functional levels and the curriculum is appropriate for their levels. (T. 324) Placements are made after assessments. (T. 346) This student is in a class of which is taught at the student’s current level, end of beginning of by a special education teacher with training in ABA and the Wilson Foundations Program is used. (T. 255-257) For math, he is in a class of with a different special education teacher which is taught at a level, appropriate for him and which utilizes the Saxon Math curriculum. (T/ 324-325)

IEP goals are followed where appropriate (T. 272, 333-334) but teachers write their own goals based upon observation and curriculum assessments (T. 274,335). Although the goals are individualized, the majority of the students in his class have the same goals. (T. 334) Goal accomplishment is measured by curriculum assessments, observations and review of work. (T. 274, 334)

An individualized which promotes and has been created (T. 248, 341, 344) and a visual cue has been provided to help the student . (T. 248-249) The class also uses role-playing and concepts and strategies from a weekly social skills class conducted by a counselor. (T. 249)

The student’s needs are addressed by two weekly pull out sessions, one individual and one in a dyad to improve pragmatic language and social thinking (T. 293 ), the use of a phonic ear in the classroom which noise and amplifies the teacher’s voice which addresses (T. 252-253, 352) and the use of various techniques in the classroom

(T. 240, 266) . The student also receives one individual counseling session per week as well as a weekly social skills class conducted by the counselor which also incorporates issues. (T. 293) Further, he receives one session per week in a dyad. (T. 337)

The student’s therapist credibly testified as to the student’s progress in pragmatic language, phonic awareness, and other deficits that impede processing. (T. 275-286, 288, 290) The student’s teacher credibly testified as to progress in spelling, reading and ability to answer questions from a text (T. 257-258) as well as his improvement in math skills with regard to word problems and understanding of fractions, shapes, measurements, time and money (T. 326, 232) His mother credibly testified as to improved reading. Further, the persuasive evidence shows that the student’s motivation, self-esteem, confidence and ability to interact with peers have increased. (T. 287-288,

351) I note the lack of documentary evidence but find that it does not undermine the testimony with regard to progress here where the student entered a new environment very substantial deficits.

With regard to various specific DOE claims concerning the lack of appropriateness of the program (Ex. IV), I find as follows:

The recommendation for paraprofessional support recommended by the outside evaluators was, I conclude, in the context of an ICT class and, as discussed above with regard to Prong 1, was to be reconsidered. The evidence does not support a conclusion that in an entirely different program a would be required to make appropriate educational gains. The evidence shows that the student is appropriately grouped functionally in Aaron and has made progress academically and socially. Further, I find it noteworthy in considering the district’s conclusion that a was required that PS X can provide only an ICT class with such services as may be necessary to supplement that program.

The evidence shows that has a cap with regard to related services and does not provide more than four sessions per week. (T. 298-299, 313) However, the configuration is individualized in accordance with each student’s needs. (T. 296, 298) This student receives two (individual and a dyad), one and one counseling session.

(T. 331) The CSE recommendation provided one additional SL session, one additional session and one additional counseling session (Ex. 11-12). While that conformed with the recommendations of the outside evaluators, I note that all evaluations were in the context of the student’s then current ICT program. The program provides additional speech enhancements that address this student’s needs as well as a weekly social skills class which addresses the sole goal in the IEP identified as particularly relating to a counseling objective. Further, the persuasive evidence shows that his self-esteem and ability to appropriately interact with others has risen in supporting mitigating current counseling needs. services received are enhanced by the collaboration of the in the student’s handwriting class. (Ex. J-4) The parent is not required to demonstrate that she has provided a perfect program and the program does provide related services in all areas. The fact that there is a cap on the number of weekly sessions does not support a conclusion that it is not adequately individualized for this student.

With regard to placement in a third grade class with third grade goals, I conclude that the evidence shows that the student’s program is appropriately individualized and consistent with this student’s abilities. The student’s homeroom subjects use a New York State curriculum appropriately modified for this student and the literacy and math curriculums are at his functioning levels. (T. 337-338

Finally, with regard to progress, as discussed above, I find the testimony with regard to progress persuasive. Further, I note that a demonstration of actual progress is not mandated to establish that a unilaterally chosen program is appropriate.

I conclude, that the parent has established that the program she unilaterally selected is reasonably calculated to enable the student o make meaningful educational gains.

Prong 3

The evidence shows that the parent cooperated with the CSE with regard to the development of an IEP and timely communicated her objections to the 2011-2012 program and request for a reconvene. There is nothing in the record indicating that she was unreasonable in her interactions with the CSE. In the instant matter, the CSE did not respond to her request and did not reconvene. It is entirely speculative as to what the parent would have concluded had the CSE reconvened and considered her concerns. I note that the parent credibly testified that she had previously foregone a deposit and accepted the proposed placement when she concluded it was appropriate. (T. 387) Moreover, it is well established that the parent’s preference for particular placement, if that is the case, and/or entering into a contract with a school is not dispositive of a claim for reimbursement. Application of a Child with a Disability, Appeal No. 05-087. No testimony or evidence concerning transportation has been submitted. Accordingly, I do not address that claim.

ORDER

The parent is entitled to reimbursement for tuition at for the 2011-2012 school year of $47,950 upon submission to the DOE of proof of payment and attendance. Dated: May 15, 2012

______________________________

JUDITH SCHNEIDER, ESQ.

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.

DOCUMENTS ENTERED INTO THE RECORD

A Contract with Private School, 6/27/2011, 4 pgs. Parents

B Affidavit of Payment, 12/6/11, 1 pg. Parents

C Attendance Record, 12/7/11, 1 pg. Parents

D Class Schedule,, 2011-2012 school year, 1 pg. Parents

E Description of , undated, 1 pg. Parents

F Letter requesting a New IEP Meeting, 5/26/11, 1 pg. Parents

G Follow-up let. re IEP mtg and fax rcpt, 8/8/11, 3 pgs. Parents

H Proof of Payment, various dates, 4 pgs. Parents

I Teacher’s Rpt. -10-11 school year, Public School, Parents

2/2/11, 3 pgs.

J Mid-Year Report for 11-12 school year- School, Parents

February 2012, 10 pgs.

K Related Services Goals, October 2011, 4 pgs. Parents

1 Due Process Complaint, 10/19/11, 1 pg. Department of Education

2 Due Process Response, 10/25/11, 4 gs. Department of Education

3 Letter from MD, 12/17/10, 1 pg. Department of Education

4 Evaluation, November 2010, 10 pgs. Department of Education

5 Eval., January 2011, 15 pgs. Department of Education

6 Eval, 2/3/11, 9 pgs. Department of Education

7 Classroom Observation, 2/3/11, 2 pgs. Department of Education

8 Consent for reevaluation, 10/6/10, 1 pg. Department of Education

9 Notice of Request for Reevaluation, 10/6/10, 1 pg. Department of Education

10 IEP, 4/20/11, 17 pgs. Department of Education

11 IEP, 2/14/11, 20 pgs. Department of Education

12 Paraprofessional Initiation Form, 2/14/11, 1 pg. Department of Education

13 FNR, 2/14/11, 1 pg, Department of Education

14 FNR, 8/5/11, 1 pg. Department of Education

15 Undated Notes, 1 pg. Department of Education

16 Letter from , 5/26/11, 16 pgs. Department of Education

I Conference memorandum, 12/2/11, 1 pg. Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer

III Parent’s Closing Memorandum Impartial Hearing Officer

IV DOE Closing Memorandum Impartial Hearing Officer