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 27, 2012

March 23, 2012

May 4, 2012

Actual Record Closed Date: May 16, 2012

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 27, 2012

Esq. Attorney Mother Father — Parents

Dr. CSE Chairperson’s Designee — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 23, 2012

Esq. Attorney Mother Father — Parents

Dr., Lower School Director (via telephone) — Parents

Dr. CSE Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 4, 2012

Esq. Attorney Attorney Mother Father — Parents

Dr. CSE Chairperson’s Designee — DOE

The matter of . came for hearing before me on January 27, 2012, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On October 21, 2011, I was appointed as impartial hearing officer. On November 30, 2011, I scheduled this hearing for January 27, 2012. Hearing dates were held on January 27, 2012, March 23, 2012 and May 4, 2012. The parties moved to extend the compliance dates during the course of the hearing. 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 the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is May 16, 2012, the date the transcript was received and the compliance date for issuing a decision is May 30, 2012. This hearing was convened at the request of the parents through their attorney. The request was received on October 27, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (CSE). The hearing was initiated the parents of ., who challenge the June 8, 2011, review and recommendation of the CSE.

The parents unilaterally placed their daughter in a self-contained special education program, the Achieve Program located in the ( ). is a private school located in . It is a private entity lacking State Education Department approval. ’s parents seek tuition reimbursement and retroactive tuition reimbursement for the 2011-2012 school year.

BACKGROUND

. She is a and is currently attending . District 20’s CSE classified as ( ) services with no more than 12 special education students and 1 special education teacher and a regular education teacher and up to 18 regular education students (trans. 61). For the 2011-2012 school year on June 8, 20111, District 20’s CSE classified as learning disabled and recommended that receive related services of once a week for 30 minutes and ( ) once a week for 30 (Exh.1 at 11). The parents challenged the June 8, 2011 Individualized Education Program (IEP) review and disagreed with CSE’s placement. They maintained that District 20 failed to provide a free and appropriate public education (FAPE) and they placed . The parents’ submitted a tuition affidavit indicating proof of payment in the amount of $17,033.28 (Exh. C). The parents request tuition reimbursement in the amount of $24,050 for the 2011-2012 school year. The Final Notice of Recommendation (FNR) dated August 4, 2011 recommended an ICT placement at K. 264, class T-02 with counseling and OT (Exh. 4).

, Ph.D., conducted a Psycho-educational Evaluation on April 29, 2011, and utilized the Differential Ability Scales (DAS) Cognitive and Achievement Test-II and subtests from the Woodcock Johnson Tests of Achievement (W-J) III. He found functioned in the on the DAS-II. He noted the subtests ranged from He recommended that she receive special education services. (Exh. 2 at 3).

THE DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE)’s case was presented in the testimony of Ms. , School Psychologist and the assistant principal of . Ms. , a holder of a master’s degree in School Psychology and certified and licensed School Psychologist employed by the DOE since 1990, testified that she was a participant of the CSE meeting on June 8, 2011as School Psychologist/District Representative, as were the social worker, special education teacher assigned to CSE and parent member (trans. 37). She recalled that ’s parents participated as did the ELA teacher at BRP and the Director of the (trans. 38). She noted the CSE reviewed the psycho-educational evaluation on April 29, 2011 and the observation dated March 10, 2011 (trans. 18). She stated that the psycho- was conducted by an agency contracted outside of the DOE and paid for by the DOE; however, the evaluation was not available until the April 29, 2011 (trans. 22). She further stated that the DAS was a cognitive test and that in the (trans. 26) and in the Low Average range in (trans. 28). She noted that the WJ-III subtests indicated that was on or in reading comprehension, reading fluency, calculation, letter recognition and decoding (trans. 36). She recalled that all members of the CSE had an opportunity to express their opinions and concerns and the parents and the private school staff gave the CSE the information regarding the present levels of performance as did the W-J III (trans. 43). She maintained that the teacher estimations and the W-J III provided accurate information regarding the academic management needs and academic performance (trans. 44). She did not remember whether the goals were created during the meeting, nor did she remember whether anyone agreed or disagreed with the goals (trans. 47). She could not recall if any member commented on the testing modifications (trans. 50). She recalled that the parents did not agree with the recommendation of as they felt could not manage outside of a small group (trans. 52).

On cross Ms. stated that she was not aware that the teacher who participated was a special education teacher and not a regular education teacher (trans. 59). She further stated she considered any NYC licensed general education teacher was qualified to serve as the general education teacher (trans. 60). She explained that the ICT program was a general education program and the IEP was in error where it indicated that would not be participating in the general education environment (trans. 64).She further explained that counseling was mandated as the academic performance description indicated that was an anxious learning who was easily overwhelmed (trans 69). She recalled that ’s then current teacher who participated at the CSE review told the team that the observation conducted on March 10, 2011 was not accurate (trans. 76). She further recalled that that she gave the evaluation dated April 29, 2011 to the parents at the CSE review meeting on June 8, 2011; however, the parents were not offered any time to read the evaluation prior the start of the meeting (trans. 78). She noted that the regulations require providing the parents with a copy of the evaluation prior the start of the meeting (Id.).She stated that neither she nor any other member of the CSE team was familiar with the DAS (trans. 81).

Mr. , a holder of a Master’s degree in math and education employed by the DOE for 30 years as an Assistant Principal at , testified that he was in charge of the special education department, (trans. 100). He stated that his school had self-contained classes as well as ICT classes for grades 6, 7 and 8 (trans. 101). He further stated that the related service providers for counseling and SLT were licensed and certified guidance counselors and speech providers (trans. 102). He explained that the proposed class for grade ICT class in a departmentalized program with a different teacher for ELA, math, science and social studies (trans. 105). He further explained that the special education teacher for followed the special education students from various academic classes (trans. 107). He noted that the teachers of the academic subjects and art and computers were licensed and certified in their fields (trans. 109). He opined that the academic annual goals listed on the June 8, 2011 IEP were similar to the goals of the students in the class (trans. 120). He recalled that there were 6 special education students in the class with 20 general education students (trans. 122). He further recalled that 2 students in the class required SLT and counseling and the related service providers met their mandated services and a student required an orientation mobility paraprofessional (trans.124). He stated that were there no providers in his school so ’s parents would have been issued related service authorizations (RSA) for the mandated OT sessions (trans. 127).

On cross Mr. stated that the ICT class was a class and ’s IEP indicated that she would be in seventh grade for the 2011-2012 school year and the would be the only seventh grade student in (trans. 130). He further stated that there would be no special education teacher in the art class or the computer science class (Id.) He recalled that there were 320 students in the lunchroom at once with 20 adults, but no special education teacher (trans. 131). He did not recall if any of the students in the class were diagnosed with dyslexia or anxiety disorder (trans. 136). He maintained that could have been placed in a ICT class as there were classes for students in September 2011 (trans. 144).

THE PARENT’S CASE

Ms. mother and Dr. Director of the , testified in support of the parents’ claim for tuition reimbursement for the unilateral placement of . The parents are seeking approximately $24,050 for tuition for the academic year 2011-2012.

Dr. , Director of the , testified that she was a licensed and certified psychologist and certified special education teacher and she had been employed by for the past 14 years (trans. 153). She stated that as she was met with the teachers and parents and conducted observations. She further stated that had (trans. 154). She described the and noted it was developed for special education children with learning disabilities and anxiety (trans. 157). She explained that in the the students receive differentiated instruction or special instruction, depending on their learning needs (Id.). She further described the differed from the regular program at because students in the received extra support in language arts and math and a smaller class ratio (trans. 158). She stated that the math class had a staffing ratio of and the math teacher was licensed and certified in special education (trans.186). She further stated that the language arts class had a ratio of 8:1 with 8 students and 1 head teacher 3 times a week and a ratio of or 8 students and 1 head teacher and 1 speech pathologist twice a week (trans.159; 185). She explained that in science and history the staffing ratio was or 19 students and 2 teachers and 1 classroom paraprofessional (Id.). She noted that students pick either a higher reader or a lower reader, but the same material was covered so the children could partake in discussions and class projects (trans. 156). She stated that the used hands-on material to allow students to participate depending on their strengths (Id.) She noted that ’s language arts class was taught by a primary teacher and a certified speech pathologist and her anxiety lessoned with the small group instruction (trans. 162). She further noted that the students in ’s language arts had a reading level between mid-sixth grade to midseventh and the staff work with the students to build reading comprehension strategies, fluency and vocabulary (trans. 163). She opined that progressed in reading despite her phonological difficulties and was reading grade level books (trans. 164). She explained that was at a mid-fifth grade level in math because her problem solving ability was compromised by her language issues. She opined ’s math fluency improved and was at a beginning seventh grade level (trans 166). She opined the was grouped with 7 students all of whom had and this small group instruction allowed to receive constant feedback (trans. 168). She opined that improved in her math confidence (trans. 169). She described (trans. 169). She maintained that weekly and as-needed help from teachers improved (trans. 171). She explained that ’s teachers meet weekly to discuss the issues of the students in the .

On cross Dr. stated that the differed from the general education program in by smaller classes in math and language arts (trans. 178).She further stated that the language arts class in the did not use a text book (trans. 180). She explained that the Bay Ridge Prep math class used the “Connected Math Series, but the used “Trans Math” test book and that instruction was broken down to support foundational skills instruction (trans. 181). She opined that could not be placed in the general education and a lot of reading and writing was required (trans. 187). She acknowledged that did not receive SLT as a related service because the pushed into the out for twice weekly sessions (trans. 188). She noted that the collaborated with the class or when she pushed into the class (trans. 189). She acknowledged that was only receiving . She explained that while would benefit the use of the word processer allowed her to spend more time in the classroom (trans. 193).

Ms. testified struggled at since she was (trans. 213). She recalled that was diagnosed with and received resource room services in , but required more support. She further recalled that , , for grades and attended for (trans. 215). She opined that progressed at because she required very small classes with a staffing ratio of (trans. 217). She opined that made a lot of progress in reading. She recalled that was not able to read until the (trans. 218). She stated that also struggled in math and at the age of 13, her daughter did not know her times tables. She opined that her in math and was allowed to use a calculator (trans. 218). She further opined that required support to understand social negotiations, but with counseling and teacher support, she has made progress socially (trans. 220). She explained that was diagnosed with anxiety since the age of 4 and received private counseling until this current year. She further explained that because of the private counseling that received at her daughter did not require private counseling to address her (trans. 223). She stated that she paid $24,000 tuition in full for the 2011-2012 school year (trans. 224). She further stated that she attended the June 8, 2012 IEP meeting as did her husband and the (trans. 226). She recalled that the CSE team faxed a copy of the (Exh. 2) to her husband and the at the start of the June 8, 2012 IEP meeting. She further recalled that the CSE school psychologist told her she was uncomfortable with the tests given in the because she did not know how to read the scores (trans. 227). She related that the informed CSE that the observation (Exh. 3) was not accurate (trans. 228). She stated that she disagreed with the ICT placement because required small classes (trans. 230). She further stated that when she received the FNR, she called that proposed school and was told that would be placed in a core class with 28-30 children and the gym class had 50 children. She opined that could not negotiate herself in space and would not be aware of people or objects in gym (trans. 234). She stated that she visited the proposed school twice and opined that the school did not provide sufficient support for (trans. 235)

On cross the parent explained that the evaluation revealed that scored 7.10 in math and math was not her daughter’s strength (237). She further explained that was recommended, but there was no provider on staff at (trans. 240). She stated that she received the FNR at the end of August 2011 (tans. 241). She further stated that she signed the contract on August 3, 2011 and sent the contract to on August 22, 2011 before she visited the public school placement (trans. 242). She maintained that had the public school placement been appropriate she would have lost the deposit payment in the amount of $3,000 because $3,000 was less than $24, 000 (trans. 244).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under Individuals with Disabilities Education Act (IDEA), New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The District representative maintained that was offered a FAPE for the 20112012 school year and was properly placed in an ICT class in a community school at (trans. 253).

The parents asserted many procedural flaws in the June 8, 2011 IEP: the assessments used by the CSE (Exhs. 2 and 3) were not submitted to the parents or the staff of Bay Ridge Prep prior to the start of the meeting; the validity of the (Exh. 2) and observation (Exh. 3) was disputed; there was no discussion the goals with the staff at Bay Ridge Prep and the parents did not have an opportunity to discuss the goals (Exh. B at 2) The parents asserted that the ICT program was not sufficient to meet ’s needs and there was no discussion as to how a change from a 12:1:1 program to a ICT program appropriately met ’s academic and social-emotional needs. (Exh. B at 3) The parents asserted that there were no goals to deal with ’s (Exh. B at 6). The district witness who testified she had no actual knowledge of the DAS and therefore the parents asserted that the evaluation could not be discussed in a meaningful way (trans. 248). The parent argued there that the proposed placement of a ICT class was a change from the prior placement of special class with a ratio of without assessments to support the change (Id.).

In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies: (i) impeded the student’s right to FAPE; (ii) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (iii) caused a deprivation of educational benefit. 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2):

The parents asserted that the recommended of the ICT program was on the June 8, 2011 IEP was made without their participation. I find that there was no testimony to establish that the parents and ’s teacher and staff from participated in developing the IEP goals or the decision to change the placement from a special class placement to an ICT class a community school. I credit the parent’s testimony that the school psychologist could not interpret the psycho-educational evaluation. I find the district witness acknowledged she was not familiar with DAS. I credit the parent’s testimony that the observation was not accurate and then-current teacher informed the CSE of the inaccurate information of the observation. I find the district presented no witness to explain the inconsistencies the (Exh. 2) and observation (Exh. 3).

I find CSE had ample evidence of ’s and needed constant and as the IEP noted was an and was and she presents with . (Exh. 1 at 3,5). I find the hearing record is devoid of evidence supporting the appropriateness of a reduction in services in the staffing ratio of the proposed class. I find the lack of evaluations and assessments supporting the IEP significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE. I find that the district failed to establish that the parent and ’s then-current teacher or the meaningfully participated in the decision making process and the lack of CSE evaluations to support the reduction of special education services significantly impeded the parents’ opportunity to participate in the decision making process.

Testimony adduced at hearing established that the parents and the staff from who participated by telephone and were not provided with copies of the CSE assessments including the psychological evaluation and the classroom observation that the CSE team relied on to develop the June 8, 2011 IEP. I find that the district failed to establish that the parents and staff meaningfully participated the decision making process.

The parent asserted that the proposed class at was for a . I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, social development, physical development and management needs. (8 NYCRR 200.6(a)[3]) I find testimony adduced at the hearing did not indicate the abilities of seventh grade students satisfied the similar grouping requirement for academic, social, or management needs.

Therefore, I find the district failed to establish that FAPE was provided during the 2011-2012 school year as I find CSE failed to offer an appropriate placement for the 2011-2012 school year.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2011-2012 school year (Application of a Child with a Disability, Appeal No. 02-93; Application of a Child with a Disability, Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 02-080). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007])

The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” (Gagliardo, 489 F.3d 115).

Testimony by the parent and the Director of the and evidence submitted by the parents established that the parents have met their burden regarding the unilateral placement of . I find her small class settings, the use of coloration with the speech pathologist and the classroom teacher, the counselors addressed her needs. I find the program curriculum was modified according to her needs. I credit the testimony of the Director at and find was appropriately grouped with other students who struggle with similar issues. I credit the testimony of the who stated that the pathologist ensured that 's language-based disability was addressed I find the provided the appropriate program to address ’s needs and she achieved success in improving her reading skills and math skills. I find was placed with students with similar and received . I find individualized instruction was provided in academic areas. I find her learning needs were addressed in the and the provided educational instruction that was specifically designed to meet her needs. I find made meaningful progress in her academic, social and emotional needs. I credit the testimony of the Director of the and I find the parents established the second prong of the Burlington/Carter analysis.

The district argued that required yet did not receive the mandated . The Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student’s private placement inappropriate. G.R. v. New York City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009)(‘[The parent] was no required to establish that WPS offered speech and language therapy in order to prevail. Rather, when the WPS program and R.R.’s deficiencies are examined in their totalities, it is clear that the program was well designed to serve R.R.’s needs.’); Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005)(finding unilateral private placement appropriate even though the school did not provide student with speech and language therapy and occupational therapy recommended on IEP). I find the parents cooperated with CSE and made available for evaluations. I credit the parent’s testimony that she would have considered a public school placement.

I find the parents established the third prong of the Burlington/Carter analysis. Therefore, I find the parents are entitled to reimbursement for $24,050.

ORDER

I order that the DOE shall provide tuition reimbursement to the parents for the 2011-2012 school year in the amount of $24,050, upon proof of payment acceptable to the DOE. Dated: May 25, 2012

________________________

LINDA AGOSTON, 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 27, 2012

1 IEP, 6/8/11, 11 p. District

2 evaluation, 4/29/11, 7 pp. District

3 Observation 3/10/11, 2 pp. District

4 Final notice of recommendation, 8/4/11, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 23, 2012

A Notice, 8/24/11, 2 pp. Parents

B Impartial Hearing Request, 10/21/11, 7 pp. Parents

C Tuition Affidavit, 2/15/12, 1 p. Parents

D Enrollment Contract, 8/22/11, 2 pp. Parents

E Attendance Record, 1/31/12, 1 p. Parents

F Program Description, 2011-12, 2 pp. Parents

G Student Schedule, 2011-2012, 1 p. Parents

H Second Quarter Report Card, 2/16/12, 4 pp. Parents