New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 3-30-12

4-16-12 Record Close: 5-1-12 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 30, 2012

District Representative — DOE

Social Worker (Via telephone) — DOE

Administrator of Special Education, (Via telephone) — DOE

Attorney — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 16, 2012

DR., DOE representative — DOE

Attorney — Parents

Parents

DR., Director, (Via Telephone) — Parents

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

) is a classified as and recommended for a class with related services of counseling in the 2010-2011 school year. The parent, ( ), alleged that the district has failed to provide her with a free appropriate public education (FAPE) and placed her ). The instant hearing was brought seeking payment for tuition for the 2010-2011 school year. The parent’s request for transportation and related services were withdrawn at the hearing. Tr. 10 The hearing was initially requested on October 24, 2011. I was appointed on January 6, 2012, following the recusal of another hearing officer; a hearing scheduled for January 11, 2012 was adjourned and rescheduled for February 10, 2012. The parent submitted an amended due process complaint notice dated February 7, 2012, with the consent of the district, automatically adjourning the scheduled hearing. The hearing was thereafter convened on March 30, 2012 and April 16, 2012. Requests for extension of time for decision were granted in this case and entered in the record as IHO Exhibit II. The record closed on May 1, 2012.

DISTRICT CASE

testified that she was a licensed school social worker on the CSE team, who conducts evaluations, provides case management, and sits on the team during reviews. She attended the June 24, 2011 CSE meeting, and stated that the child’s classification of was appropriate for the history of . The CSE recommendation was for a special class. The CSE relied on input from the classroom teacher and Dr. concerning the program was in and the progress she had made. She identified the teacher estimates in the IEP that placed at a grade level for reading and writing, and a level for math computation, and for problem solving. Tr. 31-39; Ex. 1 She also testified about the psychoeducational evaluation of done in March 9, 2009, when she was in the grade. Ms. noted that was at a grade level then, also about a year behind, “pretty much” the same pace and level. Tr. 40-43

There were only two goals on the IEP, which were discussed at great length. She explained that the reading comprehension goal was to increase her reading comprehension skills to level. She stated that identifying details in written text was addressed to both reading and writing skills. Tr. 45-49 On cross examination, she acknowledged the instructional level of SN, who was going into the , but stated that the goal of skills could go up to . She stated that it was a level for a year, and asked to clarify, she said that it could be within the range of to or , within that school year. In regard to the second goal for counseling, she was asked if the goal addressed the child’s being anxious and unprepared for assignments, as state don the IEP, and she responded that it spoke more to the of expressing self confidence. Asked if there was anywhere on the IEP where it said couldn’t verbalize her feelings, Ms. answered at length about the child not participating in class and finally admitted that she didn’t know. Asked why there were no goals for listening comprehension or writing, she stated that the reading comprehension goal to explain supporting ideas related to key topics in a passage could also be a writing goal, because she could write the answer. There were no goals for math, because was at the level. She also stated that math skills were addressed in the description of academic management needs requiring daily review of skills and concepts.

testified that she is an administrator of special education, providing support for . She holds certification to teach social studies, elementary and special education, and in district leadership. Ms. monitors school compliance at , creates programs with the principal, and works with a school-based operations group to make sure services are met. is a middle school with grades . There are about 110 students with IEPs in the building, with needs ranging from related services to SETSS (special education teacher support services), and placement in and classes. The school has a full complement of related services, including physical therapy, , as well as a guidance counselor to provide mandated . All special educators in the school have master’s degrees and are certified in special education. Tr. 72-76

Ms. testified that the spot was available in the 2010-2011 school year, both in a grade and ; at the beginning of the year there were eight students in the class. would have fit the reading level in that class, which was within a 36-month range, from grade. When asked about dealing with , Ms. said that is a , and therefore would be entitled to accommodations based on her diagnosis. She explained that attention to s needs would be based on her learning style, giving as possible example of accommodation a prompting scenario. She conceded that she didn’t know and had never evaluated her. Tr. 77-81

She testified that reading and math are usually done in the morning, in 45 minute periods, comparable to mainstream students. Asked about opportunities to review and change IEP goals, Ms. stated that they don’t ask teachers to change goals at the beginning of the school year. For minor changes, they would ask for an earlier annual review. She testified that there are opportunities for mainstreaming because the school is an underutilized school, but did not provide an explanation. Tr. 81-84

PARENT CASE

father, described ’s learning issues at length. He stated that she had tremendous anxiety, like , she was sometimes and had a , , and . . Her learning needs are that she needs a lot of extra help even when takes tests. She gets extra time and help to complete tests and assignments. The parents tried to help her through all her lessons and projects, but even with additional help she doesn’t seem to focus and get it done.

She was in the public school system from grade. She then was sent to a private allgirls school, where she did a little better. had small classes, and she did much better; the classes then grew to 27 students and she had a hard time with the number of students. She was also not getting the she needed. She was there two years, but it was not working, when he heard about , and decided to send her there for her year.

He stated that s a very through a . She is a , but has a and She was happier going to school at in 2010-2011 and participated in her classes, making progress and showing absolutely decreased school phobia. At , she got counseling and there was a maximum of 17 or

18 students, which was manageable for her. Her test results in math levels went up dramatically. In reading, they got her to read some books, smaller books that were sent home little books to read. Working with on a basis, the school nurtured her and got her to get to school every day and with assignments done. She is now back in the public school system at . The enrollment contract spelled out tuition for the school year was $23,200. Ex. B stated that he never received a Final Notice of Recommendation for the 2010-2011 school year any notification. Tr. 88-103

Dr. , the director of , testified that the school is a to . first applied to the school in th the 5 grade, at which time Dr. conducted an evaluation. She was , and showed a lot of . Dr. saw as her in-school counselor for a scheduled once a week meeting and also on a daily basis. In the , she provided one-on-one counseling to on a daily basis, for a half hour to 45 minutes. and , and experienced a . It was also hard for her to read social cues, and she was deeply embroiled in the drama that goes on in middle school, which was . Organization was also difficult for her and it was difficult for her to stay on top of her assignments. She didn’t manage multiple classes well, and would stress when she had two things to focus on, but in the small setting they were able to keep her focused across classes. They would work to have her pace herself, and also get extended deadlines for her and a private place to work as needed. Tr. 124131, 158-159, 163-165 Dr. stated that is a complicated person, citing social issues, ; she described the social piece as a distraction that was hard for to negotiate. Tr. 131-132 Math in particular made her anxious. She had good and bad days, based on academics and behavior, and was under extreme emotional pressure and cutting; the focus of the school was to lower the pressure on her and the anxiety. Tr. 174 Dr. described the as set up for students who would typically be in mainstream programs but getting a lot of tutoring to help them. There are 25 , about 10 in the in 2010-2011. The schedule for ’s 2010-2011 school year was designed for a small self-contained class in language arts and math, as well as a twice weekly, the small class and added support for both and . The increased writing demands of were for her, and manifested her , her ability to . This impacted her in language arts. In math, also with a smaller group, she was able to be by the teacher. She was with nondisabled peers in inclusion classes in science and social studies, giving her the ability to work in a larger group and build . Math and language arts were classes, while the inclusion classes had as many as 17 students. The teachers in the language and math classes are certified in special education. Dr. stated that she progressed, and was provided with an and develop her reading and writing further. She was inconsistent in her effort, but in class worked hard to stay on top. Tr. 134-144, 167-168, 188190; Ex. C

When asked about the reading comprehension goal on the IEP, she thought it seemed very general, and that based on the reported instructional level of , a goal to raise her to a 6th grade level is not sufficient. She confirmed that she was at the CSE meeting, and stated that the goal was not discussed. As for the counseling goal, Dr. stated that it was not sufficient, noting that it asked for her to , which was not an issue with her; the issue was dealing with her that got her into situations. Dr. stated that the two goals were not sufficient to direct someone towards making progress with She also stated that the amount of counseling recommended, two sessions a week for 30 minutes a session, was not sufficient for SN. Tr. 146-151, 183 She testified that should also have had goals in organization, and that her included work on her organizational skills. At was also in an academic enrichment class adding a layer of service, providing academic and organizational support akin to a resource room. In addition, there was a morning and afternoon advisory group, providing a level of organizational help, using a planner and binder system. Tr. 190-.196 The school also has an online system which students can use as a backup to check assignments and homework. Tr. 197

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that 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 the 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

It must be stated at the outset that analysis require separate review of the school district program and the program chosen by the parents. As far as the law is concerned, the two programs are not in competition and comparison is simply not relevant. Each program stands or falls on its own merits, depending on the underlying facts and in accordance with the standards applicable thereto.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE).

20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child’s needs, provides for the use of appropriate special education services to address those needs, and establishes annual goals and short term instructional objectives related to the child’s educational deficits. Application of a Child with a Disability, Appeal No. 98-71; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

In this case, the district failed to show that it had provided a FAPE to . It was clear that the goals on this IEP were inadequate. In fact, there were only two goals, and those so broad that they could be described as cursory at best. I credit Dr. s estimation of the counseling goal as insufficient, and not addressed to the complex issues presented by ’s deficits. Ms. s attempt to justify the goal with an explanation about self-expression that was not in the IEP, and was contradicted by Dr. s description of . As for the single goal for reading comprehension, it set a target of 6th grade (with 80 percent accuracy) at a time when the child’s instructional level was at a 5.8 grade level. Explanations of the goals also defied credibility: Certainly reading comprehension activities without writing could not double as writing goal unless identified as such. There were no goals for writing or listening comprehension, and no explanation as to why these were not included on the IEP. I note Dr. s testimony that math was a particular source of anxiety for and the district’s failure to include goals for math. The explanation that the academic needs portion of the IEP requiring daily review of skills and concepts was sufficient only underscored how lacking in any validity the goals were. There was also nothing addressing the child’s documented and , which Ms. seemed to think was unworthy of a goal and could only be addressed through accommodation. Her disorganization and executive functioning deficits were ignored. By any standard, the goals were not sufficient to direct teachers or providers working with .

For all the foregoing, I find the DOE has failed to provide a FAPE for .

ISSUE 2 - Appropriateness of Parent Placement

I next consider the second prong of the Burlington analysis. The parents bear the burden of proving the appropriateness of the services obtained for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Child School offered an educational program designed to meet VP’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this case, the parent sustained the burden of showing the placement to be appropriate. The school had the child in a mix of inclusion classes and self-contained classes headed by special educators, as well as speech services and counseling by Dr. . As Dr. testified, she had a complicated array of issues, ranging from anxiety and focusing and organizational deficits to social issues that , and the school , to she could better pace herself across classes. I credit also IN’s report of her progress in reading more books, and improved test results in math.

For all the foregoing, I find the parent has shown the program and services to be appropriate for SN’s special education needs and sustained his burden in regard to

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, I note that the parent signed a contract in March 2010, several months before the school year. I credit his testimony that he did not receive a final notice of recommendation for a placement for SN for the 2010-2011 school year. Yet there was no explanation offered as to why he signed a contract months before the CSE meeting or whether he would have considered a public school placement for had the CSE provided an appropriate recommendation. Also absent was any evidence of the parent notifying the district of disagreement with the IEP or expressing disagreement with its recommendations, or notifying the district of the unilateral placement at .

Under the circumstances, I find that equitable considerations warrant a denial of an award to the parent for tuition.

ORDER

1. The parent’s request for reimbursement for SN’s tuition at for the 2011-2012 school year is denied.

IT IS SO ORDERED

Dated: May 9, 2012

_____________________________

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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 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 - or 35-day period. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and forms can be found in the Office of State Review website: www.sro.nysed.gov//appeals.htm.

EXHIBITS

DOE Exhibits

1 IEP, 6/24/10, 10 pages

2 evaluation, 3/9/09,^[4] pages

2-A Reevaluation (typed version), 3/9/09, 2 pages

3 Private school report, Fall 2008, 8 pages

5 Final Notice of Recommendation, 7/26/10, 1 page

Parent Exhibits

A Amended Impartial Hearing Request, 2/7/12, 2 pages

B Enrollment contract, 3/21/10, 2 pages

C program description, undated, 2 pages

D Attendance schedule, 2010-2011, 1 page

E Student schedule, 2010-2011, 1 page

F Affidavit, , 6/23/11 and 2/8/11, 2 pages

G Tuition statement, 6/21/11, 2 pages

IHO Exhibits and Documents Entered in the Record

I Original Impartial Hearing Request, 10/24/11, 1 page

II Extension decisions, 2/9/12 to 4/24/12, 3 pages

III IEP, 3/20/09, 9 pages

IV IEP, 4/6/11, 12 pages

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Footnotes

[4] Social history update, 3/9/09, 1 page 4-A Social History Update (typed version), 3/9/09, 1 page