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: May 24, 2011

August 16, 2011

November 1, 2011

January 5, 2012

March 15, 2012

Record Close Date: April 19, 2012

Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2011

Advocate — Student

District Representative — DOE

Teacher/CSE (via telephone) — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2011

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2011

Advocate — Student

Parents

CSE- Chairperson Designee — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2012

Advocate — Student

Parents

Associate Director, (via telephone) — Student

District Representative — DOE

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

Advocate — Student

Parents

CSE District Representative — DOE

Psychologist, CSE (via telephone) — DOE

This matter came before me on May 24, August 16, November 1, 2011, January 5, and March 15, 2012, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.§1415(f)(1). The parties requested to submit closing statements in writing. The compliance date was duly extended. A list of persons in attendance and evidence is appended thereto.

BACKGROUND

The student .”) was an during the 2010-11 school year, he is classified as and . The Committee on Special Education (“CSE”) convened on May 12, 2010; the CSE recommended a with related services. Related services of (“SLT”), 1 x and 2 x and therapy (“ ”) 3 x were recommended. The parents disagreed with the recommended program and unilaterally placed the student in a non-approved private school (“NPS”). (Exh. C) The parents seek tuition reimbursement/funding at the NPS for the 2010-11 school year. In addition, the parents request that the Department of Education (“DOE”) provide the same related services as indicated on the last agreed upon IEP and transportation to and from the NPS.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s first witness was , she holds licenses to teach both general and special education. Her current position as a teacher assigned to the CSE, Region requires her to set up testing for the students, observe students and set up CSE reviews. Also, she participates in the CSE reviews. She conducted a CSE review in May, 2010 for (“D.L.”). She reviewed the Individualized Education Program (“IEP”) for the meeting and identified the persons in attendance and their titles. She acknowledged that she failed to write down last name, the parents’ advocate, who appeared by telephone. (Tr. 8-10)

She reviewed (“ .’s”) academic levels as reported on the IEP; the student’s academic level of functioning was on a except for math in problem solving, which was on a 3rd grade level. (Tr. at 14) She discussed his goals on the IEP and admitted that she wrote some of the goals in the short-term objectives box instead of in the box designated for annual goals. She explained that the information filled in the objectives area was what needed to be worked on. The math goals were directly related to the student’s difficulty with problem . (Tr. 16-18; Exh. 1) She did not recall at the meeting that anyone voiced disagreement with the recommended related services or the classification. She noted that in September, 2010 the student would be in the . (Tr. 20-21; Exh. 1)

Next, she reviewed an observation done of the student in May, 2010 wherein (“D.L.”) was described as having a good rapport with the teacher and his classmates. He appeared well groomed and asked for teacher assistance when needed. He showed a good attention span. She had no recollection of anyone objecting to the proposed recommendation for a special class with related services. She opined that she believed that the recommended program constituted a free appropriate public education for (“D.L.”). (Tr. 22-24; Exh. 4)

On cross examination, she admitted that she could not explain why before each goal and each short-term objective there was a blank space. She did not recall if the student was receiving counseling. She confirmed that some of the annual goals were . (Tr. 25-26; Exh. 1)

testified that she is a school psychologist, who works at (proposed school) and has no affiliation with the student. She has worked at the school for the past five years. She described the special education classes available in her school; they are Collaborative Team Teaching (“CTT”) and . She stated her knowledge of (“ .”) was limited to the documents given to her. The documents were his IEP, a teacher report, Final Notice of Recommendation (“FNR”), an observation and the CSE minutes. She reviewed the student’s goals and commented that her classes were for the fourth and fifth grades; (“ .”) was a . She opined that her school would have been able to meet the student’s goals and provide him with an appropriate education. Her school is approximately from (“ .’s”) home. (Tr. 50-52 and 53-54)

On cross examination, she reviewed the IEP and stated that based on the IEP the student was to enter the sixth grade for the 2010 school year. There was only one class for 2010. She was directed to look at the FNR, specifically the class identified as E-31. There were students in the class and the grades covered were the grades. She confirmed that the school had the providers to provide the therapy as indicated on his IEP. (Tr. 55-56 and 57-58) (Exhs. 1 and 3)

THE PARENTS’ CASE

The parents’ first witness was , the associate director of the NPS; she is licensed and certified in early childhood, common branch, special education, reading and school building leadership. She was employed for twenty-five years at another school; the first ten years she was a classroom teacher. The last fifteen years she worked as the principal. She has worked in her current position for five years; the school is located in Brooklyn. Some of her duties include overseeing most aspects of the program from hiring teachers, working on curriculum and working with students and parents. Also, she is the liaison between the general education school and the special education program. The classroom teachers are all certified in special education. The assistant teachers are working towards undergraduate degrees. A speech and language consultant and social workers are available at the school. Mr. is the director of the program. They have one special education class for each grade, first through eighth. (Tr. 66-67 and 68-69)

The average class size has one teacher, an assistant and ten students. There is ongoing opportunity for professional development for their teachers at workshops conferences held outside of the school and some are offered in the school. The student’s teacher for the 2010 school year was ; she taught the grade. There were approximately in the classroom at any given time. At the beginning of the school year (“ .’s”) skills were near and his were at least . The student had some . The school follows the state standards and curriculum. The language consultant goes into the classes and assist teachers in modifying the curriculum and teaching methodologies to accommodate the needs of the students in the class. The student made progress across the board and was mainstreamed for most of the year. She opined that the student received an appropriate special education at the NPS. She noted that he was an . And because of the small class size the school was able to provide the individual attention he needed. (Tr. 70-72 and 7376)

During the 2010 school year the student received counseling and some speech related services, not one on one. He received counseling from a social worker on staff, she believed that the social worker was certified and licensed. She provided pull out services two to three times a week and more when needed. She was his the sessions ran from a half a hour to 45 minutes. She noted consultant would observe the class about three times a week and consult with the teachers on the curriculum and teaching methodology. The consultant provided the only the student received that year at the school. (Tr. 78-81 and 82-84) She could not recall the exact credentials of Ms. , the consultant, but believed she was certified and licensed. The teaching assistants credentials varied, some are working towards a B.A. and some are working towards a Master’s. (Tr. at 84 and at 87)

There were 12 students on the roster and that was the maximum for the year. There were two girls and ten boys. She stated that none of the students were able to receive direct related services in the class other than the counseling. Ms. stated that (“ and his parents perceived that . However, incidents were observed by staff that was perceived by (“ .”) as and in fact did not rise to that level. Based on her understanding the student was . The student did . There was only . Also, in the mainstream class (“ The school , . (Tr. 89-91; 93-95 and 96-97)

School hours ran from 8:15 AM to 4:20 PM, secular studies were from 9: AM to 12:20 PM and the remainder of the day was devoted essentially to religious studies. Sometimes in the afternoon there would be a computer or library class as well as the student studied , not a religious subject.(Tr. 103--105) She stated that (“ .”) did not have a ; he was a . He .(Tr. 107-109) The student had . He was mainstreamed for specialties and in some core subjects. He was mainstreamed early on in the school year, for part of Language Arts, the reading part, not the written program. Tr. 112-115)

On redirect, she stated instructions are provided for the whole group and then on a daily basis small group to individual instructions were provided. The students’ interpretations of things were oftentimes inaccurate. He . There are programs in both schools addressing being conscious of other people’s feelings and standing up for other children if someone is doing something wrong to them. (Tr. 128-130) She recalled that the student spoke to the principal a couple of times. (Tr. at 138)

The father testified that his son was doing well in school and he was receiving his services. He was pleased with his son’s progress. The father acknowledged receipt of the FNR dated May 25th, 2010. He made an appointment to visit the proposed school. The school was not able to accommodate his son because it only had a grade (“ .”) was going into the . The father rejected the placement because it was a than what was designated for (“ on the IEP. (Tr. 148-150) He estimated the amount of tuition that he had paid to the NPS and stated that he was responsible for the balance; the school contacted him daily regarding payment. The father explained that he was self-employed and that his business took a turn for the worse over the past two years. He may lose his home. His financial resources have been exhausted. (Tr. 151-152)(Exhs. D and K)

On cross examination, the father stated the student received the therapy at school.(Tr. at 154) He reviewed the CSE minutes dated March 10, 2011 and explained some of his comments expressed during the meeting and written in the minutes. Initially, he . He spoke to the in class. After the observation, he realized he was wrong. The school provides for instructions for the day and it is incumbent upon the parents to work to reinforce what the school has worked on. The child has . (Tr. 155-157 and 158-160) He did not recall who the writing tutor was. He stated that sometimes he refers to the teachers at the school as tutors. He acknowledged that without the support that he and his wife provided, the student would not be doing as well. The father stated that the school addressed his . The child is in a different school this year because he could not afford the NPS he was attending last year. He believes that (“ .”) is functioning on a level. (Tr. 161-163 and at 166)

THE DEPARTMENT OF EDUCATION’S REBUTTAL WITNESS

, a New York State certified and licensed school psychologist testified that she has worked for the DOE about 12 years. She participated in the March, 2010 IEP meeting and wrote the CSE minutes for that meeting. She recalled that during the meeting the father stated that (“ ’s progress was a direct result of a writing tutor he had hired and not due to the NPS. (Tr. at 172 and at 183)

On cross examination, she stated that she recalled that the father said he was .(Tr. at 180) she testified that the team was more concern with his more on . However, the student managed to progress academically despite and the CSE recommended a general education placement with supports for the following year. (Tr. 186-187)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) 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]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized educational program. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). If a student’s behavior impedes his or her learning or the learning of others, the CSE must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” when developing,, reviewing and revising an IEP ( 20 U.S.C. §1414[d][[3][B][i]; see 34C.F.R. §300.324[a][2][i]; 8 NYCRR [d][3][i]).

The burden of persuasion in an administrative hearing challenging the IEP is on the party seeking relief. Schaffer v. Weast, 126 S.Ct 528,537[2005] In New York, it is the local educational agency (“the DOE”) that has the burden to establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Bd. Of Educ. v. Rowley, 458 US 176, at 205[“the importance Congress attached to these procedural safeguards cannot be gainsaid”]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 US at 206; M.S. v. Bd. Of Educ. of the City of Yonkers, 231 F.3d at 102).Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129[2d Cir. 1998]) These detailed procedures “lie at the heart” of the statute (Evans v. Bd. Of Educ. of the Rhinebeck Cent. Sch. Dist., 930F. Supp.83, 93 [S.D.N.Y. 1966]) They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 24 [S.D.N.Y. 2000]; Evans, 930 F.Supp. at 93).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 37071). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).

I have reviewed all the testimonial and documentary evidence in the record. In the instant matter, the parents have alleged that DOE has failed to provide their son with a FAPE. The record supports the parents’ position. The parties agree that the IEP dated May 12, 2010 is controlling for purposes of this matter. The IEP clearly indicates on the first page that in September, 2010 the child will be promoted to . It is undisputed that the FNR offered the student a placement . Testimony throughout the hearing process firmly established that the only grade class setting. (Tr. at 56; 57-58)The father stated he refused the placement because it was not a . He and his wife had worked hard on building up the child’s . A lower grade placement would be detriment to the child’s self esteem. (Tr. 149-150) In addition, the parents allege that that the student’s goals as drafted on pages C-5, 8 contain one word annual goals for literacy, math and expressive writing. Also, both pages fail to include the name of the student or any other identifying information as do all the other goals in the IEP. I find based on the aforementioned that the District failed to offer the student a FAPE for the 2010-11 school year.

The NPS selected by the parents provided the student with a program that produced progress as evidenced by testimony in the record. (Tr. at 74; at 158 and at 187) The student was in a small structured program that was able to provide the academic and emotional support he needed. The student had a lot of were on hand to support him with his . The student was mainstreamed for specialties and for part of his Language Arts providing a least restrictive environment for the student and an opportunity to be educated with typically developing children. The parents selected an appropriate program for the student and accordingly have met the second prong of the Burlington/Carter test.

Equitable considerations support the parents; the parents participated in the IEP meeting, visited the proposed school and provided adequate written notice to the CSE of their intent to place the student in the NPS.

ORDER

The Department of Education shall reimburse the parents for tuition at the , for the 2010-2011 school years in the amount of $12, 800. upon reasonable proof that the tuition for (“ only was $25, 600. In any event, the DOE shall pay whatever half of the tuition was for the student, up to $12,800, for the secular component of the student’s education. Dated: April 24, 2012

_________________________________

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TJ:dl

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 MAY 24, 2011

PARENT

A Impartial Hearing Request, 3/29/11 3 pages B Program Description, 2 pages C DOE IEP, 5/12/10, 10 pages D FNR, 8/11/10, 2 pages E Ten-Day Notice, 8/18/10, 1 page F Teacher's Report, 2010/2011, 1 page G Class Profile, 2010/2011, 1 page H Class Schedule, 2010/2011, 1 page I Evaluation, 2/2/11, 5 pages J Parent Proof of Payment, 2010/2011, 3 pages K Affidavit of Payment, 2010/2011, 1 page L Tuition Contract, 2010/2011, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 5/12/10, 12 pages 2 Teacher Report, 4/20/10, 1 page 3 Final Notice of Recommendation, 12/7/10, 1 page 4 Observation, 5/5/10, 2 pages 5 Minutes of CSE meeting, 3/10/11, 1 page