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: February 9, 2012

February 23, 2012

March 7, 2012

Actual Record Closed Date: March 13, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2012

ESQ., Attorney — Student

Educational Consultant — Student

Parents

Chairperson Designee — DOE

Special Ed Teacher — DOE

Social Worker (Via Telephone) — DOE

Special Ed Teacher (Via Telephone) — DOE

School Counselor (Via Telephone) — DOE

Assistant Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 23, 2012

ESQ., Attorney — Student

Education Consultant — Student

Parent/Mother — Student

DR., (Did Not Testify) — Student

Administrator Special Education, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2012

ESQ., Attorney — Student

Education Consultant — Student

Mother — Student

DR., Founder/Director, (Via Telephone) — Student

Intake Coordinator,. (Via Telephone) — Student

DOE Representative — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated December 9, 2011, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. The hearing took place on February 9, 2012, February 23, 2012 and March 7, 2012, at the request of the parties, timely extensions were granted. The parent was represented by attorney . The DOE's case was presented by , DOE Representative. The parents submitted 28 exhibits, hereinafter referred to as “Exhibits A-BB”, (the list of exhibits is attached hereto as “Attachment A”). The Department of Education submitted 28 exhibits marked as “Exhibits 1-28”. In the interest of justice, three exhibits were entered as hearing officer exhibits. The following witnesses testified on behalf of the DOE: the child’s special education teachers, the school social worker, the school guidance counselor and the assistant principal. The following witnesses were called by the parent to testify: the student’s parent, the student’s evaluator and the intake coordinator of the nonpublic school.

The issues presented are: 1) whether the student was denied a free and appropriate education for the following school years: 2009-2010, 2010-2011 and 2011-2012 and if so, whether the student is entitled to compensatory services; 2) whether the IEP offers the student an appropriate program and if it does not whether the nonpublic school selected by the parent is appropriate.

DUE PROCESS REQUEST

The parent’s due process request asserts that the student was not provided an appropriate program from January 2010 to June 2010, 2010-2011 and for the 2011-2012 school years. As a result of the DOE’s failure to provide the student with an appropriate program, the parent seeks an order placing the child in an approved nonpublic school and hours of compensatory services in the form of individualized instruction by a certified reading teacher trained in the approach to instruction. The parent has identified as the provider for the compensatory services.

The parent is seeking a determination that the DOE failed to offer an appropriate program for the 2009-2010, 2010-2011 and the 2011-2012 school years. The parent is seeking compensatory services and prospective placement in an approved setting identified as the , New York. Additionally the parent is seeking costs and fees. (See Exhibit 1)

DOE’S POSITION

The DOE claims that the student was provided an appropriate program for the 2009-2010, 2010-2011 and 2011-2012 school years. The DOE also claims that it made recommendations in consideration of the parent’s requests and as such, it offered the student appropriate programs for the 2009-2010, 2010-2011 and 2011-2012 school years.

The student, whose date of birth is , is classified as ; is not in dispute. In the 1999-2000 school year he was enrolled in an early intervention program. (See Exhibit H) When he was repeating the grade his mother referred him for an evaluation. The evaluation conducted in March 2006, reported that the student was functioning within the of the . Additionally, the evaluator described , and as “exceptional”, further the assessment described the student as having appropriate social skills. (See Exhibit A)

The CSE met on May 14, 2009 and developed an IEP for the 2009-2010 school year. The CSE recommended that the student be placed in an integrated co-teaching class with the related services of , and . (See Exhibit 27) The CSE reconvened on December 2, 2009 and reviewed updated testing. (See Exhibit 26)

evaluations were conducted in 2009; the first one was conducted on July 8, 2009, which found a statistically significant point difference between the and . Additionally, the knowledge index was noted to be in the . (See Exhibit D) In the evaluation conducted on November 25, 2009, the evaluator recited the previous testing results and performed educational assessments. The results of the educational testing indicated the child’s reading skills were on a grade level and that his skills ranged from a year to as level. (See Exhibit E) For the 2009-2010 school year, the child’s IEP recommended a CTT class with the related services of and , and . (See Exhibits 26, 27) The CSE has made recommendations that were consistent with the parent’s requests.

By letter dated July 12, 2010 the parent indicated that she wanted her son to go to a general education placement with a Para. She explained that she was doing things on her own and that her son was not learning in the CTT class and she was looking for a school where he would learn. (TR 253) The CSE met on August 23, 2010 to develop an IEP for the child. Review of the IEP indicates that the student’s present level of performance was unchanged from the December 2, 2009 IEP. In fact, the IEP generated from the August 23, 2010 contains identical goals and objectives. (See Exhibit 25) For the 2010-2011 school year the child was placed in School where he had . (See Exhibit Y) Additionally, teachers’ reports from the school establish that the child’s interfered with his educational progress. (See Exhibit J)

evaluations were performed in 2011: the first was performed on 5/7/11 and the second was performed on 7/29, 8/11/11. The evaluation dated 5/7/11 indicates that the student has potential for . Additionally, the evaluation reported that the student’s skills were his instructional level. (See Exhibit I) The evaluation conducted on 7/29 and 8/11/11 indicates that the child has abilities. Additionally, the child’s reading skills were assessed to and the percentile. A and evaluation performed on 8/2/11 places the child’s language skills between the and the percentile (See Exhibit Q) A teacher’s report dated June 6, 2011 places the student’s reading skills between the grade and grade levels and his math skills on the grade. (See Exhibit J)

The parent testified that when the student was in grade she was concerned with her son’s his , , and . (TR 206) She further testified that she sought help for her son and that she complained that her son was , but that her. (TR 213)

The parent was quite specific in her requests for her son’s placement. The parent submitted letters dated 6/2/09, 5/26/09 indicating that she wanted her son to stay in general education with special class services for part of the day like literacy support, social skills development programs, , and counseling. (See Exhibit C)

The student was placed in an integrated co teaching class with SETTS for the 2011-2012 School Year. The witnesses from the school were in agreement that the current setting was not appropriate. Additionally, the school requested a reevaluation based on the current setting’s inability to meet the child’s needs. (Exhibit 9)

The student’s teacher described his performance from the beginning of the school year. She testified that (his) academic progress was very minimal. (TR 66) The teacher testified that she didn't think that the classroom setting was appropriate for him. And that he could benefit from a smaller school setting where he could concentrate more on his academic work as opposed to having for him where he would . (TR 66)

The school counselor testified that the current placement is not appropriate even with the school’s attempt to modify it. (TR 152) He testified that the school “improvised a lot to see what we could fit him. No, we have a there that is full, but we made him a tradeoff for the teacher. They’re saying let's try to see if he could fit in therefore a day or so, seeing that it's smaller than the regular classroom, and he's still didn't hold”. The school counselor testified that he has a great deal of daily contact with the student. (TR 163)

The school social worker testified that the student needs a small classroom. (TR

113) The student’s SETTS teacher testified that she could not say that he has made progress with her. (TR 139) The assistant principal testified that the parent is very and . He testified that there are students in the CTT class, which was not appropriate for the student. (TR 189)

The parent submitted her request for an impartial hearing by fax dated December 8, 2011. On January 11, 2011 the CSE met and recommended that the child be placed in a 10 month program in a self contained class of children, a teacher and a paraprofessional assigned to him. The CSE also recommended the related services of , and counseling services.

The student was evaluated by the founder of on June 24th. She testified that when she performed the assessment she started out by giving him the Test, to give her a sense of his , and skills. She also assessed a writing sample, the test of written language, to give her a sense of how he and his with writing. She ended with a inventory to assess his and . She found that he tested at a level for both his skills. He also tested at a level for his skills. She testified that he was the expected level for his and . She testified that “this is a time for him where these reading, spelling, writing skills will start to affect almost all aspects of school and the academic demand will so that if these skills are not addressed using the right research-based multisensory strategies, that he not only will but he's at of further without the right support in place right now”. (TR 318, 319) The witness also testified that she would recommend an of hours per week over a -year time period, which translates to approximately hours, because this is a number that would be very effective in significantly seeing real changes in a positive way in his academic skills. (TR

320. 321) However, the witness did not provide any data to support her conclusion that hours is required compensate the student for the lack of appropriate services. (TR 328)

The Coordinator from the testified that she met the student and believed that he is very appropriate for the program. She further testified that the student would have a lot to gain from the specialized program. . She described the program as a small structured class setting which uses behavior modification for the children to earn rewards. She testified that the student’s would be addressed in the schools’ reading lab, which uses the reading program. She testified that the school has available to do the school-based that's mandated on the IEP and that they maintain contact with the parents. (TR 350, 353)

STATUTE OF LIMITATIONS

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 C.F.R. § 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir.2003]).2 An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D][i]; 34 C.F.R. § 300.511[f]; 8 NYCRR 200.5[j][1][i]).

In terms of the parent’s disagreement with the recommendation made for the 2009-2010 school year, the claim accrued when the student’s annual review took place and the parent had reason to know of the alleged action that formed the basis of her complaint. The CSE held an EPC on 5/14/2009 wherein the student’s placement was changed to an integrated co-teaching classroom with the initiation of beginning Fall 2009. The IEP generated at that time indicated that the IEP and notice of recommendation was given to the parent on 5/14/2009. Accordingly, the parent had two years from such date to contest the recommendation. In light of her instant request for due process dated December 9, 2011, I find her claim challenging the 2009-2010 IEP is barred by the statute of limitations.

COMPENSATORY EDUCATION

Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (see Newington, 546 F.3d at 123 [stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Child with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE];see also Application of a Student with a Disability, Appeal No. 09-111; Application of the Bd. of Educ., Appeal No. 09-054; Application of a Student with a Disability, Appeal No. 09-025; Application of the Bd. of Educ., Appeal No. 08-060; Application of the Dep't of Educ., Appeal No. 08-017; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).

I find that the student was denied appropriate services for the 2010-2011 and 2011-2012 school years. I am not persuaded that the CSE was driven by the parent’s preference with reference to the 2010-2011 school year and clearly, its recommendation for the 2011-2012 school year was not what the parent requested.

I find that the denial of appropriate services resulted in a and . I find he is entitled to compensatory services due to the denial of appropriate services to make up for the services he did not receive during the 2010-2011 and the current school year. I am not persuaded however, that hours is an appropriate amount. Accordingly, I find that he is entitled to hours of direct services and hours of indirect services.

I am persuaded that the individualized instruction offered by tutoring will allow the student to make up the ground lost due to the lack of appropriate services.

I find that is an appropriate setting and will provide the student with I find that the failure of the DOE to provide appropriate services for the 2009-2010, 2010-2011 and 2011-2012 resulted in a and skills that the child evidenced in his evaluations previously conducted by the DOE. As a result, he is entitled to receive services to enable him to make educational progress commensurate with his abilities. .

Although the parent requested costs and fees, she did not submit any evidence to support such claim, accordingly, her claim for costs and fees is denied.

ORDER

1. The DOE failed to provide the student with FAPE for the 2009-2010, 2010-2011 and 2011-2012 school years.

2. The student is entitled to hours of direct services in the form of tutoring, which shall be provided by .

3. The DOE shall directly pay the tutoring service upon receipt of an invoice and proof of the student’s attendance for no more than hours of tutoring services, which may be provided on school days, school holidays and non-school days.

4. The DOE shall directly pay the tutoring service for consultation and observation up to hours to enable the tutor to consult and observe the student at the school and to ensure that the tutoring services are coordinated with and support the student’s classroom curriculum and reading program.

5. The student shall be immediately placed in school, including the extended school year.

6. The DOE shall issue an RSA to the parent so that she may secure for the student to be given once weekly for minutes.

7. The CSE shall reconvene to amend the student’s IEP to include an extended school year and revise its recommended placement to the school.

8. The student is entitled to suitable transportation to to be provided by the DOE as soon as possible, but no event more than calendar days from the date of this decision and order. Dated: March 26, 2012

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A - Evaluation, 5 pages B IEP, 5/19/09, 13 pages C Letters from the Parent to Mr. D Evaluation dated 7/8/09 4 pages E , dated November 25th, 2009 20 6 pages F IEP dated December 2nd, 2009, 12 pages G IEP dated 8/23/2010, 10 pages H Social History, dated March 30th, 2011, 6 pages. I Eval, dated 5/7/11, 8 pages J Teacher Report, 3 pages K Notice of CSE Review, June 10th, 2011, 1 page L Report, dated June 2011, 1 page M Notice of CSE Review, June 16th, 2011, 1 page N Assessment Letter, 1 page O Letter from the Parent P Parent's request for Eval, July 19th, 2011, 1 page Q Evaluation, dated 7/2/11, 2 pages R Eval, 4 pages S IEP, dated September 13th, 2011 T FBA, 2 pages U IEP, 12 pages V IEP, dated 1/11/2012, 1 page W Public School Report Card, one page X School Admission Questionnaire for Teachers and , 3 pages Y Meeting Minutes, 11 pages Z Letter of Acceptance, 1 page AA Request for the Impartial Hearing 12 pages. BB New York State - - form, dated 5/18/2009

DEPARTMENT OF EDUCATION

1 Demand for the Impartial Hearing 12 pages 2 Resolution Conference, 3 pages 3 Assessment 2 pages 4 IEP, 2 pages 5 SETSS Teacher Report, 2 pages 6 Assessment for Levels, 1 page 7 Spelling Inventory, 2 pages 8 Teacher's - - photo notes, 11 pages 9 Request for Reevaluation, 1 page 10 Teacher Report 11 (phonetic), pages 12 Parent's Letter dated July 2010 2 pages 13 Parent Letter, 1 page 14 CSE Review Rationale, 1 page 15 CSE Letter, dated 6/10/2011, 1 page 16 Parent Letter, dated 6/20/20111 page 17 CSE Rationale, dated July 6th, 20111 page 18 Related Service Progress Report1 page 19 Evaluation, 4 pages 20 Evaluation 2 pages 21 Eval, 6 pages 22 IEP, 14 pages 23 IEP, 18 pages 24 IEP, 16 pages 25 IEP from August 23rd, 2010, 10 pages 26 IEP, 8 pages 27 IEP from 5/14/09, 14 pages 28 IEP from 12/23/2008, 11 pages

IMPARTIAL HEARING OFFICER

IHO-1 Letter of Acceptance, 3/5/12 School IHO-2 Level of Services Letter School IHO-3 Printout on and Education Center, Printed on 3/6/12