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 14, 2012

June 26, 2012

September 24, 2012

Actual Record Closed Date: October 6, 2012

Hearing Officer: Theresa Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14. 2012

Advocate — Student

Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26. 2012

Advocate — Student

Parents

CSE District Representative — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24. 2012

Advocate — Student

Education Coordinator (Via Telephone) — Student

Director (Via Telephone) — Student

Parents

CSE District Representative — DOE

This matter came before me on May 14, June 26 and September 24, 2012; pursuant to the Individuals with Disabilities Education Act (IDEA) 20 U.S.C.§1415(f)(1). The compliance date was extended for additional days of testimony.

BACKGROUND

The student is a ( ); she is attending a non-approved New York State School. The Committee on Special Education (CSE) convened an IEP meeting on May 26, 2011; the CSE recommended that the student be placed in a special class, with related services and special education transportation. Individual occupation and group speech therapy were recommended twice a week, in thirty minute sessions. Also, a single individual session of speech was recommended, for the 2011-2012 school year.

POSITION OF THE PARTIES

The parents argue that the Department of Education (DOE) failed to provide their daughter with a “free appropriate public education” (FAPE) on procedural and substantive grounds. They are seeking direct tuition payment/reimbursement to the for the 2011-2012 school year and provision of the related services as recommended on the student’s IEP. Also, they are seeking door to door bus transportation, to and from the .

The DOE contends that its recommended program was appropriate and that the CSE recommended a program that would have provided the student with a FAPE, if she had attended.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s only witness was Ms. , a New York State certified school psychologist, who currently works with the CSE 4, in district . She conducted a evaluation of the child in December, 2011. She used the Wechsler Intelligence Scale for Children (WISC) and the Wechsler Achievement Test, Second Edition (WIAT). She explained that the WISC and WIAT are commonly used standardized assessments to determine . The child’s full scale-IQ score was indicating that she performed within the in comparison to her peers. Academically she was in all areas; she performed best in the areas of sight-word reading and decoding. Math was her ; she performed in the extremely low range. She . (T 56-59)(Exh. 4)

Ms. testified that she participated as a at the student’s May 26, 2011 IEP; she recommended a class in a community school. She recommended because the student had a lot of difficulty with . The was recommended to address her delays in terms of comprehension and to strengthen her . She discussed the goals, each goal was considered by the team. The team considered integrated co-teaching, but rejected that because the student needed a lot of support throughout the day. She stated that she had participated in the previous IEP meeting in February, 2011. She noted that two changes were made between the February, 2011 IEP and the May, 2011 IEP; the CSE added an individual and special education transportation was added. The speech therapy was modified at the request of the and the mother submitted documentation for the special education transportation. (T 60-61and 63-65)

On cross-examination, she further explained that the speech modification was to change one group session to an individual session. (T 69-70) She admitted that she could not confirm with absolute certainty that the parent who appeared via telephone, for the May meeting, was provided with the reports submitted by the providers and the school. She discussed the significance of the child’s low IQ of ; she stated that anything lower than indicates that the child may be . She stated that further testing was needed to determine if that is the case. She acknowledged that her evaluation did not indicate that any further testing had been undertaken. She had asked the teacher to provide a Vineland. In addition, she acknowledged that although the team considered an integrated coteaching classroom there was no general education teacher on the team. She stated that would not provide a general education teacher and that the District did not have one available. However she asked the parent if she was amenable to proceeding without a general education teacher, the parent agreed to go forward. (T73 -76)

The psychologist admitted that she did not indicate in her report any results or comparisons from previous testing. She recalled, at the May meeting that other IQ testing was discussed. She stated that no was conducted prior to changing the . In addition, she acknowledged that was on the February IEP; however, it was terminated prior to the May IEP based on the physical therapy progress report. The therapist reported that the student had met her goals. There was no evaluation done prior to terminating the services, however everyone at the meeting agreed to terminating the therapy. (T. 80-83 and 84-86) In addition, she stated that the child’s providers indicated that the February, 2011 goals should be continued onto the May, 2011 IEP and that is the reason that some pages of the May IEP have both IEP dates. She initialed a couple of dates because the provider put in the wrong date, she corrected the dates.(T 97-99 and 102-105)Ms. acknowledged that her evaluation indicated that the child’s IQ was and that her findings conflicted with the teacher’s estimate, the Vineland results and a prior DOE evaluation. The prior evaluation showed an IQ of . (T. 139-141)

THE PARENTS’ CASE

The parents’ first witness was Ms. , the program director of ; she has held that position for twenty years. She has a permanent teacher’s license in special education from kindergarten through high school. In addition, she is certified for school administrator supervisor and district administrator. She described as small, selfcontained classes in the local day schools for students with learning disabilities, speech and language impairment, ADD. The program focuses on children whose disabilities adversely impact on their ability to access academic and social skills. The program follows New York State (NYS) core curriculum; it is modified to meet the children’s academic needs. She stated that her responsibilities include hiring and supervising the staff, maintaining communication with the host school, staff and parents. She supervises , the educational coordinator and helps develop the educational program for each student.

(T. 154-157)

She stated the teachers in the program are certified in special education; some are also certified in general education. The majority of assistant teachers are either college or graduate students completing their studies in special education. In addition, on staff they have a part time and a consulting Professional training via workshops is provided to the staff several times a year and there is ongoing training provided by Ms. .(T. 158-160)

Ms. stated that she has known the student since she came to , in the 2010-2011 School year and attended . The student had eleven students in her class during the 2011-

12 school year and her teacher was , who was assisted by two assistants throughout the day. Also, there was one full time health para assigned to a specific student. She described the student as having significant and . Her difficulties included and ; she had problems processing and understanding information. The child was very distractible and struggled with staying focus with the task at hand. She had visual perception issues which impacted on her ability to write properly. Academically, she were very limited. Her math computation was better than her ability to do word problems. She had difficulty with organizing her thoughts and with higher order skills, such as comparing and contrasting items. The student was very but and . (t. 161-164 and 165-168)

The director opined that her program was appropriate for the student because it is customized to meet the individual needs of the student and provides a lot of individual instruction as well as small group instruction. Her staff is well trained, they are able to refocus her, to make sure she understands the task at hand, provide positive feedback and adequate direct support to build her confidence and academic skills. The program has a social skills group component that meets weekly with the psychologist and provides several ongoing mainstreaming opportunities. She was mainstreamed for gym, science and computer lab, recess, lunch and class trips. The student’s special education needs required a lot of individual support and she believed that a class would not have met the student’s needs. (T. 169-172)

On cross examination, she explained how the NYS core curriculum was modified to meet the student’s skill level and she noted that test modifications were also implemented. She discussed the weekly social group moderated by the psychologist which was attended by all the students and teachers. The skills taught in the psychologist’s presentation were further reinforced in the classroom by the teachers. (T. 177-180) On redirect, Ms. stated the student received speech therapy with vocabulary instruction, three times a week and occupational therapy twice a week, in thirty minute sessions. (T. 186-187)

The parents’ next witness was , the educational coordinator of the program; she has held that position for fourteen years. She is NYS certified in general education K through 12 and has a license in teaching reading. Prior to coming to she worked 16 years in the New York City public school system in various positions including teaching different grades, she was the ELA writing coordinator and taught workshops to school personnel. Some of her duties at require her to supervise the teachers in the program, order books and materials and work on the curriculum. In addition she does teacher training, attends CSE meetings and reviews the children’s IEPs. She works closely with the teachers and is familiar with the children. She is in the classroom at different times, on a weekly basis and engages in ongoing communication with the teachers. She stated that she has known the student since she started at Cahall and during the 2011-12 school the student was in the . The student received two or three report cards during the school year. (T. 189-192; 193-195 and 196-197)

Ms. stated that she observed the student on an ongoing basis and that she knows the student very well. She explained in detail how the student was assessed in the beginning of the school year in reading and math to establish a starting point for teaching her. She recalled that the student has a high level of distractibility which adversely impacts on her ability to improve her academic skills. In the beginning of the school year her reading was around a level and by the end of the year it was about . In math she was at the beginning of third grade; she was at the end of the level upon completing the school year. She described the multi-sensory approach to the child’s academic progress. She discussed the breakdown of the lessons, the books used and the extensive one-on-one support provided to the child. Also, a lot of visuals were used, a lot of repetition and she was given strategies to figure out how to tackle problems.(T. 202-205 and at 206)

She testified that she believed the was an appropriate program; the teachers assessed her academic skills, to determine what her were. They were able to discern that she was a slow learner and was . The teacher to student the teachers ample time to provide individual instruction to the student. Also, they were able to use different materials to determine what worked best for the student. She discussed the two IEP meetings that she participated in; she appeared in person at the first meeting on February 3, 2011. At this meeting, she was informed by the district’s psychologist, Ms. , that the student’s IQ was in the s. She stated that she was absolutely sure that such a low IQ was incorrect, based on her own interactions with the child and observations of the child. She pressed the issue at the meeting about the IQ numbers and asked if the child had been previously tested, for a point of comparison. Ms. looked in the child’s file and indicated on a prior assessment she had scored in the . The educational coordinator attempted to probe the IQ differences and was told that she was not a and that this was not her domain. (T. 211-212; 215-218 and 219-222) (Exs. 7 and 8) Moreover, Ms. told her “Alice you know this child is mentally retarded. What are you fighting?” … (T. at 224)

Ms. requested that the psychologist, Dr. , participate by telephone with her for the May, 2011 IEP meeting, in anticipation of following up on the IQ dispute. However, she was told at the meeting that the IQ matter was not open for discussion as it had been addressed in the previous meeting. She reviewed the May IEP section which indicated what other program was considered; it indicated a CTT placement was considered. She noted that there was no general education teacher at the meeting. Moreover, she stated that she had not received the May IEP until the subject hearing occurred. Ordinarily, when the mother receives the IEP she provides it to the school. The mother is very conscientious about the child’s paperwork. (T. 225- 227 and 228-229) She reviewed several of the goals and recalled the two IEPs had the same goals. Also, she found some of them inappropriate and some were not specific/ measurable. She noted some indicated the child would perform on grade level without identifying the grade; whether the grade would be the one identified through WIAT II or the teacher’s estimate. She stated the goals appeared generic and not specific to the subject student and neither IEP had decoding goals. (T. 234-237 and 238-240)

Next, she discussed her visit to the proposed public school with the mother. The recommended classroom was a very small classroom with about eleven students, a teacher and an assistant. The parent coordinator took them to the class. The room itself was small and had the walls covered with materials. There was a student lying on the floor in the corner of the room, neither adult said anything to him. There appeared to be no behavior modification plan on the walls or desk. The children appeared to be working on a different activity; they did not appear to be focused. She spoke to the teacher for a few moments; the teacher said the children had a variety of classifications, including . The teacher was not able to answer their questions regarding the classification for each child; she referred them to the principal. They ran into the principal in the hall; she was not able to answer their questions since she was rushing to a meeting. In sum, they spent about 25 minutes in the school. She opined that it was not an appropriate placement for several reasons. The room itself was too small and too busy for a . There was only one girl in the classroom and she found it about the boy lying on the floor, unattended to. Moreover, they were not able to obtain information on the classifications and ages of the student. (T. 243-246 and 247-249)

During cross examination, she gave examples of the child’s distractibility. She stated you could be giving the child an assignment and she . The child may focus on the window or something in her desk. When queried about the goals being the exact same on both IEPs, which had about eighty days between the two meetings. She responded that the goals should have been updated to reflect the child’s progress doing that period. She recalled that the teacher provided a report for each IEP and it was updated as were the teacher’s estimates on the child’s performance for each IEP. She stated that she did not know if the child doing that period, since sometimes the doctor was trying and the child needed to . However, as far as she could recall. (T.250-253) (Exs. 7 and 8) On redirect, she acknowledged that a IQ places a child into the . She confirmed that the CSE never discussed anything about or wrote anything in her IEP about .(Tr. 292-293)

The mother testified that her daughter has been receiving IEPs and special education services since pre-school. Initially, she placed her daughter in a private preschool; the teacher contacted her and suggested that a special education program was warranted. She placed her in another private setting, in a special education class, for two years. She placed her child in public school, for the third grade, the student had to repeat third grade. She became aware of the ; she submitted the student’s IEPs and other documents to and the school accepted the student. (T. 296-298)

The mother stated that provides a lot of one on one instruction and that she has a tutor for her daughter after school. She discussed the May 26, 2011 IEP meeting and said she believed the proposed placement would not have provided enough help for her daughter. She visited the proposed site and found it . Some of the children were , the classroom was small and her daughter required more one on one help than one para could provide in a class of twelve students.(T. 301-304) The mother testified that she did not receive the May IEP in the mail; she received it at the hearing. The IEP indicated it was mailed; the date was omitted. She confirmed that the tuition was $30,500.00 for the elementary school. She acknowledged signing the tuition contract and the $200. payments made from September to March, 2011. She continued making payments after March on her credit card. (T. 306-308) (Exs. E, F, I and K)

On cross examination, the mother stated she visited the school once with Ms. Feltheimer and was not certain as to who the persons were that she spoke to at the school. She reviewed the placement letter; she did not know who had written on the letter. It was not her handwriting. The November 10, 2011 date written on the letter held no significance to her.(T. 313-315) (Ex. D) During redirect, she stated that her advocate and staff from the Cahall program participated at the May IEP meeting. She did not object to the proposed placement at the meeting and did not recall whether the advocate or the staff objected to the placement. (T. 325-327)

FINDINGS OF FACT AND DECISION

A purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]). 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[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 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 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 (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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (id.). "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" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). 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 (Carter, 510 U.S. at 14).

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]; see also Viola v. Arlington Cent. Sch. Dist., 2006 WL 300449 (S.D.N.Y)). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]).

In the instant matter the parent alleges that the DOE committed several procedural and substantive violations. The record shows that this student has been receiving special education services since preschool. A IEP meeting was convened in May, 2011, the CSE considered an integrated co-teacher class; there was no general education teacher at the meeting. It is also significant that the CSE considered a co-teaching class since Ms. ’ evaluation revealed the student to have a full scale IQ of , she stated that any score would raise concern about . She had noted that the student was significantly below grade level in all areas. (T. at 73 and at 58) In addition, Ms. admitted that she did not compare her December, 2010 examination to any previous evaluations.(T. 80-81) Ms. acknowledged that there were significant differences between her test results and the teacher estimates on the child’s skills in math and reading comprehension. She found the child to be performing at the in math and the teacher’s estimate placed her at the beginning of . (T. 119-120; Ex. 7)

Ms. testified that during the February 3rd, 2011 CSE meeting, she questioned Ms. ’ findings regarding the IQ. She stated unequivocally there was no way the child could be functioning at such a low level and keep up with the pace of her work in class. Her own ongoing observations of the child in class and knowledge of the materials used in her class clearly indicated that the child was functioning on a much higher level. When she pressed the issue at the CSE meeting regarding the IQ, Ms. looked in the child’s folder and noted that on a previous DOE evaluation, the child scored a IQ. (T. 216-

217) However, when Ms. raised the issue regarding the significant differences between the two IQs, she was ” and told that she was not a , it was not her domain. Subsequently, at the May, 2011 IEP meeting, Ms. had a psychologist from her school participate. She did so, in an effort to follow up about the IQ issue. She was told by the DOE staff that the discussion regarding the IQ had been addressed and that the team was moving on. (T. at 221 and at 222)

Moreover, it is noteworthy that this hearing officer requested a legible copy of the February, 2010 IEP which contained the IQ score and the evaluation which resulted in that finding. The DOE was not able to produce a legible copy of the IEP and was not able to find and produce their evaluation which resulted in the findings of a IQ. (T 136)The mother testified that she did not receive the May, 2011 IEP until this hearing was commenced. In addition, when the DOE initially disclosed the May, 2011 IEP it did not have the goals. (T. at 27 and at 30) Also, the DOE was not able to establish that it provided the parent with any of the reports relied on at that meeting. (T. 72-73) I find based on the totality of the aforementioned substantive and procedural violations that the DOE failed to provide the student with a FAPE for the 2011-2012 school year.

Next, a review of the selected by the parents for the child appears to have met the child’s special educational needs. The was customized to meet the individual needs of the student; it provided a lot of one on one and small group instruction. The classroom staff was large enough to closely monitor the student’s performance and to have someone refocus her when she became distracted. The program has a social skills group which helped the student with her . Ms testified how they worked on improving her . The student has progressed, she went up a level in her reading and in math she moved up from a beginning grade books. The program addressed her related service needs. (T. 186187; 200-202 and 204-205) I find that the provided the special education and related services needed to meet the unique needs of the student and that the student made meaningful progress. Nothing in the record indicates that the parents were not cooperative. I find the equities requirements weigh in favor of the parents.

ORDER

The Department of Education is directed to reimburse/fund the child’s tuition at the in an amount not to exceed $25,500. ($4500. deducted for religious instruction) upon reasonable proof of payment. Dated: October 16, 2012

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TRJ:gc

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 Impartial Hearing Request, dated 1/10/12, 4 pages B School Description, 3 pages C Ten Day Notice, dated 8/22/11, 2 pages D Placement Letter & fax confirmation, dated 5/26/11, 2 pages E Tuition Contract, dated 4/28/11, 2 pages F School Affidavit, dated 3/11/12, 1 page 19 20 G '11-'12 Class Schedule, 1 page H Attendance Record, 1 page I Proof of Payment, 5 pages J BOE IEP, dated 2/3/11, 15 pages K U.S. Individual Income Tax Return, dated 3/17/11, 2 pages

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request Letter, 1/10/12, 3 pages 2 IEP, 1/19/10, 13 pages 3 Survey Interview, 12/10, 7 pages 4 Evaluation, 12/20/10, 5 pages 5 Final Letter of Recommendation, 2/18/11, 1 page 6 CSE Review IEP Meeting Letter, 5/6/11, 1 page 7 IEP, 5/26/11, 14 pages 8 IEP, 2/3/11, 15 pages