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: April 4, 2012

Record Close Date: April 12, 2012

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 4, 2012

For the Student:

parent

Friend

Friend (via telephone)

Interpreter

For the Department of Education:

District Representative

IEP Teacher (via telephone)

INTRODUCTION

On January 23, 2012, an impartial hearing was requested by the parent. The proceeding was commenced pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a Free Appropriate Public Education (“FAPE”) to . (“the child “) for part of the 2011-2012 school year. No extensions were necessary. The hearing was held at the Department of Education (“DOE”) located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

A motion to schedule was set for March 5, 2012. A pre-hearing conference was held on March 5, 2012. The hearing was then scheduled for April 4, 2012 at 10:00pm. The hearing commenced and was completed on April 4, 2012.

The issue in this case is whether the DOE must restore the child’s paraprofessional (“para”) and change the child’s school. The issue of transportation which was raised in the request was resolved by the parties prior to the commencement of the hearing.

THE PARENT’S POSITION

The parent contends that the DOE denied the student a FAPE by terminating the child’s para and by not changing his school. The parent contends that he in entitled to have the para restored and the child’s school changed.

THE DOE’S POSITION

The DOE contends that the child does not have a right to a school change and that he no longer has any need for a para. Thus, it contends that the child is being provided with a FAPE.

EVIDENCE PRESENTED

The child is a . He is classified . (DOE’s Ex.2.1, T. 77) On the 11/9/10 Indivdualized Education Program, (“IEP”), the Committee on Special Education (“CSE”) recommended that the child’s be terminated. The mother testified that his para was terminated in March 2011. (T. 95) There was another IEP review held on 11/1/11. The mother requested that the be restored that request was denied. , the teacher who helps coordinates Special Education at (T. 34) testified that the para was terminated because the child’s since his last IEP meeting in November of 2012. (T. 34-35 He did not know why the child was ever assigned a para but stated that at this time a para would be too restrictive for the child. He testified that the child was already in a class with a ratio of as well as additional paras. (T. 36-37) There are four adults in the classroom including a licensed special education teacher. (T. 98) He based his statements on conversation he has had with the teachers and the . H testified that the mother became upset when she heard that the para would be terminated and he explained to her that a para was not assigned just for if the is good. (DOE Ex. 4.1, 4.2).

Mr. testified that the child’s and that he is receiving ample instructional support in the classroom without a para. (T. 40) He no longer requires a Plans. (“ ) He testified that the teacher in the classroom is a licensed special education teacher (T. 98). He did not know whether she has received any trainng in teaching an or whether she ever taught a student with . (T.103 ) he said that she has received materials on various topics related to teaching such students. Id. He further stated that there were 14 children on the roster in the child’s classroom but that there were never any more than 12 children in the class during a lesson because due to flexible scheduling the children spend time out of the classroom. (T. 98, 101-102)

Mr i testified that based upon the data he reviewed and conversations he had with the teacher, the child had made academic progress as well this year. (T. 51) He compared the levels of performance from the year before and stated that the child went from having a reading level to A level G or H which to the best of his understanding is early 2nd grade. (T. 54) He also testified that he dos not know the grade level of the child’s math skills; (T. 59) but he progressed above the typical performance of a since he could now add and subtract without help, he understands place values. (T. 59,68) He can count by 2’s, 5’s and 10’s. Id. He is also able to write in complete sentences which he was not able to do before. (T. 67, Complare DOE Exs. 2 and 3).

With regard to the parent’s request to change the child’s school, Mr. testified that in a phase 1 school which means that it is required to accept and to keep all students in its zone. (T. 42) They cannot be transferred unless they in District . (T. 45) testified that she is a service coordinator for (T. 75) She has known the child since he was three. 9t. 72) He was diagnosed with (T. 73) She still sees the child on the . She thinks the child needs additional help but she has not spoken to his teacher. (T. 73-73) she has not obse3rved . (T. 75) The parent testified that she wants the best for her child. (T. 81) She said that she does not think that he has improved and that the teacher agrees with her. (T. 81-81, Parent’s Ex F.) She said that she has observed 14 children in the classroom when she went there for a few minutes the other day. (T. 85) The teacher was in front of the class speaking to the whole group explaining something. (T. 80) She said that the teacher gives too much homework and the child . (T. 94) He was doing better at home when he had a para. (T. 99) She did not state why she wanted to change the child’s school.

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] The DOE has the burden of proving that a FAPE has been provided. It must demonstrate that the program was “reasonably calculated” to provide an “opportunity for education benefit”. In this case, the DOE did not meet its burden.

The sole witness presented by the DOE has no personal knowledge of the child. His entire testimony was based upon his reading of reports and conversation with teachers. It does not appear that these conversations were recent. The most reliable evidence is found in the parent’s testimony and the recent reports prepared by the teacher which seem to match up. These reports show that as of January 2012, the child needs much structure, additional special education attention and extra adult supervision. She also notes that while his behavior may have improved since the elimination of the para last year, it has recently “ She observed that the child and is . More importantly, she notes that the child and . The record is silent as what interventions or techniques she uses to deal with this child in class. The record is silent as to what methodologies she employs to teach this . The record is silent as to what training if any she has had for teaching The record is vague as to the current level of performance of this child. The only evidence is Mr. as to the child’s current level of reading, writing and math, the School Report and the report card completed by the teacher. The teacher’s view of the child’s level of performance does not comport with that of Mr. ’s. The School Report reflects that the child is “ ” in everything except math word problems where he is “unsatisfactory”. It states that he has no and understanding.

Thus, the DOE has produced virtually no evidence to demonstrate how it has provided and is providing the child with an opportunity for an educational benefit during the 2011-2012 school year. Accordingly, the DOE has denied the child a FAPE.

With regard to the parent’s request to change the child’s school, she has presented no evidence as to why he should leave if appropriate supports are provided to him. Contrary to the testimony of Mr that a para is assigned only to address , according to DOE Ex. 4.2, a para may be provided for instructional purposes if the needs of the child warrant it. The child has made minimal or no academic progress this year. Moreover, his behavior has gotten worse. Pursuant to this order, the . The parent can select the para and the child’s teacher will receive training as to how to teach an autistic child if she has had no such training. The notion of a Phase I school is commendable but only if each school has the proper services and teachers within it to meet each special education child’s needs.

Ordered that:

1) The parent’s request to restore the child’s para for instructional purposes is granted. The DOE shall issue an RSA which shall be good for one year within one week of its receipt of this decision to allow the parent to obtain the services of a qualified full-time para who has experience in working with . If necessary, an enhanced rate shall be provided in connection with that RSA.

2) In addition, the DOE shall ensure that the classroom teacher be trained on how to teach at DOE expense, if she has not already had such training.

3) The parent’s request for a change of school is denied.

Dated: April 18, 2012

JUDITH T. KRAMER, ESQ.

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 ON APRIL 4, 2012

PARENT

A Determination of Eligibility for Special Education, dated12/28/05, 1 page

B Report, dated 1/21/09, 1 page

C Report, dated 10/24 and 11/6/08, 4 pages

D Team Conference, dated 3/19/09, 1 page

E Information Release School Report, dated 1/6/03, 4 pages

F Student's Report Card, dated 3/12/12, 2 pages

G Letter from the , Undated, 1 page

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, dated 1/27/12, 1 page

2 IEP, dated 11/9/10, 11 pages

3 IEP, dated 11/1/11, 14 pages

4 NYS Ed. Dept. Field Advisory, dated 1/20/12, 7 pages

5 Parent's Guide to Special Education Services, English, dated 8/20/10, 26 pages

6 Parent's Guide to Special Education Services, Spanish, dated 8/20/10, 25 pages