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 25, 2012

Actual Record Closed Date: June 8, 2012

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2012

Advocate — Student

Developmental Optometrist — Student

(Via Telephone) — Student

SETSS (Via Telephone) — Student

Parents

Parents

Teacher (Via Telephone) — Student

District Rep — DOE

School Psychologist — DOE

Director — DOE

Supervisor — DOE

Supervisor — DOE

By Complaint dated February 14, 2012, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges that the District failed to provide vision therapy to the Student and sought reimbursement for vision therapy and a previous vision therapy evaluation. This latter claim was not referenced in the prehearing conference and was therefore withdrawn at the prehearing conference. (PHC Order and email, IHO Exh. 2) The parents did raise this claim in closing argument. However, since the claim was withdrawn, this IHO (Impartial Hearing Officer) will not consider this claim.

The District moved to extend the decision date because of the need to prepare their case. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to May 30, 2012. (IHO Exh. 3) Both parties again sought to extend the decision date because of the need to review the transcript and evidence. The parties indicated that there was no prejudice to the student. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to June 29, 2012. No objection was raised in connection to any extension. The record close date was June 8, 2012.

FINDINGS OF FACT

The Student is a second grader at , a private school. (28) The Student has issues with reading, particularly decoding, blending, fluency, reading comprehension, phonemic awareness, skipping words. (29, 60, Exh. 4) The Student has issues in regard to intelligibility. (Exh. 4) His reading and writing problems are related to his delays. (182, 190-191)

By school evaluation dated June 16, 2010, the Student was recommended to see a developmental optometrist due to observations about his eye movements. (Exh. C-5)

At school, there are about 23 children in the class. (113) There is an assistant teacher. (113)

The parents were referred to by an who tested the Student. (90) This therapist found very , that he was . (90) This therapist recommended that the parent take the Student to a . (92) An evaluation by Dr. indicated that the Student is really reading with . (95)

The mother is a reading teacher who has worked with her child with “Wilson” techniques. (109) He has , including getting pulled out, help with Title 1. (116) A reading specialist was helping him this year from his school. (117)

An observation by Ms. found the Student . (51; Exh. 8) He sought help from the teacher in . (52)

A psychological evaluation by Ms. found that the Student’s IQ was at the . (30; Exh. 11) Non-verbal skills are . (32) WIAT testing indicated that the Student performed in the , including in reading comprehension. (33-34) Scores were in end of the , and there is need for improvement from the Student. (34-35) He was not performing at . (35) He is in the in writing, but improvement is required in writing also. (36) In terms of perceptual reasoning, the Student scored in the . (38) No visual tracking difficulties were noticed. (39) He mentioned that his eyes were bothering him during the test. (40)

On a visual motor test called the , the Student scored in the average to above average range as assessed by an occupational therapist in July, 201. (68-69; Exh. E) Measures in visual tracking were “functional.” (73)

A vision therapy evaluation conducted by was conducted on 12/12/11. (132; Exh. F) She is a developmental ophthalmologist who looks at the way the eyes work.

(134) She indicates that the Student has . (138) He only uses one eye, which is fatiguing. (139) Dr. that vision therapy helps with reading. (139, 150-151, 154-156)

The parents requested a vision evaluation for vision therapy in November, 2011. (Exh. A)

An IESP review included the observation, the evaluation, the teacher’s report, speech reports. (40; Exh. 4) The teacher expressed concern about the Student’s rate of reading and independent reading at the meeting. (42) Additional goals for phonics and reading comprehension were offered, as well as SETTS services to help with reading tracking difficulties, fluency, word recognition. (47) Vision therapy was considered but the team felt that the primary issue for the and “limited instruction.” (48)

A SETTS teacher was provided after the meeting. (61) These services started in February. (166) Mr. is the teacher, there is no one program that he stays with. (108) The Student gets SETTS three times a week. (166) The teacher comes to the house, and the Student works with the teacher in a separate room. (111) They read together. (111, 165-166) He teaches strategies. (170) The sessions last for 45 minutes. (111)

Mr. has observed that the Student . (162) His whole . (163) He has seen progress in terms of persistence. (163)

The Student gets once a week for an hour. (112)

The Student’s is working with him on . (116)

The Student’s reading has improved recently. (96, 113, 121) He continues to .

(169) In December, he had , would , his with his reading. (173) His confidence level has increased. (175) His head . (175) He uses his . (175) He makes , he is . (193)

trains the . (135) When he first came to see the therapist, he was used to .” (136) They are trying other. (137) Dr. sees the Student once a week in the morning. (156) She performs computer programs with the Student, does exercises with color, works with a stereogram. (158) The charge is $100 per session. (158)

An evaluation from dated March 15, 2012 found that on the VMI (a test of visual motor skills) the Student tested in the with regard to , and in the with regard to Visual Perception. (Exh. D-2) The Student tested in the regard to Motor Coordination on the . It is recommended that the Student “be followed” by a developmental . (Exh. D-4)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. Section 3602-c of the New York Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made. N.Y. Educ. Law Sect. 3602-c(2). Education for students with disabilities means special education programs "designed to serve" students with disabilities. N.Y. Educ. Law Sect. 3602-c(1)(d). Subdivision 2 of section 3602-c of the Education Law requires boards of education to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. These services can be provided to children with disabilities, in appropriate circumstances, according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends. Bay Shore Union Free Sch. Dist. v. T., 2005 WL 3489246 (E.D.N.Y. Dec. 21, 2005); Application of the Bd. of Educ., Appeal No. 04-079.

On a case involving claims pursuant to allegations per Section 3602-c of the Education Law, the same standards apply as in a case containing Individuals with Disabilities Education Act (IDEA) allegations. The District must show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the law, and (b) the IESP developed by its Committee on Special Education (CSE) is reasonably calculated to enable the student to receive educational benefits.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The record supports the finding that the District provided the Student with a reasonable program that was calculated to provide educational benefit. First, the District reacted to the Student’s reading difficulties by providing SETTS services to the Student through the IESP. The record suggests that the Student has benefitted from SETTS services . Second, the Student was also provided with therapy services through the IESP. These services relate in part to the Student’s reading issues. Third, from this record, this Hearing Officer is not convinced that vision therapy services have been or will be helpful to this Student. The record indicates that vision therapy works to address visual motor issues, but the Student has tested well in visual motor skills pursuant to the

VMI. Moreover, the record indicates that the Student’s reading issues are related to his speech, not necessarily his vision. Finally, I find that Dr. Evans-Stein did not clearly explain the connection between vision therapy and reading and did not clearly reference any documented research based on peer-reviewed studies that show that the Student required vision therapy at the date of the IESP meeting. Cf. Stanley and Connie C. V. Metropolitan Sch. Dist., 628 F.Supp.2d 902 (N.D. Ind. 2008).

Since that meeting, the Student has progressed in reading, by all reports. However, the Student has been getting vision therapy only once a week, whereas the Student has been getting SETTS services three times a week and speech and language therapy twice a week. Moreover, the vision therapist did not clearly indicate how such therapy has resulted in improvements to the Student’s reading. I therefore infer that the Student’s progress in reading is mainly due to the SETTS provider and services, rather than the services.

It should be noted that IDEA does not require states to develop IEPs that "maximize the potential of handicapped children." Board of Educ. v. Rowley, 458 U.S. at 189. What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free School Dist., 142 F.3d 119, 132 (2d. Cir. 1998)(citations omitted). Accordingly, I find that the District offered the Student a FAPE in its IESP dated January 30, 2012. The parents’ claims are hereby denied.

ORDER

This matter is hereby dismissed, with prejudice. Dated: June 22, 2012

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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 Request Evaluation, 1 page, 11/30/11 B Second Request, 12/5/11, 1 page C Evaluation, 5 pages, 6/16/10 D Evaluation, 20 pages, 3/15/12 E Evaluation, 3 pages, 7/5/11 1 F Evaluation, 3 pages 2/12/11 G Update, 1 page 3/26/12 H Principal's Letter, 1 page 1/4/12 I Teacher Report, 1 page, 2/20 J SETSS Report, 3/20/12, 1 page K Special Ed Teacher Report, 1 page 1/6/12 L Teacher Report, 1 page 1/17/12 M Title 1 Teacher Report, 1 page 1/3/12 N Hebrew Teacher Report, 3/4/12 Withdrawn O Article from Doctor 2 pages, 6/30/04 P Article, 7 pages, 2/88 Q OEP, 5 pages, 1/13/04

DEPARTMENT OF EDUCATION

1 Notice of Scheduled Resolution 2/27/12, 2 pages 2 Response, 3 pages, 2/28/12 3 FNR, 1 page, 1/30/12 4 IESP, 6 pages, 1/30/12 5 Conference Agenda Sheet, 2 pages, 1/30/12 6 Notice of IEP Meeting, 4 pages, 1/25/12 7 Teacher Report, 1 page, 1/11/12 8 Classroom Observation, 1 page, 1/10/12 9 Teacher Report in Hebrew, 1 page 1/6/12 10 Letter from , 1 page, 1/4/12 11 Report, 5 pages 12/15/11 12 Progress Report, 5 pages 1/26/11 13 Assessment Appointment Letter, 12/15/11, 1 page 14 Evaluation, 3 pages 12/11/11 15 Consent for Testing, 1 page, 12/8/11 16 Parent Letter for Evaluation, 1 page, 12/6/11 17 Report, 2 pages 12/2/11 18 Teacher Report, 3 pages, 11/1/11 19 IESP, 8/23/11, 11 pages 20 Conference Agenda Sheet, 8/23/11, 1 page 21 Evaluation, 7/5/11, 4 pages 22 Teacher Report, 3 pages, 6/13/11 23 Article, 3 pages, 5/18/12 24 Clinical Policy Bulletin, 8 pages, 5/18/12 25 Clinical statements from 9 pages, 5/18/12

IMPARTIAL HEARING OFFICER

1 Due Process Complaint, 2/14/12, 1 page 2 Pre-Hearing Conference Order and Email, 5/22/12, 4 pages 3 Timelines Extension Notices, various dates, 2 pages