Impartial Hearing Decision

CORRECTED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 26, 2012

April 25, 2012

May 23, 2012

Actual Rec Close Date: June 13, 2012

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Special Education Teacher (via telephone) — Student

Co inator (via telephone) — Student

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

Attorney — Student

Parents

(via telephone) — Student

Teacher (via telephone) — Student

Teacher, (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

Attorney — Student

Teacher — Student

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

Attorney — Student

Parents

Director, (via telephone) — Student

Social Worker (via telephone) — Student

Employee, (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

— Student

The parent requested the hearing on February 24, 2012. I was appointed on February 21, 2012. The first day of hearing was on March 21st and a request by the parent’s attorney was granted to adjourn the date and extend the compliance date. A day of hearing was on March 26, 2012. The parent’s attorney requested that we adjourn prior to a full day of hearing because of a doctor’s appointment. That request was granted. A third day of hearing was held on April 25th. The parent’s witnesses were unavailable on that day. A fourth day of hearing was scheduled on May 8th and I was unable to appear. The final day of hearing was held on May 23, 2012.

The student is a year old student currently attending the in a class. (T. 213) She is classified as . The parents are challenging the IEP dated 3/28/11 and requesting tuition reimbursement for the 2011 – 2012 school year. The IEP recommends a 12 month program in a special class ( ) in a specialized school with the following related services: a week for minutes in a group of and a week for minutes in a group of . (Exh. 3)

The IEP indicates that the student is on a grade level and her skills are on the grade level. The IEP reflects that acc ing to the student’s progress report, she has herself in and with presenting material in class. The student’s ability to is stronger than her . A relative strength is in . When tested with the QRI on 1/25/11 her was on a grade level and her level was on a grade level. On the w identification subtest of the ORI, the student performed on the grade level. The student has been described as a . The student’s math teacher estimates her skills to be on a grade level and her skills on a - grade level. The IEP recommends in their Academic Management Needs section a small group instruction, directions repeated and rephrased as needed, tasks broken down into small sequential steps, graphic organizers/charts/graphs/checklists; manipulatives; teacher direction/assistance and direct teacher modeling; repetition and review; visual/tactile cues and multisensory approach. (Exh. 3)

The IEP reflects in the Social/Emotional Performance that the student is a who . She is to to help her her effectively. She has been applying learned strategies to with . She is becoming and has been and for the of . She her in to and for . The IEP Social Emotional Management Needs specifies group instruction and for . (Exh. 3)

The IEP Transition specifies that the student will integrate into the community with minimal support, attend a job training program with minimal support, live independently with minimal support and research a variety of agencies/community services to learn about job possibilities. (Exh. 3)

The Academy Progress Report dated December 2010 for English Language Arts instructor noted that the student and . The student has been the since the beginning of the school year. Although the student in all , she does not to , an or . (Exh. 4.3)

The Academy Progress Report dated December 2010 for instructor’s comments that the student is , . She sometimes in her and relies on the while . The student independence in “ ” and and has . It takes to the student to or once she has an . (Exh. 4.4)

The Academy Progress Report dated December 2010 for 2 indicates that the student works and and . She would benefit from taking a more when with projects. (Exh. 4)

The Academy Progress Report dated March 2012 for English Language Arts 4 indicates that the student has in her to and to use evidence to support her . The student participates in class activites her participation in whole class and group discussions is . (Exh. G.3)

The Academy Progress Report dated March 2012 for indicates that the student demonstrated skills at an emergent stage in . She was able to with . (Exh. G.4)

The Academy Progress Report dated March 2012 for indicates that the student can . (Exh. G.6)

In a psycho-educational assessment dated January 4, 2008, the student’s functioning was within the of . Her is in all areas of and of . The student’s academic functioning were in the for her age. The student’s overall of individual were at the of the grade level, her of were grade level. In the area of , the grade equivalent was , in the student achieved grade level. The examiner concluded that the student could benefit from educational support in a class setting to address her needs. Continued would address her delays in and areas as well as . The recommends . (Exh. 5)

In the IEP Meeting Minutes, the Parent Concerns indicate that there was , no , the student is still . On the “ ”( ), the student is on a level. The CSE discussion indicates that the student’s is than her . The student is a . The student’s areas of need were discussed and goals updated. On the “ ”, the student is on a grade level. The CSE recommendation indicates that the student needs . She has mastered . She is now working on early skills, the goals updated and the academic management needs updated. (Exh. 6.1)

The student attends the School . During the course of a week she receives four periods of , five periods of , (Exh. M)

, a special education teacher attended the IEP meeting on 3/28/11. She also observed the student in 2009 and 2010. (T. 41, 70) She testified that and were recommended because the would address the and to her and the would address her and skills. (T. 23) A 12 month program was necessary for this student. (T. 24) Ms. recommended a class so she can and to access the curriculum. The student also requires an in the classroom to help her stay . (T. 25) The student was diagnosed with . (T. 33) Ms. stated that the IEP team considered a class but it was rejected because it was unable to meet the student’s needs. (T. 31-35) travel was recommended. (T. 36 – 37)

Ms. stated that the classroom observation or the evaluation were not discussed at the meeting. (T. 42) At the meeting, the team asked the English Language Arts teacher for her present level of performance and what the projected goals would be. (T. 46)

, the co inator testified on behalf of the school district. There is a whole transition curriculum. There are work sites, students from as well as training. The majority of the students all get experience and may have or experiences at the end of the student’s education. These sites include retail locations, library locations, hospital locations, nursing homes and cafes. (T. 81, 90, 91) There is a full-time travel trainer at the school. The students have an evaluation and referral to determine whether the parent and the student will go through a travel training program as well as safety on the street. (T. 83 – 84, 95) There are certified teachers to provide physical education and to both the student and parents. (T. 84, 97) This student’s needs are similar to other students at the school. (T. 86) The school offers related services. (T. 86)

The district special education teacher testified that she taught at the recommended school in New York City in July 2011. (T. 110) The class was a class but there were less than students in the class and para-professionals. (T. 113) The students are to years old and functioning in and from a grade to a grade. (T. 114) The students were classified as and who was in class for a few days only. (T. 116, 158) This student is similar to the students in her class. (T. 134)

The classroom has to and students were assigned seats based on their and whether they needed to be close to an adult. There is a board a boards and wall with w s. (T. 119, 120) The curriculum is a leveled curriculum, meaning that there is , and . (T. 112, 171) The students were grouped based on their grade level. A para-professional sat in the group as well as Ms. who worked with the gradefunctioning students. Ms. would guide the lesson. (T. 115, 127, 128, 129, 130, 132) She was also able to pull individual students to conference with them daily. (T. 121, 166) The assessments used were and . (T. 117, 131) Ms. testified her class was on the floor and she transitioned the students along with the para-professionals. During the Ms. created her own research projects for the students to complete. Also the students went on trips to for , , and ; . (T. 122 – 123, 168) The trips provided with other students, learning to , and and giving the . (T. 123) Ms. would provide time to with student’s . There were daily points to be earned. (T. 135 –

136) The student would have access to the computer, a library, cooking. (T. 136) In er for the student to she would and the para-professionals worked with the groups. (T. 138) Ms. called the student’s home each week to give a report. (T.

145) Ms ’s class did not go out to work but the school has a work program for the students. (T. 175, 181) , the assistant head of the Academy testified. He regularly speaks with the student’s teachers. The student is a and she is on the grade level, somewhat . The student has and significant . The student needs when there are . (T. 192 – 193) She is a and . She needs a lot of . (T. 194) At she takes classes in . (T. 195) The student has an . (T. 196)

testified that she is a head special education teacher at Academy. The student is in a class of students between the ages of and years old.

(T. 214) Ms. is the student’s and teacher. The student displays , in she with elaborating on ideas, she often does not her had to or .

(T. 215 – 216) The student requires . The student with her but doesn’t . She works . (T. 217) She requires - support in the classroom. (T. 219) Ms. ’s program is for months. (T. 239)

a testified. The student presents with issues. (T. 248) need to be , she often needs a . Sometimes she needs to be more as to what . Expressively, the student is . she doesn’t . During , she needs to maintain and , and . (T. 248 – 249) Ms. submitted a progress report (Exh. G-12) The student received scores of and indicating that she shows an and a at her level. (Exh. G – 12) The student requires and services during the school year. (T. 257)

, Director of the Academy testified that she saw the student or times a day at the , in the morning meeting, at arrival and dismissal and in the classroom when she observed her. (T. 274, 286) The academy is designed to reinforce the academic and social skills that are developed in the classroom during the academic year. During the , the student was in a class of students with teachers, off-site the ratio was students with one teacher. (T. 277) Ms. stated that the student needs . She needs and review of any to skills in a structured environment. The student’s are in , so the small group opportunities with teachers being able to . (T. 280, 287) Ms. testified that in the the student was able to and she to in all of the at a level that was appropriate for her. She did not require additional support in the literacy, activities.

A checklist that lists the content goals and observations was used as an assessment tool.

(T. 291)

, a social worker and chair of the Transition Department at the Academy testified that the transition skills were to prepare the students for post high school. The transition class in 2010 – 2011 had two adults. (T. 295, 309) At meetings with the student and her parent, Ms. explained understanding how to access services when the student is years old. (T. 297, 309) In class, the student is to , . The transition class does not include training, training, training or . (T. 312, 313) In the transition class, units are broken down into very small steps. (T. 299 – 300) Ms. testified that the transition goals in the IEP were inappropriate for the Student because the student will require a much more and program when she . (T. 306) The student will need someone with her on the job for the foreseeable future. Access is not an appropriate adult service for the student (T. 307 – 308) Ms. develops her own curriculum for the student depending on the needs of the students in class, however the goals are for the entire class. (T. 310, 311)

, Director of Student Services at the Academy testified that she has observed the student in class and has worked with the student as a teacher. The student has significant in and . (T. 317) The student is in and and has . (T. 318) Ms. attended the IEP meeting as well as the student’s and teacher. (T.

319) Ms. did not agree with the CSE recommendation because the student would not make or gains and a program in a specialized school would not meet the student’s needs. (T. 322, T. 340) Ms. testified that she did not invite to the IEP meeting the student’s , . The IEP is an accurate reflection of how the student was doing at the at that time. (T. 333) Ms. stated that besides the program recommendation, she did not express any disagreement about the discussions at the IEP meeting. (T. 336) Ms. testified that the student needs a , environment which uses a range of teaching strategies and methodologies. The student needs a program which provides both the support and her and . (T.

317) The student requires a program that allows her to develop her , needs, such as , , needs. (T. 338)

The parent testified that she did not tour the recommended school because she had done so in the past and . (T. 367 – 368) The parent believes the is appropriate because it is a school, the student gets lots of , skills and the school is . (T. 370) The parent believes that if the student were to go to a public school she would need a para-professional. (T. 387)

DISCUSSION

A board of education may be required to pay for educational services obtained for a student by the student's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]).

In determining whether the IEP proposed by the district was appropriate, the Court must determine "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free School Dist. 142 F.3d 119, 129 (2d Cir.1998) quoting Board of Educ. v. Rowley, 458 U.S. at 206-07.

Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years (4 C.F.R. § 300.303[b][2]; 8 NYCRR 200.4[b][4]). The procedure for a reevaluation requires that a group that includes the CSE and other qualified professionals, as appropriate, to conduct an initial review of the existing evaluation data including information provided by the student's parents, current classroom-based assessments and observations, and observations by teachers and related service providers (34 C.F.R. § 300.305[a][1]; 8 NYCRR 200.4[b][5][i]). Such review may take place without a meeting (8 NYCRR 200.4[b][5][i]). Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational disability, the student's present levels of performance, whether the student needs special education services, or whether any additions or modifications to the special education services are needed (34 C.F.R. § 300.305[a][2]; 8 NYCRR 200.4[b][5][ii]). If additional data is needed, the school district shall administer tests and obtain other evaluation materials as may be needed to produce the needed data (34 C.F.R. §

300.305[c]; 8 NYCRR 200.4[b][5][iii]). However, before administering tests or other evaluation materials to reevaluate a student with a disability, a school district must obtain informed parental consent (34 C.F.R. § 300.300[c]; 8 NYCRR 200.5[b][1][i]).

The student was years old at the time of the CSE review. On March 28, 2011, the CSE relied on a Psychoeducational Assessment dated January 4, 2008, which was three months past the three year re-evaluation requirement.. (4 C.F.R. § 300.303[b][2]; 8 NYCRR 200.4[b][4]). The student had been a student of the since grade. (T.

191) The CSE team relied on the following documents: Academy progress reports, the student’s file, classroom observation and the psychological. (T. 22)

All parties that testified agreed that the student was functioning at approximately a grade level.

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]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 student, 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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

In the present case, with all the opportunities the parents and the to discuss the student’s information concerns and elicit information they believed to be required, neither substantive harm nor significant impediment of parental participation occurred.

The parent at the hearing requested services under the general request for “related services.” No evaluation was requested or conducted. It is impossible to understand the nature of the student’s specific without such an evaluation.

Both the School District and the Parent have chosen the same program of a class with a teacher – student ratio of . (T. 213, Exh. 3) And the parties agree that the student is reading on a grade level and his ability is grade level.

to the testimony of the teachers and providers at the Academy, the student’s are and . She is a student and does not . She needs a lot of . (T. 194) The student displays , in she with , she often does to or . (T. 215 – 216)

Academy teachers and providers address the student’s needs with when there are . (T. 192 – 193) The student requires with her . She works . (T. 217) She in the classroom. (T. 219) need to be , she often needs a or . Sometimes she needs to be as to . , the student is . During , she needs to and with her , and .

The district’s recommendation of a . The IEP Academic Management Needs specifies instructions, as needed, , and , and . (Exh. 3)

The recommended class included a leveled curriculum, meaning that there is , and . (T. 112, 171) Ms. , a special education teacher in a class testified that students were grouped based on their grade level. A para-professional sat in the group as well as Ms. who worked with the grade level. Ms. would guide the lesson. (T. 115, 127, 128, 129, 130, 132) Ms. was able to conference individually with the students daily. (T. 121, 166) The assessments used were rubrics and checklists. (T. 117, 131) During the Ms. created her own research projects for the students to complete. Also the students went on trips to for , , and ; by . (T. 122 – 123, 168) The trips provided with other students, , skills, and and the of . (T. 123) Ms. would provide time to to deal with student’s . There were daily points to be earned. (T. 135 – 136) The student would have access to the computer, a library, cooking. (T. 136) In for the student to she would tap on the desk and the para-professionals worked with the groups. (T. 138) Ms. called the student’s home each week to give a report. (T. 145) Ms ’s class did not go out to work but the school has work student. (T. 175, 181)

The IEP goals were developed collaboratively in conjunction with the team. The teacher were asked if the student met the goal. If she was still working on that goal, it would remain in the IEP and the teachers were asked if they had any additional goals that they wanted to add to the remaining goals. (T. 49.).

As to the transition needs, the IEP recommends integration into the community with minimal support, attend training program with minimal support, live independently with minimal support, research a variety of agencies/community services to learn about possibilities. (Exh. 3-14)

Based on the student’s needs as articulated by the student’s teachers and providers and the psycho-educational evaluation, I find that the district has recommended an appropriate program for this student.

Because I have found that the district recommended an appropriate program, I need not address the appropriateness of the program selected by the Parent or equitable considerations (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000] ["If the challenged IEP was adequate, the state has satisfied its obligations under the IDEA and the necessary inquiry is at an end"]; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 134 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 03-058). Dated: June 15, 2012 Corrected Date: July 27, 2012 (Corrections Made to Exhibit Listing)

___________________________

MARY NOE, ESQ.

Impartial Hearing Officer MN:jj

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 REC

PARENT

A Corrected Impartial Hearing Request, 2/24/12, 4 pp. B Due Process Response, 2/23/12, 3 pp. C Letter from Parent, 8/22/11, 3 pp. D IEP, 1/7/10, 11 pp. E Academy Program, Description, 1 p. F Academy Program Description, 5 pp. G Progress Report, 3/2012, 14 pp. H Affidavit, , 3/7/12, 1 p. I Academy Contract, 2 pp. J Enrollment Contract, 2/11/2012, 3 pp. K 2011 Attendance Report, 2/28/12, 1 p. L 2011/2012 Attendance Report, 2/28/12 9 M 2011/2012 Class Schedule, 1 p. N Federal Tax Return, 4/26/09 O Social Security Benefits, 3 pp. P New York State Education Department Teaching Assistants’ Certification

Requirements, 3/2/11, 4 pp. (ID Only) Q NYSDOE Paraprofessional Certification Requirements, 3/2/11, 2 pp. (ID Only) R NYSDOEE Qualifications for Employment as Full-Time Paraprofessional,

Undated, 2 pp. (ID Only) S Special Education Service Delivery Report, 12/31/11,^[1] p. (ID Only) T Academy,^[2] pp. U Academy 2011 Curriculum Outline V Closing Brief

DEPARTMENT OF EDUCATION

3 IEP, 3/28/11, 14 pages 5 6 4 2010/2011 Progress Report, 13 pp. 5 Psychoeducational Assessment, 1/4/08, 6 pp. 6 Meeting Minutes, 3/28/11, 2 pp. 7 Notice of IEP, 2/11/11, 1 p. 8 FNR, 6/15/11, 1 p. 9 Closing Brief

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Footnotes

[1] Due Process Complaint 2/24/12, 5 pp.

[2] Due Process Response, 2/23/12, 3 pp.