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 26, 2012

Actual Record Closed Date: May 11, 2012

Hearing Officer: Mary Noe, Esq.

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

Attorney — Student

Parents

Director — Student

Teacher — Student

CSE Representative — DOE

CSE Special Ed Teacher (Via telephone) — DOE

IEP Coordinator at — DOE

School Psychologist (Via telephone) — DOE

The parent requested an impartial hearing on or about March 14, 2012 and I was appointed thereafter. A hearing was held on April 26, 2012. The district was represented by Andrea Santoro Esq. The parent was represented .

The student The Parent is challenging the District’s recommendation on the Individualized Education Program (IEP) dated May 9, 2011. The student currently attends .

The evidence submitted at the hearing revealed the following information about the student:

The IEP dated May 9, 2011 (District’s Exhibit 2) recommends a special class (12:1:1) in a community school with related services.

The IEP dated May 9, 2011 indicates that the student’s present performance is in the average range. There is a . As of the date of March 7, 2011 the student achieved the following instructional levels:

letter and word skills -

vocabulary –

number skills –

expressive skills –

receptive –

The IEP Academic Performance and Learning Characteristics as related to indicate the following:

The student is She has . She has . She has a difficult time

The Academic Management needs indicates speech/language therapy, repetition and rephrasing and positive reinforcement.

The IEP Performance indicates: the student is a

The

The a week for thirty minutes individual sessions. The student has low muscle tone and gets easily tired and .

Health/Physical services, three times per week for thirty minutes minutes

The Evaluation (Exh. 7) is dated March 7, 2011. The summary of the results indicate that as measured by the Stanford Binet- fifth edition the student is in the average range. There is a . On the Kaufman Survey of Early Academic and Language Skills, the student is in the . She had a more difficult time in responding to items involving verbal comprehension, expression and reasoning. The student demonstrated strengths in her on the expressive language scales. The student appears to understand more than she verbalizes.

The student’s Progress Report from The for Special Education dated April 2011 (Exh. 4) indicates the following:

Social Skills: The student prefers to peers by working with a peer to complete tasks. The student’s articulation .

Reading. The student recognizes the letter name and sound for all capital and lowercase letters . She is currently learning to read . She is learning to answer .

Handwriting: The student can trace letters and properly form letters once taught. The student’s

Math: The student can add and subtract numbers 1 – 10 with manipulatives. She recognizes numbers 1 – 100 and can count by rote to 100 with 95% accuracy. She can read time to the hour, identify pennies and nickels.

Science: The student the difference between solid and liquid, objects which float and sink, identify the four seasons.

Social Studies: The student understands rules for school, home, outdoors and bus.

The student’s Occupation Therapy Update dated January 2011 (District’s 5) indicates that the student displays 0 minutes individual sessions.

The student’s Physical Therapy Update (Exh. 6) indicates the student has as well as negotiating obstacles safely. She has individual sessions.

, the school psychologist testified on behalf of the district. Ms. testified about the contact sheet she wrote (Exh. 10) which she described what was discussed at the CSE meeting including the issues addressed, who participated and what was discussed. A teacher participated by phone and provided , and related services that the student was receiving.

Parent and teacher agreed with the academic goals that were reviewed, program recommendation were discussed and explained to the parent, evaluation was reviewed and the student’s teacher agreed with the recommendation. Parent asked for a smaller class. It was explained that it would not benefit the student. A copy of the IEP was mailed to the parent. (T. 34, 35)

, special education teacher testified that she was a member of the CSE team and the recommendation was for a class. The documents reviewed were the student’s progress reports, current academic levels provided both through the progress reports and by the teacher, new testing as well as the current academic levels. The district’s psychologist who did the testing submitted the goals. (T. 39) The evaluation was sent to the parent with the appointment notice to the parent. (T. 59) The evaluation was discussed with the parent at the CSE meeting. (T. 60, 61) The identified the student’s instructional levels. (T. 71) The who provided the services to the student submitted the goals (T. 40-41) The Physical Therapist who provided the services to the student submitted the physical therapy goals. (T. 41) The parent had read and discussed the goals with the student’s providers and believed them to be appropriate. (T. 251 – 252)

Ms. stated that an integrated co-teaching class was considered and was felt to be most appropriate for the student, with two full-time teachers. (T. 78, 81) The team offered this to the parent and it was discussed. The team rejected it because the student’s teacher and the parent and too for the student at this time. This type of environment would be considered for the following year because the student’s academics were not so far below grade level. (T. 42, 82) The co-teaching class would provide an the opportunity to learn at her level with an IEP as well as the modeling the general education population in the class, as . However, the teacher and parent strongly disagreed. (T. 42) The team therefore recommended a . In the student’s current class there is only six or seven children. The parent felt that a class of maybe six or seven would be more appropriate. The team explained that this would absolutely be too restrictive. It would impede the and there would be limited . (T. 43) The student’s

(T. 45)

testified that the student would have been placed in a class. (T. 87) There are three paraprofessionals in that classroom. One is a program para-professional, who is attached to the particular program, and there are two crisis management paraprofessionals in the class. (T. 88, 89) One student is - . (T. 108) The other paraprofessional is for a student who is restless, very active and needs redirection. (T. 108 –109) Both students have a . (T. 109)

In the beginning of the 2011 – 2012 there was no however in October the school had a speech therapist. (T. 90) Students who received speech prior to October received Related Services Authorization’s (RSA) for . (T. 91) All other services were provided to the students. (T. 92) The majority of the students that would be in this student’s class are classified impaired. (T. 92) The special education students eat lunch with the general education population. (T. 99)

, the IEP teacher and the Special Education Teacher Support Services (SETSS) teacher at P.S. 398 testified that the reading curriculum used at the class the student would have been attended is by . The program is for special needs students and at risk students breaks down the reading skills so that the students have to learn in terms of main idea, sequencing, compare and contrast. The readability is much easier for students who are at risk or students that may have a learning disability or cognitively disabled. For phonics, Fundations, is used which was created by Wilson. For the math, Everyday is the program. All of these programs have an intervention piece to give further support to students who are struggling. (T. 101) Adaptive physical education would be provided to this student. (T. 105) are built into the program with students working in small groups. (T. 117)

Parent’s argue that Ms. has never met the student and therefore has not basis to believe that the recommended program is appropriate. The student has never been a student in public school therefore Ms. is unable to meet the student. However, Ms. has a Masters degree in Special Education and has been employed by NYC Department of Education for eleven years. Ms. ’s testimony was credible and based on the Department of Education structure for addressing students with needs such as the student.

The district relied on the provider’s reports as to , physical therapy and the provider. These providers, who are employed by the private school, either submitted their reports and/or participated at the IEP meeting. (Exh. 2) Additionally, the providers submitted the goals and objectives for the student.

There was no evidence that the parent was unable to participate fully. Contemporaneous notes indicate that the parent participated and academic levels, were addressed and the parent, teacher were in agreement. At the IEP meeting, the notes indicated as well as the testimony that the parent requested a small class. (Exh. 10) The parent’s request of a smaller class was in fact recommended over the recommendation of a different class recommended by Ms. .

The parent’s testimony that she did not receive the evaluation till the IEP meeting was found not credible. The parent testified that she accompanied her daughter to the evaluation, spoke with the at the time of the evaluation and after the evaluation. The discussed her findings with the parent. (T. 250) And the evaluation was discussed during the IEP meeting. (T. 251)

I find no merit to the parent’s argument as to the members of the IEP team.

As to the student’s low muscle tone which is reflected in the IEP, the parent has never requested a barrier free school or any accommodation. The student’s class at the private school is on the second floor. (T. 226)

DISCUSSION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). A school district offers a FAPE "by providing personalized, 546 F.3d 111, 118-19 [2d Cir. 2008]; instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ. Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583

F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. 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 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

The district’s recommendation of with related services meets the special needs of this student. The IEP has incorporated the current levels of functioning and goals which are accurate according to the student’s needs. The class in a community school provides the least restrictive environment and provides the student to social with general education peers. The student’s abilities are average and therefore the student’s integration into a general education environment is providing this student with a free appropriate public education in the least restrictive environment.

Having determined that the district offered the student a FAPE in the LRE for the 2011 - 12 school years, it is irrelevant as to the appropriateness of the private school. (M.C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 08-158; Application of a Child with a Disability, Appeal No. 05-038). Dated: May 14, 2012

_______________________

MARY NOE, ESQ.

Impartial Hearing Officer

MN: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 DESCRIPTION

A Impartial Hearing Request dated 3/13/12, 4 pages B Findings of Fact and Decision, dated 2/6/12, 46 pages C Due Process Response, dated 3/22/12, 4 pages D Letter to CSE Chairman, 5/27/11 2 pages E Omitted F Letter to CSE Chairman dated 8/24/11, 2 pages G Letter to CSE Chairman dated 9/26/11, 3 pages H Progress Report, dated 2/22/12, 2 pages I Enrollment Contract dated 9/1/11, 2 pages J Addendum, 2011 K 2010 Tax Returns, 3 pages L October 11th and February 2012 IEP, 11 pages N Affidavit dated 3/26/12, 1 page O Related Service Affidavit dated 3/29/12, 1 page

DEPARTMENT OF EDUCATION

1 Withdrawn 2 IEP dated 5/9/11, 18 pages 8 3 Letter from the Parent dated 8/11/11, 1 page 4 School Progress Report dated 4/11, 2 pages 5 dated 1/11, 2 pages 6 dated 2/11, 1 page 7 dated 3/7/11, 5 pages 8 FNR dated 7/27/11, 1 page 9 Meeting Letter, undated 10 Contact Sheet, 2/5/10, 5/9/11, 1 page