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 15, 2012

June 14, 2012

Record Close Date: July 11, 2012

Hearing Officer: Robert L. Nisely, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2012

Attorney — Student

Parents

Parents

Student

Center Director (via telephone) — Student

(via telephone) — Student

Attorney — DOE

Attorney — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2012

Attorney — Student

Parents

Parents

Attorney — DOE

Attorney — DOE

Social Worker (via telephone) — DOE

INTRODUCTION

On March 20, 2012, the New York City Department of Education (“DOE”) appointed me to act as the impartial hearing officer (“IHO”) in a case brought under the federal Individuals with Disabilities Education Act (“IDEA”) [20 USC § 1415(f)(3)] by the parent (“Parent”) of . (“Student”). The Parent requested the hearing by filing a due process complaint, dated March 19, 2012, with the DOE.

BACKGROUND

The Student was born in 1993 and resides in District 4. At all times relevant to this case, he was classified as and the parties stipulated at the hearing that this classification was not in dispute (T. at 321). The Student has attended the (“ ”) in under the authority of a Nickerson letter since tenth grade (T. at 252-3).

Before discussing the testimony and evidence presented at the hearing, I shall give a brief overview of the .

In October 2011, the at the in New York City conducted a examination of the Student at the request of the Parent (Parent D-1). The evaluation was conducted on October 10, 13 and 21 by , Psy.D., who testified at the hearing.

After administering the Wechsler Intelligence Scale for Adults, Fourth Edition (WAIS-IV)to the Student, Dr. found that he had a Full Scale IQ of , which placed him in the range (Parent D-4). Using the Comprehensive Test of Phonological Processing (“CTOPP”) to measure his phonological processing abilities, she determined that the Student had “ ” in this area and had “never mastered these fundamental skills necessary for the development of reading” (Parent D-5).

Dr. also measured the Student’s nonverbal skills with the WAIS-IV, concluding that his ability to work material fell within the range (Id). However, she noted that his performance in this area was stronger than his verbal performance (Parent D-13).

According to Dr. ’ report, the Student’s verbal working memory and processing speed were in the Borderline and range respectively (Parent D-6). However, the report also noted the existence of some areas of relative strength.

For example, Dr. wrote that the Student had “well developed abilities” on visual memory tasks and had “strengths in retaining information both verbally and visually” (Parent D-9-10). The Student also had “solid” executive skills, she noted in her report (D13).

Dr. employed the Woodcock Johnson Tests of Achievement (“WJ-III”) to evaluate the Student’s academic levels, finding that he was in the Impaired range in most reading and writing tasks (Parent D-11). However, arithmetic was an area of relative strength, she observed (Id).

In the social and emotional domain, she found that the Student “struggled with ,” which she attributed to his academic difficulties (Parent D-13).

At the conclusion of her report, she rendered the following DSM-IV diagnoses: and (Parent D-14). She also made a series of twenty two recommendations, chief among which were recommendations to provide the Student with therapy, individual on a weekly basis, and from a learning specialist experienced in working with teenagers (Id).

She also recommended that the Student be pulled from class daily into groups of no more than 3 children to address his needs and that he receive remediation through a multi-sensory reading program such as the Lindamood Bell Learning Process or the Wilson Reading System (Id).

The record in this case also contains reports of three other psychological evaluations conducted in 2009-11 (Parent E, H and J). However, these evaluations were only sparingly mentioned at the hearing and their findings were largely in accord with those reached by Dr. .

The Student was also tested at the Lindamood Bell Learning Center in New York City and at GA (Parent B, DOE #7). These test results will be discussed when I summarize the testimony given at the hearing.

The three Individualized Education Program (“IEP”) relevant to this case were developed at Committee on Special Education (“CSE”) meetings held on January 12, 2012, March 17, 2011 and June 24, 2010 (Parent K, L and M). All of these IEPS essentially contain the same provisions. For example, they all provide that the Student be placed in an class in a New York State approved school or in a school to be designated by the Central Based Support Team (“CBST”) (Parent K-6, 9; L-1; M-1).

It is undisputed that the CSE’s intent was place the Student at GA, which a Social History, dated August 3, 2011, described as a “New York State public school serving students with special needs, grades 7-12” (Parent G-3).

All of the IEPs required the Student to receive speech and language therapy and counseling as related services, along with various testing accommodations (Parent K-6-7; L-19; M-16). The IEPS uniformly described the Student as academic delays (Parent K1; L-17; M-14).

On March 19, 2101 the Parent filed a due process request with DOE, alleging that DOE had failed to provide the Student with a fair and appropriate public education during the 2009-10, 2010-11 and 2011-12 school years (Parent A-1). In particular, the request alleged that DOE had not provided the “intensive reading remediation that he needs” (Parent A-2). As a remedy, the request demanded that the DOE pay for 480 hours of tutoring services at Lindamood Bell “as both compensatory services and Free Appropriate Public Education (“FAPE”) for the three school years in question and pay for his public transportation expenses to and from Lindamood Bell (Parent A-3).

At the hearing, the Parent’s counsel made clear that the requested services were intended to supplement, not replace, the school based services the Student was receiving at GA (T. at 330-1)

DOE’S CASE

The DOE’s first witness was , who testified via telephone that she is a special education teacher at , where she teaches English and reading (T. at 24). She holds a Master’s degree in special education and is certified to teach special education in grades K through twelve (T. at 25).

She testified that she taught the Student for two periods a day in the 2010-11 and 2011-12 school years (T. at 29). She explained that the classes were part of a program called ”), which she described as an based program that uses a Ms. testified that in both school years the Student was in a class and that a reading specialist pushed into class three days a week (T. at 27,34, 37). According to her testimony, the specialist was “basically co-teaching” during her push-ins (T. at 37).

The classes break into small groups approximately three times a week, she explained, with each group consisting of no more than three children (T. at 42). The Student does better in small groups than if he is taught alone, she observed (T. at 43).

Discussing the results of the Diagnostic Online Reading Assessments (DORA) administered to the Student, Ms. explained that they demonstrated that the Student had made progress during both the 2010-11 and 2011-12 school years (T. at 54, 72). In particular, according to her testimony, the most recent reports showed that he had made “great progress” with word recognition; had “maxed out” on phonics; was at a grade level in oral vocabulary and a grade level in comprehension (T. at 72-3). She acknowledged, though, that the Student still had difficulty with high frequency words because of his cognitive problems (Id).

Concerning the Student’s progress, she also testified that when he had started the PAF program in 2010, he was at the 45th -50th level, but had now advanced to the 175th level (T. at 68-9). She opined that the Student’s overall reading level is now at the grade level (T. at 41).

Ms. commented on the Student’s attendance record, pointing out that he was absent two to three days a week in both the 2010-11 and 2011-12 school years (T. at 78, 81). The Student was “very rarely” in attendance during his first period class, she observed (T. at 80).

The Student’s irregular attendance adversely affected his ability to achieve his IEP goals, according to her testimony (T. at 64, 67). She testified that the Student would make “much more progress” if he attended class more consistently (T. 85).

On cross-examination, Ms. acknowledged that she was not certified in any reading program and did not have any specific training in working with (T. at 108). She also agreed that the Student’s reading levels had been “low” for the last ten years (T. at 114).

DOE’s only other witness was , who testified out of order via telephone after the conclusion of the Parent’s case. She testified that she holds a Master’s degree in social work and is a licensed clinical social worker (T. at 300). She has worked at for seven years providing to the students (Id).

According to her testimony, she has been counseling the Student for the last eight months and meets with him once a week in her office (T. at 301-2, 304). There is no set schedule for the sessions, she explained, and she uses the sessions to discuss his attendance issues and encourage him to work on his lessons at home (T. at 302-3).

Ms. declared that she would meet with the Student twice a week as required under his IEP if he attended school more often (T. at 303). The Student did not have much insight into why he was missing school and never identified reading problems as the cause of his truancy, she observed (T. at 305, 307).

She also testified that she speaks to the Student’s mother once or twice a month about his attendance issues, but that the Parent told her that it was difficult to motivate him to go to school (T. at 308).

On cross-examination, Ms. acknowledged that she was aware of the Student’s problems with and had discussed these issues with him during her (T. at 314-5). She also testified that she had never given the Student a self-monitoring checklist or prepared a (T. at 317).

PARENT’S CASE

The Parent’s first witness was the Student, who testified about his learning problems, noting that he had first experienced reading problems in (T. at 139). He declared that reading was his least favorite subject at and expressed his view that he was not making any progress in this area (T. at 138).

The Student also attributed his absenteeism to his lack of progress in reading and asserted he had not had any discussions with anyone at about his (T. at 147). He testified that he needed instruction and would attend the Lindamood Bell program if it were provided (T. at 150).

On cross-examination, the Student testified that he stays at home when he does not go to school and acknowledged that he does not do his homework all of the time (T. at 152, 157).

The Parent’s next witness was , who testified via telephone that she holds a doctorate in school and child psychology (T. at 168). She is currently employed as a post-doctoral fellow at the

Dr. summarized in detail the results of the neuropsychological examination of the Student conducted in October 2011 at (Parent D). She described the Student as having a strong desire to do well coupled with and (T. at 127).

She testified that the Student was reading at a second grade level and that his phonological awareness was “ ” (T. at 178-9). However, she tempered these observations by noting that his IQ score was not representative of his full potential and that his overall test scores were compromised by poor performance on particular subtests (T. at 173). The Student’s difficulty in accessing information “ , she added (T. at 182).

Dr. explained that she was not surprised by the Student’s absenteeism, since he showed signs of depression and anxiety (T. at 181). “I think he’s checked out,” she observed (T. at 182).

At the conclusion of her direct testimony, Dr. recommended that the Student receive several hours of reading instruction every day (T. at 183). She also recommended the Lindamood Bell program and opined that it would benefit the Student

(T. at 183, 185).

On cross-examination, Dr. testified that she did not know what kind of multisensory approach was used at ; that she never observed the Student in class; and that she did not know how much progress the Student had made in the current school year (T. at 187, 190, 197).

She also acknowledged that some of the Student’s cognitive problems might be attributable to his and that the report did not specifically recommend one-to-one instruction (T. at 192, 200).

The Parent’s third witness was , who testified via telephone that he is the director of the (T. at 205-6). He has been employed there for five years and holds a Master’s degree in curriculum and instruction (T. at 206).

Mr. testified that all of the instruction at the Center is provided on a one-to-one basis (T. at 208). The aim of the Center, he explained, is “to remediate students who are struggling with decoding, language processing, and comprehension, and with mathematics” (Id).

Mr. noted that the Center has 20 clinicians, who must undergo an intensive twoweek training session (T. at 210). According to his testimony, the Center’s system for teaching reading is based on “dual coding theory,” which aims to stimulate and develop phonemic awareness, symbol imagery and concept imagery (T. at 208-9).

He discussed the evaluation of the Student conducted at the Center in December 2011 (Parent B), pointing out that he performed at a level in sounding out words he had never seen before and in reading accuracy (T. at 222). However, he also noted that the Student’s comprehension as measured by the Gray Oral Reading Test was at the grade level and that he had scored “quite well” on certain measures of comprehension (T. at 223).

Based on these results, Mr. opined that the Student needed one-to-one instruction and recommended that he receive 480 hours of instruction at the over a period of 24 weeks (T. at 226-7).

On cross-examination, Mr. testified that he is not a licensed teacher and that he did not personally conduct the evaluation (T. at 234, 237). He also acknowledged that he did not know what school the Student attended or whether he received one-to-one instruction (T. at 235).

In a colloquy with the IHO, Mr. testified that the clinicians are not required to have a Bachelor’s degree and that an Associate degree would be acceptable (T. at 238-9). Asked whether he would hire someone who only had a high school diploma, he answered “No” (T. at 239).

The Parent testified last on behalf of herself and her son. She asserted that he had never received specialized reading help, although he had been in special education since third grade (T. at 250, 253). She also described her son as struggling at (T. at 254).

With respect to the Student’s absenteeism, she noted that he sometimes missed three days of school a week, attributing the problem to his reading difficulties (T. at 2601). She also testified that she had visited the and was impressed with the reading program (T. at 265). Her son would attend class every day at the she declared (T. at 266).

On cross-examination, she acknowledged that she had not met with the Student’s current and did not drive him to school on days when (T. at 270).

FINDINGS OF FACT AND DECISION

Before discussing the main issues in this case, I must address two preliminary issues.

First, at the outset of this decision, I am dismissing all claims relating to the 2009-

10 school year, since none of the IEPs on record cover that year. Although the record does include an IEP developed at a CSE meeting held on June 24, 2010, the minutes for that meeting show that the IEP was intended to cover the 2010-11 school year (DOE #35, Parent M).

Moreover, in her opening statement, the Parent’s counsel said that “We won’t really be discussing that school year” (T. at 22). Thus, all claims related to the 2009-10 school year are dismissed for non-prosecution.

The second issue concerns the characterization of the relief sought by the Parent. In both the Impartial Hearing Request and her opening and closing statements at the hearings, the Parent’s counsel described this case as a request for compensatory services (Parent A-3; T. at 17, 327-31).

However, the State Review Office (“SRO”) has ruled that compensatory education is a remedy available to students who are otherwise ineligible for instruction by reason of age or graduation (Application of a Student with a Disability, Appeal No. 08035).

Since the Student has not graduated or aged out, he is not entitled to compensatory education within the strict definition of that term. However, the inquiry does not stop here, because the SRO has also ruled that a child who is still eligible for instruction may be awarded “additional services” to make up for the denial of appropriate services (Id.).

Under the rulings of the SRO, the award of additional services requires a finding that the child has been denied a Free and Appropriate Public Education (“FAPE”) (Id.). In addition, the SRO has made clear that the award of such services, like the award of compensatory education, is an equitable remedy (Application of Bd. of Educ., Appeal No. 04-016).

Thus, I shall treat the Parent’s case as request for additional services and, in accord with the SRO’s rulings, address the following two crucial questions: (1) did DOE provide FAPE to the Student during the 2010-11 and 2011-12 school years, and (2) do the equities support the Parent’s application?

On the first issue, the burden of proof rests with the DOE (Chap. 583 of Laws of 2007). To determine whether DOE has provided FAPE, it is necessary to examine the Supreme Court’s landmark decision in Westchester Cty. v. Rowley, 458 U.S. 176 (1982) [hereinafter Rowley]. In Rowley the Court said that, in cases brought under IDEA, the courts (and by implication the IHO) must ask themselves whether “the individualized program developed through the Act’s [i.e., the IDEA’s] procedures [is] reasonably calculated to enable the child to receive educational benefits.” The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Court also warned that the review of CSE decisions “is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” (Rowley, 458 U.S. at 206).

To the same effect are decisions of the Second Circuit Court of Appeals. For example, in D.F. Ex. Rel. N.F. v. Ramapo Cent. School Dist., 430 F.3d 595 (2nd Cir. 2005), the Court held that, for an IEP to meet the Rowley test, “it must be likely to produce progress, not regression” and must provide for “more than trivial advancement.” (430 F.3d at 598) [internal citations and quotation marks omitted]. In an earlier case, the Court observed that IDEA is not intended to “secure the best education money can buy” or “guarantee any particular level of education.” [(Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)] (internal citations and quotation marks omitted).

After reviewing the testimony and evidence in this case, I find that DOE did provide FAPE to the Student during the 2010-11 and 2011-12 school years, because the services offered to the Student were reasonably calculated to enable him to receive an educational benefit and thus satisfied the Rowley standard.

During the school years at issue, DOE provided the Student with a high level of intervention by placing him in a small class in a school that serves children with special needs and by providing him with therapy and counseling. In addition, Ms. , whom I found to be a credible and knowledgeable witness, testified that she taught the student reading and writing for two periods a day and that a reading specialist pushed into class three days a week (T. at 27, 29).

It is true that the IEPs for the 2010-11 and 2011-12 school years did not specifically provide for the services of a reading specialist. However, since this is a request for additional services to make up for an alleged deprivation of FAPE, rather than a request for prospective relief. it is appropriate to look beyond the four corners of the IEPs to the services actually delivered. It would be pointless to require DOE to make up for service that were actually delivered, simply because they were not specifically listed in the IEPs.

Ms. also credibly testified that the classes break up three times a week into small groups consisting of no more than three children, and that she uses a multi-sensory approach to teach reading (T. at 28-9, 42). By using small group instruction and a multisensory approach, and by providing speech and language therapy and counseling, DOE has actually implemented some of the most important recommendations made by Dr. in her report (Parent D-14).

Moreover, Ms. testified that she and the reading specialist use the method to teach reading and Dr. herself acknowledged that the method, which she had listed as an alternative to the in her report, was based on the principles (T. at 28, 201).

DOE also took appropriate measures to address the . Ms. credibly testified that she primarily uses her sessions with the Student to encourage him to often (T. at 302-3). The fact that these efforts were largely fruitless because of a lack of cooperation on the part of the Student does not prove that the measures undertaken by DOE were inappropriate.

I also credit Ms. ’s testimony that the Student had made progress during both school years and that his overall reading level is now at a level (T. at 41, 54, 72). Her testimony is corroborated by the , which she discussed in her testimony (DOE #7; T. at 72-3). Likewise, I credit her testimony that the Student would have made even more progress if he had (T. at 85).

In my opinion, Ms. ’s opinions are entitled to greater weight than those of the Parent’s two expert witnesses, Dr. and Mr. . Ms. is a certified special education teacher with a Master’s degree, who has been teaching the Student since 2009 (T. at 256). In contrast, the Parent’s two witnesses had scant knowledge concerning the Student’s program at and therefore were unable to shed much light on the central issue in this case – i.e., was the DOE’s program reasonably calculated to enable the Student to receive an educational benefit?

For example, Dr. never observed the Student in class and admitted that she did not know how well he has fared in the current school year (T. at 190. 197). Mr. did not even know what school the Student was attending (T. at 235).

Moreover, the testimony given by Dr. at the hearing differed in one important respect from her report. In her testimony, she recommended instruction for the Student, but in her report she only recommended small group instruction (T. at 183; Parent D-14). However, as mentioned above, the Student is already receiving small group instruction

(T. at 42).

Furthermore, even if one assumes, contrary to the evidence, that DOE denied the Student FAPE during the 2010-11 and 2011-12 school years, the equities do not support the Parent’s request for additional services, since the Student has not taken advantage of the services already offered to him. Ms. credibly testified that the Student missed class two to three days a week and her testimony was corroborated by his attendance records and the Parent’s own testimony (DOE #5, 6; T. at 261).

Even if one accepts the lower estimate of the number of days missed, the Student is only receiving the benefit of 60% of the program at . Therefore, the Student can increase his level of support at any time by the simple expedient of attending class more often.

The record in this case does not reveal any reasons why the Student cannot . Indeed, the record shows that the Student has to school (T. at 157, 162). Furthermore, after listening to his testimony and observing his demeanor on the stand, I am convinced that he has the .

A case in point is the decision of the United States Court of Appeals, Tenth Circuit, in Garcia v. Board of Education of Albuquerque Public Schools, 520 F.3d 1116 (10th Cir. 2008). In that case, the court upheld the district court’s denial of compensatory services to a , citing the maxim of equity that “equity will not help those who do not help themselves” (520 F.3d at 1130) (internal citations omitted).

Therefore, for all the reasons discussed above, the Parent’s request that the DOE pay for the Student’s tutoring at and his ancillary transportation expenses must be denied.

ORDER

The Parent’s Impartial Hearing Request, dated March 19, 2012, is dismissed in its entirety with prejudice. Dated: July 18, 2012

__________________________________

ROBERT L. NISELY, ESQ.

Impartial Hearing Officer

RN:dl

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 MAY 15, 2012

PARENT

A Impartial Hearing Request, 3/19/12, 3 pp. B Test Results, 12/13/11, 4 pp. C Informational Documents, 2010-2012, 56 pp. D Evaluation, 2010-2011, 16 pp. E Evaluation, 8/3/11, 3 pp. F Evaluation, 8/3/11, 6 pp. G Social History, 8/3/11, 5 pp. H Evaluation, 4/12/10, 3 pp. I Social History, 2/18/10, 3 pp. J Evaluation, 3/7/09, 6 pp. K IEP, 1/12/12, 13 pp. L IEP, 3/17//11, 20 pp. M IEP, 6/24/10, 17 pp. N IEP, 6/18/04, 11 pp. O IEP, 3/30/03, 10 pp. P IEP, 9/11/02, 13 pp. Q IEP, 6/26/01, 13 pp. R Teacher Reports, 12/19/11, 3 pp.

DEPARTMENT OF EDUCATION

1 Due Process Response, 3/21/12, 4 pp. 2 Amended due Process Response, 3/21/12, 4 pp. 3 IEP Meeting Minutes, Various dates, 8 pp. 4 CSE Notices Various Notices, 6/25/10 through 1/5/12, 8 pp. 5 Attendance Records 2010-2011 and 2011-12, 21 pages, 21 pp. 6 Attendance Notes, 2012, 3 pp. 7 DORA Reports, June 2010-May 2012, 4 pp. 8 Academy Report Cards, 2010-2012, 20 pp. 9 Teacher and Counselor Reports, 2010, 6 pp.

10 Clinical Progress Notes, 2010-2012, 30 pp.

11 Progress Reports, 2010-2012, 13 pp.

IMPARTIAL HEARING OFFICER

I Notice of Appointment, 3/20/12, 2 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 14, 2012

PARENT

S Parent's Tax Return, 2011, 2 pp.

DEPARTMENT OF EDUCATION

None