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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 15, 2012
May 17, 2012
Record Close Date: May 31, 2012
Hearing Officer: Diane R. Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2012
Attorney — Student
Parents
Parents
CSE District Representative — DOE
Psychologist (via telephone) — DOE
Dean at (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2012
Attorney — Student
Parents
Assistant Head of School, — Student
(via telephone) — Student
Clinical Psychologist (via telephone) — Student
Teacher, (via telephone) — Student
CSE District Representative — DOE
Special Education Coordinator, (via telephone) — DOE
On March 26, 2012, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parents asserted in their hearing request that the Student was denied access to a free appropriate public education (“FAPE”) for the 2011-2012 school year. Specifically, they assert that the goals and objectives on the individualized education program the (“IEP”) dated March 23, 2011 were not reasonably calculated to confer educational benefits upon the Student, do not meet all of her needs, and do not contain evaluative criteria, procedures of schedules to measure progress. They assert that they voiced concerns at the meeting and that the team ignored them, which denied them meaningful participation in the development of the IEP. They assert that it is unreasonable to expect the Student to achieve 27 goals in a general education setting. They further assert that the team was not duly constituted; that the general education and special education teachers at the meeting did not meet the necessary criteria. They further assert that the program recommended did not offer appropriate support, supervision or services; and that the Student requires a small, structured, nurturing learning environment for students with language based learning disabilities. In addition, they assert that the New York City Department of Education (the “DOE”) failed to offer an appropriate placement in a timely manner; that the Parents visited the recommended site and found it inappropriate because the class size and the student to teacher ratio were too large; that she would have ; that there was not enough opportunity for instruction, that the curriculum was not modified and that the Student would be unable to keep up. The Parents seek tuition reimbursement for their placement at the (“ ”) and reimbursement and/or compensatory education for related services. The Parents stated at the hearing that the Student was receiving transportation and that it is not an issue for the hearing. (T. 10-11).
The hearing was held on May 15, 2012 and May 17, 2012. The record closed date was May 31, 2012.
EVIDENCE
The IEP (Parents’ Exhibit A) classifies the Student as having a learning disability and recommends an Integrated Co-Teaching program (“ICT”), with a staffing ratio of and related services of occupational therapy (2 x 30; ), physical therapy (2 x 30; ) and therapy (3 x 30; ). The Present Performance section indicates that the current teacher reported that the teacher provides specific strategies for the Student’s The Student is able to write simple sentences and often needs supports to expand sentences and edit and revise work. She is able to identify learned red words and CVC words. She needs to internalize strategies to decode multi-syllabic words and identify consonant blends. She enjoys reading a variety of trade books. She benefits from repeated practice when answering literal comprehension questions and inferential comprehension questions. She and . It helps her to read and reread the passage a few times to . She is able to spell the words learned during reading group. She needs help to transfer learned spelling words into other academic areas. The current teacher reported that she benefits from a spiraling math curriculum that uses manipulatives and hands on activities. She completes her homework and raises her hand to try to solve new math problems. She knows her doubles facts to 10 plus 10, can read a bar graph and solve one step word problems with addition. Multi-step activities are difficult for her to carry out. She is unable to identify coins and their equivalent values as well as add and subtract multi-digit numbers without regrouping. She is able to speak Spanish and Hebrew at about a first grade level (Exh B, p. 3).
The IEP indicates that the teacher estimated that the Student was at the late first grade instructional level in decoding, encoding and reading comprehension; on the mid first grade level in writing; and on the beginning first grade level in broad math. The Academic Management Needs include 13 strategies: multi-sensory approach; movement breaks as needed; alternative seating – use of a hand fidget; teacher redirection/prompts; teacher check-ins; preferential seating; review and repetition of previously presented concepts/lessons; preview of new vocabulary, new information before the lesson; focusing strategies; teacher modeling; directions repeated/reworded and presented in a clear and concise manner; visual aids; use of a slant board during writing activities. (Exh. B, p. 4)
The Performance section of the IEP indicates that the Student is able to unpack her bag and put her folders away independently, has made connections with different students and enjoys looking at books and chatting during her free time. It indicates that her regulation and modulation can impact her ability to interact and she can become overly excited and silly and will be prompted to take a break. She is working on taking responsibility for her actions. The needs listed include: physical therapy, therapy, and ; praise and encouragement; movement breaks as needed; teacher/provider modeling,; and programmatic school supports. (Exh. B, p. 5).
The Present Health Status and Physical Development section of the IEP indicates that the Student presents with delays in coordination, strength, motor planning, endurance and visual-perceptual activities; she tends to . She has . with her classmates. (Exh. B, p. 7)
The annual goals include academic goals and goals that appear to be speech language, occupational and physical therapy goals. The goals include one writing goal (Exh. B, p. 9 (repeated verbatim on page13)), two mathematics goals (Exh. B, p. 9 (repeated on page 13); 11 (repeating on page 15)), three reading goals (Exh. B, p. 9 (repeated on p. 13), 11 (repeated on p. 15), 12 (repeated on p. 16)); and one spelling goal (Exh. B, p. 12 (repeated on p. 16)). In addition, there are goals relating to developing auditory memory skills (Exh. B, p. 9); expressive language skills (Exh. B, p. 10 (repeated on p. 14)); motor performance (Exh. B, p. 10 (repeated on p. 14)); visual perception skills (Exh. B, p. 10 (repeated on P. 14)); and processing of the vestibular and proprioceptive systems (Exh. B, p. 10, repeated on p. 14)); (Exh. B, p. 11 (repeated on
P. 15)); gross motor skills (Exh. B, p. 11 (repeated on P. 15)); receptive language skills (Exh. B, p. 12 (repeated on P. 16)); and auditory memory (Exh. B, p. 13), In total there appear to be 17 goals (eliminating repeated goals), many of which appear to be related to the provision of related services. It appears that approximately seven of these goals are academic goals for the classroom and the remainder appear to be related service goals.
The IEP provides that the related service providers and the teachers will meet on a weekly basis to develop strategies and supports for the Student to be successful in school. (Exh. B, p. 17)
The IEP indicates that the Student’s require the support of an extra adult in the classroom, and that the team therefore rejected general education. They felt, however, that a class would be too restrictive. The IEP indicates that the Parents felt that the Student’s attentional difficulties made an integrated co-teaching setting inappropriate. (Exh. B, p. 18).
The , by Dr. , dated December 2009, was submitted as an exhibit by the Parents. (Exh. F) At the time of the evaluation, the Student was a School in Manhattan. The report notes that the Student has a history of including expressive and receptive language delays, , and . She also has significant oral motor delays which impact her speech intelligibility. The report indicates that the Parents were pleased with the Student’s academic progress but felt that she required a special education placement to remediate her language and learning difficulties. In addition, there were concerns about her ability to with her peers, both academically and and . (Exh. F, p. 1)
Dr. assessed the Student on the Wechsler Intelligence Scale for Children – Fourth Edition, and found that she achieved an average verbal IQ of percentile), an average performance IQ of percentile), a low average working memory index of ( percentile) and a low average processing speed of percentile). Her full scale IQ was ( th percentile). Dr. indicated that the full scale IQ of should be interpreted with caution as the Student presents with wide scatter in her intellectual profile, making it difficult to accurately quantify her intellectual functioning by any single measure. She concludes that her full scale IQ likely underestimates her ability (Exh. F, p. 5). She stated that “the current IQ testing is likely an underestimate of [the Student’s] intellectual potential, with significant interfering with her test performance (Exh. F, p. 7). She found that the Student was best able to demonstrate her verbal knowledge when required to provide short, one to two word answers. She possessed an average ability to form verbal abstractions, evidencing a solid capacity for her age to utilize conceptual thinking skills, which is “perhaps the best estimate of her intellectual potential” (Exh. F, p. 13)
Dr. found that the Student was performing below , skills; was slowly acquiring , but at a rate behind her . Her are more significantly . Her ability to apply basic reading and writing skills was well below grade level for her age (Exh. F, p. 8). She assessed the Student on the Woodcock Johnson Test of Achievement – Third Edition (“WJ-III”), and found that the Student achieved scores of in calculation and math fluency, respectively ( percentiles, respectively). She was able to achieve a score of 93 in Applied Problems, which was in the . She achieved scores of in Passage Comprehension and Word Attack, respectively ( percentile, respectively), and “couldn’t do” the assessment in Reading Fluency. (Exh. F, p. 17)
Dr. found that the Student had significant and word retrieval difficulties and that more general difficulties in formulating, sequencing and elaborating her ideas were seen throughout the testing. (Exh. F, p. 10). She concluded that her processing speed was slow and her auditory working memory was limited for her age. The significant receptive and directions and deficits in understanding age appropriate language concepts, made it difficult for the Student to complete the testing. (Exh. F, p. 13) Dr. tested the Student on the Comprehensive Test of Phonological Processing and determined that she achieved Scaled Scores of 6, 2, and 10 respectively, in Elision, Rapid Color Naming and Sound Matching (9th 4th and 50th percentiles, respectively). (Exh. F, p. 18). Dr. assessed the Student on the Clinical Evaluation of Language Fundamentals – Fourth Edition, and found that she achieved Scaled Scores of 4, 8 and 8, respectively, in Concepts and Following Directions; recalling Sentences, and Word Structure (2nd, 25th and 25th percentiles, respectively). She was unable to achieve a score in Formulated Sentences because she “did not understand task directions”. Exh. F, p. 20).
She also found that the Student demonstrated difficulties with . Dr. also found that she has developed an array of when she is anxious or feels challenged academically (Exh. F, p. 11) Dr. tested the Student on the Developmental and determined that the Student achieved Scaled Scores of 5, 8, 6, 8 and 9 in Auditory Attention, Comprehension of Instructions Inhibition, Memory for Faces, Phonological Processing and Word Generation: Semantic (5th, 25th, 9th, 25th and 37th percentiles, respectively). in the Comprehension of Instructions section, she achieved scores of 3, 6 and 9, respectively, in Naming Combined, Inhibition Combined and Contrast Score (1st, 9th and 37th percentiles, respectively). Exh. F, pp. 18-19)
On the Connors 3, the Student was assessed as having T-scores in the Elevated or Very Elevated ranges by three teachers and the Parents in Inattention. However, there was a variation of T-scores for other categories, resulting in classification being indicated by two of the Teacher Long Forms ( %) and by the Parents (77%), but Borderline (58%) by the third Teacher Long Form. (Exh. F, pp. 19-20).
Dr. Cohen determined that the Student met the diagnostic criteria for Mixed Expressive-Receptive and – Inattentive Type. She also felt that a diagnosis of was appropriate. She determined that a diagnosis of , Not Otherwise Specified was warranted. She opined that further diagnostic consideration for a more specific academic learning disorder was warranted in the next year or two. (Exh. F, p. 15)
Dr. recommended a small, nurturing special education school placement with a language enriched curriculum. She further recommended remediation for her and as well as . She recommended intensive individual and small group speech and language therapy to address her oral motor, expressive and delays. “She should receive daily therapy to address these difficulties as well as a minimum of three times weekly individual sessions” (Exh. F, p. 15). She recommended a continuation of occupational and physical therapy. She also recommended an evaluation by an audiologist to determine the presence of an as well as a consultation with a developmental pediatrician or pediatric neurologist and a thorough speech and language evaluation. Her language skills “should be followed closely by her (s).” (Exh. F, p. 15-16)
The Parents submitted a Neurodevelopmental Evaluation, conducted by Dr. , dated October 2010 (Exh. I). Dr. indicated that The Young Children’s Achievement Test was administered and that the Student scored in the low average to average range in all areas except for Spoken Language, which “fell more than two standard deviations below the mean”. She achieved Standard Scores of 85, 94, 88, 97, 74 and 86, respectively, in General Information, Reading, Mathematics, Writing, Spoken Language and Early Achievement Composite (16th, 34th, 21st, 42nd, 4thy and 16th percentiles, respectively. (Exh. I, p. 5)
Dr. noted that the Student “is friendly and put forth her best effort during today’s session. [She] often needed to adjust her position and be reminded to sit up during the testing” (Exh. I, p. 6).
Dr. determined that the Student’s is reflected in her poor ability to take in longer units of information and to present her own thoughts orally. She is not only challenged to listen and attend, “there was some evidence today that she does not process auditory information accurately, often misperceiving words. Her ability to formulate sentences to communicate complete ideas and events, thereby creating a cohesive narrative, is also evidence of .” (Exh. I, p. 7).
Dr. found that the Student “can also become ‘internally’ or ‘externally’ distracted, but can be easily redirected when . Issues related to her processing, and executive functions appear to interfere with her ability to focus, more than a primary ” (Exh. I, p. 7).
The Parents submitted the Mid-year report for the 2010-2011 school year as evidence (Exh. K). The report indicated that the Student was then functioning at the beginning first grade level in math (Exh. K, p. 11); and at an “end first grade level in the with support” Exh. K, p. 7).
The Mid-year report for the 2011-2012 school year (Exh. L) indicates that the Student was reading at a mid second grade level (Exh. L, p. 5) and working in math “with support at a mid-late first grade level”. (Exh. L, p. 9)
, a school psychologist for the DOE, testified on behalf of the DOE that she participated at the Committee on Special Education (the “CSE”) meeting in question. She testified that the team reviewed the prior IEP, the teacher reports and prior assessments
(T. 18-19). She testified that she and Ms. were qualified to serve as district representative at the CSE meeting (T. 21-22). She further testified that the Student’s teachers, Ms. and Ms. participated at the CSE meeting and provided information about her academic abilities, her behavioral functioning, setting goals and related service “difficulties”. (T. 22). She testified that the teachers had a hand in creating the goals for the Student (T. 24). She testified on cross with the need for a small classroom because the Student is in the average range in and her academic delays were not “so significant”. (T. 41). She testified on re-direct examination that a lot of clinicians will look at the verbal and nonverbal reasoning area to make an overall determination of what the actual intellect level is (T. 51). She further testified that verbal reasoning and nonverbal reasoning are most impacted by school learning (T. 52). She added that the Student’s motor difficulties would also have had an effect on her ability to complete the intelligence test and would have an impact on her Processing Speed index and on her Working Memory Index. (T. 53) She testified on re-cross examination that her deficits in working memory would be addressed in the classroom by giving the Student strategies to try to remember a certain procedure (T. 54), and that a special education teacher in an ICT program would be able to provide such strategies to the Student. (T. 55).
Nicole Miller, an IEP teacher and a special education coordinator at testified for the District. Ms. testified that the ICT class recommended for the Student has 23 children and seven of them have IEPs (T. 154). They have classifications of and or
(T. 155). Their reading and math levels range from mid second to mid third and some in the mid first to mid second and that several students fall in the category of mid-first to mid-second (T. 155-156). She testified that the teachers in the class design many of their lessons so that they can break the class into groups, either two larger groups or several smaller groups, and they can target instruction that way (T. 157). The children are broken up into groups at least three times a week (T. 159-160). The class includes students who have attentional (T. 159). Some of the children require preferential seating. There is opportunity for multimodal learning in math, working with manipulatives. (T. 161).
Ms. testified that students who are below average in reading or math are mandated to come to school for additional time and are pulled into strategy groups more frequently to work on skills (T. 164).
, the Assistant Head of School at testified for the Parents. Ms. testified that all the students at have (T. 86, 107), and that she does not have access to typically developing peers (T. 107). She testified that the Student receives language therapy twice a week with two children, and receives once a week in a pull out session with one other student (T. 87). She testified that the Student is under-responsive in terms of her energy level. She also has deficits (T. 91). Visual perception is an area of great challenge for her. She frequently skips words while copying them from the board or to a book. (T. 92).
Ms. testified that she believes that the Student would be by a larger group such as an ICT class (T. 101-102). She testified that such a group would not provide an opportunity for her to be able to work on her expressive and receptive language and there would be distractions in a room that size which would impact her attentional issues. (T. 103).
Dr. , the clinical psychologist who performed the evaluation of the Student testified for the Parents. She testified that the Student has multiple learning, language, attentional and processing challenges that all interfered with her functioning within a classroom setting (T. 119). She testified that she observed the Student in her class at Ramaz in November 2009 (T. 119). She testified that the Student needed constant teacher support to be engaged in the curriculum. She testified that at the time there were approximately 20 students and a Special Education Itinerant Teacher (“SEIT”) in the classroom. She was in the lesson. She would and without extra explanation from the teacher and from her SEIT in particular (T. 126). She found that she had a little bit of an easier time in a smaller reading group (T. 127). It was also more structured and they had a reinforcement system of giving her marbles when she listened or answered correctly. (T. 127).
Dr. testified that the Student was functioning in the low average range of intelligence, that she was e (T. 129). She found that she had significant memory issues, visual motor issues, visual (T. 129). In addition, she had (T. 131). On cross examination, she agreed that a special education teacher could modify the language presented to her in the classroom, but that the Student would be behind the rest of the other students in the class. (T. 144).
Dr. testified that the Student needed a language enriched curriculum, meaning that she needed special education teachers throughout the day who were trained in how to modify instructions, clarify instructions, bring her back to task, manage her social emotional needs, her social communication, and also help her with structure, reinforcement, and providing multisensory instruction. She testified that the Student works much more slowly than other kids and she needs guidance and attention to stay on task. (T. 133).
, the head teacher in the Student’s class at testified for the Parents. The class includes ten students and two teachers (T. 168). She testified that the Student is learning to read, write and do math at a slower rate and needs specific teaching for that (T. 170). She is currently working on a mid first grade level in math (T. 171), a beginning second grade level in reading comprehension (T. 190) and a mid second grade level in decoding.
(T. 190) She is in an reading group, which is a multisensory reading program. She and the group are introduced to new phonemes and new suffixes and sight words. (T.
174) She testified that the structure and predictability is essential for her. (T. 175) This year she has a more solidified knowledge of short vowel sounds, has increased her knowledge of blends, suffixes, and sight words and is more able to read multisyllabic words. (T. 176).
She testified that the Student has made progress in writing. In September, she would have placed her at a beginning first grade level, whereas she is now at a mid-first grade level. (T. 191-193)
Her writing level is a mid first grade level. (T. 177)
APPLICABLE STANDARDS
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)). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT AND DECISION
The Parents disagree with the recommendation to place the Student in an ICT class. They also assert that the goals on the IEP do not meet the Student’s needs, do not contain evaluative criteria, procedures or schedules to measure progress. They assert that they voiced concerns at the meeting and that the team ignored them, which denied them meaningful participation in the development of the IEP. They assert that it is unreasonable to expect the Student to achieve 27 goals in a general education setting. They further assert that the team was not duly constituted, that the general education and special education teachers at the meeting did not meet the necessary criteria.
I will first address the factual assertions in the allegations. A review of the goals in the IEP indicates that many of the goals were repeated. When eliminating the repeated goals, there are only 17 unique goals. Among the 17 goals, many of them are related to the provision of related services. There are only seven goals which appear to be focused on academic areas. I see no reason why the seven goals could not be addressed in an ICT class or why the ten goals could not be addressed by the related service providers in conjunction with the classroom teachers to the extent necessary and appropriate. The goals seem appropriately focused on addressing the Student’s deficits.
I also note that the ICT class is not a general education class, but a class that contains both general education and special education students with a general education and a special education teacher.
There is no evidence on the record to support the assertion that the concerns of the Parents were ignored. It is clear from the assertion that the Parents voiced their concerns at the meeting that they had the opportunity to participate. The fact that the CSE decided on a program other than one desired by the Parents does not mean that the Parents were denied the opportunity for meaningful participation.
New York State Regulations provide that:
(b)Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. 8
NYCRR§200.4(d)(2)(iii)(b).
A review of the goals indicates that each academic goal relates to a specific grade level, and refers to a specific degree of accuracy, over a three month period. The goals also refer to the use of daily teacher observations, follow up homework, charted progress and periodic assessments. In some cases, weekly quizzes are included. goals refer to a level of accuracy and refer to provider observations, charted progress and periodic assessments (Exh. B, p. 9, 10). goals refer to a ratio of trials over a three month period, using provider observations, charted progress and periodic assessments (Exh. B, p. 10, 11).
The Parents allege that the CSE was not appropriately constituted. The evidence shows that there was a general education teacher, a school psychologist, a parent member and the parent. In addition, both of the Student’s teachers from participated. Ms. testified that she believed that Ms. was certified in special education. The State Review Officer has held that the presence of a special education teacher from the student’s private school satisfies the requirements regarding the constitution of the CSE. See Application of the Department of Education, Appeal No. 08-105. See also, Application for a review of a determination, Appeal No. 11-040. Ms. Mathieu further testified that both she and the general education teacher were qualified to serve as district representative (T. 22).
Ms. , the Student’s head teacher testified that the Student requires a small classroom of twelve students or fewer because of her , and her . She needs to be in a small space with , structure, clear guidelines and a lot of scaffolding to support her. (T. 185-186).
Dr. s testing in December 2009 determined that the Student had significant attention related difficulties on a task of . She notes that “[i]t was not clear how well she understood the instructions despite the examiner’s repeated modeling of the task before beginning the test administration. Hence, the score reported is likely not accurate.” (Exh. F, p. 11). “She also evidenced attention related difficulties on . Her ability to imitate hand positions was quite poor and she could not complete this task.” “Moreover, she had difficulty and worked too quickly on a task of visual-motor precision, failing to remain within a majority of lines on the track.” “On a task of verbal naming and inhibition, [her] performance was extremely slow when she had to quickly label shapes and arrow positions. She made many errors on this task and evidenced significant word retrieval difficulties.”
In her Neurodevelopmental Evaluation nearly one year later, in October 2010 (Exh. I), Dr. Agin determined that the Student can become “’internally’ or ‘externally’ distracted, but can be easily redirected when prompted to look and listen. “Issues related to her appear to interfere with her ability to focus, more than a .” (Exh. I, p. 7)
In testing on the Young Children’s Achievement Test, it was determined that the Student scored in the 34th percentile in reading, the 21st percentile in mathematics and the 42nd percentile in writing.
Dr. determined that [p]oor n contributes to [the Student’s] difficulty and . [She] is coordinated, actions and continues to , particularly in .” (Exh. I, p. 6)
Dr. found that the Student’s “ is reflected in her poor ability to take in longer units of information...and to present her own thoughts orally. [She] is not only challenged , there was some evidence today that she does not accurately, words. Her ability to formulate sentences to communicate complete ideas and events, thereby creating a cohesive narrative, is also evidence of .” (Exh. I, p. 7)
The IEP indicates that according to the Student’s teachers, the Student is able to transition into reading group with minimal teacher supports. When focused, she is an active and enthusiastic participant during the lessons. At times, she can with her classmates. She displays . When this happens, the teacher provides her with specific strategies: and . (Exh. B, p. 3)
The Academic Management Needs set forth on the IEP include: approach to learning, – use of a hand fidget, teacher redirection/prompts, teacher check-ins, preferential seating, review and repetition of previously presented concepts/lessons, preview of new vocabulary, new information before the lesson, focusing strategies, teacher modeling, directions repeated/reworded and presented in a clear and concise manner, visual aids, concrete manipulatives, teacher made worksheets/templates, graphs, charts, diagrams, webs, use of a visual schedule, to do lists, use of a slant board during writing activities. (Exh. B, p. 4).
Although Dr. and the personnel from testified that the Student required a small classroom, there is no reason to assume that appropriate services could not be provided in the ICT class with a general education teacher and a special education teacher in a ratio. I note that an ICT class would provide opportunities for a great deal of attention at those times when one teacher is teaching the whole class and the other teacher is free to address issues. These would undoubtedly be most present among the twelve or fewer special education students in the class. When the class is broken into groups, the groups would be no larger than twelve with each teacher, and may be fewer if a teacher is able to have some of the more advanced groups function without a teacher or with one teacher covering two of the more advanced groups. Thus, the class has a flexibility that could provide opportunities both for modeling by general education students and the availability of attention by the teachers.
Dr. ’s report indicates that she was evaluating the Student’s academic intellectual and psychosocial functioning to determine her academic needs and to identify a course of action that will “best promote optimal development and school success” (Exh. F, p. 1). This, however, is not the standard that the DOE must meet. Rather, the DOE must provide a program that is reasonably calculated to provide educational benefits in the least restrictive environment. I see no reason to assume that the Student’s academic management needs as set forth above and the needs could not be provided in the ICT setting. Nor is it clear to me why the Student could not tolerate a larger class setting. Dr. testified that, when she observed the Student in 2009, she had difficulty in her class at which had approximately 20 students, three teachers and a SEIT (T. 126). However, the class at appeared to be a general education class rather than an integrated co-teaching class. There is no reason to assume that if she had difficulty in a general education class, albeit with three teachers and a SEIT, in 2009, that she would have difficulty in an ICT class, with a ratio, with a general education and a special education teacher working together to meet the needs of the general education and special education students in the class.
Moreover, the IDEA puts a value on the least restrictive environment. The IDEA does not assume that a smaller class of special education students is preferable to a larger co-teaching class with both special education and general education students. If the student can make educational gains in the co-teaching class, it is deemed to be preferable than putting the student in a class without typically developing peers.
I note that testing on the Evaluation in 2009 indicated that the Student is able to compensate for some of her deficits in reading and calculation by using “decoding strategies” (Exh. F, p. 8) and “picture cues” (Exh. F, p. 9); and her scores in the Word Attack and Applied Problems Subtests on the WJ-III reflect that, and were in the average range ( , respectively). The Student made a good deal of progress after the Neuropsychological Evaluation and before the CSE review on March 23, 2011. Decoding, encoding and reading comprehension were all deemed to be on the late first grade level by her teacher on March 23, 2011. This represented a gain in 1 ¼ years of approximately 1 ¼ years in reading comprehension, one year in decoding, and ½ to ¾ year in spelling (encoding). (Comparing scores on the WJ – III, Exh. F, p. 17 to teacher estimates, Exh. B, p. 4). These gains suggest that the Student can make significant progress in reading with supports. The Student’s gains in mathematics were slower. I note that the Testing indicated that the Student benefits from working with manipulatives. Nicole Miller, the special education coordinator at indicated that there would be an opportunity for multimodal learning in math, working with manipulatives
(T. 161).
The IEP provides goals relating to writing, reading and mathematics, all of which include charted progress and periodic assessments. It includes among the academic management needs, such supports as “ ”, “movement breaks as needed”, alternative seating – use of a hand fidget”, teacher redirection/prompts”, teacher check-ins”, “preferential seating”, review and repetition of previously presented concepts/lessons”, “preview of new vocabulary, new information before the lesson”, “focusing strategies”, “teacher modeling”, “directions repeated/reworded and presented in a clear and concise manner”, “visual aids”, “use of a slant board”. These supports and approaches were reasonably calculated to address the Student’s needs to assist her learning and attention. (Exh. B, p. 4) I see no reason to doubt that they could have been provided in the ICT setting.
The related service goals on the IEP were reasonably calculated to support education in a less restrictive environment. In the program recommended by the CSE, the Student’s deficits which inhibit her ability to attend would have been addressed in two sessions of physical therapy and two sessions of each week. She has not been receiving these in her current unilateral placement, and her needs in the classroom may be greater in her current setting than they would be in an ICT setting if she were receiving all her mandated related services. The indicated that the Student’s ability to focus appeared to be partially related to her . (Exh. I, p. 7) The physical therapy and recommended by the DOE were reasonably calculated to address those deficits. One goal was related to the development of a variety of exercises to increase strength, endurance, coordination, ball handling skills, and motor planning (Exh. B, p. 10). Another was to develop visual perception skills for enhanced classroom performance, to scan and copy words/sentences from far and nearby (Exh. B, p. 10). Another was to improve sensory modulation and processing of the vestibular and proprioceptive systems to improve self regulation and attention (Exh. B, p. 10). Another was to develop gross motor skills as well as using provider modeling of such non-competitive activities as throwing and catching a ball, kickball, softball and badminton (Exh. B, p. 11). Since the Student’s
In addition, the Student is not currently receiving the three periods of and recommended by the DOE. The provision of these services was reasonably calculated to address the Student’s speech and processing . Many of the goals could have been addressed on a basis with the . Several goals were targeted at these areas of concern. The IEP sets forth a goal for the development of auditory memory skills for enhanced classroom performance by having the student listen to a paragraph read aloud and recall details from an orally presented paragraph. (Exh. B, p. 9) The IEP also provides a goal for improving by focusing on using specific and descriptive language and selfmonitoring verbal output using provider modeling and visual cuing to help her speak in complete sentences (Exh. B, p. 10). Another was to develop by maintaining eye contact with a communication partner, initiating topics with peers, developing the ability to listen to others and respond (Exh. B, p. 11). The goals also include a receptive language goal for enhanced classroom performance and the ability to follow multi-step directions using the supports of repetition, rephrasing of auditory directions as well as visual aids. This goal could have been addressed by both the and the classroom teachers. I note that the Neurodevelopmental Evaluation also indicates that the Student’s ability to attend is partially related to (Exh. I, p. 7). The provision of and language therapy as mandated would be reasonably calculated to provide the support needed to address her , and would also be likely to improve her attention as her auditory processing needs are addressed. Her classroom needs might be greater in her current setting in that rather than receiving the mandated three individual periods per week of therapy, she receives two periods in a group of two (T. 87).
The provision of physical therapy, therapy would be reasonably calculated to target the specific needs of the Student and to help her access education in a classroom environment in which typically developing peers would be present. Many of these goals involved the use of trials, provider observations, charted progress and periodic assessment. This would have provided the opportunity to specifically focus on areas of need, to monitor progress and reassess areas of need. With these related services, she would have the opportunity to work on her and .
Ms. testified that the ICT class offered by the DOE is suitable for students of average intelligence who are one or two years behind in academics and who have and/
(T. 41-42). I see no reason to assume that the Student’s attentional needs could not be met in the ICT class. On cross examination, Ms. explained that verbal reasoning and nonverbal reasoning are the areas of the WISC-IV that are “most impacted” by school learning (T. 52), that in an abbreviated intelligence test, clinicians would not even look at working memory and processing speed (T. 51), and that she would characterize the Student as “ (T. 50-51).
Intellectual testing indicates that the Student has an Verbal IQ and an Performance IQ, while a Working Memory Index ( percentile) and a Processing Speed ( th percentile). Ms. observed that the Student’s would have had an effect on her ability to complete the intelligence test and would have had an impact on her Processing Speed Index and on her Working Memory Index (T. 53). Ms. testified that the way to address the Student’s working memory deficits is to provide constant repetition and provide her with strategies to try to remember a certain procedure (T. 54). She further testified that the special education teacher could offer this in an ICT class (T. 55).
In sum, the program recommended by the CSE would have afforded the Student the opportunity for attention from related service providers to target many of the Student’s underlying areas of deficit. In addition, the classroom setting would have afforded the opportunity to address her educational needs with the support of a special education teacher and a general education teacher, and the presence of both special education students with , deficits and , and general education students to provide modeling.
I therefore find that the DOE has met its burden of proof that the placement offered by the DOE was appropriate; and that the Parents are not entitled to reimbursement of the tuition at . Dated: June 6, 2012
_________________________________
DIANE R. COHEN, ESQ.
Impartial Hearing Officer DC: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 MAY15, 2012
PARENT
A Hearing Request, 3/26/12, 4 pp. B IEP, 3/23/11, 19 pp. C Enrollment School Contract, 1/20/11, 2 pp. D Proof of Payment Affidavit and Check, 11/1/11 & 5/5/11, 2 pp. E Parent Correspondence to CSE Chair, 8/23/11, 2 pp. F Neuropsychological Evaluation by , PhD, December 2009, 20 pp. G Progress Report Overview, 2010-2011, 2 pp. H Special Education Service Delivery Reports, 5/28/10 & 4/30/11, 2 pp. I Neurodevelopmental Evaluation by , October 2010, 8 pp. J Current Class Schedule, 2011-2012, 1 p. K Mid-Year Report, 2010-2011, 22 pp L Mid-Year Report, 2011-2012, 23 pp.
DEPARTMENT OF EDUCATION
1 Due Process Response, 10/14/11, 4 pp. 2 Final Notice of Recommendation, 7/15/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 17, 2012
PARENT
None
DEPARTMENT OF EDUCATION
3 E-mail from Dr. to forward to , 5/17/12, 2 pp.