New York City Department of Education, 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: May 30, 2012

June 11, 2012

July 13, 2012

Actual Record Close Date: August 7, 2012

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2012

Attorney — Parents

Parents

NICHOLE GOURDINE-MEW, Chairperson Designee-CFM- — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2012

Attorney — Parents

Parents

Psychologist (via telephone) — Parents

SETSS Teacher (via telephone) — Parents

Advocate — Parents

, ASE/CFN

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2012

Attorney — Parents

Parents

Certified Specialist (via telephone) — Parents

Doctor of Audiology (via telephone) — Parents

, CFN , ASE

INTRODUCTION

On May 10, 2012, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a FAPE to (“the child “) for the 2011-2012 school year. A pre-hearing conference took place on May 2, 2012 at which time a hearing date was selected. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. At the request of both parties, the hearing was continued on June 11 and July 13, 2012 and the requests for 30- day extensions made by both parties were granted based upon witness availability.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On March 16, 2012 the parent filed a request for an impartial hearing alleging that the DOE failed to provide a FAPE for the curreent school year. In March 28, 2012, the parent filed an amended request for an impartial hearing for which permission was granted.

THE PARENT’S POSITION

The parent contended at the hearing that the student has been denied a FAPE in the 2009-2010, 2010-2011 and 2011-2012 school years because the DOE has continually failed to provide needed accommodations.^[1] The parent further contends that the DOE failed to consider or discuss the and recommendations of Dr. prepared in 2010, and further, failed to consider the neuropsychological evaluation and recommendations of Dr. provided by the parent to the school in the early part of the 2011-2012 school year. The parent also contends that the DOE failed to conduct a timely annual review in 2011; that the IEP Team was not properly constituted because a and ( ) professional was not in attendance The parent contends that the student’s accommodations were either not addressed or not provided and the IEP team predetermined the student’s placement thereby denying his parent meaningful participation in the IEP meeting. Finally, the parent contends that the DOE failed to reopen the student’s case to review the testing requested by the parent for the student despite her written request to do so.

THE DOE’S POSITION

The DOE contends that the child’s placement at is appropriate and provides the child with a FAPE. The DOE admitted that it was unable to locate an IEP for the 20102011 school year and believes that it was never created. The DOE contends that a professional was not required to be at the 2011 IEP meeting because the student was not mandated to receive services. The DOE denies that the student’s IEP was predetermined and that the parent was denied an opportunity to participate in the IEP meeting. The DOE contends that the 2010 evaluation not considered because it was performed more than one year from the date of the IEP meeting. The DOE contends that the evaluation of Dr was discussed and considered as was the SL evaluation.

THE EVIDENCE PRESENTED

The child is a (LD). (Ex.2.11). The student just completed the in a general education class with SETSS at (Ex.8.2) The child’s instructional and functional level in reading is at the .(id.)

, the school psychologist at testified that she attended the IEP triennial meeting in October 2011. 50 She testified that for a triennial review, new evaluations are performed if needed with the parent’s agreement. (T.83) In this instance, she received a neuropsychological evaluation from the parent on October 18, 2011, (T. 50, 105) and the student was given vocational testing and an observation was done based upon oral consent by the mother. (T.80) She stated that she knows the child. There was no therapist at the IEP meeting because the child was not receiving SL services. (103) She stated that at the IEP meeting held on October 28, 2011, the principal recommended that the student’s SETSS be reduced from 5 time a week to three time a week, (T.50) The parent asked for SETSS to be increased to 8 times a week. (T.51) After hearing input from the teacher, the parent and the maternal grandmother, the team ultimately recommended that SETSS remain at five time a week. (T. 51)

She also testified that the IEP team considered the submitted by Dr. (T. 52) and the evaluation and recommendation submitted by . (DOE Exs. 7, 8, T. 52) She stated, however, that the evaluation dated August 31, 2010 , which was in the student’s file, was not considered because it was over a year old (T. 59, 65, 66) Thus, according to Ms. , the DOE considered it out of date. (T. 69) The DOE does not do testing. She offered the parent an opportunity to get another evaluation but the grandmother said she did not want to get an udate. (T. 101) She stated that the parent was not responsible for DOE delay in not considering that report prepared 2010. (T.75) The was never recommended by the IEP team or provided to the student during the 2011-12 school year. Ms. stated that OT was discussed and deferred because while the student needed an evaluation, no request for such an evaluation was made by the parent. She said that the CSE could reconvene after that evaluation was completed. (T. 56,57) She testified that counseling was discussed as well and it was determined that it was not warranted. (T. 56, 69)

Ms. also testified that the parent was contacted to have an updated evaluation performed during the summer of 2011 but the student was unavailable at that time to be tested. (T. 61)

, the student’s SETSS’ teacher testified that she has been the SETSS teacher at for 13 years and a licensed special education teacher for 32 years.(T.162-162 ) She has been the SETSS teacher for the student for the last two years. She is the only SETSS teacher at the school. She provides SETSS five times a week, on period a day for 43 minutes to the student.(T. 164) The student is pulled out for the sessions from different classes each day so that he does not miss too many classes in one subject. (T. 165-166)

Ms. stated that with the student, she targets ELA using subject content areas and vocabulary. She also works on literacy and writing.(T.168) She said that the student is one of her top students in math and ELA and that he is much improved from last year. (T,

193) She agrees with the recommendation that that SETSS should be five times a week.

(T. 176) He . (T. 168)_ She said that he scored at the 2.91 level on the ELA test which is approaching standards since it is almost a level 3. (T.169 ) She said that she does not use a reading program at .(T. 171) She testified that in addition to SETSS the student was eligible for AIS which designed for students to improve their ELA and math scores. It takes place for 37.5 minutes after school on Tuesday and Thursday. (T.173) The student although it was offered.(T. 173, 194) The child was scheduled to attended the year before last and his scores improved. (T.196 )

Dr. , a psychologist who evaluated the student in September of 2011, reported that that student’s showed that the student is of but there his which range from . In academic achievement his scores ranged from average to borderline. (Ex. 8) His verbal processing, verbal comprehension and reasoning skills were in the . (Ex. 8.17) The student’s reading fluency was also in the low average range (Ex. 8.18) and significantly interfered with the student’s comprehension. (Tr., p. 124-125.) The student was noted to be borderline in pseudoword decoding and spelling.( Exhibit 8.18) She recommended that the student receive instruction in phonics, vocabulary building, writing and repeated reading, increase the time he spends reading and other strategies to improve comprehension.(Ex. 8.15) She did not specifically recommend any particular reading technique. She also recommended therapy to address issues., (Ex. 8.16)

, the student’s grandmother and parent advocate and the mother, testified that the student showed signs of .(T.199) They had him evaluated. An IEP was developed in 2006 and the student has had an IEP ever since.(T.201 ) They said that when the child attended school in the he received instruction using which helped him . (T.202)^[2] He left that school due to . (T. 202, 231) The child began attending grade.(T.231 ) He never repeated a grade. (Ex.8.2)

They both stated that they were told that the evaluation was too old and was not considered at the 2011 IEP meeting. The CSE never asked to renew the evaluation. (T. Ex. H, T.208 )

The grandmother said that the CSE wanted to but the SETSS teacher agreed that reading and writing were difficult for the student. She confirmed that SETTS was discussed.(T.210,213, 214 )

The mother stated that the . He was only late once or twice.(T. 235) She also stated that Ms. did not provide her with progress reports.(T. 235 ) She said that SETSS was not helping the student in reading this year but she did not know that the student received a 2.9 on the ELA test this year.(T.245 ) The mother testified that the child failed in the 2010-2011 school year because he did not attend. She decided that the student should not attend because it was not taught by a special education teacher.(T. 247-248)

She was also surprised when she went to teacher conferences and learned that some of the teachers did not know that the student had and IEP. (T. 250)

The grandmother said that she is asking for two years of relief since there was no IEP prepared for the 2010-2011 school year.(T.217) She also said that the child has not had a scribe for exams although the IEP states that he should have scribe for all but math exams.(T.225)

Dr. has a doctorate .(T. 308) She had worked in the field for 25-30 years.(T. 309). She performed and various other testing of the student.(T. 310) She does not evaluate needs, just . She found that the child appeared to issues (e,g, the student cannot remember too much as once). (T. 310) In 2008, she recommended that the child be provided with an FM unit which enhances the ratio of the teacher’s voice to the back ground noise. (T.311, 323) She said that it might help. If there was no FM unit available , the student would need refocusing by the teacher. But, without an FM unit, background noise could still effect his performance. (T.320) In her opinion, the child should also have listening exercise taught by a teacher who has familiarity with auditory training. (T.311, 315) She stated that the child should receive such therapy three times week to start and then see how the child is progressing. (T.332) She would not specify the duration of each session.

Dr. performed a second round of in 2010. Her findings and recommendations were the same as those that she made in 2008. (T. 318) She thought it was very important for the student to receive these recommended accommodations. (T. 327)

CONCLUSIONS OF LAW

At the hearing, the parent’s attorney indicated her intention to pursue relief for three school years. The grandmother who was not in attendance during the entire hearing stated that it was her intent to pursue relief for two school years. Unfortunately, it is wellsettled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in the original due process complaint notice unless the other party agrees (20 USC Section 1415 [f][3][B]) or the original due process complaint is amended by permission of the IHO more than five days prior to the impartial hearing and includes the new claims. {20 USC Section 1415 [c][2][E][i][II]} [Student with a Disability, Appeal no. 11-010] This makes perfect sense otherwise the DOE will not know what the parent’s case is about and be caught by surprise at the impartial hearing. In the first impartial hearing request dated March 16, 2012, the parent did not mention the 2009-2010 or the 2010-2011 school years. The sole issue raised therein was the last annual review of the student performed in the 2011-2012 school year. (Ex. A.2) Similarly, although the parent was permitted to amend her request, the amended request was silent as well as to the 2009-2010 and 2010-2011 school years. Thus, DOE was never put on notice that the parent intended to challenge three school years until the hearing began. Accordingly, the only school year which the parent can pursue herein is the 2011-2012 school year. ^[3]

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). Moreoever, it is well-settled that the DOE is required to ensure that a student’s IEP is in effect by the beginning of the school year and that the parents are provided a copy (J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 [S.D.N.Y. 2010]). The DOE has the burden of proof regarding all of these issues. The DOE failed to meet its burden.

Procedural inadequacies that result in the loss or denial of educational opportunity, impede a child’s right to a FAPE, or seriously infringe the parents' opportunity to participate in the individualized educational program formulation process, constitute in the denial of a FAPE. 20 U.S.C. 1415(f)(3)(E)(ii); Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 (S.D.N.Y. 2005) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 (6th Cir. 2001). While it is clear that the parent and the grandparent were not denied an opportunity to participate in the IEP process for the 20112012 school year, it is also clear that the IEP team did not meet until October 28, 2011 almost two months after the school year had commenced. Since the DOE conceded that it had not produced an IEP for the preceding school year, it had an obligation to complete the 2011-2012 IEP process prior to the commencement of that school year. In failing to do so, it also was unable, according to the DOE, to consider the student’s CAPD evaluation(s) resulting in a denial of educational opportunity for the 2011-2012 school year.

Both the U.S. Code of Federal Regulations and the New York State Regulations require that in performing the annual review of an IEP or in developing an IEP such as the one developed for the student in October 2011, the IEP team must consider a student’s initial or most recent evaluations, his strengths, and his academic, developmental, and functional needs, in addition to parental concerns for the enhancement of their child’s education. 34 C.F.R. § 300.324; 8 N.Y.C.R.R. § 200.4(f)(1). In this case, the from 2010, though in the file and easily available to the team was not considered at all because it was one or two months out of date. The should have been considered by the team before they rejected the parent’s request for services particularly since it was the DOE which caused the two month delay. The evaluation was almost identical to the performed in 2008 suggesting that it would not have changed that much between August 31, 2011 (when it would still have been considered timely by the DOE) and October, the date of the IEP meeting. It is true that the team considered an evaluation from a therapist who found that SL therapy was unwarranted. However, the which was administered in 2010, tested for things that the speech and language evaluation did not measure. Dr. and tolerance fading memory issues. The DOE did not present any evidence to counter the testimony given by Dr. that the child had a significant deficits in these areas and that he required remediation or his academic progress would be impeded. She recommended that the child receive an FM unit and that he receive SL therapy given by a therapist who has auditory training skills. Dr. made a similar recommendation. The DOE also did not show that the child was provided with a scribe during all of his examinations except math assessments as mandated on his IEP. (Ex. 2.8)

As for the parent’s claim that the child also requires additional reading instruction using the Orton-Gillingham technique, it is unpersuasive. First, the child scored a 2.9 on the ELS which is approaching reading standards; a fact which the parent stated she did not even know. Second, the testimony shows that after school was offered to address the child’s 2.9 ELA score. It was the parent’s own choice to reject those after school services even though there was testimony that when the child attended the previous year, he made some improvement. Third, the Orton-Gillingham teacher stated that this technique is not the only one that can work with this student and Dr. does not even use the term Orton-Gillingham.

Finally, the parent seeks a P1 letter that would permit her to place the child in private school. The basis for this request seems to be that the student was not evaluated in timely manner. First, the evidence shows that the student had several timely evaluations such as the neuropsychological evaluation, and the SL evaluation which were both considered by the IEP team. With regard to OT, the parent was told that when she obtained the OT evaluation, the CSE could be reconvened to consider adding the service. The problem was not that the evaluations did not occur or were not timely, it was that the DOE did not consider the evaluation as discussed above. Thus, although FAPE was not provided, the parent’s claim for a P1 letter must be rejected.

ORDERED that:

1) the DOE must reimburse the parent for the evaluation obtained in 2010 upon the receipt of the proof of payment made by the mother;

2) the DOE must reconvene the CSE to modify the IEP to reflect that the child should have an FM unit made available to him in the classroom for one year to compensate him for the services he was not provided with last year as well as services for at least one year three times a week for thirty minutes;

3) after one year, the DOE may chose to obtain a new at it own expense and defer the case to CSE for further consideration;

4) the DOE shall provide an RSA to the parent for therapy by a therapist who can give the student auditory training. If there is no therapist on the approved provider list with such abilities, the parent shall, upon proof that she has exhausted the approved provider list, be permitted to obtain such services from another provider at DOE expense at an enhanced rate if necessary .

5) the DOE shall provide the child with a scribe as a testing accommodation as mandated on his October 28, 2011 IEP. Dated: August 13, 2012 Corrected Date: August 23, 2012 (Correction Made to the Exhibit Listing)

____________________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer

JTK: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 RECORD

PARENT

A Impartial Hearing Complaint, 3/16/12, 3 pp. B Withdrawn C Parental Request to Reopen the Case for Testing, Undated, 3 pp. D Evaluation Referral, 11/4/08, 7 pp. E Withdrawn F Neuropsychological Evaluation, 9/11/06, 12 pp. G , 9/10/08, 5 pp. H , 8/31/10, 5 pp. I Hearing Test, 8/31/10, 1 p. J Withdrawn K Withdrawn L Level I Vocational Interview, 10/26/11, 2 pp. M Withdrawn N Parental Request to Reopen the Case, 10/25/10, 1 p. O IEP, 11/4/09, 9 pp. P Acceptance Letter, 3/21/2012, 1 p. Q Report Update, 1/18/07, 3 pp.

DEPARTMENT OF EDUCATION

1 Amended Impartial Hearing Request, 3/2/12, 3 pp. 2 IEP, 10/28/11, 13 pp. 3 Attendance Sheet, 10/28/11, 1 p. 4 Withdrawn 5 Classroom Observation, 10/26/11, 1 p. 6 Social History Update, 10/21/11, 3 pp. 7 Evaluation, 5/18/11, 5 pp. 8 Evaluation, 9/13/11, 18 pp.

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Footnotes

[1] Neither the initial request for an impartial hearing dated March 16, 2012 nor the amended request for an impartial hearing dated March 28, 2012 indicates that the parent is challenging anything other than the then current placement for the 2011-2012 school year.

[2] is an Orton-Gilliamham instructor. 286 She testified that used to teach basic reading and phonics.289 She said that while this methodology could benefit the student, it was not the only technique that could be used. 288, 298.

[3] Of course, the parent is free to pursue relief for additional years in a separate impartial hearing request provided that are not time-barred.