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 30, 2012

June 6, 2012 Actual Record Close Date: June 27, 2012 Hearing Officer: Dora M. Lassinger, Esq.

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

Attorney — Student

Parents

For the Board of Education: — Student

MS., Chairperson Designee-CSE — Student

School (via telephone) — Student

Guidance Counselor (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2012

Attorney — Student

Program Coordinator (via telephone) — Student

Parents

Parents

For the Board of Education: — Student

Attorney — Student

Mr. and Mrs.., the parents of., by their attorney,, from the law office of — Student

Esq., requested an impartial hearing on March 29, 2012 seeking prospective funding — Student for their unilateral placement of at at School for the 2011/2012 school — Student year.^[1] I was designated to hear this matter on March 30, 2012 pursuant to 20 U.S.C. — Student

Section 1415(f)(1). An impartial hearing was held on May 30, 2012 and June 6, 2012. The compliance date was extended on June 6, 2012, the final date of hearing, to July 11, 2012, due to the extensive testimony and issues. (IHO Ex. I).

is a year old girl with a classification of . (DOE Ex. 1). Her classification is not in dispute. (Tr. p. 12). A evaluation was performed on October 19, 2010 by , a certified school , who testified at the hearing. At the time, was an grade student at School (“ ”) in a class, with mainstreaming for math and studies. displayed and during including , the , asking to . It was felt that the test results were a of her current academic . As measured on the Wechsler Abbreviate Scale of Intelligence Scale , ’s Intellectual Functioning, was , in the . Her Verbal IQ was , and her Performance IQ was , both within the . As measured by the Woodcock-Johnson III-Tests of achievement, ’s broad reading score was , in the . She achieved an grade equivalent in reading fluency; but only a grade equivalent in passage comprehension. Her broad math score grade equivalent, with in calculation ( grade equivalent) and in applied problems ( grade equivalent). testing along with revealed a , , and somewhat . It was felt that might benefit from , to address her . (DOE Ex. 2; Tr. p. 43).

On May 24, 2011, the Committee on Special Education (“CSE”) met to review ’s program. , a school , both parents, , a general education teacher, ,a special education teacher who also served as the District Representative, and ,a parent member participated in the meeting. The review team did not include a representative from ’s school. (DOE Ex 1, p .2; Tr. p. 21). Mr. was not teaching at the time of the meeting, or during the 2011-2012 school year; however he has had experience teaching disabled students at the high school level. (Tr. pp. 19-20). Ms. did not know when Mr. last taught in a classroom; or if he ever taught in a classroom. (Tr. p. 21).

Ms. testified that written notice of the meeting was sent to ’s school and her parent on April 8, 2011. (Tr. pp. 21-22; DOE Ex. 4). was also called on the morning of the meeting; however the CSE was unable to get anyone on the telephone to participate in the meeting. (Tr. pp. 21-22). On October 20, 2012, after she evaluated , Ms. wrote to her school, requesting a progress report from ’s teacher, and teacher; but none was provided. (DOE Ex 3; Tr. p. 23 ). No observation of was performed. Ms. did not know what ’s class size was at the time of the review. Nor did she ask the parents that question. (Tr. pp. 29-30). She testified that she did speak with ’s SETSS teacher, Ms. , after she evaluated her, and ascertained that was in a class. Ms. ’s description of was also included in the “Present Performance” section of the IEP, in which it was reported that “ is and has but her interferes with her .” (Tr. p. 31; DOE Ex. 1, p. 3).

The CSE recommended placement in a special class in a school, with related services of , per week individually, to address ’s . (Tr. p. 10, 13; DOE Ex. 1, pp. 1,10 ). Ms. testified that the parents agreed that required a small class; but disagreed with the recommended ratio. She explained that when students enter a school, “the mandate changes to .” (Tr. pp. 12-13). ^[2]

Ms. testified that due to ’s , mainstreaming for academics was not recommended; but that it could be attempted if her school felt she could handle it. She did not have specific information as to how was mainstreamed at , including the type of support she received or the size of class into which she was mainstreamed. She knew that was mainstreamed for Math and Studies. (Tr. p. 38). She testified that she is familiar with ’s school and described it as a , special education program within a larger school. (Tr. pp. 40-41).

The May 24, 2011 IEP summarizes the results of the psychoeducational testing performed on October 19, 2010. (DOE Ex. 1, pp. 3-4). ’s academic management needs, as described in the IEP, include setting, and , and . ( Id. at

^[3]

3). ’s IEP includes goals for and ability to with ; ; with (by using ); skills (by and accuracy) and her skills, by a paragraph essay. (Id. at 6-7).

The IEP does not include any goal for , other than defining words. Within the performance of the IEP, it was noted that ’s “ with and requires additional ”. The recommended support was “ , classroom setting special education teachers ”. (DOE Ex. 1, p. 4). Ms. explained that ’s gets to the where she room to . (Tr. p. 34).

Ms. testified that the parents cooperated with the CSE by participating in the CSE meeting and providing information regarding their daughter. (Tr. p. 26).

In a letter dated June 27, 2011, the CSE sent the parent a final notice of recommendation, recommending placement for in a ( School). (DOE Ex 6; Tr. p. 53).

, a guidance counselor at School, the recommended site, testified that he is a certified school counselor, assigned to the Special Education Department. He is responsible for academic programming and for special education students. (Tr. p. 47). He testified that the school has various special education services including resource room, collaborative team teaching and classes. All of the teachers are licensed and certified; and are supervised by an assistant principal for special education and assistant principals for the various core content departments. The school provides various related services, including services from certified providers. (Tr. p. 48).

After reviewing ’s IEP, Mr. testified that it is typical as compared with other students in environment. He testified that ’s IEP goals could have been implemented at the school. (Tr. p. 52). services per week would also have been available to her. (Tr. p .62). ’s would have been addressed by her special education teacher and her counselor. (Tr. p. 63).

According to Mr. , the program at School is departmentalized, with students traveling to different classes for their subjects. All of the classes have a student to teacher ratio. Students are grouped by core content area. (Tr. p. 54). There are classes for . Mr. does not know if was on the class roster for either one of these classes. (Tr. p .58). The school has approximately students in grades . (Tr. p. 58). The school has , , and assigned. (Tr. p. 60).

Mr. , ’s father, testified that he was unable to see the recommended placement until September, although he attempted to do so earlier, through calls and Emails. (Tr. p. 145). On September 8, 2011, Mr. . sent a letter to the CSE expressing his concern as to whether a staffing ratio was appropriate for , whether there will be appropriate mainstreaming and whether the IEP will support her social needs. He wrote that until such time as he is able to visit the recommended site, he planned to keep at at and to seek DOE funding for the program. (Par. Ex. C). September 8, 2011 was the first day of school at at . (See Par. Ex. H).

On September 9, 2011, the parents signed a contract enrolling at for the 2011-2012 school year, at a cost of $35,400. (Par. Ex. E).

Mr. went to see the recommended site sometime in September 2011, prior to September 23. (Par. Ex. D; Tr. p. 145). He observed that there were and in at the school’s entrance. On each floor, there were . He was shown the school and got to sit in on one of the classes that would be attending. (Tr. p. 146). His observation was that the class included a wide age range, including a male student in his ; and that the educational level of what was being taught was what was capable of. He perceived the school environment as , and something that would add to ’s . He believed it was inappropriate for . (Tr. p. 147).

On September 23, 2011, Mr. . wrote a letter to the CSE rejecting the recommended site as being inappropriate due to its large size, and the fact that there were , and on every floor of the school. He also wrote that the academic level within the class he observed was below ’s level. He reiterated his intention to seek DOE funding for ’s placement at at . (Par. Ex. D). He did not receive a response to the letter. (Tr. p. 148).

He testified that during the current school year, has in her ability to , and now has a , and actually them to . Academically, she has in her ability to in mainstream classes, with . She has benefited from the environment and which she received. (Tr. pp. 150-151). He testified that due to the importance to of integrating into regular classes, and being “a normal, regular individual”, it would not be beneficial to remove her from classes for . The parents took her for in the evenings, including meetings with the parents. Initially, received weekly ; however, due to her improvement, she progressed to going every few weeks. (Tr. pp. 151-152).

Mr. A. testified that the family’s yearly income is approximately and that he has children including . He is unable to pay ’s entire tuition bill and seek reimbursement. (Tr. p. 154). He is paying ’s tuition in installments. (Tr. p. 153). To date he has paid $ , and owes $ . (Par. Ex. F; Tr. p. 153). The parents are not seeking DOE funding for the portion of the school day devoted to instruction. (Tr. p. 109).

Mrs. ., ’s mother, testified that she participated in the challenged CSE review. She recalls describing ’s and her . She recalls that it was agreed that “she needs a classroom environment, and she needs to work on her .” (Tr. p. 133). It was further agreed that she should receive . (Tr. p. 139). She testified that although everyone agreed to a class and , the parent’s agreement to the recommendation would also depend upon her seeing the school, to see if it would meet ’s needs. (Tr. p. 139).

Mrs. . testified that the parents pay privately for to receive outside of school. (Tr. p. 140). began receiving at the start of the school year weekly, with a . (Tr. pp. 140-141). The parents are not seeking reimbursement for the services which they provided. (Tr. p. 152).

, the coordinator of the special education program at at testified that she is a licensed special education teacher. (Tr. p. 72). is a mainstream girl’s school with approximately students in grades through , and classes with an size of to students. provides classes within , with to students in each class, with a teacher and an assistant. There are students in the program, in grades to . They are all students (Tr. pp. 73-74). participates in the grade class at , although she is chronologically a grader. (Tr. p. 112-113).

entered the Program during the 2010-2011 school year, as a^[4] grade student. (Tr. p. 112). She is a . She presents with , and has and . (Tr. pp. 76, 79). Her tendency to and with her . (Tr. p. 77). Ms. does not recall being contacted by the CSE for the purpose of participating in the May 24, 2011 CSE review. (Tr. p. 81). Nor does she recall receiving a request for a progress report. (Tr. p. 121).

During the 2011-2012 school year, was placed in a class of students, ranging in age from to years old. Her teacher has a bachelor’s degree in special education. The assistant teacher also has a bachelor’s degree. (Tr. p. 81). The other students in ’s class also struggle with learning disabilities, social and language issues. requires , and does best when the class is broken into groups of students. She needs the teacher to be , and is a . (Tr. p. 82).

From ., is provided with instruction in a group of students, to back her up for classes she takes in the mainstream. (Tr. pp. 84-88; Par. Ex. G). Her schedule has evolved during the course of the year, to afford her increasing mainstreaming opportunities. (Tr. pp. 88-89). As of the hearing, was mainstreamed for Study from ; for science, per week, and for Math and Language Arts from .^[5] (Par. Ex. G). Her writing instruction, which occurs in a group of nine students, includes graphic organizers, learning to write four fully developed paragraphs, checking her grammar, and producing a first and second draft. (Tr. pp. 95-96). Around the middle of the school year, was mainstreamed for language arts, in a group of girls. (Tr. p. 97). The school responded to ’s strong need to be mainstreamed by providing a great deal of support. (Tr. pp. 102-103).

In reading, ’s strength is in , which is . Her comprehension is years . She can function in a mainstream setting when material is very clearly outlined and there is a lot of previewing. (Tr. p. 91). For reading, is instructed in a group of , working on a grade level. (Tr. pp. 92-93). The teacher uses a graphic organizer to teach how to pull out the main idea and the details of the story. (Tr. p. 84). She is working on being able to and , and has to the point that she in a mainstream class with supports and modifications. (Tr. p .94). She has benefited from the whole language program for reading instruction. (Tr. p. 128).

For math, receives instruction in a class of girls, and within the mainstream. Her include and making . She works from the mainstream text, with assistance from the teacher including using graph paper, having the work blown up, and having the teacher at her side, breaking it up for her. (Tr. pp. 98-99). The other girls in her math class all work at a beginning grade level. is working on . (Tr. p. 100). Her grades have from to . (Tr. p. 101).

Although is , and requires a to work through her and ease back into academics, the school recommended against in-school , due to concerns regarding to her in . Instead, the school recommended that the parents provide outside . (Tr. p. 104).

takes place each morning from . to .; and from . to A.M. on

6 Fridays. (Par. Ex. G). Ms. testified that benefits from mixing in a mainstream setting, while having the support of the program. (Tr. p. 108). She testified that during the current school year, has in her , in her grades, and in her ability to . , she is and . (Tr. pp. 110-111).

Reviewing the DOE IEP, Ms. testified that the goals were very simplistic. She testified that teachers at use these goals as a starting point, and they fine-tune them. (Tr. pp. 113-114). DOE Position

The DOE’s position is that its IEP and recommended class provided with a FAPE and that the parents are not entitled to any of the relief they are seeking. The DOE further argues that equitable considerations do not support the parents’ request for reimbursement. (Tr. pp. 166-171).

6 Based upon the school schedule in evidence, the school week consists of 34.75 hours, with 6.75 hours (or 19%) devoted to instruction. Parent’s Position

The parents’ position is that the IEP is invalid because the CSE review team did not include the child’s school, and the CSE lacked information about and her school program. The parents also argue that there was no evidence that the recommended program was appropriate for or that she would have opportunities for mainstreaming. Finally, the parents argue that the DOE failed to demonstrate the appropriateness of the recommended site. (Tr. pp. 161-163). The parents argue that at is an appropriate placement and that equitable considerations support the parents’ request for reimbursement. (Tr. p. 164).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a Free Appropriate Public Education (“FAPE”) only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).

34 C.F.R. 300.321 provides that an IEP team must include a regular education teacher of the child, (if the child is or may be participating in the regular education environment) and not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child. The special education teacher or provider should be the person who is or will be responsible for implementing the student’s IEP. Application for Review of a Determination of a Hearing Officer, Appeal No. 11-040. In Application for Review of a Determination of a Hearing Officer, Appeal No. 11-040, the State Review Officer held that the fact that the special education teacher member of the review team was not the person responsible for implementing the student’s IEP did not constitute a denial of FAPE, where the student’s then-current private school special education teacher participated in the review, and the review team considered a teacher’s report and the concerns of the teacher.

In the instant case, neither the regular education teacher nor the special education teacher member of the review team was a teacher who would be implementing the child’s IEP. Ms. testified that Mr. , the special education teacher member of the review team, was a teacher assigned to the CSE, who did not actually teach classes during the 2010/2011 school year or the 2011/2012 school year. Ms. did not know when Mr. , the general education teacher member, last taught in a classroom; or if he ever taught in a classroom. In any event, ’s IEP did not provide for any instruction in a general education environment. Nor was there any participation or even a report from the child’s private school. The only input Ms. had from the child’s school was in a telephone conversation following her evaluation of the child.

While Ms. was aware that the child was attending two mainstream classes ( Studies and math), the IEP does not provide for mainstreaming. As a result, the CSE recommended a program for which was more restrictive than her private school program, and was not the least restrictive environment for her.

In addition, I find that the goals contained in ’s IEP do not address specific weaknesses which were identified in her recent psychoeducational evaluation. The IEP includes no goal for to . The record indicates that was years grade level in both of these areas. Nor was there any testimony that these issues would be addressed at the recommended school.

I find that the foregoing procedural and substantive errors impeded ’s right to a FAPE. Accordingly, the DOE failed to meet its burden of proving the appropriateness of its recommendations. Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128

S. Ct. 436 (2007).

I find that the parents demonstrated that the program at , is an appropriate educational program designed to meet ’s unique needs. is placed in a class, with students, a teacher and a teacher’s assistant; and receives support so that she can participate extensively in mainstream classes. The school has responded to ’s strong motivation to participate in mainstream classes by providing her with intensive classes where the material is previewed and broken down for her. She also . The record indicates that during the current school year, she has in and her grades have . For reading, she is working on being , and has to the point that she can with and . She has also in her to , and . The parents provided privately, so as to avoid having to remove from her classes. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; see Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084

Tuition reimbursement may also be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the BOARD OF EDUCATION, Appeal No. 08-

084. The purpose of the notice requirement is to give the district a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District. J.S. and A.G. v. Scarsdale Union Free School District, 111 LRP 73958 (U.S.D.C, S.D.N.Y., 2011) (citing.W.M. o/b/o O.M. v .Lakeland Central School District, 783 F. Supp. 2d 497 (U.S.D.C., S.D.N.Y. 2011).

While the parents cooperated with the DOE by participating in the CSE review and going to view the recommended site, there is no evidence that they communicated their specific concerns with the recommended program at the CSE review. While Ms. testified that the parents disagreed with both the and the staffing ratio, Ms. testified that the parents agreed with the CSE’s recommendation, with the understanding that they would also have to visit the recommended site to see if it met ’s needs. There is no indication in the record that the parents ever communicated their desire for to participate in mainstream programming, until Mr. sent a letter dated September 8, 2012. Furthermore, the parents did not notify the CSE that they would be seeking reimbursement for their unilateral placement of at at until September 8, 2011, ’s first day of school at . Thus, the parents failed to satisfy the 10 day notice requirement of 20 U.S.C. Sec. 1412[a][10][C][iii][I].

The parents have requested funding for the portion of ’s tuition, which I have calculated to be 81%, or a total amount of $28,674 (based upon a total tuition of $35,400). Due to the failure of the parents to satisfy the 10 day notice requirement, as described above, I find that this amount should be reduced by fifty percent, so that the parents receive funding in the amount of $14,337. The parents have demonstrated that they are unable to pay the full amount of the tuition, and seek reimbursement. Therefore, the parents should be reimbursed for the amount they have already paid ($2,400, as of the date of hearing); and the balance of the award of $14,337, should be paid directly to the school. See Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011).

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall fund $14,337 of ’s tuition expenses for the 2011-2012 school year, by reimbursing the parents for any amounts (up to $14,337) paid to date, upon presentation of proof of payment thereof; and by paying the balance directly to at . Dated: July6 6, 2012

_____________________________

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

DML: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 Request, 3/29/2012, 2 pp. B Due Process Response, 12/16/2011, 3 pp. C Parent Letter with Confirmation, 9/8/2011, 2 pp. D Parent Letter with Confirmation, 9/23/11 E Contract, 9/9/11, 2 pp. F Affidavit of Payment, 5/23/12, 1 p. G Schedule, 2011-2012, 1 p. H Record of Attendance, 2/21/12, 1 p. I Tax Return, 2010, 2 pp. J Proof of Payment, Various Dates, 4 pp.

DEPARTMENT OF EDUCATION

1 IEP, 5/24/2011, 14 pp. 2 Psychoeducational Evaluation, 10/19/2010, 4 pp. 3 School Report and Fax Confirmation, 10/20/2011, 2 pp. 4 Notice of IEP Meeting, 4/8/2011, 1 p. 5 CSE Minutes, 5/24/2011, 1 p. 6 Final Notice of Recommendation, 7/20/2011, 1 p.

IMPARTIAL HEARING OFFICER

I Extension of Compliance Date, 6/6/11, 1 p. II Pre-Hearing Conference Summary, 4/30/12, 1 p.

Footnotes

[1] The parents alleged, among other things, that the CSE review team was invalidly constituted; that the recommended staffing ratio of was inappropriate; that the IEP fails to accurately and completely reflect the information presented to the CSE, that the goals and objectives are insufficient, that the recommended site was inappropriate due to its large size and the at the school, and that the class was functionally inappropriate. (Par. Ex. A).

[2] Elsewhere in the IEP, (and the minutes of the CSE meeting) the recommended staffing ratio appears as . The CSE changed the staffing ratio from when it realized was going to be a school student. (See DOE Ex. 1, p. 8; DOE Ex. 5; Tr. p. 10). In any event, Ms. testified that the team thought the recommended staffing ratio should be . (Tr. p. 16). The parents disagreed with both the and the staffing ratio. (Tr. p. 44).

[3] Division is the only type of computation mentioned in the goal. There is no goal for performing math problems.

[4] She her grade year, because it was felt that during the year preceding her entry to , she had . (Tr. p. 112).

[5] She has a different schedule on Fridays, which includes both and mainstream instruction. (Par. Ex. G). The schedule in evidence has been in effect for approximately the past two months, as has gradually joined more mainstream classes during the course of the year (Tr. p. 119).