New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: October 25, 2011

December 14, 2011

January 17, 2012 Actual Record Close Date: February 25, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2011

Attorney — Student

Parents

Attorney — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2011

Attorney — Student

Parents

Attorney — DOE

Special Ed Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012

Attorney — Student

Attorney — Student

Parents

School Representative — DOE

Hearings were held before me in the matter of on the following dates: October 25, 2011, December 14, 2011 and January 17, 2012. Appended to the record are lists of persons who testified and of documents received in evidence.

POSITION OF THE DEPARTMENT OF EDUCATION

The Department of Education claims that a duly constituted IEP meeting was held on May 28, 2010, at which an integrated co-teaching class was recommended for with related services of At the review, the team reviewed teacher evaluations, a report, a 2008 social history, vocational assessments and listened to the parents’ concerns for enhancing education and academic development. An IEP was developed to meet functional needs, provide and other supports and strategies to address her . On July 27, 2010 the DOE issued a Final Notice of Recommendation for School, where would have been placed in the environment and grouped with students with similar needs. The DOE argues that the parents’ unilateral placement at is not appropriate for . (Transcript, pp. 8-11)

, who attended annual review, was the first witness on behalf of the DOE. He participated at the May 28, 2010 meeting in a dual capacity as special education teacher and district representative. Also present were: the parents, a general education teacher, a parent member, and a school . Appearing by phone was teacher at . said that the documents which were reviewed included 2009-2010 IEP, a report, dated May 10, 2010, from Mr. of ,a evaluation, a vocational assessment, a classroom observation, a history and medical information. noted that except for the teacher’s report, which was current, all of the evaluations were from prior years, but within years of the meeting. No one at the review requested updated evaluations. stated, “I felt that all the information that was necessary was there.” (Transcript, p. 40) Based on the evaluations and the teacher’s report, the team determined that decoding was ; her reading comprehension, ; her writing, ; math computation and problem solving, was . The program recommendation was integrated co-teaching. One of areas was math computation; she used a and her . She was in , but had putting her ideas on paper. As for and , based on conversations with her teacher and her parents, and based on the evaluation and history, the team determined that had a history of and was . said the reports indicated that was , and making friends. To address her , the team recommended times per week. explained how the goals on IEP (most of which he had written), were targeted to address in math, reading and writing, and how her progress would be measured. (Transcript, pp. 49-58). He reported that the goals had been written by , a . referred to the transition plan in IEP, which was developed based on discussions with the parents and based on the vocational assessment. said that the IEP was mailed to the parents on May 28th, the day of the IEP meeting. He recalled the parents’ objection to the recommendation for placement in an integrated co-teaching class. As for School, opined that would not have in there despite its size and the security presence. (Transcript, p. 66)

On cross examination, clarified the concept of ‘criterion based testing’, where a student’s progress is measured not by a standardized test score, but by an alternative assessment of the student. In case, her teachers’ evaluations of her performance were based on attendance, punctuality, effort, class work, homework, participation, conduct, quizzes, etc. (Transcript, pp. 91-93). (Exhibit 15, pp. 8-32) On the issue of on the , (Exhibit 6, p.3 percentile in numerical operations, math reasoning, composite ; in listening comprehension, explained that he has been told that whereas the percentile score on the is valid, grade equivalents on the are not considered statistically accurate. (Transcript, p. 88). recalled that parents objected to the class size of an placement. (Transcript, p. 85)

Next to testify was , a special education teacher at School, who taught an ICT English class in 2010-2011, in which the students were years old. She described the lay of the school building— at the entrance and floors. The students in the School use floors of the building plus part of the for the and . There are currently . For a student with about the , she may arrive , before most of the other students arrive, go to the , , the , have quiet time or do some work. (Transcript, p. 137) explained the workings of an ICT class in which there are special education students mainstreamed with general education students and teachers, licensed in special education and the other, in regular education. The curriculum prepares the students to take the Regents exam. In 2010, the classification of the students assigned to ICT class was . The level in reading and writing was or grade. In 2010, ICT classes were available for in math, social studies, science as well as in English. stated that she works with students on a daily basis who have - or , giving them more more , making , . With , she seats them closer to herself, more work or the student with someone who is more , more . noted that to get a , at the beginning of the school year, the English teachers use the assessment tool to test reading comprehension. She stated that the grade curriculum is designed by the teachers of the class. differentiates her instruction depending on the needs of her students. s offered in the school. Asked to review the goals on IEP, testified that she could accommodate needs by teaching her test taking strategies such as inferencing, looking for context clues, eliminating wrong answers in a multiple choice exam. math goals would have been addressed by the math teacher, Ms. , and her goals would have been addressed by both and the assigned counselor. (Transcript, pp. 159-181)

stated that it was public knowledge during the 2010-2011 school year, that . (Transcript, p. 235, 241)

PARENTS’ POSITION

Mr. , father testified on January 17, 2012. He stated that had attended school in , New York, where she was placed in a specialized department for children with . In school, she was which led to her father’s request that the school modify program. Finding the modification insufficient, transferred to the School, a school for children with . After her brother from a of and , the family moved to , where attended for the and grades. She was graduated in 2011 and is now receiving vocational training in and school and working part-time for her father. Mr. described the CSE meeting of May 28, 2010, at which the of participated by telephone and , appeared in the capacity of special education teacher, representing the DOE. On the issue of the disparity between grade level on the DOE’s formal testing which was included in the evaluation (Exhibit 6) and the grade levels entered on the IEP (Exhibit 3, p. 3, which were based on teachers’ evaluations) Mr. said, “Only my wife and I brought it up, but no, it was not brought up by the staff that was present.” (Transcript, p. 259). As for the grade instructional level at which would be taught, Mr. said, “…I was definitely very concerned about the…(her)…capability, and I asked…if they could modify their curriculum, and I was told no, that this is the curriculum and that is what she’d be taught.” Mr. said that a placement was not offered at the time of the May review, but he was told that needs would be met and an offer of placement would come in the mail. There was no explanation as to the specifics of an integrated co-teaching program. (Transcript, p. 261) Based on the staffing ratio, indicated on the IEP (Exhibit 3, p. 1), the s thought that was being recommended for a class. Mr. said that at the review meeting he and his wife absolutely discussed what they thought was appropriate for their daughter. “My daughter had done extremely well at with very small classes, with individual attention, with advisors and counselors that were integrated into the teaching curriculum so that she would be able to discuss her faltering needs and her as they developed. And my daughter was an young lady.” (Transcript, pp. 261) Mr. said that the committee had recommended placement at the previous years and this was her year at school. “And she was such a young lady who was finally doing well in school. Why they recommended or why they insisted that she should not attend her last year there, was perplexing and bewildering. She had made friends…we were on to her and , which we with her brother in the same vein and were to her needs and her …” (Transcript, p. 262) Mr. said that at the IEP meeting a year before the May 28, 2010 review, the CSE had recommended that stay .

Mr. noted that upon receipt of the formal notice of recommendation for School, his wife wrote to expressing the parents’ willingness to visit the school. (Exhibit A). There was no response to that letter. It was difficult to set up an actual appointment because the s made several calls, but no one at the school picked up the phone. Eventually, a date for their visit was set for October 1st despite the fact that the parents told the representative that they needed to see the CSE recommended site before the beginning of the school year. The parents arrived at the school, went through the , were directed to the office of Mr. , who was in charge of special education. No one was there. The s were told to go to the Principal’s office to have him locate . They were told that the special education assistant principal had retired; there was no replacement. They were also told that would be , but no one knew when. They were directed to call Mr. at home who informed them that he had not been told about their appointment with him which is why he wasn’t there. told them to leave a copy of IEP, which he would review on Monday and phone them. Mr. recalled that phone conversation. “He said after reviewing her IEP, quite honestly, he said, this would not be the appropriate school for her, this would not be the right placement for her that she should not be attending this school.” (Transcript, p. 336) The parents wrote to the CSE on October 1st rejecting the proposed placement. They did not receive a response. In early November, they received a letter stating that the Department of Education could not provide group or individual for and that the parents were free to get independent services. The parents then did receive related service authorizations (RSA’s) for Mr. referred to a letter from outside adolescent Dr. , who recommended continued placement at because of the class size and the support system which were instrumental and critical to her continuing and her ability to graduate from high school. (Transcript, p. 337-8) said that , and the therapist who followed in working with , as well as the parents, maintained a dialogue with the staff at School. The parents were informed of the program provided to . As for the class size of students in the CSE recommended placement, Mr. opined that it would be for . He also indicated that felt comfortable and made progress at because of its small classes, and grouping the students by skill level and ability rather than by grade. “She didn’t suffer from . She did not feel ..She felt . …the to have the and to do her own … definitely gave her opportunities to feel , to feel and to express that.” (Transcript, pp. 343-4) Her teachers and advisors supported her. The tuition at was $ for the 2010-2011 school year. The parents did not apply for the tuition refund program.

The second witness on behalf of the parents was , the Clinical Director of . described state, “It was her year so there was a lot—she had a lot of . She was . She was . She was . She was about the following year. In addition to just and to make her way .” (Transcript, p. 269) The school provided ongoing contact and support from advisor, (Mr. ) who also tried to find programs for the girl outside of school. explained that the advisors meet with their advisees three times a day in a group and as requested, individually. advisor helped her plan strategies to her night, at a and get to school. The advisors meet with individually , and as needed in between. stated that also had a learning specialist to address academic needs. There were students at during the 2010-2011 school year in classes of to students. It is an school, which provides support for students who are very but who have some sort of . There is a where the students can access a health person to talk through their or . opined that benefited from the structure, support, guidance and small class size at . When she looked or , she was and given . She a lot of . said that had , but she was not . (Transcript, p. 279) She with ; she was . She from h and . She was often or . said, “She has a lot of, I mean, the classic hallmarks of , , in things you want to do, concentrating.” (Transcript, p. 294) discussed the specific courses which took in 2010-2011—creative writing, conservation science, algebra concepts, American History, Modern literature. opined that a large group of students in the integrated co-teaching model would have had a devastating impact on and her . (Transcript, p. 297) “I would dare say that she would have .” (Transcript, p. 298)

On cross examination, acknowledged that counselor, Mr. , was not certified as a , counselor, or as a special education teacher. (Transcript, p. 305) missed 30 days out of 186 school days in 2010-2011. (Exhibit 15, p.7) Her impacted her grades. said, “This wasn’t a student who is like a from school who want to just in, she’s …it’s because she’s , you know, and she was really, .” (Transcript, p.311) grades were during the final quarter than they had been in November. She receive in creative writing. The school did not mandate that more frequently than a week. The school wanted to see an , well versed in , and tried to help the parents find from a low fee provider. (Transcript, p.

316) According to , would have been grouped with students within years of her in reading and math; her classmates were between and years old. said that uses the students’ IEP’s to learn what the needs are of the individual students. The teachers do not match their lessons to the goals specified on the IEP’s, but use the IEP’s as a guideline.

APPLICABLE STANDARDS

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ss 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. ss 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S.Ct. 2484,2491, [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982].

“A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. ss 1415 [f][3][E][ii]; 34 C.F.R. ss 300.513 [a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26[2007]; A.H. v. Dept. of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff’d, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist. 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. ss1415 [f][3][E][i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v, Florida Union Free Sch. Distr., 142 F3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F2d 563,567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F3d at 379; Walczak, 142 F3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra, 427 F3d at 195, quoting Walczak, 142 F3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. ss 1412 [a][5][A]; 34 C.F.R. ss 300.114 [a][2][i], 300.116[a][2];8 NYCRR 200.1 [cc], 200.6 [a][1]; see Newington, 546 F 3d at 114; Gagliardo v. Arlington Cent. Sch. Dist. 489 F3d 105, 108 [2d Cir. 2007]; Walczak, 142 F 3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R. ss 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Department of Education 2008 WL 2736027 at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. ss 300.320[a][2]; 8 NYCRR 200.4[d][2][iii], and provides for the use of appropriate special education services (34 C.F.R. ss 300.320[a][4]; 8 NYCRR 200.4[d][2][v], see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 03-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

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]; see Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F3d at 105, 111 [2d Cir. 2007]; Cerra, 427 F3d 186, 192 [2d Cir. 2005]). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE )Burlington, 471 U.S. 1t 370-71; see 20 U.S.C. ss 1412 [a][10][C];ii]; 34 C.F.R. ss 300.148).

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 ss 4404[1][c]; see M.P.G. v. New York City Dept. of Educ., 2010 WL 3398256, 1t *7 [S.D.N.Y. Aug. 27, 2010]).

FINDINGS

I find that a duly constituted team convened on May 28, 2010 to develop an IEP and to recommend a placement for . At the review, one of the student’s teachers from would have been a more appropriate participant than the ; he/she would have had more firsthand knowledge of daily school performance and her special needs. However, no one at the IEP meeting objected to the absence of teacher. Nor was there an objection during the review, to the participation of as special education teacher, despite the fact that would not have been the person likely to implement IEP. Based on his credentials, I find that , who is licensed in special education had the right to participate in a dual capacity at the review as district representative and special education teacher.

As for the substantive issues in the DOE’s creation of IEP, I find that the parents satisfied their burden to prove a denial of FAPE. The team recommended an instructional level of grade (Exhibit 3, p.3) disregarding the comments in report that performed “ level”, and disregarding the grade equivalents of listed in Dr. evaluation. (Exhibit # 6) I further find, that in addition to the documents in evidence, the testimony of both parent and the Director at , support a finding that the level of grade as recommended on the IEP, was beyond the ability of and therefore not appropriate.

I also find, based on the reports and testimony that the program recommendation of an integrated co-teaching class in which there are students, would have , who was described throughout the hearing as “ ” and “ ” and who has experienced success in small classes.

Based on Mr. ’s telephone call to the s, warning them that was not appropriate for , “that she should not be attending this school” (Transcript, p. 336), I further find that the actual site which was recommended was not suitable for this student.

As for Prong II, the appropriateness of the School, I find that the fact that teacher is not certified in special education and the fact that the counselor is not certified as a or or does not render the unilateral placement inappropriate. The private school need not employ certified special education teachers or have its own IEP for the student.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefits, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize a child’s potential. They need only demonstrate that the 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.” (Gagliardo, 489 F3d at 112; see Frank G., 459 F3d at 364-65)

In case, she received grades in most courses, despite the fact that her and her performance, and resulted in for her favorite course of creative writing. She from grade to grade and received enough to . Based on her record, and on the comments of her teachers, I find that the parents have demonstrated that the unilateral placement reasonably served individual needs.

As for Prong III, do the equities support the parents’ claim for reimbursement?, I find that the record reflects that the parents fully cooperated with the Department of Education. They attended the review on May 28, 2010. They tried to schedule a visit to the proposed placement and informed the DOE that until they saw the school and determined it was appropriate, they would keep their daughter at (Exhibit A). Eventually they were given an appointment. They visited , rejected it, and timely notified the DOE of their reasons. (Exhibit B)

In her closing statement, the Attorney for the Department of Education argued that the School had failed , suggesting that the school should have done more to help the student get to class (Transcript, pp. 388-391). I find that numerous from school, referred to throughout the comment sections of most of her teachers’ evaluations, clearly impacted her grades— (Exhibit 15, pp. 8-32). In addition, I find that her poor attendance record puts the DOE in a position of having to reimburse the parents for educational services not provided. I, therefore, find, based on having % of the school year ( days of days) that it is reasonable and appropriate to reduce the tuition reimbursement by I find that the parents are entitled to tuition reimbursement in the amount of $

ORDER

It is, therefore, ordered that the parents be reimbursed in the amount of $ Dated: March 1, 2012

______________________________

Impartial Hearing Officer

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 Letter to CSE Along with Fax Transmittal Receipt, 8/16/10, 2 pp. B Letter to CSE Along with Fax Transmittal Receipt, 10/6/10, 2 pp. C NYC Department of Education 2009-2012 Progress Report Overview,

Undated, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 5/17/11, 2 pp. 2 Due Process Response, 5/19/11, 3 pp. 3 IEP, 5/28/10, 18 pp. 4 IEP Rationale, 5/28/10, 2 pp. 5 Notice of CSE Review Meeting, 5/4/10, 2 pp. 6 Evaluation, 12/18/08, 5 pp. 7 Report from , , 1/8/09, 2 pp. 8 School and Evaluation, 11/14/07, 3 pp. 9 Request for Physical Examination, 3/31/10, 2 pp. 10 Classroom Observation, 1/15/09, 2 pp. 11 Teacher Report, 5/2010, 3 pp. 12 Social History, 12/18/08, 3 pp. 13 Vocational Assessment, 12/18/08, 2 pp. 14 , 7/27/10, 1 p. 15 School Documents, Various Dates, 34 pp.