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 9, 2012

June 4, 2012 Actual Record Close Date: June 15, 2012 Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2012

Advocate — Student

Parents

For the Board of Education: — Student

Chairperson's Designee-CSE 7 — Student

School Psychologist (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2012

Advocate — Student

Parents

Director/Administrator- — Student

Teacher- — Student

For the Board of Education: — Student

Chairperson's Designee-CSE — Student

Assistant Principal- (via telephone) — Student

By Complaint dated April 3, 2012, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review the Student’s recommended program for 2011-2012 and to address relief requested by the parent, in particular payment of tuition for the for 2011-2012. After the resolution period, a conference was held prior to the first hearing date. This IHO issued an order memorializing the issues relating to the hearing. (IHO Exh. 1) On June 4, 2012, the parties moved to extend the timelines to allow for the review of the transcript. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to July 3, 2012. (IHO Exh. 2)

FINDINGS OF FACT

The Student is classified as and has a . (19, 215) She processes information .

(19) It takes her a . (21) There are , though the Student is . (21-22) The Student’s Wechsler Intelligence Scale for Children, IV testing from November, 2010 indicates that the Student is at the borderline range in terms of IQ. (19; Exh. 4)) As per testing on the Woodcock Johnson Test of Achievement III on November 9, 2010, the Student’s scores consist of upper third grade level in terms of word attack, with upper second grade level scores in terms of reading comprehension. (14-15; Exh. 1, 4) Math scores are on an in calculation, and an grade level in terms of applied problems. (1617; Exh. 1, 4) In terms of writing, the because of a spelling delay. (21) She has poor punctuation, has difficulty formulating her thoughts. (21)

An observation of the Student in November, 2010 indicated that the Student in a general education classroom of 30 girls with one teacher. (30, 32; Exh. 2) The teacher indicated to the District observer that the Student was unable to complete the course work and is failing the class. (32) Another observation in January, 2012 indicated that the Student is a “very very weak student” and is unable to count even and odd numbers. (Exh. 3)The IEP provides for a 10 month program with counseling, a small class in a community school with a ratio, and related services. (43; Exh. 1) There was no disagreement with the staffing ratio. (43) The ratio was recommended because the Student needs . (54) Students in this kind of class have and . (55) Students in a . (53)

The IEP calls for a , with assignments broken down into smaller units and prompts with visual cues. (Exh. 1) Graphic organizers are recommended, as is color coding, preferential seating, benefitting from preview and review of material. (Exh. 1)

Academic goals relate to math concepts (understanding the mathematical reasoning in story problems); math calculations; decoding; writing; reading comprehension (developing good reader skills like rereading, determining key words, understanding vocabulary). (24-27; Exh.1 ) were submitted by the therapist. (49-50; Exh. 1) were derived from the and relate to self-confidence. (50-51; Exh. 1)

The recommended school setting, , offers extended day programs in the mornings on Tuesday, Wednesday and Thursday mornings, where the Students receive small group instruction in either ELA or math. (76) The school would have advised the parent that there were no classes available for the Student at the start of the year. (98-99) The reading program is called . (76)

The EO2 classes consists of instruction by different teachers. (78-79) There was a seat available in these classes for the Student. (79-80) Teachers differentiate based on the Student’s strengths and weaknesses, sometimes working in pairs, sometimes working in groups. (81) A pupil personnel team is available for the Students if mainstreaming is considered for the Student. (85) The class includes a bilingual Spanish language paraprofessional. (102-103)

The is a largely self-directed computer-based program that uses brain exercises to increase . (34-40, 209) There are 7-16 children in the class. (209) It is based on the proposition that the stimulation. (110-113) It is “muscle training” for the brain. (113, 168, 169-171) There is a room at that the program is delivered at.

(113) A minimum of three hours a day is dedicated to the program. (115) First, an assessment is given to the Students. (115-118) Exercises can be conducted on computer, by pencil, MP3 players. (118) The program costs $13, 500. (120) An additional assessment is given in June. (155) Test results are given to the parent after “devises” the result. (156-157) As a result of the program, the Student’s handwriting has improved and she has improved in certain skills regarding math. (121)

Students in this program are . (128)

The is based out of . (153) It is a company that runs for-profit schools. (158) There are three teachers who supervise the Students at the school. (171) Two of the teachers do not have college degrees. (187)

The Student does an exercise called “clocks,” a program called L-Think involving understanding the main idea, an exercise called Predicative speech on an MP3 player, a program called Sup Motor which helps with math, an exercise called Broca’s which helps with phonetics, another exercise called word tracing, a writing exercise. (175-183) Exercises and the schedule changes at the discretion of the teacher. (202)

The program is based on the founder’s research. (200, 205)

The Student attends regular education for two periods a day, 90 minutes. (208) The rest of the day, 315 minutes, are spent with the . (208-209)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The decision of Judge in Connors v. Mills, 29 IDELR 946 (N.D.N.Y. 1998), expands on Burlington in allowing for tuition payment in circumstances where a claimant cannot "front" money to the school first. stated that "(i)t simply cannot be the case that an act designed to grant "all" disabled children access to needed services would undermine that very goal by making such access dependent upon a family's financial situation." Id. at 951. The reasoning of has recently been expanded upon and approved in a thorough and well reasoned decision by in Mr. and Mrs. A v. NYC Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y.) (February 1, 2011), who noted that the legislative history of the IDEA specifically contemplates protection of low income individuals and ensures universal access to special education services.

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

An appropriate IEP must be in effect at the beginning of each school year (34 C.F.R. § 300.323[a]); Application of the Board of Education of the City School District of the City of Buffalo, Appeal No. 05-030. Caselaw has held that Districts who do not affirmatively implement IEPs by the start of the school year are denying FAPE. Application of the Board of Education of the Greenport Union Free School District, Appeal No. 00-038. The record establishes that the parent was offered a program at the IEP meeting. The program is a program that is designed to address issues relating to Students with learning disabilities. However, the record also establishes that the program was not available at the proposed site. Instead, the District posits that a program at the site would have provided the Student with a FAPE for 2011-2012. The record does not contain sufficient testimony and evidence to find that the differences in the two programs were minor. (98-102) Instead, the record suggests that the program is geared for Students with . (53) FAPE denial can be premised on a failure to materially implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)(cited in A.P. v. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 204 (2d Cir. 2010)). Here, I find that the District did not show that it was able to implement material portions of the IEP. The parent prevails on the first criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record reveals that the Student attends the for “ ” but does not benefit from a full range of instruction, including whole group classroom instruction, small group classroom instruction, classes in specific subject matter areas, or the provision of related services. Stevens v. New York City Dep’t of Educ., 54 IDELR 84 (S.D.N.Y. 2010)(private placement did not provide individual goals, related services). The record does not establish that the is based on any peer-reviewed research that has been reviewed by qualified and independent reviewers. 71 Fed. Reg. 46664 (2006). The Student does attend two general education classes per day, but is not able to meaningfully benefit from such classes because of her low academic levels. J.G. and R.G. ex rel Kiryas Joel UFSD, 777 F.Supp. 2d 606 (S.D.N.Y. 2010)(educational setting that was geared for general education students deemed ). There is no objective data in the record to establish that the Student has made any progress at Stevens v. New York City Dep’t of Educ., 54 IDELR 84 (2010) There are no progress reports in the record, no report cards in the record, and none of the are included in the record. No expert was called to attest for the program. Two of the teachers of the are not college graduates. Moreover, the record establishes that the is designed for Students who are average to above average in intelligence. The Student is characterized as in the by the most recent WISC-IV testing. Finally, the little testimony in the record to the effect that the Student has made meaningful progress . Accordingly, I find that the parental placement does not provide special education services to meet the Student’s special education needs. The District prevails on the second criterion, and tuition payment is therefore denied for 2011-2012. Dated: June 29, 2012

_____________________________

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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 Hearing Request, 4/3/12, 4 pp. B Program Description, 2 pgs. C Class Schedule, 2011-2012, 1 p. D Attendance Record, 2011-2012, 1 p. E Tuition Contract, 2011-2012, 1 p. F Parent Proof of Payment, 2011-2012, 2 pp. G Affidavit of Payment, 2011-2012, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 3/1/11, 16 pp. 2 Observation, 11/18/10, 1 p. 3 Observation, 1/12/12, 2 pp. 4 Evaluation, 11/9/10, 6 pp. 5 Social Update, 11/10/10, 1 p. 6 CSE Meeting Minutes, 3/1/11, 1 p. 7 FNR, 7/11/11, 1 p.

IMPARTIAL HEARING OFFICER

I Interim Order, 6/5/12, 5 pp. II Notices on Timelines, 6/25/12, 1 p.