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: June 18, 2012

June 26, 2012

July 17, 2012

July 27, 2012 Actual Record Close Date: August 1, 2012 Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2012

Advocate — Parents

Parents

Attorney — DOE

Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26, 2012

Advocate — Parents

Parents

Department of Education Attorney — DOE

Psychologist (via telephone) — DOE

Department of Education Attorney — DOE

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

Advocate — Parents

Teacher (via telephone) — Parents

Parents

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2012

Advocate — Parents

Attorney — DOE

Attorney — DOE

Ms. ., the mother of ., by her advocate, , requested an impartial hearing on April 24, 2012 seeking funding for her unilateral placement of (“ ) for the 2011/2012 school year. I was designated to hear this matter on April 26, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing was held on June 18, June 26, July 17 and July 27, 2012. The compliance date was extended on two occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is August 8, 2012. (IHO Ex. I, IHO Ex. II).

Impairment. (DOE Ex. 1). Her classification is not in dispute. (DOE Ex 1). A evaluation was performed on April 27, 2011. At the time, student at . ’s Full Scale IQ was , as measured on the Wechsler Intelligence for Children- IV (WISC-IV), at the highest end of the low average range. (DOE Ex. 7; Tr. p. 74). Her General Ability Index was at the average level. As measured by the Woodcock-Johnson, displayed deficits in . On the Child Behavior Checklist (CBCL), , scores were all in the . (DOE Ex. 7).

In a Related Service Student Progress Report dated June 1, 2010, it was reported that presents with a and and that she has difficulties with auditory processing. (DOE Ex. 8, p. 1). In a Related Service Student Progress report dated May 2010, it was reported that received to , ,

In a school progress report dated May 6, 2011, it was reported that was reading on a level; that she can express herself in writing with great effort, that she gets along with peers and adults and . It was recommended that she be educated in a small setting with attentive teachers. It was noted that , and that she has anger which is seen in her writing. (DOE Ex. 10).^[1]

A Classroom Observation of was performed on May 4, 2011. ’s interaction with her teacher was generally complaint and respectful; however it was reported that she can be defiant and belligerent. It was reported that , and that she responded well to refocusing by her teacher. Overall, no inappropriate or unusual behavior was observed.

(DOE Ex. 9)

On May 23, 2011, the Committee on Special Education (“CSE”) met to review ’s program. , special education teacher who also served as the District Representative, , a school social worker , an advocate, and , a parent member participated in the meeting. (DOE Ex 4, p. 2; Tr. pp. 49, 51, 128). The CSE requested the participation of ’s special education teacher, however she was not made available for the review. (Tr. p. 128).^[2] The IEP summarized the results of the classroom observation conducted on May 4, 2011 and the school progress report dated May 6, 2011. (DOE Ex. 4, p. 3). The CSE recommended placement in a special class in a community school (12:l), with related services of Therapy (3 x 30 individually); and (2 x 30 individually); , twice per week for thirty minute sessions (once individually and once in a group of three); Physical Therapy,(2 x 30 individually) and Hearing Education Services (2 x 30 , individually). (DOE Ex. 4, p. 13).

On June 13, 2011, the CSE reconvened to review the results of the April 27, 2011 evaluation, which were summarized in the new IEP (Present Performance). (DOE Ex. 5, p. 4; Tr. p. 45, 47). The CSE also considered school progress reports, the classroom observation and old related service progress reports. (Tr. pp. 48, 130). ’s school did not provide related services. (Tr. p. 72).

, a school psychologist, the parent, , a special education teacher who also served as the District Representative, , an advocate, and , a parent member, all participated in the meeting. (DOE Ex 5, p. 2). No one from participated in the June 13, 2011 CSE review meeting, although the school was invited to participate. (Tr. p. 136).

, the school psychologist who participated in the May 23, 2011 and June 13, 2011 CSE reviews, explained that ’s intellectual functioning, as described in the April 27, 2011 evaluation, was typical for a child with . She has difficulty processing information. Her testing indicated a processing speed in the . (Tr. p. 74). She does not recall the parent disagreeing with any of the goals recommended in the IEP. (Tr. p. 82). She testified that ’s to increase her academic performance by one grade level, if taught the appropriate skills to remediate her academics. (Tr. pp. 83-84). She explained that ’s progress toward her goals would be measured through teacher made materials, like classroom tests. (Tr. p. 103). She noted that ’s academic skills, as reported by her school ( reading level), was higher than indicated in the report. (Tr. p. 95).

The CSE incorporated into the June 13, 2011, goals which were submitted by the who performed the evaluation. (DOE Ex. 7). These included goals for improving attention and focus in the classroom setting, improving social interaction with peers and adults, decoding, comprehension and spelling, calculation and math problem solving. (DOE Ex. 7, pp. 7-17, to 7-18; DOE Ex. 5, pp. 13-15). The June 13, 2011 IEP also repeated the goals in the May 23, 2011 IEP. (See DOE Ex. 4, pp. 6-10; DOE Ex. 5, pp. 812). These included goals for increasing , , , (as well as four other goals directed to her ); goals for increasing her ability to perform math computations and problems by one grade level; ; building receptive and , spelling skills and improving writing skills by one grade level. (See DOE Ex. 4, pp. 6-10; DOE Ex. 5, pp. 8-12). The IEP also included recommendations for Academic Management Needs including reinforcement of skills taught, preferential seating, check for understanding, break down information in manageable parts, reword/rephrase, as needed.(DOE Ex. 5, p. 3) (also included in the 5/23/11 IEP at DOE Ex. 4 , p. 3).

The June 13, 2011 repeated the program recommendations made in the May 23, 2011 IEP. (DOE Ex. 4, p. 13; DOE Ex. 5, p 18). The recommendations for related services continued services which had been recommended for the prior school year. The parent did not disagree with those recommendations. (Tr. p. 70). The CSE recommended placement in a class size of twelve students due to ’s . It was felt that she benefitted from a smaller class size. The CSE felt that a class smaller than twelve students would be unduly restrictive, taking into account that her are fairly intact and she has a lot of potential. (Tr. p. 107-108).

Individual and group counseling was recommended to address the and raised in the testing. (Tr. pp. 62-63). Ms. did not recall whether the mother reported that was receiving related services at the time of the review. (Tr. pp. 130-132). She did not recall Ms. representative at the May 23, 2011 meeting, disagreeing with the recommended 12: 1 program. (Tr. p. 136).

She testified that the CSE’s recommended program, as described in the June 13, 2011 IEP, would have been able to confer a meaningful education benefit for for the 2011/2012 school year. (Tr. p. 113).

On July 13, 2011, the CSE sent the parent a Final Notice of Recommendation recommending placement for in a special class (12:1), with the related services in her IEP, at M 301. (DOE Ex. 6).

, the principal of , the recommended site, testified that he is a certified English teacher and school administrator. He has been the principal of for seven years. (Tr. pp. 15-16). The school has an IEP teacher, who is a certified special education teacher. (Tr. pp. 16-17).

During the 2011-2012 school year, had Collaborative Team Teaching classes and self-contained 12:1 classes for seventh grade students. (Tr. p. 17). At the start of the 2011-2012 school year, the school had a seat available for in a 12:1 special class. (Tr. p. 18). The teacher of the class was a certified special education teacher. The school could also provide the speech therapy and counseling services recommended in ’s IEP. (Tr. pp. 20-21, 23). services would be provided at the school by outside contractors, arranged by the CSE or the school staff. (Tr. pp. 24-25). The school would also be able to implement the academic management needs described in ’s IEP. (Tr. p. 25). could also be provided with an . (Tr. p. 26).

On September 12, 2011, the parents signed a contract enrolling at O'hr for the 2011-2012 school year, at a cost of $35,585 (not including the cost of Tuition, which appears as an additional charge of $7,000.) (DOE Ex. 18). As of June 7, 2012, the parents had not made any payment toward the tuition. (DOE Ex. 16, p. 2).

Mrs. ., ’s mother, testified that the parents first became aware of ’s academic difficulty at the end of her kindergarten year. (Tr. p .217). They had tested and learned that she and that she had . The parents provided auditory integration therapy, as recommended, and she made a little bit of progress, but not much. (Tr. p. 219). After was held over in the first grade at , the parents placed her at in the third grade. She remained there through seventh grade, during the 2011-2012 school year, which was ’s fifth year at . (Tr. p. 221). The parents chose because the staff was very warm and seemed to understand all of her needs, and provided a positive environment and materials adapted to ’s ability. (Tr. pp. 221-222).

Ms. . testified that she attended the May 23, 2011 and June 13, 211 CSE reviews. She believes that she agreed that a staffing ratio was appropriate for . (Tr. pp. 222224). Mrs. . testified that when she received the final notice of recommendation, she was unable to schedule an appointment to visit the recommended site, because it was the summer, and school was not in session. (Tr. pp. 224-225).^[3] She also attempted to call the school during the first week of school, and spoke with the parent coordinator, but was told she needed to make an appointment with the director of special education at the school. After leaving several messages and not hearing back, she went to the school after Christmas break, in January. (Tr. pp. 225-226). She was shown the class at that time. (Tr. p. 227).

Mrs. . testified that the class was full, with six boys and six girls. She was told that the school did not have providers for certain therapies, and that it did not have a program for . (Tr. p. 227).

Mrs. . testified that the parents have not made any payments toward ’s 20112012 tuition at because they could not afford it. She was informed that she had to make payments as soon as possible, but she was not in a position to do so. (Tr. p. 230). She testified that both she and her husband worked during 2011; but that she stopped working in September. She testified that she has six children. She testified that the family does not receive any government benefits; and that it has no savings. (Tr. pp. 231-232). During the 2011 calendar year, the parents had an adjusted gross income of $118,580. (DOE Ex. X).

During the 2011-2012 school year, received counseling, speech therapy and occupational therapy from licensed providers outside of . (Tr. p. 232). The parents provided copies of bills for counseling services provided by , physical therapy provided provided by . (Par. Ex. W). They did not submit reports from any of the therapists, because none were available from the agency that provided the services. (Tr. p. 246). Although they requested reimbursement for their expenses in obtaining these related services in their hearing request (DOE Ex. 1), at the hearing they stated that they were not seeking fund for the related services. (Tr. p. 144). Mrs. . testified that all of the related services recommended in ’s IEP were appropriate for her. (Tr. p. 241).

The DOE did not provide with the recommended FM unit. The parent contacted the DOE to request it a few years ago, but did not get a response. (Tr. p. 233). Mrs. .testified that would have benefited from the Hearing Education Services recommended in ’s IEP; but she was told that it had to be provided in a public school setting. (Tr. p. 240).

Mrs. testified that during the 2011-2012 school year, became more selfaware, and learned a tremendous amount of self-control. (Tr. pp. 233-324). In addition, she progressed in reading, to the extent that she now found genres that she enjoys; mysteries and sports. (Tr. p. 235).

On August 22, 2011, the parent wrote a letter to the CSE stating that she was unable to view the recommended site, and stating her intent to enroll at and seek funding for the placement. (Par. Ex. D).

, the assistant program coordinator , testified that she has a master’s degree in education administration and is (hereinafter “ ”) trained at the certified level. (Tr. p. 145).^[4] is a transitional program for students with difficulty in language processing. The focus of the program is the O-G language instruction, in English and Hebrew. A multisensory approach is also used in teaching other subjects. (Tr. p. 148). During the 20112012 school year, had two classes. Each class had an English teacher who was state certified in special education. Each class also had a Hebrew teacher. The school also employed, three assistants, who are either in college, or have obtained a bachelor’s degree and approximately seventeen O-G trained English teachers. (Tr. p. 150-153).^[5] Each class has up to twelve students, one teacher and one assistant. (Tr. p. 153).

The students who attend the school have , and average to above-average intelligence. The school provides intensive instruction in reading, writing and language, for two to three years, to enable students to return to their neighborhood schools. (Tr. p. 155).

During the 2011-2012 school year, was a student at . Her teacher, , is certified to teach students with disabilities. The aide within the class was studying for her bachelor’s degree and had a certificate in teaching methodologies from a teaching seminary. There were ten students in the class. (Tr. pp. 157-158). When the school year began, was still struggling with organizing her thoughts and with creative writing. She was also . (Tr. p .158). In math, she performed well in math calculations, but struggled with word problems. Her attitude toward school was very negative. (Tr. p. 159). Her overall math level was fifth grade. In reading, she could function at a seventh grade level, but her phonetic reading was lower fifth grade level. (Tr. p. 160). Ms. described as very intelligent. (Tr. p. 161). The other students in her class were aged 11 to 14, with similar academic levels. (Tr. pp. 161-162).

During the course of the 2011-2012 school year, progressed in her ability to write stories and essays, and in turning her homework in on time. She also showed improvement in her attitude toward her ability to do the work, and in her math abilities. (Tr. p. 177). By the end of the school year, her decoding ability was at a sixth grade level and her general reading ability was closer to the end of seventh grade. Her math skills were at a sixth grade level. (Tr. p. 208). Her had also improved. (Tr. p. 211).

Ms. testified that the school does not provide related services. (Tr. p. 179). ’s class schedule included instruction on Mondays through Thursdays; for forty-two minutes in Hebrew Language and for fifty minutes in English language. (Par. Ex. N). Ms. does not believe that required any related services, as most of her goals were met in O-G sessions. (Tr. p. 188 ). She testified that she did not review progress reports from any of ’s related services providers; and that none of the providers came to the school. She testified that although ’s IEP provides for an unit, does not want to use it, because it is embarrassing and uncomfortable. Instead, she is placed in the front of a small class where she can hear, and is functioning adequately. (Tr. pp. 189-190).

Ms. testified that the school used the math, reading and handwriting goals contained in the May 13, 2011 IEP. (Tr. pp. 194-195). 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 argues that the IEP goals were appropriate, as indicated in the testimony of Ms. and Ms. . (Tr. p. 269). The DOE further argues that the staffing ratio was appropriate , in view of the fact that ’s behavioral difficulties were largely observed at home rather than in the school setting. (Tr. p. 272). The DOE further argues that parent’s unilateral placement was inappropriate because the school did not provide with any of her related services. (Tr. p. 278). Parent’s Position

The parents’ position is that both the May 23, 2011 and June 13, 2011 IEP’s are inappropriate because goals, which anticipate one year’s academic progress, were not consistent with ’s demonstrated progress in prior years. (Tr. p. 262; DOE Ex. 1). In addition, the parent argues that the recommended staffing ratio of was not sufficient, given ’s . (Tr. pp. 264-265; DOE Ex. 1). The parent also testified that she was unable to observe the recommended site until January. (DOE Ex. 1; Tr. pp. 225-227).

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).

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200.4[d][2][iii]). Each annual goal should include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. Id. at 21.

Both the May 23, 2011 IEP and the June 13, 2011 IEP include extensive goals to address ’s needs in all academic areas. The IEP’s also include extensive goals, language goals, and goals to address ’s .

Contrary to the parent’s argument, the record indicates that it was appropriate for the CSE to set a goal of one year’s progress in all academic areas, given ’s intelligence, and the fact that she would be receiving special education supports. The record indicates that had made significant academic progress from May 2010 to May 2011; and then again during the 2011/2012 school year. Finally, Ms. testified that she worked from the academic goals, contained in the May 31, 2011 IEP.

The parent’s argument that a staffing ratio was inadequate, given ’s significant social/emotional needs, must also be rejected. Although had which necessitated counseling, her teachers reported that she got along well with peers and adults, and took her frustrations home. In a Classroom Observation, she was described as respectful, and compliant with an average attention span. There was nothing in the record to indicate that the parent or staff disagreed with the recommended staffing ratio at either of the CSE reviews, or in subsequent communications with the CSE. At the hearing, Mrs. W. testified that she agreed with the staffing ratio at the CSE review. Mrs.

W. also agreed that requires all of the related services recommended in both IEP’s.

I find that the May 23, 2011 and June 13, 2011 IEP’s were reasonably calculated to enable to receive educational benefits. I also find that the DOE proved that the recommended site could implement ’s IEP, as required by T.Y. v .New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). Although the parent testified that she was unable to view the recommended site until January 2012, she later acknowledged that she had been shown the same site, during the prior school year, when it was recommended for .

Even if I were to find that the DOE failed to satisfy its burden of demonstrating the appropriateness of its recommendations, the parents’ request for tuition reimbursement must be denied because they failed to 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). The parental placement does not provide any of the many related services which needs. Although the parents supplemented her academic instruction through outside providers, they failed to provide any proof that the related services they provided for were appropriate, or that they were coordinated with ’s academic program.

ORDER

For all of the foregoing reasons, it is hereby ordered that the parents’ request for funding for ’s tuition expenses for the 2011-2012 school year is denied. Dated: August 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

B School Description/Mission Statement, Undated, 5 pp. C School Rules, Undated, 1 p. D Ten-Day Notice, 8/22/11, 1 p. E FNR & Fax Confirmation, 7/13/11, 2 pp. F Admission Application, 5/15/07, 9 pp. G Tuition Contract, 2011-2012 , 1 p. H School Affidavit, 6/7/12, 1 p. I Attendance Record, 2011-2012, 1 p. J Class Schedule, 2011-2012, 1 p. K Diagnostic Testing, 1/5/12, 1 p. L Staff Working with , 2011-2012, 1 p. M Schedule for Teachers and Service Providers, 2011-2012, 1 p, N Class Schedule, 2011-2012, 1 p. O 2011-2012 Class Profile, 1 p. P 2011-2012 Student Progress Report, 6 pp. Q Sample of Class Work, 2011-2012, 4 pp. R Doctor's Report, 4/13/11, 1 p. S Curriculum, 2011-2012, 7 pp. T 2011-2012 Student Handbook, 9 pp. W Independent Providers' Billing Forms, 2011-2012, 12 pp. X 1040, 3/24/12, 2 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 4/24/12, 3 pp. 2 Due Process Response, 5/2/12, 4 pp. 3 IEP, 5/26/10, 22 pp. 4 IEP, 5/23/11, 22 pp. 5 IEP, 6/13/11, 27 pp. 6 FNR, 7/13/11, 1 p. 7 Evaluation and Vocational Assessment, 4/27/11, 19 pp. 8 Related Service Progress Reports, 5 pp. 9 Classroom Observation, 5/4/11, 2 pp. 10 School Progress Reports, 5/6/11, 11 pp. 11 CSE Minutes, 6/13/11, 1 p. 12 CSE Minutes, 5/23/11, 1 p. 13 CSE Contact Sheet, 3/2011-6/2011, 1 p. 14 CSE Meeting Notices, 5/9/11 and 6/3/11, 2pp. 15 Subpoena and Responses, 5/22/12 and 6/6/12, 6 pp. 16 E-Mail, 6/7/12, 2 pp. 17 Parent Check, 4/15/12, 1 p. 18 Contract, 9/12/11, 1 p.

IMPARTIAL HEARING OFFICER

I Case Follow-up Sheet, 6/26/12, 1 p. II Case Follow-up Sheet, 7/27/12, 1 p. III Pre-Hearing Conference Summary, 5/17/12, 1 p.

Footnotes

[1] On May 26, 2010, ’s teacher estimated that she was reading on a 2.1 grade level, and performing math on a 2.8 grade level. (DOE Ex. 3, p. 3).

[2] According to Ms. the educational coordinator for the school, Ms. is a New York State certified teacher and is qualified to understand the educational needs of the students at the school. (Tr. pp. 197-198).

[3] Mrs. . later acknowledged that she had seen the school when it was recommended during the prior school year. (Tr. p. 247)

[4] O-G is a multi-disciplinary approach for teaching people with dyslexia, using multi-sensory teaching strategies. (Par. Ex. B-1).

[5] The one-to-one O-G teachers have each had at least 50 hours of instruction in O-G and 200 hours of supervised teaching. (Tr. p. 153).