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 22, 2012

Actual Record Closed Date: November 15, 2012

Hearing Officer: Barbara Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012

Director, (Via Telephone) — Parents

This is New York City case #138967. On October 22, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education (DOE) Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , special education administrator, appeared for the DOE, and , Esq. from the Law Offices of , represented the parents. A list of witnesses who testified and documents received into evidence is attached to this decision.

ISSUE

Whether ’s lack of sufficient academic progress rises to a level of a denial of a “free appropriate public education” (FAPE) and whether he is entitled to individual tutoring services at the ( ) to make up for it.

THE PARENT’S POSITION

The Mother contends that has not made academic progress in reading, writing, and math during the time that he was in middle school. The Mother originally requested a more restrictive environment as part of the relief in this impartial hearing:

“Finally, we ask that the Committees on Special Education (CSE) be reconvened as soon as possible, in order to develop an appropriate placement, such as a classroom with additional supports.” (Tr. 17)

In the course of this impartial hearing, the parties held an off-the-record discussion beyond my hearing. The Mother then changed this part of the relief she is seeking. The

Mother no longer wants a class, but she would now prefer “special education teacher support services” (SETSS) in his current placement. (Tr. 32, 42) The Mother is also requesting a re-evaluation, and seven hundred hours of individual tutoring at .

THE DEPARTMENT OF EDUCATION POSITION

The Department of Education (DOE) conceded that . did not make sufficient progress during the years that he was in middle school. (Tr. 8) The DOE further admits that ’s Individualized Education Program (IEP)’s and ELA test establish that he made only minimal progress. has not reached the level of proficiency in either ELA or math, despite the fact that he has been receiving special education services for more than three years.

“The District can neither confirm, nor deny, that FAPE was provided because while hasn't made what is deemed as sufficient progress, he did receive the services that were recommended in his IEPs. The District leaves it to the Parents' attorney to make their case.”

(Tr. 9)

The DOE did not concede that it failed to conduct a timely triennial reevaluation. (Tr. 23) The DOE did not put on a case. (Id.)

FINDINGS OF FACT

The parties stipulated to the following facts on the record: . is and he is in the ninth grade at . (Tr. 23) The CSE classified his disability as “ ), and that classification is not an issue in this impartial hearing. (Tr. 25)

was diagnosed with “ ), and he takes medication for it. (Tr. 27-8, 40) He grade. (Tr. 27) The Mother requested additional services from the DOE over a period of years, but she did not receive them. (Tr. 27-8)

The DOE conducted an evaluation of on May 9, 2007. (Ex. H) Although this report is entitled “confidential report,” it is not an educational assessment as the evaluator did not administer any educational instruments to him. (Ex. H at 1) Furthermore, this evaluation used only one instrument, which was a WISC-IV that assesses cognitive levels. The report provides low average composite scores, but it does not report any of the sub-test scores so that are not identified in this report.

The Mother agreed to a re-evaluation in 2008, but there is no evidence that the DOE ever actually conducted an evaluation in 2008 or any time since then. (Ex. U) She made efforts to find services for outside the DOE. The Mother obtained some tutoring for him twice a week from a nurse. (Tr. 29) The Mother also took him to for an evaluation in March 2012. (Ex. EE; Tr. 36-7)

, the center director at testified about the ’s academic deficits using a standard battery of assessments. (Tr. 91-2) His reading skills are on the fourth grade level although he is now taking general education high school courses. (Ex. EE at 13) On the California Achievement Test, a standardized and nationally normed multiple-choice test, scored in the 9th percentile for students his age with a grade equivalency of 4.7. This matches and confirms their findings on the Slosson Oral Reading Test that his solid reading comprehension is on a list of fourth grade words. (Tr. 60-1) In math:

“So this shows us that his deficits in math are crippling. He doesn't have mastery of arithmetic, even with whole number operations, never mind fractions, decimals, and percents. And at this point in his life, he's about to embark on a study of higher math, algebra and geometry, and he is ill-prepared to do that kind of work, at this point.” (Tr. 67)

Ms. Helene could not assign a grade level to ’s math skills. (Tr. 67-8) This evaluation cost $295. plus a $100. registration fee. The Mother paid $195. toward those fees. (Tr. 84, 94)

Huntington calculated that needs seven hundred hours of individual tutoring to acquire grade level skills. (Ex. EE at 4; Tr. 75-83, 93-4) These calculations are based upon broad estimates and averages. For example, “splinter skills . . . average six hours per grade level per skill.” (Ex. 44 at 4) does not usually suggest individual tutoring, but this recommendation assumes that he will need individual instruction to address his inattention. (Tr. 96-7) It would take approximately two years to complete seven hundred hours of tutoring at . (Tr. 93-4) Meanwhile, all of his teachers this year have already contacted the Mother about s poor academic performance in school. (Tr. 30-1, 41)

The Mother filed an initial impartial hearing complaint on June 1, 2012 and an amended impartial hearing complaint on August 6, 2012. (Ex. A, B)

CONCLUSIONS OF LAW

Federal and State statutes and regulations require LEA’s to evaluate all areas of suspected disability and to use more than one instrument.

6) School districts shall ensure that:

(iii) assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient;

(v) no single measure or assessment is used as the sole criterion for determining whether a student is a student with a disability or for determining an appropriate educational program for a student;

(vii) the student is assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities;

(ix) the evaluation is sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified;

New York State Commissioner of Education Sec. 200.4(6)

In the case before me, the DOE’s 2007 evaluation used only one instrument that assesses the student’s general intelligence quotient; it did not assess all areas of suspected disability; and it was not sufficiently comprehensive to identify all of ’s special education needs in violation of Sec. 200.4(iii)(v)(vii)(ix). I note that it is past the twoyear statute of limitations so that I have reviewed this document for information and facts only. I have not based my decision on its legal insufficiency.

The Mother agreed to a re-evaluation in 2008, but there is no evidence that the DOE actually conducted a re-evaluation in 2008. (Ex. U) Furthermore, there is no evidence that the DOE conducted a triennial re-evaluation of since 2007 despite his lack of significant academic progress during this period of time.

An appropriate educational program begins with an “Individualized Education Program” (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 Child with a Disability, Appeal No. 04-046 Without a recent evaluation, the CSE cannot identify the student’s needs and develop an appropriate IEP to address those needs. Failure to conduct a timely evaluation is a procedural violation that rises to the level of a substantive violation of IDEA because it denies the student educational opportunity. In this case, the lack of an evaluation deprived Kwamane of an appropriate IEP with sufficient educational services.

Furthermore, 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. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd. Of Educe. v Rowley, 458 U.S. 178, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). 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 F.3d at 195 (citations omitted). The IEP must be "reasonably calculated to provide some meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192. The statute ensures an "appropriate" education, although not one that provides everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Subsequent to its development, an IEP must be properly implemented. See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087, Application of a Child with a Disability, Appeal No. 09111.

In the matter before me, the DOE concedes that has not . Each year, the CSE reconvened for an annual review. It was supposed to review and revise his IEP to address his lack of expected progress.

(f) Annual review. The individualized education program (IEP) of each student with a disability shall be reviewed and, if appropriate, revised, periodically but not less than annually to determine if the annual goals for the student are being achieved.

Any meeting to develop, review or revise the IEP of each student with a disability to be conducted by the committee on special education or subcommittee thereof, pursuant to section 4402(1)(b)(2) of the Education Law, shall be based upon review of a student's IEP and other current information pertaining to the student's performance.

(1) Such review shall consider the following factors:

(i) the strengths of the student;

(ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial or most recent evaluation of the student; (iv) as appropriate, the results of the student's performance on any general State or district-wide assessment programs . . .

(2) If appropriate, the IEP must be revised to address:

(i) any lack of expected progress toward the annual goals and in the general education curriculum or participation in appropriate activities for preschool students with disabilities, if appropriate;

(ii) the results of any reevaluation conducted pursuant to this Part and any information about the student provided to, or by, the parents;

New York State Commissioner of Education Regulation Sec. 200.4(b)(6) Yet his later IEP’s did not provide additional services to address his lack of progress in the second and third years of middle school. (Ex. E, F, G)

I find that the DOE failed to offer FAPE to for the 2010 – 2011 and 2011 – 2012 school years because the DOE failed to provide a timely evaluation and failed to develop IEP’s for him that were “reasonably calculated” for him to make educational progress.

In the Second Circuit, compensatory education is an equitable remedy that may be awarded to students who are no longer IDEA eligible when there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990) Additional services may be awarded when, as in the instant matter, the student is still IDEA eligible, But the same standard of gross violation resulting in the denial of, or exclusion from, educational services has still applied. See Application of the Board of Education, Appeal No. 02-061

In the case before me, the Mother’s attorney requested “compensatory education,” but she did not argue that these violations rise to the level of a gross violation of the IDEA. Instead, she relied on P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2nd Cir. 2008):

“The IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” (cites omitted)

P. v. Newington Bd. of Educ., 546 F.3d 111 (2nd Cir. 2008)

In fashioning remedies for violations of IDEA, courts are authorized to "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2); See Florence Cty. Sch.

Dist. Four v. Carter , 114 S. Ct. 361, 366 (1993) See also Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.

Cir. 2005). "Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA." Parents of Student W v.

Puyallupp Sch. Dist. 3, 31 F.3d 1489, 1497 (9th Cir. 1994). It is not necessary to refer to an equitable remedy as “compensatory education” or “additional services.”

CONCLUSION

I find that the Department of Education has denied . a FAPE for the 2010 – 2011 and 2011 - 2012 school years. I find that I have authority to fashion an appropriate equitable remedy.

The witness from explained how they calculated the requested seven hundred hours of individual tutoring. They made several assumptions that may not be true, and that make their calculations only broad estimates of required hours and costs. First, they assumed that would need individual instruction the entire time due to his attention issue. There is no reason to make that assumption. As he develops skills and more confidence, he may well be able to work in a small group, which is the usual method at Huntington, and costs less per hour. Second, they can only make broad estimates of how long it will take to develop skills based on an average number of hours other students have needed. He may take more or less time to acquire each skill. Third, they did not consider that the parents were also requesting SETTS in this hearing. As I am granting that request, he will also receive small group instruction on a daily basis at school. Fourth, it is impossible to know whether will reach grade level in academics.

HEARING OFFICER EBENSTEIN: Thank you.

In talking about the work that is proposing to do with this student, you spoke repeatedly about getting him up to grade level.

Are all children capable of working on grade level?

MS. : Certainly not, no.

HEARING OFFICER : Okay. So

how do you--has made a determination

that this child is capable of working on grade level?

MS. : We're not actually

qualified to do that kind of assessment. We're not psychologists. We're simply assessing the current state of his skills, as they exist today.

And if there are reasons to assume that he's

incapable of making progress or performing at grade level, that is certainly for others to decide.

HEARING OFFICER : Thank you.

Do you take I.Q. into--would that take I.Q. into account?

MS. : Well, that would certainly

be one of the things that one would take into consideration when making that determination, sure.

HEARING OFFICER : So when

has calculated these hours, it's with the assumption that they can get this child onto grade level in math and in English. Is that correct?

MS. : That is correct, yes.

HEARING OFFICER : Thank you.

But you don't know that to be true, right?

MS. : I don't know--you're right.

I have not seen any I.Q. testing for him. I have not seen his most recent evaluations.

(Tr. 89-90) As there has been no recent evaluation and the 2007 evaluation was insufficient, it is impossible to determine whether he will reach grade level in academics. In his closing statement, the DOE representative argued that they cannot claim that they will get the student to . (IHO 1 at 1) He wrote:

“In fact, the concept of reaching “ is an arbitrary term that is used to sell parents on the goods being sold. It is often used in an illogical and capricious manner in order to give hope.” (Ex. IHO 1 at 1)

While I remind the DOE that a basic principle of the IDEA is that we have high expectations of students with disabilities, the concept that the remedy should be to get to a specific level in reading, math, and writing would be a vague goal at best. Lastly, there is always potential for inflation of needed hours due to self-interest when the evaluator and the provider are one and the same. For all of these reasons, I find that the Huntington broad estimates that are unreasonably high.

I find that is in need of three hundred hours of tutoring at or another comparable tutoring center with a certified teacher.

ORDER

I order the Department of Education to:

1. Reimburse the Mother $195. that she paid toward the evaluation.

2. Pay $200. for its outstanding evaluation and registration fees.

2. Provide 300 hours of individual or small group tutoring at or a comparable tutoring center with a certified teacher.

3. Provide with one Metro Card to use for transportation to and from

4. Provide with one period per day of SETTS for the 2012 – 2013 school year to begin immediately upon receipt of this decision.

5. Conduct a comprehensive psychological and educational evaluation of and have it ready for CSE review during the spring annual review in 2013. Dated: November 21, 2012

______________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer BE;mv

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

PARENTS

A Due Process Hearing Request, dated 6/1/12, 5 pgs. B Amended Due Process Hearing Request dated 8/6/12, 4 pgs. C Subpoena dated 7/17/12, 2 pgs. D IEP dated 3/16/09, 21 pgs. E IEP dated 2/2/10, 22 pgs. F IEP dated 1/21/11, 16 pgs. G IEP dated 11/27/11, 18 pgs. H Confidential Report dated 5/9/07, 4 pgs. I Evaluation dated 2/25/09 J Student Observation dated 4/18/07, 2 pgs. K Progress Report dated 3/4/08, 1 pg. L Student Report Card dated 6/25/10, 1 pg. M Student Report Card dated 12/16/10, 1 pg. N Medical Report from , M.D., dated 11/1/11, 4 pgs. O Teacher Report From Mr. dated 11/7/11, 1 pg. P Teacher Report From Ms. Dated 11/7/11, 1 pg. Q Student Progress Report dated 12/5/11, 1 pg. R Application For Admission To High School, 2011-2012, 1 pg. S Report Card dated 3/21/12, 1 pg. T Letter From to New York City Department of Education, CSE, dated 3/26/07, 1 pg. U Reevaluation Form dated 12/2008, 2 pgs. V Final Notice of Recommendation dated 12/2/08, 1 pg. W Appointment Letter dated 2/2/09, 1 pg. X Conference Result Form dated dated 3/16/09, 1 pg. Y Final Notice of Recommendation dated 2/2/10, 1 pg. Z Letter Enclosing the Final Notice of Recommendation from 1/21/10, 2 pgs. AA Request for Consent for Reevaluation dated 11/1/11, 3 pgs. BB Reevaluation IEP Invitation Letter dated 11/4/11, 4 pgs. CC Final Notice of Recommendation dated 11/30/11, 1 pg. DD Letter From Director of Student Services to Mr. dated 7/24/12 EE , C752 Summary dated 3/28/12, 63 pgs. FF Diagnostic Profile Survey dated 3/27/12,^[2] pgs.

IHO

1 DOE closing statement (2 pages)

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Footnotes

[2] Parent’s closing brief (9 pages)