New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Requested By: Parent

Date of : August 7, 2012

August 10, 2012

August 15, 2012

Record Close Date: October 27, 2012

Officer: Martin Schiff, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2012

Attorney for Parent (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2012

Attorney — Student

Parents

Friend — Student

District Representative — DOE

Teacher (via telephone) — DOE

Supervisor (via telephone) — DOE

Interpreter — DOE

Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2012

Attorney — Student

Parents

Friend — Student

Interpreter — Student

Interpreter — Student

Provider (via telephone) — Student

District Representative — DOE

On July 15, 2012 I was appointed to hear the matter of a child with a disability, pursuant to the Individuals with Disabilities in Education Improvement Act (“IDEIA”), 20 U.S.C. 1415 (f)(1), Section 504 of the Rehabilitation Act of 1973, as amended, and Florence County School District Four v. Carter by Carter, 114 S. Ct. 361 (1993).The impartial request was filed on June 8, 2012. After a pre-conference on August 2, 2012 and a pendency on August 7, 2012, s were held on the merits on August 10, 2012 and August 15,, 2012. The parents’ closing brief was submitted on August 31, 2012. The Department of Education’s (“DOE”) closing Statement was submitted on September 10, 2012 The was completed on September 10, 2012 with requests for extension of compliance granted due to extensive testimony and issues. At this time the proceedings were closed, and no further testimony was taken.

It is noted that this is a parental request for an impartial [Exh. A] based on the allegations that: (1) the school district failed to offer their child, a then-over- -yearold boy diagnosed with , a free and appropriate education (“FAPE”) in a timely manner for the 2012-2013 school year; (2) the alleged school district failure is based on the Committee on Special Education (“CSE”) review of May 18, 2012 which failed to offer the child an appropriate program of services, especially insofar as it would not include a continuation of (“ ”) l; (3) the basis for the complaint is that the child’s Individualized Education Program (“IEP”) prepared by the CSE was not reasonably calculated to confer educational benefit upon the child; (4) the CSE recommended an class in a state-supported school, the , with related services, and special education transportation but without ) tutoring which this child absolutely needs; and (5) the IEP program without the inclusion of did not take proper account of the child’s .

The Department of Education [DOE] denies the allegations in the parents’ complaint and responds, in summary, as follows. The child was offered a FAPE for the 2012-2013 school year since the DOE complied with all of the procedural and substantive requirements set forth in the IDEIA. The DOE’s IEP team met on May 18, 2012 and recommended an appropriate educational program for the child. The child is classified with and already receives support in an grade class at the . Since the child already receives the services that ne needs, the CSE correctly saw fit to terminate the at home services that he was receiving under the tutoring program.

THE DEPARTMENT OF EDUCATION’S CASE

1st

Date: August 10, 2012

Dr. represented the DOE and made the opening statement The child is a student classified with who attends the . He has been there since and receives services. The teachers there are all certified as teachers of the . He is in a 12-month special class. The issue in the case is that in the last annual review IEP in May of 2012 the child’s Education Services were removed from his program. The child already receives support in his class and related services and so does not need the additional program. The child is and receives appropriate 12-month services at the from teachers certified to teach the . Therefore, the IEP recommended removal of the program for the 2012-2013 school year.

The first DOE witness was , the child’s classroom teacher at . He has licenses and certifications as a teacher of the . He has taught there for . The age range in the school is . All students are , and some have additional disabilities. The school has related services of . There are also and services available for those who need them. [Tr. at 96] The mode of instruction in class is . [Tr. at 100] Services [ ] is a service that the witness heard of only from the child in question getting it, and the child gets it outside of school. [Tr. at 101] The child is in his class of which also has an teacher. The teacher is also trained in . The child’s reading level is . [Tr. at 104-105], comprehension level is also , and instructional level at . [Tr. at 106] His writing level is at around . [Tr. at 109] % of the witness’s teaching day is whole group instruction; the rest is small group and . [Tr. at 114-115] He gets like most of his classmates testing accommodations which is . [Tr. at 115] The witness communicates with Ms. , the child’s teacher, through e-mail at the beginning of the school year and several times during the year. [Tr. at 128-129] He attended the IEP meeting in May 2012 for the 2012-2013 school year. There was a discussion about . He believes that that IEP was an appropriate IEP for the child.

Mr. was cross-examined by Mr. . He testified that , the CSE representative who approves IEP’s and their content, was at the IEP meeting and said at that meeting that the program would be on the IEP only until October 2012 “and that she had a right to an impartial should she want to continue it.” [Tr. at 133] The witness had no involvement in the recommendation to discontinue . He has discussed with the child’s teacher such issues as the child’s about reading and also curriculum issues. Generally, the teacher tried to match and support what he was doing in his class. [Tr. at 136] He was the child’s primary educator. He believes that the teacher saw the child times a . [Tr. at 137] He has no direct knowledge of the program. was not in attendance at the CSE meeting, and he personally did not receive a . [Tr. at 138] He never has received a copy of an progress report. [Tr. at 139] He recalls no discussion of such a progress report at the meeting. [Tr. at 139140] Nothing about services of the provider was discussed. [Tr. at 140] He had access to the child’s most recent . That evaluation did not focus on . [Tr. at 142] No CSE member discussed the child as no longer needing . in through could only be helpful for him. [Tr. at 164-165] His level in reading is attributable to his ness. [Tr. at 167] The child’s skill development is still . It could be in reading. [Tr. at 176] He has . [Tr. at 176] Going into he is at a . [Tr. at 177-178] The . [Tr. at 178] He has not for his . [Tr. at 193-194] Of the child’s class of were [Tr. at 199] 4 of the children . [Tr. at 199]

The next DOE witness was , the child’s . She has, among others, teacher of the degrees and a masters in . She supervises the work of and does students’ . [Tr. at 217] She was in with the child’s teacher during the school year. He last received . For next year the was session with an of classroom instruction . The used both services.

She was cross-examined by Mr. . She understands what it means as a goal for a child to . [Tr. at 241-242] [The IHO asked some questions of this witness and determined that there is no record of observations by the classroom teacher of what the child achieved in terms of goals or of methods to be used in determination of goals.] [Tr. at 254-255]

THE PARENTS CASE

2nd date: August 15, 2012

The DOE rested its case. Mr. delivered his opening statement for the parents. The child is profoundly , attends the and in September 2012 will be in grade. [Tr. at 289] In recent years he has received a related service called Education Services ( ) The CSE has now chosen to from his program. The child is years is the cause of his academic, skills , not the . [Tr. at 290] has been helpful to him, yet the CSE has recommended the removal of from the IEP without explaining why. [Tr. at 292-293]

The first parental witness was Ms. , the child’s tutor. She has advanced degrees in education of the . She has and has completed workshops in education including at the School. She has New York State certification. She was at the School for before retiring. Now she tutors the child under . He is now her only client. [Tr. at 302] She is paid by the DOE but was originally contacted by the mother. [Tr. at 302] She renews annually for an approved list of RSA providers. She started with the child in the winter of 2009, going through the 2011-2012 school year. [Tr. at 304] However, an RSA was not approved for summer 2012. She had worked with him for times a week, minutes per session. [Tr. at 305] She saw him at school usually at and/or . She worked on his homework and then other work that she had prepared. She with , his classroom teacher. He has . He cannot put . [Tr. at 310] His affect his . [Tr. at 317]

He has made , so in especially which is not language-based. In he has “ ”. [Tr. at 319] He is not at grade level in , , . [Tr. at 319] The gap between his . The child will fall further behind without services.

Ms. was cross-examined by Dr. . Her teaching techniques are very similar to Mr. at the School. is a combination of , and , [Tr. at 328-329] She does no formal assessment of his progress. [Tr. at 330] She uses her instinct, her experience and her observation. She writes progress reports which she gives to the child’s mother. [Tr. at 342]

, the mother, was the next witness. [Tr. at 349] The child was from and came to the . He was old at that time and had , , . [Tr. at 351] Until with all . In the past 2011-2012 school year, he was in a class of children. At he received related services of and . He needs because New York State . He is . [Tr. at 355] She is employed as a DOE guidance counselor and works with both and students from different schools. [Tr. at 357-358]

Her child’s level. [Tr. at 359] Despite this status he needs the restrictive environment of due to his . [Tr. at 360] He needs the to down. [Tr. at 360] Her concern is the between the education and the New York State standards. [Tr. at 360] He is not . [Tr. at 361] He needs after-school reinforcement due to his many while in school. [Tr. at 361-362] Her child’s reading comprehension level . [Tr. at 366] Her child’s word reading skills are the at [Tr. at 367-368] At the May 2012 CSE meeting it was Ms. , the school , who rejected . [Tr. at 377] The mother wants a for her child, and only about % of children get that at . [Tr. at 384] The child has had no services after June 30, 2012. [Tr. at 392] [In response to a question from the IHO, the mother testified that the child needs a .] [Tr. at 401]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Education once again bears the burden of demonstrating the appropriateness of the program recommended by its CSE based on legislation passed in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). Therefore, the Department (DOE) has the burden set forth in a long line of cases. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, annual goals and shortterm instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Act (IDEIA) is to provide a free and appropriate public education to all children with disabilities so that t e individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEIA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEIA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, for example, E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEIA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit.” Id. At 200

In the instant case, the child, born on October 1, 2001, is and continues to be a “child with a disability” as that term is defined under the IDEIA, 20 U.S.C. Sect. 1400 et seq., and is classified as as that term is defined by 20 U.S.C. Sect. 1401(a)(1). On May 18, 2012 the Committee on Special Education (“CSE”) convened to formulate an IEP for the child and to make recommendations for the 2012-2013 school year. [Exh. 1] The parents raised in their impartial request of June 8, 2012 objections to the recommended program which was for a 12-month class in a specialized school at the with related services of (individual and group), and special education transportation but which terminated the child’s home tutoring program called . ( ).

The evidence indicates that although the child has no learning disability and is not cognitively impaired he has fallen further and further behind in his educational achievement while at the . His classroom teacher, , testified that as the child enters [Tr. at 105], his skills at , and his . The Fountas-Pinnel reading test had him reading at grade [Tr. at 167] while his skills also measure . [Tr. at 154] He is assessment. [Exh. 0] The child’s over the past few years that it can hardly justify a in services to the child. Mr. , the child’s classroom teacher, at no time testified that there was any explanation from the CSE as to why the child’s program warranted termination. [Tr. at 142] On the contrary, , his ( ) tutor, testified as to the child’s strong need for .

The evidence also indicates that the annual goals on the IEP of May 2012 are not written in a manner as to be measurable and objective. Mr. acknowledged that he wrote goals that were “ ” and with “ .” [Tr. at 146] The lack of objectivity was confirmed by another DOE witness, , the - supervisor. [Tr. at 141] The State Review Officer has held that a failure to include meaningful measurable goals on an IEP is an inadequacy that effectively denies to a student a FAPE. See, for example, Application of a Child with a Disability, State Review Officer, Appeal No. 04-029.

The DOE has argued that the child has even while remaining . Therefore, the argument goes, his program at the is adequate and does not require the addition of the ( ) program. However, the testimonial evidence from this is that the child’s educational program is failing him even with the assistance of the program. There is no explanation as to how, with the removal of as of October 2012, the IEP now offered the child a placement that is reasonably calculated to confer educational benefits for the 2012-2013 school year. The evidence is clear that the child’s IEP program as presently constituted is not equipped to give him the level of and instruction that the child needs Therefore, the DOE has not met its burdens of production or persuasion to provide a FAPE for this child under prong one of Burlington-Carter..

I must now consider prong two in which I must determine the appropriateness of the parents’ requested relief as set forth in the complaint dated September 1, 2011. [Exh. A] Under prong two parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate. The DOE has argued that the parent has wholly failed to meet her prong two burden because the Imagine School is, allegedly, inappropriate for the child.

With respect to prong two, parents have the burden to establish that the program that they recommend for their child is appropriate. 8 NYCRR Sect. 200.6. It should be noted, however, that there is broad discretion in determining the appropriateness of a program initiated by a parent. The Supreme Court in Burlington held that a parent who can show that the education offered by the public schools is inappropriate may unilaterally place the child in a private educational setting and obtain reimbursement for tuition and other expenses provided that the child’s privately funded service is appropriate. 471 U,S. 359, 105 S.Ct. 1996 (1985). What was to be deemed “appropriate” received a broad and flexible interpretation in Florence County School District Four v. Carter by Carter, supra, and Frank G. and Dianne G. v. Board of Education of Hyde Park, 459 F. 3d 356, 363 (2d Cir.2006). The courts have held that the test for the parents’ private placement is that it is appropriate and not that it is perfect. Frank G., 459 F.3d at 364. Nor must the parents show “that a private placement furnis every special service necessary”; all that is required is that the alternate placement “provides educational instruction specially designed to meet the unique needs of a handicapped child.” Frank G. 459 F.3d at 365.

The school district contends that the program that the parents have requested is not necessary which suggests that the parents have not met their burden under prong two. However, with respect to , the DOE did not establish by its cross-examination or any other evidence that the program is not adequate to satisfy the parents’ prong two obligation. The evidence suggests that the child might have made even less educational progress at the School since he began his attendance there had he not had the program as well at home. Thus, the evidence is still convincing that the child received “some educational benefit” from . That was originally recommended in the IEP. As set forth above, the prong two standards for the parents to meet their burden of proof of “some educational benefit” are relaxed somewhat and need not be perfect under federal law. The evidence of “some educational benefit” was not contradicted by any DOE documentary evidence, witnesses or by cross-examination. Under prevailing law and based on the testimonial and documentary evidence submitted, therefore, the parents’ choice of the program for the child's supplemental at-home education is entirely appropriate. The evidence of appropriateness satisfies the second prong of Burlington/Carter.

The third prong of Burlington/Carter concerns the equities of the case. The evidence is clear that the parents fully cooperated with the CSE and attended the CSE meeting of May 18, 2012. The mother objected at the CSE meeting to the announcement that the program was being terminated. [Tr. at 129] Ms. Kormendy who reportedly announced the termination never appeared at this to explain her decision. Moreover, the parents never received notice from the CSE that it would be recommending the termination the child’s services. Thus, the parents have satisfied the equities of prong three.

The denial of FAPE to this child warrants the relief requested by the parents. Thus, the child is granted compensatory educational services in the form of Education Services ( ) retroactive to the precise date in October 2012 (or May 2012) when was terminated for the child. In addition, the services shall continue for the remainder of the 2012-2013 school year. WHEREFORE, it is hereby ordered that:

1. The Department of Education (DOE) failed to provide the child in question with a free and appropriate education (FAPE) for the 2012-2013 school year.

2. The parent shall re-enroll the child in the Education Services ( ) program, and the child shall be granted compensatory educational services in retroactive to the precise date in October 2012 (or May 2012) when was terminated for the child. In addition, the shall continue for the remainder of the child’s 2012-2013 school year in the same quantity provided to the child before was terminated.

3. The Committee on Special Education shall re-convene with all mandated members and an and the child’s Education Services ( ) tutor to develop a new IEP. The CSE shall develop for this new IEP a comprehensive set of annual goals which are objectively measurable and for which written records are maintained and provided to the parents on a regular basis.

4. This decision is subject to appeal to and review by the State Review Officer. Dated: November 6, 2012

______________________________

MARTIN SCHIFF, ESQ.

Impartial Officer

MS:dl

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 ON AUGUST 10, 2012

PARENT

A Demand for Due Process , 6/8/12 8 pages B Motion for Termination of Pendency, 7/27/12, 4 pages C IEP, 5/18/12, 24 pages D IEP, 5/26/11, 14 pages E SPST/CBST, FNR, 5/22/12, 1 page F Evaluation, 4/4/12, 6 pages G Evaluation, 3/15/12, 7 pages H Evaluation, 1/24/12, 2 pages I Consultation, 10/30/09, 10 pages J Report Card, 5/25/12, 2 pages K IEP Progress Report, 6/25/12, 4 pages L Progress Report for Services, May 2012, 2 pages M Report Card, 2/8/12, 2 pages N IEP Progress Report, 2/7/12, 8 pages O New York State ELA Scores, 12/6/11, 2 pages P New York State Math Scores, 12/6/11, 2 pages Q Records, 2011, 4 pages R Findings of Fact and Decision, 11/1/10, 7 pages S RSA, 2010-2011, 1 page T RSA for Compensatory Services, Undated, 1 page U Letter to from , 10/19/09, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 5/18/12, 19 pages 2 Notice of IEP Meeting, 5/11/12. 2 pages 3 Evaluation, 3/15/12, 7 pages 4 Progress Report, 4/4/12, 6 pages

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 15, 2012

PARENT

V Daily Notes , 9/7/11-6/22/12, 10 pages W Report Card, 2010-2011, 2 pages X Report Card, 2011-2012, 2 pages Y Progress Report, 4/4/12, 5 pages Z Evaluation, 3/15/12, 7 pages AA Evaluation, 1/20/12, 2 pages BB Letter RE: Records, 8/8/12, 1 page CC Class Profile 2011-2012, 2 pages DD DOE Answer, 7/11/12 with 8/3/12 Cover Letter, 4 pages EE DOE Answer 8/3/12, 3 pages

DEPARTMENT OF EDUCATION

None