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: July 1, 2013

Actual Record Closed Date: July 5, 2013

Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 1, 2013

Parents

Parents

District Representative — DOE

Assistant Principal (Via Telephone) — DOE

Speech Teacher (Via Telephone) — DOE

Special Education Teacher (Via Telephone) — DOE

Special education teacher (Via Telephone) — DOE

The parents of .. filed a request for an impartial hearing on April 22, 2013 challenging the Department of Education’s (“DOE”) recommended placement and seeking placement at the ”). In their complaint, they stated that they were concerned about their son’s progress and that they had safety concerns about the recommended site. (DOE Ex. 1). I was designated to hear this matter on May 10, 2013. The compliance date was extended on one occasion to allow for receipt of the transcript and rendering of the decision, with a final compliance date of July 15, 2013. (IHO Ex. II).

DOE POSITION

The DOE’s position is that the recommended program (which continues placement in a District special class with a staffing ratio of and related services) has provided and will continue to provide him with an educational benefit. (Tr. p. 7). the District Representative, explained that for the 2013-2014 school year, will articulate (as a student), to which is part of the same organization which included Justin’s elementary school, . (Tr. pp. 6, 8).

old boy with a classification . His classification is not in dispute. For the past two years, he has been a student in an classroom at (in a District special class). On April 22, 2013, an Individualized Education Program (IEP) meeting was held to review Justin’s program. The IEP team recommended that he continue to be placed in a Special Class with a staffing ratio of , with related services of (“OT”), twice per week individually, parent counseling and training once per month for sixty minutes; physical therapy (“PT”), twice per week individually, Therapy (“SLT”), twice per week for thirty minutes in a group of three. (DOE Ex. 10).

s most recent (April 22, 2013) IEP reports that his Instructional Level is first grade for reading and math. (DOE Ex. 10, p. 10). His prior IEP also reported that he functioned on a in reading and math. (DOE Ex. 11, p. 11). His April 22, 2013 IEP does not report his Level of Intellectual Functioning or Expected Rate of Progress in Acquiring Skills. It does include a description of his academic progress and abilities. It reports that he is verbal, but rarely speaks to his peers; and speaks to staff in two to four word phrases. It further reports that he can read passages on level; and read words on a second grade level. He cannot answer literal questions about a poem or story without verbal prompts and visual cues. The IEP reports progress in his ability to tell time, identify coins and value, with . It reports that he can perform single digit addition and subtraction using tally marks. is reported to . He is reported to have good impulse control and ; and is described as a pleasant child who wants to do his work. (DOE Ex.

10. at 1).

’s IEP includes one comprehension goal, to answer literal “WH?” questions regarding a poem or story that has been read to him. (Id. at 3). His prior IEP had a similar goal of answering “wh” questions after participating in a “read aloud”. (DOE Ex. 11, p.3). His prior IEP also included a goal of reading a story or poem and answering five comprehension questions about the story. (Id. p. 4). In the current, April 22, 2013 IEP, there is no goal for reading (decoding) or reading comprehension. (DOE Ex. 10).

The April 22, 2013 IEP includes two math goals (identifying coins; completing addition and subtraction equations with sums or differences up to 10). There is no goal for telling time. (Id. at 4). His prior IEP included a similar goal for completing single digit and subtraction equations. It also included a goal of telling time to five minute intervals. (DOE Ex. 11 at 5).

The April 22, 2013 IEP includes one goal for identifying feelings, by answering situational questions, and one speech goal of initiating interactions with peers independently during a structured game or activity.^[1] His prior IEP had the identical speech and language goal. (DOE Ex. 11, p. 6). There is no goal in his current IEP for increasing his expressive language. (Id. at 3-6).

, the Assistant testified that he supervises unit (at ) which enter, as student, in the 2013-2014 school year. (Tr. p. 19). Based upon his observation of Justin, and in conversations with the teachers, he described as “a very typical youngster with autism”. He described him as having limited verbal skills, being easy-going and well mannered. (Tr. p. 23). When asked whether he had an opinion as to is functioning on a first grade level for reading and math, he testified that he did not. (Tr. p. 49). He acknowledged that the reading program used in ) will be continued in the , and supplemented with the program. (Tr. pp. 56-57). He testified that these programs are very visual. (Tr. p. 59).

He testified that the school uses various programs including the principles of applied behavioral analysis (“ABA”) and the TEACHH methodology. (Tr. pp. 33, 35). He testified IEP can be implemented at , and will be placed in class. (Tr. p. 34, 39). Addressing the parents’ concerns regarding , he testified that the school has a . He testified issue at the middle school. He also testified that the students are supervised from the minute they get off the bus to the minute they go back on the bus. (Tr. pp. 42, 47).

, the teacher of the class in will be placed, testified that instruction in the class is provided in pairs and small groups. She testified that she does not use ABA, and was not familiar with TEACHH methodology. She stated that the curriculum for the sixth grade class is based upon the common core. (Tr. p. 65). She testified that she observed Justin, and described him as very polite, but not very social. She stated that academically, he would fit well in her class, as many of the students are on level for language arts and math. (Tr. p. 69).

Ms. testified that to address ’s goal of being able to answer “WH” questions, she would ask numerous questions, and have the students retell, draw or write what happened in the text. (Tr. p. 70). She testified that the students practice social skills daily. (Tr. p. 71). She testified math goal of completing addition and subtraction equations up to 10 would be taught through the use of manipulatives. (Tr. p. 80). ^[2]

, a special education teacher who during the 2011-2012 and 2012-2013 school years, testified that adjusted well to her class, after having been previously placed in a class of six students. (Tr. p. 86). When he entered her class, he could read paragraphs, but had little comprehension. She testified that over time, his comprehension improved, in that he could answer multiple choice questions that were in print. (Tr. p. 87). She testified that last year, she did not see much growth in his ability to answer questions verbally; but did see improvement in his ability to choose from answers in print. (Tr. p.

89). Although he can read words from a second grade list, his reading level is still considered first grade. (Tr. p. 100; DOE Ex. 10, p. 10).

In math, he had basic money, time and calendar skills, which she testified improved over time. (Tr. p. 87). In his first year with her, he made progress in his calendar and time skills, telling time to the half hour and recognizing money. During his second year, his calendar skills improved, and his addition and subtraction skills were a little stronger; however he often had difficulty focusing on the plus or minus sign. He made some improvement with time on the clock to the quarter hour; and in counting money. (Tr. p. 92). He was introduced to the concept of how to get to ten with one of the digits missing; but did not master the skill. (Tr. p. 93). This is considered a first grade skill. (Tr. p. 103). He still requires manipulatives to answer single digit addition questions. (Tr. p. 94). She also noted progress in his socialization skills. He enjoyed playing board games with other students. (Tr. p. 88).

Ms. , the Therapist who has worked for the past three years, testified that she saw twice per week for thirty minutes, in a group of three students. (Tr. pp. 121-122).

In a written report dated May 13, 2013, Ms. reported that mostly uses 2-4 word phrases and is able to initiate an interaction with a staff member, but has a difficult time initiating an interaction or a conversation with a peer. She reported that he is able to inconsistently answer “wh” questions, but requires visual supports. She reported that he still exhibits difficulty . She reported that he has improved in his ability to play alongside another student cooperatively, and recommended continuation of the single of initiating an interaction with a peer independently during a structured game or activity. (DOE Ex. 9).

Ms. testified that during the 2012-2013 school year made progress in interacting with her. (Tr. p. 125). He still required a lot of prompting to speak her; but was using more phrases. (Tr. p. 127). She testified that he uses more greetings, and answers more questions; but requires visual and verbal supports. (Tr. p. 128).

Ms. testified that s peer interaction is limited. He still prompting to even initiate a with a peer, such as handing something to , and saying “here you go”. (Tr. p. 130).

PARENTS’ POSITION

The parents’ position is that Justin has made insufficient progress in the DOE program, that the recommended site is unsafe, and that Justin cannot reasonably be expected to make progress in a similar program during the 2013-2014 school year. (Tr. pp. 9, 14, 81, 135, 140). Specifically, they are concerned that he is performing at a first grade level in reading and math; and about his lack of progress in expressive language and social interaction. (Tr. pp. 131-132; 141).

Mr. father, testified that he was concerned attended the public school for six years and is still on only level. (Tr. p. 131). He feels should not require the level of prompts that he still requires. (Tr. p. 132). He prefers person who attended the school, and is now an employee there. (Tr. p. 132).

Ms. mother, testified that she worked as at various sites, , and knows to be in an unsafe area. (Tr. p. 135-136). She acknowledged that she was offered alternative sites; and that she would reject any public school placement which was , because she feels they are all under the same supervision. (Tr. p. 140).

Ms. testified that she has seen insufficient progress with other children. (Tr. pp. 141-142). She feels his progress in understanding days and time is due to the work she does with him at home. She testified that he can only tell time to the quarter hour; and is afraid of answering a question and making a mistake. (Tr. p. 143). She acknowledged that he can answer comprehension questions if given a choice in print; but testified he can choose if he has two choices. She feels sometimes he is guessing, and that he needs to be led to the answer. (Tr. p. 144). She feels that given the fact that he is so well-behaved, he should have made more progress. (Tr. p. 145).

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 Committee on Special Education (CSE) must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998).

8 NYCRR 200.4[d][2][i] provides that an IEP must report the student’s present levels of academic achievement and functional performance, and indicate the individual needs of the student according to each of the four areas listed in8 NYCRR 200.1(ww)(3)(i)(a).

This includes:

“(a) academic achievement, functioning performance and learning characteristics which shall mean the levels of knowledge and development in subject and skills areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information and learning style.” 8 NYCRR

200.1(ww)(3)(i)(a).

’s IEP includes no information about his level of intellectual functioning or his expected rate of progress in acquiring skills and information. Mr. the administrator at the school is to attend, could only describe as a “very typical youngster ”, and had no opinion as to is still only functioning on a first grade level in reading and math. Ms.

Funicello, who for two years, also offered no insight into , who entered her class as a competent reader, is still only functioning on a level for reading comprehension.

An IEP must include appropriate annual goals, consistent with the student’s needs and abilities, with the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 200.4[d][2] [iii].

Although is reading on a level, his IEP does not include any goals for reading.

There is a goal for answering “wh” questions regarding a poem or story that has been read to him. His prior IEP included a goal for reading and answering comprehension questions. Although he speaks only two to four word utterances, his IEP includes only speech/language goal of initiating interactions with a peer. Although he can only tell time to the quarter hour, there is no IEP goal for telling time.

I find that the foregoing procedural inadequacies impeded ’s right to a free and appropriate public education and caused a deprivation of educational benefits. See 20 U.S.C. Sec. 1415(f)(3)(e)(ii); M.H. v. New York City Department of Education, 685 F. 3d.

217, 249 (2d Cir. 2012);

Substantively, I find that the recommended program, which continues the program attended in the prior two school years, offers him the opportunity for only trivial advancement. Mr. testified that the middle school uses the same reading program which was used with Justin in the elementary school; and in which he made only small progress.

Similarly, the techniques which will be used to addition and subtraction are similar to what was used in the elementary school, with only limited success.

’s progress in language has also been minimal. Although he speaks in only two to four word phrases, he has only one speech and language goal; to initiate interactions with his peers during a structured game or activity, and no goal for increasing his expressive language.

While Mr. effectively addressed the parents’ concerns about safety and bullying, nothing in his testimony or the testimony of Ms. leads me to believe that will make more than trivial advancement in the recommended program. While Mr. testified that the school uses ABA and TEACHH methodology; Ms. testified that she uses neither methodology. Neither explained how would be expected to advance academically in the recommended program.

In the absence of any information in the IEP or in the record as to why Justin, a boy described as verbal, pleasant and motivated, is entering the sixth grade, performing on a first grade level, I find that the DOE has failed to meet its burden of proving that the recommended program has or will continue to with the opportunity for more than trivial advancement.

For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommended program. M.H. v. New York City Department of Education, supra; Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998);

The parent has failed to present any evidence that Justin can be appropriately educated , or that the school has offered him a placement. I find, however, that the parents are entitled to the issuance of a Nickerson letter, which will enable them to place

Justin in an appropriate state-approved private school at public expense, as Justin has not been offered an appropriate placement in a timely manner. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13); Application of the New York City Department of Education, Appeal No. 06-088.3

In addition, as s IEP contains inadequate information and inadequate academic and language goals, I will order that the DOE provide independent neuropsychological and speech/language therapy evaluations at public expense, provided that the parents consent in those evaluations. 8 NYCRR 200.5(g)(2); See Application for Review of a Determination of a Hearing Officer, Appeal No. 12-033.

Following the receipt of the independent evaluations, the CSE must reconvene to review the evaluations and develop an appropriate IEP.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

1. Within 10 days, the CSE shall fund an independent neuropsychological evaluation and an independent evaluation , provided that if the parties cannot mutually agree upon independent evaluators to conduct the evaluations, the CSE shall provide the parents with information about where such independent evaluations may be obtained, as well as criteria applicable to independent evaluations; See Application for Review of a Determination of a Hearing Officer, Appeal No. 12-033.

2. Within 10 days following the completion of the foregoing evaluations and reports, the CSE shall reconvene to develop an appropriate

3. The DOE shall forthwith issue a Nickerson letter, to attend a New York State approved private school at public expense. Dated: July 12,2013

3 While the parents admitted that they refused the DOE’s offer to find an alternative site, their lack of cooperation is not an issue here, as they are not seeking tuition reimbursement; but rather placement in a private school at public expense. See 20 U.S.C. § 1412[a][10][C][iii]. In any event, placement at an alternative site would not have resolved the defects IEP.

_______________________

DORA LASSINGER, ESQ.

Impartial Hearing Officer

DL;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

DISTRICT

1 Impartial Hearing Request, 4/22/13, 4 pages 3 Assessment, 2012/2013, 23 pages 4 Projected class profile, 1 page 5 Teacher report, 5/14/13, 1 page 6 Parent Training Workshops, 2012-2013, 4 pages 7 Physical Therapy Progress Report , 5/15/2013, 2 pages 8 Occupational Therapy Progress Report, 2 pages 9 Progress Report, 5/13/13, 2 pages 10 IEP, 4/22/2013, 12 pages 11 IEP, 4/18/2012, 13 pages

IHO

I Pre-hearing conference summary, 5/23/13, 1 page II case follow-up sheet dated 7/1/13, 1 page

Footnotes

[1] His April 22, 2013 IEP also includes goals and one goal and one goal for Adaptive Physical Education.

[2] s father testified that these methods had been used for two years, and that Justin had still not learned the concept. (Tr. p. 81).