Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 22, 2013

September 17, 2013

November 21, 2013

Actual Record Closed Date: December 9, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 22, 2013

, via telephone Advocate Parent

CSE Representative Dept. of Education

Teacher assigned to CSE Dept. of Education

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 17, 2013

, via telephone Advocate Parent

Parent

CSE Representative Dept. of Education

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 21, 2013

, via telephone Advocate Parent

Advocate Parent

Director of the Parent

Parent

CSE Representative Dept. of Education

The matter of . (hereinafter “the Student”) came for hearing before me on August 22, 2013. I was appointed impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2) on June 17, 2013.

Hearings were held on August 22, 2013, September 17, 2013 and November 21, 2013. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exh. I to VI). The last extensions were the result of the request for posthearing submissions. The district representative submitted her post hearing closing statement on December 9, 2013 and the parent’s representative declined to submit a post hearing statement. The current record close date is December 9, 2013 and the compliance date for issuing a decision is December 23, 2013. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

The hearing was requested by the Parent to challenge the March 21, 2012 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for a unilateral placement at at . is a private school that is not approved by New York State as a special education school. The Parent brought the hearing seeking prospective payment for for the 2012-2013 school year. The tuition for the Academy for the 2012-2013 school year was $27,950 (Exh. H).

In the due process request the Parent alleged that alleged that the Dept. of Education (“DOE”) failed to provide a free and appropriate public education (“FAPE”) for the 2012-2013 school year on procedural and substantive grounds (Exh. A at 1). The Parent challenged the recommended program because there were no timely evaluations to support the 12:1 student to staff ratio class. The Parent alleged that the DOE drafted an Individualized Education Program (“IEP”) that was not reasonably calculated to confer educational benefits because the CSE team failed to consider the Student’s present special educators when recommending a student to staff ratio and the present levels of performance for math and reading listed on the March 21, 2012 IEP were not consistent with the discussion of the Student’s levels of math and reading (Exh. A at 2). The Parent alleged that the Student’s academic management needs could not be followed in a 12:1 class (Id.) The Parent alleged that the annual goals were overly broad and the related therapy counseling goals on the March 21, 2012 IEP were not appropriate and the DOE did not provide the parents with the reports used at the March 21, 2012 prior to the IEP meeting. The Parent alleged that the recommended class could not provide the Student with an appropriate functioning and the proposed class would not allow the Student to made meaningful progress (Exh. A at 3).

BACKGROUND

The student is a old boy who was classified with a , who had attended the for 2011-2012 in for the 2012-2013 in grade.

The Academy Progress Report dated December 16, 2010, when the Student was in the indicated that he was on a and the Student was could write paragraph, but had difficulty with understanding directions and required directions repeated (Exh. F). The Progress Report noted that the Student would become if he did not understand something and required a small classroom setting as he was dependent on individualized attention(Id.).

The CSE developed an IEP on March 21, 2012 and recommended an Integrated Co-Teaching Services (“ICT”) class in a community school with a staffing ratio of or 1 special education teacher for 12 special education students in a general education class and 1 general education teacher with approximately 10 general education students for a 10-month school year and related services of individual (“SLT”) twice a week for 30 minutes per session in a separate location; individual occupational therapy (“OT”) twice a week for 30 minutes per session in a separate location (Exh. 1 at 5). The IEP indicated that the student preformed on level in Reading and Math. The IEP indicated that the student was assessed by a Woodcock-Johnson III (“W-J”) administered in December 9, 2009 and that scored at the early level in passage comprehension and mid-in applied problems (Exh. 1 at 1). The IEP indicated testing accommodations of double time on exams 40 minutes or longer, directions read and reread aloud and testing in a separate room with no more than 12 students (Exh 1 at 7). The IEP indicated that the Student’s instructional/functional level in Reading was and Math (Exh. 1 at 9). The signature page on the IEP contained the signatures of the Education teacher and Stacey Epstein, School Psychologist and the Regular Education teacher and District Representative and the parent, who participated by telephone (Exh. 1 at 12).

On June 27, 2012, the Final Notice of Recommendation indicated that the Student was classified with a Speech or Language Impairment and was recommended to be placed in a ICT class in a community school at and receive related services of individual counseling twice a week for 30 minutes per session; individual SLT twice a week for 30 minutes and individual OT twice a week for 30 minutes (Exh. 2).

On August 15, 2012, Parent’s representative served the 10-day notice letter of their intent to enroll the Student at the . D).

The Parent submitted a proof of payments (Exh. I).

On August 19, 2013, the School Official of the a notarized statement that the Parent paid $11,798 towards the tuition of $27,950 leaving a balance due of $16,152 (Exh. H).

THE POSITION OF THE PARTIES

The DOE has recommended that the student be placed in an ICT class in a community school and receive related services of counseling (Exh. 2). The Parents disagreed with the DOE’s placement and have unilaterally placed the Student at the Academy for the 2012-2013 school year and requested the DOE reimburse the Parents for the Academy tuition (Exh. A).

THE DOE’S CASE

The CSE District 21 representative was present on behalf of the DOE and maintained that the Student was appropriately placed in the proposed IEP and the IEP was reasonably calculated to enable the student to receive an educational benefit and FAPE was offered for the 2012-2013 school year (trans. 9; IHO Exh. V at 1). The district’s witness, , was a teacher assigned to CSE 21. Mr. testified that he was a NYS certified and licensed special education K through 21 and a NYS certified and licensed elementary teacher grades nursery through and held NYS advanced certificates as a supervisor and administrator and school district leader was employed by the DOE for 28 years (trans. 14). He stated that the part of his duties was to participate in conferences and develop IEPs with schools and parents or contract with agencies (Id.). He stated that he was present at the March 21, 2012 review as was Ms. , the special education teacher , and the parent who participated by telephone in the March 21, 2012 IEP and he signed as a regular education teacher and district representative and Ms. participated as school psychologist (trans. 16). He explained that the Student was recommended to be placed in an ICT class with 12 special education students and up to 10 general education students with 1 special education teacher and 1 regular education teacher (trans. 17). He noted that Ms. presented the team with the Student’s academic functioning (trans. 18). He opined that the reading goal would address the Student’s educational deficit in reading comprehension and the math goal was appropriate for the Student’s math skill level (trans. 19). He noted that writing goal was written to help the Student organize relevant information to write a paragraph or essay and counseling goal would help the Student respond appropriately to directives given by the classroom teacher and other staff (trans. 20). Mr. Slavin opined that the SLT and OT were designed to help his educational needs (trans. 21). He further opined that the ICT class allowed the Student to receive help from 2 licensed teachers and the special education teacher could provide individualized attention to the 12 special education students (trans. 22). He stressed that the Student could benefit from learning from his peers who were both special and general education students combined.

THE PARENT’S CASE

The Parents and , Director of the Academy testified in support of the claim for reimbursement for the unilateral placement of the Student at the Academy. The Student’s mother provided a history of the Student’s academic difficulties (trans. 32). She stated that Dr. of NYU evaluated her son and recommended a small setting for his academic delays (trans. 34). She stated she disagreed with the ICT setting with a 12:1: class size recommendation at the March 21, 2012 IEP because she did not believe that a teacher could control the Student in such a large class (trans. 36). She stated that her son placed in a small class with 2 teachers to help him understand. She stressed there was no discussion of her son’s struggles with academics at the IEP meeting (trans. 38). She stated that the IEP did not indicate that her son would receive counseling and she maintained that her son required counseling to develop his confidence (trans. 39). She further stated that her son received counseling, (trans. 40). She opined that her son progressed at the Academy at through the support of 2 teachers (trans. 41). She recalled that the Principal of the Academy, Ms. Paris, disagreed with the ICT recommendation (trans. 42).

On cross the Student’s mother stated that she decided to have her son evaluated by NYU to determine his academic deficits rather than allow the DOE to evaluate her son (trans. 44). She further stated that was the Principal of the Academy and Ms. Paris provided the team with her son’s overall performance especially in reading and math (trans. 45). She recalled that the IEP indicated that her son’s reading level grade and his math level was in and that this information was accurate (Id.). She further recalled that the March 21, 2012 IEP team described her son’s weaknesses and strengths as explained by Ms. (trans. 46).

, the Principal of , testified that she was a holder of Master’s degrees in Reading and School Building and licensed and certified in Common Branch, Early Childhood, Special Education, Reading and School Building Leadership (trans. 58). She described the as a program located within the and she oversaw the program for the 2012-2013 school year for grades 1st through 8th with 1 class per grade (trans. 59). She stated that the average class size was 10 students and a teacher and an assistant teacher (trans. 60). She stated that she was familiar with the Student who was in her 7th grade class with 2 teachers who were certified in special education (trans. 62). She explained that her school followed the Common Core curriculum and that the Student and in math skills and that his classroom teachers provided a multi-modality with SMART boards, computers and maniputives to provide information via visual, auditory, tactile and kinesthetic methods (trans. 63). She opined that the Student progressed during the 2012-2013 school year in his frustration level lowered and the Student was able to attend a mainstream math class (trans. 64). She explained that progress was assessed by teacher tests and that reading was measured 3 times a year by a test called the Degrees of Reading Assessment (“DRA”) (trans. 67). She stressed that the Student required a lot of repetition and that class size was an issue because he required a lot of individualized instruction (trans. 65). She opined that the Student received an appropriate special education program at the Academy (trans. 66).

On cross Ms. stated that the DRA was a formal assessment and math was assessed through unit tests and reports cards were sent to the parents 3 times a year with a combination of grades and narratives (trans. 68). She further stated that the grades were obtained by classroom, homework, quizzes and tests (trans. 69). She recalled that there were certified providers and the Student received counseling form a LCSW (trans. 70). She stated that she believed that the Student was appropriately classified with a Speech and Language Impairment (trans. 72) and the academic goals were appropriate (trans. 7374). She stated that the amount of religious instruction provided at the Academy was 35 percent (trans. 82). The parties stipulated to the amount of religious instruction (Id.).

The Student’s father testified that he was responsible to pay for the student’s bill at the Academy during the 2012-2013 school year (trans. 86). He stated that he paid $11,789 and owned the school $16, 168 (trans. 86). He stressed that he considered the tuition a debt (trans. 87).

On cross he stated that he made his first payment on September 28, 2012 (trans. 91). He further stated that his wife may have visited that proposed school during the summer of 2012 (trans. 93). He stated that he had other children who also attended the school, but he paid at least $11,000 (trans. 97).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: 1) the services offered by the District are inadequate or inappropriate; and 2) the services selected by the Parent are appropriate; and 3) equitable considerations support the Parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) The DOE bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. The District bears the burden of demonstrating the appropriateness of the program recommended by its CSE. (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; New York State Review Officer's Decision, Nos. 97-44, 92-7, 93-9) The burden is met if the District establishes that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8NYCRR 200.6[1][1]). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.4 and 200.5)

The Parent’s advocate asserted many procedural flaws in the March 21, 2012 IEP: the no timely evaluations to support the student to staff ratio class; IEP was not reasonably calculated to confer educational benefits because the CSE team failed to consider the Student’s present special educators when recommending a 12:1 student to staff ratio and the present levels of performance for math and reading listed on the March 21, 2012 IEP were not consistent with the discussion of the Student’s levels of math and reading (Exh. A at 2). The Parent alleged that the Student’s academic management needs could not be followed in a 12:1 class (Id.) The Parent alleged that the annual goals were overly broad and the related therapy counseling goals on the March 21, 2012 IEP were not appropriate and the DOE did not provide the parents with the reports used at the March 21, 2012 prior to the IEP meeting. The Parent alleged that the recommended class could not provide the Student with an appropriate functioning group socially and emotional and the proposed class would not allow the Student to made meaningful progress (Exh. A at 3).

The SRO considered the type of procedural flaw which would result in a denial of FAPE in (Application of the New York City Dept. of Educ., Appeal No. 08-037). The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]) 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).

I credit that Parent’s testimony that she participated in the March 21, 2012 IEP meeting and she recalled that provided information on the Student’s present levels of performance (trans. 45). Moreover, I find that the Parent and , who participated in the IEP meeting on March 21, 2012, provided input and were treated as full members. I credit the testimony of the district’s witness, who was present and stated the IEP was developed with input from the Parent and . I find the Parent was present and the was actively involved in the March 21, 2012 IEP meeting.

The Parent’s advocate argued that the CSE failed to conduct any evaluations to support the recommended program. I find that the CSE had timely assessed the student’s present levels of performance and had adequate and appropriate evaluative material to make an appropriate educational program. I credit the testimony of the district’s witness and find that the CSE relied on report (Exh. F) as well as the input from the Principal (trans. 17-18). I find the W-J III scores as noted I the IEP (Exh. 1 at 1) was still timely under State regulations (8 NYCRR 200.4[b][4]; see 20 U.S.C. § 1414[a][2][B]; 34 CFR § 300.303[b][2]) and nothing in the hearing record reflects that the student's educational needs warranted a reevaluation or that the Parents requested a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]). I find the testimony and evidence adduced at the hearing indicated that the Parent did not request further evaluation and I credit the Parent’s testimony that she wanted NYU rather than the DOE evaluate the Student (trans. 44).The SRO has held in Application of the Dep't of Educ., Appeal No. 12-087 that while “State regulations require that an IEP report the student's present levels of academic achievement and functional performance, State regulations do not mandate precisely where that information must come from (see Application of the Dep't of Educ., Appeal No. 11-137; Application of a Student with a Disability, Appeal No. 11-043). Nor is there any support for the proposition that "teacher estimates" or "teacher observations" cannot, as the parents suggest, be relied upon as a source of information for developing a student's IEP or determining the student's skill levels (S.F., 2011 WL 5419847, at *10; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011]).”

The Parent advocate asserted that the IEP was not reasonably calculated to confer educational benefits and did not meet the Student’s academic needs. I credit the testimony of the district’s witness who stated that the who participated to provide the academic functioning levels and participated in the development of the academic and related service goals (trans. 18-19). I credit the testimony of the who stated the academic and related service goals were appropriate (trans. 73). I find the CSE team relied on the of the to develop the related service mandates and the related service goals. I find the IEP addressed the management needs by ICT program and 2 licensed teachers in a class with testing modifications.

The Parent asserted that the ICT program was too large (Exh. A at 2). I credit the testimony of the who stated that the Student was able to attend a mainstream class in math (trans. 64). Testimony adduced at the hearing established that the CSE reviewed and relied on the educational report contained in the IEP, (Exh. 1), the Progress Report (Exh F) and the input of the Parent and the . I find CSE was aware of the student’s issues with SLT and . I find that CSE team addressed these issues. I find the March 21, 2012 IEP recommended an ICT program and related services of and the FNR recommended an ICT program and related services of and counseling to address the student’s deficits. I find the IEP that was developed by the CSE was reasonably calculated to provide meaningful educational benefit and that in fact CSE consider all the assessments and there was no deprivation of educational benefits.

The Parent’s advocate asserted that the goals were not appropriate. I find that the academic and related service goals corresponded to the student’s needs and were appropriate and I credit the testimony of the Principal of who stated that goals were appropriate (trans. 73). I find that the annual goals in each area of the identified need must be set out in the IEP describing what the student has a reasonable chance of attaining in a year and the March 21, 2012 goals were appropriate.

Based on the foregoing I find the district established that FAPE was provided to the student during the 2012-2013 school year.

Having found that the district established the first prong, I need not address the second prong. The District representative argued in her post-hearing closing statement that the Principal of stated that instruction for the afternoon classes was provided in Hebrew (trans. 71; Exh. V at 3). I do not find the Parent established the appropriateness of Hebrew instruction for half of the school day for a child with a Accordingly, I do not find the Parent established the second prong. Having found that the Parent’s placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the Parent’s position. However, I note that the Parents were never questioned as to whether they would have considered a public school placement. Further, I do not credit the testimony of the Parent who considered the tuition for the 2012-2013 school year was a debt. Based on the foregoing I deny the Parent’s request for reimbursement for the tuition at for the 2012-2013 school year.

Dated: December 16, 2013

_____________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

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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 AUGUT 22, 2013

A Impartial Hearing Request,6/13/13, 4 pp. Parent

B Program Description, Undated, 2 pp. Parent

C IEP, 3/21/12, 9 pp, Parent

D Ten Day Notice, 8/15/12, 2 pp. Parent

E Class Schedule, 2012-2013, 1 p. Parent

F Progress Reports, 2012-2013, 1 p. Parent

G Class Profile, 2012-2013, 1 p. Parent

H Affidavit of Payments, 8/19/13, 1 p. Parent

I Proof of Payments, 2012-2013, 5 pp. Parent

J Enrollment Contract, 2012-2013, 1 p. Parent

K Attendance Record, 2012-2013, 1 p. Parent

1 IEP, 3/21/12, 12 pp. District

2 Final Notice of Recommendation, 6/27/12, 1 p. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 17, 2013

II Decision on the Extension, 9/17/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 21, 2013

I Decision on the Extension, 8/22/13, 1 p. IHO

II Decision on Extension, 9/17/13, 1 p. IHO

III Decision on Extension, 10/21/13, 1 p. IHO

IV Decision on Extension, 11/21/13, 1 p. IHO

POST HEARING SUBMISSIONS

V Closing Statement, 12/9/13, 3 pp IHO