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: November 16, 2012

January 9, 2013

Actual Record Closed Date: January 23, 2013

Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 16, 2012

Advocate — Student

Parents

CSE Chairperson Designee — DOE

Special Education Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 9, 2013

Advocate — Student

Sister — Student

Parents

Associate Director (Via Telephone) — Student

Parent (Via Telephone) — Student

CSE Representative — DOE

Assistant Principal (Via Telephone) — DOE

I. INTRODUCTION

On October 1, 2012, after recusal by another impartial hearing officer, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); a pre-hearing conference was held on October 5, 2012, and the hearing was held on November 16, 2012, and January 9, 2013. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at both parties’ request on October 5 and November 13, 2012, and January 9, 2013, because of the unavailability of witnesses and the requirements of due process, in order for the parties to present and complete their case. Before granting the extension requests, I determined that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.

II. BACKGROUND

classified as , who attends the ”), a non-public program not approved by the State Education Department (SED) to provide education to students with disabilities. On May 26, 2011, the Committee on Special Education (CSE) held a review and issued an Individualized Education Program (IEP) (Exh. C) recommending placement in a special class in a special school, with twice per week for 30 minutes , and once per week for 30 minutes ; on July 5, 2011, a place in was offered (Exh. D). On August 22, 2011, the parents’ advocate notified the CSE that the parents intended to place and for 2011/12, and would seek department of education funding for the tuition (Exh. E). On September 5, 2012, the parents’ advocate requested the instant hearing (Exh. A), alleging that the department of education failed to offer a free appropriate public education (“FAPE”) for 2011/12, because: the IEP team was not duly constituted; the change of classification was not “justified and explained;” the IEP has two different sets of math and reading levels, which was not explained; the department did not provide the parent a copy of the IEP meeting minutes; the department’s recommended class was already full. The request seeks department of education funding for ’s 2011/12 tuition at

III. THE CSE’S CASE

a department of education Special Education teacher assigned to CSE for three years, testified (Tr. 23-50) that he has a M.S. in special education, certifications in general and special education, and has been employed by the department for 28 years; his duties include reviewing assessments, IEP meetings, and program recommendations. Mr. participated in ’s May 26, 2011 IEP meeting as general education teacher and district representative; other participants included a psychologist; a parent member, who appeared by telephone, and whose participation is noted on the CSE meeting minutes (Exh. 5), but is not noted on the IEP; a special education teacher from ; the parent; and the parent’s advocate. Mr. did not recall what evaluations and reports the CSE reviewed for the IEP meeting; he stated that a MD assistant principal contributed information about ’s school performance. The academic performance and learning characteristics (“APLC”) page of the IEP states that ’s broad reading was a grade equivalent (“g.e.”), and her broad math equivalent was . ’s instructional level in comprehension was , at ., and her instructional level in applied (word) problems was , at Mr. testified that everyone at the IEP meeting had opportunity to discuss ’s classification and program recommendations, and he did not recall any objections to them; he recalled that ’s parent agreed with the change of classification from disabled. Mr. stated that ’s speech therapist supplied the goals, and the IEP team drafted the academic goals; therapy was recommended, based upon the therapist’s report.

, Assistant Principal of , testified (Tr. 91-107) that her duties include supervision of the school’s special education and related service programs. offers , and ICT classes, Special Education Teacher Support Services (SETSS), and all related services; all providers have appropriate licenses or certifications. Ms. reviewed ’s IEP, and stated that it was similar to other students in the school’s class, and that the school could have implemented it. Teachers use differentiated and group instruction to address students with varying functioning levels in the same class. The program offered mainstream opportunity in social studies classes, depending on a student’s performance and test results. Ms. did not recall if the class was full in 2011/12.

The department’s Report dated December 1, 2010 (Exh. 3), when was in grade, states that on the Wechsler Abbreviated Scale of Intelligence, achieved fullscale and verbal scores in the , and a performance score in the . On WJ-III Tests of Achievement, achieved broad reading and math scores in the mid ; reading scores ranged in passage comprehension to in letter-word identification, and math scores ranged from in applied problems to in calculation.

The Report dated March 18, 2010 (Exh. 4) notes that has deficits, is unable to supply higher level critical thinking skills to what she reads, has difficulty making predictions and stating cause and effect, and has difficulty synthesizing new information. made some improvements in her skills, and was working on strategies to improve those skills.

IV. THE PARENT’S CASE

, Associate Director of ”), testified (Tr. 58-82) that she has a M.S. and certifications in general education, special education, reading, and building leadership, has 25 years experience as teacher or principal, and has been at for 6 years; her duties include program supervision, student intakes, hiring staff, curriculum development and modification, and classroom observations. is a special education program for students with ; it is housed in , a general education the program uses the standard curriculum, as modified for each student. Ms. stated that all teachers have special education certification, and assistant teachers are enrolled in B.A. or M.S. programs; staff includes two social workers, an occupational therapist, a speech therapist, a consultant speech pathologist, who assists with curriculum and classroom modifications, a literacy coach, and a mainstream liaison, for students who push into general education classes. During 2011/12, had 65 to 70 students in 8 classes; average class size was . Staff received ongoing professional development, including in-school and off-site workshops, classroom consultation with the , and supervision by Ms. . During 2011/12, was in 8th grade, and had two main teachers: once for math and science, the other for language arts and social studies; both had special education certification. pushed into mainstream classes of about 22 students for social studies and science; the mainstream liaison worked with the mainstream teachers regarding , and provided tutoring and reinforcement. Ms. stated that in September, 2011, ’s decoding was at grade level, and her comprehension and math skills were at a grade level; the other students in her class functioned at similar levels. had processing issues, and required written notes, chunking of information, scaffolding, and small classes. Reading instruction is in small groups. Ms. stated that used ’s IEP goals; she stated that the goals were appropriate, except for the math goals, because ’s use of a calculator obviated the need for calculation goals. received speech therapy at . Ms. stated that made academic and social progress during 2011/12; progressed is measured by teacher observation, three reading assessments per year, and one achievement test per year, and there are three report cards per year. started the year as socially introverted, but “blossomed” and made friends in the mainstream classes. Ms. testified that is appropriate for , because she progressed there, and was able to transition to some mainstream classes, with supports.

’s 2011/12 class schedule (Exh. G) indicates that the school day goes from 8:15 to 4:26 Monday through Thursday, and 8:15 to 3:40 on Friday, and that approximately 55% of the school day is devoted to religious study and prayer.

, ’s parent, testified (Tr. 84-90) that in , and appeared “ ” in her mainstream class; he referred her to the CSE for evaluation. After Mr. received the FNR in July, 2011, he visited the proposed placement; school staff told him there was only one class appropriate for , and that the class already had 13 students and was “overfull.” Mr. stated that he would have considered a public placement for . Mr. did not remember when he signed the enrollment contact (Exh. I); his proof of payment and the school’s affidavit of payment indicate he gave them a $1,000 deposit on March 30, 2011 (Exhs. J, K). 2011/12 tuition at was $27,000, plus a $1,000 registration fee. Mr. said that progressed at : she has improved self-esteem, more friends, and began attending mainstream classes.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the department of education offered FAPE to for 2010/11, and that ’s parents are not entitled to reimbursement for ’s 2011/12 tuition at .

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 20001 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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 (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, 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'" (Walczak, 142 F.3d at 130). 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 student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an 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 the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that

(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.

I find that ’s parents did not meet the Carter requirements. I find that the May 26, 2011 IEP is substantively appropriate. The hearing request correctly point out that the IEP team did not include one of ’s actual regular education teachers (8 NYCRR 200.3(a)(1)(ii); however, it did include Mr , who had appropriate certifications and 28 years of experience with the department of education. I find that the failure to have one of ’s actual general education teachers as a CSE team member was a procedural inadequacy which did not impede ’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The parents do not allege any specific harm caused by this procedural error, only that the CSE was not properly constituted. I find that the hearing record contains insufficient evidence to conclude that the failure to include one of ’s regular education teachers at the May 26, 2011 CSE meeting rose to the level of a denial of a FAPE. (Application of a Board of Education, Appeal No. 11-007; Application of a Student with a Disability, Appeal No. 11-002). Contrary to the parent’s assertion in the hearing request, I find that there was a parent member at the IEP meeting; I credit the statement of the CSE witness (Mr. , corroborated by the CSE minutes, that a parent member attended.

I find that the CSE’s decision to change ’s classification from or was justified by the evaluations and reports. 8 NYCRR 200.1(zz) defines as:

“…a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.”

A is defined as:

“…a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance.”

The department’s Report, and the information given to the CSE by staff and ’s , indicate that has a in using and understanding spoken and written language, which manifests this is made apparent by ’s in reading comprehension and word problem skills. I find that meets the definition of a student with which is broader than that of a . It is not disputed that needs more than just therapy to receive educational benefit, and that she requires a small, structured special education class environment to address her needs. ’s classification as reflects those broader needs, and justifies the recommendation for a special class; her specific needs continue to be addressed by mandated . I conclude that is properly classified as .

The hearing request alleges that the IEP contains two sets of reading and math levels on the academic performance and learning characteristics (“APLC”) page. The IEP clearly indicates that the first set of scores is cognitive testing results, and the second set of scores is achievement test results; these scores are extracted from the department’s Evaluation, which the CSE team had at the IEP meeting. It is neither a procedural nor substantive violation for an IEP to accurately set forth evaluation results.

The hearing request alleges that the IEP team “made no effort” to explain the change of ’s classification, and why there are two different sets of reading and math levels on the IEP. I find these allegations baseless. I credit the testimony of the CSE witness, and the CSE minutes, that ’s parent had full opportunity to participate in the IEP meeting, that she agreed with the classification, and that she did not object to the program recommendation. I note that ’s mother, who participated in the IEP meeting, attended the hearing, but did not testify, or otherwise offer facts to support these allegations. ( ’s father, who did testify, was not an IEP participant).

I find there was no factual information offered to support the hearing request’s allegation that the department failed to provide ’s parent with a copy of the IEP meeting minutes. Even if this were proven, it would be at most a minor procedural violation, which does not rise to the level of a denial of FAPE.

Finally, I address the hearing request’s allegation that the recommended class had

13 students, one more than permitted. I find this allegation was not proven, and even if it were it would not constitute a denial of FAPE to , because the record indicates that ’s parents had no intention of placing her in the recommended class. The parents paid a deposit/registration fee to in March, 2011, more than two months prior to the IEP meeting, and almost six months before the school year began. Where it is clear that a student will not be educated under a proposed IEP, there is no denial of FAPE due to failure to implement that IEP. I find that ’s parents enrolled at prior to the time the department was obligated to implement the IEP, and conclude that the department was not required to establish the appropriateness of a specific class grouping. Application of a Student with a Disability, Appeal No. 12-050.

For the reasons given, I conclude that the May 26, 2011 IEP was substantively appropriate, and that the department offered FAPE to for 2010/11. Having reached this conclusion, it is not necessary to determine the appropriateness of the parents’ unilateral placement, and whether equitable consideration support a reward of tuition reimbursement.

VI. ORDER

IT IS THEREFORE ORDERED THAT: ’s parents are not entitled to reimbursement of ’s 2010/11 tuition. Dated: January 30, 2013

CRAIG TESSLER, ESQ.

Impartial Hearing Officer

CT:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 9/5/12, 4 pages B Program Description, undated C IEP, 5/26/11, 13 pages D Final Notice of Recommendation, 7/6/11, 2 pages E 10-Day Notice, 8/22/11, 2 pages F Class Profile, 2011/2012, 1 page G Class Schedule, 2011/2012, 1 page H School Progress Report, 5/22/12, 1 page I Enrollment Contract, undated, 1 page J Proof of Payment, various K Affidavit, 3/6/12, 1 page

DEPARTMENT OF EDUCATION

2 Social History Update, 12/1/10, 2 pages 3 Evaluation, 12/1/10, 5 pages 4 Progress Report, 3/18/10, 2 pages 5 CSE Meeting Minutes, 5/26/11, 1 page 6 FNR, 7/5/11, 1 page