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: January 15, 2013

February 4, 2013

Actual Record Closed Date: March 1, 2013

Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2013

MS., Attorney — Student

MS , CSE REPRESENTATIVE

MR. , IEP COMMITTEE

MS , SCHOOL IEP COORDINATOR

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2013

Attorney — Student

Mother — Student

School Psychologist/Teacher (Via — Student

Phone) — Student

District Representative — DOE

the mother of., requested an impartial hearing on October 9, 2012, for the — DOE

purpose of seeking funding for her unilateral placement of (hereinafter referred to “ ”) — DOE

for the 2012-2013 school year. I was designated to hear this matter on October 10, 2012 — DOE

pursuant to 20 U.S.C. Section 1415(f)(1). A hearing took place on January 15, 2013 and — DOE

February 4, 2013. The compliance date was extended on three occasions, due to the — DOE

unavailability of witnesses and extensive testimony, with a final compliance date of — DOE

March 24, 2013. (IHO Ex. II, IV, V). — DOE

BACKGROUND

year old young man with a classification of . His classification is not in dispute. (Tr. p. 9). was identified with special education needs as . (Tr. p. 68). For grades kindergarten through five, he attended the , a New York State approved private school, and was funded by the Department of Education (“DOE”). (Tr. pp. 70-71). For grades six through eight, he attended the , another New York State approved private school. (Tr. p. 72).

For the 2011-2012 school year ( ninth grade year), the DOE recommended an integrated co-teaching (“ICT”) program for in a public school. (Tr. p. 114). The parent challenged the recommendation in an impartial hearing, and that matter was resolved. for his . (Tr. p. 100).

RECOMMENDATION FOR 2012-2013 SCHOOL YEAR

, a licensed general and special education teacher, participated in s May 14, 2012 CSE review as a special education teacher, and a district representative. (Tr. p. 7; DOE Ex. 1, p. 11). The other participants in the meeting were (a licensed general education teacher from who participated by telephone), a and the parent. (DOE Ex. 1, p 11; Tr. pp. 7-9). The parent declined a parent member’s participation. (DOE Ex. 2).^[1]

The Committees on Special Education (CSE) recommended that be placed in a special class with a staffing ratio of , seven periods each day, with related services of speech/language therapy (“ST”) twice per week in a group. (DOE Ex. 1, pp. 5-6; Tr. pp. 9). Mr. does not recall any disagreement with the recommendation. (Tr. p. 11).

s full scale IQ, as described in the present levels of performance, is in the superior range; with a low average processing speed. His teachers estimated that he was functioning on a level in reading, decoding, math computation and word problems. It was reported that , and that he requires review, repetition and re-teaching. He was reported to have difficulty with writing. (DOE Ex. 1, p. 1). It was reported that his management needs include breaking down instruction into discrete units of learning, graphic organizers, prompting, praise and encouragement. (Id. at 20).

’s Individualized Education Program (IEP) includes two goals for improving reading comprehension by writing short essays; (with % accuracy, measured twice per quarter through teacher/provider observations and class activities); two math goals; one for solving word problems involving triangles using the Pythagorean formula and/or trigonometry; and another for improving computation skills, by recognizing 10 ordered pairs on a 4 quadrant grid on 3 occasions (with % accuracy, measured twice per quarter through teacher/provider observations and class activities) and two goals for improving writing skills by writing a 2 paragraph short story, and by writing three summaries about three books read aloud or independently (with % accuracy, measured twice per quarter through teacher/provider observations, and class activities). The IEP includes two language goals; one for demonstrating enhanced and expanded auditory memory skills by recalling the important features of a simple paragraph story presented orally; (with % accuracy, measured twice per quarter through teacher/provider observations and class activities) and another for increasing expressive language by using appropriate language and syntax in order to ask questions, request information and explain minimum prompts (with % accuracy, measured once per quarter through teacher/provider observations and class activities). The IEP does not include a goal for improving decoding skills.

Mr. does not know what documents were available to the review team. (Tr. 18). No vocational assessment was performed. Mr. testified that one was not required until was fifteen years old. (Tr. p. 19).2 years old at the time of the May 14, 2012 review. (DOE Ex. 1, p. 1).

’s IEP includes as a measurable postsecondary goal, that he will earn a regents diploma and attend a four-year college; that he will be competitively employed and that he will able to live independently. His transition need was identified as preparing to attend a postsecondary institution, including visiting and introducing himself at the learning support center at that institution. (DOE Ex. 1, p. 3).

On August 3, 2012, the CSE issued a final notice of recommendation for at a Special Class (15:1) at M299, with related services of ST. (DOE Ex. 3).

, a certified special education teacher, testified that she is the IEP coordinator at M99, the recommended site. (Tr. pp. 35). The school has various special education programs, including self-contained classes and various related services, including ST. (Tr. p. 36). There are approximately 420 students at the school and 80 to 85 students with IEP’s. (Tr. pp. 40, 41). is one of six schools housed at the campus, which has a total population of approximately 2,300 students. (Tr. p. 42).

Ms. testified that based upon ’s IEP, his needs are similar to other students at the school. She testified that all of the goals in the IEP could have been implemented, with the exception of one of the math goals (involving triangles using the Pythagorean formula and/or trigonometry), which would not have been addressed during the current school year. (Tr. p. 38). She testified that counting gym and lunch (which are not self-contained) ’s schedule would consist of seven 58 minutes each day. Of those seven periods, he would have been placed in self-contained classes for science and, history. She could not state whether self-contained classes would have been available for other subjects. (Tr. pp. 48-50).

Ms. mother, testified that she became aware that had special needs when he was in preschool. (Tr. p. 68). For grades kindergarten through five, attended the , a New State approved private school, and was funded by the Department of Education (“DOE”). (Tr. pp. 70-71). For grades six through eight, he attended the Gateway School, another New York State approved private school. (Tr. p 72).

For the 2011-2012 school year ( ’s year), the DOE recommended an integrated co-teaching (“ICT”) program for , in public school. (Tr. p. 114). The parent challenged the recommendation in an impartial hearing, and that matter was resolved. attended for his ninth grade year. (Tr p. 100). At present, he is student at . (Tr. p. 73). She testified that has difficulty with skills, and benefits from the small environment and daily support at the end of each day, which he receives there. (Tr. p. 77). She testified that he is and in a large environment. (Tr. p. 78). Writing is also very challenging for ; however Ms. . has seen improvement in this area. (Tr. pp.. 93-94). He also has shown progress in retaining more of what he has read. (Tr. pp. 94-95).

Ms. testified that she participated by telephone in the May 14, 2012 IEP meeting to plan for ’s 2012-2013 school year. (Tr. p. 79). She recalls a discussion about ’s need for a small, special education setting. (Tr. p. 80).

Ms. . does not recall when she received the IEP or the Final Notice of Recommendation. (Tr. pp. 82, 84-85). She testified that she probably received it prior to August 13, 2012, when she wrote to the CSE challenging the recommendation. (Tr. p. 110). After receiving the Final Notice, she called the recommended school at least three times, but did not get a response. (Tr. pp. 85, 88). In September 2012, she went to visit the school, without an appointment, but was told that all of the spots in the school were filled. (Tr. p. 89).

She testified that she had visited the same school during the prior school year, when it was also recommended for . (Tr. pp. 85-86). It was her understanding that would be placed in a class of 30-34 students, with two teachers, and children with and without IEP’s, similar to what she was shown in the prior school year. (Tr. pp. 87, 89, 103).

On May 24, 2012, Ms. A. signed an enrollment contracting enrolling at Bay Ridge Prep for the 2012-2013 school year. The agreed upon tuition is $38,675.00. (Par. Ex. E). On the same date, she paid the tuition in full. (Par. Ex. D). Payments made under the contract are non-refundable. (Par. Ex. E1). She stated that she intended to re-enroll at Bay Ridge Prep, if there wasn’t something more suitable available. (Tr. p. 118).

On August 13, 2012, Ms. wrote to , the Chairperson of the CSE, stating that she disagreed with a recommendation for an Integrated co-teaching class; and that requires a smaller class size. She wrote that she was unable to visit the school during the summer. (Par. Ex. A).

On September 28, 2012, Ms. . again wrote to , providing notice that she disagreed with the recommended program (which she understood to be Integrated CoTeaching), and stating that she intended to continue ’s placement at and seek funding from the school district. (Par. Ex. B).

At the hearing, Ms. . testified that she is not sure whether she looked at a prior IEP, when she challenged the Integrated Co-Teaching Program. She stated that she did not understand the difference between and Integrated co-teaching; because from what she had seen, it was the same thing. (Tr. p. 109).

, a teacher and employed at , testified that he is New York State certified in special education and in school psychology. (Tr. pp. 122-124). at is a program for students with various types of , which provides small classes, individualized attention and supports. All of the students have an organization period at the end of each day. (Tr. pp. 125-126).

entered in his ninth grade year. He is currently in his tenth grade year. Mr. taught two subjects during his ; and serves on the school based support team. (Tr. p. 127). thinks “out of the box”, but struggles with organization. He has difficulty with expressive writing and needs a lot of extra time, one-to-one attention and redirection. (Tr. p. 128). His difficulty with his ability to complete assignments and prepare for exams. (Tr. p. 129). receives assistance with his organization skills through a folder system in almost every class, a planner, and a period at the end of the day, which is devoted to planning and organization. (Tr. p. 158). Students are also taught study techniques and the use of graphic organizers. (Tr. pp. 159-160).

receives instruction in classes of eleven to thirteen students with one teacher for English, History, Spanish and Biology. His math class consists of five students and one teacher. He receives a “writer’s workshop” class in a group of fourteen students with two teachers. This class focuses on writing skills and expressive writing, and is taught by an English teacher and a pathologist. He receives planning and organization in his homeroom, which consists of ten or eleven students. . (Tr. pp. 134-136, 171). is grouped with students who have similar difficulties in terms of expressive writing and organization. Generally, the students function within a grade of each other, with some variations in their strengths and weaknesses. The school has approximately 205 students, in grades nine through twelve. is on a Regent’s track, and will be taking three Regents exams at the end of this school year. (Tr. pp. 140-141)

Mr. testified that requires small classes due to his need for individualized attention and redirection. He stated that has progressed in his ability to write from three to four sentences to two to three paragraphs. (Tr. p. 136). He is also participating more and taking responsibility for making up tests. (Tr. p. 137).

During the first quarter of the current school year, achieved grades in all academic subjects. (Par. Ex. C). During the current quarter, he is in English. His English teacher provides special lined paper to assist with his handwriting. (Tr. p. 147). Reviewing ’s IEP goals, he testified that should have a (which is absent from his IEP), because he is a couple of grade levels delayed in that area. (Tr. pp. 152, 154).

Mr. testified that sometimes , resulting in his being late to class. Sometimes teachers will . (Tr. p. 164). Mr. would reinforce him for arriving on time. (Tr. pp. 165166). He testified that within a school of 200 students, requires redirection; and that he would be with 2,500 students. (Tr. p. 166).

While does not receive in a writer’s workshop, four times each week, in a small class co-taught by a pathologist. This includes using appropriate language, memory skills and writing. (Tr. pp. 135 171, 173-174, 176).

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 CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [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)

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education (FAPE). (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).

GOALS AND OBJECTIVES

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].

Based upon the testimony of Ms. , I find that at least one of ’s math goals is inappropriate. Based upon Mr. ’s testimony, I find that ’s IEP should also include a for him.

TRANSITION PLANNING/SERVICES

8 NYCRR § 200.4(b)(6)(viii) provides that for students aged 12 and over the assessment must include “a review of school records and teacher assessments and parent and student interviews to determine vocational skills, aptitudes and interests.” The record does not indicate that any such assessment was performed of .

I find that the lack of a vocational assessment and the deficiencies in his ’s IEP goals caused a deprivation of educational benefits and a denial of FAPE.

SUBSTANTIVE INADEQUACY

I find that substantively, the recommended program is inappropriate because it does not provide a sufficient level of classroom support to address ’s significant attentional needs. As described by Mr. , and in the report submitted by Ms. requires a great deal of support and redirection. His difficulty that he requires teacher . I find that would not receive this level of support in the recommended program; and credit Mr. that would be overwhelmed in a public school setting.

RECOMMENDED SITE

The school district must recommend a school which is capable of satisfying the student’s IEP requirements, See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). The DOE failed to prove that it recommended a school which is capable of satisfying ’s IEP requirements. The IEP recommends seven periods per day in a self-contained class. Ms. could confirm the availability of self-contained classes for only two classes: biology and history.

For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommended program.

APPROPRIATENESS OF PARENTAL PLACEMENT

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128

S. Ct. 436 (2007).

I find that the parent satisfied her burden of proving that the provides with educational instruction specially designed to meet his unique needs. ’s program includes academic instruction in small classes, with a great deal of support. has a homeroom period at the end of each day where he receives assistance in organizing his assignments. also receives in a writer’s workshop, co-taught by a pathologist, four times each week.

The record indicates that has made progress in writing, and organization; and that he is taking more responsibility for his school work.

EQUITABLE CONSIDERATIONS

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; See J.S. and A.G. v. Scarsdale Union Free School District, 58 IDELR

16 ()S.D.N.Y. 2011). Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084

The record indicates that while the parent participated in the CSE review and went to view the proposed site, she did not clearly communicate her disagreement with the CSE. She could not recall when she received her IEP or final notice; and does not appear to have paid attention to the program recommendation. In her correspondence challenging the IEP, she expressed her disagreement with the recommended Integrated co-Teaching Program; stating that required a smaller program. In fact, the CSE had recommended a smaller, self-contained program for . There is no indication that the parent ever requested a non-public school placement for .

While I recognize that the parent’s confusion may have resulted from the information she received at the recommended site, the parent does bear some responsibility for clearly communicating her disagreement with the CSE, so that her concerns could be addressed.

The fact that the parent paid in full the tuition (which according to the contract was not refundable) , on May 24, 2012, months before she received the final notice of recommendation, also indicates that she was not engaged with the CSE in the process of identifying an appropriate placement for her son. See. J.P. v. New York City Department of Education, 58 IDELR 906 (E.D.N.Y 2012).

I find that the foregoing equitable considerations warrant a 25% per cent reduction in tuition reimbursement. See J.S. and A.G. v. Scarsdale Union Free School District., supra. I find that the tuition charged by is appropriate, taking into account the specialized nature of the instruction provided.

ORDER

Therefore, it is hereby ordered that the DOE shall reimburse the parent for ’s tuition at the , for the 2012-2013 school year reduced by twenty-five (25%), upon presentation of proof of payment thereof. Dated: March 7, 2013

_____________________

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

Parent

A Parent Letter 8/13/12, 1 page

B Parent Letter 9/28/12, 2 pages

C Report Card 2012-2013, 1 page

D Affidavit 2012-2013, 1 page

E Contract 2012-2013, 2 pages

F Attendance Record 2012-2013, 1 page

G Class Schedule 2012-2013, 1 page

H Program Description 2012-2013, 1 page

I Parent Check 5/24/12, 1 page

J Student ProgressReport, 5/14/12, 1 page

K IEP Meeting Notes by Teacher, 5/14/12, 1 page

L Deleted--Duplication

District

1 IEP dated 5/14/12, 12 pages

2 Declination letter dated 5/14/12, 1 page

3 FNR dated 8/3/12, 1 page

Impartial Hearing Officer

I Summary of pre-hearing telephone conference dated 11/14/12, 1 page

II.Case follow-up sheet and email with extension dated 12/17/12,2 pages

III Request for hearing dated 10/9/12, 2 pages

IV Extension, 1/15/13, 1 page

V Extension, 2/4/13, 1 page

Footnotes

[1] On the date of the review, Ms. prepared a written report noting is routinely late to class , requiring the teacher to back-track to help him get caught up with the rest of the group. She reported that he will need constant reminders to write; and does not submit homework. She noted that he can get off topic very easily and distract his classmates with side comments, but that he responds to redirection. (Par. Ex. J).