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 27, 2013

Actual Record Closed Date: March 18, 2013

Hearing Officer: Dora M. Lassinger, Esq.

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

Attorney — Student

Mother — Student

Father — Student

Social Worker, CSE- Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2013

Attorney — Student

Mother — Student

Stepfather — Student

Assistant Director (Via Telephone) — Student

Teacher (Via Telephone) — Student

Psychologist (Via Telephone) — Student

CSE District Representative — DOE

Guidance Counselor (Via Telephone) — DOE

the mother of., requested an impartial hearing on October 15, 2012, for the purpose of seeking funding for her unilateral placement of (hereinafter referred to “ ”)

for the 2012-2013 school year. I was designated to hear this matter on October 17, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). A hearing took place on January 15, 2013 and February 27, 2013. The compliance date was extended on three occasions, due to the unavailability of witnesses, with a final compliance date of March 27, 2013. (IHO Ex. II,

III, IV).

EVIDENCE AT HEARING

girl with a classification of . His classification is not in dispute. (Par. Ex. A). Ms. mother, testified that received , and special education as a preschooler, including Physical Therapy ”), (“ ”) and (“ ”). (Tr. pp. 100-101). In kindergarten, her IEP provided for only, which she received outside of school. entered the , a public school, in kindergarten. (Tr. p. 101 ) struggled in grade. She was evaluated on June 10, 2011, at the end of her first grade year and was ), , and . (DOE Ex. 2). She also had an evaluation. (Tr. p. 105).^[1]

Starting in September 2011, Ms in a reading program, two days per week at (Tr. p. 107). In the middle of her second grade year, began to receive Special Education Teacher Support Services (SETTS) at school. (Tr. p. 108). Ms. , felt that responded well to the reading program , but did not respond well to the SETSS program. She testified that based upon her observation, the SETSS teacher was having a hard time . (Tr. p. 108).

Ms. . testified that she participated in the July 27, 2012 IEP meeting to plan for ’s 2012-2013 school year. (Tr. p. 109). She informed the committee that she did not feel that the SETSS program was sufficient; however the CSE continued to recommend a SETSS program (three times per week; twice for language and once for math) for ’s third grade year (with related services of twice per week individually for thirty minute sessions and once per week individually for sixty minute sessions). (Tr. p. 110; Par. Ex. D). She also did not feel that an ICT class would be sufficient for given her diagnosis and her . (Tr. p. 120). Ms. R. told the committee that she was interviewing and may have mentioned that had been accepted to Lowell. (Tr. p. 111).

Following the meeting, in early August 2012, Ms. . received a Final Notice of Recommendation recommending a placement for at the . Ms. was familiar with the school, as had already attended there for three years. (Tr. p. 112). On August 16, 2012, she wrote to the CSE rejecting the recommended General Education with SETTS program, as failed to make progress in the program during the 2011-2012 school year. She stated that she intended to place and seek reimbursement. (Par. Ex. F).

On June 7, 2012, Ms. . signed a contract placing for the 2012/2013 school year, with a monthly tuition (and non-refundable deposit) of $3,183.10. (Par. Ex. K). She signed the contract prior to the CSE review meeting in order to secure a spot for . (Tr. p. 114). She has been making her monthly tuition payments. (Tr. p.116). Ms. . testified that has made progress in reading and math at Lowell. (Tr. p. 113).

, a certified school counselor, testified that she provided “ to , in first and second grade, at the . refers to which are not pursuant to an IEP mandate, and which are provided for students whose teachers feel they may benefit services to address issues . (Tr. p. 26). was recommended because she had a , and because she . She received in a group of up to five students. (Tr. p. 27).

She testified that provides SETSS, . (Tr. pp. 33-34). On the July 27, 2013 IEP, it was reported that , and that she had friendships. (Par. Ex. D-2; Tr. 34). ’s IEP includes goals for improving her ability to decode, spell and solve math calculation problems, by two grade levels. (Par. Ex. D-4). It also includes goals to improve her reading comprehension skills and writing ability by two grade levels. (Par. Ex. D-5). Additional goals include improving visual motor skills, gross motor skills, scissor skills and to maintain attention. (Id. at 5-6). ’s IEP does not include any goals related to improving social interactions. (Par. Ex. D; Tr. pp. 46-47). The IEP notes that receives counseling outside of school, was not recommended as part of her IEP. (Par. Ex. D-2). Ms. testified that would be an appropriate service for . She testified that when she was part of the IEP team for , the team decided to provide ; but to not include counseling as a related service on ’s IEP. (Tr. p. 47).

Ms. testified that SETSS services began during December of ’s second grade year; and that the teachers reported that she was making progress in literacy and math. She noted, however, that was also receiving support from during that time period. (Tr. p. 37). She testified that at , second and third graders are combined in their classes, and that classes have 25 students, on average. (Tr. p. 41). Students are expected to read independently, for silent reading. would eat lunch and play at recess with approximately 130 students. (Tr. p. 44-45).

, a curriculum and reading teacher employed , testified that she holds master’s degrees in elementary education, reading and special education. (Tr. p. 53). is a state approved special education school for students with various types of disabilities, in grades three through eight, which provides small classes (with a ratio of or ). All of the teachers are certified in special education. (Tr. pp. 55-56). provides related services of counseling, with certified providers. (Tr. p. 57). receives services, as needed, when she becomes . (Tr. p. 58). receives one-to-one reading instruction twice per week individually for forty-five minutes. (Tr. pp. 58, 61). When she applied for admission to the school in June 2012, ’s writing skills were at a kindergarten level. She was reading on a first or second grade level. (Tr. pp. 62-36).

, a certified special education and elementary education teacher, testified that she is the third-grade head teacher . (Tr. pp. 65-66). The staffing ratio for her class is however, there are currently six student is in the class, aged old. (Tr. p. 68). The teacher’s assistant assists in implementing the curriculum, and positive reinforcement systems, and in directing the students back to task. (Tr. p .70). The students have classifications of . The school uses a Bully Free social skills curriculum, to help students learn how to interact, talk and act in ways at are and to manage conflicts and understanding another’s persons perspective. (Tr. pp. 67-68).

Ms. testified that has a , however attention and sensory issues also impact her ability to remain on task, focus and complete activities. (Tr. p. 71). She is constantly , which in the classroom. (Tr. pp. 72-73). She also has difficulty in approaching children to initiate friendships. ’s graphomotor skills are . Her hands become and she will complain. (Tr. pp. 75-76). Due to , benefits from being instructed in a small, structured classroom. (Tr. pp. 80-81).

To address her , receives one-on-one reading instruction twice each week with a reading specialist using ”) instruction. has difficulty with phonemic awareness, decoding and reading comprehension. Within the classroom, lessons are taught that go along with the . Guided reading strategies are also used to help stop and think about what she’s reading. has made some good gains in her reading. (Tr. pp. 77-78). She is self-selecting books which are appropriate for her reading level, and is beginning to partner to read with other students. (Tr. p. 85). She is reading on an end of first to mid-second grade level. (Tr. p. 86). When she entered the school, she was functioning on a mid-first grade level in math; and has progressed to a second grade level. (Tr. p. 87). Her ability to write complete sentences has improved; however she has difficulty developing a paragraph. She is instructed using modeled writing with quick outlines to help with the writing process. (Tr. p. 89).

has benefited , which she receives on a regular and as needed basis from her counselor, . (Tr. p. 80). Ms. testified is addressing ’s and academic needs. (Tr. p. 97).

Reviewing the July 27, 2012 IEP, Ms. testified that it was unrealistic to expect that , who was functioning on a at the end of her second grade year, would gain two years academically in all areas. (Tr. p. 95).

Dr. , a licensed psychologist employed at , evaluated on June 10, 2011 at the end of her year and diagnosed her with ( ), and . At that time, he recommended that she remain in her current school placement with a comprehensive treatment plan including therapy, home and school based behavioral programming, and one-to-one remediation for reading and written expression. This initial evaluation did not include academic testing, as Dr. felt that ’s concerns were related to . (DOE Ex. 2).

On May 24, 2012, Dr. re-evaluated . In his second evaluation, he conducted educational testing, which revealed a pattern of reading difficulties. He found that although she had been receiving intervention, she with the sounds of words, and word retrieval, decoding, spelling and comprehension, indicating a reading disorder. He concluded that the SETSS she was receiving (combined with outside intervention) was not sufficient to overcome the struggles with reading she was experiencing.

Following the second evaluation, he recommended that she be placed in a special education class in a specialized school. (Par. Ex. H; Tr. pp. 131-133). He testified that had multiple with her ability to learn. These include motor coordination struggles, and . He testified that these issues combined to make her a student who requires a level of individualized attention which would not be available in a large classroom setting. In addition, he testified that special education supports must be integrated into her classroom to address her reading weaknesses. (Tr. p. 134-135).

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. (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).

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].

All of ’s IEP academic goals provide that she should make two years academic progress in one school year. I agree with Ms. that this is unrealistic and inappropriate. In addition, ’s IEP does not include any goals to address ’s difficulty with social interactions, which was described in her IEP, and by her current classroom teacher. I find that the deficiencies in his ’s IEP goals caused a deprivation of educational benefits and a denial of FAPE.

I find that substantively, the recommended program is inappropriate because it does not provide a sufficient level of support to address ’s academic, attention and needs. Even though ’s IEP goals provided that she should make two year’s progress in all academic areas, the CSE recommended only three sessions of SETSS per week; two for language and one for math. The CSE failed to recommend any support, even though had difficulties with anxiety and social interactions. Ms. acknowledged that it would have been appropriate for to receive .

I credit Dr. that due to the fact that with reading, attention, motor coordination and social interaction, she requires a great deal of individualized attention in order to make educational progress, and special education supports throughout her instruction.

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 provides with educational instruction specially designed to meet her unique needs. ’s program at includes specialized academic instruction in small classes, with a great deal of support, individualized reading instruction, . The school also provides instruction in socialization skills, which has been an area of difficulty for .

has made progress in reading, writing, and math, and she is getting a great deal of support to address her social/emotional issues.

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 the parent participated in the CSE review, shared her private evaluations, and otherwise cooperated with the CSE. The tuition charged by is reasonable, 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 , for the 2012-2013 school year, upon presentation of proof of payment thereof. Dated: March 20, 2013

DORA M. LASSINGER, 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

PARENT

A Due Process Complaint dated 10/15/2012, 2 pages B Letter to CSE and fax receipt dated 7/13/2012, 2 pages C Letter to the undated, 2 pages D IEP dated 7/27/2012, 13 pages E Final Notice dated 7/27/2012, 2 pages F Letter to CSE and fax receipt dated 8/16/2012, 3 pages G Notice of Securement dated 8/19/2012, 2 pages H Educational Evaluation dated 5/24/2012, 5 pages I Occupational Therapy Letter dated 3/15/2012, 2 pages J Affidavit of Payment dated 12/14/2012, 1 page K Tuition Contract dated 6/12/2012, 1 page L 2012-2013 School Year Attendance Record, 1 page M 2012-2013 School Year Weekly Schedule, 1 page N Description undated, 1 page O Proof of Payment, various dates, 5 pages P Report Card, 2012/2013 School Year, 1 page

DEPARTMENT OF EDUCATION

1 Evaluation dated 6/10/2011, 8 pages 2 Confidential Diagnostic Evaluation dated 6/10/2011, 9 pages

IMPARTIAL HEARING OFFICER

1 Summary of Pre-Hearing Conference, 11/19/12, 1 page 2 Case Follow-up Sheet, 12/19/12, 1 page 3 Case Follow-up Sheet, 01/15/13, 1 page 4 Case Follow-up Sheet, 02/25/13, 2 pages 5 Ruling on Request for Extension, 12/19/12, 1 page 6 Ruling on Request for Extension, 2/25/13, 1 page

Footnotes

[1] On June 10, 2011, the DOE performed an evaluation of It was determined that she has difficulties with visual motor integration and sensory processing that are affecting her academic performance. School based services were recommended, once per week for thirty minute sessions in a group of three. (DOE Ex. 1).