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: February 4, 2013

April 25, 2013

Actual Record Closed Date: July 16, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

Corrected

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

Attorney — Student

Parents

Parents

Teacher, Via Telephone — Student

Headmaster, Via Telephone — Student

Teacher, Via Telephone — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2013

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Chairperson's Designee, CSE — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of . for the 2012-2013 school year. The hearing was convened at the written request of ’s parents (the “Parents”) by letter dated November 5, 2012. (Exhibit A) Hearings were held on February 4, 2013, and April 25, 2013, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.

In scheduling the various hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

. is a -year-old boy who has not been classified as a student with a disability by the DOE. He has been diagnosed . During the 2011-2012 school year, by letter dated May 23, 2012, the Parents requested that the DOE’s Committee on Special Education (“CSE”) evaluate since they believed that he required special education services. (Exhibit B-1) By letter dated June 22, 2012, the Parents again wrote to the CSE and reiterated their concerns and request for an evaluation. (Exhibit B-4) In that letter, the Parents also expressed their intention to place and to seek tuition reimbursement in the event the CSE failed to provide an appropriate program or placement for him. By letter dated August 13, 2012, which included copies of their two previous letters, the Parents confirmed that the CSE had failed to respond to the Parents’ prior requests, and their decision to unilaterally place . (Exhibit B-8) By letter dated November 5, 2012, the Parents requested an impartial hearing challenging the DOE’s failure to evaluate ., its failure to classify him as a student with a disability, and its failure to develop an Individualized Education Program (“IEP”) for him, despite the Parents’ repeated requests. (Exhibit A) The Parents are seeking reimbursement for the tuition paid for the 20122013 school year. They are also seeking reimbursement for a speech and language evaluation conducted on June 4, 2012. (Exhibit G)

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

The DOE concedes that it failed to offer a Free Appropriate Public Education (“FAPE”) to . for the 2012-2013 school year. (Tr. 6) The DOE has not disputed that J.S. should be classified as a student with .

The DOE did not call any witnesses to offer direct testimony to support its case or to rebut any of the testimony supporting the Parents’ case. (Tr. 8; 120-121)

The DOE did not challenge the Parents’ assertions that they had made three written requests to the CSE to evaluate ., that the CSE had never responded to those requests, and that in fact, the CSE had never initiated the process to evaluate or classify . as a student with a disability. The DOE responded to the Parents’ request for the impartial hearing through a “Due Process Response,” dated November 13, 2012, and signed by Deirdre Matthews for the DOE. (Exhibit D) Although the document identified . by name, and included the date of the Parents’ request and the impartial hearing case number, it is otherwise a blank document.

THE PARENTS’ CASE

is the department head for the reading and writing program at teacher, and a teacher of a ninth grade reading and writing class and a seventh grade American history class. The 2012-2013 school year is Ms. s second year at . She holds a dual masters degree in special and general education, and a masters degree in social work. She is certified in special and general education by New York State. (Tr. 11-12) Ms. explained that the program meets for a half hour in the morning so the students can study, review assignments, and resolve any outstanding issues from the previous day. The program also meets in the afternoon for forty-five minutes so the students can start their homework assignments, ask questions, and consult with teachers, if necessary. In addition to the daily morning and afternoon sessions, students have an individual session with their teacher twice a week for forty-five minutes. (Tr. 12-13) Ms. Sullivan explained that the teachers and the classroom teachers have regular contact through email and in person. In addition, all teachers post grades and comments on a weekly basis on the EdLine system, which is a shared system. (Tr. 13)

Ms. is .’s American History teacher for the 2012-2013 school year. That class is referred to as a 7-1 track. For history, there are two tracks and the 7-1 is the lower track for that subject. The class has thirteen students, with approximately twelve of them identified with learning disabilities. The cohort is appropriate for . since the other students share similar needs to and they all benefit from the teaching style and structure of the class. Ms. described . as a very hard worker. This track is appropriate . for history because it is taught very explicitly and is extremely structured. It is also particularly appropriate for . since Ms. is a special education teacher and specializes in writing instruction as well. She focused on reading comprehension and written expression through the history subject matter. needs a lot of support in those areas. In addition to those areas of weakness, . has a which also involves difficulties interpreting social cues, weaknesses in expressive and receptive language, some auditory processing weakness, and working memory weakness. (Tr. 14-16)

Ms. explained that, for every section in the textbook, she creates guided notes which prompt the students to focus on certain areas, look for specific information, and respond to the text according to the notes. For example, if Ms wants the student to write in a full sentence, the notes are marked at that point with a full line. This system visually separates exactly what the student needs to do and aides with comprehension. The guided notes, or worksheets, are posted on EdLine for the students to access, if necessary. They can also work with a Word document on EdLine if handwriting is an issue. Ms. also posts other visual aides, including maps, graphs, and videos, to support the context being learned. These tools aide in ’s ability to comprehend instruction in the classroom. Ms. also uses a method of calling on students to participate in class, which assists with comprehension. (Tr. 16-18)

. struggles with writing are addressed through a specific writing program, the , through which Ms. has taught how to take notes and complete an outline. . has progressed to being able to write an excellent five-paragraph essay. (Tr. 22-23)

also struggles with executive functioning. He has difficulty organizing and beginning a long assignment. He has achieved success by using a method of explicitly breaking down all steps of an assignment. (Tr. 25-26)

Ms. explained that she shares an office with .’s teacher, so she sees him in her office, in addition to the classroom. Ms. in conjunction with Ms. has worked with on his self-advocacy skills this year. During the first half of the school year, Ms. was pushing into Ms. Sullivan’s classroom twice a week as a collaborative teacher, which not only provided extra support in the classroom, but allowed Ms. to become familiar with the curriculum and to observe and work with in the classroom as well. ’s increased ability to immediately seek out help and to ask questions has aided in his comprehension. He has progressed from being a very silent, reticent student at the beginning of the year, to being much more vocal in class, and a better self-advocate. As a result, his homework is more complete and his grades have improved. (Tr. 19-20; 27-28)

Ms. stated that . is making very good progress at mastering the content of the history class. (Tr. 26) She gives quizzes, tests, and writing assignments, which along with homework and classroom participation, are factored into the grades given each quarter. (Tr. 29-30) Ms. expressed her opinion that . has benefited from attending classes with both general and special education students. He is capable of participating in the rigorous curriculum and doing the work when it is taught in this manner. (Tr. 28)

is teacher for the 2012-2013 school year. In addition to being a teacher, Ms. also teaches a tenth grade writing class. Ms. has undergraduate degrees in special education and elementary education, as well as masters degrees in art and in deaf education. (Tr. 41) Ms. students whom she sees for a half-hour morning session and a forty-five minute afternoon session. In addition, each student is expected to email Ms. every night to give her a status update for their homework and alert her to any challenges. She also sees each student individually twice a week for a forty-five minute session. The program allows students with special needs to receive support and to be mainstreamed in general education classes as well. Ms. explained that she is in constant communication with .’s teachers in person and through email. Since three of .’s current teachers are also teachers, their offices are next to Ms. ’s. Ms. benefited from the opportunity to push-in ’s history class during the first semester. (Tr. 42-43)

Ms. . as a great student with a wonderful work ethic. (Tr. 46) .’s primary deficit areas, resulting from his were described as delays, difficulty with his working memory and long-term memory, processing, . Since . is connections, understanding reasoning, and . He has difficulties with comprehension, for example in history, when the language becomes more complex. Ms. has worked on that with . by previewing and discussing the text with him. With English, before reading a novel, Ms. will work on a character chart and preview the context of the story. In math struggles with the processes. Anything multi-step is a challenge for him. He benefits from a lot of repetition. He has learned strategies to slow down, check his work, and break down the steps. J.S. has difficulties with his study skills. He needs help breaking down information. Ms. Logan works on annotating with This helps him focus on the author’s point of view, figurative language, inferencing, and reasoning. This helps . make the connections. (Tr. 44-48) To address his working memory deficit, Ms. . on clever mnemonic devices and pre-tests created by Ms. To target his areas of weakness. .’s memory skills are also strengthened by repetition and making connections to deeper schematic networks and prior knowledge. (Tr. 51- 52)

Ms. described ’s progress in all areas, including comprehension, math, annotating, working memory, and study skills. (Tr. 45; 47; 49; 52) She stated that certainly benefits from being in an educational setting with both and disabled students. (Tr. 53)

is the founder and headmaster . The school was founded in 1969 and is in it’s 44th year. The school has approximately 360 students. Mr. explained that as a mainstream school, they developed a system that helps students with succeed in a mainstream environment. uses a tracking system with different tracks, based on ability levels, in different subjects. A student can be on a higher track in one subject and a lower track in another. All tracks of a single subject are taught at the same time. This allows a student’s math track, for example, to be changed without any interruption in the student’s schedule. The program is the main avenue for supporting students with learning issues. Approximately one third of the students, about 125 students, are in the program. A child must have either an IEP or a evaluation to be considered for the program. The program allows the student to have the total mainstream experience without intrusion. Therefore, students meet before and after the school day. For their two individual sessions each week, the students are pulled out of non-academic subjects. The teachers are New York State certified special education teachers. At the end of each year, a determination is made as to whether a child should continue in the program. At least one third of the students who participate in the program will graduate out of the program, and will then continue as student without . (Tr. 58-65)

Mr. described the EdLine system which, in part, provides parents with a weekly snapshot of their child’s performance. It includes all quizzes, tests, and homework for the week. It also provides information on what is coming up in the future. In addition, the teacher writes a narrative for the parents. (Tr. 66)

Students in grades six through nine have a weekly mentoring class taught by a social worker specializing in social skills. The purpose of this class is to develop social skills, prevent , and integrate peers into the community of the school. Students also have the opportunity to see the teacher individually. (Tr. 73- 74)

Mr. explained that in addition to serving as Jump Start teachers, those teachers are doing additional teaching of subject areas in the classroom, so there is greater crossover between the program and the other teachers. In this school year, three of J.S.’s teachers are also teachers, certified in special education. This has served to advance inclusion. He explained that the school does not want to have two different faculties and is moving towards total integration. (Tr. 66-67)

is a 7th, 8th, and 9th grade English teacher in her first year at York. . is in Ms. ’s 7th grade class. The class is the second to the lowest track for English. It is a very small class of only five students. All five students and participate in the program. The students provide an appropriate cohort . and the class is appropriate for him because it does not go too fast and Ms. breaks things down into manageable pieces (Tr. 89-93)

Ms. explained that ’s educational deficits are in reading comprehension, executive functioning, and essay writing. Ms. strongly believes in annotation as a tool and a skill that her students must learn in order to succeed. It allows them to organize their thoughts and is very important for themes. Ms. has taught the students to annotate while reading a book. For example, they will look for certain themes and identify each theme through a color-coding system. If they are then assigned to write an essay, comparing and contrasting examples of different themes from the book, they can do so. Ms. checks her students’ annotation each week. . has benefited from learning annotation and greatly progressed with those skills through the course of this year. (Tr. 93-96) ’s inferencing skills have also improved. Ms. works one-on-one with as necessary, to enhance his ability to identify trigger words and to gain a deeper understanding of a character and the character’s motivation. (Tr. 97-99) Ms. works on .’s reading comprehension by reading out loud with him and discussing quotes in the material. She uses a method with called “Introduce, Include, and Interpret,” which also helps him with essay writing. .’s reading comprehension has improved, as evidenced by his responses having become more thought-out and complete. (Tr. 100-101) Ms. explained the process of essay writing and the manner in which she helps . to lay out the information in a very detailed way with the use of rubrics and graphic organizers. He has improved in this area, as demonstrated by his ability to start with a more general idea followed by specific details. . is currently able to write a three-paragraph essay. (Tr. 103-104) The rubrics also support ’s progress in the area of . They help him go step-bystep so he feels . (Tr. 107-108)

Ms. believes that, “Being included with the other students that don’t have learning issues is a great source of strength for She further expressed that, “All of ’s classes really fit him like a glove.” (Tr. 111-112)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The 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]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has conceded its failure to offer a FAPE to . for the 2012-2013 school year. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.

The Parents have the burden of establishing the appropriateness of the program they have provided . (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the unilateral placement by the Parents special education needs for the 2012-2013 school year. It has been persuasively established by Mr. , Ms. , Ms. , as the testimony cited herein documents, that placement at , with its , is appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The entire program, including the classroom component and the Jump Start component, was reasonably calculated to allow to make meaningful progress and to address .’s individual needs. In fact, . made meaningful progress through his participation in the complete program. s small class environment provided opportunities for the tailoring of material and strategies to meet .’s individual needs. The subject classes are created, and students are placed within their grade, using a track system guided by performance levels and allowing for advancement based on progress. One third of the student population is identified as having special education needs which warrant participation in the Jump Start Program. The faculty and staff are trained and experienced educators of students with special education needs. In addition, the support provided with the individualized assistance and reinforcement he needs in his areas of deficit. All of the and staff coordinated their efforts to support .

The DOE argues that reimbursement for the “general education component” of should be denied, in part, or in total, since it does not address ’s identified deficits. Specifically, the DOE cites the fact that is not in an inclusion class for English. is a general education program with a large population of students with special education needs. Its small class size and tracking system allow various additional supports to be implemented and utilized in both general and special education classes, and among both general and special education students. Such a program allows students, who might otherwise be placed in a more restrictive environment, to participate in a general education program, accessing the general education curriculum. It is commendable that is providing what might otherwise be viewed as special education supports in a general education setting.

Through the collaboration with Ms. and specific strategies employed in all classes for including English, it is not a purely general education experience at any time, as the DOE argues. The program, as it is provided to is specifically tailored to meet his individual special education needs at all times. His teachers explained how the built-in methods, strategies, procedures, and other supports, available to the class as a whole, benefit J.S. specifically. In addition, they described how they modify and further individualize various aspects of the program for .

It is entirely disingenuous for the DOE to attack the appropriateness of what it views as a general education component of York’s program. If had been placed in a more restrictive program, with no opportunity for a general education component, the DOE would conceivably be arguing that it is too restrictive. The DOE failed to even evaluate or classify ., and now it argues that any general education in which he participates is inappropriate and should be excluded from reimbursement?

The DOE offered no testimony or other evidence to challenge the appropriateness of the program. I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

Finally, the DOE does not offer any equitable consideration that would preclude an order in favor of the Parents. The record reflects the Parents’ repeated, yet futile, requests for the DOE to evaluate, classify, and provide . with special education services. Despite the Parents’ efforts, the DOE did nothing. The DOE failed in its obligations to . and concedes such failure.

The Parents’ request for an impartial hearing, dated November 5, 2012, is a 20paragraph document, which requests, in part that, “the Impartial Hearing Officer find that they [the Parents] are entitled to the following: 17. Cost of Evaluations.” (Exhibit A) The only reference to a parentally-obtained evaluation is in paragraph 17. The request does not refer to either the Neuropsychological Evaluation, dated January 2012, or the Comprehensive Evaluation, dated June 4, 2012. (Exhibits C and G) The Parents are not seeking reimbursement for the Neuropsychological Evaluation. That evaluation was conducted approximately four months prior to the Parents’ initial request to the CSE for an evaluation. The Parents are requesting reimbursement for the Comprehensive Evaluation conducted on June 4, 2012. This evaluation was obtained by the Parents less than two weeks after their initial request to the CSE, which included their consent to evaluate J.S. (Exhibit B-1) Although the CSE failed to conduct an evaluation, or otherwise proceed following the Parents’ request, as of June 4, 2012, the Parents could not have known whether the CSE would conduct an evaluation. While I agree with Parents’ counsel that an Independent Educational Evaluation (“IEE”) need not be reimbursable only in response to a CSE-obtained evaluation with which a parent disagrees; but can be reimbursable under the circumstances of a CSE failing to ever conduct an evaluation, which is, in fact, a worse situation, the Parent is not entitled to reimbursement under the facts presented herein.

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEE’s are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees with an evaluation conducted by the district (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]). The United States Education Department's Office of Special Education Programs has stated that it would be consistent with federal regulation to allow reimbursement for an IEE when the district failed to provide an evaluation in compliance with the IDEA (see Letter to Anonymous, 55 IDELR 106 [OSEP 2010]). State regulations require school districts to complete the individual evaluation of a student within 60 calendar days from the date of receipt of parental consent to evaluate the student (8 NYCRR 200.4[b][1]; see 20 U.S.C. § 1414[a][1][C][i][I]; 34 C.F.R. § 300.301[c][1][i]). There is no dispute that the CSE did not evaluate J.S. within the prescribed time limits, in violation of the IDEA's procedural requirements (20 U.S.C. § 1414[a][2][B][ii]; 34 CFR 300.303[b][2]; 8 NYCRR 200.4[b][4]). However, the evaluation for which reimbursement is requested, was conducted very early in the time period within which the CSE could have conducted an evaluation. As noted previously, the Parents were not yet aware that the time period would expire without action by the CSE. The Parents argued that the DOE never conducted an evaluation, and that “the evaluation by Ms. was done subsequent to the Parents’ letters.” (Tr. 125) This is an inaccurate representation of the chronology reflected in the record. The chronology indicates that the Parents’ were not responding to a failure of the CSE to conduct an evaluation at the time they obtained the Comprehensive Evaluation. Although they may have anticipated such a failure, their evaluation was obtained prematurely and is not reimbursable.

It should also be noted that the Parents signed the Enrollment Agreement on June 4, 2012, the same date of the Comprehensive Evaluation. (Exhibit E-4) Again, this was less than two weeks following their initial request to the CSE and consent for an evaluation. In the two letters sent by the Parents to the CSE which followed the initial request, the Parents did not mention the Comprehensive Evaluation of June 4, 2012, and certainly did not notify the CSE of their intention to seek reimbursement for the cost of that evaluation. (Exhibits B-4 and B-8)

The DOE shall reimburse the Parents for the tuition costs including its program, for the 2012-2013 school year, upon submission of proof of payment. Tuition reimbursement is specifically inclusive of $38,350 for the program, plus $18,000 for the program. Reimbursement for the cost of the Comprehensive Evaluation is denied. Dated: August 5, 2013 Corrected Date: August 8, 2013 (correction made to cover page)

________________________

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer ALI;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

Parents Exhibits

A. Impartial Hearing Request, 11/5/12, 6 pages

B. Parent correspondence to CSE, various dates, 9 pages

C. Evaluation, January 2012, 14 pages

D. Due Process Response, 11/13/12, 3 pages

E. Enrollment Agreement, June 2012, 4 pages

F. Proof of Payment, various dates, 8 pages

G. Comprehensive Evaluation, 6/4/12, 6 pages

H. Report Card, 1/8/13, 1 page

I. Bill, 6/4/12, 1 page