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: March 21, 2013

May 2, 2013

June 7, 2013

Actual Record Closed Date: June 14, 2013

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2013

Attorney for Parents — Student

Parents

DOE Attorney — DOE

Teacher, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 2, 2013

Attorney — Student

Parents

Teacher, — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 7, 2013

Attorney — Student

Parents

Teacher, — Student

DOE Attorney — DOE

The parents of . requested an impartial hearing on December 12, 2012, for the purpose of seeking funding for their unilateral placement of at the (hereinafter referred to ”) for the 2012-2013 school year.^[1] I was designated to hear this matter on December 14, 2012 pursuant to 20 U.S.C. Section 1415(f) (1). A hearing took place on March 21, 2013 and May 2, 2013 and June 7, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses and extensive testimony with a final compliance date of June 25, 2013. (IHO Ex. III, IV, V, VI).

EVIDENCE AT HEARING

is a boy with a classification of . His classification is not in dispute. (DOE. Ex. 1). Mr. , ’s father, testified that attended grade at . (Tr. p. 195). His struggles began during his year. (Tr. p. 198). On November 19, 2010, during his grade year, was classified with a and recommended for times per week for minute sessions in a group of students. (IHO Ex. I; Tr. p. 196). He testified that was . (Tr. p. 197).

During his grade year, continued to receive in a general education setting. He also received outside of school and (for part of the year). (Tr. p. 199). As a result of a discussion with ’s classroom teacher and the teacher, it was suggested that be moved to an Although his IEP was not changed to reflect the change in class setting, Mr. testified that was not treated as one of the general education students in the class. (Tr. p. 204).

was evaluated at the in September of 2011, and a report was issued (hereinafter ”), by Dr. , a Clinical Neuropsychologist, and an Assistant Professor of Child and Adolescent Psychiatry.

According to the , the parents described a “ ” and ”. They noted that he can . It was reported that he is ; that he . (DOE Ex. 9, p. 2).

It was reported that functions , with skills. His skills; with weaknesses noted in the . Weaknesses were also seen in . His presentation was consistent with . His difficulty with skills was consistent with the diagnosis of . His difficulty with were consistent with a diagnosis of . also met the criteria for a diagnosis of . His weakness in . While he .

It was recommended that be placed in a classroom to address his , with a ratio. Dr. reported that a classroom will be “the for him”. It was further recommended that he receive a . Additional recommendations times per week; to help bolster his math skills; . Recommended accommodations included . (DOE Ex. 9).^[2]

On February 14, 2012, Dr. wrote an addendum to her earlier report, noting that since the time of his evaluation had been transferred to an class; that he integrated , that he appears to be , but that his . The parents reported than reported during the earlier evaluation. While the parents reported , the teacher did not endorse any . In terms of his , reported that he ; but denied any . In contrast, his parents reported

On the , demonstrated . His .^[3] Dr. reported that symptoms of ’s . Dr. recommended placement in a classroom within a specialized school setting, as “ . She also recommended a method of instruction for reading and writing, per week weekly . (DOE Ex. 10).

Mr. testified that he participated in the March 21, 2012 IEP meeting, and provided the (and addendum) to the CSE; as well as teacher rating scales. (DOE Ex. 7 and 8). The parents reported ’s to the CSE review team, and asked them to consider as an option, but that request was rejected; as the team felt was making . (Tr. pp. 210-212). He felt that needed than could be provided in the recommended program ( ). (Tr. pp. 214, 218; DOE Ex. 3). He testified that the present levels of performance and the IEP goals were not discussed with him at the meeting. (Tr. p. 219).

Approximately one month after the meeting, the parents received the IEP and reviewed it . They disagreed with the goals and the description of ’s needs. The IEP did not include the result of their independent evaluation. The parents sent a letter to the and inadequate writing goals); and that the recommended program does not address ’s need for a class due to his struggles. (DOE Ex. 1). School Assessment Team setting forth their disagreement with the description of ’s functioning and the recommended program, and requesting further discussion, and that the IEP team consider recommending placement at . They stated that they must reserve a space at . (Par. Ex. A). remained at for the remainder of the 2011-2012 school year, in an class with and received , but not consistently. According to Mr. , did for the remainder of the school year, and continued to . He testified that he would in the middle of the night. His also suffered, as he was , and the parents could not get him to school. The parents tried to bring their concerns to ’s’ teacher; however they continued to say everything was fine (Tr. pp. 224-226). The only area of academics in which the parents noted improvement was in ’s skills. (Tr. p. 227).

On August 9, 2012, the parents sent a second letter to the school assessment team repeating their concerns. They stated that they intend to place at and seek funding for the placement. (Par. Ex. B). They did not receive a response to the letter or a new meeting. (Tr. p. 229)

On February 6, 2012, the parents signed a contract placing at for the 2012/2013 school year, with an annual tuition of $46,000 (and a non-refundable deposit of $5,000). (Par. Ex. F). The balance of the tuition was paid in three installments; with the final payment made on July 30, 2012. (Par. Ex .G). Mr. testified that the parents placed at because they felt that they had no other option for his education. (Tr. p. 230). He testified that he has seen in ’s reading, math and in his handwriting. While still suffers from , he does not feel anymore; and he realizes that he is . His attendance and punctuality has also . (Tr. pp. 324-327).

, a certified special education teacher, testified that was in her class during the 2011-2012 school year (his grade year). Ms. was the special education teacher in the class; and was the general education teacher. During the current school year, she is the special education teacher in a grade class, with the same students who were in ’s class last year. If he had remained , he would have been in her class for the 2012-2013 school year. Within an class, the ratio of general education to special education students is . (Tr. pp. 12-16). Special education students are placed in classes based upon their need for and with a range of . (Tr. p. 17).

joined Ms. ’s class in about October 2011; and received , a special education service, for reading. (Tr. pp. 18-19). She described him as to be in school with friends in the classroom. Socially, he was an e kid in the classroom. She testified that he was a in writing. could do math; but had difficulty getting it down on paper. (Tr. pp. 21-22). He ; but his comprehension was fine. (Tr. p. 59). He had . (Tr. p. 58). The teachers did not feel that ’s challenges were reported by the parents. (Tr. p. 23).

On March 21, 2012, the Committee on Special Education (“CSE”) met to review ’s program. , a school psychologist who also served as the District Representative, , a general education teacher (in ’s class), Ms. , a teacher, and ’s parents participated in the meeting. (DOE Ex. 3, p. 18). The team reviewed the and considered Dr. s diagnoses of . (Tr. pp. 21, 86). Ms. drafted the IEP after the meeting, taking into consideration everything that was said by the parents and the service providers. (Tr. p. 24). ’s teacher contributed to the description of his academic development and goals.^[4] The Occupational therapist also addressed some goals, after the meeting. (Tr. p. 52).

Reviewing the present levels of performance, she noted in the IEP that ’s development in activities of daily living and his levels of intellectual functioning were at level, and that he . (Tr. p. 26; DOE Ex. 3 p. 1). She noted that . She noted that his expected rate of progress is rate of peers “but with ”. The IEP does not note ’s . Nor does it describe his . (DOE Ex. 3, p. 1).

The IEP notes his . She noted his ( and that he benefits from Socially, she noted that he has ; but that his . She noted that he joined the classroom in year and She noted that his needs include the class with ; (Id. pp. 1-2). She testified that the description of in the IEP was picture of how he was in the Spring of 2012. (Tr. p. 27). She testified that other than what was in the class. (Tr. p. 41).

The parents expressed concern that the to address his needs; and reported that he was to come to school. This was however, not apparent to the teachers. (Tr., p. 28)^[5] They were also concerned that would be of the classroom too much. (Tr. p. 37). The parents also reported that was having ; however he did not appear to be in class. The CSE review team discussed the option of class, but rejected it as . (Tr. pp. 29-30). Ms. testified that the classroom provided the instruction, with role models which would not be available in the classroom. (Tr. pp. 30, 35). She testified that instruction is also available in the classroom. (Tr. p. 35). She uses various techniques including . (Tr. pp. 35-37).

She testified that while was at the of the class in both reading and math, he was still grade students. (Tr. pp. 100-101). ^[6]

The CSE recommended placement in an class ( ), with periods per week for ELA and periods per week for math; with related services of per week individually, and per week individually. (DOE Ex. 3 pp. 12-13). was added as a new service due to the parents’ expressed concerns about ’s level. (Tr. p. 40).

Ms. testified that she drafted the goals after the meeting, after discussing what the goals would address, and taking into account what everyone had to say. The goals were written targeting ’s specific weaknesses. The IEP did not include as a goal, because this was part of the regular classroom curriculum. (Tr. pp. 32, 34). With respect to academics, ’s IEP includes a ; goals for math ( ; and goals for reading comprehension ( ). ’s IEP includes social/emotional goals ( ). ’s IEP also includes a goal for handwriting ( ). The criterion for determining if the goals have been achieved is accuracy, to be measured by teachers and providers, time per quarter. (Id. at 4-11). The IEP was to be implemented on March 21, 2012. (Id. p. 1).

Ms. testified that the parents did not agree with the CSE’s recommendation, as they felt needed a classroom placement. (Tr. p. 40). She testified that in the class; and she felt that the recommended program was appropriate. (Tr. p. 34).

, a certified special education teacher, testified that she is a grade head teacher at , and that is a student in her class. The class consists of students aged and two teachers. The other teacher in the class is also certified in special education. (Tr. pp. 116118, 122). is a New York State approved school with students. (t pr. 118). is placed in

7 smaller groupings of students for reading and math. He receives in groups of . (Tr. p. 123).

At the start of the school year, Ms. reviewed ’s IEP and his neuropsychological evaluation. (Tr. p. 125). She described him as a student with . (Tr. p. 127). is provided . He receives . also benefits from a . (Tr. p. 128).

Writing is taught using , and . The school utilizes a program called . At the start of the year, was performing at a grade level in writing, and has progressed to a grade level. His . (Tr. pp. 129-134). has a . (Tr. p. 133). Writing is the area in which . Ms. testified that for , even a amount of progress in this area is (Tr. p. 180).

For reading, receives instruction using He work on He has progressed from a grade level to a grade level in reading. He is grouped with students at his functional level. (Tr. pp. 135-136). In math, . He . He has progressed from a grade level to a grade level. He is grouped with other students at his functional level. During the current school year, he has worked on (Tr. pp. 142-145). Spelling is taught in the classroom based upon what is reading; with . (Tr. p. 134).

receives and has . (Tr. pp. 153-154). In , works on (Par. Ex. H-15). has . (Tr. p. 166). The school is working to develop his skills through . (Tr. pp. 166-167).

Reviewing the March 21, 2012 IEP, Ms. testified that she felt the program was inappropriate, because is being pulled out of the classroom more than he is in the classroom; and because he would not get the he requires. (Tr. pp. 158, 165). She felt the IEP did not accurately reflect ’s weaknesses. She felt that it was inappropriate to is also described in the record as . (Par. Ex. H-15; Tr. p. 154). recommend as a goal that produce a paragraph essay; and felt that writing paragraph would be a more appropriate goal. (Tr. pp. 155-156). She also felt that there should have been a goal for . (Tr. pp. 161, 186). She also felt that his reading goal should have specified ’s g level, or the goal for his level. (Tr. pp. 163, 185). She also felt that the multiplication goal (by 12s) was , as can only . (Tr. pp. 187- 188). She testified that provides with an appropriate educational and social environment. (Tr. pp. 166-167).

’s mid-year report card reflects progress in and at a grade level; writing ); social studies, ( ) and math. In , he worked on skills, as well as for . (Par. Ex. H).

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 report the student’s present levels of academic achievement and functional performance, and 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][i]; 8 NYCRR 200.4[d][2] [iii].

I find that the March 21, 2012 does not accurately ’s present levels of academic achievement. The only specific deficit area noted in the IEP is in ’s writing (including his ability writing math problems). The IEP does not note his . The IEP contains contradictory information about ’s academic levels. While reporting that he functions at grade level, the IEP also reports that his instructional/functional levels for reading and math are at grade level. ’s teacher, who drafted the IEP, could not explain this discrepancy. Nor could she explain what was working on when he was removed from the class to receive , although she thought it was probably to work on skills and a reading program.

The lack of specificity of ’s deficit areas is also reflected in his IEP goals. The IEP does not include any goals for g, although this was the area which was worked on in The writing goal, of writing a essay is too advanced, given ’s . There is no goal for . The IEP includes goals for , but none for which was the area of greater concern.

The IEP was written after the CSE review, without the participation of the parents. The parents’ subsequent request to reconvene due to inaccuracy of the IEP was ignored. I find that the foregoing procedural inadequacies rose to the level of a denial of FAPE. See M.H. v. New York City Department of Education, 685 F. 3d. 217, 249 (2d Cir. 2012).

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). While the parents are not held as strictly to the standard of placement in the least restrictive environment as school district, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. M.S. v. Bd. Of Educ., 231 F. 3d 96 (2d Cir. 2000).

I find that the parent satisfied their burden of proving that provides with educational instruction specially designed to meet his unique needs. ’s program at includes specialized academic instruction in small classes of students with two teachers. also receives group instruction for reading, and math with students on his functional levels. receives to address his , and is skills. The program specifically addresses his reading program, and a specific writing program, including . The placement is consistent with Dr. recommendation.

has made in reading, writing, math and handwriting. has a He has also to the school. Although is a environment, in the absence of any evidence that the parent’s had a option, which could have met ’s special education needs, I do not find that the restrictiveness of the placement should defeat an award of tuition reimbursement.

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]. 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 parents participated in the CSE review, shared their private evaluations, communicated their concerns to the committee 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 parents for ’s tuition at , for the 2012-2013 school year , upon presentation of proof of payment thereof. Dated: June 27, 2013

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

DML: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 RECORD

PARENT

A Fax, 5/2/12, IEP Response Letter, 4 pages B Parent Letter to , 8/13/12, 5 pages C School Curriculum, undated, 4 pages D General Behavior Guidelines, Undated, 2 pages E 's Classroom Schedule, 4 pages F Enrollment Contract, 2/8/12, 2 pages G Affidavit of Payment, 2/26/13, 1 page H Mid-Year Report Card, 1/2013, 15 pages I Proof of Payment, various dates, 4 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 12/12/12, 6 pages 2 Due Process Response, 12/17/12, 4 pages 3 IEP, 3/21/12, 19 pages 4 FNR, 3/21/12, 1 page 5 Consent for New Assessment Letter, 11/4/11, 1 page 6 Decline Parent Member Letter, 2/17/12, 1 page 7 Teacher Rating Scale, undated, 1 page 8 , Teacher Rating Scale, undated, 3 pages 9 Independent Neuropsychological Exam, 9/2011, 17 pages 10 Addendum to Neuropsychological, 2/14/12, 6 pages

IMPARTIAL HEARING OFFICER

1 IEP, 11/19/10, 11 pages 2 Prehearing Conference Summary, 1/10/13, 1 page 3 Extension of Compliance Date, 2/7/13, 2 pages 4 Case Follow-up Sheet (not case file over sheet) 5 Case Follow-up Sheet (not case file over sheet), 2 pp

6 Case Follow-up Sheet (not case file over sheet)

Footnotes

[1] The parents complained that ’s IEP did not adequately describe and his special education needs; that the goals and objectives do not appropriately address his special education needs (with no goal for decoding

[2] achieved a total reading score in the range, with reading comprehension in range. Written expression was in the range. His subtest scores for spelling, numerical operations, addition and subtraction were all in the range. (DOE Ex. 9, p. 15).

[3] ’s spelling score was average. When composing sentences, he . His writing mechanics were r. In this evaluation, ’s ability to understand what he read was reported to be “ .” (DOE Ex. 10, p. 3).

[4] She did not recall what the teacher stated was working on, or what he continued to need to work on; but thought it was probably skills and a program. (Tr. p. 57).

[5] During the current school year, the class students. In the 2011-2012 school year, there were students in the class. (Tr. p. 49).

[6] ’ instructional levels in reading and math. as reported in the IEP, were both on a grade level. (Id. at16). Ms. could not explain the discrepancy between her description of his academic levels in the IEP and the description she provided at the hearing. (Tr. pp. 100-101).