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: December 12, 2012

January 23, 2013

February 12, 2013

Actual Record Closed Date: March 17, 2013

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12,

2012

Attorney — Student

Parents

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2013

ESQ., Attorney — Student

Parents

Classroom Teacher (Via Telephone) — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12,

2013

Attorney — Student

Parents

Curriculum Director (Via Telephone) — Student

CSE Chairperson’s Designee — DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # . The hearing was conducted at the impartial hearing office, New York City Department of Education ,at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing on June 20, 2012. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee, Inna Mogilevskaya, and the parent was represented by their attorney Esq.

BACKGROUND

The student is currently a year old male who is classified as ””. On April 7, 2011, the Committee on Special Education (CSE) met to discuss the educational needs to develop an individual educational program, (IEP) for the child, hereinafter referred to as “ ”. The CSE team classified the child as stated above, and recommended placement in a special class in a community school with a staffing ratio of .

THE PARENT’S POSITION

The parent alleges that the annual goals as stated on the child’s IEP were not appropriate and that the Department of Education hereinafter referred to as the “DOE” failed to offer a free and appropriate public education (FAPE) in compliance with the Disabilities Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983 and failed to recommend an appropriate placement.

The Parents maintain that the , hereinafter referred to as “ ” is an appropriate placement for their child. It has small classrooms which provides support for children with and its classroom teachers utilize special education techniques to address the need for the children.

Lastly, the Parents maintain that they attended all meetings, provided documents, were cooperative and are seeking reimbursement for tuition at “

THE DEPARTMENT’S POSITION

Although the Department conceded that it failed to provide with a FAPE, it was their position that the Parent must establish that the educational program they selected was appropriate. The Department conceded Prong I of the Burlington/Carter Test and the only issues to be determined are whether or not the hereinafter referred to was an appropriate placement and if equitable considerations favor the parent.

THE PARENT’S CASE

Ms. was the first witness to testify and stated that she has a dual license in special and general education and is employed at as a teacher. She described the school a serving children with various disabilities, with large and small classroom instruction and related services (T page 14). At the beginning of the 2011-2012 school year she described as a boy with a “big personality”; . was in a class with two adults (the witness and Ms. ) and seven students; Ms was an assistant, trained in . Small group inst4ruction was utilized to develop functional reading and decoding skills (T. page 16).

Functional skills were developed in order that could be more independent and function in society; he was taught , (T. page 18). The witness described ’s progress and stated that he could read invitation to an event, fill out forms. Look at newspapers and pull out things that he enjoyed and was functioning at grade level by the end of the school year. Page 19); he was taught how to count money and make change; he studied bus, train and airport schedules and learned how to use a calculator. Additionally, learned how to address appropriately for work, how to interact appropriately, and write messages, answer phones and obtain appropriate information (T. page 25).

received related services at school including, therapy, she collaborated with the providers informally on a regular basis. (T. T. page 28). In her opinion, the satisfactorily addressed ’s needs and he made progress (T. page 30).

Upon cross examination of the witness she stated that was in a group with boys that were at a similar grade level (T. page 32). The witness and her assistant would break the class down into small group instruction and would teach and then reinforce; the two adults would “swap” groups as needed. (T. page 36).The witness stated that there is religious instruction including prayer and bible for 30 minutes each on a daily basis. (T. page 37). During the present school year is getting “vocational experience”

The next witness to testify was the Parent, who stated that at the age of 2 ½ she noticed “ ” in both and . (T. page 47). began receiving services in at home (T. page 48). When he turned he entered elementary school, where he remained until he completes grade in a general education setting (T page 49). In the next school year the witness stated that her family moved and that she contacted the DOE for a special education placement (T page 50). She visited a recommended program, disagreed with the recommendation and enrolled at the (T. page 51). The witness recalled the IEP meeting for the school year at issue and stated that the CSE was unable to contact a general education teacher. Recommendations were made for class, which was too large for him (T page 54). She visited the recommended placement and was informed that there no longer class and that it was replaced with a collaborative team teaching model with 30 students and two teachers; she observed the class and school which she stated extremely “large with thousands of students’, wherein the students had to transition from class to class. (t. page590

The Parent testified that a contract for was signed and that she and her husband paid approximately $29,000.00 for tuition and services to date; she has not paid in full as she lacks the available funds to do so. (T. page T. page 60). The Parent testified that has made progress, however requires more skills in order to become a functionally independent member of society (T. page 61); she would have placed her son in a public school if the appropriate placement was offered (T. page 61).

Upon cross examination, the Parent was directed to the enrollment contract and identified her husband’s signature and date signed, however insisted that despite the date of the contract that she would have sent to a public school if it were the appropriate placement. (T page 67); she also identified the payment proof via a credit card statement and confirmed that the payment s were made to in January 2012.

Upon redirect examination the Parent stated that she first contacted the recommended placement in June shortly after receiving the FNR, she left numerous “phone messages” to schedule an appointment. She also reviewed the enrollment contract , exhibit G and state that it provided for 10 installments and that the contract could be cancelled by September 8, 2011 and that she would not ne responsible for future payments if she accepted the BOE’s recommended placement by September 30, 2011; any costs up to that point would be prorated. (T page 69).

Ms. testified after being sworn that she is employed at as the curriculum coordinator and maintains NYS certifications in regular and special education (T. page 78). Her duties include the following: meeting with the teachers in the beginning of the school year to establish goals, review lesson plans, perform classroom observations, assist teachers in utilizing strategies and implement motivational techniques (T. page 79).

The witness has observes in the classroom, and described him as “sweet and friendly”, with and delays. (T. page 80). Additionally, he presents as ” in the way he interacts with people; he is and has a (T. page 81). The witness was directed to Exhibit “I” and stated that it was and stated that it contains a list of skills that were developed at the beginning of the year by the therapist and teachers. The list is developed in October, after the professionals have the opportunity to assess and observe the children (T. page 83). Additionally, the document is updated in February and June in order to assess the student’s progress (T. page 84). Regarding , provided examples of progress particularly as it related (T. page 86); additionally, therapy and therapy progress was documented (T. page 87)

Upon cross examination of this witness, she stated that she observed on a weekly basis in 2011-2012; these were formal observations wherein she shared her information with others in the school. Additionally, there are “mainstreaming opportunities” wherein the students go outside of the building to stores and places in the community interact with others. Within the school, there are mainstreaming opportunities with other students in extraricular activities (T. page 89). There are vocational/life skills taught wherein the students read newspapers, catalogues, medication labels etc. (page 91). ’s progress is measured by the utilization of “Fountas & Pinnel Reading Assessment”; in math there are end of chapter tests.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 USC. 1400 [d) [1]; Board of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes special education and related services designed to meet the student's, unique, needs, provided in conformity with a comprehensive written IEP (20 U.S.C.1401 [9] [D]; 34, RCNY 300.17. A board of education may be required to (J Education, 471 U.S. 359 [1985]; Florence County School. District Four v, Carter, 510. D'S. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education if complies with the procedural requirements 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 at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b)significantly impede the parents opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C 1415 [f] [3] [E] [iii]

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes .annual goals related .to those needs. (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with disabilities to be educated to the maximum extent, appropriate with their non disabled peers" See Walczak v. Union Free Sch. Dist142F.3d 119, 122 (2ndCir.1998).A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent School. Dist, 2007 WL 465211, at 10* [SD.N.Y. Feb. 9, 2007], citing Walczak. 2 F.3d at 122).In determining an appropriate placement in the LRE; the IDEA requires that. children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, -separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a] [5] [5J [AJ; 8 NYCRR 200.6 [a] [1]; see also Bay Shore Union Free School. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate. or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ. 1036. 1044 [5th Cir, I]. The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ. 1204, 1213 [3rd Cir. 1993]).The Daniel R.R. Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including: 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. language and role modeling with no disabled peers (Geer v. Rome City School, Dist.. 950 F.2d 688 [11th Cir, 1991]).

In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended program was Application. of a Child with a Disability. Appeal No. 01-'096).

I agree with Parent's counsel that when the Department concedes prong one, that it well settled law that the Department should be precluded from asserting a defense that the Parent's claim should be barred if equitable considerations do not favor the Parent.(M.H. and E.K. v. NYC Department of Education, reported at 2010 U.S. LEXIS 45400,S.D. of New York.) However in this case if I was to make a determination as to whether the Parent was cooperated with the Department and if there were any equitable considerations that would be a bar to an award supporting the Parent, I find that the Parent was cooperative.

The Board of Education may be required to reimburse parents for their expenditures for private educational services, obtained for students by his or her parents, 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 (Florence County School District No 4 v. Carter, 510 U.S. 7 [1993]' School Commissioner of Burlington v. Department of Education, 471 U.S. 359, 369-70.

As principle relief, the parent is requesting an order, directing that the DOE pay for tuition and related services at . After hearing all the evidence, including testimony from the classroom teacher, curriculum director and that Parent, I find is an appropriate placement for the student. old student who has exhibits presents processing disorder, skills.

As the DOE has failed to provide an appropriate recommendation for the school tear at issue, I find d that the Parent’s unilateral placement was appropriate and provided with a meaningful education, wherein he made progress. The was aware of educational needs and developed an educational program to prepare him for to become an independent adult. The school addressed his education, academic, social and pre vocational needs. He was provided with small group instruction, with no more than three students for reading, writing and math instruction to address his deficits. The testimony established that charts were utilized to correspond with his responsibilities if at a job to assist him in becoming a functioning adult. More particularly as stated above, provide shills in counting money, calculator skills, time concepts, reading skills, understanding newspaper articles. Decoding, and functional skills; clearly made progress in all areas. The student had a licensed special education instructor and an assistant trained in with several years teaching experience. He also received related services of , and physical therapy and , provided by licensed professionals.

As stated above, I agree with parent’s counsel the equities in the instant case favor the parent. The mother testimony was credible to establish that she provided requested information to the CSE, in the event that the Department found a placement for her child. She was ready willing and able to send her child to a public school if the appropriate program was offered. The parent participated in the CSE meeting and freely exchanged information and produced documents requested. I also find that she made reasonable efforts to investigate the recommended placement.

In conclusion the evidence demonstrated that “ ” had awareness of s needs and provided an individually tailored program to meet his , , needs with an appropriate class grouping, an appropriate class size/staffing ratio, a close range of chronological age and academic functioning, and a highly individualized plan to meet the child’s needs. The evidence established that the placement was appropriate as the child has made meaningful educational progress.

Accordingly, based on the weight of the credible evidence, I find that the Parents have met their burden with respect to prong two and three of the Burlington/Carter analysis, that the program they have provided was uniquely devised to address his need in the LRE and therefore appropriate under IDEA and that the Parent has cooperated with the Department . I award full reimbursement for the for tuition and related services. Dated: March 20, 2013 __________________________

GARY D. PETERS, ESQ. GP;mv Impartial Hearing Officer

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

Exhibit Name of Document Date PAGES

A Impartial Hearing Request 6/20/12 4

B Due Process response 6/29/12 3

C Notice of IEP meeting 3/11/11 1

D Letter from parent to CSE 7/7/11 3

E Letter from parent to CSE 8/24/11 2

F Letter from parent to CSE 9/27/11 3

G enrollment contract/addendum 8/31/11 2

H Proof of payment various dates 1

I IEP 2011-2012 9