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: July 9, 2013

October 3, 2013

November 21, 2013

November 26, 2013

Actual Record Closed Date: December 16, 2013

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2013

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2013

Attorney — Parents

Attorney — Parents

Dept. Designee Classroom Teacher Dep’t. of Education — DOE

Mother — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2013

Attorney — Parents

Dept. Designee — DOE

Mother — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26, 2013

Attorney — Parents

Dept. Designee — DOE

Teacher/. Ass’t. Principal Dep’t. of Education — Parents

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 #143528. 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 February 1, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee and the parent was represented by their attorney.

BACKGROUND

The student is currently a year old female who is classified as “ ”. On April 19, 2012, 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 and , time per week for minutes in a group 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 “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.

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

The Department maintained that the child was properly classified and that the IEP set forth appropriate goals and recommendations for the child and that a final notice of recommendation (FNR) was issued to the parent, wherein a placement was offered that was reasonably calculated to enable the child to obtain meaningful educational benefit.

THE PARENT’S CASE

after being duly sworn stated that he has three Masters Degrees as follows: one in Education with a specialization in Reading Remediation; a second in Special Education and a third advanced degree in . He is also certified as a school psychologist and has worked in the field of education for 20 years; he has been with Bay Ridge for 15 years. During the 2012-2013 school year, he had a multi-tiered position and works as a teacher in mainstream and special education classes. As a push-in specialist, as part of the school-based support team he not only provides support for teachers, he acts as a consultant and does push-in work and observations into other classes. He also serves as a counselor and performs psychology related activities.

The witness described as a small student-centered school with a in that, “we have programs and courses that are specifically designed to help students maximize their abilities. Additionally, if there is a learning issue, we try to build up on those strengths, and kind of design a course of study that will build up their areas of weakness. If they have an interest or an area of strength, we try to give them opportunities to take advanced courses. If they're a student who has a disability, then they can have opportunities for the least restrictive environment, and go into a mainstream class.

In the 2012-2013 school year, there were approximately 210 students that attended . There is a special education program called , which is for students, usually with IEPs, or students with a , or a writing or ; or sometimes, for students classified as ….but we don't really have with challenges in our program” (T. page 80). Upon further questioning of the witness he stated that the in the , the students are functionally grouped in terms of their, prior testing, personal and social issues, functional ability in terms of expressive writing, or ability to do math. The program provides study techniques, utilizes surveys, offers questions to be read aloud and reviewed. “We use graphic organizers and recapitulate many of the themes that are done; there's coordination between the supportive history teacher and the regular history teacher class” (T. page 81). Additionally, the witness stated that “there's Regents preparation, wherein prior standardized tests are used to evaluate the students…..there's a secondary writers workshop to help with the writing skills, for the kids to get ready for the English Regents and to build up their writing skills; there's even a supportive math class or a push-in extra help for math, depending upon the needs of the individualized student” (T. page 82).

Mr. testified that the staffing ratio in the class varies, for example, “in the writing courses, there is a special education teacher, and usually a pathologist. So that's usually, maybe, about . Many of my classes are either or and sometimes, they're even smaller. I'm teaching a couple of courses this year that are 6:1 and 9:1. Occasionally, when I push into a class, it will be 14:3” (T. page 82).Students are grouped within a year or two of functioning of each other, so that they are on the same general path, even though there is differential instruction within the class and much of the help is individualized”. For the 2012-13 school year, there were approximately 65 Bridge students in the high school. The witness stated that he in her freshman year, in a history class; our modified history class, had about eight or nine students (T. page 84).He also taught the supportive class that she was in for half the year and had her in two classes in freshman year (T. page 85). was in our as she had difficulty with short-term memory, executive function, organization, recall and retention of information.

The witness described the child as when she takes tests. “… when I first met her, she was and didn't , . She has a variety of issues that inhibited her functioning. As part of , supports were implemented and imbedded within the classes, but “we also have a period called the planning and organizational period, which every goes to at the end of the day….they go over what assignments are due, what is being covered in a particular class (T. page 86).

The witness testified that sometimes, students stay after school and work with professionals, like myself or maybe, Ms. , one of the , to work on homework. started to do “much better than she did in the beginning part of the year. “She was very , when she first entered our program and then the planning and organization started to help her, wherein a binder and the folder system were implemented. By the middle of the year, she had herself even more organized” (T. page 87).

The provided supports for and she would seek out one of our counselors and received individual support (T. page 88). Additionally, the witness stated that he recalled meeting with and began to individualize her homework, and that “she got extra credit for doing it because the rest of the class didn't have to do it anymore. But she and the other special ed students really wanted to do it because it helped them study told him that was extremely helpful for her in terms of picking out important things to prepare for her exams by looking at the graphic organizer; he would break assignments down into pieces for her and scaffold them (T. page 91).

Mr. ’s needs in grammar and writing skills, which is an area of difficulty. They worked on content, and picking out what was important with paragraph unity. He provided instruction in writing skills, as well as, integrating, which was content specific for the history. He provided study techniques with , how to review right before a test and then give her pneumonic devices about how to pick up on those things for exams (T. page 92). At first, she thereafter with all these accommodations, she started to “kind of get the idea of it, and then her grades started rising”(T. page 92).

By the end of the year, she , but she still passed. “As the material became more difficult, she passed my exam, she passed my finals, she passed the Regents exams…she was extremely proud of doing that in a mainstream class with those educational supports”

(T. page 93).The witness was referred to Parents' Exhibit G, which is s schedule for the 2012-2013 school year and reiterated that his history class was a mainstream class, as was art with Ms. She was in math with Mr. n a small group class (9-10 students). Mr. is a special education teacher. “Ms. 's class was a mainstream class, but it's a small class; Ms. is a special education teacher. While it's a mainstream class, it has many special educational supports, graphic organizers, use of technology, SMART Board, all that kind of stuff that we use in those classes to facilitate comprehension and skill acquisition (T. page 94).

The English class for the 2012-2013 school year had 12 students; the history class had 14 students. The witness stated that a staffing ratio was “very appropriate, being that I've had a long history with her, she sat right in the front, and I did a lot of pull-out, individual. So it was a small class for her; she was able to feel--have social credits of feeling that she was in a faster paced class (T. page 95)

Mr. stated that the peer grouping for the child in the history class was “very appropriate”. He also saw her in the contemporary issues class, which is the supportive history class, with Ms. (T. page 96). The Contemporary Issues class is “the marrying of modern day events, reflecting back”, he pushed into that class on a semi regular basis and was there once or twice a week, working with and other kids, as part of his role as a push-in specialist. He provided this service to reinforce study skills work as a learning specialist, and to reduce the staffing ratio from 14:1 to 14:2.

responded well to differentiation, her test scores and level of comfort improved in the class and she passed the New York State standardized Regents exam. The witness stated that was improved by her being a mainstream class; at the beginning of the school year, she “rarely raised her hand, wouldn't make eye contact or come up for help. She had very sparse answers to things, very--just a few words here or there”. I just started to see her flower, for lack of a better term. She started to raise her hand. She started to have friends in class. She became more social. She wasn't shy about asking for help. She would go up with her other friend or two, and say, can we have an extra study session with you? She even became, not only her own advocate, but an advocate for her peers, and that is a complete 180 from the young lady that I met in freshman year” (T. page 100).

The witness described the Writers Workshop as a class that works on organizational skills, in order make sentences complete. Ms. and Ms. would sometimes work with students on a content specific paper that they were working on and also work on stories and writing skills. Ms. ' role in the writers workshop would be to provide pushin services with ; she would often do individualized work . The witness stated that he spoke with ’s other teachers at a regular meeting once a week and also had sub-meetings after our regular faculty meeting. And being that I work in a number of different disciplines, “I would get a chance to talk to the faculty. Additionally, there are always discussions on a daily basis (T page 103).

The witness stated that progress is measured in in different ways. “We do kind of a Basal Assessment in the beginning, like a writing sample. There are reevaluations several different times throughout the quarter, and again on their exams”. There is curriculum-based assessment, as well as, push-in services with students with learning disabilities. Mr. testified that “we would also take questions from the Regents, which is a standardized exam”. After a while then we would take away some of those supports, and see if they would implement them, themselves, when they were doing them, so they could them spontaneously on the Regents themselves; he also stated that that developed goals for , for the 2012-2013 school year; that “they're not just annual goals. They're weekly to monthly goals” (T. page 104).

Mr. reiterated that the child made progress in writing over the 2012- 2013 school year; we talked about how to develop her ideas further, how to incorporate more advanced terms or SAT words, because they are integrated into my courses, even in history as well. could argue her points and make sure she gets used to addressing all the parts of the Regents questions, because many times, they have two and three requirements. “In her math class-- she had lots of extended time. She had a lot of things broken down. Lastly, the witness stated that Mr. uses the SMART Board and has lots of manipulatives. He would have the students come up and draw diagrams on the board, and manipulate the figures on the board. . told him that she liked his use of the technology, and it helped her to understand the concepts in math. The witness stated made tremendous progress in writing, in terms of history, passing the Regents, and feeling much more comfortable in a variety of her classes, even in her biology class and that the was able to address the child’s special education needs.

Upon cross examination, the witness stated that the DOE’s recommendation for a special class with a ratio was not an appropriate recommendation. He opined that the child “really wanted to feel more a part of a faster paced class, which she could handle. She wanted to be amongst her peers. I would feel that a would be too restrictive for her. She just needed some supports along the way, and some accommodations. But I think that a all day would be too restrictive for her” (T. page 112). He conceded that most of the classes that had less than 15 students, however that 15-16 students in a class is a mainstream class in our school” (T. page 114).

The witness testified that the “class is about the pace, not necessarily about the number of students. The Bridge students, who are mainstreamed, have special education supports, regardless of the number of students (T. page 115).Although, the witness stated that he has not taught a special education class in the NYCDOE, “that it is not fair to say that he is unfamiliar with them-because he deals with parents and students who come with it every day and works with CSE’s that describe them. He reads IEPs constantly, about what they are described as and talk to parents who've just been transferred from the Board of Education from many programs….. he is extremely familiar with the programs

(T. page 117). Upon further questioning of the witness regarding standardized assessments performed , he stated that the students can take the New York State Regents exams. Additionally, in terms of reading, there can be fluency tests, which are standardized (T. page 119). Woodcock-Johnson has limited applications, so it depends upon the student. Upon further examination the witness reiterated that the school develops goals during the school year on a regular basis. During the IEP meeting, he did not recall if he supplied any goals to the CSE for the development of the IEP. Generally, the team would ask him how the child is doing; he would provide information (T. page 120)

The witness defined executive functioning and stated that a layman's definition would be the “ability to intake and organize information, hold it in working memory, and apply it to novel situations…as well as, organizing material, being able to keep track of material. It kind of touches on working long-term memory and organizational skills (T. page 121). Many of the teachers within the are licensed special ed teachers; some of the teachers are licensed in general education, teaching a special education class.

The Next witness to testify was ’s mother, hereafter referred to stated that was born on January 2nd, 1997 in Russia and that six weeks later she went to live in an . When her daughter old, and brought to the United States. The witness stated that developmentally she ( , “didn't even , much less . She enough, and with something called ” (T. page 46).She and , wherein was at the age of three by a licensed clinical social worker, . She stated that her daughter worked with Ms. for several years; the therapy was a couple of times a month; “we did and she also . and physical therapy through the State for about six months, but she learned (T. page 48). began special education services in first in , where she attended through fifth grade. The witness stated that she also took her daughter to a “once a week for one to two years” (T. page 48). At was in a mainstream classroom, with push in services, where she would receive extra help. By the time she grade, she was being taken out two or three times a week.

For , the Parent stated that she learned of this school from the speech language therapist at . She attended for the 2012-2013 school year in 10th grade. At the start of the tenth grade school year, the witness stated that her daughter she “had gotten in some mainstream classes for the first time, so I think her self-esteem was improved…she has some test anxiety--I think that had calmed down a bit, I think she had grown more confident. The witness further stated that the school is located in a different building than the middle school and that her daughter is in (T. page 50). The program utilizes “scaffolding” …they help kids read questions for tests. They go over reading comprehension of the homework, break it down for them”. has made a big difference in her life. “Because she has some , so it is really broken down things in very--you know, they meet her where she is kind of thing. They break it down for her. She is also in an environment where there are other kids where this is happening so she doesn't feel like she is being penalized” (T. page 51). In the 2012-2013 school year, the witness stated that the classes were pretty small; the mainstream classes had 12 students and the bridge program was smaller. The staffing ratio’s were “very good for her”; the peer grouping was nice because they are the kids that are in the specialized program, . She is in some classes with other mainstream kids and has lunch with them. She also has activities with mainstream kids and other times she is in the special ed. (T. page 52).

The Parent stated that she received progress reports and/or report cards for her daughter, three or four times a year. She described her progress from grade as follows: “she was able to transition into some mainstream classes, and then she maintained mainstream classes so she was able to perform at that level they put her in (T. page 51). She also believed that her daughter “is comfortable with the group of friends, some of whom are in the bridge, some of whom are in the mainstream. I think she is coming more into her own. She is feeling less test anxiety 'cause she feels more confident”…she stated that “was super important and has helped her negotiate all of this and go on to college”

(T. page 54). The Parent was directed to Exhibit D and identified it as an enrollment contract, dated April 6, 2012 for the 2012-2013 school year for in the sum of $38,675.00 and stated that she has paid the entire amount. She signed the contract in April 2012 to ensure her that her daughter would have a place to go to school for . She attended a CSE review meeting for her daughter for the 2012-2013 school year in the Spring of 2012 (T. page 56). The witness recalled that a program was recommended and that there wasn't a discussion…It was just what they decided. I wasn't asked. She mentioned to “the woman at the computer that she had some concerns about “that many kids in the class because of her that can be e, but didn't really get answered. They didn't change it” (T. page 57).

The witness reiterated that she believed that a class would be very difficult for her child…”Because of again of all of her needs, her --I am not an educator--but to break down--things really need to be broken down. and is hard for her to focus; it gets .I think that would be tough especially if everyone else has special needs” (T. page 58). testified that she received a FNR for a school in and went to see it; she visited the program on the first day of school for the 2012-2013 school year. And stayed for 3 ½ hours: there were and . “I heard there was supposedly gang members and they were shooing them away from the door. She speaking to a couple of the kids hanging out. She stated that her daughter would to go (T. page 60).

The Parent visited one class that had at least 20 students; she went to several classes and stated that the students stayed together in the class. She was told that this class would be the one that her daughter would’ve been in (T. page 61). In her opinion the recommended placement would not be an appropriate fit her child, “the class was loud… it was hard for the teacher--it is not her fault -to focus the kids, a lot of side conversations, she had a hard time getting their attention as did the history teacher, who was also--he was really good, but he had a really hard time. A kid came into the classroom that wasn't supposed to be there (T. page 620)

Upon cross examination the witness stated that she couldn't find a place that she felt comfortable with “a public school, a junior high that would have been appropriate for her. Furthermore, it wasn’t the self contained recommendation, but rather the number of kids--the ratio to the teacher. She stated that her daughter required a smaller class size for her anxiety, her learning disabilities, for things to broken down (T. page 65).

The witness was re directed to the enrollment contract dated April 6th, 2012 and noted that the IEP meeting was April 19, 2012. She reiterated that the reason for signing an enrollment contract before having the IEP meeting was to secure the placement. At her visit to the recommended placement, she didn’t believe that it was appropriate for her to be complaining (T. page 66 -67)

At the CSE meeting the Parent stated that she told the team that she had concerns, ….-at that point this would have been at the end of ninth grade that she hadn't gotten into any mainstream classes at that point, “so my concern would have been she is not in mainstream classes and so she is still (T. page 67). Regarding progress during the 20122013 school year, the witness stated that “I am going to say it is probably to improve her spelling, to improve her sense of phrasing, her grammar. I mean I am sure it's not great. That is something she really has a hard time with, but there was some improvement… regarding writing skills, there was improvement in the spelling, writing sentences and grammar” (T. page 69).

DEPARTMENT’S CASE

Mr. testified after being duly sworn that he has his State Certification in Elementary and in Special Education. Additionally, he has a State Advanced Certificate, as a Supervisor and Administrator and a State Advanced Certificate as a School District Leader. He has worked for the DOE for 28 years and is currently is working out of CSE7, as a part time litigator with the Impartial Hearing Unit. He also is a part-time member of the IEP team, as a teacher assigned, consisting and a social worker (T. page 22).

Mr. stated that he is familiar with the IEP process and with NH. He recalled a meeting that took place on April the 19th, 2012; wherein an IEP was created. The witness was directed to the IEP attendance page and stated that following attendees were present: , the classroom teacher from who participated by telephone as a special education; himself as a general education teacher; the parent; the school psychologist and the parent member was waived. He stated that as per the IEP, the classification for was “ ”. A recommendation was made for a special class, and counseling one time 30 minutes in a group (T. page 24). He did not recall any disagreement regarding the classification and or placement.

Regarding the first goal on page 3 of the IEP, the witness stated that it was a writing goal and designed to improve the child’s skills in writing; the next goal is a math goal to improve the child’s ability to solve mostly word problems and the last goal was a reading comprehension goal to improve the child’s use of making inferences and drawing conclusions to passages (T. page 26). Regarding the child’s needs, goals were created to allow her to express and within the classroom. It's a counseling goal. Additionally, testing accommodations were developed wherein, was afforded extended time - - time and a half; in a separate location, in a small group with directions to be read and re-read (T. page 27). The witness testified that the team is not involved in making recommendations for a particular site, however a recommendation was made for a special class with a ratio as the child’s reading and math levels were . The team actively solicits the participation of the parent in this goal at the IEP meetings (T. page 28)

Upon cross examination, the witness conceded that he never met nor evaluated . He participated in approximately 300 IEP meetings in the calendar year 2011/2012. Regarding the first goal on the IEP, he stated that it is a writing goal and conceded that it did not include the child’s then current writing levels. He stated that a teacher knows the base line for this goal as according to Mr. direct testimony, the child had and this was stated in the CSE minutes (T. page 31). Additionally, when examining the CSE minutes, which is in evidence as DOE’s Exhibit #6, page 1 of the document indicated that ’s reading level was a grade; however page 9 of the IEP, Exhibit 3, indicates that the child’s reading level is grade. The witness clarified and stated that the minutes indicate grade is for the “content area”…so we grade down, because content area would not be overall comprehension (T. page 32). When asked “where did the grade level specifically come from that's included on the IEP?”, the witness stated, “I don't recall”. Upon further examination of the witness, he stated that the goals were created by one of the team members. Regarding the development a goal, we have the classroom teacher provide a progress report on the child by phone; We are taking notes of what the classroom teacher says…many times the parents are also taking notes from what the classroom teacher says over the phone; the goals are developed through weaknesses that are reported to us by the classroom teacher (T. page 33). Goals are developed for reading, writing, math goals and counseling based upon the classroom teacher's report and the counseling report that we received from the school; “we tell the parent at the meeting that the goals will be developed after the meeting”. He conceded that theoretically, the first time the parent would see the goals is when they received the IEP in the mail (T. page 34).

Mr. testified that \testing accommodations were made for the student to be in a group of 12 students or less; that's usually the standard number of students you have for small groups, when you use standardized tests. The team relied upon a teacher report from Mr. and a report; he was uncertain if the team relied upon evaluations. Upon being directed to Page 1 of the IEP it was indicated under Evaluation Results, that performs within the average range of intelligence; he believed that the information came from a previous evaluation, but was not sure when it was (T. page 35). The witness was directed to DOE Exhibit #5, which is the Final Notice of Recommendation and a Final Notice of Deferred Placement; It indicates the current class program to be a "Special Class, . The witness stated that was entering 9th grade and then in that event a special class 15 :1, would be the only appropriate community school recommendation (T. page 38).

Upon redirect examination, the witness testified that if after the parent receives a copy of the IEP, if the parent or the school had any concerns, or any additions or modifications they wanted to make, it could happen; they would just have to contact the team.

The next witness to testify was who stated that she is an assistant principal. Prior to becoming an assistant principal since 2005, the witness was a teacher since 1998. She currently works at the . Her duties and responsibilities as an assistant principal include being in charge of overseeing instruction in the classrooms and supervising teachers; she works with them in developing curriculum and supervises the Special Education Department and the ESL department. She also supervises all of the content area subjects, math, science, social studies and English (T. page 128).

She stated that there classes at the school, resource rooms, self-contained classes and ICT classes. All of the special education teachers are licensed and certified. As a supervisor, her duties are to try and make sure that the content area that the staff is teaching is correct. . The classroom teachers have a self-contained an ICT duties; so if they're teaching ninth grade math, they have a self-contained ninth grade math class, but also have an ICT, a co-teaching class with the general ed teacher. That way, whatever instruction is happening for the general ed teacher is mirrored for the special ed students, so that they're not getting a different curriculum, a different instruction, or a different lesson plan” (T. page 131). The ICT and the self-contained teachers prepare and plan together alignment of the ICT class is the same as with the general education classes.

Ms. stated that she supervises the teachers every day with informal walkthroughs. She meets with them and has and meetings every--they meet every; they work and plan together with the support and usually the supervision of the assistant principal. I meet with the staff, to help them plan their lessons, to get their data together, to help them do their exams. The teachers work together to plan their assessments and the instructional piece of the lessons. The witness did not recall the Parent calling to set up an appointment to come and visit the school. According to the IEP, a recommendation was made for a special class, ; she stated that the school could have provided such a setting and counseling, 1x30, in a group of three as there are two onsite providers.

Regarding transitional activities and postsecondary activities, the witness stated that beginning in grade, there is an interview with the student, to assess the student'sneeds, learning style and they complete a questionnaire. In addition to that, all students in our school are part of the , which works with every child towards helping them develop career and college. “There is also a college advisor, Ms. ; she works with the students, keeps the files of all our self--our special ed students, students with disabilities. And we meet once a year when we do the annual review, and update that student's profile. She works with them, to help transition them. We work with the students to find different locations. We take them to different sites for visits. We introduce them to certain career choices or different schools that offer the training, based on what they have indicated on their - - profile, as to what they want to do (T. page 135). For there is global studies, English, math and science and these mainstream classes are all For gym, art, and music, would the students are integrated with mainstream students via a flexible 15 programming (T. page 138).

Additionally, or art in a class, the students take Regents as there are no more RCT’s. However, the passing score for them is a 55. In the tenth grade class there is usually a ratio, however last year the class was very small with nine or ten students. Upon further questioning of the witness stated that the teachers address the variation in reading levels within a tenth grade, , class; “they use a lot of close reading strategies …and we use a lot of scaffolds, and we chunk the text, to help the student master the material… in math, we do a lot of problem solving, so that the student kind of just--it's more of a discovery. So that instead of having to memorize a whole lot of processes, the student understands the problem and works through it, themselves, with assistance of fellow students and the teacher…so we try to use--make it more problem solving and more collaborative (T. page 140). The student is engaged in reading activities during the school day in every class… so they're reading in the science class…they're reading in history…they're reading in English…they're reading in math…so…for each 45-minute period, they should be reading at least ten minutes (T. page 141)

Upon cross examination the witness testified that for the 2012-2013 school year that there are eight periods per day. The students take foreign language, however there's no ratio for foreign language classes.

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 WL465211, 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).

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. The DOE representative maintained that evidence showed that NH was offered a FAPE for the 2012-2013 school year and complied with the procedural requirements set forth in the IDEA, and that the DOE developed an IEP that was reasonably calculated to enable the child to receive educational benefit. More particularly, it is alleged that the evidence showed that the proposed placement would have been able to meet the needs of the student.

Mr. was present at the IEP review that took place on April 19th, 2012. He maintained that evidence established that a duly constituted team met and developed an IEP tailored to meet the specific needs of the student and that the team considered all evaluations and that all necessary evaluations were performed within the three years prior to the review, in compliance with statutory requirements.

Regarding Prong I of the Burlington/Carter test, the DOE maintained that the goals developed at the IEP meeting addressed the child’s deficit areas. Furthermore, it was stated as per Mr. 's testimony that all participants had the opportunity to give their input at the IEP review meeting. Additionally, the DOE maintained that the program recommendation appropriate in a special class, 15:1, with related services of counseling, one time per week for 30 minutes in a group of 3:1 was in the LRE. The DOE designee stated that , the assistant principal from the recommended placement school, established that the proposed placement would have been able to meet the needs of the student, and that the classroom was an appropriate placement.

Regarding prong two of the Burlington/Carter test, the DOE maintained that school selected by the Parent is inappropriate. More particularly, the evidence was alleged to establish that is not able to meet the student's needs. Arguments were made that the teachers in “might” have special education licenses and that other teachers have licenses in psychology and other teachers have general ed licenses. All of the teachers do not have state certified, special education licenses, and lack the necessary credentials. In addition, the measurement of student progress is not standardized, and that it is of questionable validity. It was argued that as Mr. 's own testimony, that the only standardized assessment that is given is the Regents exam and there no other standardized assessment in reading or math or writing. Additionally, that the assessments that are performed are curriculum based, which is not standardized. It was stated that the evidence demonstrated that the student had not made meaningful progress.

Regarding Prong III, the DOE opined that the evidence showed that the equities do not favor the Parent in this case as the Parent never intended to place the child into a public school.

Parent’s counsel maintained that the evidence demonstrated that the DOE denied a FAPE for the 2012-2013 school year and failed to meet their burden to establish that if offered a FAPE. More particularly, the IEP dated April 19th, 2012, failed to address ’s individualized special education needs, and is riddled with procedural defects, which rises to the level of a denial of FAPE. More particularly, as a sole witness to demonstrate the appropriateness of the April 9th, 2012 IEP, the DOE called Mr. , the individual who participated as the general education teacher at the IEP review meeting. It was also stated that Mr. does not hold a state certification as a high school general education teacher, despite the fact that was to be entering the tenth grade for the 2012-2013 school year. As a result, Mr. 's participation as the general education teacher at this meeting was not appropriate. Parent’s counsel stated that Mr. offered “absolutely nothing substantive to demonstrate the DOE’s position”. Furthermore, the DOE failed to elicit any evidence to demonstrate why a special class with a staffing ratio would have been appropriate for NH for the 2012-2013 school year.

Mr. testified that a , special class program was recommended as it is the “only program available for high school students”. It was also the position of the Parent that the record is devoid of any evidence that supports the DOE’s recommendation that needs could be met in a special class with 15 students and one special education teacher, within a community school. The Parent testified that the CSE/IEP team failed to provide any justification at the CSE review meeting, as to why they were making this specific recommendation for The parent stated that the team did not discuss program recommendations, but instead made conclusory statements regarding the recommended 15:1 special class program.

Counsel argued that that the CSE review team did not review functional levels or goals at the meeting, and did not rely on any documentation to substantiate their recommendation. It was argued that that the CSE did not rely upon the necessary evaluations to properly measure ’s then current skill levels, and failed to differentiate her levels of functioning in important areas. In fact it is stated that the IEP is devoid of any indication of 's then current writing skills, which was a documented area of weakness for her.

Regarding the annual goals presented , it was argued and I agree that they were generic and vague, and do not provide a baseline from which to work. Testimony from the Parent, Mr. , and Mr. established that the goals were not reviewed with the Parent or the private school staff, at the IEP meeting, which is not appropriate and denied the Parents, the opportunity to meaningfully participate in the review process. Furthermore, the CSE recommended a special class for without properly evaluating her ability to be placed in such an unsupportive setting, and at such a restrictive setting. The CSE ignored input from ’s then current teachers, who believed that she required a more individualized, supportive, and less restrictive program, to benefit educationally.

Moreover, it was argued that the CSE did not listen to the genuine concerns of Mr. , who indicated that required this type of program. Overall, the April 19th, 2012, IEP was stated to be “alarming sparse”. Under the IDEA, the IEP is intended as a substantive presentation of specific characteristics that interfere with a youngster's educational progress, and the individualized program designed to address those deficiencies. In this case, I again agree with parents counsel that the IEP evidences “merely a cursory, rather than thoughtful, review of ”. The Parents also maintain that the inadequate transition plan, in conjunction with the failure to include in the process renders the IEP flawed.

The parent maintained that record is devoid of any indication that a vocational assessment was developed; the lack of a vocational assessment and adequate transition plan render the IEP deficient. Although, the specific allegations regarding the lack of a vocational assessment and transition plan were in the Parents' due process complaint, but were not addressed by the DOE. Counsel stated that the record is clear that the recommended placement could not implement the IEP, as the program could not provide all of the supports included in the IEP. The testimony established that the recommended placement could only provide a special education, 15:1, self-contained class for English, math, science, and social studies. As the April 19th, 2012, IEP specifically recommends that be educated in a , self-contained class for all subjects throughout the school day, and specifically, indicates seven times per day, the recommended placement could not implement this IEP.

Furthermore, the Parent maintained that when she went to visit the program, she provided the final notice of recommendation to the individual at the school, and spent three hours in the self contained classes, which, as she indicated, had 20 students, not 15. Moreover, the Parents testified that the program and the specific placement gang violence in the area. The Parent testified that this would only and be learning. Moreover, the Parents maintain that what she observed in the classroom was not a suitable and functional peer grouping, and the record is devoid of any evidence that such exists.

With regard to prong two, the Parents maintain that they have met their burden to establish by a fair preponderance of the evidence and testimony, that the at was appropriate for , for the 2012-2013 school year. Counsel stated that the evidence presented at this hearing has demonstrated that the was individualized to meet the child’s identified special education needs. There was testimony that the at provides small classes and specifically designed instruction based upon each student's unique learning style. The courses within the cover the required content of the New York State curriculum, and are modified based upon the individual needs of each student. Dean , testified as to the appropriateness of the that the educational professionals at meet regularly to review the child’s specific strengths and weaknesses, and have developed a program based upon her very specific learning style. Additionally there was testimony that the program provided with small, supportive classes, both self-contained and mainstream where in the mainstream classes, she was provided with support. Additional testimony confirmed that responded very well to the educational techniques utilized by the , such as scaffolding, chunking, breaking down information, the use of graphic organizers, and the overall organizational and emotional support that she was provided with.

The child’s placement is in integrated, mainstream classes for certain subjects and allowed her to be educated amongst typically developing peers, for subjects where she demonstrated a significant strength. Mr. testified that was provided with supports through the , to allow her to be in this15 integrated, mainstream setting. Mr. testified that the teachers in the integrated classes provide this special education support and are special education licensed teachers that provide with this level of support, so that she can be in a mainstream class. Counsel stated that is consistent with the preamble of the IDEA, which promotes integration and mainstreaming when possible. The provides the child with the perfect balance of special ed classes to build skills, and integrated, mainstream classes to support and promote generalization. It is with this type of environment that the child can make appropriate educational progress and in fact, did make progress over the 2012-2013 school year.

With regard to prong three, it is stated that the Parents have done absolutely nothing to hinder the efforts of the DOE, in their effort to develop an appropriate program for The Parents went to the CSE review meeting, participated in that meeting, and visited the proposed program. The Parent complied with the ten-day requirement (exhibit

A) and notified the DOE of their intent to at a private school, should the DOE not cure the defects noted in their notice. With regards to contract, the court in Schaffer v. Weast held that the date in which a parent signs a contract with a private school is irrelevant in weighing the equities. Moreover, the Parent here credibly testified that had the program that she visited been appropriate, she definitely would have sent her child to that program. It is argued that this clearly credible testimony given , a DOE public school, for her elementary school years.

As principle relief, the parent is requesting an order, directing that the DOE pay for tuition and related services at the private school. After hearing all the evidence, including testimony I find that “ ” is an appropriate placement for the student for all the reasons as stated above. As the DOE has failed to provide an appropriate recommendation for the child, I find that the Parent’s unilateral placement was appropriate and provided with a meaningful education, wherein she made progress. Bay Ridge was aware of ’s educational needs and developed an educational program to prepare her to become an independent adult. The school addressed her education, academic, social and pre vocational needs. She was provided with small group instruction for reading, writing and math instruction to address her deficits. As stated previously, for eighth grade there was global studies, English, math and science and these mainstream classes were ; for gym, art, and music, would the students are integrated with mainstream students via a flexible 15 programming. In the tenth grade class although there is usually a ratio; last year the class was very small with nine or ten students. The teachers address the variation in reading levels within a tenth grade, 15:1, class; they implement reading strategies, and “utilize scaffolds and chunk the text”, to help the student master the material. Instead of having to memorize lessons, the student understands the problem and works through it, themselves, with assistance of fellow students and the teacher.

As stated above, I agree with parent’s counsel that the equities favor the parent. The mother testimony was credible to establish that she provided requested information to the CSE, in the event that the DOE 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 and provided an individually tailored program to meet his and 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 at 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 tuition and related services. Dated: December 20, 2013

________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP: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 THE RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date Pages A Notice of Unilateral Placement 8/22/12 3 B Impartial Hearing Request 2/1/13 7 C Payment Affidavit 2/13/13 1 D . Contract 4/6/12 2 E 2012-13 Tuition Invoice/Stmts. 2012-13 2 F Description undated 1 G 2012-13 Student schedule 1/7/13 1 H Attendance Record 2/13/13 1 I 4th Quarter report 2011-12 1 J 4th Quarter report 2012-13 1

DEPARTMENT’S EVIDENCE

1 IEP 4/19/12 14

2 FNR 8/10/12 1

3 IEP 4/19/12 11

4 Parent Declination Letter 4/19/12 1 5 FNR Deferred Placement 6/6/12 & 8/10/12 2 6 CSE Minutes 4/19/12 2