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: June 18, 2013

Actual Record Closed Date: July 23, 2013

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2013

Attorney — Student

Attorney — Student

Attorney, Advocates for Children — Student

Parents

Sister of child — Student

Interpreter — Student

Parent Coordinator (Via Telephone) — Student

Principal (Via Telephone) — Student

DOE Attorney — DOE

School Psychologist, (Via Telephone) — DOE

Teacher, (Via Telephone) — DOE

The parent requested a hearing on April 4, 2013. I was appointed on May 16, 2013. The parent is represented by .. The district is represented by , Esq. On May 17, a hearing date was scheduled for June 18. A motion to extend the compliance date was granted.

The student’s classification is . On the date of the hearing he old (December 31, 1999). The Individualized Education Program (IEP) challenged is dated October 20, 2011 and is for the 2011 – 2012 school year. (T. 172, 180)

The plaintiff requests compensatory services and withdraws all other claims without prejudice. (T. 182, Exh. M)

The IEP dated October 20, 2011 recommends the following program, integrated co-teaching three times per day, ELA twice a day, Math once a day, speech and language services twice a week in a group for 30 minutes, counseling once a week in a group for thirty minutes. (Exh. 1 p. 6)

EXHIBITS

IEP dated October 20, 2011

On October 20, 2011 the student was eleven years and ten months old. He was in the fifth grade. The IEP under the heading “Academic Achievement, Functional Performance and ” states that the student is reading on a mid fourth grade level and in math he was functioning on a beginning level. “He is an excellent role model for other students and enjoys teaching them about what he knows. [The student] is working on initiating conversation.” Under the heading “Academic, Developmental and Functional

Needs of the Student, including consideration of student needs that are of concern to the parent” is written “Mom encourages [the student] to continue to work hard so that he can get on grade level.” (Exh. 1 p. 1 – 2) Under the heading “Social Development” states

“[The student] needs to learn how to socialize and learn how to “read” responses of peers and adults. A primary concern of parent and school is the need for [the student] to further develop appropriate skills in interacting with peers, and to develop more independence in daily living. Student Strengths: [The student] is friendly with all the students in the class. His peers find him to be funny and love to watch him illustrate. Social

Development needs of the student, including consideration of student needs that are of concern to the parent: Mom has expressed that he .” (Exh. 1)

Evaluation dated October 19, 2011

Reading: “[The student’s} reading style was disjointed and jagged when the information presented got more difficult and when he had problems identifying a word he would skip over it and try the next word. [The student’s] progress shows that he is retaining the information presented and he is also making the gains necessary to be successful academically down the road.”

Mathematics: “…the student] is slightly behind grade level in principles tied to mathematics.”

Assessment Results: “The Personal and Drawing Assessment show that [the student] has typical feelings, desires and ambitions of any child his age…. He also recognizes his parents and family as a reliable source of comfort in his live. [The student]

is sometimes quiet and has atypical reactions socially at times however he has made a lot of progress in that area as reported by those who work with him.” (Exh. 3)

Parent Report 2012 for Assessment Grade 5 for the 2011 – 2012 school year

Mathematics Results: In five different areas, the student was “Above the Target Range”

English Results: In three different areas, the student was “Above the Target Range”

English Results for 2010 – 2011 School year for : In two different areas the student was

“Above the Target Range;” in one area the student was “Within the Target Range”

Mathematics Results for 2010-2011 School year for In five different areas the student was “Above the Target Range.” (Exh. 4)

Report to Families September 2011 – June 2012

Reading, Writing, Math, Listening and Speaking the student received “2”

“Approaches grade-level standards.” Personal and Social Growth, the student received a

“1” ‘Far below grade-level standards” in “Demonstrates effort and completes homework;” “3” Meets grade-level standards” in Works Cooperative with others and

Respects class and school rules.” (Exh. Z)

Examination dated Jaunary 13, February 23, 2012

“The Reason for Referral is to address concerns of cognitive dysfunction and mood symptoms that developed acutely following mild head injury sustained.”

“His mother reported that he is prescribed , although it is unclear why he is prescribed

“[The student] appeared mild to moderately depressed, withdrawn and lethargic and his eye contact as poor. His affect was appropriate to mood. He was minimally communicative with the examiner although he did show the desire to interact and did communicate his needs and wants…Overall, he was cooperative with the assessment and exhibit good effort.”

[The student’s] adult sister completed the BASC-2 in lieu of his mother due to [the parent’s] limited English language skills. She was asked to complete this form in order to objectively evaluate her concerns about [the student’s] mood, behavior and coping skills. Her response pattern produced an invalid profile, as she tended to endorse symptoms to the extreme. With that said, her most significant endorsements were on scales of .” (Exh. 6)

Report dated November 7, 2008

Reason for Referral: [The student] was referred by his mother for this re-evaluation. She is concerned about his lack of academic progress.

Broad Reading scores were within the Low Average range.

Broad Mathematics was Average range.

Academic Skills were Average range.

Social Emotional Assessment:

Report dated February 28, 2007

The student received an average score on the Full Scale WISC-IV. In Reading and Mathematics Composite the student scored Below Average range. Under the heading

“Social Emotional Assessment: “[The student] presents as a quiet and somewhat immature child. His teacher describes him as a . She added that he has difficulty sitting still, fidgeting and following oral directions. She also added that he often plays with his fingers and face. He has and completing class work. [The student] has a positive view of his home environment. [The student’s] mother and as a result he has developed a dependent personal style. No major issues were noted.” (Exh. B)

Lindamood-Bell Test Summary 5.9 dated June 14, 2012

Peabody Picture Vocabulary Test 8.0 Grade Equiv.

Word Opposites: Mental Age

Verbal Absurdities: Mental Age

Oral Directions:

Woodcock NU Word Attack: Equiv.

Oral Reading Test: Grade Equiv.

Spelling: Equiv.

Math Computation: Grade Equiv.

Oral Reading Comprehension: Grade Equiv. (Exh. L)

Letter dated June 14, 2013 from , DO

The student was a patient at outpatient since January 2011. He is treated at this time for . The student has noted that he was at his previous school and his greatest fear is that he should have to return to that environment. Student has had a reduction of symptoms since starting and seems to have improved greatly since the change of schools. (Exh. O)

Social History dated February 2, 2007

Referral Issues: The student was referred to CSE for evaluations by his mother.

She has concerns regarding his movements and feels he is not advancing academically.

The student states that he does not want to attend school although no difficulties between he and the teachers or students are reported.

Description of Student: The parent described him as “ .” Since his accident the student prefers to be alone and does not interact with peers. (Exh. EE)

TESTIMONY

, Department of Education school psychologist testified that the student has atypical social reactions in that he lacks some and being able to respond to people in typical situations. (T. 49) The parent had no interaction with Mr. except when she provided Mr. with the student’s report. (T. 51, 53) At the IEP meeting the parent requested a class with 12 students. It was explained to the parent that a 12 student class would be too restrictive for this student and in Mr. ’s professional opinion this student would not benefit from a smaller class size. (T. 58, 64) Mr. stated that his evaluation (Exh. 3) of the student showed no signs of . All the team members, except for the parent agreed that a class was too restrictive for the student. (T. 68) The student’s teachers and providers reported about the student, which provided a good picture of how this student was functioning academically and socially within the school setting. (T. 74) The student was making progress going from grade to grade. (T. 76) At the IEP meeting dated October 20, 2011, Mr. reviewed the student’s testing, his teachers explained the progress the student was making academically within the classroom setting. At each point, Mr. asked the parent if she understood what was going on in the meeting and if she had any questions. Mr. and the IEP team recommended a program for the student. The parent was not in agreement and wanted a class. Mr. explained to the parent that from the progress that the student made within the classroom that a special class would be too restrictive. (T. 78 – 79)

Elizabeth Ingwer, ICT special education teacher testified that she participated in the IEP meeting on October 20, 2011. (T. 95) Ms. was the student’s teacher in September 2011. (T. 99) Ms. testified that the student made progress in his writing during the fifth grade. (T. 101) The student’s most immediate issue is problems with comprehension, reading, fluency and decoding. (T. 102, 138) At the beginning of the 2011 school year, the student was performing on a level. (T. 110) Within one month the student began to improve. (T. 112) The student was socializing in school. A program of would hinder his socialization. (T. 113) At the end of the year the student had progressed to the level. (T. 115 – 116) Ms. wrote comments on the report card that were “very positive.” (T. 123) As the school year progresses, the students’ expectations rise as well as the standards. The student’s report appears as if he has not improved but he has because he is approaching grade level standards and he is keeping up with the increased demand of work. (T. 124, 150, 151, 153 – 154, 169) Ms. was not aware that the student was prescribed during the 2011 – 2012 school year. (T. 126, 165)

The parent testified that the student and spoke about it. (T. 196, 199) In January 2011 she spoke with Ms and she told her son had to get used to it and to get along because otherwise he will learn it in the streets. (T. 198 – 200) The parent stated the student was at home. (T. 201) The other students would make fun of him. In one situation they called . When he told the teacher, the teacher told him to ignore that because it was “kids stuff.” (T. 202) The students his face. When the student reported this to the teacher, the teacher ignored him. (T. 205) The parent does not believe the student has made appropriate academic progress based on the student’s homework and willingness to study. (T. 219) The parent did not receive progress reports. (T. 220) The parent attempted to give the school Dr. s consultation notes for the student but the school refused to accept them. (T. 223 - 225)

, the school parent coordinator testified that she met with the parent twice during the 2011 – 2012 school year. During one conversation, the parent brought a prescription note stating the student needed an IEP. Ms. made copies and gave one to Ms. and one to Mr. Matera. (T. 241 – 242) The second meeting was at the IEP meeting in October 2011. (T. 243) The parent never spoke to Ms. about with other students. (T. 243 – 244)

testified that she spoke with the parent who was requesting a self-contained class. Based on the student’s achievement and his adjustment there was no reason to change his class to a more restrictive environment. (T. 249)

DISCUSSION

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the Individuals with Disabilities Education Act (IDEA) (see 20 U.S.C. §§ 1401[3]; 1412[a][1][B]; Educ. Law §§ 3202[1]; 4401[1]; 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii];

The Second Circuit has upheld an award of compensatory education in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a free and appropriate public education (FAPE) (see Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 2008 U.S. Dist. LEXIS 113149, at *38-39 [S.D.N.Y. March 6, 2008]).

There was no evidence submitted or testimony that indicated that the student did not receive his related services.

There is no support that this student was denied FAPE or that there was a gross violation of the IDEA. The student’s teacher for 2011 – 2012 testified as to the student’s academic progress. (T. 112, 124, 150, 151, 153 – 154, 169) The student’s report cards indicates that the student has continued to make progress despite the increased demands. (Exh. Z) The student’s test results on Assessments are “Above the Target Range.” (Exh. 4) The parent’s testimony as to measuring whether the student is progressing was based on homework or willingness to study. The parent’s information is inconclusive and unreliable. (T. 219)

Based on the entire record, I find no gross violation of IDEA, or a denial of FAPE. The district met their burden by showing that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is in the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). The Report dated January 13, February 23, 2012 states that the student is prescribed medication but it is “unclear why he is prescribed this medication.” (Exh. 6) There was no document or testimony that indicates if st the time of the IEP meeting the student was on medication. There is no information as to the date or the name of the physician who prescribed . (T. 51, 53, 126, 165)

Parent’s counsel argues that the student was bullied. To substantiate this claim, counsel submits that Mr. received a telephone call from , an attorney with Advocates for Children. Mr. testified he did not recall. (T. 51 – 52) Counsel asked where he received voicemail messages on his office phone line and post-it notes from the student’s family. Mr. testified he did not receive such messages. (T. 52)

This student has had three evaluations and one (2007 – Exh. B; 2008 – Exh. Q; 2011 – Exh. 3; 2012 – Exh. 6). In each of the evaluations, the examiner interviewed both the parent and the student yet there was no information reported as . The student has been a patient of the clinic since 2011 yet the parent has never disclosed this information. Although the parent alleges bullying in January 2011 and the student was a patient at the clinic at that time, there are no contemporaneous records to support the bullying allegation. The parent’s testimony that the school refused to accept documents was contradicted by Ms. , the school parent coordinator and not credible. The parent’s testimony that when she told Ms. that her son she said he needs to get used to it or he’ll learn it on the streets is not believable. School personnel encouraging such behaviors would lead to student , which no evidence was provided. There is no credible evidence that this student was bullied.

Parent’s counsel submits that the “2011 IEP Team appeared satisfied with Kevin achieving less by virtue of his , despite his , rather than providing him with an appropriate educational program and placement to address his needs and allow him to meet his full potential.”. The FAPE to which a disabled child is entitled under the IDEA is not the absolute best or "potential-maximizing" education. Bd. of Educ. of Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 197 n. 21 (1982). Instead, states are obligated to provide a basic floor of opportunity through a program individually designed to provide educational benefits to the disabled child. Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir.1996); Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 587 (9th Cir.1992). The "basic floor of opportunity" provided by the IDEA consists of access to specialized instruction and related services. Seattle Sch. Dist., No. 1, 82 F.3d at 1500 (quoting Rowley, 458 U.S. at 201). The basic floor, however, is more than merely providing a program that produces some minimal academic advancement, no matter how trivial. Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 890 (9th Cir.2001) Based on the record as a whole I find this student progressed not as a student without a disability but as a student with a disability. H.C. and J.C. o/b/o M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 09-CV-10563-PED, 2012 WL 2708394, *14 (S.D.N.Y 2012) (“[w]hen measuring [a child’s] educational achievement, [the child] should not be compared to a nondisabled child”) Although not articulated in the complaint, parent’s counsel repeatedly asked school district’s witnesses whether parent received a copy of her Due Process Rights at the hearing. (T. 56) The student has received special education services since 2005. The parent is familiar with evaluations as demonstrated by the private evaluations that were submitted. (Exh. 6; Exh. L) The parent had retained the services of Advocates for Children of New York at least by August 22, 2012, two months prior to the IEP meeting. (Exh. K) If the parent is aware of his or her rights in developing a student's educational program, it has been held that the failure to provide the procedural safeguards notice does not under all circumstances prevent the parent from requesting an impartial hearing (R.B., 2011 WL 4375694, at *7; El Paso Indep. Sch. Dist., 567 F. Supp. 2d at 945; see Application of a Child with a Disability, Appeal No. 07-116).

Parent’s counsel submits that the parent requested an IEP meeting after the Neuropsychological was submitted and was refused. Mr. testified he did not receive a letter from Ms. at Advocates for Children requesting to reconvene an IEP meeting. (T.

64) On April 19, 2012 a letter was addressed to , Staff Attorney, License Pending in New York; license in California.” The letters requests “…a reconvene of [the student’s] IEP team to consider the recommendations made in the attached neuropsychological evaluations….” Although Ms. requests the IEP team consider the recommendations, Mr. testified that there was no new information regarding the evaluations results. The neuropsychological examination stated that in “Academic Testing” the student performed within age and grade expectation on a measure of basic math calculation. In reading fluency, single word reading and word decoding skills were deficient. The student’s writing formulations skills were problematic. In the “Summary” the examiner the stidemt seemed “ .” He exhibited a range of , the latter of which were characterized predominately by deficits in expressive language and attention. The student’s expressive vocabulary/word finding skills are very weak. The student’s basic reading and reading comprehension skills were problematic. (Exh. 6 p.3) Although the report lists specific tests administered, there are no specific grade level scores provided. (Exh. 6 p.2) The evaluation update dated October 19, 2011 indicates that in reading and mathematics the student is slightly behind grade level. (Exh. 3 p.1) The student’s IEP dated October 20, 2011 indicates the student is reading on a level and in math on a beginning fourth level. (Exh. 1 p. 1) At the time the student was in the fifth grade. Mr. testified that after he reviewed the neuropsychological there was no information that was not already known.

(T. 70) The neuropsychological evaluation substantially mirrors evaluation and the IEP information. I find no basis for the district to have conducted a new IEP meeting. The parent’s request for a class at the time of the IEP meeting and thereafter was unnecessarily restrictive based on the student’s academic performance. The parent’s request is denied. Dated: August 6, 2013

________________________

MARY NOE, ESQ.

Impartial Hearing Officer MN;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

A IEP, April 2005, 11 pages

B report, 02/28/2007, 6 pages

C evaluation, 02/28/2007, 4 pages

D IEP, March 2007, 12 pages

E 2010 IEP

F Letter to DOE from Dr. , 10/04/2011, 1 page H Consultation notes of Dr. , 11/04/2011, 3 pages I Neurological exams and test Scores, 01/13/12, 10 pp J Letter to , 04/19/2012, 9 pages K Ten-day notice letter, 08/22/2012, 1 page L Assessment and recommendations of Lindamood-Bell, 6/14/12, 4 pp. M Impartial hearing request, 04/04/2013, 8 pages N Invoice for Lindamood-Bell , 1 pp O Letter from Dr. , 6/14/13, 1 pp P Letter to Ms. , 6/15/12, 2 pp Q Report, 11/7/08, 4 pp R Student reports from , 2012, 9 pp T Income statement, 08/17/2012, 2 pages U Monthly income statement, 05/30/2013, 4 pages V Social security information for the parent, 05/30/2013, 1 page W Social security information for the student, 05/30/2013, 1 page X Social security benefits for the Parents, 06/06/2013, 1 page Y Social security benefits for , 06/06/2013, 1 page Z PS 188 report to families, 2011-2012, 2 pp CC IEP, 11/25/2008, 14 pp DD IEP, 04/15/2008, 12 pages EE Social history, 02/02/07, 2 pages GG Parents' affidavit, 6/11/13, 10 pages HH Rebuttal affidavit, 6/14/2013, 2 pp II Affidavit of Tom Mariani , 6/11/2013, 15 pp KK rebuttal affidavit, 6/14/2013, 2 pp LL Subpoena to , 5/23/13, 2 pages MM Subpoena to CSE, 05/23/13, 2 pages NN Subpoena to the school, 05/23/13, 2 pages OO Protocol tests of achievement, 10/19/11, 4 pages PP Opening statements from parents'Attorney, 06/18/13 DEPARTMENT OF EDUCATION . 1 IEP, 10/20/2011, 12 pages 2 Final notice of recommendation, 10/20/2011, 1 page 3 ,10/19/2011, 2 pages 4 Student performance tests 2011/2012, 8 pages 5 2010/2011 school year attendance, 05/16/2013, 1 page 6 , 01/13/2012 and 02/23/2012, 7 pages 7 Correspondence with , 4 pages 8 Due process response, 04/15/2013, 3 pages 9 Affidavit of , 06/11/2012, 6 pages 10 Affidavit of , 06/12/2013, 7 pages 11 Opening statement from the District, 06/18/13, 2 pages