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: May 16, 2014

June 11, 2014

June 27, 2014

Actual Record Closed Date: July 22, 2014

Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2014

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

School Psychologist (Via Telephone) — DOE

Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2014

Attorney — Student

Parents

Dean (Via Telephone) — Student

Head of School (Via Telephone) — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2014

Attorney — Student

Attorney (Via Telephone) — Student

Parents

DOE Attorney — DOE

Mr. and Mrs. the parents of requested an impartial hearing on January 31, 2014, for the purpose of seeking funding for their unilateral at the (hereinafter referred to ”) for the 2013-2014 school year. I was designated to hear this matter on February 3, 2014 pursuant to 20 U.S.C. Section 1415(f)(1). A hearing took place on May 16, June 11 and June 27, 2014. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues, with a final compliance date of August 15, 2014. (IHO Ex. I, II, IV, V and VI). Parents’ Position

The parents complained that the challenged (June 19, 2013) Individualized Education Program (IEP) is procedurally and substantively invalid including insufficient goals and management needs; that the student’s needs were not appropriately described and that the recommended ICT program was inappropriate because it failed to provide sufficient support. (DOE Ex. 1). The parents are seeking direct funding for their unilateral placement. (Tr. 6/27/14 at 88). The parents also argued that the IEP team was deficient because it did not include anyone who was familiar with the middle school ICT program (Id. at 89). They argued that the goals were not specific, and did not address . (Id. at 92). They claim that the IEP is deficient as it fails to provide special education support in science, for decoding. (Id. at 96). Department of Education (“DOE”) Position

The DOE’s position is that Daniel’s past progress in the ICT program is evidence that it continued to be appropriate for him. It argues that the lack of special education support for science was not raised in the due process complaint. (Tr. pp. 106-107). It further argues that the fact of his did not render the placement inappropriate. (Tr. p. 108). The DOE argues that the parental placement is inappropriate because it fails to to typically developing peers. (Id. at 112). Evidence at Hearing old student with a classification . His classification is not in dispute. (DOE Ex. 1). Ms. C., Daniel’s mother, testified that , from . For year, he was placed in an Integrated Co-teaching (“ ICT”) class, with related did , and was . (Tr. 6/11/14 at 56). Although she described him as a his year as he became more aware of his differences from his peers. (Id. at 6). She testified that he was reluctant to participate in classroom discussions, and was embarrassed to be reading books on a lower grade level. (Id. at 6-7).

Dr. performed an independent neuropsychological during his fifth grade year. Testing revealed that in many spheres. His was at the ; while his perceptual reasoning index was . His was at . new information at a slower rate. (DOE Ex. 4, p. 9).

showed evidence of a . His total reading and basic reading composite score were at respectively in the below average range of functioning. His reading comprehension and fluency composite score were . His ability to was at rank. A multi-sensory approach to reading was recommended for the acquisition of basic reading skills and comprehension. His reading and spelling ability was at level. His handwriting was described as illegible. His social comprehension was high average. His math skills were at a fourth grade level. His abstract verbal reasoning skills were in of functioning. Although was beginning to demonstrate regarding his academic struggles. It was recommended that he be placed in a program with small structured classes, within a small nurturing environment, where he can receive full-time special education support with similarly functioning peers. It was also recommended that he be given directions slowly, and one step at a time. One-to-one teacher time was also recommended. (DOE Ex. 4).

On June 19, 2013, the Committee on Special Education (CSE) met to review . The CSE review team , grade special education teacher, the , a certified school psychologist who also served as district representative grade general education teacher. A parent member was declined. (DOE Ex. 3, p. 13, Tr. 6/11/14 at 10).

Ms. , testified that she last in November 2010. (Tr. 5/16/14 at 13, 22). At that time, Daniel was participating in a general education program, grade level. In November 2010, she recommended be carefully monitored to determine whether he might benefit from additional support, such as an Integrated co-teaching class, moving forward. (Id. at 15). She described who is well liked, very motivated, and eager to demonstrate what he knows. (Id. .at 17).

Ms. first reviewed the independent when it was received in June 2013. (Id. at 14). She described it ”, and testified that the recommendations are consistent with an ICT class. She disagreed with the statement ; and stated that was . (Id. at 18).

Ms. a certified special education teacher, testified that grade special education teacher within his ICT class. The class followed a general education curriculum; however the students with IEP’s received support and modifications. (Id. at 34). She testified that reading and math assessments were performed during the 2012-2013 school year; and that Daniel made progress in his IEP goals. (Tr. pp. 36, 40). She testified that with previewing and repetition, he was able to learn the fifth grade curriculum for math. (Id. at 40). For reading, he began the year reading Level N and O books (of the Fountas and Pinnell leveling system) and finished the year reading Level R books, at an end fourth grade level. This was equivalent to three-fourths of a year of progress. (Id. at 42). She described Daniel as well liked by his peers, and testified that he worked well in groups. Although he was confident in his math skills, he was less confident in his reading and writing skills, which were his weakness. (Id. at 46).

Ms. testified that she reviewed the evaluation prior to the CSE review. (Id. at 45). She felt that the ICT program was an appropriate placement for him, as he received full-time support for academics throughout the day, and because he related well socially, and benefited from being with his non-handicapped peers. (Id. at 49, 51). She was not familiar with middle school ICT programs. (Tr. p. 72).

The June 19, 2013 IEP incorporates the results of the independent evaluation. (DOE Ex. 3, 4). It also describes his classroom performance in reading, writing and math. (DOE Ex. 3, p. 1). The IEP describes his management needs as preferential seating, repeated directions, visuals, direction instruction, and repetition. (DOE Ex. 3, p. 2). The IEP includes goals (use of new vocabulary words, and complex sentence starters and transition conjunctions, verbal and in writing); Reading Comprehension (making a statement about a text and supporting text with three pieces of evidence)1; developing ideas about characters); Writing (using graphic organizers, with drafting, revising, editing

This goal was intended to be used in reading as well as social studies. (Tr. p. 53). and publishing; writing complete and complex sentences using a variety of punctuation, transition words and clauses); and Math computations. There are no goals for decoding. (Id. at 3; Tr. pp. 53, 56). The IEP described his instructional/functional levels as fourth grade for reading and math. (DOE Ex. 3, p. 10).

The CSE participate in an ICT class 15 times per week for ELA; 10 times per week for Math, and 5 times per week for Social Studies, which is the program he was participating in in Elementary School. (Tr. p. 83; DOE Ex. 3, p. 6). Related Services of Speech-Language Therapy (“SLT”) was recommended twice per week for thirty minutes in a group of five students. (Id. at 6-7). felt that the ICT program met Daniel’s academic needs. She testified that while his program follows grade level, the special education teacher makes the program accessible to the student by differentiating it and modifying it. She testified progress in math, reading and writing; although he had difficulty discussing themes. The IEP does not recommend ICT for non-academic subjects; however Ms. did not would have difficulty functioning in a mainstream setting for those subjects. (Tr. 5/16/14 at 62-64). She testified that at the elementary school level, science only two periods per week, as an elective; and did not receive special education services during that time period. This is reflected in the IEP, which provides no special education supports for science. She was not familiar with how often he would receive science in middle school. (Id. at 76).

Cursive writing was not taught in the school. Ms. not agree that . She testified that she called the independent evaluator to let him might be due to the fact that it was not taught at the school. (Id. at 67-68). While about she did not feel any specific interventions were needed. She testified did not participate frequently in class. (Id. at 60-61).

Ms. that the placement process for all fifth graders, including ICT students entering middle school, is to receive a middle school placement through a lottery, with assistance from a middle school coordinator or guidance counselor, including informational meetings. (Id. at 66, 82-83).

Ms. not perform well during his fifth grade year. He and his self-esteem diminished, as he became more aware of his differences from his peers. He was reluctant to participate in class and did not want to go to school. (Tr. 6/11/14 at 6-7). Ms. C. attended the June 19, 2013 IEP meeting to review the independent neuropsychological evaluation and to plan for Daniel’s program. (Id. at 10). She testified that the committee felt that because he was very academic support in an ICT program; and that a 12:1 program would be too restrictive for him. (Id. at 11).

Ms. she did not agree with the fact that the IEP did not include special education support for science; but was told that the school program, in which science is considered an elective. (Id. at 12). She felt that he would require support for reading, writing and decoding in science, which meets daily in the middle school. (Id. at 13).

With respect to the middle school placement process, Ms. testimony was consistent with Ms. testimony that there were informational meetings, which described the lottery process. a placement at through the lottery, in early spring, prior to the IEP meeting. (Tr. pp. 14-15). She visited the recommended class in September, because she was waiting for her IEP meeting. (Id. at 18). On August 15, 2013, she wrote to the CSE for clarification as to whether she would be receiving a new placement offering, as a result of the IEP meeting. She stated that until her concerns were addressed, she intended to seek funding. (Par. Ex. B).

Ms. . visited I.S. 89 in September. (Tr. p. 18). She testified that the class had 31 to 33 students. She was told that it would be capped at 34 students. She testified that the instruction was given orally, at a fast pace; and then the students broke up into small groups, with the teacher circulating among the groups. She felt have been lost in the class. (Id. at 16-17). On September 23, 2013, she wrote to the CSE describing her concerns, but did not receive a response. (Par. Ex. C; Tr. 6/11/14 at 18).

She testified that Daniel has made exceptional progress at Winston Prep and his self-esteem has improved. (Id. at 20).

On or about March 2013, the parents signed a contract at for the 2013/2014 school year, with a total tuition of $52,550. They paid a non-refundable deposit of $500.00, and agreed to pay the balance by October 2013. (Par. Ex. D). As of the conclusion of the hearing, they made payments totaling $500. (Par. Ex. J; Tr. pp. 104105). In 2012, their adjusted gross income was $86,730. (Par. Ex. I).

, testified that he holds a master’s degrees in learning disabilities and is certified in special education. (Tr. 6/11/14 at 35) The school has 183 students divided among 18 groups, based upon their learning profile school class, with other students who struggle with decoding and executive functioning. (Tr. p. 36). Classes range in size from six to thirteen students. (Id. at 37). and writing teacher has a Master’s Degree in reading. His math teacher has special education certification. His history teacher has a Master’s Degree in reading and certification in social studies. His science teacher has a Master’s Degree in special education. (Id. at 42 ).

travels with the same group of eleven students for literature, writing history and science, and is in a different group for math and forty-five minutes per day of individual instruction, focused on decoding and encoding, which is primarily why he attends the school. He also works on writing during his one-on-one instruction. The school employs speech and language pathologists, but does not offer speech and language as a separate service. Language skills are addressed within the that decoding and encoding is addressed in his various classes. (Id. at 45-46, 53). He testified that Daniel has progressed in writing fluency, and received a merit award in math, for his hard work. (Id. at 47-48).

testified that she has Master’s Degree from a reading specialist/applied psychology program, with certification in teaching English and literacy. She is dean of and teaches literature and writing. (Id. at 56). one of her students in a literature and writing class, which meets for ninety minutes each day. His strength is his listening comprehension. His sounds, and multisyllabic words. She testified that is phonic based; and he is working on phonemic awareness across the board, in science and history. He also works on writing. (Id. at 62-63). For comprehension goal is to skills. (Id. at 64). , spelling and comprehension, and has improved in his desire to share what he is reading independently. graphic organizers for writing, and has improved in his ability to organize his thoughts. (Id. at 65-67). He receives multisensory instruction, including computers, iPads, flashcards, pen and paper. This breaks up the monotony, and makes the acquisition of skills more natural. (Id. at 68).

has consistently performed well in math. He is working on multiplication division, percentages, graphing and geometry. (Id. at 70). She testified needs special education support in science class, to decode. (Id. at 75). She testified many friends at , and is more confident with his homework assignments. (Id. at 76).

in the middle to the top of his class, and progresses more quickly than some of the other students. (Id. at 77). His comprehension is strong, in comparison to the other students in his class, and is an area in which he has shown progress. (Id. at 79-80). There are no opportunities within the school interact with non-handicapped students. (Id. at 77).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998)

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education. (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).

While I share the parents’ concerns that the CSE review team could not explain how the ICT program operated in the middle school, I find that the team was duly constituted, in that it included the student’s current special education teacher. See Application for Review of a Determination of a Hearing Officer; Appeal No. 11-040; 8 NYCRR 200.3[a][1][iii]. I agree, with the parent, however, that the IEP goals were deficient, in that they failed to address decoding, which is an area of significant difficulty for Daniel.

Substantively, the recommended program is inappropriate because it fails to provide special education science, which he would need for the reading requirements of the science curriculum. Although this deficiency was not specifically identified in the complaint, the parents did allege that the recommended program failed to provide sufficient support. Therefore, I disagree with the DOE’s argument that the failure to provide sufficient science was not raised in the due process complaint.

I find that the combination of procedural and substantive inadequacies caused a deprivation of educational benefits and rose to the level of a denial of FAPE. See C.F. v. New York City Dept. of Educ, . No. 11-5003-CV 2014 U.S. App. Lexis 4085 (2d Cir. March 4, 2014).

For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommended program. Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parents satisfied their burden of proving provides with educational instruction specially designed to meet his unique needs specialized academic instruction in small classes, with students who have a similar learning profile. He receives daily one-on-one instruction, focused on his weaknesses in decoding, encoding and writing. The school provides multisensory instruction as recommended in the private . During the current school made progress in decoding, spelling, writing and in math.

I credit Mr. language deficiencies are addressed as part of the curriculum, which includes 90 minutes per day of instruction with Ms Degree in Reading and certification in literacy. Therefore, I do not find that the school’s failure to provide SLT renders the placement inappropriate.

While the parents are not held as strictly to the standard of placement in the least restrictive environment as a school district, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. M.S. v. Bd. Of Educ., 231 F. 3d 96 (2d Cir. 2000). While I agree with the DOE that the restrictiveness of the parental placement is a concern, particularly in light have met education needs, I do not find that the restrictiveness of the placement should defeat an award of tuition reimbursement. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000).

The record indicates that the parent participated in the CSE review and voiced her concerns, shared the private evaluation, provided 10 day notice of her intent to enroll , and otherwise cooperated with the CSE. The tuition charged is reasonable, taking into account the specialized nature of the instruction provided.

Order

Therefore, it is hereby ordered that the DOE shall reimburse the parents for their payment of $500. toward , for the 2013-2014 school year and pay the balance owed under the contract ($52,050) directly to the school. Dated: July 28, 2014

Dora Lassinger mv

DORA LASSINGER, ESQ.

Impartial Hearing Officer DL;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

PARENT

A Parent letter, dated 5/30/13, 2 pages B Parent letter, dated 8/15/13, 2 pages C Parent letter, dated 9/23/13, 3 pages D '13-'14 enrollment contract, 2 pages E '13-'14 class schedule, 1 page F '13-'14 Attendance record, 1 page G progress report, Fall '13, 9 pages H progress report, Winter '14, 8 pages I Parent's Income Tax Return dated 2012, four pages J Affidavit of Payment dated November 13, 2013, one page K Proof of Payment, various dates, two pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 1/31/14, 3 pages 2 Due Process Response, dated 2/13/14, 4 pages 3 IEP, dated 6/19/13, 13 pages 4 eval, dated 5/24/13, 14 pages 5 IEP, dated 6/14/12, 18 pages

HEARING OFFICER

I Pre-hearing conference summary, dated 3/5/14, 1 page II Case follow up sheet, dated 3/4/14, 1 page III Signed subpoena, dated 4/25/14, 3 pages IV Case follow up sheet, dated 5/16/14, 1 page V 6/11/14 Case Follow-up Sheet, 1 pg. VI 6/27/14 Case Follow-up Sheet, 1 pg