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 24, 2014

July 25, 2014

Actual Record Closed Date: August 25, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2014

Attorney — Student

CSE District Representative — DOE

Teacher Assigned A — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2014

Attorney — Student

Law Clerk — Student

Parents

Parent (Via Telephone) — Student

Program Director, — Student

Special Education (Via Telephone) — Student

DOE

Representative, CSE — DOE

Department Representative — DOE

Chairperson, (Via Telephone) — DOE

The parents filed a request for an impartial hearing on May 5, 2014, seeking funding for the student’s placement for the 2013-2014 school year.^[1] I was designated to hear this matter on May 8, 2014. An impartial hearing was held on July 24 and July 25, 2014. The compliance date was extended on two occasions, due to the unavailability of witnesses and extensive testimony. The final compliance date is September 19, 2014. (IHO Ex. I, II, V).

Evidence at Hearing

(also known

Mr , testified that received , and then entered a preschool which was state approved. She began in the 2012-2013 school year, after the parents received a placement . 166-169, 182). and timid. On academic testing, . Her

In a progress report dated January 2013 teacher described her modeling to . The report describes her progress a nickel. It was noted that a was helpful for to acquire handwriting skills. (DOE Ex. 7).

in following one and two step directions; and answering questions about pictures and stories intervention at the current mandate was recommended. (DOE Ex. 9).

that she ; and that she presents with severe gross stairs in an alternating pattern without support from both upper extremities. She recommended increasing her PT to three times each week. (DOE Ex. 10).

A Committee on Special Education (CSE) review was held on March 5, 2013. The participants in the meeting special education teacher, who also served as the district representative, therapist participated by telephone. (DOE Ex. 3, Tr. pp. 9-10). Ms. Tepfer did not join the meeting until the end, when the CSE realized that it goals, which were provided over the telephone. (Tr. p. 200).

Mrs. . testified that the CSE review team discussed ’s current levels of performance and her goals for the coming year. The CSE recommended a class size of twelve, . requested discussion . (Tr. pp. 206-208) . that she did not disagree with the Individualized Education Program (IEP) goals. (Tr. p. 204). She testified that in a class of twelve students, at the preschool level; it was with one teacher and four or five assistants. (T rp. 205-206).

Ms. a triennial review. (Tr. p. 14). She education program within a . (Tr. p. 16). The there are classrooms upstairs, on different levels. She testified that the children are up and (Tr. pp. 18-19). The CSE had the progress reports from providers of related services The March 5, 2013 IEP summarized the results of and included information provided by the student’s describes

The CSE recommended goals testified that no math goals were developed, as The IEP of experiencing a strong sense of was provided by the counselor at (Tr. p. 43). For that she school day; including negotiating the stairs reciprocal step patterns. (DOE Ex. 3 p. 4.). The came from the providers participated in the CSE review. (Tr. p. 44). The IEP also included goals of developing reading readiness by matching and final consonant letters; gaining meaning from text at a by retelling an experience or a story listened to in sequence, recalling three details of a story; creating artwork to demonstrate comprehension and answering who, what , when where and how questions from oral stories. (DOE EX. 3 p. 3). , it was recommended that . (DOE Ex. 3 pp. 3-4). Ms. were provided by ’s provider, and that the goal for improving expressive language encompassed ’s articulation difficulty, although articulation is not mentioned in the goals. (Tr. pp. 66-67).

The CSE recommended placement in a special class, with a staffing ratio of and related once per week (DOE Ex. 3). testified that the recommended program could best address ’s academic, motor needs. (Tr. p. 38).

The parent expressed her disagreement with the recommended pointing out that was presently in a p. 46).

Following the meeting, on July 25, 2013, the DOE sent the parents a final notice of recommendation, recommending a special class in a (DOE Ex. 6).

Mr. . testified that he was concerned about the physical (which had also been offered in the 2012-2013 school year) because there were many spiraled staircases, the corridors it to the bathroom on time. (Tr. p. 170; Par. Ex. D). After receiving the site offer for the 2013-2014 school year, he attempted to contact the school; however school had not yet started. (Tr. p. 173).

On August 23, 2013, Mrs. a letter to the CSE reiterating the parents’ concerns regarding the physical environment as being inappropriate for , who has significant also expressed concern about the recommended class size; and stated that she would reenroll and , if the recommended program is not appropriate. (Par. Ex. F). The DOE did not respond to the letter. (Tr. p. 174).

On September 17, 2013, was able to visit the recommended program. (Par. Ex. G; Tr. p. 175). He observed no direct instruction going on in the classroom. He was concerned that would a time; but that could bathroom was ’s class. He felt she would be unable to access it in a timely fashion. (Tr. pp. 176-177). He testified that he did observe that some of . (Tr. p. 184).

On September 30, 2013, he sent another letter to the CSE expressing these concerns, rejecting the IEP; and stating that he will be placing the 2013-2014 school year and seeking funding. (Par. Ex. G).

On September 3, 2013, . signed a contract for the 2013-2014 school year, with an annual , with an addendum requiring the payment for related per week for thirty minute sessions); per week for thirty minute sessions, and counseling once per week for thirty minute sessions. (Par. Ex. O).2 that he was unable to make any payments toward the tuition. The family’s total income in 2013 was $53,768. (Par. Ex. P). The parents are requesting that the DOE directly fund ’s tuition at JCSE. (Tr. p. 181). He feels progressed in all areas during the 2013-2014 school year. (Tr. p. 181).

, the program , testified that she has a New York and a bilingual extension license in Yiddish. (Tr. p. 100). has been a 2012. JCSE is located in a building attached to a mainstream private girls’ school, which is accessed through a hallway. The students enter the mainstream school for lunch, recess, performances and assemblies. is located on three floors. ’s class is on the middle floor. (Tr. p. 103).

During the 2013-2014 school year, the school consisted of thirty-eight students. ’s class consisted of seven students, aged six and seven. The certificate from a two year college. (Tr. pp. 105-106). There were two full-time paraprofessionals in the class. (Tr. p. 108).

Ms. instructed in her morning classes. This included class/news weather; prayer;3 Hebrew reading; social picking things up instructed in Math including calendar skills; reading, handwriting, auditory comprehension; expressive writing, social studies, science and music (and four different subjects, for ten minutes at the end of each day). (Par. Ex. H2; Tr. pp. 156-157). received all of her related services in the morning. (Par. Ex. H1)

is diagnosed difficult to . (Tr. pp. 108-109). She also worked on her sight word vocabulary, . (Tr. p. 110). Ms. was , phonemic awareness and spelling. (Tr. pp. 111, 143). In terms of writing, began the year just learning to form letters. She approach. By the end of the year, she formed letters better, and upon the words she knew. (Tr. pp. 113-114). She could encode monosyllabic words. (Tr. p. 115).

For math, began the school year at an end with basic early addition skills and some , and some were not at an . She was instructed with a variety of approaches, and was taught which included reading and writing numbers, counting by rows, addition with regrouping, clock skills attention improved during the 2013-2014 school year. (Tr. pp. 119-120). ’s language skills were well as with social skills instruction in the class., (Tr. p. 121). directions and in progressed in the area. (Tr. pp. 121-123).

received her related services from licensed providers. (Tr. pp. 126-127). She had to go one flight up or down for her therapies, but was always accompanied on the steps. (Tr. p. 149).

2

This is the level of related services recommended in ’s March 5, 2013 IEP. (DOE Ex. 3).

Prayer consisted of fifteen minutes each day. (Par. Ex. H).

In a progress report dated January education teacher, reported significant progress in reading, to . (Par. Ex. I-1). She also reported progress in math, with skills at an . (Id. p. 2). The teachers (in , the curriculum director, who is licensed in special education) created an educational plan in October 2013; with goals for math, H; N; Tr. p. 126).The teachers collaborate on an ongoing basis with Mrs. and the related services . (Tr. p. 128).

Reviewing the March 5, 2013 IEP, testified that it does not provide an accurate picture of ’s difficulty . (Tr. p. 129). She testified that requires a multi-sensory approach, a . She explained that is would have to include goals for learning phonemic awareness and sight words. Nor were there goals to address ’s articulation and vocal volume. (Tr. pp. 132-133). In addition, there were no math goals. (Tr. p. 134).

She testified that the would not have enabled to receive the small group instruction for reading and math which she required. Nor would it address her significant deficits in successfully understood established goals to area. (Tr. pp. 136-137) She testified that a used to reinforce for attending. (Tr. pp. 146-147). Closing Arguments

In closing, the DOE argued that it provided Free and Appropriate Public Education (FAPE) through a validly ; that the goals were created collaboratively, and that math goals were not needed as was close to grade level in math; and that the recommended class size was appropriate. The DOE argued that the parents’ objections to the proposed site were speculative, as never attended the school. It further argued that the parental placement is inappropriate because it does not provide a licensed teacher, except in the afternoon. The DOE questioned the parents’ assertion that had difficulty with stairs, as consists of three levels and received services on all three levels. The DOE challenged the parent’s 10 day notice, stating that it was not received. 4Finally, the DOE argued that the parents are not at financial risk with the placement, and that the only party who stands to gain from these proceedings Tr. pp. 221-222).

4 The DOE acknowledges, however, that it did receive a 10 day notice from a different party, which it placed in ’s file, and that it did not respond to that notice. (DOE Ex. 13; Tr. p. 88-89; 97-98).

The parents argued that the IEP is deficient because the evaluations were inadequate; that the goals are deficient because there are no math goals, inadequate reading goals and no goals for articulation; that the IEP does not include ’s management needs; that required a smaller class than the that the DOE failed to prove that ’s IEP could be that would be unable to navigate the building at the recommended site. The parents argued that the parental placement is appropriate, citing ’s gains in reading, writing and math; the small school environment and physical support provided. The parents argued that should bar their request for funding. The parents argued that the amount of prayer (fifteen minutes per day) is , and that it should not defeat or reduce an award of tuition reimbursement. (IHO Ex. VI).

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) Appropriateness of the Recommended Program

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, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.

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 Free Appropriate Public Education (“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).

There are several procedural inadequacies in the challenged IEP, some of which are significant. I do not find that the lack of math goals; and the inadequacy of the reading goals were significant, as the academic goals were reviewed with ’s special education teacher and the parent; and desired changes were made and agreed to. was close to grade level in math, at the time of the review, and it was appropriate for the team to are deficient, in that they do not

In addition, I find that the CSE’s failure to describe ’s significant academic management needs (multisensory ; small group instruction; and positive reinforcement) or provide sufficient support for her significant gross motor delays, constituted a denial of FAPE. While the IEP describes ’s severe gross motor delays that prevent

The letters in evidence demonstrate that the parents repeatedly expressed their concerns that it is true that attends a school where she must ascend and descend stairs, I find that the small school and class environment, and the teacher to student ratio that she was adequately supported there. There were no assurances, however, in the IEP or elsewhere in the record, that she would receive similar support in the recommended public school setting.

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). 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). With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. See Green v. New York City Department of Education, 50 IDELR 40 (SDNY 2008), citing Gagliardo v, Arlington Cent. Sch Dist. 489 F. 3d 105 (2d Cir. 2007).

I find that the parents’ decision to continue , was reasonably calculated to meet her unique needs. As described and in the documents in evidence, ’s program consisted of placement in a small, self-contained class of seven students, with similar . was instructed by a certified special education teacher for her academic classes, and progressed in reading, writing and math. She received related services , with licensed providers. The record indicates that the school instituted a token system to address ’s lack of focus. ’s instruction was guided by an Educational Plan, with goals, created in collaboration , a licensed special education teacher. The small school and class environment, and the teacher to student ratio at , assured that ’s were adequately supported so that she could navigate her school environment safely.

While the morning teacher was not a certified teacher, (and only attended a two year college) the record indicates that a significant portion of ’s mornings were spent with related services providers and in social skills instruction, which was guided by an educational plan. In addition, the teachers ; and consulted special education teacher, and the related services providers. progressed in her social pragmatic skills and in her ability to attend. I agree with the parents that the amount of prayer (fifteen minutes per day) is de minimis, and that it should not defeat or reduce an award of tuition reimbursement. Equ ble Considerations The record indicates that the parents cooperated with the CSE by participating in the CSE review, expressing their concerns about the size of the proposed class and school, both at the CSE review and in subsequent correspondence; and by visiting the proposed site. They also provided 10 day notice of their intent to unilaterally and seek public funding. The record indicates that the parents were unable to pay the tuition and seek reimbursement. I find that the tuition charged, including the contract addendum providing additional fees for related services, is not unreasonable, taking into account the specialized nature of the instruction and the small class and school size. Therefore, they are entitled to an award of direct payment of tuition retroactively. See Mrs. and Mrs. A. v. N.Y. City Dept of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011).

Order

For all of the foregoing reasons, it is hereby ordered that the DOE shall directly fund ’s the 2013-2014 school year, ) plus the additional charge for related services of ) for a total of Dated: August 29, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, dated 5/5/14 (4 pages) B Due Process Response, dated 5/15/14 (3 pages) C Letter from parent, dated 7/18/12 (2 pages) D Letter from parent, dated 8/22/12 (3 pages) E Letter from parent, dated 9/27/12 (3 pages) F Letter from parent, dated 8/23/13 (3 pages) G Letter from parent, dated 9/30/13 (3 pages) H 2013/2014 Daily Schedule (2 pages) I Progress Report, dated 1/2014 (2 page) J Progress Report, dated 2/2014 (1 page) K Progress Report, dated 2/2014 (1 page) L Report, dated 2/2014 (1 page) M Report, undated (1 page) N Educational Plan, dated 10/2013 through 6/2014 (16 pages) O Contract, dated 9/3/13 (3 pages) P 2013 Tax Return (3 pages)

DEPARTMENT OF EDUCATION

1 Letter, dated 10/23/12 (1 page) 2 Letter, dated 2/21/13 (4 pages) 3 IEP, dated 3/5/13 (10 pages) 4 Evaluation, dated 2/4/13 (3 pages) 5 Letter from parent, dated 9/30/13 (2 pages) 6 Final Notice of Recommendation, dated 7/25/13 (1 page) 7 Progress Report, dated 1/2013 (2 pages) 8 Report with fax date of 3/8/13 (2 pages) 9 Report, dated 2/2013 (1 page) 10 Report, dated 2/2013 (1 page) 11 Report, dated 1/2013 (1 page)

12 Events Log, printout date 7/17/14 (1 page)

13 Letter from , 8/19/12 (1 page)

IHO

I Pre-hearing conference summary, 6/9/14, 1 page II Case follow up sheet, 6/11/14, 1 page III Subpoena, 7/10/14, 2 pages IV Subpoena , 7/10/14, 1 page V Case follow up sheet, 7/25/14, 1 page VI Parents’ Closing, 8/22/14, 27pp

Footnotes

[1] The parents alleged, among other things, that the challenged March 5, 2013 IEP does not adequately describe the student; that goals were not discussed and are insufficient; and that the IEP is inadequate because it does not include sufficient management needs or contain sufficient supports and strategies. The parents also challenged the recommended site alleging that it does not provide an appropriate peer group; that the physical environment would be too large and overwhelming; and because there would be insufficient support during lunchtime and recess. (Par. Ex. A).