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: October 29, 2012

January 7, 2014

Actual Record Closed Date: February 24, 2014

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2013

Attorney — Parents

Mother — Parents

Law Student Interpreter Interprter — Parents

Attorney — DOE

Special Ed Teacher — DOE

Adm. Ass’t Superintendant ASL Interpeter ASL Interpreter Observer — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2014

Attorney — Parents

Mother — Parents

Law Student Interpreter Interprter Interpter — Parents

HES Provider — Parents

Attorney — DOE

Special Ed Teacher — DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f) (3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case . The hearings were 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 July 5, 2013. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its attorney Esq. and the parent was represented by their Attorney Esq.

BACKGROUND

The student is currently a old male who is classified with a disability 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 Parent filed for an impartial hearing on July 5, 2013, after a DOE administrator sought to remove HES from the Student’s IEP (see Ex. EE, FF, GG, HH and Tr. 21-23). Additionally, the Parent invoked “pendency,” in order that the Student would continue to receive during the course of the proceeding, including summer services.

The Student has a and is aided by (Ex. I, p. 1; Ex. J, p. 1). Due to the child’s disability, his primary mode of communication is , hereinafter referred to (Tr. 138). Since his initial enrollment in program, he has attended the Lexington School for the hereinafter referred to as ”; the school is a state-supported (Tr. 213) and classroom in The issue to be determined is if the CSE deprived the of a Free and Appropriate Public Education (FAPE) by the removal from the student’s IEP (See Ex. EE, FF, GG, and HH).

THE PARENT’S POSITION

The Parent, hereinafter referred , alleges that the “DOE” failed to offer the child a FAPE in compliance with the Disabilities Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983. More particularly that the IEP, dated May 17, 2013, was not designed to provide more than trivial advancement and the CSE failed to adequately assess, consider and address the Student’s needs with regard to the need for continued .

The Parent is seeking an order to restore the related service of to the Student’s educational program for the remainder of the 2013-2014 school year; to consider the findings and recommendations of the September 27, 2013, independent educational evaluation report of Dr. and to revise the Student’s annual goals, and program if they determine that such revision is warranted.

THE DEPARTMENT’S POSITION

The DOE maintained that an IEP meeting was conducted and that a duly constituted team, considered all the reports and recommended an appropriate program. It was the DOE’s contention that the parents had been offered an appropriate program and that the student does not require . to make progress that the claim should be denied.

THE DEPARTMENT’S CASE

After being duly sworn, testified that she has a master’s degree in School Psychology and a NYS license as a school psychologist. She is currently employed by the NYC DOE as a school psychologist and works ; she was previously employed at Lexington (Tr. 21-213). She stated that ’s promotional criteria were appropriately modified in consideration of where he was currently functioning academically. (Tr. P. 219, 25- P. 220, 7; P. 221, 6- P. 223, 2). While the due process complaint, hereinafter referred to as a DPC suggests that the student’s promotional criteria is evidence of how far behind grade level he is, the reality is that his promotional criteria was not significantly modified at all. stated that standard promotional criteria for a general education student without an IEP are only 65% to pass. (Transcript, P.219, 6-10); ES’s criterion is 45% in ELA and 50% in math. (DOE 3-12).

Ms. testified that the academic goals were largely drafted by the student’s current teaching staff who are familiar with how he is progressing, what he needs to work on. Additionally, goals were drafted by his current service provider. (Transcript, P. 104, 14-22).

Mr. stated that the IEP was drafted in consultation with all of his teachers and that they considered his classroom work and his formal assessments. (Transcript, P. 90, 122, P. 92, 12-21). Furthermore, Mr. indicated that although the mother had voiced her concerns about her child’s current functioning levels, she did not disagree that the goals were consistent with his current functioning level and that this was discussed at the meeting. (Transcript, P. 106, 14-17; P. 93, 6- P.5). Mr. explained why the goals were appropriate for ES and described how they were to be measured. (Transcript, P. 95, 25). He testified that based upon his knowledge that he would make progress if he was educated pursuant to the IEP (Transcript, P. 112, 8- 15). Mr. also testified on two separate occasions that while additional support is beneficial for the student, he did not require it to make progress. (Transcript, P. 111, 16- P. 112, 17; P. 195, 21- P. 197)

Ms testified that the IEP goals were appropriate and that his mother did not disagree or raise objections during the meeting. (Transcript, P. 217, 19- P. 218, 10). She also stated that based on all the information reviewed was making “excellent progress.” (Transcript, P. 224, 8); Mr. testified “you can see his progress (Transcript, P. 87, 24-25). Ms. maintained that there was extensive testimony as to the reasons that was not at grade level despite his average academic potential. Both Mr. testified as to the ways that the student’s hearing impediment compromised his learning. Ms discussed how learn to . (Transcript, P. 221, 19- P. 222, 10). Mr. Schneiderman stated that a is significantly compromised if they are not exposed to to the age of 3 (Tr. P. 77, 2- P. 78, 3).

was adopted from and came to the United States with no communication skills. (Parent’s H-2). Mr. Schneiderman described the way that ’s is directly related to his does not have a basis in phonics that a . (Transcript, P. 78, 4- 79, 2). Additionally, the syntax for English is different than for which also makes learning to read and write more difficult for a deaf person (Transcript, P. 186, 13- P. 187, 22). The DOE counsel opined that although the Parent dismissed the notion that the fact that her son didn’t learn to talk until he was four as something that only affected him in the “short term”, that this was contradicted by the testimony of professionals. (Transcript, P. 290, 6).Ms. also opined that the Parent’s testimony that “Just because is no reason to have low expectations. I am deaf, I succeed” is not can be performing at a higher level (Transcript, P. 293, 1823).

The DOE’s counsel noted that the DPC alleges that the CSE failed to consider or discuss this is not supported by the testimony. Ms. testified that the possibility of continuing was discussed and that she believed they were not necessary for him to make progress. (Tr., P. 229, 4- 14; Tr. 229, 21- P. 230, 9). This testimony is corroborated by her contemporaneous notes as well as Mr. ’s testimony. (DOE 4, Transcript P. 174, 4- 8). Ms made clear that if she and had felt that it was necessary they would’ve recommended it, but they didn’t feel it was necessary for to make progress. (Transcript, 229, P. 4-6; 15-20; P. 229, 21- P. 30- 9). Ms. stated that this opinion was shared by Mr. and that there is no evidence that . to make progress . DOE’s counsel stated that the parent suggests that he requires . to make progress when compared to peers without special education needs. This is not the standard upon which an IEP and a special education program should be judged.

Ms testified that she believed that she had sufficient information to consider ; she indicated that the parent indicated that she did not want to reconvene so that the . provider could participate (Transcript, P.216, 14-24). Additionally she testified that nothing in the reports that were supplied after the meeting changed her opinion. (Parent’s KK, LL, P. 230, 20-24). Counsel also stated that the Parent’s testimony was that she felt no duty to invite the providers to the meeting is evidence that she was not really participating in good faith. (Transcript, P. 294, 10-12).

The DOE alleges that Ms s testimony does not support a finding that the student requires . More particularly, she was unable to describe the student’s progress; she relied on her own notes and did no formal assessments or progress reports. (Transcript, P. 317, 7-16; P. 318, 6). Furthermore, while she claimed that she was familiar with the work she conceded that she had no communication with and that her information was based on what she received from the student and his mother. (Transcript, P. 322, 15-16; P. 325, 19-23).

Ms. s testified that the grade level work that she was over his head, that he could not do it and that (Transcript, P. 117, 20- 188). She conceded that while was making , he was not making progress in the work that she brought him (Transcript, P. 326, 4-7). Ms. stated that there was no evidence to establish benefitted from the additional work. Mr testified that indicated that he was familiar with new material from his work ”, that he was unable to explain or use the new material which suggested that he was not able to generalize the more advanced work without the facilitation . (Transcript, P. 108, 1- 14).

It was also argued by the DOE that there that the higher level work made the student with his own functioning levels. However, both testified that s self confidence went up when he felt that he knew the work and that he got very upset he felt he did not understand or Transcript, P.98, 15-20; P. 100, 1- P. 102, 10; P. 335, 221-221). Furthermore, Ms. maintained that it is uncontroverted and . Ms explicitly testified that she thought the additional pressure of outside work was not appropriate for him. (Transcript, P. 230, 5-9). Finally, it was noted that the mother’s own testimony supports a finding that the additional academic pressure on was not appropriate, as she testified that he and worried that “If I’m not (Transcript, P. 301, 14-17).

The DOE argued that neither Ms nor the parent testified as to how many hours would be appropriate. Additionally, the record is not clear as to the amount of services that was currently receiving. Furthermore, while the student’s prior IEP indicates that he was receiving three hours per week, Ms for an hour and a half a week (Parent’s F-12, Transcript, P. 320, 22- P. 321, 310 and DOE-1)

The DOE maintained that the H.E.S. provider was not providing H.E.S services and actually providing tutoring services; that H.E.S as a related service is intended to provide instruction to students in speech reading, auditory training and language development. It is intended to “enhance the growth of receptive/expressive communication skills.” (DOE 8-1). the Administrative Assistant Superintendent for Clinical and Support Services for District 75 testified that she has direct oversight over the . (Tr. P. 34, 5-7; 19-23) and that the purpose of was “to support students in their instructional program"(Tr. P. 36, 9-11). Additionally, while is provided to students on an individual basis, generally it is recommended for students who and not for student’s who is being educated in a school specifically . (Tr. P. 37, 2-8l; P. 40, 8). Ms. stated that the purpose is to facilitate a student in accessing the curriculum of their school. (Tr.

P. 40, 20- P. 41, 4). She stated that if a student was not being sufficiently challenged in their learning environment, or was not being exposed to certain aspects of the standard curriculum, that were not the appropriate remedy (Transcript, P. 42, 11- P. 43, 15). She testified that while is a special education teacher by training, that their role is not to “teach the curriculum…”. Ms. testified that she was introducing completely new topics not covered by Lexington. (Transcript, P. 43, 14-15, P. 44, 5-11; P. 317, 3-6). Furthermore, Ms. written letter suggests that she works on actual hearing education skills as opposed to just introducing new academic topics, however, her testimony made clear that this was not the case. (Parent’s LL-1, Transcript, P. 315, 13-15).

The DOE argued that the evidence is clear that the work provider is not actually but rather . teaching support. Additionally, he and his mother refer to provider as his tutor. (Transcript, P. 107, 5). It was clear from Ms. that the provider was giving “academic support to help him meet state standards.” (P. 274, 12-14). Ms testimony established that s “atypical” from the student she normally works with and that none of the other student’s she works with has ever attended special programs for the deaf. (Transcript, P. 320, 330 and 331).

It was also the position of the DOE that the Parent’s desire for to be at grade level is not realistic and does not need to follow all aspects of the common core. Mr. testified that while utilizes the common core, the standards have to be modified depending on the functioning groups of the students (Transcript, P. 84, 17- P. 85, 17). He also stated that even though the student , there are many factors that contribute to his being below grade level which is related to his early childhood and to the fact that he did not gain speech until coming to America at the age of four (Transcript, P. 87, 8- 88, 4). The Parent testified that came to her with “no language foundation at all.” (Transcript,

P. 270, 12-17). Although the Parent disagreed with the suggestion was somehow not “caught up” her testimony that is not yet 100% fluent in which is his primary mode of communication (Transcript, P. 135, 3-5).

The DOE maintained that the parent’s suggestion entitled to be exposed to all aspects of the common core through teaching is simply not a legal right. When she was asked why she feels that he needs the service (HES), her answer was because she wants him to graduate with a regents diploma (P. 286, 1-12). Mr. testified that he is confident that ES will continue to progress. (Transcript, P. 74, 9-13; P. 88, 3-4).

Lastly, the DOE maintained that services and that he does not participate. The student was recommended for twelve month services. (DOE 3-8); the parent chose for him to attend summer camp instead (Transcript, P. 5-18). Counsel asserts that while the summer program is voluntary, the reality is that his mother had the opportunity for ES to receive more academic support and she decided not to take advantage of the opportunity. Likewise, the team felt would benefit from counseling and Ms S did not want it (Transcript, P. 228, 5-10).

THE PARENTS CASE

Parent’s counsel maintained that is the that the Parent has proceeded to an impartial hearing after a DOE administrator sought the removal from the Student’s IEP (Ex. EE, FF, GG, HH and Tr. 21-23).

and is aided by a cochlear implant (Ex. I, p. 1; Ex. J, p. 1); classification is ” and his primary mode of communication (Tr. 138). ES has attended the Pre School and is currently in class. He has no (Ex. H, p. 8; Ex. J, pp. 3-4; Ex. L, p. 2); however his educational program calls for a dramatic modification of the achievement standards in both language arts and mathematics. Mr. maintained that in third grade, the CSE determined that could be expected to meet 80 percent of the state’s curricular standards in both mathematics and language arts (Ex. EE, p. 14). In the ensuing years leading up to the CSE meeting on May 17, 2013, the CSE team lowered its expectations and the promotional criteria to attainment of 50 percent of the state’s language arts curricular standards and 55 percent of the state’s curricular standards in mathematics (Ex. G, p. 17).

ES is significantly (Ex. H, p. 9; Ex. J, p. 5, indicating a reading comprehension level of Grade ; (Ex. L, p. 3), indicating reading comprehension skills at the Grade 3.2 level (Ex. Z, p. 10); indicating a Grade level for vocabulary and a grade level for reading comprehension (Tr. 319). One evaluator noted that the Student “has the potential to learn academically commensurate with his hearing peers,” but that such progress would be possible with “a fairly intensive, one-on-one, perhaps 45 minutes, an hour, a day, working on reading and writing skills.” (Ex.EE). Parent’s counsel maintained that according to a recent IEP that “presents with deafness and oral-language deficits which warrant intense supports, modifications to the general education curriculum and environment to enable progress and full access to instruction and learning.” (Ex. G, p. 4).

Additionally, Parent’s counsel asserts that in the New York State assessment test in Math for 2010-2011, that scored at Level 2 (Ex. M, p. 2) and at a Level 1 in language arts, indicating that he “does not demonstrate an understanding of the ELA knowledge and skills expected at this grade level.” (Ex. N, p. 2).

As per Parent’s counsel, academic support through provided after school and in the family’s home has been a vital part of ’s educational program since third grade (Tr. 274, 275-276). Mr. pointed out that one evaluator documented the Student’s reading difficulties, and indicated that ES “is not likely to keep pace with increasing demands over the next two or three years without more firmly established fundamentals…. Intensive direct instruction will be important in ensuring that [his] academic skills keep pace with his cognitive potential and grade-level expectations (Ex. H, p. 9). Furthermore, s IEP in recent years has included as a service delivered at home after the conclusion of the regular school day. The services involve three hours per week instruction by a certified, DOE -approved teacher who uses ASL as the mode of communication (Tr. 310311, 319).

Ms. that she has worked with the DOE since 1994. She is an provider and worked with ES during the 2012-2013; she also was a former member of the faculty at the testified that “absolutely meets the criteria for services.” (Tr.310, 314, 323)…..“Of course, every kid can benefit from work after school, but not every student requires it. (Emphasis supplied) (Tr. 324).

Mr , ES’s classroom teacher testified that his effort to improve the English syntax was done in a “1:1 setting.” (Tr. 141). In language arts class, the teacher spent “10 to 15 minutes with each individual student.” (Tr. 147). With respect to the rate at which students are expected to acquire new vocabulary, he testified that “I expect them to know about a hundred words by the end of the year.” (Tr. 148). He indicated that he was “unable to recall” the website from which the vocabulary words were drawn and that he did not know how many words per week a student in should be learning, stating, “No. It’s really up to me.” (Tr. 159). In contrast, provider testified that, in her work with the Student, she used “grade-level lessons according to the new common core curriculum.” (Tr. 316).

Parent’s counsel noted that the Student’s educational records include a progress report written by the HES service-provider near the end of the 2011-2012 school year, indicating the sessions “provide the structure, elaboration and reinforcement that he needs to gradually develop more accurate work outcomes” in such areas as English vocabulary and grammar, reading comprehension, and math problem-solving; that progress report include an assessment of his present level of performance, a list of goals and objectives, and a recommendation for the continuation (Ex. P, pp. 1-3).

As per the testimony of Mr. , prior to the meeting of the CSE on May 17, 2013, members of the school staff met to prepare for that meeting, including the math teacher, reading teacher, science teacher, literacy coordinator, and the school psychologist; there was no discussion regarding any possible changes to the Student’s related services (Tr. 167). Those in attendance had no recommendations regarding the to the Student (Tr.169, 170-71).

When the CSE convened on May 17, 2013, the team included, inter alia, , a DOE administrator. The classroom teacher testified that he “wasn’t aware of the student’s HES services until the DOE meeting with ], where she explained everything …...” (Tr. 167). He further stated that during the 2012-2013 school year, he never saw a progress report regarding the Student’s and did not know who had provided to the Student during the 2012-2013 school year (Tr. 171,182,183). Apparently, he learned of for the student from the administrator, who testified that “I don’t even know who they [ providers] are” and that she did not include them among the invitees to the IEP Team meeting (Tr. 246). Ms testified that “I don’t know what they [ service-providers] provided.” Tr. 261.

Mr. maintained that as per the DOE’s due process response, the CSE did not rely upon a social history or social history update in the development of the Student’s program (Ex. B, p. 2, Item 1); did not rely upon a evaluation in its development of the Student’s program (Ex. B, p. 2, Item 2) and did not rely on classroom observation reports in the development of the Student’s program (Ex. B, p. 2, Item 3). Instead, the DOE maintained that the CSE relied on “related service progress reports/evaluations, despite the fact that the ES does not receive occupational therapy, physical therapy, or counseling services as a part of his program of services (Ex. B, p. 2, Item 4). Counsel argued that the DOE failed to assert, in its due process response or by other documents presented at hearing, that the CSE had considered any progress report, evaluation or other recommendation from the provider.

The classroom teacher stated that neither he nor the other members of the CSE team received any HES progress reports (Tr. 172). Additionally, he stated that he did not know the frequency or duration of the provided to the Student during the 2012-2013 school year or what subjects were addressed by service-provider (Tr. 197-198). When he was asked how he concluded that would progress academically in the absence of a service (HES), he stated that his opinion was based upon “many other students like him

(ES) in the past.” (Tr. 201).

The HES provider who serviced the Student during the 2012-2013 school year was not present at the May 17, 2013 CSE meeting (Tr. 173, 318). No staff members from Lexington recommended that e discontinued from ’s program (Tr. 173-174).

Parent’s counsel noted that Ms. “was talking in general in her understanding of the HES services and that she had no first-hand knowledge of the Student (Tr. 215). She failed to receive and reviewed reports from the Student’s service-provider prior to her recommendation on May 17, 2013, to discontinue this related service from the Student’s IEP 9Tr. 216). She admitted that “I don’t know what the provider did. I don’t know that.” (Tr. 262).

Counsel maintained that absent from the classroom teacher’s account of the CSE meeting was any indication that his progress in the program was reviewed or discussed, or any formal or informal documentation that the Student’s academic skills had advanced to the point where were no longer necessary. Neither the classroom teacher nor any other member of the school staff inquired about the matter (Tr. 174) .The classroom teacher recalled that the Parent expressed disagreement with the recommendation, and in response Ms. was “not accepting that.” Tr. 175.

The Parent expressed her view that her son’s educational program at the is insufficient by itself, and are necessary for him to make progress toward meeting the state’s curricular standards (Tr. 284). Additionally, she expressed dissatisfaction with the school’s decision to reduce their expectations for her son, and to reduce the promotional criteria .” Tr. 285. (As per Parent’s counsel, in point of fact, the reduction in the promotional criteria has been even more dramatic that that asserted by the Parent (Exhibits G and EE.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under the Individuals with Disabilities Education Act, the burden of persuasion in an administrative hearing challenging an Individualized Educational Program is on the party seeking relief. See Schaffer v. Weast, 546 US 49, 59-62 (2005). However, under New York State law, the burden has been placed on the school district during an impartial hearing, except in cases in which the parent seeks tuition reimbursement for a unilateral placement. Education Law 4404(1)(c); see M.P.G. v. New York City Department of Education, 2010 WL 3398256, at *7 (SDNY, 2010). To meet its burden of proof, Department must show that the recommendation was reasonably calculated to allow the child to receive educational benefit (Rowley, at 176) and that the program would be delivered in the least restrictive environment for the child. 34 CFR 300.550 (a); 8 NYCRR 200.16(h)(1); 8 NYCRR 200.6(a)(1).

I agree with Parent’s counsel that the DOE has not met its burden in this case. It presented no evaluations to establish that HES were not a necessary component of the Student’s educational program, offered no testimony from teachers or service-providers who were familiar with the services provided to the Student by the provider, and acknowledged that the CSE had not received or reviewed accounts of the Student’s progress while he was receiving the services. The DOE administrator testified that she did not even know who the service-providers were (Tr. 246).

Notably, the DOE offered no defense of the decisions to persistently lower the Student’s promotional criteria over a period of years. It presented no credible evidence that the decision to remove was based on an assessment of the Student’s learning needs. Furthermore, the classroom teacher was unaware that had been provided to the s a related service or that was even included on the IEP. There was no convincing evidence presented by the DOE that the Student’s needs had changed, or that was no longer necessary.

I agree with Mr. , in that a decision to discontinue a particular service – when there is such little information about or understanding of the service in question – can hardly be deemed a determination “reasonably calculated” to provide for appropriate progress. Noteworthy, the Ms. who worked with ES during the 2012-2013 school year testified that qualified for and that the service was necessary for him; she is a full-time employee of the DOE’s program and is employed by the DOE after-school, on a contracted basis to provide .

Ms. has established that the services were necessary and appropriate to meet the Student’s needs. The CSE failed to base its decision services on adequate assessment and evaluation and consideration of the Student’s needs. I also agree with Parent’s counsel and find that the CSE’s decision to from the IEP can only be described as “arbitrary and inconsistent” with the requirements of the IDEA’s requirement that an IEP be tailored to the unique learning needs of the individual student.

The Regulations of the Commissioner of Education provide, in Part 200.5(c)(1), that “Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student’s IEP, or the provision of a free, appropriate public education to the student, the parent must receive prior written notice in writing at least five days prior to the meeting…” In paragraph (2) of the same section, the Regulations require that “Such notice shall (i) inform the parents of the purpose, date, time and location of the meeting…”^[8] NYCRR 200.5(c)(1) and (2) (emphasis supplied).

The Regulations of the Commissioner of Education provide, in Part 200.5 The Regulations of the Commissioner of Education provide, in Part 200.1(oo), that “prior written notice” means “statements developed in accordance with Section 200.5(a) of this Part, and provided to parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a FAPE to the student.”

The record established that the DOE failed to provide the Parent with prior notice that the removal of HES from the IEP would be considered at the IEP meeting; when the question was asked at the hearing, the school administrator initially replied “I don’t know.” (Tr. 248); upon further questioning of the witness regarding her own communication to the parent about this subject prior to the meeting, she said, “That would be ridiculous. Why – how would I – I didn’t – I didn’t know that we were going to discontinue services ahead of time.” (Tr. 249).

I agree with the Parent’s counsel that in light of the classroom teacher’s testimony and the Parent’s, that the administrator was the only CSE member who raised the issue of ; I find that her testimony is “disingenuous”. It appears that the Parent was not provided with notice of the DOE’s intention to propose the removal from the Student’s IEP, in violation of the procedural rights enumerated in the Regulations of the Commissioner of Education.

As per Mr. I find that the DOE’s witness attempts to shift to the Parent the responsibility of ensuring the participation of the DOE’s own service-provider in the deliberations of the CSE. If this were the responsibility of the parent, such responsibility would underscore the importance of knowing – in advance of the meeting – the intentions of the DOE with regard to its meeting agenda, e.g., the removal of a longstanding and vital related service from the Student’s IEP. However, ensuring the presence of all appropriate members is the responsibility of the Department of Education (8 NYCRR 200.3[a]), which in this case did not fulfill its responsibilities in this regard.

Additionally, the central purpose of the Individuals with Disabilities Education Act (20 USC 1400-1482) is to ensure that students with disabilities are afforded a FAPE Schaffer v. Weast, 126 S.Ct. 528, 531 (2005); Board of Education v. Rowley, 458 S.Ct. 176, 179-181, 200-201. A school district fulfills its substantive obligations under the IDEA if it provides an Individualized Education Program that is “likely to produce progress, not regression” and if the IEP affords the student with an opportunity greater than mere “trivial advancement.” Cerro v. Pawling Central School District, 427 F.3d 186, at 195, quoting Walczyk v. Florida Union Free School District, 142 F.3d 119, 130 (2nd Cir., 1998).

I also find that the IEP developed by the CSE on May 17, 2013, was not reasonably calculated to enable the ES to meet his goals and to make more than minimal progress. I agree with the Parent’s position that the gradual and persistent diminution of the Student’s promotional standards over a period of years (e.g., from 80 percent of the curriculum in to only 50 percent of the curriculum in indicated in Ex. G and Ex. EE) reflects an unwarranted lowering of the academic expectations for this Student. The Student’s IEP of May 17, 2013, was not designed to promote more than trivial progress; consistently poor performance on state assessments in language arts and mathematics are another objective indicator that the Student standardized assessments that would indicate that the Student has made more than trivial progress.

The CSE has improperly concluded that provided outside the school day, are not necessary and appropriate for The decisions of the State Review Officer reflect that can and may be provided outside of school and outside the regular school day (Decision of the State Review Officer 09-068 (2009), in which the related services – including Hearing Education Services – were provided to the Student at least in part, by means of related services authorization letters. Likewise, Decision of the State Review Officer 09066 (2009), demonstrates that school districts can provide Hearing Education Services to students outside of the school day by means of contracted services through a related services authorization letter. In the instant case, the DOE has met the Student’s need for Hearing Education Services by providing the necessary instructional support outside the regular school day –through the services of a properly-certified service-provider in the employ of the DOE.

An appropriate educational program begins with an IEP that reflects the results of the school’s evaluation and assessment of the student’s needs. An IEP is deficient when it is not the result of such an adequate assessment. Application of a Child with a Handicapping Condition, Office of State Review, Appeal No. 92-42; Application of a Child with a Handicapping Condition, Office of State Review, Appeal No. 93-1.

In the instant case, the IEP of May 17, 2013, was developed in the absence of any consideration by the CSE of the Student’s needs with . The CSE failed to invite the service-provider to the meeting, nor did she attempt to contact the service-provider by phone during the meeting. Additionally, as stated above, the CSE received no progress report or other written assessment of the Student’s progress in the HES program. It appears that an HES progress report was not issued to the Parent or to the CSE during the 2012-2013 school year. After reviewing all the evidence and based upon the above referenced case law I find as follows:

1. That the removal from the Student’s educational program was done without an adequate assessment, evaluation and consideration of the Student’s individual learning needs; without an understanding of the services actually provided, and without a consideration of the progress as a result of those services and this constituted a denial of FAPE.

2. That the Student’s educational records do not support the elimination from the Student’s educational program.

3. That the DOE violated the Parent’s right to notice regarding the inclusion on the IEP Team meeting agenda regarding the possibility of the from the Student’s educational program;

4. That the DOE failed to provide prior notice of the date, time and place and purpose (including proposed changes to the Student’s program and/or placement)

of the Student’s IEP Team meeting, consistent with the requirements of the Commissioner of Education. Accordingly, I direct the CSE to re-convene within fifteen days of the its receipt of the Hearing Officer’s decision, in order to:

a. restore the related service to the Student’s educational program for the remainder of the 2013-2014 school year;

b. consider the findings and recommendations of the September 27, 2013, independent educational evaluation report of Dr. and draft a new IEP including the annual goals and program, if the CSE determines that such revision is warranted, based upon its review of Dr. evaluation report and current assessments. Dated: March 3, 2014

________________________

GARY PETERS, ESQ.

Impartial Hearing Officer GP;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

DOE

ITEM DATE DESCRIPTION #PAGES

1 7/5/13 Due Process Complaint 6 2 8/20/13 Due Process Complaint 3

3 5/17/13 IEP 15

4 5/17/13 CSE Review Meeting 4 5 4/9/13 Addendum 6 6 3/5/12 Evaluation 7 7 11/26/12 Report 7 8 undated -DOE Website 2

PARENT

A 7/5/13 Impartial Hearing Request 6 B 9/20/13 DOE Response 3 C 10/11/13 Notice of Appearance 1

D 5/26/11 IEP 14

E 5/18/12 IEP 19

F 12/6/12 IEP 19

G 5/17/13 IEP 17

H 10/30/09 report 10 I 1/24/12 Triennial Audiological Evaluation 2 J 3/15/12 evaluation 7 K 4/4/12 Diagnostic Statement- 1 L 4/9/13 Evaluation Addendum 6 M 12/6/11 NYS Math Test results 2010-2011 2 N 12/6/11 NYS ELA Test results 2010-2011 2 O 4/4/12 Progress Report Speech 5 P May 2012 Progress Report 3 Q June 2012 Stanford Achievement Test 1 R October 2012 NYS Math Test Results 2011-2012 2 S October 2012 NYS ELA Test Results 2011-2012 2 T 10/22/12 Mid Quarter Progress Notes 1 U 2012 Report Card (1st quarter) 1 V 2012 Mid Quarter Progress Notes 1 W Jan. 2013 Report Card (2nd Quarter) 1 X 3/14/13 Mid Quarter Progress notes 1 Y 5/3/13 Progress Report for goals/objectives 4 Z 5/24/13 Stan for Achievement test results 1 AA 6/10/13 Mid Quarter Progress Notes (4th Quarter) 1th BB June 2013 Report Card (4 Quarter) 1 CC 7/9/13 Progress Report goals/objectives 4 DD 7/12/13 Lexington Cover letter for Stanford Test results 1

EE INTENTIONALLY OMMITTED

FF INTENTIONALLY OMMITTED

GG INTENTIONALLY OMMITTED

HH INTENTIONALLY OMMITTED

II INTENTIONALLY OMMITTED

JJ 5/20/13 Letter Parent to CSE Chairperson 1 KK 5/23/13 Letter Parent to Provider 2 LL 5/28/13 Letter Parent to Provider 1 MM 6/27/13 Letter DOE to Parent 1 NN 9/1/13 Calendar 1 OO undated Instructional Time 1 PP undated Student Schedule 2012-2013 1 QQ 10/1/13 Evaluation-Dr. 15

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Footnotes

[8] NYCRR 200.1(oo).