NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 31, 2013
January 7, 2014
January 8, 2014
February 4, 2014
Actual Record Closed Date: February 20, 2014
Hearing Officer: Diane Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2013
District Representative Parent’s Representative
Father
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2014
District Representative Parent’s Representative
Father
(T) Special Education Teacher Assigned — DOE
(T) Asst. Principal — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014
District Representative Parent’s Representative
Father
Laurie Michaels (T) Direction Academy Program — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2014
District Representative Parent’s Representative
Father
(T) English Teacher — Parents
On August 13 2013, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parents’ hearing request asserts that the New York City Department of Education (the “DOE”) failed to offer the Student a free appropriate public education (a “FAPE”) for the 20122013 school year. Specifically, they assert that the recommended site was not appropriate due to the behavior of the students. In the hearing request they also raise other inadequacies with the recommended program (See Exh. A, pp 1-2). They assert that the unilateral placement at is appropriate and request that I order tuition reimbursement.
The first day of hearing was scheduled for October 31, 2013. The parents requested an extension of the decision date to prepare for the case and obtain witnesses. I did not hear back for the DOE on any matter. I granted the Parents’ request and extended the decision date for thirty days to November 24, 2013, after considering the relevant factors, and noting that the hearing request related to a prior school year, and that the delay would not affect the Student or the parties.
The first day of hearing was October 31, 2013. The DOE stated its position that the program and placement site it recommended was appropriate. The District representative also stated that the DOE’s position was that the unilateral placement at was inappropriate, did not meet the Student’s needs, and that she did not make meaningful progress there. The District representative also asserted that the equities favored the DOE in this case (T. 12-13).
The parties both arrived late for the hearing on October 31, due to their participation in another hearing (T. 14). The DOE witnesses were unavailable for a variety of reasons. The DOE requested an adjournment and both parties requested an extension of the decision date. Due to the fact that the hearing could not be completed that date in any case, and the need to schedule additional dates regardless, I agreed to adjourn the hearing so that the DOE could present its witnesses and present them in the order it thought most appropriate. We reserved two dates close together in January. I was cognizant of the fact that the January date was far off. However, I was also aware that the hearing calendar was extremely busy for all involved, and especially in this district. This was not the usual difficulty in working around the schedules of the parties and the attorneys, but an unusual overload of cases in the district. In order to allow the parties’ due process needs to be met, a delay was inevitable. The Student’s placement was not at issue since the hearing related to the prior school year. Although it would represent a delay in resolving the matter, neither party would suffer financially. Moreover, this was the first request for a delay by the DOE. Finally, both parties were in agreement regarding the delay and the extension of the timelines.
I granted the request and extended the decision date for thirty days to December 24, 2013.
We convened for the hearing on the merits on January 7, 2014 and January 8, 2014. At the end of the testimony on January 8, 2014, I was concerned that the Student’s and that it would impact my ability to make a decision on the issues in the case. I requested additional information. Another hearing date was held on February 4, 2014. At the end of the hearing, both parties waived their right to make a closing statement. Ultimately, the report cards and transcript which were submitted on the last hearing date did not contain the detailed information I was hoping for and these documents shed little light on the Student’s functioning.
I was cognizant of the DOE’s concerns regarding my request for additional evidence and was aware both of their arguments that information not in the possession of the CSE at the time of the meeting should not be considered and their argument on the pre-hearing conference call after the January 8 hearing date in which they made a motion for summary judgment. However, my request for additional information was not a result of any conclusion that the Parents had not proven their case. My request was due to a concern that there was inadequate information on the record to fully understand the Student’s needs and functioning. This did not reflect in favor of one side or the other. It could have an impact both on my ability to determine the appropriateness of the program offered by the DOE as well as the program in which the Parents placed the Student. I attempted to address the DOE’s argument regarding attributing knowledge of any of the Student’s needs which the CSE was not aware of at the CSE meeting, but upon reflection, corrected myself in an email in which I left open the question of whether any information would or would not be attributed to the knowledge of the CSE (See IHO Exh. I). I recognized that there were competing concerns in this regard based upon the CSE’s duty to evaluate, and equitable factors relating to the need for the Parents to cooperate with the CSE. In any case, this question was speculative at the time.
On January 8, 2014, the Parents requested an extension of the decision date. I granted that request after considering all appropriate factors, so that the hearing could be completed. I extended the decision date for thirty days to February 22, 2014. The Parents requested another extension of the decision date on January 13, 2014. I granted that request on February 20, 2014, so that I would have the opportunity to review the transcripts and write my decision. I extended the decision date to March 6, 2014.
APPLICABLE STANDARDS
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)). "'(A)dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.. Dist., 554 F.3d 247, 253 (2d Cir. 2009)).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008)).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student)), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04- 046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985)).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT
The Student who has now . The Committee on Special Education (the “CSE”) convened on May 22, 2012 to develop an individualized education program (an “IEP”) for the 2012-2013 school year (See Exh. 1). The Student was classified as having a (See Exh. 1, p. 1), and was recommended in a community school (See Exh. 1, p. 4).
In making its recommendation, the CSE relied upon a School Progress Report, dated February 24, 2012 (Exh. 4). The progress report notes that the Student was able to problems. She had some .
The progress report noted that the teacher estimated that the Student grade level and that comprehension . She was able to comprehend literary concepts and to understand vocabulary given contextual cues. She had difficulty responding to factual and inferential questions related to previously read text. It was and verbal cuing.
The progress report noted that the Student had difficulty organizing and generalizing ideas for written expression. She cues (e.g. graphic organizers).
The progress report noted that the Student had deficits in auditory processing particularly as length and complexity increased.
It was noted that the Student seemed highly motivated to do well academically and became frustrated when faced with difficult tasks. She was receptive to teacher intervention and verbal reinforcement.
The progress report noted that the Student benefits from the small class size and individualized attention . (See Exh. 4).
The IEP noted that the Student’s instructional/functional levels were sixth grade in reading and ninth grade in mathematics (See Exh. 1, p. 8).
On June 8, 2012, the DOE offered the Student a placement in (See Exh. 2), which is also known (T. 109). The Mother indicated on a copy of the final notice of recommendation that she had visited the placement and observed violence in the hallways, and that police were called. She asserted that it was not an environment for learning. She indicated that the Student would be attending and that the Parents would be requesting tuition reimbursement (Exh. D). No additional evidence was submitted regarding this allegation. I note , the Assistant Principal testified that the Students in the class would all have (T. 126). There is no evidence to support any behavioral issues in the class or in the school.
On August 15, 2012, the Parents sent a form letter to the CSE indicating that they would be enrolling the student at (See Exh. E).
, the director of the testified for the Parents. During the 2012-2013 school year she was the associate director of the program. She testified that the program was developed for students with and that the classrooms are smaller and the textbooks and books are modified (T. 145). They have a language consultant, , who helps the teachers modify their lessons for students who are ”. (T. 145-146). She testified that the curriculum is modified in terms of how it is taught, in terms of the speed, how it is presented, and in the materials that are used (T. 168). The teachers at are not certified to teach special education to high school students, however, some were working toward certification (T. 149).
She testified that she has known the Student since 9th grade, has worked with her a lot and last year helped her with some of her projects. The Student was in her office frequently, talking about classes. She observed her in her classroom as well and was in contact with the parents frequently regarding her progress. (T. 147).
The Student did not receive related services at (T. 147). The Student had approximately four students in her English, mathematics and history classes (T. 149, 159160). The language consultant floated in and out of the class (T. 149). She attended general education classes in music and nutrition, containing approximately 12 to 18 students (T. 160).
The history class used textbooks that were a lot easier to read through than the standard curriculum (T. 151). The Student had some weaknesses with breaking up words and decoding and difficulty with vocabulary, with written expression and with generating ideas. Her auditory processing was weak and she required visuals. She had difficulty with words problems in math because of the reading comprehension weaknesses (T. 152).
Half of the Student’s day was attending non-secular classes (T. 162).
Ms. testified that the novels and books they used were modified. They were not the big textbooks. They wanted the students to be able to know the material in the class and “we’re not going to try to overload them with material and books that are very difficult to understand.” (T. 154).
In response to a question regarding the Student’s progress, Ms. testified that the Student year after year (T. 155). In response to a question regarding the appropriateness of a class, Ms. testified that it would have been too large for her. When asked to explain why, she testified that “she was in a smaller class...last year her classes were very small because we, you know, for other reasons, but I can only report on last year.” (T. 156). She then testified that “in that class of four, she still needed the individualized attention that we had—that we gave her.” (T. 156-157). When asked how much individualized attention she required, she responded that “she definitely needed more in her English...and her U.S. class. She definitely needed help with that because I remember specifically working on projects with her.” (T. 157). Despite this testimony, it is clear from the testimony of the Student’s classes during the 2011-2012 school year had ten children in the class. Thus, Ms. ’s testimony, that the Student required such a small class size is not supported.
, the Student’s teacher during the , testified that the Student’s English class contained ten students and one adult. In addition, the language consultant came in several times per week (T. 234-235). During the 2011-2012 school year, the Student had deficits in reading comprehension. She needed “cuing” or “summarizing”. She did better when things were read to her as opposed to her sitting and reading a piece by herself. She exhibited difficulties with writing. She needed some time to talk about things, guidance, a lot of webbing, different types of writing tactics before she could actually get her thoughts down onto the paper. She required instruction or support from Ms. or herself (T. 237).
Ms. testified that she met with the consultant to try to figure out different tactics that would work and different ways to help her improve either on her comprehension trying to find different books or different methods that they could use to encourage her to read and make success in reading as well as writing (T. 242).
They worked with her to help her realize important details to help her find the main points (T. 243). She testified that the special education she provided was “with the modeling and the graphic organizers and the summarizing skills that we taught the kids...and working on their organizing skills in general.” (T. 249).
When asked why the Student did not pass the English regents grade, Ms. testified that the difference in class size between grade and grade was a “drastic change”. She became more vocal in the smaller classroom and more confident in asking questions as (T. 251). she and say “I
She prepared the Student for her regents exams by summarizing the books and working on the writing (T. 252) as well as doing regents review (T. 252).
When asked what interventions were in place to assist the Student in her learning process, she responded: “I believe speaking with Ms. together we definitely tried to give her certain work that would help her increase her I guess her chances at success.” (T. 255).
Again, when asked what happened when the Student was not able to understand something, she responded: “I would give the students work to do at home. They came in. We reviewed the work. So if they didn’t get it at home, hopefully they got it in class. They also took notes in their notebooks. Those notebooks were collected to make sure that the kids were taking notes, that their notes were up to par. Are they missing something? What are they missing? Those things were also stuff that I would take and look at and use to help me to figure out where the students were I guess academically in the class.” (T. 257-258).
DECISION
The Program Offered by the DOE
The Parents assert that the IEP is deficient in that the goals were not measurable to a particular grade level or age level and use the immeasurable word “improve”. A review of the goals indicates, however, that the goals are specific in terms of their objectives. The reading goals refer to using context clues in the reading of 20 sight words and to drawing conclusions and predicting outcomes. The mathematics goals refer to solving fifteen division problems of a three digit dividend by a two digit divisor and by creating a graph or chart in order to solve ten multi-step word problems with 80% accuracy. The writing goal relates to taking notes to record and organize relevant data, facts and ideas and use notes as part of prewriting activities. (Exh. 1, pp. 3-4). I find that these goals are specific enough to guide the teacher regarding the Student’s instruction.
The Parents also assert that the CSE failed to draft annual goals relating to deficits noted on the Student’s IEP, including deficits in auditory processing and frustration when faced with a difficult task. A review of the IEP indicates that the CSE included in the Management Needs section “small structured setting”, “praise and encouragement”, “verbal and visual cues”, “repetition, refocusing and rephrasing”. Praise and encouragement would be strategies to address the Student’s frustration. Addressing the Student’s academic deficits by using repetition, refocusing and rephrasing, verbal and visual cues and providing the attention and predictability of a small structure setting are designed to address the Student’s frustration as well as difficulties dues to auditory processing deficits. I note that Ms. testified that the Student needed visuals and rephrasing to compensate for her auditory processing deficits (T. 152, 177-178). This was provided in the Management Needs section.
The Parents assert in the hearing request that the CSE was improperly composed in that the parent member left to attend another meeting. However, they did not testify regarding that fact or provide any evidence to support it. Moreover, although the regulations in effect at the time of the CSE meeting required the presence of a parent member unless waived by the parent, the absence of such parent member does not automatically render the IEP inappropriate. In this case, the Parents had attended CSE meetings for the entire career of their twelfth grade student, and were able to participate at the meeting. There is no evidence that any period of absence of the parent member had any effect on the development of the IEP. (See, for example, State Review Officer Decision, Appeal No. 12-226).
The Parents assert that the IEP does not include a statement of the Student’s present level of academic achievement and functional performance, including specific, measurable, individualized information about the student’s needs. They note, for example, that there is nothing in the IEP relating to the Student’s grade level in writing or regarding her auditory processing.
The IEP describes the Student’s academic functioning in mathematics, reading and writing; and describes her auditory processing functioning. It notes that the Student’s math level was estimated to be at a grade level. She was reported to be able to grasp basic mathematical concepts but has some difficulty decoding multi-step word problems, In reading, the teacher estimated that her decoding ability was at level while her comprehension was on a level. She was reported to be able to comprehend literary concepts and was able to understand novel vocabulary but had difficulty responding to factual and inferential questions related to previously related text. In writing, it was reported that the Student had difficulty organizing and generating ideas for expression. She was reported to present with particularly as length and complexity increased. Semantic content was somewhat limited (See Exh. 1, p. 1).
I disagree that the description of the Student’s functioning in writing is deficient. It provides a clear description of her deficits in that area. Further, there is no disagreement with the writing goal. Thus, the teacher would be appropriately guided in providing instruction in the Student’s areas of deficit in writing, both based upon the description of her functioning in writing in the Academic Achievement section and in the goal
I also disagree that the description of the Student’s auditory processing deficit is deficient. It notes the specific effect of her auditory processing relating to the effect as length and complexity increases. This is the type of information that will help guide the teacher in providing instruction and relates to the management needs recommended. Taken together, the teacher is on notice of the need for verbal and visual cues and repetition, refocusing and rephrasing, especially as length and complexity increase.
The Parents assert that the IEP does not specifically note how a class would meet the Student’s needs. The staffing ratio is the setting in which the CSE determined that the needed services set forth on the IEP can be provided. It notes that the Student’s academic weaknesses could not be addressed with SETSS alone (See Exh. 1, p. 9) and that a small structured setting is needed (See Exh. 1, p. 2). An IEP would not be expected to explain how the class would meet the Student’s needs. It was simply set forth what was being offered..
With respect to the staffing ratio, Mr. testified that the team offered the class based upon the recommendation of Ms. , that the Student should continue in a small class to address (T. 43). He did not recall any objection from the Parent or Ms. as to the recommendation of a placement (T. 44). No one else who attended the CSE meeting testified at the hearing and there was no evidence regarding any objection to the class size.
I find that the recommendation of the CSE was reasonably calculated to provide educational benefits to the Student.
THE PROGRAM AT
The Program at is intended to be for students with learning disabilities (See Exh. B, and K). The current director, Ms. , has a degree is pathology and a license to teach students with disabilities (T. 144). The program has a language consultant who is a licensed speech therapist. She goes into the school and helps the teachers modify their lessons for those children that are having weaknesses (T. 146). Thus, the program assumes that the skills of a speech language provider or one licensed to teach students with speech and language disabilities is able to develop and provide services for students with learning disabilities. The language consultant, Ms. went in and out of classrooms, helping the students and the teachers. It is not clear what credentials she had to do this with respect to students with learning disabilities, rather than students with disorders. It is also not clear that she was successful in developing useful strategies and interventions. The Student has been classified as having a (See Exh. 1). There is no evidence that she has a speech and language disability. report from November 2010 notes that in 2007, the Student underwent a evaluation due to ongoing academic difficulties and did not qualify for speech therapy (See Exh. 5, p. 1). The Student’s psychological testing from November 2010 indicates that her verbal and performance scores were both within the borderline range and there were no significant differences noted in the way in which she processed materials. Scatter suggested that she may be capable of higher functioning and that over the years her IQ scores have diminished (Exh. 5, p. 2).
I am also troubled by the testimony of the witnesses , as well as by the documents prepared by . There are numerous inconsistencies between testimony regarding the Student’s reading level both within the testimony of Ms , and between the testimony of Ms. and Ms. . Moreover, the reading levels set forth in the progress reports are logically inconsistent with one another.
The testimony of Ms. indicates that the Student was reading at a tenth grade level at the beginning of the 2012-2013 school year, but was having difficulty with decoding, vocabulary, and inferences. Ms. testified that “I would like to think” that her reading level at the beginning of twelfth grade was between (T. 238). She later testified that her reading comprehension was at an level (T. 280). Her decoding skills “definitely” were a little bit better than her comprehension skills so she was able to “maybe mask” some of the deficits a little bit (T. 239). She later testified that her reading comprehension was at the (T. 280). She testified that “she probably went up a year” at the and the beginning and was then at the tenth grade level (T. 282). It appears that Ms. was confused and did not recall her testimony on page 238 of the transcript in which she testified that the Student’s reading level was at the eighth or ninth grade level at the beginning of , and now testified that it was a year higher
Comparing the testimony of Ms. and the school progress reports, there is a variety of contradictory evidence regarding the Student’s reading levels during the eleventh and twelfth grades. The school progress report from February 24, 2012, when the Student attended , indicates that the Student was level and that reading comprehension was at a sixth grade level (See Exh. 4). Eleven months later, on January 23, 2013, when the Student was in her reading was estimated to be at level. It is not clear whether this is is several years behind grade level will improve by two or three years in eleven months. Moreover, these grade approximations are all different from what Ms. reported. Ms. testified that the Student was reading at the in and Ms. ’ testimony included estimations that varied from .
I am also concerned about the lack of clarity, specificity and consistency of the program descriptions both in the written documentation and the testimony of the witnesses. The program description in Exhibit B indicates in one place that the selfcontained class has a maximum of ten children. It indicates that “presently” one selfcontained class consists of eight children. Exhibit K indicates that the self contained class has a maximum of 13 children. It is not clear from these descriptions has a philosophy regarding the number of children per class and why the class limits vary. The same inconsistency is present in the evidence regarding the class size of the Student. During the 2011-2012 school year she was in a class of ten students. The following year, she was in a class of four students. No rationale was provided for this change. It is not clear whether she needed the particular class size in which she was placed or whether the class size was based on other factors such as the number of students enrolled in the program.
The testimony of the witnesses also lacks consistency and specificity and does not paint a clear picture of the services provided to the Student or how the Student was expected to address . There is no evidence that the teachers had the background or training to provide consistent and needed strategies to the Student or that they did so. There is no testimony that indicates that the teachers tailored their instruction so that the material would be presented in a way that the Student could understand or that the Student was provided strategies in such a way that she could be expected to remember them, build upon them, and make independent progress. Rather, the testimony provides a picture of a program which is a hodgepodge of services which attempt to remedy the Student’s confusion as it arises rather than provide her with the tools and the appropriate level of instruction so that the teaching is clear and she could improve in her learning independence without constant individual help outside the classroom. Ms. Michaels testified that the Student frequently came to her for help.
Mr. testified that repetition, refocusing and rephrasing, as set forth in the management needs section of the IEP, are techniques that a good teacher will always use to enhance learning (T. 74). They are specifically listed as necessary for this Student and would address her learning needs and her auditory processing issues (T. 74-75). Mr. testified that the teachers in the self-contained classes in the public school work closely with the students and make an effort to differentiate, to ensure that they are meeting their IEP goals and that the materials that they are getting are suitable them to make progress
(T. 110). There was no clear testimony from Ms. regarding the use of any strategies in general or in particular, of the strategies set forth on the IEP or mentioned by Mr. .
The progress reports from the eleventh and twelfth grades both indicate that the Student benefits from repetition, praise and encouragement, individual support, and visual cues (See Exh. G and Exh. 4). Ms. testified only that she summarized for the student and helped her use graphic organizers and practiced for the regents.
There is no testimony regarding the help that was provided in mathematics. In the progress report for , the teacher indicated that the word problems. The teacher writes: “She benefits from (See Exh. G). It is unclear how verbal repetition and visual cues can satisfy all her needs in working on mathematics word problems. The IEP provides that the Student will improve math problem solving skills by creating a graph or chart (See Exh. 1, p. 4). There is no evidence that this approach was taken at
Nor is it clear how the teachers helped the Student to use strategies to improve in writing other than with the use of graphic organizers. While a graphic organizer is a tool, it does not teach itself and the teacher must provide instruction and support to help the student learn to take notes. to record and organize relevant data, facts and ideas and to use notes as part of prewriting activities (See Exh 1, p. 4). The Student needs to learn to use these strategies on her own. At it appears that she was provided with help in a kind of trouble shooting manner rather than as consistent instruction to help her progress.
When asked whether she had any interventions to assist in the Student’s learning, Ms. testified without specificity, saying only that she spoke with Ms. and Ms. and they tried to give her work that would help her increase her chances of success. (T. 255). She was asked again what she did when the Student was not able to comprehend what she was reading. She answered vaguely that she gave her work to do at home and reviewed it and reviewed her notebooks to see what she was missing. However, there was no testimony regarding strategies (T. 257-258).
Ms. testified that the Student was being instructed with a simple text rather than a grade level text. Novels were not provided in their usual format but were provided in a simpler text. I find that this combination of testimony is inconsistent. If the Student were reading at a tenth grade reading level it is surprising that she would need simple texts. Conversely, if she were able to read at a tenth grade reading level, she would not be challenged appropriately by being provided simple texts rather than being instructed with the richness and sophistication of the core curriculum.
Moreover, although the lack of progress is not evidence in itself of an inappropriate program, there is little evidence that the Student’s deficits have improved aside from the general statements regarding increased reading level, which I find unreliable. The school progress reports indicate little change other than a change in estimated math and reading levels. Yet, I find these levels hard to credit. I note as well, that Mr. testified that the team found it hard to believe that the Student was functioning at a ninth grade level as reported by when she had been found to be at level when tested on the Wechsler Individual Achievement Test – Second Edition in her psychoeducational report in November 2010 approximately 1 ½ years earlier (See T. 81-82 and Exh. 5, p. 3).
The description of the Student’s functioning in mathematics in the progress reports did not change from one year to the next (see Exh. 4 and Exh. G), aside from assigning her a higher level in mathematics. The Student continued to have difficulty with multi-step word problems and applying acquired concepts to solve problems. It is not clear that she had made any progress in that area or why she was assigned the grade level she was assigned.
In reading, the progress reports continue to note that she has difficulty responding to factual and inferential questions related to previously read text. There is no indication that the Student had made progress in that area.
In writing, the Student continued to have difficulty generating and formulating cohesive ideas for written expression. There is no indication that the Student had made progress in that area.
In the realm, the Student appeared to fare less well in twelfth grade than in eleventh grade. In the earlier year, it was noted that when faced with difficult tasks, she became frustrated but was receptive to teacher intervention and verbal reinforcement. In the subsequent year, she was said to become frustrated when faced with challenging tasks and only inconsistently responded to (See Exh. G and Exh. 4). The Student’s more intractable frustration is evidence of a program that is not meeting her needs.
I cannot credit that the program at was reasonably calculated to meet the Student’s needs. I therefore find that the Parents failed to meet their burden of proof that the program at was appropriate.
EQUITABLE CONSIDERATIONS
I also note that equitable factors would have played into a decision in this case had there been a finding that the program offered by the CSE was not appropriate and had there been a finding that the program in which the Student was placed was appropriate. The Parents sent a handwritten note on the final notice of recommendation to the CSE in which they asserted that the school site was inappropriate. They did not challenge the program recommendation itself. Later, in a form letter composed on the letterhead of the Parents’ advocate, the advocate and the Parents indicated that they were providing ten day notice as required by law. However, they did not specify any specific concerns with the program recommended by the CSE in that letter. Thus, the CSE was not on notice of the particular concerns that the Parents may have had with the program and would not have been able to address those concerns. Thus, the Parents should not be able to rely on any flaws in the IEP at this point when they failed to raise those concerns with the CSE either at the meeting or after the meeting. There is no evidence that such concerns were raised at the meeting.
I therefore deny the Parents’ request for tuition reimbursement. Dated: February 21, 2014
_______________________
DIANE COHEN, ESQ.
Impartial Hearing Officer DC ;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 RECORD ON OCTOBER 31, 2013
DOE Exhibits Date of Exhibit No. of Pages
1. IEP 5/22/12 10
2. FNR 6/8/12 1
3. [Intentionally Omitted]1
4. School Progress Report 2/24/12 1
DOCUMENTATION ENTERED INTO RECORD ON JANUARY 7, 2014
Parents’ Exhibits Date of Exhibit No. of Pages
A. Hearing Request 8/12/13 [5]
B. Program Description Undated 1
C. [Intentionally Omitted]
D. FNR with Parent response 6/12/12 2
E. Ten Day Notice 8/15/12 2
F. Class Schedule Undated 1
H. Affidavits of Payment 10/15/13, 12/15/13 2
I. Proof of payment Various 12
J. Enrollment Contract Undated [1]
DOCUMENTATION ENTERED INTO RECORD ON JANUARY 8, 2014
DOE Exhibits Date of Exhibit No. of Pages
POST-HEARING DOCUMENTATION
IHO Exhibits Date of Exhibit No. of Pages
I. Email from IHO to parties 1/9/14 1
II. Email from IHO to parties 2/20/14 1
Footnotes
[5] report 11/15/10 3 DOCUMENTATION ENTERED INTO RECORD ON FEBRUARY 4, 2014 Parents’ Exhibits Date of Exhibit No. of Pages G. School Progress Report 1/23/13 1 K. Program 1/13/14 1 L. [Intentionally Omitted] M. Report Card 2011 1 N. Report Card 2012 1 O. Transcript 2010-2013 1
[1] An exhibit was originally entered into evidence as exhibit 3 on October 31, 2013. However, it was removed from evidence on 1/8/14. See T. 138).