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 28, 2013

January 9, 2014

April 2, 2014

April 8, 2014

Actual Record Closed Date: August 27, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2013

of Education: — Student

CSE DOE Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2014

Attorney — Student

Parents

CSE District Representative — DOE

, IEP WITNESS

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 2, 2014

Attorney — Student

Parents

Parents

Director, (Via Telephone) — Student

and Teacher, — Student

(Via Telephone) — Student

Committee on Special Education — DOE

Assistant Principal, — DOE

High School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 8, 2014

ESQ., Attorney — Student

CSE Representative — DOE

Introduction

I was appointed as the Impartial Hearing Officer in this matter on September 10, 2013 after the parent’s attorney filed a demand for an impartial hearing. An impartial hearing to address pendency was held on October 28, 2013 and the hearing continued on January 9, April 3 and April 8, 2014. for the Department of Education (DOE) the parent. A list of the witnesses who testified and the exhibits in evidence are appended to this decision. At the request of the parties the compliance date was extended several times due to the unavailability of witnesses with a final decision date of May 12, 2014.

After I rendered my decision on May 6, 2014, the DOE appealed. On June 27, 2014 the State Review Officer in Appeal No. 14-081 remanded the matter for the Impartial Hearing Officer to determine the merits of additional claims raised in the due process complaint. It was left to the discretion of the IHO whether additional evidence was needed. On July 23, 2014 after a telephonic conference, I issued an Interim Order giving the parent’s attorney until August 1, 2014 to submit a memorandum to specify issues raised in the complaint and addressed at the hearing that were unaddressed in my decision. The DOE had until August 15, 2014 to submit a reply brief. The parent’s memorandum was timely received and is marked as Hearing Officer’s Exhibit I but nothing was submitted by the DOE. I have determined that there is not need to reconvene a hearing for additional testimony before I the joint request of the parties the compliance date was extended to September 24, 2014. DOE’s Case:

The DOE presented two witnesses and five documents as Exhibits 1-5 in support of its recommendations on the Individualized Education Program (IEP) of May 8, 2013: a classification , with related services (Exh. 1). A final notice dated June 18, 2013 offered placement . (Exh. 2).

is a licensed general and special education teacher and served as the general education teacher at the IEP meeting. Also . The team reviewed the recent psychoeducational evaluation (Exh. 4) and incorporated its testing results on the IEP under academic performance. His teacher also reported on the need for redirection and 1:1 attention, issues with penmanship and use of a scribe and these issues were addressed on the IEP under management needs and testing accommodations. The IEP mandated the use of a computer and Academic goals were created as well as post-secondary transition goals. The team considered restrictive a community school as too large and overwhelming. The choice providing a small class with individualized attention that allowed for mainstreaming opportunities with his peers. Neither nor the addition of as a dual mandate were considered. (Tr. 18-43).

is an assistant principal . There are approximately 4000 students in the school and about 700 with IEP’s. There are two 15:1 classes in the 10th grade and all these students take integrated algebra, global history, earth science, English plus electives such as health and Spanish in a departmentalized but small class setting. The students are mainstreamed for lunch, gym, art or music and clubs. The school established a mentoring program this year to assist new students to adjust. This student would probably have been assigned to the higher of the two groups in reading with students functioning between the 3rd and 8th grade levels. The mandated related services of were available. (Tr. 111-128). Parents’ Case:

The parents called three witnesses and introduced nine documents in evidence as Exhibits A-I in support of their claim for tuition reimbursement pursuant to Burlington/Carter.

Dr . There are approximately 210 9th-12th grade students with 70 enrolled in a general education environment integrated with a special education component for students with a learning who need intensive and specialized support in smaller classes relating to students are placed in small classes with a maximum of 10-12 students and one teacher for intensive instruction in as well as in larger mainstream classes for noncontent subjects and sports. This student has been at 2009. While he continues to have delays in reading, writing and math, there has been an improvement in his ability to tolerate frustration. until the beginning of this school year but this was replaced : smaller classes and sessions three days a week to review work, prepare for Regent’s . This safety net also includes meetings with the other week on average for 20 minutes. At the beginning of the school year there were also sessions with his former paraprofessional, but these were phased out as the student gained confidence and became more independent.

According to his schedule (Exh. H), he is NYS curriculum and prepare for the Regent’s exams but they are modified to be two-year courses to allow for a slower pace and time for review and repetition. The students are grouped based on similar needs and skills; the teachers are not special educators but are experienced in their subject areas. This student ten periods a week in a class of four students. He also with strategies in math lab twice a week in a group of nine. . (Tr. 52-109).

and teaches a modified English language arts and writing workshop class for this student using a curriculum-based therapy model. He presented at the same time, multitasking and retaining information in working memory. He is in a class of five students whose reading levels are within 1 to 2 similar in terms of pace of learning and significant receptive and He benefits from individual attention and is learning and practicing comprehension strategies such as reading aloud to himself, visualizing and verbalizing, creating notes and . The literature-based curriculum also focuses on vocabulary development, fluency and decoding with modifications such as the use of graphic organizers. The student has made progress since September 2013. . His reading is still slow and improving in his fluency and comprehension. For writing he is in a class of four students with similar 4th-grade levels. Writing is very difficult for the student. He has trouble holding a pencil and using a keyboard so sometimes the teacher serves as a scribe and notes on the board are given to him at the end of class. With the aid of graphic organizers, outlines, rubrics, targeted questions, worksheets, assignments broken he is becoming more independent and making progress. He is best with creative writing rather than informative essays but with the support of a graphic organizer and keyboard, he can generate a topic sentence and write a five-paragraph essay. (Tr. 131-159).

The mother testified that the student has been diagnosed with perceptual and with similar peers and a lot of support. Since September 2013 he has made progress in understanding what is happening in class and in writing and understanding his notes. In math he has been able to learn algebra. The integration into the classroom for English and writing allows him to get the services he needs daily without being removed from the classroom and feeling targeted as special has has been learning to advocate independently for himself and . The parents cost signed the contract on September 9, 2013 (Exh. F). The parent attended the IEP meeting on May 8, 2013 but felt uncomfortable. It was a be heard. IEP and . The parent School during the summer but was unable to speak with anyone or get a return call. (Exh. E). She had visited that school in September 2012 and knew it (Tr. 160-186).

FINDINGS OF FACT AND DECISION

A school district may be required to reimburse a parent for tuition costs if it fails to offer a Free and Appropriate public Education (FAPE), the school selected by the parent is appropriate and equitable considerations support the parent’s claim. School Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 51.S.Ct. 7 (1993). Under the Individuals with Disabilities Education Act (IDEA) 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 is reasonably calculated to enable the student to receive educational benefits. Bd. of Ed. v Rowley, 458 U.S. 176, 206-07 (1982); Cerra v Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2005). While a school district is not required to “maximize” the student’s potential, it must provide “an IEP that is ‘likely to produce progress, not regression’ and … affords the student with an opportunity greater than mere ‘trivial advancement’”. Walczak v Florida Union Free Sch. Dist., 142 F.3d 119.

Turning to prong 1, the parents are not challenging the composition of the IEP team, the recommended classification or the related services. Rather they argue that 1) the IEP meeting had to meaningfully participate; 2) the IEP is substantively defective in that it is inconsistent in the student’s present levels of performance in reading and math, generic in its goals and inadequate as to the student’s 3) the program recommendation without of a paraprofessional is inappropriate to meet his needs; and 4) the recommended school is too large for the student to make meaningful ..

Having carefully scrutinized the IEP, I find it acceptably describes the student in terms his , his significant difficulties with writing and note taking and his need for a lot of redirection due to his distractibility as well as other management needs. What is not included in the IEP, however, is how it affects his educational needs. I note the recent was discussed at the meeting included under emotional functioning: “ presents the persona of an anxious young man.” (Exh. 4, p. 4). The evaluator alerted that his ability to perform even about his performance so that he required constant encouragement throughout the evaluation. I find that the IEP has completely and fatally ignored this emotional overlay in making its program recommendation. As required by the SRO I specifically find that the due process complaint raised this challenge in ¶ 1 where it alleged insufficient support given and in ¶ 8 where it challenged the sufficiency of the goals in the area of social/emotional management needs.

Were he not an anxious young man, the 15:1 class may well be appropriate for his academic needs. However not only would he be placed in a larger class in a larger school, he would be moving to an unfamiliar location. The IEP team made no provision for support during this significant change. In fact it removed the comfort paraprofessional who would be available to redirect him in class but also to support him emotion may have created a mentoring program in September 2013 as R.E. v. NYC DOE, 694 F.3d 167 (2d Cir. 2012), does not permit consideration retroactively of information not part of the IEP review in May to justify the District’s recommendations. The evidence shows that the IEP team was . I find that this omission was an impediment to the likelihood of his making reasonable educational progress and that did not substantively provide a FAPE to this student.

The parents also challenge the IEP on the grounds that it contained inaccurate and inconsistent information as to the student’s present level of performance in various academic areas. However overall the IEP presents an adequate if not perfect snapshot of the student’s current Next the parents argue that the annual goals were deficient in that they were flawed, generic and without a baseline for measurement. Again while far from perfect, I find the goals meet the underlying criteria of the IDEA in that they provide sufficient information for the providers to render appropriate instruction. In any event neither defect amounts to a denial of FAPE.

Finally the parents also raise numerous procedural issues. It is clear from the mother’s testimony that in her mind she did not have a fair opportunity to be heard at the meeting, that she to . While no DOE witness directly rebutted this testimony, it is not clearly established from this record if the mother’s reaction was objectively as well as subjectively accurate. Hence I do not find alternative programs were considered by the CSE as the parents have not specified any that they allege would be appropriate. Finally it is unclear under current law when the DOE must offer proof that a recommended site could implement the IEP. In this case the student was not attending a public school and hence R.E. allows the DOE to decline to offer proof as to the appropriateness of a specific placement.

Having found the DOE to have failed to afford a FAPE, we turn to prong 2. I find that based on the documentary evidence and credible “specifically designed to meet the unique needs” of this student. Frank G. v Bd of Educ of Hyde Park, 459 F.3d 356 (2d Cir. 2006). Because of his compensate for the absence of the paraprofessional. For writing, an area he is in a class of four students with similar needs and characteristics taught by an educator The overall academic the school year, the student has been individualized instruction designed to meet the needs of the student and reasonably calculated to produce educational benefit.

Finally as to the equities, the record shows that the parents were cooperative with the DOE and participated in good faith in the IEP meeting. They communicated promptly with the DOE of their concerns and tried to visit the proposed placement. Thus I find that there are no circumstances to constitute a bar to tuition reimbursement under

THEREFORE IT IS ORDERED that upon proof of payment the DOE reimburse the parents for tuition in the for the 2013-14 school year. Dated: September 5, 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 9/9/13 Due Process Complaint, 6 pp. B 5/7/13 Finding of Fact and Decision, 13 pp. C Notice of Unilateral Placement dated 08/23/2013, 4 pages D Parent Response Notice of Preferred Placement dated07/24/2013, 1 page E Parent Letter dated 08/09/2013, 1 page F Enrollment Contract dated 09/09/2013, 1 page G Overview undated, 1 page H 13/14 Student Schedule 1 page I Second Quarter Report Card, 2013-2014, 3 pages

DEPARTMENT OF EDUCATION

1 IEP dated May 8, 2013, 15 pages 2 Final Notice dated June 18, 2013, 1 page 3 Report dated 04/15/2013, 3 pages 4 dated 04/08/2013, 5 pages 5 Update dated 04/08/2013, 1 page

IHO

I Parent’s memo of Law, 8/1/14, 11pp