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: Parents

Dates of Hearing: February 10, 2014

March 10, 2014

Actual Record Closed Date: April 3, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2014

Esq. Attorney — Parents

Mother — Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2014

Attorney — Parents

Mother — Parents

Teacher, — Parents

(via telephone)

CSE District Representative — DOE

CSE, Teacher Assigned — DOE

AP, Recommended School — DOE

On February 10, 2014 and March 10, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated November 12, 2014. I was appointed Impartial Hearing Officer on December 12, 2014 after the recusal/s of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties thereafter, the initial hearing was scheduled for February 10, 2014, the first mutually available date for the parties and the hearing officer. At the February 10, 2014 hearing, March 10, 2014 was scheduled for completion. (T. 7)

The parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the receipt of the transcript of the transcript and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 6-7, 16, 223, 239, Ex. II)

The current compliance date is April 21, 2014. The record closed on April 3, 2014, upon my receipt of the final transcript.

Positions of the Parties

The parents assert that the student’s May 2, 2013 IEP was procedurally invalid, specifically referencing invalid CSE composition, insufficient document review, and inadequate goals among other things, and also claims that the that it was substantively defective in that the ICT program recommended was not calculated to enable this student to make reasonable gains in view of his deficits. Accordingly, the parents claim that the DOE failed to provide a FAPE for the 2013-2014 school year. The parents also assert that the recommended placement was not appropriate. The parents unilaterally placed the student , which they assert is appropriate for this student. It is also claimed that there are no equitable considerations that warrant the denial or limitation of DOE funding for anything other than the specifically “prayer related” portion of the parents’ placement. The parents assert financial inability to pay the entirely of the tuition and request reimbursement for the amount paid and direct funding for the balance. (T. 154, 223-230, Ex. I)

The DOE asserts that the IEP was procedurally appropriate and that it provides a program a appropriate for this student. It claims that it recommended a placement which could implement the IEP as required. Accordingly, it claims that it offered a FAPE for the 2013-2014 school year. The DOE further asserts that the parent’s unilateral placement was not appropriate and specifically claims, among other things, a lack of reliable assessments, insufficient information as to the curriculum, unreliable evidence of progress and the small number of students in classes. It also claims that a substantial portion of the program is religious in nature and not properly funded by the DOE even if the program is found to be otherwise appropriate. The DOE asserts further that equitable considerations warrant denial of DOE funding because the parents had not been willing to send the student to public school. (T. 230-238)

Background 1

The student was old at the commencement of the 2013-2014 school year (10 month program) and entering the 12th grade. His disability classification (Ex. 1) That classification is not in dispute. The student had (“ ”), currently known as School (“YP” or “the school”) for several years. He was unilaterally reenrolled by his parents for the 2013-2014 school year.

A had been conducted on March 28, 2011, as part of a CSE reevaluation (“the 2011 evaluation”). (Ex. 6) That report noted that the student had previously been

The contents of this section is included herein as Findings of Fact. recommended for a general education class with SETSS and (“OT’). Past diagnosis of ( ) Fine and . At the time of the 2011 review the student was in the 8th grade in a general education class with SETSS. The 2011 evaluator concluded after, among other things, administration of the Woodcock-Johnson III Test of Achievement (“the W-J”): that the student had particular strengths in sight word vocabulary, calculation and spelling with standard scores, including for decoding, within the average range, ranging from beginning to upper 9th grade levels; that applied word problems were within the average range, although ; that clear weaknesses were evidenced by reading fluency (3.8 grade level), passage comprehension ( ), and math fluency, by standard scores ranging from borderline to low average range. (Ex. 6)

An enrollment contract for the 2013-2014 school year was executed on April 11, 2013. It specified that tuition including all related services was $32,000 and that the parents would be relieved of all contractual obligation if they accepted a DOE placement by September 30, 2013. (Ex. D)

The CSE convened on May 2, 2013. Participant were: a DOE special education teacher, a DOE school psychologist who also was the district representative, the student’s mother and the student’s American History teacher who participated by telephone. (T. 22, 44, Ex. 5) It recommended an ICT program in all subject areas, totaling 35 periods per week, and OT 2x30 (1:1) and specified various test accommodations and transition activities. (Exs. 1, 6) The IEP noted reading at a level, writing at level with very poor spelling skills, and math at a level. It noted that he has been passing Regents exams, was well liked by peers although could be quiet and withdrawn with peers with whom he socialized within and outside school and sometimes, although rarely, refused to comply. (Ex. 1)

The CSE recommended a placement by letter dated June 24, 2013. (Ex. 2)

By letter dated August 22, 2013, the parents informed the CSE that they disagreed with the program and placement proposed, that they had received the placement after the end of the school year and would visit the program as soon as it could be visited but that he would remain in his prior placement if an appropriate placement was not offered. (Ex. A)

By letter dated September 18, 2013, the parents informed the CSE that a school visit had been made on September 17, 2013, that the parents concluded that the school was not appropriate and that the student would be continued at his prior placement. (Ex. B)

The parents commenced payments on September 3, 2013. (Ex. E)

Cases Presented

A list of documents submitted by the parties is appended.

The DOE presented the testimony of , the DOE special education “teacher assigned” to the CSE (“Bellows”), Assistant Principal of the recommended school (“the AP”).

The parents presented the testimony of , the student’s math teacher at (“ ), and the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a 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). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

was the sole DOE witness with regard to the IEP. She is a certified special education teacher assigned to the CSE, participated in the review and has substantial special education teaching experience. (T. 22, 30-31) She testified that the CSE reviewed and the school progress report and obtained information from the parent as well as previous testing. (T. 23, 28, 32, 33, 37-38) The previous testing reviewed was not specifically identified by Bellows and does not appear in the minutes. (Ex. 5) The teacher report specified that the student was at a 9th grade math level. (T. 27, Ex. 5) It also specified that the student was at a 5th grade decoding level and a 4th grade writing level. (T. 40, 42, Ex, 3) Bellows testified that the CSE had had no specific information contradicting that. (T. 40)

However, the CSE had been informed by the school and the parent that he was passing Regents’ exams and that he was expected to graduate with a Regents’ diploma.

(T. 32) Bellows stated that based upon her experience in those circumstances he had to be able to decode, comprehend and write at a much higher level than those scores indicated. (T. 41, 43) At the review she had discussed the inconsistency with the only school official present but that person was not an ELA or math teacher and could not explain but simply relied on the reports prepared by others at the school. (T.38, 33, 36, 43-45) That school participant was an American History teacher who was identified on the IEP as a general education teacher but the basis for that description is not in the record. (Exs. 1, 5) Bellows opined that such testing accommodations as the CSE had previously mandated would not explain Regents exams passing results even if they were with a low score. (T. 45-48, 72-73) Further, she testified that the school had been repeatedly asked what assessments they used to arrive at the levels reported to the CSE but had never responded. (T. 53, 56 did not believe that the gap was as described in the absence of assessments. (T. 56) She stated that if the CSE had believed that the grade levels the teacher report specified were accurate, it would have placed the student in “basic two” with children who have intellectual disabilities or in a program. (T. 51-52)

Bellows stated that information concerning the student’s social-emotional issues and levels was from the parent and the school and that the information provided to the CSE did not warrant initiation of counseling services even though the CSE was recommending a very different environment. (T. 64-66, 71-72, 75, Ex. 5) was familiar with the student’s then current placement which she described as a “very very small school” with classes of from 3 to 5. (T. 39-40)

With regard to the issue of further CSE testing testified that none was done because this was an annual review and no testing was required. (T. 41-42, 53, 57) She did not know the student and she had no knowledge as to whether other members of the team did. (T. 42)

I note that I find Bellows testimony credible in that I find that her factual assertions credible and that the opinions she provided represented what she believed. However, I find that the DOE has failed to establish that the IEP was substantively appropriate in the circumstances here.

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.

In this matter, the evidence shows that the CSE had no confidence in the information provided to it by the school as to the student’s actual academic levels. The CSE’s determination as to the student’s ability to participate in the program it proposed, however, relied solely upon the student’s success with Regents exams. However, there is no indication that the CSE knew precisely how those exams were actually administered and further, the evidence shows that there was extremely intensive test preparation prior to the test and there is no indication that that CSE was aware of that. (T. 208)

I conclude that although the CSE was not unreasonable in its lack of reliance on the school’s grade level estimates, the DOE has not demonstrated that it had sufficient evaluative material to support the recommendation it made. Indeed the evidence shows that the CSE had no knowledge as to the academic levels of this student in critical areas when the recommendation was made. Although additional testing is not required for an annual review when there is other information on which the CSE may rely, in this case the CSE in fact rejected the school information as unreliable and the record does not demonstrate it had anything else to support its recommendation.

I note that the 2011 evaluation reports scores two years before that suggest inaccuracy in the teacher reports provided by the school. (Ex. 6) However, the record does not establish that that was the other testing reviewed by the CSE at the time of the review. I note that that document was not identified on the minutes although others were. (Ex. 5) Further, with regard to the 2011 evaluation, Bellows acknowledged that there were discrepancies within the reading areas in that evaluation. (T. 80) Additional testing for an annual review is not routinely required but is not precluded if necessary. In the circumstances here, testing by the CSE should have been done and was not.

Although the foregoing is sufficient to support a conclusion that the program was substantively inadequate, I also find that the lack of counseling for a student known to have social difficulties and who would be transitioning for the 12th grade from a school with, principally, extremely small classes and students with whom he is familiar, to an entirely different environment exacerbates the substantive inadequacy of the recommended program.

Based upon the foregoing, I conclude that the DOE has failed to establish that the program it provided was reasonably calculated to enable this student to make meaningful education gains and has not met its burden to demonstrate that it provided a FAPE.

In view of that conclusion, I do not address the parents’ other claims concerning the IEP and do not address claims relating to the placement. However, with regard to the placement, I note that the testimony of the AP was forthright and detailed and substantially consistent with the clams of the parents and I find his testimony credible.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

Steiner, the student’s math teacher, was the only YP witness. (T. 134) The evidence shows that that YP has 18 students in grades 9, 10 and 12 and that there are five children in the student’s class (12th grade) which includes two girls. (T. 131, 158) OT is provided. (T. , Ex. 4) An internship at a car lease business has been provided for this student, consistent with his interests. (T. 152) In-service professional training is provided to staff and there are opportunities for outside training. (T. 130) Weekly meetings to discuss students are held. (T. 131) The student has one class per week with a guidance counselor to discuss issues in a group setting. (T. 161)

Steiner stated that the biggest problem for the student in math and reading is “abstract thought.” (T. 138, 142) With regard to social-emotional issues he described the student as very well behaved, wanting to make friends but saying inappropriate things at inappropriate times which acts against that. (T. 147) He also described the student as having difficulty asking for help in the classroom. (T. 49) The parent testified that the student’s weaknesses were mostly reading related and visual processing but that he can comprehend and extrapolate from what he is learning. (T. 208)

The evidence shows that the student receives gym, art, a class concerning teenage life issues and lunch with mainstream students , which is about a block away and instructs typically developing students, and all other subjects, including some which are undisputedly religious, are provided facility. (T. 132-134, 151) The student has an “everyday math” course for 2 sessions per week to help prepare him for everyday life math issues and he is taught with students at similar math levels. (T. 136-137, 181) The student has progressed in math during the school year. (T. 139-140) Steiner testified that the small class provides opportunity for individualized instruction in a nurturing environment. (T. 146. 147, 149) With regard to the credentials of the teachers, credibly testified that he is a certified special education teacher although not yet for the high school level, that English teacher is licensed as a special educator in Canada and transferring that licensure to New York and that the American History teacher is dually licensed to grade nine. (T. 129, 172, 173) Although he testified with regard to the credentials of other instructional staff that all have special education teaching credentials and subject area licenses, I find that not supported by evidence and not persuasive. (T. 165) I note that it is based merely upon his “understanding”. (T. 166)

In prior years the student passed Regents exams in algebra, biology and global studies and currently is on track to pass Regents exams in English and American History in the 2013-2014 school year. (T. 166, 175, 176, 188)

However, the evidence with regard to the contents and methodology of the school’s instructional program was very limited. Although Steiner testified he uses a step by step approach and “thinking out loud”, there is no indication as to what, if any, specific techniques or strategies are utilized to address the student’s needs in other courses except the use of modified materials and undescribed individualization. (T. 138, 145)

With regard to assessment of the student to determine the effectiveness of the instruction provided, I find credible ’ testimony that she had by the time of the review, made repeated unsuccessful attempts to determine the assessments utilized by the school in providing grade level equivalents. I note that although testified that he relies upon tests and homework assignments, the material in his student’s current math class as described is math for everyday life and there is no indication as to how current grade equivalents were determined from that. (T. 135, 141) that assessments were made in other subject areas, including ELA areas in which the student has the greatest needs, he provided no information as to how except by “tests” and teacher made assessments and I find his testimony with regard to that unreliable and unpersuasive. (T. 145, 185) In the absence of reliable assessments, the determination that a program appropriately addresses the student’s academic needs is not possible. The fact that the student has passed Regents exams is not alone a basis for a conclusion that the program is appropriate.

Further, did not know the student’s reading levels, a principal area of deficit.

(T. 181) However, I note that certain ELA area levels provided by the school, if accurate, indicate regression from levels measured by the 2011 evaluation which relied in substantial part on standardized testing. (Exs. 3, 6) That circumstance is unexplained.

I also note generally that ’s testimony was cursory in various critical areas. The school progress report in evidence is similarly cursory and does not adequately supplement ’s testimony. (Ex. 3) Indeed, ’s testimony that when overwhelmed the student becomes frustrated and speaks out and looks angry and upset is inconsistent with teacher report which said (T. 149-150, Ex. 3)

I am mindful that the parents need not provide a perfect program and are not held to the requirements for the DOE. However, the parents have the burden of establishing that they provided a program designed to address the student’s unique needs. Based upon the foregoing, I conclude that they have not met that burden. Accordingly, I do not address the DOE’s claims concerning the religious portion of the program.

Prong 3

In view of the foregoing findings, I do not address Prong 3 claims.

ORDER

This matter is DISMISSED. Dated: April 18, 2014

Judith Schneider mv

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer JS;mv

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENT ENTERED INTO THE RECORD

1 IEP 5/2/13, 13 pgs. Department of Education

2 FNR, 6/24/13, 1 pg. Department of Education

3 School Progress Report, 12/13/12, 2 pgs. Department of Education

4 OT Progress Report, 1/9/13, 1 pg. Department of Education

5 CSE Minute, 5/2/13, 2 pgs. Department of Education

6 Evaluation, 3/28/11, 4 pgs. Department of Education

A Parent Letter, 8/22/13, 2 pgs. Parents

B Parent Letter, 9/18/13, 3 pgs. Parents

C FNR- 2012/2013, 2/3/12, 1 pg. Parents

D Contract, exec. 4/11/13, 1 pg. Parents

E Aff, 3/6/14, 1 pg. Parents

F Attendance Record, 2013-2014, 1 pg. Parents

G Class Schedule, 2013-3014, 1 pg. Parents

H Prog. Descrip, 2013-2014, 2 pgs. Parents

I Report Card, 2013-2014, 2 pgs. Parents

I Impartial Hearing Request, 11/12/13, 2 pgs. Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer