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: March 25, 2014

May 27, 2014

Actual Record Closed Date: June 10, 2014

Hearing Officer: Dora Lassinger, Esq.

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

Advocate — Student

Parents

CSE Chairpersons Designee — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2014

Advocate — Student

Advocate (Via Telephone) — Student

Parents

Director of (Via Telephone) — Student

CSE Chairperson’s Designee — DOE

Mrs. ., the parent of ., requested an impartial hearing on December 16, 2013 seeking funding for her unilateral placement of a private school, for the 2012/2013 school year.1 I was designated to hear this matter on December 17, 2013 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on March 25, 2014 and May 27, 2014. The compliance date was extended on four occasions, due to the unavailability of witnesses, and extensive testimony, with a final compliance date of June 22, 2014. (IHO Ex. I, II, III, III, IV).

year old young woman. At the time of the challenged review, (May 16, 2012), she was a . (Department of Education (DOE). Ex. 1). Her classification is not in dispute. (Par. Ex. A). She attended from the time she . (Tr. p. 103).

On May 16, 2012, the Committee on Special Education (“CSE”) met to review , a certified school psychologist, a general education teacher who also served as the District Representative, , a certified special education teacher who is the director of , and ’s mother participated in the meeting. (DOE Ex. 1 p. 12; Tr. p. 11). A parent member was declined. (DOE Ex.^[1] p. 13).2

Ms. , the only DOE witness to testify at the hearing, could not state when Yael had last been tested. (Tr. p. 25). Nor was any formal testing cited in the Individualized Education Program (IEP). (DOE Ex. 1). Ms. did not recall whether the prior IEP was reviewed at the meeting. (Tr. pp. 25-26).

The CSE recommended placement in a special class in a community school (15:1), with related services of counseling, once individually, and once in a group of three , and speech/language therapy twice per week in a group. (DOE Ex. 1, pp. 5-6).

On the date of the meeting, the school submitted a teacher progress report, reporting that grade with ; and her reading grade, with due . It was reported that she had mastered calculation skills. With regard to language, it was reported that her . , it was reported that she . (DOE Ex. 3).

, the principal of s school, reported that she decodes sufficiently; but has difficulty with abstraction and higher level vocabulary. Her math Her writing was described . It was reported that she , and . She gets when and , and (DOE Ex. 1, pp. 1-2). The CSE relied on the teacher report, and input from and the parent, which the team determined was sufficient. (Tr. p. 25). The IEP reports performs on a sixth grade level for reading and level for math. (DOE Ex. 1 pp. 9-10). This was based upon the teacher report, which indicating she was reading at level and performing math at an grade level. (Tr. p. 30). Because the IEP was drafted from a “drop down menu”, there was no option to indicate that she was functioning somewhere between two grade levels. (Tr. p. 41).

With respect to academics, IEP includes two goals for reading comprehension (identifying emotions of story’s character; demonstrating improved comprehension strategies by identifying transitional words). The comprehension goals both refer to materials at or above trials (for identifying emotions of the story character; and 3 out of 4 trials (for identifying transitional words). For math, the IEP includes a goal for describing patterns; and for solving multi-step problems involving rate, average speed, distance and time, with a goal . (Id. at 3-4). This goal was designed to address the deficit in her ability to solve abstract word problems, as reported by her school. (Tr. p. 18; DOE Ex. 3).

To address needs, her IEP includes goals for identifying and expressing her feelings and identifying appropriate reactions to her feelings 80% of the time in three out of four counseling sessions; and demonstrating at least three positive feelings and characteristics about herself, in 3 out of 4 counseling sessions. (DOE Ex. , p. 4).

The IEP also included goals to improve language by identifying main idea and supporting details, as well as answering questions (short answer and essay), based upon essays or classroom contextual material. The criteria for determining whether the 2 The CSE reported that the parent, who participated by telephone, declined the parent member. (DOE Ex. 1, p. 13).. This was not disputed by the parent. goal has been achieved is 70% accuracy, in 3 out of 4 trials, to be measured by the speech/language provider and/or special education teacher. This goal was intended to target Yael’s difficulty with abstract reasoning. All of the goals were to be measured quarterly. (DOE Ex. 1 pp. 3-5; Tr. p. 20). The IEP included various testing accommodations, but provided that Yael would participate in the same assessments as her general education peers, and would have the opportunity to take the Regents examinations. (Tr. pp. 23, 42). Neither the method of assessment nor the testing accommodations was challenged by the parent, in the due process complaint. (Tr. pp. 2324; Par. Ex. A).

The IEP set forth as a transitional goal that will attend a post-secondary school, and receive instruction to facilitate that goal. (DOE Ex. 1 p. 7). It provides that she will take advantage of resources in the community to conduct research in areas of interest regarding her future occupational and career goals. (Id. at 7-8). Her post-secondary goal is to research qualifications needed and job opportunities available in her field of interest, and articulate 3 professional goals during meetings with school staff to plan for transition to post high school, on a 4/5 consecutive weekly opportunities. The progress would be recorded by the counselor and/or teacher. (DOE Ex. 3 p. 3).

On June 12, 2012, the DOE offered placement in a special class (15:1) with related services of counseling and therapy, as provided in her IEP, at K 566. (DOE Ex. 2). The site was not challenged in the due process complaint. (Par. Ex. A).

Mrs. mother, testified that initially for three years; but experienced difficulty. She was evaluated by the DOE; but the parent felt the recommended public program was too crowded. She placed her at when she was grade; because she could function in the small classes. (Tr. pp. 102-103). She testified that she attended the May 16, 2012 IEP meeting; and that she did not agree with the recommended program, because would be unable to focus. (Tr. pp. 104-105).

On June 20, 2012, the parent signed a contract for the 2012-2013 school year, at a cost of $32,000 plus additional fees of $100.00 for books and locker, and $550 for trips, .3 The parent agreed to pay an additional fee of $75.00 per session for counseling services, which amounted to $2,100. The contract does not state when payment must be made. (Par. Ex. I, J).

As of the hearing, the parents had made no payments toward the tuition or counseling, because they could not afford to. (Tr. p. 108). In 2012, the parents’ adjusted gross income was $23,457. (Par. Ex. M). The parents are not seeking funding for that portion of the tuition which constituted prayer and religious study (prayer; bible study or Jewish law and customs). (Tr. pp. 69, 73).

, testified that he is licensed in New York as special education teacher; and holds a separate license from the Jewish Special Education Board of Licenses. (Tr. p. 56). During the 2012/2013 school year , consisted of 35 teenage girls. (Tr. p. 92; Par. Ex. B). Classes ranged in size from five to ten students. (Tr. p. 91). s class consisted of five students, aged 17 and 18. (Tr. pp. 91, 93). The school accepts students who have not fulfilled their potential in other setting, as indicated by formal and informal measures. (Tr. pp. 58-59).

is the only formally trained special education teacher in the school. He designs the curriculum, supervises, and regularly reviews progress with the teachers. (Tr. pp. 596, 78). All of the teachers in the school have graduated from a one or two year seminary program. (Tr. p. 88). A seminary education includes Jewish studies. It may also, depending on the program, include job skills, parenting skills and teaching skills. (Tr. p. 84). He testified that during the 2012/2013 school year, passed a Science and American History RCT, enabling her to get an RCT diploma. Her transition plan was to attend a Seminary; and she was successful in being accepted to a seminary in England, which was a massive achievement for her. (Tr. pp. 79, 99). He testified that he performed standardized testing at the start of the school year, and measured progress using a skill sequenced program. (Tr. pp. 91-92). Other than passing the RCT’s. he did not describe any specific progress academic achievement.

testified that an important focus of the 12th grade curriculum is to prepare the girls for the future. Tamar’s class schedule included religious studies (prayer, bible,

This fee was not explained at the hearing. Jewish laws and customs); as well as other classes of a religious spiritual nature (Guidelines to Happiness; Morality (including teaching the girls pride in being religious Jews); academics (American History, Science, Literature); counseling with a certified social worker, once each week; speech (not speech/language therapy, but actual speech making; the class is not taught by a speech/language pathologist); Research; Women in Society (a study of important female figures and societal expectations of women; Home Economics (cooking, setting a table); Computers, Current Events; Yearbook; and a Creative Workshop, which involves the whole school; Life Skills (job related skills); and Computers. (Par. Ex. E; Tr. pp. 67, 69, 72).

The Science class was geared toward passing the RCT exam at the end of the year. (Tr. p. 74). Literature consisted of condensed version of books, which the girls could handle. (Tr. p. 75). (No evidence was offered as to the functional levels of the other girls in Yael’s class.) American History focused on preparation for the RCT in American History. (Tr. p. 76). In Consumer Math, the girls learn practical aspects of math such as being a smart consumer and evaluating a job, in terms of the salary it pays. (Tr. p. 78). There was no evidence that received any academic instruction in math.

did not include speech/language therapy. (Par. Ex. E).

testified that he did not disagree with the IEP goals; however he feels that the IEP does not address life skill issues which are critical for a 12th grader with special needs. He also feels that the IEP should have addressed the RCT’s. (Tr. p. 98).

’s report card was received in evidence showing grades in the 80’s and 90’s in all subjects. (Par. Ex. F). There is no narrative report indicating has progressed. Ms. , s counselor submitted an affidavit showing that she provided 28 , at the rate of $75.00 per session, for which she has not been paid. She did not describe her work with . (Par. Ex. H).

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).

APPROPRIATENESS OF THE RECOMMENDED PROGRAM

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a Free Appropriate Public Education (“FAPE”) only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits.

20 U.S.C. Sec. 1415(f) (3) (e) (ii).

Contrary to the parent’s allegation, I find that the CSE was validly composed, in that it included a special education teacher ), and the DOE’s statement that a parent member was declined was not contradicted by the parent.

8 NYCRR 200.4 (b)(4) provides that a CSE must conduct a reevaluation of a student at least once every three years, except when the school district and parent agree, in writing, that one is not required. In this case, no evaluation was received in evidence. The CSE review team relied entirely upon teacher estimates provided by the student’s private school. Recommendations for goal , twice per week, were made without the benefit of a or update. Counseling goals were created and counseling was recommended based upon the school’s description . Nevertheless , who was level of functioning, stated that the goals are generally adequate. After reviewing the record, I do not find that the failure of the CSE to conduct formal testing resulted in a denial of FAPE, as the IEP adequately identifies her needs and establishes goals to address those needs.

An IEP must include adequate measurable postsecondary goals and needed activities to facilitate the student to post-school activities. See 8 NYCRR 200.4(d)(2)(ix). The IEP correctly states was to attend a postsecondary school, and provides a plan for her to make that transition, with the support of her counselor and/or teacher.

Furthermore, I find that it was reasonable for the CSE to conclude that Yael would benefit from the recommended small class placement, with the support of twice weekly counseling and speech/language therapy.

For all of the foregoing reasons, I find that the DOE demonstrated the appropriateness of its recommendations. The parent did not challenge the specific site, in her due process complaint, but rather the nature of the recommended program.

APPROPRIATENESS OF PARENTAL PLACEMENT

If I were to reach the issue, I would find that the parent failed to prove provides educational instruction specially designed to meet needs supported by such services as are necessary to permit her to benefit from instruction.

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007). With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. See Green v. New York City Department of Education, 50 IDELR 40 (SDNY 2008), citing Gagliardo v, Arlington Cent. Sch Dist. 489 F. 3d 105 (2d Cir. 2007).

The record indicates that the main 2012/2013 educational program was to qualify her for entrance in a religious seminary program, a goal which was achieved. While agreed with the academic goals IEP, there is no evidence received educational instruction designed to achieve those goals. Specifically, while the record indicates that she had weaknesses in comprehension, no evidence was offered as to how that weakness was addressed.

Similarly, has strengths in computation, but weakness in abstract math reasoning, no evidence was submitted that she was offered any academic math program. Her only math instruction, as described , was in consumer math, including shopping and evaluating jobs, in terms of salary.

’s instruction consisted of religious instruction (prayer, bible study, Jewish laws and customs); spiritual instruction (Guide to Happiness, Morality); instruction about the role of women in society and Home Economics, taught by high school graduates with a one or two year seminary education (in Jewish studies, parenting, teaching or other job skills).

described as having , she was not Therapy. Although she was , there was no evidence submitted regarding her work in her counseling sessions.

The only specific progress was that she passed two RCT exams (Science and American History) during her twelfth grade year. The parent, however, never challenged the CSE’s recommendation that in regular assessments, with testing accommodations.

ORDER

For all of the foregoing reasons, it is hereby ordered that the parent’s request for funding , for the 2012-2013 school year, is denied. Dated: June 16, 2014

Dora Lassinger mv

DORA LASSINGER, ESQ.

Impartial Hearing Officer DL;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

PARENT

A Impartial Hearing Request, dated 12/16/13, 5 pages B Program description, undated, 1 page C IEP, dated 5/16/12, 8 pages D 10-day notice, dated 8/15/12, 1 page E Class schedule, dated 2012/2013, 1 page F Report card, dated 2012/2013, 1 page G Related services schedule, dated 2012/2013, 1 page H Related services affidavit, dated 7/24/13, 2 pages I School affidavit, dated 12/26/13, 1 page J Enrollment contract, dated 6/20/12, 2 pages K Attendance record, dated 2012/2013, 1 page L Teacher and providers licenses, undated, 3 pages M Tax return 2012, 2 pages J Enrollment Contract, dated 6/20/12 (2 pages)

DEPARTMENT OF EDUCATION

1 IEP, dated 5/16/12, 13 pages 2 Final notice of recommendation, dated 6/8/12, 1 page 3 Teacher progress report, dated 5/16/12, 2 pages

IMPARTIAL HEARING OFFICER

I Case follow-up sheet w/attachment, dated 1/15/14, 2 pages II Case follow-up sheet, dated 3/25/14, 1 page III Extension, dated 4/27/14 (1 page) IV Case follow-up sheet, dated 5/27/14 (1 page)

Footnotes

[1] The parent alleged, among other things, that the CSE review team was invalid because there was no parent member (and there was no signed statement from the parent declining it); because the review team did not include a special education teacher; because the IEP does not adequately describe academic functional performance, and management needs; because the post-secondary goals and transition activities are vague; because the IEP does not indicate the level of participation of students without disabilities; and because the goals are not specific and measurable; and that these defects resulted in a defective program recommendation and denial of FAPE. (Par. Ex. A). The Department of Education’s (DOE’s”) position is that the IEP developed by the CSE provided a FAPE.