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: August 25, 2015

October 8, 2015

October 16, 2015

October 21, 2015

Actual Record Closed Date: November 24, 2015

Hearing Officer: Bruce S. Olinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPREAED ON AUGUST 25, 2015

For the Student

, Mother

For the Department of Education:

, CSE District Representative

NAMES AND TITLES OF PERSONS WHO APPREAED ON OCTOBER 8, 2015

For the Student:

, Parent/Mother

, Aunt

For the Department of Education:

, District Representative

, District Representative

, Placement Officer (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPREAED ON OCTOBER 16, 2015

For the Student:

, Aunt

, Mother

For the Department of Education:

, CSE District Representative

, CSE District Representative

, Provider (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPREAED ON OCTOBER 21, 2015

For the Student:

, Aunt

, Mother

, Head of (Via Telephone)

, Director at (Via Telephone)

For the Department of Education:

, CSE District Representative

, CSE District Representative

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District, or the DOE, and the parents as Parents and the child will be referred to as Student.

JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §

200.5(k).

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on July 16, 2015 by , the parent of student (hereafter, “ ”). The undersigned was appointed as Impartial Hearing Officer on July 16, 2015. Thereafter, a Pendency Hearing was held on August 25, 2015, followed by a Decision and Order on Pendency, directing the District to provide Student with an Enhanced Rate Voucher for a ( ) provider through to address Student’s issues, pending the outcome of this hearing (IHO Ex. 1), said Decision and Order after Pendency having been based on a previously issued

Decision and Order after Impartial Hearing, dated April 30, 2015, authorizing same.

The nature of the complaint to be addressed in this decision is the Parent’s request for the District to continue to fund Student’s provider, through , at the enhanced rate, for the 2015/16 school year, based on the Parent’s contention that the DOE has not provided student with an appropriate and qualified provider for such services, as per the mandates of his IESP.

During the course of the proceedings, the parties moved on September 29, 2015, to extend the case compliance date in this matter in order to allow for the availability of both the DOE’s as well as the Parent’s witnesses to testify in this matter; the parties moved again to extend the case compliance date on October 6, 2015, to accommodate the availability of Parent’s witnesses, as well as to review the transcripts in full and prepare closing statements to be submitted in writing. In considering the requests, the cumulative impact of the relevant factors were considered and it was determined that the requests for extensions were appropriate, and the delay in the resolution of the matter caused by such extensions of time was found to be in accordance with the requirements of due process.

Accordingly, the requests for extensions of the case compliance date were granted (IHO Exhibit 2). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

Hearing dates were held on October 8, 2015, October 16, 2015 and October 21, 2015. The parties were given until November 13, 2015 to submit closing briefs, and both parties complied therewith. The record of the impartial hearing was closed effective November 13, 2015.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

, years old, attends the , having been unilaterally placed there by his mother. is classified with a , and specifically diagnosed with , or (DOE Ex. 1). He was determined to exhibit weakness in , with a . He has skills, continued deficits in , demonstrating and , as well as reduced

( Evaluation, Parent Ex. 2). Further,

was determined to have continued weakness in

. In particular, scored a in the

( ) test, which score placed him in the percentile.

An IESP, dated October 21, 2014, was formulated for , in which all parties agreed that would be provided with, among other things,

( ) to address, generally, ’s and, more specifically, his deficit in . Thereafter, the Parent requested a Due Process Hearing to challenge the implementation of the IESP, claiming that the services provided by the DOE failed to properly or adequately service in the area of . By such request, the Parent was seeking an enhanced rate voucher for the services to be provided by , a DOE- authorized provider, whom the Parent argued was qualified to provide such services in a way that the DOE was not. By Due Process Hearing Findings of Fact and Decision, dated April 20, 2015, the DOE was ordered to provide the Parent with an enhanced rate voucher for , having found that the DOE’s provider, certified only through the , and not specifically trained in the area of , was inappropriate for , then in the .

The issue for this hearing is Parent’s request for continued funding, as of the 2015/16 school year, at the enhanced rate a voucher for to provide the mandated services to The Parent claims that the new provider offered by the DOE for the current school year remains unqualified and therefore inappropriate, while the DOE maintains that such provider for the 2015/16 school year is in fact qualified, thereby making the Parent ineligible for an enhanced rate outside provider.

PARENT’S POSITION

The Parent claims that the DOE provider does not have the necessary qualifications to render the services as mandated in the October 21, 2014 IESP, the IESP which, at the time of this hearing, was still in effect. The Parent further claims that the provider from is instead the appropriate and proper provider, especially in regards to providing services in , and that retaining the services of the provider through is required in order for the DOE to comply with the October 21, 2014 IESP.

DISTRICTS POSITION

The DOE maintains that its provider is fully qualified and credentialed to provide the mandated services, including those in the area of , articulated in the October 21, 2014 IESP and that Parent is not, therefore, entitled to an enhanced rate voucher for such services through , notwithstanding

Parent’s preference for such provider.

TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING

The first witness presented by the DOE was , placement officer at New York City Department of Education, , whose responsibilities include locating providers for special education students and ensuring placement for them. Ms. described the process whereby the parents of eligible students, including , would receive P-4 forms in preparation for the upcoming school year, together with a link to the DOE website containing DOE-approved providers from which the parents could then choose a provider. (Tr. p. 45-48). She further testified that a provider was located for , to provide services, pursuant to the IESP, at ’s school, , but that the Parent opted not to avail herself of such provider because was already working with a private-based provider. Ms.

further testified that the DOE-located provider, , was a licensed and certified provider, licensed by the New York State Education Department, and certified for grades K-12. She further testified that there are no specific licensing credentials for in and of itself, but rather that the qualifications to instruct in , as well as other areas of special education instruction, were included in the K-12 certification (Tr. p. 54-57). Ms.

finally testified that Ms. never received the P-4 form to initiate services for from the Parent.

On cross examination, Ms. testified that she believed Ms.

began at during the first week at school, but would most likely not have actually begun servicing students until the following week, due to having to arrange her availability to accommodate the different schedules of all of the students she would be working with. She later testified, however, that she emailed the Parent on September 15, 2015, advising the Parent that the provider, Ms. , was in place, but that she also attempted to contact in August to obtain ’s schedule, but that the school was closed at such time. She additionally testified that she requested from the Parent, at the end of August, 2015, ’s schedule, so that she could provide it to the provider Ms. , but never received a response to such request from the Parent (Parent Ex. 3, Tr. p. 76-78). She also reiterated, upon a request for clarification by the undersigned as to particular competency in the area of , that a New York State Education Department credentialed and licensed provider has included, as part of such credentials, the competency to provide services to their students (Tr. p. 70-71). Finally, when asked if she was aware of any complaints having been made against Ms. in her role as provider, or whether any students assigned to Ms. subsequently requested to be switched to another provider, Ms. stated that she was not aware of either (Tr. p. 84-85).

Next to testify was , the aforementioned DOE-proffered provider. Ms. testified that she has been a New York City Board of Education provider since 2014. She has a Master’s Degree in special education, grades K through 12, with certification in special education, elementary education, and as reading specialist, with 25 years of experience in teaching. She had previously worked in

Massachusetts as a learning disability specialist, licensed and certified there in the area of special education, elementary education and reading specialist, and in the New York City school system as a resource teacher, described as providing assistance to small groups of students “providing help with their subject matter as well as brief supports for academic progress and remediation of skills they needed help with” (Tr. p. 110-112), all of which falls under the broader category of “special education”.

Specifically with respect to and the methodology used to service such , Ms. described the as affecting

, , , , the ability to , and (Tr. p. 120). She further testified that her method of instruction includes the following: ;

; ,

, ; , ,

, and ; and skills;

, , ;

; , , , and (Tr. p. 120-122). She also testified that there are no special or additional qualifications or degrees specific to ; rather, is part of the overall training which comprise the special education certification and licensing (Tr. p. 121), and that, based on her observation, the methodologies utilized by her, as aforesaid, are no different from those that are utilized by other providers. Ms. also testified that, prior to working at , there have been no complaints from either parents or school staff, and no disciplinary actions taken against her (Tr. p. 123).

Ms. was then asked by the undersigned if there is a separate component to her certification, such that a provider such as herself would be required to earn a particular credential within the K-12 certification to qualify as a provider of services in the area of . Ms. testified that the credentials to instruct in the area of are included as part of the Special Education K-12 license, that a K-12 Special Education license includes all aspects of special education instruction and credentials, including the area of (Tr. p. 128-129), and that there is no requirement under New York State law to re-certify such credentials or to take periodic exams to maintain such license (Tr. p.

129). Finally, Ms. testified that if a student were to be presented to her mid-semester (or any time after the beginning of the school year) as requiring her services, she would have no issue providing such services for that child (Tr. p. 132-135).

The Parent declined to cross-examine the witness, stating that her questions were covered by those of the undersigned.

The Parent presented two witnesses.

Dr. , who holds a doctorate in education from , is the principal at , ’s school. She knows personally, as she regularly engages with most, if not all, of the school’s students (with a student body of approximately students) as they engage with both their teachers and . Dr.

testified that ’s greatest weakness is in the area of , agreeing with the other witnesses who so testified, and specifically in the tasks of , , and . When asked specifically about , the DOE provider, and whether she is qualified to instruct in the area of , Dr. opined that she believed her to be qualified for many of the students at , but that ’s needs are greater than what Ms. could provide. When asked by the undersigned as to the basis for her opinion, Dr. at first stated that she didn’t think Ms.

had the necessary certification or credentials in the area of (Tr. p.

167-168), and that although the training entailed in obtaining a New York State K-12 certification included rigorous coursework and training, she assumed that included training in as well, although she could not state with certainty how extensive such training was, nor whether there was a specific and separate requirement, in terms of workshops or other training, required in the area of (Tr. p.

168-169). When asked whether there was, in addition to K-12 certification, a separate certification specifically for , Dr. stated there was not (Tr. p. 169-170). Dr. further stated that a provider who has obtained the New York State special education K-12 certification is considered by New York State to be fully qualified in that area, including , but that in her opinion, there is additional research and new techniques in the field of available which she believes the instructors from utilized, but which may or may not be utilized by other New York State K-12 special education providers (Tr. p. 170-

171).

On cross examination, Dr. stated that, to her knowledge, the provider from holds the same New York State K-12 certification as does Ms.

(Tr. p. 173-174), and added that, in general, one’s years of teaching experience is not necessarily indicative of one’s effectiveness (Tr. p. 174). She also testified that, in her role overseeing staff hiring, many criteria are considered, including licensing and certification, as well as a commitment to the learning standards at and a demonstration of being current with the latest research and methodologies (Tr. p. 177-

181). She also testified that ’s provider from began approximately 1 week after the start of school and, to her recollection, began working with students at one or two weeks after that (Tr. p. 188-190).

On re-direct, and in response to questioning by the undersigned, Dr.

stated that, based on her credentials and New York State licensing, Ms. was qualified to instruct in the area of special education, including , but that it was her opinion that Ms. ’s particular style or technique was not optimally suitable for , although she acknowledged that she never actually observed

Ms. instructing in the area of (Tr. p. 192).

, Director of , is the coordinator at

. She testified as to ’s weakness in , and specifically his need for (Tr. p. 203). When asked to articulate what specifically can provide to that the DOE provider cannot, Ms. stated that utilizes techniques that are unique to them, such as (Tr.

p. 206). She further testified that the providers partake in three trainings per year, and that she engages with such providers to “brainstorm” with them to ensure that the instruction is tailored to the individual student (Tr. p. 206). She further testified that such additional trainings are not required by New York State to maintain a K-

12 certification, but rather only required by (Tr. p. 207-209).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.

T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.

v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

A school district offers a FAPE when the board of education complies with the procedural requirements set forth in the IDEA, and 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]). 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, 486 Fed. App'x 954 [2d Cir. 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]).

The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs.

34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR

200.4(d)(2)(iii); 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, and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

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 produce progress, not regression,' and . . . affords 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). Goals and short-term objectives are sufficient when they address a student’s weakness and enable the student to make progress. Application of a Student with a Disability, Appeal No. 12-070.

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v.

Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir.

2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v.

Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Pursuant to the provisions of 8 NYCRR 200.6 (Continuum of services):

(a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.

(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.

(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:

(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.

(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.

101 200.6

(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.

(b) Staffing requirements pursuant to Part 80 of this Title.

(1) When a remedial service is included in the individualized education program, such service shall be provided by appropriately certified or licensed individuals.

(2) When a transitional support service is included in the individualized education program to be provided to teachers of a student with a disability, such service shall be provided by personnel appropriately certified or otherwise qualified in each area of service.

(3) Related services shall be provided by individuals with appropriate certification or license in each area of related service.

(4) Special education instruction shall be provided by individuals appropriately certified or licensed pursuant to Part 80 of this Title.

(5) An administrator or supervisor of special education programs serving more than 25 percent of his or her assignment in such capacity shall hold a certificate valid for administrative and supervisory service pursuant to Part 80 of this Title.

(6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.

200.6 102

(c) Transitional support services prescribed in the individualized education program (IEP) shall be provided for a teacher upon the recommendation of the committee on special education, and shall be specified in the student's IEP. When the provision of a transitional support service is under consideration by a committee on special education, the teachers of the student for whom the service is being considered shall be given the opportunity to participate in the meeting of the committee for the purpose of advising the committee of the extent to which such services are needed.

DISCUSSION

There is no issue as to ’s entitlement and eligibility for both the services as well as the services as mandated in his October 21, 2014

IESP; all parties agree as to the adequacy and appropriateness of the services as contained in the IESP. Nor is there any dispute as to ’s particular weakness in the area of , which is the specific area of instruction that is of concern to the Parent and at issue for this hearing. The aforesaid Evaluation, dated July 17, 2013, as well as the CSE Minutes dated October 21, 2014 (DOE Ex. 2), and the Teacher Provider Report dated October 3, 2014 (DOE Ex. 3), all attest to ’s weakness in this particular area. Rather, the only issue for this hearing is whether the provider of the DOE is qualified to provide such services, or whether the Parent is entitled to an enhanced-rate voucher for payment for the outside provider for the 2015/16 school year due to the District’s provider being unqualified and, therefore, inappropriate. For the reasons cited below, the provider of the DOE is determined to be qualified to address ’s needs, and the Parent is therefore not entitled to an enhanced-rate voucher payment for the outside provider .

It is initially noted that, pursuant to the provisions of 8 NYCRR 200.6 (b)(3) and

(4), cited above, special education instruction and related services must be provided by individuals with “appropriate certification or license in each area of special education and related services”. While the Parent prevailed at the aforesaid initial Due Process Hearing, by Decision and Order dated April 20, 2015, that decision was based on the DOE failing to provide with a provider who was both qualified in the area of , and certified to provide services beyond grade (where was already in grade). Clearly, in such case, the DOE-proffered provider lacked the qualifications and certifications to adequately implement the IESP. That, however, is not the case here. In this case, the DOE provider, , is a New York City Board of Education provider with a Master’s Degree in special education, grades K through 12, with certification in special education, elementary education, and as a reading specialist. Specifically with regard to the area of , such area of instruction is included as part of the K-12 certification, and there is no requirement under New York State law that an otherwise credentialed provider obtain additional certification in order to adequately instruct in the area of . Indeed, the testimony of Parent’s witness Dr. acknowledged that, although instructors employed by were required to take additional training, there was no requirement under New York State law for a separate certification specifically in the area of beyond the K-12 certification, and that a provider who has obtained the New York State special education K-12 certification is considered by New York State to be fully qualified in that area, including (Tr. p. 170).

Nor is the DOE required to implement any one particular methodology in addressing ’s needs. Ms. testified as to the extensive methodologies she utilizes in providing instruction, as noted above. Dr. testified that, to her knowledge, Ms. held the same certification as the instructors at , and that based on such credentials and New York State licensing, Ms. was qualified to instruct in the area of special education, including . She opined, however, that Ms. ’s particular style or technique was not optimally suitable for (even though she never observed Ms. instructing in the area of ). However, the usage of a particular type of methodology is not a valid basis for determining whether a provider has adequately implemented that relevant portion of an IESP. In the case of

A.S. v. New York City Dep't of Educ., 63 IDELR 246 (2d Cir. 2014), in an unpublished

(as of the date of this Decision and Order) decision, the U.S. Court of Appeals, Second Circuit held that a district may use any educational methodology that allows a student with a disability to make non-trivial progress, and that neither the parents' preference for a different methodology nor evidence that the student would make greater progress with a different technique will make the district's program inadequate. This is true even where, here, no credible evidence was offered to show that the methodology would result in greater progress than that of the DOE provider. There is no reasonable basis to conclude that instruction, including the area of , as provided by a New York State certified K-12 special education instructor, which certification includes the area of , would not comply with applicable law, cited above, in providing a student, including , with the instruction to which he has been determined eligible.

Finally, there was some contradictory testimony as to exactly when Ms.

, the DOE instructor, was ready to begin servicing students for the 2015/16 school year, with testimony indicating that the delay ranged between 1 and 2 weeks after the beginning of the semester. However, the fact that the DOE instructor may or may not have been available on the first day of school cannot be the basis to find a denial of FAPE here. It is noted that, pursuant to the aforesaid Decision and Order on Pendency, dated August 26, 2015, had the services of his provider in place during or after the first week of school, so that even if the DOE provider was not able to start on the first day (due to arranging schedules with other students, for example), , by virtue of said Pendency Order, suffered no harm. In any event, as per the aforementioned testimony of , placement officer at New York City Department of Education, the Parent was offered the services of the DOE provider for , but told Ms.

that she preferred her child to work with the private instructor from . That testimony was not contradicted at the hearing by any party. It is noted that, pursuant to the decision in T.M. v. District of Columbia, 64 IDELR 197

(D.D.C. 2014), the U.S. District Court, District of Columbia held generally that "short gaps" in a student's services does not necessarily amount to a material failure to provide such services. Here, there was not even any such gap, as received such services pursuant to the aforesaid Pendency Order from the first day of class.

To summarize, therefore, unlike the scenario that resulted in the prior Decision and Order dated April 20, 2015, the DOE has offered a fully licensed and certified instructor to address ’s needs, including specifically his needs in the area of . No evidence has been presented to establish such provider’s lack of qualifications in such area, and the record of this hearing fails to establish any such lack of qualification. The DOE is required to provide an instructor that is qualified to carry out and implement the mandates of the IESP. As per the provisions of 8 NYCRR 200.6 (b)(3) and (4), cited above, and applicable case law, also cited above, it is determined to have done so. While the Parent may choose to avail herself of an outside instructor for the provision of services included in the IESP, in the belief that such instructor will render a greater benefit to her child, that choice does not negate the qualifications, under New York State law, of an otherwise qualified and credentialed

DOE provider.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS HEREBY ORDERED THAT:

The Parent’s request for an enhanced-rate voucher for payment for the outside provider through for the 2015/16 school year is denied.

Dated: November 24, 2015

BRUCE S. OLINGER, 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

1. Due Process Hearing Decision dated April 30, 2015 (11 pages)

2. Evaluation dated July 17, 2013 (14 pages)

3. Email correspondence (5 pages)

4. Letter and Misc. Information from , dated October 2, 2015 (5 pages)

DEPARTMENT OF EDUCATION

1. IESP dated October 21, 2014 (10 pages)

2. CSE Minutes dated October 21, 2014 (2 pages)

3. Teacher/Provider Report dated October 3, 2014 (7 pages)

4. Progress Report dated May 7, 2014 (6 pages)

5. Related Services Student Progress Report ( ) dated October 13, 2014 (3 pages)

6. Prior Written Notice dated October 23, 2014 (4 pages)

7. Parent Notice of Intent/Parentally Placed dated May 13, 2015 (1 page)

8. Report Card dated 2014/15 school year (3 pages)

9. Events Log dated 9/16/13-5/13/15 (5 pages)

10. Notice of Eligibility for provider undated (2 pages)

11. Email Correspondence (2 pages)

12. Email Correspondence (1 page)

13. Resume of DOE Provider , undated (1 page)

IMPARTIAL HEARING OFFICER

1. Decision and Order on Pendency, dated August 26, 2015 (9 pages)

2. Case Extension Granted, dated 9/29/15 and 10/6/15 (2 pages)