New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167755

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 6, 2017

October 13, 2017

March 1, 2018

April 9, 2018

Actual Record Closed Date: April 13, 2018

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2017

Mother

Father

Advocate — Parents

Advocate — Parents

via School Psychologist — District

telephone

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2017

Mother

Father

Advocate — Parents

-Advocate

via Director of Tutoring — Parents

telephone Academy

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2018

Advocate — Parents

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2018

Mother

Father

Advocate Advocate — Parents

District Representative — District

On July 28, 2017, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) in the matter of (hereinafter " "). The Parents filed their initial request for an impartial hearing on July 28, 2017 and amended their due process complaint on November 10, 2017 and a second amended due process complaint was filed on December 1, 2017. The hearing dates were held on October 6, 2017, October 13, 2017, January 31, 2018 and April 9, 2018.

The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. The joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. 223-225; Exhs. 1-V). The current record close date is April 14, 2018 and the decision due date is April 28, 2018. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

The hearing was requested by the Parents to demand that the Department of Education ("DOE") reimburse them for the cost incurred by the Parents for tutoring services of specialized reading instruction from a tutor who used Orton Gillingham ("OG") methodology and to pay for the costs for compensatory tutoring services from an OG trained provider. The Parents seek an Order that the DOE pay for 620 hours per week of one to one ("1:1") special education teacher support services ("SETSS") at the rate of $150.00 per hour to be used within 3 year from the date of my Order. The Parents requested that the DOE provide 24.5 hours of compensatory 1:1 Speech and Language Therapy ("SLT") for the DOE's failure to provide SLT; (3) 14.5 hours of compensatory 1:1 Occupational Therapy ("OT") for the DOE's failure to provide OT to be provided through a related service authorization ("RSA") to be used within 3 years from the date of my Order (Exh. MM at 27;Tr. at 196). The Parents withdrew their request for compensatory counseling; supplementary services added to the Individualized Education Plan ("IEP") for the 2017-2018 school year (Exh. MM at 28; Tr. at 196) The Parents withdrew their request for the following: (1) individualized specialized reading instruction; (2) individual SETSS in a separate location; (3) ; (4) extended year services of OT; (5) specialized reading instruction and SETSS and (6) reimbursement for $4,440 of special education tutoring (Exh. MM at 28-29 ;Tr. at 197200). The District representative agreed that the Parents were entitled to amount of compensatory related services as calculated by the Parents (Tr. at 199) and the reasonableness of the Parents' request for relief (Tr. at 222). The Parents provided checks (Exhs. V;NN) as proof of payment for

- tutoring.

The Parents seek an Order for the following relief: (1) that the DOE to pay for 620 hours of 1:1 SETSS at the rate of $150.00 per hour to be used within 3 year from the date of my Order; (2) that DOE reimburse the Parents in the amount of $10, 060.00 for the cost the -- tutoring; (3) that the DOE reimburse the Parents in the amount of $200.00 for evaluation (4) that the DOE reimburse the Parents in the amount of $500 for academic testing; (5) that the DOE provide 24.5 hours of compensatory 1:1 SLT for the DOE's failure to provide SLT; (6) that the DOE provide 14.5 hours of compensatory 1:1 OT for the DOE's failure to provide OT (7) that the DOE provide the Parents with a related service authorization ("RSA") to be used within 3 years from the date of my Order (Exh. MM at 27-30;Tr. at 196-199). The Parents further request that that this case be remanded to the Committee on Special Education ("CSE") to develop an appropriate IEP.

BACKGROUND

- . was born in 2007 and currently resides in District in where she attends an Integrated Collaborative Teaching ("ICT") classroom in

, NY,

(Exhs. KK at 1;M at 1). She had had a long history of learning issues due to cognitive weakness (Exh. J at 3). . has made little academic progress in all areas based on current assessment and teacher observations as noted in the IEP dated November 9, 2017

(Id.). The Prior Written Notice dated November 21, 2017, indicated that . was classified as Learning Disabled and noted that was placed in an ICT class and received the following related services: counseling services in a group; individual counseling services; OT in a group; SLT in a group; individual SLT and an individual health paraprofessional (Exh. LL at 1).

-

School Psychologist, conducted a psychological update on March 30, 2015, when . was years and . She assessed .'s cognition on

- the Wechsler Intelligence Scale for Children, Fourth Edition ("WISC-IV") and found a full scale IQ of 63, in the Extremely Low Range and her Verbal Comprehension Score was 71, in the Borderline Range and her Working Memory Score was 65, in the Extremely Low Range and her Processing Speed Score was 75 in the Borderline Range (Exh. G at 2). She noted that . required repetition and clarification (Exh. G at 3).

-

On various dates in June 2015 and July 2015, a central auditory processing

- evaluation was conducted on . when she was I years old and 1 month and the evaluator noted that . was in second grade attending an ICT class in as her teachers reported her difficulty in sustaining focus and following directions (Exh. I at 1) and found that . had "difficulty in every area evaluated (binaural separation, binaural integration, auditory closure, temporal pattering and auditory memory)"(Exh. I at 7).

-

On various dates in July, September and October 2015, a neurocognitive evaluation was conducted on . by , Ph.D., Clinical Psychologist, who found . had "weaknesses in attention and executive skills, language skills,

- sensorimotor functioning, visuospatial skills and visual and verbal memory" (Exh. J). Dr.

concluded that .'s learning issues were due to a cognitive weakness and that her neurocognitive problems were never addressed through a multisensory approach and recommended a "multisensory approach to work on attention and executive skills, language skills, sensorimotor functioning, visuospatial skills and visual and verbal memory" (Exh. J at 4).

On July 28, 2017, a psychoeducational update was conducted on by , Ph.D., Licensed Psychologist, who assessed her cognitive functioning on the WISC-V and noted similar scores as the prior WISC-IV results as the subtests were in the Very Low and Extreme Low range (Exh. W at 2;6). Dr. noted that .'s academic functioning with the Weschsler Individual Achievement Test, Third Edition

("WIAT-3") and noted that her WIAT-3 scores were follows: a grade equivalent ("GE")

of 2.3 in word reading; a GE of 1.5 in pseudoword decoding; a GE of 2.8 in spelling and a GE of <3.0 in essay composition (Exh. W at 7). Dr. concluded that .'s DSM5 diagnoses were Attention Deficit Hyperactivity Disorder ("ADHD") and Specific Learning Disorder with an impairment in Reading and Reading Comprehension and an impairment in Written Expression (Exh. W at 3).

-

On November 7, 2017, the CSE met classified . as Learning Disabled and recommended that . be placed in New York State DOE School Non-Specialized in an ICT class for math and ELA and receive SETSS in ELA (Exh. LL at 1).The IEP indicated that , made little academic progress in all areas based on current assessment and teacher observations (Id.). The IEP indicated on page 3 in the academic achievement section that she was highly distracted and had difficulty following directions and had difficulty with organization and required information

- to be repeated and broken down (Exh. KK at 3). The IEP noted in physical development section that . had decreased visual attention; . was easily distracted and the classroom and displayed work avoidant behavior (Exh. KK at 5).

-

The Prior Written Notice dated November 21, 2017, indicated that . was classified as Learning Disabled and noted that . was placed in an ICT class and received the following related services: counseling services in a group; individual counseling services; OT in a group; SLT in a group; individual SLT and an individual health paraprofessional (Exh. LL at 1).

THE DOE'S CASE

-

The DOE representative agreed that the DOE failed to offer a free and appropriate public education ("FAPE") and did not dispute the Parents's allegations about the 's lack of FAPE for the 2015-2016, 2016-2017 and 2017-2018 school years and did not dispute the Parents' allegations about the lack of progress, and did not present a case and rested on the evidence (Tr. at 172;222).

THE PARENTS'S CASE

The Parents's case was presented by the testimony of , the Director of

-

Academy and the Parent.

Ms. a licensed reading specialist, and an certified specialist who was certified through the and employed by the DOE for 20 years, testified that she held a Master's degree and held a professional degree as an

- administrator of NYC public school from Kindergarten through 12 and possessed a -- certificate in OT (Tr. at 141;156). She explained that . was a student in the that

-

. received individual tutoring based on the results of the stated that assessment. She exhibited severe dyslexia, had difficulties with memory and sustained

- attention and opined that the approach of multisensory instruction was effective in developing her literacy skills (Tr. at 142). Ms. noted that responded to the scaffolding and reinforcement and that . struggled with working memory based on the WISC V score (Exh. W at 6) and that the multi-sensory approach was designed to enable

-

to succeed in psuedoword decoding, reading comprehension, writing, spelling, vocabulary and written language development (Tr. at 145). She opined that . was able to learn basis writing skills (Tr. at 146).

Ms. opined that as an expert in teaching reading that received the basic skills and was now able to read multisyllabic words and was learning how to synthesize information (Tr. at 148). She recommended 3 to 4 hours of tutoring per week

- - - to develop comprehension skills, vocabulary skills and written language development (Tr. at 149). She stressed that tutoring addressed .'s short-term memory deficits as was designed to maintain skills over time (Tr. at 152). She stated that an tutor was a practitioner who received 200 hours of

-

training and was clinically supervised and

-- that the rate of an tutor who was a practitioner was $150 per hour (Tr. at 154). She recalled that the clinical practitioners who worked with . and provided 1:1 tutoring for the past 2 years (Tr. at 156). She explained that she assessed and then developed

- - lesson planning and that there was tracking system and post lesson assessment to ensure that progressed (Tr. at 157). She opined that when started at she was able to read at an early first grade level and that she had progressed 5 levels in phonological processing and her vocabulary progressed 7 levels (Tr. at 157).

The Parent testified that she researched tutoring programs and determined that the

- -

methodology was able to provide the specialized reading instruction that her daughter required and that her daughter progressed with tutoring from (Tr. at 209-215). She stated that she paid for tutoring and evaluation (Tr. at 217).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, 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. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). 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]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]).

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The DOE representative did not dispute the Parent's allegations about the lack of FAPE for the 2015-2016, 2016-2017 and 2017-2018 school years and did not dispute the Parents' allegations about the lack of progress.

The Southern District ruled on the whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y 2010). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of related services or SETSS services; however, I note that the parents provided substantial evidence to demonstrate that was appropriate provider of SETSS sessions and that the Parents were entitled to reimbursement and prospective funding for SETSS sessions of

- tutoring at I

find that the Parents must establish that the proposed placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. (Frank G., v. Bd of Educ. Of Hyde Park, 459 F. 3d 356, 365 [2d Cir. 2006]). The courts have held that, in determining the appropriateness of a private placement, the Parents is not required to show that the placement is perfect (Warrant v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3rd Cir. 1999]). After reviewing the testimony and evidence in this case, I find that the Parents have met their burden of proof with respect to the tutoring services to be provided by testimony and find that - . I credit Ms.

. will receive individual tutoring based on the results of her assessment and that she developed lesson planning and that there was tracking

- system and post lesson assessment to ensure that . progressed (Tr. at 157). I find that . required individual instruction and coaching to progress.

I find that . was entitled to compensatory services. and that the Parents was unable to pay for tutoring at (Tr. at 210). I find compensatory education is available as an appropriate remedy under the Individuals with Disabilities Education Act (“IDEA”).

P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F. 3d 111 (2nd Cir. 2008). Compensatory education, as with other forms of available remedies, serves the purpose of ensuring that the student is appropriately educated within the meaning of the IDEA. Newington, 546 F.3d at 123, quoting Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir. 2005) as cited in Newington, 546 F.3d at 123. I credit the testimony of Ms.

- -

regarding the amount of hours that . required to increase her math, reading and writing skills. I also find persuasive the unrebutted opinion that . needs 620 hours of 1:1 tutoring from a

- - - - -

practitioner and that her needs could be addressed at practitioner. I find the record supports a finding that program for . as I credit the testimony from Ms.

provided an appropriate

that

by a

. could receive tutoring from a tutor certified in

- (Tr. at 154). I also credit Ms. testimony that

- tutoring would address

- .'s deficits with short-term memory and difficulties with sustained attention and diagnosis of ADHD and Specific Learning Disorder. I credit Ms.

testimony and find that the

- approach of multisensory instruction was effective in developing her literacy skills (Tr. at 142) and was recommended by Dr.

- (Exh. J at 4) met her unique needs. I further credit Ms. testimony and find that tutors had successfully taught students with profiles similar to 's profile. I find that 620 hours were reasonable in light of the number of years that FAPE was denied. I find that the DOE presented no witnesses or evidence to demonstrate 620 hours of tutoring was not appropriate.

I find the equities favor the Parents. Prospective funding is an appropriate remedy under IDEA. "Once the Burlington prerequisites relative to a non-approved private school are met, and a Parents shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately." (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)). I find the Parents are entitled to prospective funding and reimbursement.

ORDER

Therefore, it is hereby ordered that the DOE provide the following: ( 1) payment for 620 hours per week of 1:1 SETSS at the rate of $150.00 per hour to be used within 3 year from the date of my Order; (2) reimburse the Parents in the amount of $10, 060.00 for the cost

- tutoring; (3) reimburse the Parents in the amount of $200.00 for the evaluation; (4) reimburse the Parents in the amount of $500 for academic testing; (5) provide 24.5 hours of compensatory 1:1 SLT; (6) provide 14.5 hours of compensatory 1:1 OT; (7) provide the Parents with a RSA for the compensatory SLT and OT to be used within 3 years from the date of my Order; and (8) that this case be remanded to the Committee on Special Education ("CSE") to develop an appropriate IEP for the 20182019 school year.

Dated: April 24, 2018 Linda Agoston mv

LINDA AGOSTON, ESQ.

Impartial Hearing Officer LA:mv

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 6, 2017

A Impartial hearing request, 7/28/17, 16 pp. Parentss

B IEP, 5/23/17, 33 pp. Parentss

C Report card, 2016/2017, 2 pp. Parentss

D IEP progress report, 6/19/17, 15 pp. Parentss

E Letter from provider, 11/21/16, 1 p. Parentss

F Withdrawn

G PsycholOGcal update, 3/30/15, 3 pp. Parentss

H Withdrawn

I Central auditory processing evaluation, various dates, 7 pp. Parentss

J Neuro-cognitive evaluation report, 10/24/15, 4 pp. Parentss

K Letter from neuropsycholOGst, 11/1/15, 1 p. Parentss

L IEP progress report, 11/3/15, 6 pp. Parentss

M Letter regarding RTI, 12/3/15, 5 pp. Parentss

N Withdrawn

O Withdrawn

P IEP progress report, 4/4/16, 12 pp. Parentss

Q Report card, 2015/2016, 2 pp. Parentss

R IEP progress report, 6/10/16, 5 pp. Parentss

S IEP progress report, 10/31/16, 15 pp. Parentss

T IEP, 4/4/16, 30 pp. Parentss

U Withdrawn

V Receipt from Tutoring,4/20/16 to 6/7/17, 13 pp. Parentss

1 Withdrawn

2 Due process response, 8/3/17, 4 pp. District

3 Withdrawn

4 IEP, 12/12/16, 33 pp. District

5 Healthcare Associates neuropsycholOGcal evaluation,

7/5/16 and 7/6/16, 10 pp. District

6 Withdrawn

-

7 IEP, 1/27/16, 25 pp. District

8 Documents regarding services,1/12/16, 3 pp. District

9 IEP, 12/2/15, 19 pp. District

10 Withdrawn

11 IEP, 4/1/15, 26 pp. District

I Decision on extension, 10/6/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 13, 2017

W Updated psycho-educational evaluation, 7/28/17, 8 pp. Parentss

X Receipt of psycho-educational evaluation, 7/28/17, 1 p. Parentss

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 1, 2018

I Decision on extension, 10/6/17, 1 p. IHO

II Decision on extension, 2/14/18, 1 p. IHO

III Decision on extension, 3/1/18, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 9, 2018

Y Amended hearing request, 11/10/17, 9 pp. Parentss

AA-JJ Withdrawn

KK IEP, 11/9/17, 23 pp. Parentss

LL Prior written notice, 11/21/17, 4 pp. Parentss

MM Amendment to amended request, 12/1/17, 34 pp. Parentss

NN Receipts for tutoring, various dates, 4 pp. Parentss

I Decision on extension, 10/6/17, 1 p. IHO

II Decision on extension, 2/14/18, 1 p. IHO

III Decision on extension, 3/1/18, 1 p. IHO

IV Decision on extension, 4/9/18, 1 p. IHO