New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167839

Student’s Name:

Date of Birth:

-- District: I Hearing Requested By: Parent

Date of Hearing: December 18, 2017

January 29, 2018

Actual Record Closed Date: June 8, 2018

Hearing Officer: Tanya Hobson- Williams, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18, 2017

ESQ., Attorney — Student

Law Clerk — Student

Parents

Parents

ESQ., Attorney — DOE

ESQ., Attorney — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2018

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Parents

Neuropsychologist — Student

School — Student

ESQ., Attorney — DOE

ESQ., Attorney — DOE

INTRODUCTION

The undersigned Hearing Officer was appointed to this matter on or about November 9, 2017. A Due Process Complaint was filed on or about August 3, 2017. The student is a -year-old attending School via a unilateral placement by the Parents. The Parents allege that the District failed to provide the student with a FAPE for the 2016/2017 school.

JURISDICTION

A decision in this matter is rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq.

BACKGROUND

On or about August 3, 2017, the Parents filed a Due Process Complaint alleging a denial of a Free and Appropriate Public Education (FAPE) for the 2016/2017 school year. The student was diagnosed with Specific Learning Disability in Reading (Decoding, Fluency, comprehension), Specific Learning Disability in Math (Calculations), Specific Learning Disability in Written expression (Rapid Retrieval, Sentence Formulation), Generalized Anxiety Disorder.

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A Pre-hearing conference was held on November 22, 2017. Due Process hearings were conducted on December 18, 2017 and January 29, 2018. Esq. and

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, Law Clerk attended for the Parents on December 18, 2017, , Parent and Parent attended and , Esq. and , Esq. appeared for the District on December 18, 2017, appeared with on behalf of the District on January 29, 2018.

The Parents Offered Exhibits A through M. Parent’s Exhibit D was excluded by the Hearing Officer. The District submitted Exhibits 1-11. Exhibits 5 and 9 were withdrawn, the balance were admitted into evidence.

The actual record close date is June 8, 2018.

In accordance with the testimony provided at the hearings and the exhibits admitted into evidence, my decision is as follows:

FINDINGS OF FACT

On May 11, 2015, the Parents sent a letter to the school requesting a meeting to develop an IEP for the student when he was in the grade because they believe he was struggling. [Ex. C; Tr. 146). The Parents obtained a neuropsychological evaluation conducted in October 2014. [Exhibit E]. The student was provided with a 504 Plan with testing accommodations. [Tr. 144-145]. No CSE meeting was conducted during the 2015/2016 school year. [ Tr. 148]. On June 8, 2015, a social interview was performed. [Tr. 34, 151, Exhibit 7]. The Parents unilaterally enrolled the student at the School for the 2015/2016 school year and received tuition reimbursement from the District under a settlement agreement. Tr. 148, 147.

The District acknowledged that the CSE meeting for the 2016/2017 school year was conducted outside of the time lines required for conducting a CSE meeting. Tr. 10.

During the 2016/2017 school year, the Parents unilaterally enrolled the student at the school. Tr. 149-150. Notice was provided to the District on August 22, 2016 which was at the beginning of the 2016/2017 school year that they were unilaterally placing the student at the school for the 2016/2017 school year. [Tr. 152, 153, Exhibit B].

On November 30, 2016, a classroom observation of the student was conducted while the student attended the school. [Exhibit 6]. The student’s classroom size at the school for language arts is 11:1:1. [Tr. 107]. The student receives Orton-Gillingham skills at the School where he works on decoding and spelling skills and strategies. [Tr. 108, Exhibit I].

On December 21, 2016, the District conducted an educational evaluation. [Exhibit 8, Tr. 44]. The District’s evaluation concluded that the student had a high average overall full-scale IQ, demonstrated superior verbal comprehensions skills, high average skills in Case No. 167839 perceptual reasoning and average skills in working memory and processing speed. [Exhibit 8].

The District conducted a CSE meeting pursuant to the Parents’ May 11, 2015, request on or about January 31, 2017. (Exhibits 1-4). By the time the CSE convened, the Parents unilaterally placed the student at the school for the 2016/2017 school year because no meeting had occurred. [Tr. 149, 150]. Once convened, the CSE determined that the student was ineligible for special education services. [Exhibit 1]. The Parents filed a Due Process Complaint on August 8, 2017. [ Exhibit A].

The CSE reviewed a classroom observation, a social history interview, and an educational evaluation, in December 2016. [Exhibits 6, 7,8, E and F, Tr. 32]. The CSE reviewed the 2014 neuropsychological evaluation submitted by the Parents. [Exhibit E]. This neuropsychological evaluation indicated that the student was performing within the average to above average range across areas of cognitive abilities. [Exhibit E]. The WISC-IV indicated that the student’s cognitive capacities fell in the high average but stated that the score was misleading because the student’s abilities ranged from superior to average. [Exhibit E]. The student’s verbal comprehension was superior, perceptual reasoning was high average, working memory was average and processing speed was average. His verbal also ranged from superior to average/high average. [Exhibit E]. The student’s processing speed ranged from average to low average. The evaluation determined that that the student had remarkable cognitive strengths but has challenges to either detect patterns or sequences in nonverbal data sets that likely undermine the student’s reading skill acquisition and exert an inhibiting influence on his ability to master fluent, automatic decoding. [Exhibit E].

The student displayed grade appropriate ability to identify increasingly sophisticated sight words and average ability to decode nonsense words. The student struggled to blend individual phonemes together in order to say words and scored in the 5th percentile which was borderline. His math skills were consistently in the Average range. His written expression skills were consistently age appropriate. The student’s receptive language capacity was variable ranging from superior to low average. The student’s expressive language skills ranged from average to average/low average. The student’s ability to recall verbal information fell consistently in the average range. His visual-spatial skills ranged from superior to average/low average.

The neuropsychological evaluation recommended SETSS for remedial decoding using a multi-sensory approach such as Orton-Gillingham or placement in an ITT class individual tutoring, instruction in how to sequence ideas, graphic organizers, wordprocess writing, extended time, warning and time to prepare before asked to read out loud, preferential seating, and individual psychotherapy if necessary. [Exhibit E].

The student’s academic achievement fell within the average to above average range in the areas of reading, writing and math.

The educational evaluation conducted by determined that the student worked best when provided with sufficient time, scaffolding and support to problem solve. [Exhibit F]. The evaluation determined that the student displayed significant difficulties with decoding, reading words out of context, reading comprehension and unstructured writing. [Exhibit F]. Due to his welldeveloped cognitive abilities, the student was able to establish meaning from passages but his reading indicated difficulties with accuracy, fluency and comprehension. This evaluation diagnosed the student with dyslexia. [Exhibit F].

The CSE team relied upon the WISC-IV and KTEA achievement measures used in the neuropsychological evaluation and educational evaluation. Tr. 34. The CSE team also relied upon standardized academic measures from educational achievement tests submitted by the student’s Parents which placed the student’s reading skills in the average range. Tr. 34. The student’s reading skills across areas of sight word recognition, passage comprehension and reading fluency was in the average range. The GORT achievement measure placed the student’s reading skills in the average to borderline range across fluency, decoding and comprehension. [Exhibit E].

The CSE team considered all 13 disability classifications, including emotional disturbance, given the student’s diagnosis of anxiety disorder, and determined that the student did not meet eligibility criteria for special education services. The CSE’s determination that the student did not meet the eligibility standards was because they found that his anxiety did not have a severe impact on his ability to learn. Tr. 35. The CSE team also considered the other health impairment classification but also determined that the student’s anxiety did not impair his ability to make progress within the learning environment as evidenced by the student’s reading, writing and math scores. Tr. 35. The team disagreed with the January 2017 educational evaluation that indicated that the student had a learning disability in reading and which recommended that the student receive special education supports and placement in a small class room setting. Tr. 36. The CSE team disagreed with the evaluation because they determined that the student was making progress and was either approaching or on grade level in reading, writing and math. They determined that the student demonstrated the ability to benefit from a general education curriculum. Tr. 36. The District’s school psychologist indicated that the educational evaluation was using a medical model to diagnose the student with a learning disability and the team was focused on the student’s progress. Tr. 36-37.

The student demonstrates a weakness in decoding. [Exhibit F, Tr. 39]. His math problem solving skills are above average and he receives remediated instruction in math and reading. Tr. 39-40.

The student’s progress report for the 2016/2017 school year while at the school shows some progress from the Winter to the Spring. [Exhibit M]. The student’s report card shows that the student is performing well. [Exhibit L]. The

School Committee on Special Education Liaison and the teacher comments indicated that the student was making progress. [Exhibit M, Tr.114]. The school liaison believed that the CSE made their decision that the student was not eligible for special education services without considering all relevant factors instead relying solely on data. Tr. 126-127]. All of the students at the school have a language-based learning disability which is a criterion for admission to the school. Tr. 132.

DECISION AND ORDER

The Parents allege a denial of FAPE for the 2016/2017 school year. The Parents are seeking tuition reimbursement for the student’s attendance at the school.

The IDEA is designed to assist states to meet the educational needs of children with disabilities, and it establishes an enforceable right to a "free appropriate public • education.” See Mrs. W. v. Tirozzi, 832 F.2d 748, 750-51 (2d Cir. 1987) (citing 20 U.S.C. § 1400(c)). A free appropriate public education is defined as "special education and related services" tailored to the individual needs of the child. Further, the Supreme Court has determined that a "free appropriate public education" must consist of "educational instruction specially designed to meet the unique needs of the disabled child, supported by such services are necessary to permit the child 'to benefit' from the instruction." Board of Educ. v. Rowley, 458 U.S. 176, 188-89, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982).

A student’s parent is permitted to refer a student for special education services. 8 NYCRR 200.4(a)(1)(i). The District is then required to obtain the parent’s consent within 10 school days. 8 NYCRR 200.4(2)(iv). Upon receipt of a referral, the building administrator may request a meeting with the parent to determine whether the student would benefit from additional general educations support services as an alternative to special education, including support services, speech and language, academic intervention services or any other services to address the learning needs of the student and maintain the student’s placemen in general education. 8 NYCRR 200.4(9). As noted by the District, a student may also receive a 504 plan in a public school setting. [District’s closing statement].

The IDEA requires states to "identify and evaluate disabled children, develop an IEP for each one, and review every IEP at least once a year." Schaffer, 546 U.S. at 53 (internal citations omitted). School Districts are obligated to identify, locate and evaluate all children with disabilities from birth, even if they do not provide the child with educational services. 20 U.S.C. § 1412(a)(3), 34 C.F.R. § 300.111. An IEP must create an educational environment that is the “least restrictive setting consistent with a child’s needs.” Grim v. Rhinnebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

On May 11, 2015, the Parents sent a letter to the school requesting a meeting to develop an IEP for the student when he was in the grade because they believe he was struggling. [Ex. C; Tr. 146]. The District did not conduct an evaluation for the student during the 2014/2015 school year and did not conduct an evaluation of the student until December 21, 2016 which was during the 2016/2017 school year. [Exhibit 8, Tr. 44]. Additionally, the District did not request a meeting with the parent to determine whether any supportive services could be provided to the student to permit him to remain in a general education setting.

On December 21, 2016, the District conducted an educational evaluation of the student. [Exhibit 8, Tr. 44]. On January 31, 2017, the District conducted a CSE meeting finding the student ineligible for services. [Exhibit 1]. Pursuant to 8 N.Y.C.R.R. 200.4, the initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation. 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.3232(a); 8 N.Y.C.R.R. § 200.4(e)(ii); see 71 Fed. Reg. 46682 (stating that the IDEA “is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency’s jurisdiction.”); see Application of a Student with a Disability, Appeal No. 13-097. The District conceded that they failed to conduct the initial evaluation within the timeframe provided in the regulations. Tr. 10.

Since the District failed to conduct a meeting within the time constraints before the 2016/2017 school year, the Parents unilaterally placed the student at the school. Accordingly, it was the District’s delay that resulted in the unilateral placement, at least up to the point that the District actually conducted the CSE meeting.

The Parents also allege that the District failed to appropriately classify the student with a disability. In order to be classified as a child with a disability under IDEA, the student must not only have a specific disability as set forth in the Act, but the disability also must adversely affect the student's educational performance such that the child requires special services and programs. See Board of Educ. of City School Dist. of City of Fulton, SRO Dec 07-042, citing Application of the Board of Educ., Appeal No. 06-120; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Thus, in determining whether a student is eligible under IDEA, the student must: (1) have a disability which falls within at least one of the delineated classifications under IDEA; (2) the disability must have had an adverse effect on the student's educational performance; and (3) as a result of the adverse impact on the student's education, he or she needs special education and related services. See A.J. v Board of Educ., E. Islip Union Free School Dist., 679 F. Supp. 2d 299, 254 Ed Law Rep 826 [ED NY 2010]). "Whether an impairment adversely affects educational performance must be determined on a case by case basis, depending on the unique needs of a particular child.

In C.B. ex rel. Z.G. v. Dep't of Educ., 322 F. App'x 20, 21 (2d Cir.

2009) (unpublished opinion), the IHO found that the student was a "child with a disability " under the IDEA based on her ADHD and co-morbid bipolar disorder. The SRO reversed this finding and the district court affirmed, finding that the child was not "other health impair[ed]," which is defined as having a designated condition (including ADHD) "which adversely affects a student's educational performance." 8 N.Y.C.R.R. § 200.1(zz)(10).

In rejecting the student’s appeal, the Circuit found:

Neither party contests that ADHD and bipolar disorder could qualify as disabling conditions. The question is whether Z.G.'s experience of those conditions adversely impacted her educational performance. Z.G.'s grades and test results demonstrate that she continuously performed well both in public school before she was diagnosed, and at the Dalton school thereafter. The DOE's psychoeducational assessment and a psychological evaluation requested by plaintiff concur in finding that Z.G. tested above grade-level and do not opine that

Z.G.'s educational performance has suffered. While Z.G's treating psychiatrist and teacher at Dalton testified to their observations of Z.G.'s difficulties with bipolar disorder and ADHD, there was a continuity of Z.G.'s successful performance both before and after her conditions were diagnosed. The evidence on record is insufficient to show that Z.G. has suffered an adverse impact on her educational

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performance.

In this case, the District’s school psychologist, participated in the student’s initial IEP meeting on January 31, 2017, as the District Representative and School Psychologist. Tr. 27. Ms. evaluated the student using the Kaufman Test of Educational Achievement (“KETA”). Tr. 23-57. Ms. testified that the IEP team considered the classifications of Learning Disability and Emotional Disturbance and found that the student did not meet the criteria for eligibility. Tr. 34-36. Ms. testified that this was based on “educational testing” that demonstrated that the student was a student of average cognitive ability and that his academic achievement was within the average range for reading writing and math. Tr. 33-34. Ms. testified that she came to a different conclusion than all of the other evaluations recommending special education services for the student because, the student was “making progress…and demonstrating the ability to benefit from curriculum, from general education curriculum”. Tr. 36. The IEP meeting minutes, written by Ms. stated that, “there was no indicator for dyslexia,” (Ex. 4; Tr. 30, 36-37), that “all sub testing results were assessed in the average range,” and that “the Educational Update results were similar” to the DOE’s testing results (Id.). Ms. also testified that she did not rely on the discrepancy model for statistical and conceptual reasons, but rather, as specifically authorized by the IDEA, focused on the student’s ability to make progress in the general education curriculum and respond to evidence-based interventions. Tr. 35-37; 55. She explained that his somewhat lower scores in certain areas, such as nonsense word decoding, did not translate into a practical inability to make progress at grade level. Tr. 50-51.

The determination of whether a child is a student with a disability under the IDEA is separate and distinct from whether they have a medical diagnosis. A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff'd sub nom. A.P. v. Woodstock Bd. of Educ., 370 F. App'x 202 (2d Cir. 2010).

The record shows that the student was sufficiently able to make academic progress even with a diagnosis of Specific Learning Disability in Reading (Decoding, Fluency, comprehension), Specific Learning Disability in Math (Calculations), Specific Learning Disability in Written expression (Rapid Retrieval, Sentence Formulation), Generalized Anxiety Disorder.

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit.” Id. at 364; see also Gagliardo, 489 F.3d at 112.

The program at is based on Orton-Gillingham principles and multisensory. Tr. 96. The class sizes at are seven to eleven students and there are typically two instructors in the classroom. Tr. 96-97. Students are grouped homogenously based on skills and needs for language arts and math, and heterogeneously based on grade for their remaining classes. Tr. 98. The student’s progress at the school is reflected in the report card and progress reports. [Exhibits K, L, Tr. 113-23].

The District’s Classroom Observation indicated that the student’s needs were being met at for the 2016/2017 school year. [Exhibit 6]. The District observed he student reading, engaging with his materials, being appropriately redirected, and responding to positive behavioral interventions and supports. The District’s witness, testified that “at [the student] is making progress with the strategies, with the evidence-based strategies. Tr. 55. As such, the student’s placement at the School was appropriate for the first half of the 2016/2017 school year.

In this case, the Parents demonstrated that the student made progress while attending the school. Since there was no IEP meeting at the time the student was unilaterally placed, the parents had no option for the student who was previously placed in a special education program. Therefore, the Parents have established that under these limited circumstances, that placement at was appropriate for the student for the first half of the 2016/2017 school year. However, my finding as to appropriateness is limited to the student’s placement up until January 31, 2017 when the CSE met and determined that the student was not eligible to receive special education services. The student was diagnosed with a disability but that disability did not adversely impact his educational performance. Based upon the regulations, the student did not meet the criteria for requiring special education services.

Based upon the evidence and testimony, the District failed to provide a FAPE for the beginning of the 2016/2017 school year by their failure to timely evaluate the student. The evidence presented shows that the Parents were placed in a position to unilaterally place the student due to the District’s failure to timely conduct a CSE meeting. Further, the evidence supports a finding that the school is an appropriate placement during the first half of the 2016/2017 school year as the student was progressing and receiving educational benefit. The parents have cooperated with the District by attending the meetings and presenting the student to the District for evaluation. Tr. 151, 152. The equities favor the Parents.

It is therefore ordered that the District reimburse Parents for the cost of tuition at the school for the period of September 2016 to January 31, 2017. It is So Ordered. Dated: June 19, 2018 Tanya Hobson Willaims mv

TANYA HOBSON-WILLIAMS, ESQ.

Impartial Hearing Officer THW: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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

EXHIBIT DATE DESCRIPTION NO. OF

NO. PAGES

1 1/31/2017 Ineligibility Letter 1 2 1/31/2017 Present Levels of Performance 4 3 1/31/2017 Attendance Page 1 4 1/31/2017 Meeting Minutes 1 5 10/22/2014 Neuropsychological Evaluation 20 6 11/30/2016 Classroom Observation 2 7 12/19/2016 Social History Report 3 8 12/21/2016 Educational Update 6 9 1/26/2017 Educational Evaluation 8 10 2016-17 Report Card 1

STUDENT

A Impartial Hearing Request, 8/3/17, 4pp B Notice, 8/22/16, 2pp C Parent Request for Evaluation and IEP, 5/11/15, 1pp D Stipulation of Settlement, 11/10/16, 5pp E Neuropsychological Evaluation, 10/2014, 20pp F Educational Evaluation, 1/2017, 8pp G Enrollment Contract, 3/8/16, 2pp H Payment Affidavit, 10/6/16, 1pp I Class Schedule, 2016-17, 2pp J Attendance Record, September- June, 4pp K final report card, 2016/2017, one page L final progress report, 2016/2017, 13 pages