New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 128326 Student‟s Name:

Date of Birth:

District: 2 Hearing Requested By: Parent Date of Hearing: October 21, 2010

November 30, 2010 Hearing Officer: Ralph Pennington, Jr., Esq.

Correction

Case No.: 128326

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2010

Student

Student

Parents

Education The — Student

DOE

School (via telephone) — DOE

Education (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2010

Student

Student

Parents

Student

(via telephone) — Student

(via telephone) — Student

School (via telephone) — Student

DOE

— DOE

PARENT’S POSITION

The parent contends that the New York City Department of Education (hereinafter referred to as “Department”), has failed to offer the student an appropriate educational placement/program for the 2010-2011 school year. The parent contends that the (hereinafter referred to as “ ”) provides the student with an appropriate education and the weighing of the equities favor the parent.

The parent argues that the recommended collaborative team teaching (hereinafter referred to as “ ”) class was too large and did not maintain the necessary supports to provide the student with sufficient individualized attention. The Committee on Special Education (CSE) team did not consider all relevant, material documentation, in particular exhibit eight, evaluation.

Thus, the parent seeks prospective tuition funding and/or direct payment for the 2010-2011 school year.

DEPARTMENT’S POSITION

The Department argues that the student‟s program and school placement are appropriate for free appropriate public education (FAPE) purposes. The student would have been appropriately placed in the proposed class. Further, the parent„s due process complaint does not raise any procedural violations nor does it raise any substantive flaws. The Department alleges that the CSE team was duly constituted and all relevant documentation received proper consideration.

The Department further argues that the parent has failed to present sufficient objective evidence to establish the appropriateness of . The Department further argues that the parent had no intent to place the student in a public school as evidenced by her prior applications to other schools and her discolored view of other classes. Also, the department argues that Connors criteria does not apply in this instance, and if so, that the parent has failed to present sufficient proof as to her , the , and the tuition costs of .

Therefore, the relief sought by the parent is not warranted and the parent‟s complaint should be denied in its entirety, for the 2010-2011 school year.

The subject IEP of March 10, 2010 classified the student as and and a class was recommended. The recommended ratio is to be . A twelve month school year was recommended along with education . The student was to receive the service of: and two times per week in thirty (30) minute sessions each, individually and and once per week in a thirty (30) minute session in a separate location, in a group of up to three; two times per week, in thirty (30) minute sessions each, individually and once per week in a separate location, in a thirty (30) minute session in a group of up to two; once per week in a thirty (30) minute session, individually and once per week in a thirty (30) minute session in a group of up to three. The sessions are to be provided in a separate location. The student is to participate in state and local assessments without accommodations. Evidence presented: On Behalf of the Department;

, School Department, testified that she has been a school for about two years (Tr.30). She has been with the department for three years (Tr.30). She testified as to her responsibilities and she was assigned to several schools (Tr.30-31). She gave her educational background and licensure (Tr.31). She observed the student as part of the process (Tr.32). Next, she testified as to the CSE members who appeared at the subject CSE review meeting, all of whom were present for the whole meeting (Tr.33;35). She further testified as to the documents which were reviewed by the CSE team (Tr.34). Hence, she testified as to the content of the discussion at the CSE review meeting (Tr.36). The parents objected to the recommendation (Tr.37). They felt that the student would be lost in such a large class and he would have (Tr.37).

Thereafter, she gave her rationale as to the appropriateness of the recommended program/placement (Tr.38). She explained how the student‟s high energy and would be addressed in the proposed class (Tr.40-41). The student‟s class had students (Tr.41). Alternative settings were discussed (Tr.43-44). progress reports were reviewed and said witness felt that the student‟s needs could be met in a setting (Tr.45). She felt that the setting was too for this student and explained such (Tr.46). She is aware of the process to recommend a - school and gave an example of such referral (Tr.47).

On c examination, said witness testified that she observed the student once which lasted for about an hour and five minutes (Tr.49). She believes that there other children in the student‟s class and (Tr.50-51). She did observe the student to (Tr.51). She observed him and the speak to him about his (Tr.52). She had spoken to the parent over the telephone to conduct a social history (Tr.53). The results of the exam were discussed at the CSE review meeting (Tr.53). Said witness disagreed with the conclusion in the evaluation (Tr.56). She felt that the student‟s needs could be addressed in a large classroom with supports (Tr.59). She felt it was important for him to be with general education (Tr.65).

Furthermore, she testified as to how the student‟s in to would be addressed in the recommended class (Tr.67).

On re-direct examination, said witness testified that she would consider students with autism for deferral to CBST (Tr.68). She felt that she had spent sufficient time to get a sense of this student and explained such (Tr.70). The parents told her during the social history update that they were not considering a private school placement (Tr.71).

On re-c examination, sad witness testified that during her observation, there was very little between the student and his (Tr.72). She disagreed with the opinion that the student needed to be in a small class (Tr.73).

, Education , Department, testified that this is her third year teaching (Tr.76). She gave her educational background and credentials (Tr.76-77). She is currently assigned to to a class (Tr.77). Next, she testified as to her responsibilities (Tr.78). On the first day of school, there were - students in her class, of which had IEP‟s (Tr.78-79). She testified as to how she addressed the of any student(s) (Tr.79-80). She would chart the student‟s daily (Tr.81). None of the students had ; no student had a and no student had a (Tr.82). The general education has been employed with the department for about twenty-three to twenty-four years (Tr.82).

Thereafter, she testified as to how they divide up responsibilities in the model (Tr.83). Sometimes there were in the class and she testified as to their functions (Tr.8384). None of the other had teaching certifications (Tr.88). The principal meets periodically with the (Tr.88). Said . are also by the (Tr.89). The help to provide more individualized attention (Tr.89). Next, she gave a description of the class structure (Tr.90). There is collaboration with the teachers of the specials (Tr.91-92). The specials are provided in the same class size (Tr.92). Hence, she testified as to a typical lesson and as to the materials used for different subject areas (Tr.95; 97). Hence, she testified as to the modifications employed to the curriculum (Tr.97-98). Assessments are conducted of the students (Tr.98-100). She has never personally met this student (Tr.100).

In her opinion, the student‟s goals and performance levels could have been met in her class (Tr.101). She testified as to how she would address play and also (Tr.102-103). Testimony was given as to how his would be with (Tr.103-104). She further testified as to the individual supports which would be provided (Tr.104). There are students in her class with similar social/ and at similar academic levels (Tr.105; 108). She felt that she could meet his academic needs in her class (Tr.108-109). Next, she testified as to how his and would be handled in her class (Tr.109). The do come into the class and she did collaborate with said (Tr.111).

On examination, said witness testified that she never observed the student and has not seen any of his evaluations (Tr.112). She has not spoken to any of the who have worked with the student (Tr.112). Her class size is not at capacity (Tr.113).

On Behalf of the Parent:

, Education , , Parent, gave educational background (Tr.122). She has been at for six years (Tr.123). She has known the student for three years and was his teacher for one year (Tr.123). His class had a ratio of . The student has the capacity to learn and needs a great deal of support (Tr.127). His are primarily based (Tr.127). He had modulating his social/ responses (Tr.127). She testified as to the assessments given to the student (Tr.130). The student has some cognitive strengths (Tr.130). The assessments were given in an individualized setting (Tr.131).

Furthermore, she testified to the student‟s social/emotional functioning (Tr.132-134). The student did have remaining seated (Tr.133). The student had very stilted pattern (Tr.135). The student‟s challenges became more pronounced in the latter half of the school year (Tr.138). Next, she testified as to his (Tr.139-142). The student was able to focus better in smaller group settings (Tr.143). He had a huge amount of needs, so he was provided with a (Tr.145). The student required the consistent assistance of a to facilitate play (Tr.150).

Hence, she testified that she attended the subject CSE review meeting (Tr.154). The CSE team was given exhibit eight which was discussed (Tr.155). At said CSE meeting, she voiced her concerns about the student and that he would not be able to function in a class size of above (Tr.158-159). There was a lot of discussion about the type of class he should be placed in (Tr.160). There was discussion about deferral to a private school but she felt said topic was not duly considered (Tr.161). The student requires a very small structured, language rich setting (Tr.163).

On c examination, said witness testified that she worked with the general education population for twelve years (Tr.164). She worked in a class (Tr.164). She has been working with special needs students for the past six years (Tr.165). She opined that the student requires a twelve month program (Tr.166). Her objection was to the whole school environment (Tr.167). She felt that he could not mange the transitions (Tr.170). She then testified as to the of her school (Tr.170-171). She constantly would introduce new supports with the student (Tr.176). Ms. worked with the student as his and did so outside of the classroom (Tr.179; 180). She was not aware of the hours (Tr.180). She did not prepare any other educational reports (Tr.182). At times, the student would and on the (Tr.183). She did not mention the of on the in her report (Tr.186). The student required adult support for redirection (Tr.187). Sometimes, the student would become fixated on internal thoughts (Tr.189). Her objection was to the recommended placement and not the IEP (Tr.193). She has not seen the specific class (Tr.196).

Moreover, she has not taught in a setting (Tr.197). While in , the student received the related services on a pull out basis (Tr.197). There was with the , regularly (Tr.198).

On re-direct examination, she stated that a class could not meet the student‟s management needs (Tr.200). There was discussion about additional at the CSE review meeting and why she felt so (Tr.211; 214).

On re-examination, said witness testified the had about to students (Tr.216). She did object to the related service ratios (Tr.217). , Extern, , Parent, gave her educational background (Tr.227). Currently, she is a doctoral candidate at (Tr.227). She completed the student‟s evaluation in fall 2009 as part of his evaluation (Tr.228). She observed the student and conducted several testing sessions (Tr.228-229). was her (Tr.229). She testified as to the assessments that she utilized (Tr.230). Hence, she gave a definition of projective testing (Tr.231). His overall functioning was in the high average range and he had strong cognitive skills (Tr.232). He was and needed redirection (Tr.232). Sometimes, she would have to the student (Tr.235). She felt that the student would have in a large group setting and would not receive sufficient (Tr.236).

On c examination, said witness described the process of her draft of exhibit eight (Tr.238-239). She has no New York State certifications (Tr.242). would review, edit and talk to her about the evaluation (Tr.243). The student required redirection and prompting during testing (Tr.243). She has never observed a class and did not observe the recommended class (Tr.246; 247). The student is fairly high-functioning in terms of cognitive ability (Tr.247). She opined that the student could handle a class of ten to twelve students (Tr.248). The student would benefit from individual counseling (Tr.249).

On re-direct examination, she stated that she had no knowledge as to his class (Tr.250). She did observe him needing redirection in a class of (Tr.250). She did not observe him with the (Tr.251). Per exhibit eight, she felt that his class size at was appropriate (Tr.254).

On re-c examination, said witness testified there were times that the student was self-directed during testing (Tr.252). , , , Parent, gave her professional credentials (Tr.257). She does not know the student personally (Tr.258). She has seen him in passing and has consulted in his classroom (Tr.257). Ms. conducted testing and she her (Tr.258). She feels that the evaluation is an accurate assessment (Tr.259). The student had an IQ score of 112 (Tr.260). He had significant (Tr.261). Hence, she testified as to how the testing was done (Tr.261). Next, she testified as to how the student‟s and executive functioning were tested (Tr.262-263). He had staying on task without reminders and prompting (Tr.263). He needed prompts during cognitive testing (Tr.264). His retrieval of information was weak at times (Tr.265). She further testified as to how his social and emotional functioning was analyzed (Tr.266-267). He has with lack of structure and ambiguity (Tr.267). The student required a significant amount of support to function optimally (Tr.269). The student‟s his cognitive functioning (Tr.269-270). The student is not an child (Tr.270). She opined that the student needs to be in a fairly small and very structured class (Tr.271). The student could not be in a large class and a class of - students would provide too much stimulation (Tr.271; 272). The student requires a lot of repetition of instruction and refocusing (Tr.273).

On examination, said witness testified that she taught at the School in the mid to late 1970‟s (Tr.273-274). She has never taught (Tr.274). Her knowledge of the student is based upon her of Ms. (Tr.274). The student requires lots of prompting and redirection (Tr.277). is a way that the student with (Tr.278). Some kind of would be beneficial for the student (Tr.286). The student also has weak grapho-motor skills (Tr.286). Years ago, she did observe a class (Tr.287-288). She has not observed the recommended class (Tr.288).

No re-direct examination was conducted of this witness. , Education , , Parent, gave her educational background and credentials (Tr.291). She has been in the education field since 1998 (Tr.291). She was the student‟s , at the from January 2010 to August 2010 (Tr.291). She provided five hours of services per week (Tr.292). There were to students in the class (Tr.293). The class had one , and another for another student (Tr.293). Working with the student was at first (Tr.294). He required a lot of support in following classroom routines (Tr.294). He also needed a lot of support with physical organization (Tr.295). He required support in with and children (Tr.299). His speech was often to understand and he had some articulation issues (Tr.299). He made use of visual cues in the classroom (Tr.300). She feels the student requires a classroom (Tr.302). Sometimes, it was for him to accept (Tr.303). In the setting, she feels that it would for him to tune into academics (Tr.304).

On c examination, said witness testified that she taught the student when he was of preschool age (Tr.305). She previously taught within a classroom in a general education setting (Tr.305; 306). She provided the student with redirection, prompts, and breaks (Tr.307). She collaborated with his (Tr.307). She did not observe the specific recommended class (Tr.309). She was not involved in the CSE review process (Tr.310). She did collaborate with the teacher (Tr.311).

, School , , Parent, testified that is a state-approved school (Tr.314). She has been in her current position for ten years (Tr.314). The classes at are of an , except the classes which are (Tr.315). Next, she testified as to the school‟s environment (Tr.315). provides parent communication and training (Tr.316). The have master‟s degrees and are certified in special education (Tr.317). The students are grouped according to learning and emotional development (Tr.318). Next, she testified as to the admissions process (Tr.318).

Thereafter, she testified as to her observations in the student‟s classroom (Tr.319-320). His class had a staffing ratio of (Tr.320). She contended that the student would be in a class of - students (Tr.322). He requires a amount of individual attention (Tr.322). He gets very with and in a large group (Tr.322). The student has made progress at (Tr.323). Testimony was given as to graduation rates (Tr.323-324).

On examination, said witness testified that she is not the student‟s and does not teach at (Tr.324-325). The student is not part of her caseload (Tr.325). She last taught in 1986 0r 1988 and is certified as a education (Tr.326). Some of the student‟s in his class are and one student is (Tr.327). There are no students in his class (Tr.327). Generally, she follows the department‟s IEP (Tr.328). The student does get related services at the school but not which is provided outside of the school (Tr.329). Further, she testified as to the model which was implemented (Tr.331). All of the at are certified in education (Tr.332). Said witness has not seen the recommended class and has not observed any classes before (Tr.333).

No re-direct examination was conducted of this witness.

, Parent, testified that she is the parent of the subject student (Tr.335). She is a and works for the department (Tr.336). She first noticed , with the student, at about months (Tr.336). He didn‟t respond to his name or make (Tr.336). He began to receive around and she testified as to what services he received (Tr.336-337). He has been at for three years (Tr.340). She further testified as to other related services which he has received through the department (Tr.340). As to progress while at , she noticed that he started to talk, responded more to his name, identified objects and was more regulated (Tr.340). The student‟s areas of were; high , poor attention, weak grapho-motor skills and difficulty with transitioning between activities (Tr.341). She did attend the subject CSE review meeting (Tr.341). The CSE team recommended the class to which she objected (Tr.343344). She felt said class was too large (Tr.344).

Furthermore, she testified as to whom some of the CSE team members were (Tr.344345). She did visit the proposed school and class (Tr.346). She met with the teacher of the recommended class (Tr.346). She felt that the whole class approach would not be appropriate for the student (Tr.347). She opined that the recommended class could not meet his needs (Tr.348). She also observed the lunchroom which was very (Tr.348). Said witness testified that the student requires a classroom with a of . (Tr.350). He needs (Tr.350). is a with classes (Tr.352). is an appropriate placement (Tr.352-353). She does not have the resources to pay the tuition (Tr.354). Her annual income is about sixty thousand (Tr.356).

On c examination, the parent testified that sometimes the student did not engage in purposeful (Tr.361). He explained why the student required (Tr.361). She was familiar with the IEP process in general (Tr.363). was not the only school she looked into (Tr.364). She completed the application for in January 2010 (Tr.365). The father of the student provides no (Tr.367). He provides no child support and makes about twenty thousand annually (Tr.367). The parents have been separated for about five months (Tr.368). She rents her and has no assets (Tr.368-369). The has no assets (Tr.370). She paid a portion of the tuition, seven thousand dollars, by credit card (Tr.379). Tuition for the ten month school years is $29,455 and for the twelve month school year is $35,000 (Tr.381).

Thereafter, closing remarks were made by both parties‟ s on the record.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW:

I find that the evidence clearly establishes that the student is a ( ) year and ( ) old student who is classified with a or . He presents with social/emotional , of and ; ; and . The student does have strong cognitive skills.

Normally, prior to addressing the substantive issues, I must address and/or review the procedural issue of whether the CSE review team was duly comprised of the proper team members. Here, there is no challenge raised in the due process complaint (exhibit one) as to the composition of the CSE review team. Therefore, on the basis of the record and the due process complaint, the undersigned finds that the subject CSE team was duly constituted. The Board of Education may be required to pay for educational services obtained for a child by the child‟s parents, if the services offered by the Board of Education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parent‟s claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The Board of Education bears the burden of demonstrating the appropriateness of the program which it‟s CSE has recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-1; Application of a Child with a Handicapping Condition, Appeal No. 93-9).

Further, pursuant to Florence County, et. al. v. Carter, 510 U.S. 7, 114 S.Ct. 361, the principles of the Burlington test apply and reimbursement may not be barred to a parent who chooses a private school to provide a free appropriate education for their child.

Furthermore, under the Second Circuit‟s recent decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356(2nd Circ. 2006), the standard as to prong II is appropriateness. To be reimbursable under prong II of the Burlington/Carter test, the services for which reimbursement is being sought need not be perfect, meet all of the child‟s needs, or even be delivered in the child‟s , but merely be appropriate. Pursuant to the Frank G. case, the parents need to demonstrate with “objective evidence”, and that the private placement provides specially designed instruction to meet the student‟s unique needs to permit the student to receive educational benefit. A FAPE (Free Appropriate Public Education) is offered to the student when (a) the Department complies with the procedural requirements set forth in the IDEA and (b) the IEP developed by its CSE through the IDEA‟s procedures is reasonably calculated to enable the student to receive educational benefits.

Here, under this record, I find that the department has failed to establish that a FAPE was offered to the subject student. The subject IEP of March 10, 2010 (Exhibit three) is not reasonably calculated to enable the student to receive educational benefit. The specific placement offered for the subject school year was a class which had at least twenty-two students, of which eight had IEP‟s. This student has always been in smaller class sizes previously and the record shows that he requires constant individualized attention to maintain focus and to address his social/ and . Ms. , , Ms. , Ms. and Ms. , all parent witnesses, credibly testified as to the student‟s need for constant adult support. Ms. who has known the student for three years and was his for one year, testified that the student was able to focus better in smaller group settings (Tr.143). The student had a huge amount of sensory needs, so he was provided with a (Tr.145). The student required the consistent assistance of a to facilitate play (Tr.150).

Ms. , the extern who provided testing to the student and spent more time with the student than the department witnesses, testified that sometimes she would have to refocus the student during testing (Tr.235). She felt that the student would have difficulties in a large group setting and would not receive sufficient attention (Tr.236).

Moreover, testified that the student had staying on task without reminders and prompting (Tr.263). He needed prompts during cognitive testing (Tr.264).

further testified that the student required a significant amount of adult support to function optimally (Tr.269). The student‟s anxiety disrupts his cognitive functioning (Tr.269-270). She opined that the student needs to be in a fairly small and very structured class (Tr.271). The student could not be in a large class and a class of - students would provide too much stimulation (Tr.271; 272). The student requires a lot of repetition of instruction and refocusing (Tr.273). The undersigned finds the testimony of , a who has at least about twenty years in the fields of education/ , to be highly credible and quite compelling as to this analyzing and assessing the student‟s needs.

Furthermore, Ms. , an experienced who worked directly with the student from January-August 2010, credibly testified that the student required a lot of support in following classroom routines (Tr.294). He also needed a lot of support with organization (Tr.295). He required support in interacting with and children (Tr.299). His was often to understand and he had some articulation (Tr.299). He made use of visual cues in the classroom (Tr.300). She feels the student requires a small classroom (Tr.302). Sometimes, it was for him to accept (Tr.303). She felt that in a setting, that it would for the student to tune into academics (Tr.304). Further, the testimony of the department witnesses carries less weight since both witnesses have no personal knowledge of the student, except for the observation that was conducted. Therefore, the above-noted credible and persuasive testimony of the noted parent witnesses along with exhibits eight, eleven, five and six, establish the student‟s continued need for individualized attention and that the recommended program is not an appropriate educational plan. The recommended program does not appropriately address the student‟s language, social/emotional and needs.

Therefore, as to prong I, the Department has not met its burden and FAPE has not been provided to the subject student.

The parent bears the burden of proof with regard to the appropriateness of the services they seek for the student during the 2009-2010 school year. (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the MonroeWoodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden the parent must demonstrate that the services were proper under the Individuals with Disabilities Act (IDEA, 20 United States Code Sec. 1415(f)(1); (School Committee of the Town of Burlington v. Department of Education, Massachusetts, Supra 370).

In this case, I find that the parent has not met her burden and has submitted insufficient evidence to substantiate the appropriateness of , for the student, for the subject school year. Under Frank G., the parent has to establish with objective evidence that the private program is appropriate. The parent has submitted virtually no objective evidence, except the testimony of the parent and Ms. to establish such in this case. The parent fails to submit any documentary evidence, exclusive of exhibit fifteen, to establish the appropriateness of . No report cards, enrollment contract, reports, academic progress reports were presented by the parent. The parent failed to present the testimony of the student‟s current classroom . The parent failed to establish the student‟s progress, the related services that he‟s receiving, the contents of his academic instruction along with the credentials of his instructors and whom is providing him with the related services. Lastly, the undersigned finds that although exhibit fifteen is objective in nature, said exhibit carries less weight because it was prepared in December 2009 and does not fully address the student‟s needs for the forthcoming subject school year.

Therefore, the parent has presented insufficient objective evidence to substantiate the specially designed instruction of the program at that the student is provided with.

As to prong III, I also find that the equitable considerations support the department. Although the parent has been cooperative in the process and/or development of the IEP, the intention of the parent is questionable in that the record shows that the parent was intent on placing the student in a private placement and her view of the recommended class was discolored by her prior experience. The parent sought another private placement which was rejected and then sought placement at . The parent submitted her application, exhibit ten, to prior to the CSE review meeting. The undersigned finds that regardless of the recommendation, this parent was determined to place the student in a private placement. The parent‟s intent and conduct rises to the level of requisite level of unreasonableness, in consideration of a totality of the circumstances, and that equitable considerations favor the department.

Therefore, I find the equities favor the department and the parent has not met the third element of the Burlington/Carter standard.

Furthermore, since the parent seeks prospective relief under Connors, an issue exists as to whether the parent may seek the requested relief. The record reveals that the parent has failed to establish her burden to establish her inability to afford said tuition. First, the parent has not submitted an enrollment contract and/or invoice. The record is unclear as to the specific amount of the tuition. The parent testified as to one amount and the due process complaint mentions another amount. Further, except for the parent‟s testimony, there is no documentary evidence to establish her income or lack thereof. The parent attempted to submit a 2009 U.S. tax return which was denied due to her failure to meet the five day disclosure rule and in sustaining the department‟s objection to such. Also, although recently separated from her spouse, the parent fails to establish the other spouse‟s income, which is relevant since the parents, although estranged, are still married. The parent presents no evidence as to whether she receives child support.

Moreover, the parent testified that she has paid seven thousand dollars of said tuition. However, no documentary proof is presented to establish such payment and the due process complaint does not seek tuition reimbursement but solely requests prospective funding. Although the department argues that Connors is inapplicable, the undersigned does find that it is applicable under this record, however, the parent does not present sufficient evidence to establish her inability to afford the tuition of the placement.

After carefully considering the entire record and the applicable law and for the reasons stated herein, I find that the Department has failed to meet its burden at prong I and that the parent has failed to met her burden at prong II of the Burlington/Carter standard. A weighing of the equities favors the department.

Therefore, the department is not liable for the prospective funding being sought by the parent under this record. Further, I direct that the CSE team reconvene, within two-three weeks, and draft an appropriate IEP for the subject student for the subject school year It is hereby: So Ordered, The department is not liable for the prospective funding being sought by the parent under this record. Further, I order that the CSE team reconvene, within two-three weeks, and draft an appropriate IEP for the subject student for the subject school year Dated: January 10, 2011

Correction Dated: February 14, 2011 Correction made on the Evidence List

______________________________

RALPH PENNINGTON, JR., ESQ.

Impartial Hearing Officer

RPJ:dl

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 OCTOBER 21, 2010

PARENT

A Psychological Evaluation, 10/9/09 to 1/15/10, 13 pp. B Language Progress Report, 1/4/10, 5 pp. C Educational Progress Report, 1/4/10, 5 pp. D Progress Report, 1/5/10, 2 pp. E Update-Confidential, 1/12/10, 2 pp. F Classroom Observation and Teacher Report, 2/5/10, 4 pp. G Omitted H Request for Accommodations, 3/4/10, 1 p. I IEP, 3/10/10, 15 pp. J The Child School Acceptance Letter, 4/21/10, 1 p. K Final Notice of Recommendation, 6/2/10, 2 pp. L Impartial Hearing Request, 7/23/10, 3 pp. M Omitted

N Ten Day Notice and the OPT77 Form, 9/13/10, 2 pp. O Omitted P Omitted

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/23/10, 3 pp. 2 Due Process Response, 8/9/10, 3 pp. 3 IEP, 3/10/10, 15 pp. 4 Final Notice of Recommendation, 6/2/10, 1 p. 5 Social History Update, 12/16/09, 2 pp. 6 Narrative Report, 1/21/10, 2 pp. 7 Classroom Observation, 2/5/10, 4 pp. 8 Psychological Evaluation, 10/9/09 to 1/15/10, 13 pp. 9 Educational Progress Report, 1/4/10, 5 pp. 10 Application for Admission to The School, 1/13/10, 8 pp. 11 / Questionnaire from The School, 1/15/10, 2 pp. 12 Undated Class Schedules for 2010-2011 School Year, 1 p. 13 Class Profile from The School, 10/12/10, 3 pp. 14 The School Observation, 3/2/10, 1 p. 15 Educational Progress Report, 12/20/09, 8 pp.