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: October 7, 2010

January 31, 2011

March 17, 2011

March 31, 2011

April 4, 2011 Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 7, 2010

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 31, 2011

Student

Student

DOE

Assigned to CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 17, 2011

Student

Student

DOE

DOE

School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 31, 2011

Student

Student

School — Student

School — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2011

Student

Student

Student

DOE

On September 2, 2010, the parent of requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 United States Code, Section 1415 (f)(1) and Section 504 of the Rehabilitative Act. Ex. A. I received an appointment as Impartial Hearing Officer on September 3, 2010. The matter proceeded to hearing on October 7, 2010, for the sole purpose of determining the student’s pendency placement, and then on January 31, 2011, March 17, 2011. A list of individuals who attended the hearing and documents received in evidence are attached to this decision. , , and , represented the New York City Department of Education (DOE); of represented the .

I. PENDENCY

Pendency Placement

The parties stated their agreement that the 22, 2007 Findings of Fact and Decision of Impartial Hearing Officer , constitutes . Ex. 2. The decision ordered the DOE to the , upon of , the of at School and the made to for at a of . Pendency Order

From September 2, 2010, the date of the parent’s impartial hearing request, until such time as the issues raised by the in due process complaint are resolved by final order, the DOE shall as follows, upon submission of :

1. to the the of to School; and

2. to the the of - per provided by at a of .

II. MERITS OF THE CASE

Background

This case concerns a -year-old , currently in year at School. She is due to in with a . On February 26, 2009, the Committee on Special Education (CSE) developed an ( ) that classified with and recommended a in a of an - ( ) class. Ex. D. included and for times per in a of up to , ( ) for a , and for a and for a in a of to . The Committee on Special Education (CSE) next met on 26, 2010. It determined that was - and from education. Ex. F. It provided of and for times per in a of to ; ( ) for once a ; for once a ; and for once a in a of to . In a letter sent to the CSE on June 23, 2010, the stated disagreement with what she believed to be a change in , to , and the reduction in . Ex. G. She further advised the DOE that if she did not hear from them with a placement, she would re-enroll at School, which she had attended since eighth grade. On August 19, 2010, she gave the DOE a ten-day notice of intent to re-enroll at . Ex. H. On September 2, 2010, she filed an impartial hearing request seeking of for the 2010-2011 school year; of ’ at a rate of ; and as detailed in the February 26, 2009 . Ex. A. DOE’s Position

The DOE argued that the 26, 2010 CSE held a timely review and considered all pertinent documentation before with the of . While had some , and a , it did not believe she met the classification of . Further, the student’s school at was too for . And there is no equitable for the request for or .

, assigned to CSE testified. She has worked for the DOE for 31 years and has attended about a thousand CSE meetings. She has a license as a education and as a education . She last taught in a classroom - years ago. She last worked with school education students and-a- years ago as an at- education support ( ) and . She has a Bachelor’s in Elementary Education and a Master’s in Education, and in in and Education.

On February 22, 2010, Ms. observed for an -and-a- , during a and class, and a class. Tr. 87; Ex. 6. She noticed that often looked at during the class, or the ; she also other students and needed to be by the . Tr. 71: Ex. 6. She did not believe this performance because she was able to participate and do whatever she needed to do. Tr. 72. When the told to or , she was able for a of to and .

Ms. attended the 26, 2010 CSE team, as both a district representative and education . Also present were , , and the . Attending by telephone were and . Tr. 57. Ms. described as a school for education students, most with . The meeting lasted oven an and everyone participated. Tr. 58. From , they had fall and reports; standard test scores from the previous year since the latest one was not available; and report cards. They also had the classroom and new and , , and , determine if a change in would be necessary. Tr. 60; Exs. 6, 9-12. From the documents they received, they determined did not have a that impacted on . Of note was the statement about and and of consistently over the past few years. Many of to scores and showed she was not being impacted by any of the other that she might have. Tr. 60-63, 74, 86. Ms. , , , and did not agree with the . They felt impacted on . Ms. believed that Ms. based objection not on reasons, but rather on connected to , with with , or in certain . Tr. 86-87. Although they did not point to any documentation to this, they relied on statements from , who spoke about , as did Ms. . Tr. 64-65; Ex. 8. The of the on p. 3.2 of the came from Ms. . Tr. 75. stated that needed and a , which she attributed to . Tr. 78-79. The team looked at the but determined that they were not impacting on . Tr. 68. did not meet the criteria of under the IDEA because she was at or , than a lot of students in classes in the school, receiving A’s and B’s on report card. Tr. 70, 75. Ms. agreed with the recommendation to .

Ms. believed that with the support the CSE provided, could work in a education setting where she would be exposed to good role models and a regular curriculum. Tr. 69. Although they kept the same she had been receiving, they changed some of the frequencies and sizes to enable to work in a larger and provide the supports for into the general education setting. Tr. 79, 94. She believed a general education , most of whom now have in education and education needs, could implement the classroom supports. Tr. 81. She also believed that the schools have to help students who are in for a variety of different reasons. Tr. 95.

, School at CSE Region , testified. She has worked for the DOE for seven years, four at the CSE. She has a Master’s of in Education, a Master’s of and Educational , and has completed coursework and comprehensive exams towards a Ph.D. in Educational . She is a NYS certified School . She was on the 26th CSE team. She had also done within ’s classroom, although not for the year in question.

Ms. recalled a discussion at the 26th meeting of the classification and . Tr. 116- 118. The was that did not need to have through education, although everyone agreed that she would benefit from them. They discussed of and how it differed from an classification of . The applied to a student with a in and that upon . From the information they received, was very capable and at a , grade in all areas of . Since she did not meet the classification for purpose they felt it was not appropriate to place in education. There was disagreement about at the meeting. Tr. 118-119. As an grader, about to begin final year of school, the parent’s participants felt that while she has made , she had some and should be allowed to complete final year at . Since mentioned that goal was to attend , the CSE wanted to assist in in that direction. The , to get a better of how was and , and to get another opinion as to of and to go into the demands of a , did not an of since , which no one disputed, did not impact on . Tr. 120-125, 150-151; Ex. 9. It showed that she had many strengths, was , could interact -on- with , displayed - , and had no indication of or . Tr. 143-144, 152-155. She had a - of ,a of , and a . That meant that of was in the of . meant she was able to complete tasks. was in the very . of knowledge acquired at , school, or work was a , which was in the . , , was ,a . / – ability to see patterns and – was . working was , in the . By looking at , how she did in the classroom, was . is , math is , and was very . , i.e. how was she able to apply the information that she learned, was . letter/ , , were . , words to see how she did without getting any clues, was in the . was in the . was in the . was in the . was . Applying word problems was very . was . were very .

Ms. remembered discussing which mentioned that had as a , and how other students with had of , which she had about. Tr. 136. believed needed structure to and about being in a school . She believed disagreed with the general education recommendation. Tr. 138. She knew that the felt that with one year left in school she should complete year at . Tr. 140. The CSE explained that it was not removing from , just making a recommendation that it thought appropriate.

She described how Ms. told the CSE that was still and at got . Tr. 131. There are times where she gets during finals time, and that those times she could get more and more and more , as most school students would. However, overall she was doing much better . She received at , run by a who was not a , to help further and with . Tr. 152, 162. By offering and , Ms. believed the CSE had given a of for and . Tr. 163-164. Ms. was very clear that was at or grade in all areas academically, and that she was doing better than in the previous year and had more friends. Both the reports from Prep and the described as being more within the school . Tr. 129-130; Ex. 7. She was participating in , and went on a to the for a . was in a class so she was more . She participated in a and was offered a part, although she ended up requesting a smaller role due to some stress.

The CSE concluded that would be able to learn in a classroom setting. It developed a regular with a recommendation of - . Tr. 126-128; Ex. F. In from education, it were looking for the given . Tr. 132-135. 149. However, with , it did not want to leave without since it knew that it would be a for . But the CSE felt that a was in the direction that ultimately she would be moving to when she went to . And given , it wanted in a and able to grow in that way. The CSE did note that she had areas where she was receiving a lot of , and it wanted to make sure that the continued for a year to allow for . So it provided with support of and a for in a of to , once a for 40 individually, once a for individually, and once a for in a of up to . It believed she would benefit from the -to- in , but also have the social groups in and , to provide any assistance that she needed with the .

Ms. believed could function in a education . Tr. 140. She had many strengths. She was very bright and had extreme . While she did have , and the challenges it posed, there were many who functioned in that were very challenging and did quite well there. In , she was sitting in a education school. All the students in the school had . She has the ability to be in the Education. She believed she should go on to . Just because the CSE gave did not indicate that she should be classified with a . Tr. 159-161. Many general education students got the they were proposing, which were of the same quality as those received by education students. They felt she would benefit from the as transitional support to help succeed in education, the . Parent’s Position

The parent argued that the DOE denied a FAPE for the 2010-2011 school year. The 26, 2011 was not reasonably calculated to confer educational benefits on the student; the placement offered for the 2010-2011 school year did not satisfy the legal requirements of the IDEA; and the decision to declassify solely because of achievements was incorrect as a matter of law. In brief, the parent also argued that she was not given proper notice that the 26th review was for the purpose of . The further argued that at was appropriate and equities support a finding in behalf.

, the at Prep, testified. is a and school for students with . This school year it had , ages to , and a of - . On they provide the with and workshops. Some of were New York State certified some were not. Tr. 207-209. None was certified to provide special education . classes consisted of thirteen students and one .

Mr. was literacy years ago, in sophomore year. As supervisor this year, he has been in class at least four or five times. He also knew from feedback from . He described as very smart, but throughout the time she has been at , she has had significant in social interaction. Tr. 184, 188-190. She was not able to initiate and sustain friendships with people. They often had to structure interactions with people, mostly because she did not know what to do. To address this she worked with a one-on-one for daily. Although reading levels were in the , she also had particular and severe with any task that asked to or give opinion about something, or discuss something more abstract or compare something. Tr. 184-188, 201-203. He found this odd because when she was in class she could answer questions on own that were factual and literal. She could also comprehend what she read and decode new work. Anything more was a roadblock and required prompting for to answer. She also required a lot of to get to finish assignments. Tr. 185. This impacted on education in ways that were not so evident. Tr. 203. While he believed grades to be A’s and B’s, he nevertheless believed she required education . Tr. 195-196, 209. He could not speculate whether she would do better in a larger class, of thirty. Tr. 197. She was currently in a class with student in the and grade, all on grade in comprehension, even though all had some type of . Tr. 210. math class, of students, had all He believed was particularly skilled in math. Tr. 205.

, during the 2010-2011 school year, testified. She has a bachelor’s Degree in and a certification to teach education, through , in . She was not certified by New York State to general or education. She has been at for years, as a and . As a she created and implemented an individualized curriculum for students in a one-on-one setting. Tr. 216-217. She also incorporated weekly feedback from other and observations to create lessons for what the student most needed to work on, as well as to update the curriculum and constantly tailor it to the student’s needs. Prep does not offer . Tr. 244-245.

Ms. wrote about the curriculum in Fall 2010 report. Tr. 237-238; Ex. I. In it she noted that achieved grade on all subtests areas of the and the Test ( ), which scored fluency rate, accuracy, and response to multiple-choice questions that checked for comprehension. The questions relied more on literalness and memory than critical thinking. The did rely to some extent on critical thinking. She determined that the indicated with conversational pragmatics. Tr. 254; Ex. I at p. 1. She described as displaying a natural intelligence and ability to succeed on structured . Tr. 237.

Ms. met with one period a day, for . Tr. 248. She read ’s prior reports and , and used like to see where needed assistance. She then worked with on , , and - and how to generalize them in the classroom. At least weekly, including at meetings, she spoke with ’s and got regular updates through the folder on the computer that can be accessed by staff members. They have informal conversations with and they let know when was missing assignments and having .

was working on or grade in in reading, decoding, , and vocabulary. Tr. 229-231. She could understand what she was reading and what its author intended. She excelled in concrete tasks when she was asked to follow steps or formulas, like in math, which is strength. Tr. 219. But in all classes she had thinking critically, making connections, formulating opinions and supporting them, and understanding the meaning of complex themes and applying they to anything in life. Tr. 220-224, 231-233. As an example, she could understand the theme of in and , but didn’t understand what love meant. She was very literal and answered with facts, but could not really apply those facts or make connections. She had a great memory for what she has read, and could discuss all about the characters. But she has with the theme of novels and relating it to life. Because she was able to take the information, she performed well on exams. She had for . She had realizing that she did not know something; or when she did realize it, she didn’t ask for help. reaction would be to avoid the assignment, which required to stay on top of and hold accountable for getting the assignment done. Tr. 222, 255. When she did hand in the assignment, it was with the help of others. She lacked the ability to independently problem solve. Tr. 252-253. If she did not know what to do with an assignment, she just stopped. She would not ask for help. Rather she would avoid it or become apathetic. She did not know how to deal with a conflict with a peer, without someone guiding .

Ms. has worked with in a social interaction, by setting up a social with another student, who also has a , to experience how to initiate a friendship, hold a conversation, and relate appropriately to someone else. Tr. 225-226, 247-250. They held the social once a , every other . She had to prompt this interaction; so joining clubs at school would not have the same effect. She encouraged to relate with others, initiate conversation, and discussed with how to do this. The student was aware she has social , but she does not always understand when behavior was socially inappropriate or if she was having .

She believed and pragmatic skills impacted tremendously in the classroom. Tr. 227, 245-246. She had initiating conversations, whether socially outside of class or as part of a class discussion, and knowing how to interact appropriately. She had reading social situations. She had with empathy, which comes into play academically when talking about characters , and also in the way that she interacts with . She would often correct a classmate when they said something wrong or if they gave a wrong piece of information, and she did not realize that that was inappropriate. She could not put herself into that person's shoes, how that must feel to be corrected by a classmate. She was also inflexible and has a lot of adapting to new situations and new methods. For the second semester, the homework system changed in history class and had adjusting to it and needed several reminders to implement the new system, although that was partially an avoidance response. While could follow directions without a problem and understood what was said to , she did not always understand the tone or nuance.

Ms. believed class was important for the student. Tr. 228. It was easier to monitor in a small class so she could not get away with avoiding assignments like she did when she was confused. When she was with fewer students, she could feel more comfortable taking those risks and not feeling like she was being singled out since she was with students who were similar to . She believed that in a larger classroom would be even more likely to retreat and avoid.

, , testified. She has worked with individuals on the for twenty years. The primary of private practice is people with . She has worked with since she was in elementary school, about eight years. was last mainstreamed when she was in sixth grade. After that she went to . She meets with once a for an hour although she only bills for . She has had the same rate for eight years, $ per hour. Tr. 307.

She attended the 26, 2010 meeting. She explicitly expressed that it was wrong to declassify . Tr. 290-293. A lot of the needs and understanding of this student were being negated by looking at grades. She was really outraged that they did this. The support service of of per was a drop in the bucket for what was needed on an ongoing . By the time she settled down, usually ends up to be about 20 of . Tr. 308. On paper they would have been looking as if they were addressing some of the . In reality they would have been merely scraping the surface.

For students who have gone from special education programs to general education, she would have recommended a class ( ) class with a small ratio of students with needs and education and . Tr. 311. The were used a great deal because of the limited number of special education available in the at this time.

She believed needed due to , , , and in . Tr. 301. She believed has with - . Tr. 303. She had the subtleties of what people were trying to say to , when they were , , demanding, pleased, or . She missed information because she really did not appreciate what was being stressed unless it was presented in formalized . She could miss the fact that the was emphasizing how important something was by the tone of the voice and the repetition of presenting it. She might even say to them why do you keep saying that over and over. When these needs were not attended to in class, she was put on . Tr. 304.

believed needed to help address the issues that she did not want to talk about. Tr. 305. She worked with the so she could carry over a lot of the social issues into the school for generalization. Tr. 306, 311. provided training to the staff a while ago; these were the same people who continued to work with . Tr. 310. She did not do any training this year. Nor did she create a behavior intervention plan since the CSE had decertified . Tr. 312. She has worked with on behavioral techniques.

stated that has come a long way. Tr. 274-275. When she first came to , she wouldn't come into apartment because she was afraid of toilet. She has come a great distance in developing ability to and be in settings where there were people who were making demands on or acting in ways that she really did not understand. social skills were still very immature in many respects, and that has caused trials and tribulations. She has been very fortunate in the time that she has been at that they have really structured activities so that she has been able to participate in class play and begin to develop some social rapport with some of the students. She really only had one friend at school, which was a very limited kind of friendship. They talked a lot about understanding what was happening. She tried to do a lot of anticipation and preparation to preview activities or events that would be upcoming. When she was starting to talk about going to take a class at in preparation for next year, they really worked on rehearsing appropriate classroom kinds of activities and expectations and working with the professors, understanding the difference in the environment. She still has tremendous reticence in asking questions or approaching people that she is not familiar with.

Since has been at , has had conversations with the , although she stayed in email contact. Tr. 277. They have had interchanges over different struggles. She has also made sure that they really appreciated the complexity of learning style, that she was very concrete. She could appear to be very capable of learning, which she was, but in a very rote style. When she got into more sophisticated integration, a order of thinking, mixing in inferences, innuendos, understanding perspective of others, the changes of environment and what that does to implications, all of those things are very difficult for . They have worked very hard on that. The perspective of another was one that they were still working on.

believed that these challenges impact on in the classroom. Tr. 278-280. In some of the classes she would essentially withdraw and not participate in some of the discussions. She might act as if she were annoyed or angry with the for asking a question or calling on for that particular question when what was going on was that she did not understand what was being asked. At other times, she might become very quiet and withdrawn and not be actively participating. There were subjects that she did very well, and she could be very active in the classroom. As an example of not understanding the communication and the appropriateness was that she would blurt out answers and she correct over their talking. She would also correct the and stand vehemently on position that they were wrong and she was correct. There were times when would tell to stop it, that they just wanted to move on. This behavior limited some of the more advanced, sophisticated levels of understanding. It impacted on understanding of the reactions and interactions that others have in working with . She was not receptive to having assistance and being corrected, so those types of things would be very difficult for to accept. She was very bright, and testing showed to be extremely bright, but it also showed that she really with working memory, the holding on to information that she would use in a short period of time. A might give an instruction or give some data and then ask in later questions that would call upon to pull up that information. She might or might not be able to do that depending upon the context of the information. She was pretty good at remembering numbers. With inferences or descriptives, or telling of thoughts of another person, she was limited. She refused to write those kinds of , and so she was missing out on a great deal that would help to advance to the of intelligence. She was at a point now where she would be looking at next year. And to be realistic about what she is going to be able to accomplish in college and then as a vocation. It was going to be difficult for to find something other than something very basic, core kind of skill and calling upon knowledge. It would be nice to be able to see use computer skills. It was going to be challenging for to be in an environment where she would be called upon to have assignments or have people judge what she was doing without having responses.

explained that certainly looked upon skills and knowledge base in comparison to the other youngsters in the classroom. She did very well on test scores and responses to test materials that have review sheets where she can readily call up information that she has learned in a more rote style. She often did extra point questions to compensate for the essay that she knew that she could not do adequately. But the comments that the wrote were also more about behavior and lack of contributing in the classroom, such as being able to be a constructive member. So, in comparison to many of the youngsters in the school and with the base of curriculum that they were using, she could with continued study and repetition of the learning certainly do well with a test. She could not do as well with the essays, and she compensated for that.

noted that was mainstreamed through the grade, before coming to , and was in a much larger class. Tr. 282-284. She had many with the number of people. She was put on house suspension over reaction to a boy who sat on a corner of desk. She had putting material into a locker space because of its close proximity to other peoples’ lockers. If she were in a mainstream school now, she believed the halls and lunchroom would be a challenge, as would be a large classroom, depending on the ’s ability to manage the . Tr. 284.

was familiar with the teaching style and approach of . She has visited the school and observed . Tr. 286-287. The small class sizes were important, as was the importance of the staff to understand the need to keep things more structured. They were able to place in a more advanced math class, but also to put in English classes that were more focused to needs. The program has been a tremendous help. Part of why students were often defined as being very rigid and inflexible was because they held on to what they know and what they could anticipate. Tr. 294-296. What to do with these types of youngsters was to create a lot of visual supports and checklists so that they could guide themselves and become more self-sufficient by seeing what comes next, having the materials that they needed to be prepared for the class, knowing where they were going to sit. Typically in a general education classroom put a lot of that information up on the board, which was very hard for these youngsters to and took them away from listening to what the was talking about. They have found that by giving them their own board in front of them and one that they could write on is very helpful.

In opinion is not a general education student. P. 288. On paper grades presented to be a very capable young woman. Meeting , seeing in present environment, seeing walking on the street when she was oblivious to everything else that was around , and knowing the general education environment, she would be sitting neatly in a corner if she weren't thrashing out at different times. She would not be a participant in the whole venue of learning. She would be traumatized in some respect personally having to try and adapt and condition herself to that environment and it would have stopped learning actually. She would not have been able to get the knowledge and the exposure to the information that she warrants and has had an opportunity to do. It would have been more helpful for to have worked with the school before transitioned.

The would have impacted learning. Tr. 289. She would have in earlier stages qualified for a collaborative team teaching classroom, now known as , but she would not have fared well because by definition those rooms had a percentage of students with special needs, but by history most of the time those classrooms end up with most of the kids who are identified and many who are not with special needs who are getting that added support. She would not have fared well at all. learning would have been greatly compromised. social functioning would have been impacted. Tr. 289. She would not have participated at all. She would have basically been slinking down the hall to get away from everyone. Forming friendships unless there were real efforts by some adult to structure that environment and to put it into place and to take the time out to make sure that she was socializing at lunchtime and removed from the cafeteria so that it was not an overwhelming and difficult environment. Socially she would have just withdrawn.

The testified that had received since the second or third grade. Tr. 319. While in the fifth grade she was diagnosed with . Tr. 317. At that point they switched to who specialized in treating children with . returned to general education class at a private through the grade. The class had students. Academically she was doing well. Tr. 318-319. In grade she switched to . It was a very small environment that was very comfortable for . This impacted self-confidence, self-esteem and sense of being safe. They met the early on to go over special needs.

’s special needs were in social, emotional, and communication skills in terms of getting along with the , other students, navigating the hallways, letting people know if she didn't understand something in an acceptable way. Tr. 321-323. To this day, she felt compelled to tell the , you wrote that wrong; she has called people in school idiots to their face. She has tried to explain to , that that was not nice, you wouldn't want it to happen to you, you just need to be quiet. She could do it to some extent, but still she just felts it had to come out. The at knew that she is not acting out. They'll help to work through it to help understand what the issue was. was also very concrete and literal, which she knew. She was improving in that respect, that everything was not black and white, which was sometimes the way she sees the world.

The attended the 2010 meeting. Tr. 323. She told the CSE she wanted a public school placement for . Tr. 331. She did not mention that she wanted . She did not realize they were . She did not understand that fully until after the meeting was over. The CSE said did not need ; the Board of Ed was not a provider and you did not need to know how to write any more because people have computers. It was basically a very contentious meeting. It didn't seem to matter what she,; , Ms. , or said. When she told the CSE that she thought social and communication skills were part of an education, they did not say anything. Ms. stated that needed supports, that she could not just be a general education student that she needed a small therapeutic environment such as what provided. By small therapeutic environment she meant nurturing. They just wanted to switch to general education. Tr. 324. They discussed the , which suggested a , but the CSE disregarded this, saying they did not have to look at everything in isolation, just the whole picture. She did not know on what they were basing their decision to decertify , other than that grades and test scores were good, so she did not need it. Tr. 326. The agreed that ’s test scores were good, but grades were mixed because sometimes she did not turn in assignments if she had with them. She did not tell people she was having problems, although she was getting better at it. Tr. 327. She had doing assignments that require taking the prospective of other people, which impacts assignments. Tr. 332. Socially, she had starting or joining in on a conversation. If she had something to say, she would say it, but then she was done. So in terms of turn taking, pragmatic skills, they have worked with on it and she has gotten better, but she still had a way to go.

At the end of the review they told the she had to go to the 12th floor with and transcript to get a school for . She went and told the woman there she needed a school for the fall. The woman advised that this was the place for safety transfers, not for placement. They told to call 311 in August to find out where the registration centers were. This was why she wrote the letter because she did not know what else to do. She did not call, based on what they had offered in the past because would not make it there. Only in September when filed the impartial hearing request did she learn that the DOE claimed to have offered , which she believed to be a school for , which was not. Tr. 330331.

The DOE did not give an RSA for so she provided it herself through from the beginning of the school year until March, when it ended because she could no longer afford it. Tr. 333, 337. The DOE did not give an RSA for and , so did not receive it all year because the could not afford it. Tr. 334. She believed the lack of these impacted educationally. Tr. 335. provided with . To help in the area of and who meet with 1:1 took the time to go through the issues, not just in and . Tr. 336. By being in a smaller environment helps and proprioceptive issues.

The paid the entire , with the help of financial aid, in the amount of $ Tr. 337; Ex. M, N.

FINDINGS OF FACT AND ORDER

purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an legally inadequate under the IDEA (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]). Under the IDEA, if a procedural violation is alleged, an administrative officer 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 C.F.R. §300.513[a][2];^[8] NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

In neither initial nor amended due process complaint did the parent raise claims of procedural defects to the development of the . Neither side addressed such issues at the hearing. However, in post-hearing brief the parent argued that the CSE failed to give proper notice that the purpose for the 26, 2010 review was to consider whether should be . I find that the parent is bound by pleadings and is precluded from raising this issue after the conclusion of the hearing. 8NYCRR 200.5(j)(ii).

An appropriate educational program begins with an that accurately reflects the results of to identify the student's needs (34 C.F.R. §300.320[a][1];

A board of education be required to reimburse parents for their expenditures for private educational obtained for a student by his or parents, if the offered by the board of education were inadequate or inappropriate, the selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). " merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370- 71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

At 26, 2011 review the CSE determined that no longer met the criteria of a student with a disability. Until then, she had the educational classification of . The Commissioner’s Regulations defined “ ’ to mean,

“… developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age 3 could be diagnosed as having if the criteria in this paragraph are otherwise satisfied.” [8 NYCRR 200.1 (zz)(1)]

In order to be classified as a child with a disability under federal or state law, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educational performance to the extent that he or she requires special and programs (20 U.S.C. § 1401[3] [defining a child with a disability as one who, by reason of their disability, "needs special education and "]; 34 C.F.R. § 300.8[a][1] [same]; 8 NYCRR 200.1[zz] [defining a student with a disability as one who "requires special and programs"]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65-66 [2d Cir. 2000] [noting that neither IDEA nor federal regulations define "need special education" or "adverse effect on educational performance"]; Muller v. Committee on Special Education of East Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047).

With the updated , observations and testimony of and Ms. , the CSE had sufficient information to determine whether was a student with a disability entitled to receive special education. In deciding that she was not, I believe the CSE has erred. Conversely, even if I were to believe that the weight of the evidence supported , the support the CSE offered to would have been wholly inadequate to enable to make educational .

The CSE believed that belonged in a general education class as the least restrictive environment. While the CSE conceded that had some social issues associated with diagnosis of , it rested its conclusion to declassify on success since she was functioning at or , achieving A’s and B’s. Ms. pointed to the , which showed that was academically functioning, could interact appropriately one-on-one with , displayed ageappropriate social skills, and had no indication of depression or anxiety. When observed in the classes, she noted that was distracted and interrupted other students verbally, which necessitated having quiet . But she felt that was able to participate and do what she needed to do. She quoted Ms. ’s about ’s levels and skills and ’s history of consistently academics over the past few years. Ms. quoted Ms. that while was still rigid and at times got and , she was doing better socially. While Ms. objected to the CSE’s recommendation, Ms. believed it to be based on social issues connected to the rather than issues. Ms. supported placing in general education, which would provide with good role models, and support of and , and , to help transition to year of school and eventually to college. also talked about , and need for structure and a quite environment. She described the had when she was in a general education class. had interpreting the subtleties of what people were trying to say to , when they are emphatic, annoyed, demanding, pleased, or happy. She missed information because she really did not appreciate what was being unless it is presented in formalized . She could miss the fact that the was how important something was by the tone of the voice and the repetition of presenting it. She might even say to them why do you keep saying that and . When these needs were not attended to in class, she was put on . While had made she was not a mainstream student. She also felt that the support were a drop in the bucket for what needed on an ongoing . also needed due to coordination and handwriting, weakness in , and in .

Relying almost entirely of might on its face support the CSE’s decision to . But that reliance told only a part of the story. The evidence is indisputable that is a very student. She has always been so, which the evidence bears out upon a quick inspection of 2009 , which shows that as a grader, she was at or grade , according to estimates, or at the across every other area, including , , , , and . Ex. D. The also agreed that has done well in school. Despite the good grades in 2009, the CSE still classified , with , and recommended an - class with . The noted that she responded well to structure and , but were main . The goals and objectives of this emphasized the - , and . It also had a goal for to participate in a variety of tasks involving and without any . The testimony of the witnesses showed that the issues that with in the previous school year persisted into the 2010-2011 school year, as the 26, 2010 indicated. Ex. F. It continued to identify deficiencies in ability to use communication effectively in formal and social situations. It reported that she required prompting and practice in using pragmatic social skills with and adults. She often information and in turn was . Tone, inflection, topic maintenance and prosody were all .

has and all the that come with this , including significant with , the ability to and sustain friendships. Academically, she had with any task that asked to or give opinion about something, or discuss something more abstract or compare something. While she was able to respond to questions that required factual or literal answers, anything more analytical required prompting for an answer. She also had thinking critically, making connections, formulating opinions and supporting them, and understanding the meaning of complex themes and applying they to anything in life. She avoided completing assignment when she did not know something or didn’t know how to for by asking for help. And in test taking, she used extra credit questions to compensate for what she could not do. Ms. further described with and belief that and impacted tremendously in the classroom. She noted how often corrected without realizing the of this . She was inflexible and had a lot of adapting to new situations and methods. And this was in a class with which was familiar. Without the supports she received at I believe would have on education. Therefore, I find that has continued to meet the criterion of , in that affecting various of and that adversely affected . Therefore, I find the CSE erred in . Moreover, while I believe the CSE’s decision was well intentioned, I credit opinion that even if it had properly , the decision to move directly into general education, with of , and ` , was wholly to . This is a student who needed structure and routine. She had spent the past four years in a that has provided them. To suggest that she move directly to a education , where the classes were large and more would have been for , and academically. She had in a education before, and by all , she still the that with success at that time.

On the foregoing, I find that the CSE erred in and in doing so has failed in its burden of showing that it offered a FAPE for the 2010-2011 school year.

As for whether the parent has met burden that the she provided at is appropriate under the IDEA, I find that she has. The DOE argued that was not appropriate for because as a education- school where all the students had it was too for a student with . I find otherwise. has provided with the nurturing environment she needs to succeed. She is grouped appropriately with students at . I credit Ms. , Mr. and as to the importance of the classes that provide structure. The daily works on and - , that success, and how to them in the classroom. The provides a lot of and so she can guide and become more - , by seeing what comes next, having the materials she needs to be prepared for the class, knowing where she is going to sit. It provides the students with their own boards so they can on what the is . With the structured activities has been able to participate in a play and develop some with some of the other students. The when she is trying to avoid doing the assignment she cannot understand. They stay on until she submits work. As for the , I credit testimony and the most recent that has need for , which has provided; , which the obtained from through March; and , which the DOE has not provided. Exs. 8-12.

On the foregoing, I find that the parent has credibly met burden with respect to prong of the Carter/Burlington that , , and the by offered an appropriate program under the IDEA. As there are no equities pled or proven that would support a denial of the claims, I grant the request for of the costs at , and the provided by .

ORDER

I hereby order that upon of and of during the 2010-2011 school year, the DOE shall as follows:

1. Immediately the for the paid to School in the amount of ;

2. Immediately the for the of provided by at a rate of ;

3. Immediately that for the cost of she of ;

4. Immediately for the of - of and of through the end of the school year. Dated: April 5, 2011 Corrected Date: 31, 2011 (Date of decision should have read 5, 2011)

_____________________

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

A Impartial Hearing Request, 9/1/10, 5 pp. B Amended Impartial Hearing Request, 10/5/10, 5 pp. C , 1/5/10, 2 pp. D , 2/26/09, 19 pp. E Description, Undated, 3 pp. F , 5/26/10, 7 pp. G Parent’s Letter to the DOE, 6/23/10, 2 pp. H Ten-Day Notice, 8/19/10, 2 pp. I Fall Report, 10/10, 8 pp. J Class Schedule, 10/10, 1 p. K Attendance Record, 10/10, 1 p. L Enrollment Contract, 10/10, 2 pp. M Affidavit of Payment, 10/10, 1 p. N Parent’s of , 10/10, 3 pp. O of for , 10/10, 8 pp.

DEPARTMENT OF EDUCATION

1 Impartial hearing Request, 10/6/09, 3 pp. 2 Final Findings of Fact and Decision, 5/22/07, 10 pp. 3 Due Process Response, 10/25/10, 3 pp. 4 CSE Meeting , 5/26/10, 2 pp. 5 Notice of Meeting, 5/6/10, 1 p. 6 Classroom , 2/22/10, 2 pp. 7 Report, 2010, 8 pp. 8 Roport, 2/24/10, 2 pp. 9 , 4/19/10, 6 pp. 10 and , 4/8/10, 5 pp. 11 Report from , 2/24/10, 2 pp. 12 School , 3/30/10, 5 pp.

Footnotes

[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]), establishes annual goals to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see 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. 02-014; Application of a Child with a Disability, Appeal No. 01- 095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).