New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 126446 Student’s Name:

Date of Birth: District: 21 Hearing Requested By: Parent Date of Hearing: May 27, 2010

June 10, 2010

September 16, 2010

October 21, 2010 Hearing Officer: Gary D. Peters, Esq. Case No. 126446

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 27, 2010

Parent’s — Student

Student

DOE

- , IEP

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 10, 2010

Parent’s — Student

Student

/ — Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 16, 2010

Parents

Student

DOE

DOE

/ — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 21, 2010

Parents

Student

/ — Student

DOE

School — DOE

INTRODUCTION

On May 27, 2010, June 10, 2010, September 16, 2010, and October 21, 2010, I conducted a hearing pursuant to the Individuals with Disability Education Act (IDEA) 20 U.S.C. section 1415 (f)(3), regarding a special education program for a student with disability, New York City Impartial Hearing . The hearing was conducted at the impartial hearing office of the New York City Department of Education. The student’s parents submitted a request for an impartial hearing, through their on February 9, 2010. At the hearing, the Department of Education hereinafter referred to as “the Department” was represented by counsel and the Parents were represented by their . A list of witnesses and documents received into evidence attached to this decision.

The February 9, 2010 impartial hearing request maintained that a Committee on Special Education (CSE) meeting convened on May 14, 2009 and the participants at the meeting included a district representative, school (same person as district representative) a general education and education . The child was classified as “ ” and the recommended was a education class with education ( ) and .

The Parent maintained that the IEP created was both “procedurally and substantively flawed”, due to an invalidly composed committee on special education team, (hereinafter referred to (CSE) team with insufficient goals and objectives.

The Parents further allege that the child was denied a Free and Appropriate Public Education (FAPE) as there were no professionals who worked with , who were present at the meeting. Additionally, decisions were alleged to have been made without appropriate school participation and or information relevant to the child’s present levels of performance. Furthermore, there was no indication of any effort made by the team prior to or at any time during the meeting to obtain information from the special education or that work with the child.

The Parents maintained that as a result of the meeting, discussions relevant to placement were not comprehensive. More particularly, a discussion was had that included the possibility of a class in a school or placement in a general education class without support. The Parent conceded that other classes on the continuum might have been appropriate but were not offered.

Lastly, the Parent stated that she visited the proposed general education placement at and determined that the class was “too large” for her child considering his and on June 6, 2009, she rejected the placement. The Parents allege that they had no choice but to enroll their child in the of Education located at the and are seeking an order that the Department pay for tuition and continue to provide recommended and .

BACKGROUND

The student is currently a ( ) child who is classified as “ ”. As stated above, on May 14, 2009, a CSE review was conducted wherein the child was recommended to attend a education class with Education Support Services ( ) with a ration of with service recommendations including hearing education services in a separate location, three times a week for thirty minutes individually and / in a separate location two times a week for sixty minutes individually. The Department on or about May 27, 2009 recommended placement for the child in a general education setting at . The parents visited and determined that the class size was too large for a child to learn and rejected the placement.

On or about August 17, 2009, the parent notified the Department that she planned to enroll her child at the and is seeking payment and or reimbursement for tuition for the above program for the 2009/2010 school year.

THE DEPARTMENT’S POSITION

The Department maintained that the child was appropriately classified as “ ” and that they made an appropriate recommendation for the child to attend a general education class with and related services as described above.

THE PARENT’S CASE

The student was diagnosed with a at months of , began a at (tr. 194-5) and presently from a in both (Ex. 3 at 1). At years old, the student was referred for a evaluation due to concerns about his and development (Ex. 3). On the Stanford Binet Intelligence Scale, 5th Education, the student obtained a full scale IQ of 77, placing him in the borderline range of overall intelligence (Ex. 3 at 4). The recommended a and as well as education for the student as the student presented with significant language, cognitive and attention delays in development (Ext. 3 at 4 and 5).

In April 2008, in preparation for aging out of the preschool system, the student was referred for a psycho educational evaluation (Ex. 5), wherein it was noted that the student often needed redirection, refocusing and reestablishment of interest in test material (Ex. 5). With modifications during testing, the student showed cognitive functioning in the low average to average range (Ex. 5 at 3).

For the 2008-9 school year, the student attended in a general education class with students at (Tr. 197-8) with a education ( ) being assigned to him (Tr. 197). The spent two hours a day, five days a week with the student in the classroom. The student also used an in the classroom (Tr. 200-203) which is a system whereby the wears a microphone and the student uses a hearing system that out some of the external around him (tr. 46-37, 201).

In December 2008 and February 2009, the student was evaluated at the for (Ex. 8) and presented with comprehension and weaknesses (Ex. 8 at 6). On a computerized test of sustained attention, the student’s response style reflected , , and indicated a 72.99% chance of a significant problem. The noted that the were likely affecting his ability to learn in the classroom. In addition to noting that the student’s hearing must be addressed in the classroom through the use of an , the recommended the use of a to assist the student in the classroom. Further, the recommended that beginning in September 2009; the student should attend a education classroom (Ex. 8 at 7) and noted that due to the student’s hearing , he would require a classroom with a low student to ratio to minimize .

In a progress report drafted in February 2009, the student’s therapist noted the “ with listening in the presence of ” (Ex. 10 at 1). According to the , this was particularly significant in the classroom where and distance could not be controlled and might affect the student’s to follow classroom direction.

In a school progress report dated April 27, 2009, the and his education ( ) noted that he needed the of a to sound out words (Ex. 10 at 1); decoding ability was inconsistent and his reading comprehension was weak. The student’s and his recommended that the student attend a smaller class in order to meet his individual needs. In May 2009, the student’s and his recommended to the Parent that be placed in a small class setting so that he would not fall behind (tr. 197198).

On May 14, 2009, a CSE meeting was held for the 2009-2010 school year and considered documents and evaluations. (Tr. 127-130; Ex. 7, 8, 9.10). The student’s general education for the 2008-2009 school year participated in the meeting by telephone, (tr. 196) however, did not participate for the entire meeting. There was no education or that had worked with the student participating in the meeting (Tr. 125, 156; C at 2).

The CSE team recommended a general class with Education ( ), hearing education services and speech therapy. (Ex. C at 1, 19). The Parent told the team that she did not agree with the recommendation of a general education class for the student (t. 195) as her child had not succeeded in a general education class during the 2008/2009 school year (Tr. 195). Despite the fact that the student used an during the school year, he still had problems with noise levels in the general education classroom as well as attention problems (Tr. 195-196).

In a letter dated May 27, 2009, the CSE made final recommendations for the student, including a placement at (Ex. 2). The parent visited the recommended placement and did not find it to be appropriate (Tr. 199-200). It was her opinion that the student would not be able to focus and learn in a general education class with one (Tr. 200). Through her , the Parent provided the CSE with written notice as to why she did not find the recommended placement to be appropriate and informed the CSE that she would enroll her child in the at for the 2009-2010 school year (Ex. 2, E).

The Parent signed an enrollment contract for the 2009/2010 school year with and agreed to pay tuition in the amount of $26,600.00 (Ex. I) and made tuition payments to in the amount of $2,160.00 per month (Tr. 206-207; Ex. J, K).

, the student’s head for the 2009/2010 school year, Idler, a at the and , the of the all testified on behalf of the Parent.

The at is a education within education school (Tr. 27-28) and the students mainstream with the general education students for lunch, gym and special programs and trips (T. 28).

Classes in the are small with no more than children in a class-and are taught by a licensed education (Tr. 27). Many classes contain two and an (T. 28). The style of teaching is multi modality, which addresses the different ways that students learn. Additionally, the staff at the includes social workers and s.

For the 2009/2010 school year, the student attended a grade class at the (tr. 164-165); his class size was comprised of children including , one and an . The students were and years of age and all held IEP’s (Tr. 171). , the head had her master’s degree and was licensed in a education; the had her bachelor’s degree and was in the process of finishing her master’s in and (T. 170-171). The student’s class at the was equipped with an for him (Tr. 172).

at the used both formal and informal means of assessment to determine the child’s range of functioning (Tr. 174-175). The Developmental Reading Assessment measured skills including the children’s ability to decode words and to comprehend what they read (Tr. 174). With respect to reading at the beginning of the year, the student was at the low end of the range of functioning in his class (tr. 173). He scored at a below range in reading while the other students in the class scored at either a or early first grade level.

Ms. described the student’s functioning in reading as “extremely low” at the beginning of the 2009/2010 school year (Tr. 165). Since he was at approximately a year old level in the reading, the and her initially worked on letters and sounds in order to teach reading. Ms. stated it was possible that the student had in his reading over the summer months prior to first grade (tr. 174-175).

In addition to his , the student also presented with a and or in the classroom (Tr. 190, Ex. 8 at 6) with significant (tr. 166) and showed and skills (Tr. 48).

To address the student’s needs in these areas, Ms. and or the would take the student out of the classroom to work with him individually in order to help him catch up to his classmates (tr. 166), this was necessary as he required as few distractions as possible due to his (tr. 32, 166; Ex. 5 at 2-3, 8at 6)

Even with these modifications in place and while working individually with the , he still needed to have his attention and focus continually redirected by his . Additionally, the used a reward system to encourage the child’s and . Repetition was very important for the student, his would repeat directions as needed (tr. 167) and concepts would be re taught to the student in a manner (tr. 47). needed things to be broken down and taught more than once. When he was working in a writing assignment, he needed an to with him to assist and keep him on track. was unable to work independently and learn the first or second time that something was taught, however, with the above modifications in place, he was able to learn.

The student’ reading curriculum was “ ”a program which addresses the student’s different learning styles, such as visual and tactile learning (T. 167). Ms. indicated that the student was a tactile learner; his math curriculum was Sadlier-Oxford Progress in Mathematics, which was also multimodality program. (Tr. 182).

The student’s schedule included on alternating days: calendar, class news, guided reading, computers, music, phonics, library, gym and writing/grammar (tr. 1770183; Ex. G).

Over the course of the 2009/2010 school year, the student made significant progress. He began the school year having differentiating letters and sounds, (Tr. 204) however, by the end of the year, he had learned to read and could read full sentences (tr.

205) and had advanced to approximately a 1.2 grade reading level (Tr. 59). He also had learned to add, subtract, which he had been unable to do when the school year began.

THE DEPARTMENT’S CASE

The Department stated that the Parents are required to raise issues of contention at the IEP meeting or risk dismissal of their claim for failure to exhaust administrative remedies. In the case at hand, the Department’s counsel stated that the Parents failed to exhaust their administrative remedies regarding the issues of Education not participating in the May 14, 2009 IEP review. Parents’ Ex. A at 1-2; T. 197. In their impartial hearing request and in the course of the hearing the parents alleged that there was no participation in the IEP review meeting by a “ who was working with him and that there was no indication of effort(s) made by the team prior to or at the time of the meeting to obtain information from special education professionals or related service providers who worked with ,” Parents’ Ex. A at 1-2. However, as was testified to by , a School who sits on IEP reviews and provides evaluations and observations of students who primarily present with and , and that she sat on the May 14, 2009 IEP review for in the dual capacity of School /District Representative. During the course of the review the parent and then current classroom , Mrs. , participated in the IEP review. Tr. 119-121, 125-127, 137138 and this was confirmed by the Parent Tr. 196. Ms. also testified that Mrs. Farago was well acquainted with functioning levels. Tr. 126, 137-138, 140.

Although Mrs. was a . . , it is uncontroverted that was in a Gen. Ed class at the time of the review. Tr. 127, 140, 197. Furthermore, the IEP review team, including Mrs. reviewed a report created by herself and the , Ms. as per, Department’ Exh. 2, at 2; 9-School progress Report by and , dated April 27, 2009; Tr. 129, 140-143. Ms. testified that the IEP team also reviewed and considered a report from speech and , , and a report from the . Department’s Exs. 8- Report by , School and , , of , of , 10-Related Service Student Progress Report by , , , dated February 2009; Tr. 128-130, 136-138, 146. Ms. stated that all of the team members including the parent and Mrs. Farago agreed with the information memorialized on the IEP regarding his functioning levels as written on pages 3A, B and C, 4, 5A and B of the May 14, 2009. Department’s Ex. 1 at 3-7; Parents’ Ex. C at 3-7; Tr. 138-139. Additionally Ms. testified that the information contained on page 3C was written by then current and including the goals on pages 6E-G.

At hearing , the school who participated at the May 14, 2009 IEP in the dual capacity of the District Representative/School gave testimony regarding the fact that the review team that developed IEP was properly constituted, in so much as all of the required team members including , and then current participated in the review meeting. Department Ex. 1 at 2; Parents’ Ex. C at 2; Tr. 125-127, 131, 134-135, 137, 145, 185-197. Not only did and participate in the review, but the team also considered reports from his , related service providers, and from outside agencies that did testing.

On May 27, 2009, the Department issued an FNR for to attend P 153. Department’s Ex. 2; Parents’ Ex. A at 2-3; Tr. 199, 209. Although the parent visited the recommended placement the record does not reflect that she actually saw any instruction during her visit, spoke with the classroom , nor did she seek to get any information about the placement. Tr. 200, 211.

Mr. is an IEP / Education Liaison at and has been employed of the Department for 21 years. Tr. 9-10. He testified as to his qualifications including and his licensing, including two masters’ degrees in Special Ed. and Sociology and a permanent license in Special Ed. from the State of New York Tr. 10. He described as a school that housed students from pre kindergarten through the fifth grade which had approximately five hundred (500) students for the 2009-2010 school year. Tr. 12 and that approximately seventy (70) students held IEP’s. Tr. 12.

He testified that for the 2009/2010 school year there were four General Education. Grade Classes, each class having one with and up to ( ) students. Tr. 16-17,

20. In terms of , Mr. testified although the Parents visited the recommended placement, the record does not reflect that. On May 27, 2009, the Department issued an FNR for to attend . Department Ex. 2; Parents’ Ex. A at 2-3; Tr. 199, 209 that a was available at the school, for the 2009/2010 school year; that the school had a full time , Ms. and that she provided services on a pullout basis, taking and grouping the students by grade. Tr. 11, 15-17. He stated that Ms. collaborated with the classroom . Tr. 15-16.

Mr. also stated that would have received the as per the mandates of his May 14, 2009 IEP. With respect to and , the school had one full time and one part time and that all of the students recommended for and in the school for 2009/2010 school year were in receipt of said services. In regards the recommendation s for a , Mr. testified that the school had an , but that currently they did not have student who used one Tr. 12-13, 19. He stated that if was enrolled in the recommended placement that he would’ve contacted the CSE to have someone come and train in the use of the for the Parents, classroom , , gym and any other . Tr. 13-14. The training would last anywhere from one to two weeks until the trainer was sure that everyone was familiar with how the worked. Tr. 13. In discussing the Hearing Education Services that were recommended that he would again have called the CSE to make sure that this service was provided Tr. 13-14, 18-19. Upon his review of IEP he thought was appropriately recommended placement in a Gen. Ed. with program for the 2009/2010 school year in a first grade class at , in that was a student functioning at an average level with some weaknesses. Tr. 18 is the for the recommended at and has been employed with the Department since 1974, and as program at for the past 17 years. Tr. 72-73. She testified concerning her qualifications including her bachelors’ of arts degree and a master’s of science degree in education both from , a permanent common branch license, and a education license for grades through . Tr. 75-76; she is also certified in the Wilson Reading Program. Tr. 76.

For the 2009/2010 school year Ms. was the sole for the through the grade. Tr. 81 and stated that services was provided on a pull out basis. Tr. 85-86. In each class there were never more than eight students in a class during the 2009/2010 school year and that in grouping the students, she tried to group them by grade. Tr. 78-79, 81.

Ms. described her role and responsibilities as the as follows: she was responsible for conferring with the student Gen. Ed. Classroom , the Related Service Providers at the school, and she had a very structured small classroom in which she was able to give preferential seating and maintain attention. Tr. 78, 80, 8285, 87, 92-92, 96-97. Furthermore, Ms. stated that for the grade class, she had students in her classified as “ and ” and that she functionally grouped the seven students into math, reading and groups based on their IEP’s and her own assessments . Tr. 78-79. Specifically, students were grouped after being assessed by Wilson, Brigance, Barnell Loft, and made assessments. Tr. 78, 80, 83.

In describing her class, Ms. stated that she used a variety of instructional methods, including whole class, small group, and individual instruction. She used differentiated instruction and Task Analysis, in order for them to use the skills,” Tr. 78-

79. She stressed that she believed that more than one methodology could confer educational benefits because “its not one method for each child, however, she provided teaching to each child on their functional level. Tr. 79, 81.

Ms. testified that if had attended her school he would have been one the eight student in her class first grade class, that his needs mirrored the needs of the other students in that class, and that although none of the students in her class needed an for the 2009/2010 school year she would have learned how to use it and would have used it. Tr. 92-93, 96 101. Ms. testified about the fact that she coordinated with the general education to make sure that the students who were attending her class were not missing instruction in academic subjects, but rather in subjects such as gym or music, and that there was a continuation of what was being worked on in the general education class. Tr. 86-87.

Ms. also testified about both the general education curriculum and the related services available at stating that both the and the would have been able to meet needs as listed on his May 14, 2009 IEP, including meeting his goals and has academic management needs such as using the . Tr. 85-86, 88-91, 101.

The Department maintained that there is insufficient evidence in the record to establish that was necessary for to make progress or that the program was calculated to meet his specific needs. During the hearing Mr. , of the Special Ed. Programs at , provided testimony that is a school that specifically the and the . Tr. 27 and that in the school “ that there were children in attendance at the school. Tr. 29. During his testimony, Mr. stated that he knew , however was unable to testify about whether made any progress. Tr. 33. He also testified that while he was familiar with the cost of the program he was not familiar with the specifics of the Contract for the 2009/2010 school year. Tr. 41 Parents’ Ex. I.

During the course of the hearing there was testimony from Mr. Idler, a with . Tr. 43-65. She testified that her work was limited to observing classroom and helping modify their specific instruction and that she was only familiar with as a first grader in the . Tr. 43. While she testified extensively about needs and why a with program would not be appropriate for , she also stated that she does not provide him with any direct instruction and that she never worked in a classroom setting in a public school setting Tr. 45-46, 50.

Lastly, there was testimony presented by Ms. , who was English . Tr. 161-193 and testified that made progress but she was vague concerning same Tr. 168. Ms. testified that she only taught in the morning, as the classroom schedule from 12:30 pm to 4:15 pm was a Program and she could not provide any testimony about what was done in that portion of the program. Tr. 181 Parents Ex. G.

Department maintains that the record casts considerable doubt on whether the parent is actually in debt to for tuition. The agreement with signed by the Parent was not dated. Parents’ Ex. I. Furthermore, the agreement specifies that there are three payment options, however none of these are selected on the agreement itself, nor is any other agreed upon method of payment indicated on the agreement. Furthermore, the agreement requires at the least ten (10) monthly payments of $2,160.00 but as the records shows the parents only made eight (8) payments of $2,160 each. See parent’s Ex. 1-K and although the agreement lists tuition from the 2009/2010 school year at $26,000.00, the agreement includes charges for the Regular which was not enrolled in. Parents’ Ex. I. Furthermore, the Department maintains that the evidence establishes that the Parents only paid $17,280 of the total tuition when the school year ended. Parents’ Ex. J-K, Department argues that all of these inconsistencies pertaining to the tuition agreement establish a considerable unlikelihood that the parent was never expected to pay the $26,600 tuition for ’ 2009/2010 school year.

Additionally, Department alleges the record reflects that the Parents were disingenuous in submitting a written statement rejecting the recommended program as their own writing and it was a writing that they never had seen before. Tr. 210, 212-213. , testified that she never saw the handwritten notation on the bottom of the Final Notice of Recommendation issued to her by the Department. Ex. 2; Tr. 210;

DECISION

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 US;C. 1400 [d) [1] fA]; Ed. of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes special education and related services designed to meet .the student's, unique, needs, provided in conformity with a comprehensive written IEP(20 U.S.C.1401 [9] [D]; 34,RCNY 300.17.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent; if the services by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep 't of Education, 471 U.S. 359 [1985]; Florence County Sch. District Four v, Carter, 510 U'S. 7 [1985]). The first step is to determine whether [he district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements 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 (Rowley at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded ~he child's right to FAPE, (b) significantly impede the parents' Opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C 1415 [f][3] [E] [ii].

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the we of appropriate special educational (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076).

The IDEA. "expresses a strong preference for children with disabilities to be educated 'to the maximum extent, , appropriate with their non disabled peers” See Walczak v. f7a. Union Free Sch. Dist.; 142 F.3d 119, 122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at 10*[S;D.N.Y. Feb. 9, 2007], citing Walczak. 2 F.3d at 122).

In determining an appropriate placement in .the LRE; the ·IDEA requires that .children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a][5][5J [AJ; 8 NYCRR 200.6 [a] [l]; see also Bay Shore Union Free Sch. Dist. T.. 40SF.Supp. 2d 230, 239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ .. 874 F.2d 1036. 1044 [5th Cir, I]. The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ.• 995 F. 1204, J213 [3rd Cir. 1993]).

The test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and

2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including: 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the. educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Obeiti, at 121/-1 8).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. and role modeling with no disabled peers (Geer v. Rome City Sch.., Dist., 950 F.2d 688 [11th Cir, 1991]).

In. order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of proving that its recommended program was appropriate. Application .of a Child with a Disability. Appeal No. 01-·096).

The Parent claimed the IEP Team was not a properly constituted. Although I find that the IEP team was not properly constituted as alleged by the parent, I find that pursuant to the IDEA, a hearing officer must look to see whether the alleged procedural violation either 1) impeded the student’s right to a FAPE, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provisions of a FAPE, or 3) caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. Jan 9, 2000]

I find that the rights of the child/parent were not significantly impeded by the improperly constituted IEP team at will decide all three prongs of the Burlington/Carter analysis.

PRONG I

I agree with the Parent in that the student’s academic goals as drafted on his IEP indicate that he will improve his skills by one grade level or two grade levels by the next annual review were not realistic (Ex. C at 9-11). Given the student’s deficits, there is no indication that he would be able to improve his skills by one grade level or up to grade level in the course of a year. The IEP contains no information or indication as to why the CSE team chose these measures of improvement. Annual goals are meant to be statements that identify what skills a student can reasonably be expected to demonstrate in his special education program within a 12 month period (See New York State Education Department’s Sample Individualized Education Program and Guidance Document—December 2002). Here, it is unclear that the student will be able to improve his skills to the type of “one size fits all” standard set by the CSE.

Additionally, none of the student's academic annual goals contain short-term objectives, which is problematic (Exh. C at 9 to 11). Once a CSE has developed measurable annual goals for a child, the committee must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs (34 C.F.R. Part 300, Appendix A-Notice of Interpretation, Section I, Question 1). Short-term instructional objectives break the skill described in the annual goal down into discrete components whereas benchmarks may be thought of as describing the amount of progress the child is expected to make within specified segments of the year (Id.). The purpose of including short-term objectives or benchmarks is to enable a child's , parents and others involved in the process to gauge at intermediate times during the year how well the student is progressing toward achievement of the annual goal, and, if appropriate, to revise the IEP consistent with the student's instructional needs (Id.). The CSE failed to create these intermediate steps or milestones. The recommended program was not appropriate for the student as it did not have the necessary supports and was not based on the student's needs as noted in the current evaluations. Federal and state law require that the IEP team consider the student's current evaluative data when making a program recommendation (See 20 U.S.C. § 1414 (d)(3), requiring consideration of the results of recent information regarding the student's academic, developmental, and functional needs in the development of an IEP; see also 34 C.F.R. § 300. 324(1). See also 20 V.S.C. §1414 (c)(l)(A),requiring the IEP team review . current evaluation data, current classroom-based assessments and observations and observations by and other providers; 34 C.F.R. § 300.305 (a)(1); 8 N.Y.C.R.R. § 200.4 (d)(2) and § 200.4 (f) requiring that an annual review of a student’s IEP be based on a review of the current information pertaining to the student’s performance).

At the May 14, 2009 IEP meeting, the CSE team was said to have considered a series of evaluations and reports regarding the student before making its recommendation of a general education class with , hearing education services and (Tr. 127130; Exhs. 7, 8,9, lO).The school who participated in the May 14, 2009 IEP meeting referred to the evaluations and reports and testified that the student "was functioning, pretty much, in the average range with a hearing loss" (Tr. 130, 148). She further testified that with the support of and the student could be placed appropriately in a general education class (Id.).

I agree with the Parent that describing the student as functioning in the average range with a is an oversimplification of his and of the information contained in the referenced evaluations and reports. In addition to a hearing loss, the evaluations and reports actually showed the student to have significant and as well as a need for a small, special education class.

Based on the IEP, it appears that the CSE team took some pieces of information from the evaluations and reports and overlooked others. For example, the school who participated in the May 14, 2009 IEP meeting testified that the team looked to the report of February 6, 2009 from the to help determine the student’s “Present Performance” for his IEP (Tr. 136-138; Exh. 8). However, nowhere the IEP was there any information about the conclusion of report in which recommendations for the student were made for September 2009, including: a to remediate the student's significant and a education classroom with a low student to ratio (Exh. 8 at 6-7).

The school further testified that in drafting the IEP, the team also considered a school progress report of April 27, 2009 by the student's and (Tr. 140; Exh. 9). Similar to the report, the school progress report concluded by recommending for the student a "smaller class to meet his individual needs” (Exh. 9)

The IEP of May 14,2009 references the fact that the student was assigned a for the 2008-2009 school year, that he required pre-teaching in order to keep up and that his and parent were concerned about his (Exh. 1 at 4, 5 and 6). However, the IEP does not explain how a child with these and who was accustomed to working with a would succeed in a general education class with and related services. A general education class might contain upwards of students and even a daily period would contain up to 8 students.

The Department failed to satisfy the burden of showing the that students in a pullout environment (Tr. 16,86-87; Exh. 1 at 1) are able to make up missed work. The recommended class would not have been appropriate for the student because of his documented need for more individualized support (Exhs. 5, 8, 9, 10).Based on the foregoing, the Department failed to satisfy the burden of showing the appropriateness of the IEP recommended class and placement.

PRONG II

The private school placement must be "proper under the Act" (Carter, 510 US. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational’ program which met the child's special education needs (see Gagliardo, 489 F 3d at 112, 115; Frank G., 459 F.3d at 363-64; Walczak, 142 F.3d at F9; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]).

An appropriate program is one that is "likely to produce progress, not " (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], quoting CypressFairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 [5th Cir. 1997], cert. denied, 522 U.S. 1047 [1998]). A parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carte510 U.S. at 14). The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 FJd at 105). With respect to the appropriateness of a private school placement, "[u]Itimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G, 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112).

In order to address the student’s needs the assistant would take the out of the classroom to work with him individually in order to help him catch up to his classmates (tr. 166), this was necessary as he required as few distractions as possible due to his (tr. 32, 166; Ex. 5 at 2-3, 8at 6). As stated above, even with these modifications in place and while working individually with the , he still needed to have his attention and focus continually redirected by his classroom , which was able to be accomplished. The used a reward system to encourage the child’s focus and attention and utilized repetition, including repeating directions as required (tr. 167) and concepts would be re taught to the student individually if necessary (tr. 47). The evidence established that with his occupational therapist to sit with him to assist and keep him on task, was unable to work independently and learn.

The student’ reading curriculum described as “ ” is a and addressed the student’s needs, such to assist in visual and tactile learning (T. 167); his math curriculum was Sadlier-Oxford Progress in Mathematics, which was also multimodality program. (Tr. 182) and accomplished same.

Over the course of the 2009/2010 school year, the student made significant progress. He began the school year having difficulty differentiating letters and sounds, however, by the end of the year, he had learned to read and could read full sentences (and had advanced to approximately a 1.2 grade reading level; he also had learned to add and subtract, which he had been unable to do when the school year began.

For all of the aforestated reasons, the Parent has established that the at was an appropriate placement for the student for the 2009/2010 school year and that her child made “meaningful educational progress”.

PRONG III

The Parent has evidenced her cooperation with the Department and participated in the IEP meeting and visited the recommended placement. She provided the requisite written notice to the CSE expressing her concerns regarding the recommended placement and her intent to enroll the student in the at for the 2009/2010 school year at the Department’s expense.

I agree with the Department’s position that in the event the hearing officer finds that an award of tuition reimbursement is warranted that based on the facts presented that reimbursement be adjusted based on several factors. First, the evidence indicated that the Parent paid $17,280 to and the record did not credibly establish that the Parent was in fact indebted to for the remainder of the $26,600 tuition for Case No. 126446 the2009/2010 school year. Accordingly, if the parent is entitled to reimbursement, it should only be for a maximum of $17,280.00.

However, the Parent should not be reimbursed for the percentage of the tuition that applies to religious instruction. Tuition reimbursement is not appropriate for purely instruction. See e.g. Application of a Child with a Disability, Appeal No. 00-008 (reducing tuition reimbursement to remove portion attributable to religious instruction). In Education Program, half of the school day consists of religious instruction. Tr. 38, 181. Accordingly I award reimbursement to be reduced by fifty percent as stated in my “Order”. Dated: December 30, 2010

______________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:jj

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, 2/9/10, 4 pp. B School Description, Undated, 1 p. C Board of Education IEP, 5/14/09, 19 pp. D Final Notice of Recommendation, 5/27/09, 2 pp. E Ten Day Notice, 8/10/09, 1 p. F Class Profile, 9/10, 1 p. G Class Schedule, 9/10, 1 p. H Progress Report, 9/10, 1 p. I Tuition Contract, 9/10, 1 p. J Affidavit of Payment, 9/10, 1 p. K Parents Proof of Payment, 9/10, 8 pp.

DEPARTMENT OF EDUCATION

1 IEP, 5/14/09, 19 pp. 2 Final Notice of Recommendation, 5/27/09, 1 p. 3 Evaluation, 7/26/07, 5 pp. 4 Classroom Observation, 3/11/09, 1 p. 5 Psycho-Educational Evaluation, 4/1/08, 4 pp. 6 Social History, 3/27/08, 5 pp. 7 Classroom observation, 5/11/09, 2 pp. 8 Report, 2/6/09, 13 pp. 9 School Progress Report, 2/27/09, 1 p. 10 Related Service Student Progress Report, 2/09, 3 pp.