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: December 1, 2010

December 10, 2010

January 20, 2011 Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2010

FOR THE STUDENT

,

,

,

FOR THE DEPARTMENT OF EDUCATION

,

,

, School (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2010

FOR THE STUDENT

,

,

, Parent

FOR THE DEPARTMENT OF EDUCATION

,

, (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2011

FOR THE STUDENT

,

,

, Parent

, - School (via telephone)

, - School (via telephone)

FOR THE DEPARTMENT OF EDUCATION

,

INTRODUCTION

I was appointed to hear the matter of pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3). The hearing was held on December 1, 2010, December 10, 2010 and concluded on January 20, 2010. The parents by their requested this hearing to obtain tuition at the School for the 2010-2011 school year. A list of witnesses who testified and a list of documents received into evidence are attached to this decision.

BACKGROUND

is an year old classified as . The Committee on Special Education (CSE) met on May 11, 2010 and recommended a in a school with the related service of for ten months of service. The CSE sent

's parents a Final Notice of Recommendation with a placement at for the 2010-11 school year. The parents rejected the placement and unilaterally placed him at

School.

DEPARTMENT'S POSITION

The Department was represented by their . also appeared for the Department on the first day of hearing. They maintain that they offered . a free appropriate public education (FAPE) for the 2010-2011 school year. They maintain that the Department met all the procedural requirements and the CSE team consisted of the requisite members and developed an appropriate Individualized Education Program (IEP) for the student. They further maintain that the placement that was offered was appropriate. It is their position that the placement that the parents selected was not appropriate because it is too restrictive and could not offer the services that the student required. Finally, they argue that with respect to the equities the parent never had any intention of placing the student in a public school setting because they had already made up their minds to send him to .

is a school at and helps to develop IEPs for initial and re-evaluations. She had evaluated in and re-evaluated him in the grade and later that year conducted an updated re-evaluation. She participated in the CSE meeting on May 11, 2010 in the capacity of school and District representative.

They reviewed the reports she had written, the private from the parents, the social update, the reports and assessment. Both parents were present, a social worker, a who was Special Education Support Services ( ) and a , for the entire meeting. Everyone had an opportunity to participate in the meeting but she could not remember if the parent member had said anything. She characterized the parents' participation as strong. They recommended a class with once a week on an individual basis. This is a class that is run by a education with students and is not considered general education. The students receive the modification that they need and the classes are designed to be within a couple of years age difference, academic levels and needs. Most of the students do not have problems and do not require a for needs.

She explained that at the time had made a lot of academic gains from his program. However, this was not transferring into the class because he was having concerns and they thought that for a short time he required a smaller class. He compared himself to the upper echelon of the classroom and seemed withdrawn in the class but in a small group he was willing to take risks. He scored very high in levels of and . His private had recommended a education school with a small class. They moved away from a ( ) class because of the parents concern about his challenges. She opined that he was not because of his academic abilities. His report, the indicated and at the percentile. The had explained that in the class he feared failure and everyone agreed that his challenges were impacting on his ability to learn.

His parents made it clear that they wanted to attend where he had been accepted. They had already indicated their desire to the prior to the meeting.

She opined that a special education school would not be good for because he is socially “magnificent” and should be around general education typically developing students. She had hoped he would be mainstreamed and that after this year he would go back to a class. Academically he could handle a class. She explained that it is much less restrictive for him to be surrounded by typically developing peers and he is socially very typical of those students. She opined that he is capable of functioning with typically developing children with modifications and this would not be the case in a school.

In summary, she opined that the recommendation of with the addition of was appropriate for the 2010-2011 school year.

She saw the parents being handed the history update which they discussed. She could not remember if they discussed the prior social history but she had read it prior to the meeting. The parents had talked about the impact of their divorce on . The team discussed his vulnerability, his lack of confidence, low self-esteem and his . They addressed these concerns in the IEP. She had used the WIAT-II and reviewed his records and consulted with the in conducting his evaluation.

Academically, he was reading at the average rate and his writing was a little bit delayed in the range. His math reasoning was on grade level. He was exerting a lot of energy in trying to keep up and was very aware of his challenges. She described as and easily and at with respect to his challenges. She explained that his private evaluation found the same distress however they arrived at a different conclusion. They recommended a small class in a special education school. She did not agree with that recommendation.

She explained that her testing revealed that his level of and is quite high and he performs differently in a small group than when he is with a large group.

His described him as behaving well with his peers, but he does not like to be challenged and gets frustrated. His reading and writing was but his math was close to grade level. His stated that he benefited from small groups. All the reports were consistent that he gets along well with peers and adult but is easily distracted. On the for ( ), scored in social skills but high in and . His last report card indicated that he was a lot in class academically.

He is much stronger in perceptual, visual skills than verbal skills but his verbal skills are on level for his age. He has a lot of trouble with Math and writing are approaching grade level. He requires things to be taught in multi-sensory ways and needs a systematic reading, writing and math program daily. She opined that he is bright and needs to be cognitively challenged and it is important for him to have classmates at his level in order for him not to be bored. She recommended individual to address his needs, , and . In her opinion, the goals are measurable.

She described the different methods of measurement used depending on the goal. She talked about specific goals that would address his academics as well as his social difficulties.

She explained that she had originally wanted him in a setting but after listening to everyone's concerns including the parents she though he needed a small class at least for the interim. She opined that for a school was too restrictive because in general you cannot be mainstreamed and it would be difficult to transfer into a setting. They decided he would participate in assessments with extra time and he would take them in a small group. They also modified his promotional criteria. His parents made it clear at the meeting that they wanted him to go to and were not responsive to the teams recommendations. (Tr. 10-70)

On cross-examination, she acknowledged that she never taught a class but explained that she was aware of their makeup and had been in many schools with a . She agreed that he compared himself in the academic area to children. However, she explained that she did not think he would feel any stigma in the recommended classroom.

She likened 's being aware of being in a special class to being aware that he is in a special school.

With respect to the goals, she agreed that the writing goal does not specifically address certain issues but explained that they would be inferred from the main goal. She admitted that she forgot to write the date for the completion of certain goals. She stated that the program did not give him education during lunch and gym and art. With respect to the math goal, she agreed that she probably should have added multiplication and division to the goals but she was sure that the would have added it as an oversight on her part. She agreed that only four of the goals were academic and two were social but she explained that the social goals could be addressed both with the and the . She reiterated that he should be mainstreamed this year in order to make it easier for him to transition the following year.

(Tr. 70-77)

On re-direct, she stated that the private report by was discussed a fair amount and was an important part of the conversation.

is a education at School. He teaches in a -

class grades to . There are students with one and the age range spanned from through t . The range of instructional levels in reading and mathematics was from They have a literacy and math coach on staff to help with the planning of lessons or to deal with individual students. They have Reading First that work with the students. He explained that had attended the school they would have compiled a strong learning profile by means of different assessments. They also find out what the student enjoys, so that they can maximize his learning abilities.

He described the physical layout of the class with three tables. The room is divided into half and one side of the room has a rug where students meet and there is a blackboard. There are charts and supports along one side of the wall. There is another wall with things specific to the math workshop. was reading at a level one which is significantly In writing he opined that he is fairly as well. He has a hard time staying on task and following multi-step directions. He would have focused on comprehension work by using some informal reading strategies as well as very formal writing on systems and charting systems. He has students in his class with similar difficulty in reading and the strategies can be very powerful. was at a level in in reading and writing as per his IEP. In math he is approaching grade level. He thought he had problems with multi-step problems and he would have employed strategies that he used on other students with similar problems. He described different strategies he used to keep students on task through praise. He uses a timer in addressing attention issues. He is available for one on one help if needed. Most of the instructional time is broken up into groups of three to five. He opined that 's present academic performance and learning characteristics were similar to other children in the class in reading, writing and mathematics. He would have been able to implement all of the recommendations on 's IEP. A lot of the instruction in class is around multi-sensory instruction. He explained that he has three groups and two groups are working independent at a task which they already know but need practice. He does whole group instruction every day but only for one to two subject blocks such as read aloud, shared reading or shared writing. He reiterated that there is always the ability to do one on one work. He uses the students to help each other, the groupings are heterogeneous and there is always a skilled model and a student who is not approaching mastery. This allows a student who performs low in one task to be masterful in a task where they are models and it is good for their self esteem. They have a word wall which is helpful for students with difficulty in decoding or remembering how to spell a word. There is also a mini word wall. He described 's and social needs as very typical to students with . He uses different strategies to help with . He tries to encourage students to identify the emotions that they are feeling. He is able to provide an encouraging and supportive environment. He described the goals on 's IEP as similar to the other students. The goals are measurable and he would have been able to implement the recommended methods of measurement for each of the goals.

He explained that if had dealing with the larger groups at gym or lunch, they have a quiet room where there is art and quieter activities. At recess the art is available for some sort of structured activity. If a student is having difficulty in the larger group at gym, they can stay back in the classroom and have a different activity.

There is provided at the school by . There is , and and available at the school. He interacts with the providers and if a student is having a particular he will bring the in on the conversation. He communicates with the parents by means of conferences and newsletters and emails. The are invited to come in the classroom every . They could have provided with extended time and testing in a separate location.

In summary, he opined that based on 's IEP written of May 11 they could have provided him with an appropriate education to meet his educational and social and needs. (Tr. 108-1500).

On cross-examination, he acknowledged that he only knew from the reading of his IEP. He acknowledged that he was only approximating the levels of the other students and the reading level was really He acknowledged that there are no specific goals for punctuation and capitalization. There are thirty periods a week and he teaches twenty . Five of the remaining periods are lunch and the rest consist of several specials, art, dance, theater, and students receive five of those specials. Everyone receives sciences as one of their specials. He acknowledged that during the specials the ratio is not maintained. Art can include the remainder of the class with the mainstream children as well as science, computers, and gym. Dance is at the ratio. Lunch can be with four other classes which are anywhere from to twenty four students, however, there are several staff who supervise the lunch. There is no additional when he teaches reading but there is an IEP that pushes in two to three days a week. He agreed that method of measurement is not stated in all the goals but he explained that it is almost always materials and standardized tests. (Tr. 159-183)

On re-direct he explained that they would have assessed his punctuation and capitalization at the beginning of the year. He reiterated that during lunch art and gym they could have made accommodations for if he had in the larger groups. He would have also been able to accommodate him for science computer and theater if he was having . (Tr. 183-186)

PARENT'S CASE

The parents were represented by their Mr. and Ms. . They maintain that the IEP created for on May 11, 2010 as well as the placement offer for a class at the School was not appropriate. They further argue that he is benefiting from the placement at School and has made progress. They contend that the parent has always acted in good faith and participated in all meetings and let the CSE know of any and all concerns. In summary it is their position that tuition should be granted in its entirety.

is of Admissions at the School and reviews all applications for admissions. She is a liaison between School and the CSE and CBST. She described as an approved school for children with a classification of either or and .

There are and students in the school and each class has students who are all classified either as or . There are in the class all day and at least one of them is certified in education. They provide , and and .

She participated in the admission process and thought was similar to the other students. They require a - or evaluation as part of the process and provider forms. (Tr. 194-202)

On cross-examination, she was unable to say when the admissions process began.

All the students receive as part of their program. She acknowledged that there was a provider shortage because of a but the was replaced quickly. In the interim, there was a who tried to cover. They also have something called which puts students in small groups where they meet weekly with a or to discuss age appropriate issues which lasts from thirty to forty five minutes. They provide separate if they feel it is appropriate.

With respect to an IEP, she explained that they do not generate a new IEP when the student arrives and she did not believe that had an IEP for the 2010-11 school year for . A new IEP will be created in a few months for the upcoming school year. They do not implement the IEP that is drafted by the DOE if it is not appropriate. If it is created for a different setting, it will not be appropriate. They implement it if the goals and objectives are appropriate. (Tr. 202-224)

MR. is a co-at . Her classroom is considered third grade and consists of twelve students. The range of functional levels in mathematics is between a and grade level. Mr. is the other in the classroom and is pursuing his

Master's in education. is in her homeroom class for approximately four hours a day. He presented with weakness in reading skills, trouble with decoding, fluency and comprehension which impacted his math skills. He was given assessments by the speech and language department and the department prior to entering the school and the whole class was given assessments to determine appropriate reading and math groups. She described him as a learner with confidence and . They provide him with positive support and reinforcement. He frequently receives individualized attention throughout the day and is never without the 12 to 1 to 1 ratio. She opined that this ratio was necessary for him to keep him from being distracted and not understanding different concepts.

They use a SMART Board in the classroom which provides differentiated instruction. receives extended time and take examinations in a special location.

His schedule changes a bit depending on his specials. Reading is taught in a group of six and they follow the Prevention of Academic Failure Program. She opined that he is presenting some progress which is measured trough class work and homework. Math is taught every day with six students in the class and they are working on computation and problem solving skills. They follow the Saxon Math Program. She opined that he is beginning to show some progress which they measure through class work and homework.

Social Studies is taught three times a week with twelve students and she opined that given the staffing ratio and individual support is making some progress. Science is taught twice a week in a group of twelve students and she opined he is showing progress based on his class work and independent work. His writing class is taught three times a week in a group of twelve and he is showing progress. This is an area he with and he is provided with a lot of individualized supports. He has computer class with students once a week and she opined that he is showing some progress. It is measured through class participation, class work and projects. Art is given twice a week and music once a week. She opined he was showing some progress. He has three times a week with twenty four students but there is still a :1 ratio.

She opined that he is definitely showing progress. His class is given once a week with students and he is showing progress. Lunch takes place in the cafeteria with approximately students and education as well as other adults. The

:1 ratio is always kept. He has therapy in a sensory group once a week. He goes to which is run by the for students who have divorced parents which takes place during recess. The sensory group is first thing in the morning.

She explained that some of the goals on the IEP written by the DOE are not realistic and the come up with goals and objectives that are appropriate They try and implement the goals that are realistic.

She opined that given all his individualized attention and supports is making progress. Specifically, he smiles more, participates more and is proud of what he does. She opined that he still needs to continue on the academic areas and social and areas. She explained why he needs a second in the class throughout the day so that when one is instructing the entire class the other can see if he needs help even if he is not asking for it. (Tr. 224-263)

On cross-examination, she stated that she teaches social studies, music, and writing as far as his academics. She described his social and status as and his awareness of his . During the time from the beginning of October until the middle of November when and was canceled, he did not speak with the . She thought he did quite well in the lunch room with sixty other students and he does well at recess with forty students. She acknowledged that beyond and he does not receive any .

She explained that he was assessed at the beginning of the year and his has records of how he is progressing in the class assessment he is then given. She opined that he has shown some progress and is independently about a She did not think that some of his goals on the IEP were reachable. Their goals are directed at improving his comprehension and his progress is recorded through assessments. He is able to answer questions and complete text with a lot of support and can comprehend material.

She was unable to say what his comprehension level was at the beginning of the year.

They continue to scaffold him during all writing assignments but he requires a lot of individual support. They determine progress through observation. There has been no testing. They use positive reinforcement and praise to help him with - techniques. They have not worked specifically on improving positive self-statement.

The homeroom keeps all the reports from the various classroom observations. They document things when he does it positively or negatively as opposed to how many times he does actually does something. (Tr. 264-288)

On re-direct she stated that the : ratio continues at lunch and at recess.

She opined that he has made improvements in his confidence but continues to with a task. She explained the importance of having a second in the class who could take him when he needed to talk or . They have not seen a lot of . (Tr. 289-294)

MS. is and she described him as very , , and easily with staying on task. He requires an that is totally focused on him to get him through the task. He has incredible - and has tendencies towards . He has been a happier human being and she attributes this improvement to the and environment at school.

She attended the CSE meeting on May 11, 2010 and had a report done which she took to the meeting. She described the people who attended the meeting, his , his education ,a ,a , his , and a . The meeting lasted about an hour to an hour and a half and she was very involved at the meeting. She explained that they had recommended a program to enable him to receive more . His had described him as with and stated that he needed more .

She told them that he had been offered a place at . Around June 20th, she visited the recommended placement at School and she described her reaction as “ ” because the students were not engaged or involved with what the was teaching. She sent a letter to the CSE rejecting the program and did not receive a response. She sent a letter advising them of her placing at .

She opined that since he has been attending with the amount of his has improved. He did not even notice when he missed the and . She opined that he was making progress slowly but surely. He is more open to trying to make sounds and sounding out the words. She explained that the most important thing for her was that he is learning to . He is having less , away less and less. She attributed this to more .

She had signed the contract in April to secure a place for him at and the tuition which she paid in full is (Tr. 299-348)

On cross-examination, she stated that she had sat in the class that she visited in June for about an hour and a half and she reiterated her concern with the lack of energy in the class. All the children were learning from one book. She signed the contract in April and by the time she had attended the meeting she had already paid approximately

She opined that the most important thing for was to be surrounded with students who also have so he would not feel singled out. She had no recollection of discussing at the meeting and he does not meet with any at on a one to one basis. She explained that his individual had been stopped because of financial issues. She did not think he required because of the one to one support he was receiving at the school. (Tr. 348-383)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v.

Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A 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 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.

(Application of a Child with a Disability, Appeal No. 04-046. The IDEA requires that the CSE include not less than one regular education of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education , or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

In this case, the CSE met on May 11, 2010 and 's parents, Ms.

his then current , Ms. , his Special Education Support Services ( ) provider, the School and District Representative, Ms. , and parent member Ms.

all participated at the review. I find that the CSE was composed of all mandated members.

The team recommended for a special class in a school with a ratio of . The team was aware and took into account of his concerns when making this recommendation.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).

As part of its burden of proof, the DOE was required to show that would have been suitably grouped for instructional purposes. Placement in special classes must be based on similarity of needs in four key areas: academic achievement/learning characteristics, social development, physical development, and needs. 8 NYCRR § 200.6(a)(3); 8 § NYCRR 200.6(h)(2), (3). The evidence adduced at hearing revealed that the proposed class which the DOE defended are geared for students with similar needs. There was testimony from Mr. that the students in his class fall within the mandated three year range with functional levels in both reading writing and math from 1.5 to 4. The goals on IEP are similar to the other students in his class. He described the programs used for students who struggle with reading.

Counsel for the parent argues that requires individual attention in order for him to learn. Mr. testified that he conducts his instruction in small groups between three and five students and is available for one on one assistance if a student requires extra help.

One of the main themes and concerns for 's education is his low self esteem and his vulnerability. Mr. described several methods that he would have used to implement 's social needs of providing him with encouragement and support. He uses activities that encourage his students to think and write about their feelings. The school uses a “Kind and Gentle curriculum which encourages saying kind things about each other and ourselves”. He testified that he is able to provide his students with an encouraging and supportive environment in the class.

The school offers related services of , physical therapy a, speech therapy and occupational therapy. Most of the students in his class have related services. He described ways that the deals with attentional deficits in his class which is common for students in his class.

He creates differentiated instruction and described specific ways he could have helped with his reading. He was aware that struggled with multi-step problems and described how he would have addressed that issue.

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 regular classroom with the use of supplemental aids and services, and 2) whether the school district had mainstreamed the student to the maximum extent appropriate. P. v.

Newington Bd. of Ed., 546 F.3d 111 (2d Cir. 2008). The LRE requirement is a fundamental component of the IDEA, evincing Congress’ strong preference in favor of educating disabled students, to the maximum extent appropriate, with their typically developing peers. Id. at 119. "As IDEA's mainstreaming directive makes clear, Congress understood that a fundamental value of the right to a public education for children with disabilities is the right to associate with non disabled peers." Oberti v. Bd. of Educ., 995 F.2d 1204, 1216-17 (3d Cir. 1993). See also D. v. N.Y. City Dep’t of Educ., 550 F.

Supp. 2d 420, 430 (S.D.N.Y. 2008) (noting that the LRE requirement is a substantive

IDEA requirement).

Even where a student cannot appropriately be served in a full-time general education class in determining whether the placement complies with the LRE requirement, the Court must still consider "whether the school has mainstreamed the child to the maximum extent appropriate." Newington, 546 F.3d at 120. In considering the appropriate level of mainstreaming, both academic and non-academic benefits to the disabled student must be considered because even though the child “may not be able to absorb all of the regular education curriculum," exposure to "the language and models available from non-handicapped children may be essential or helpful to the handicapped child's development." Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036,

1047_48 (5th Cir. 1989). would have opportunity at lunch, recess gym and art to interact with the general education students. However, there are things in place for students having difficulties interacting with a larger group at recess or at gym.

Counsel for the parents argue that since felt stigmatized in his prior placement because of his being different from the other students in the class, it follows that his issues would be exacerbated by having him in a special class which is different from the other classes in the school. I find that this is an unsupported leap and needs to be balanced against placing him in a too restrictive environment.

An IEP must have annual goals and short-term objectives that are related to the student's educational deficits, and are written with sufficient precision to enable the student's to understand the CSE's expectations and for the student's parents to assess the student's progress during the school year. 34 C.F.R. § 300.347(a)(2); 34 C.F.R.

Part 300, Appendix A, Section l, Question l; Application of the Bd. Of Educ., Appeal No.

00-054. An IEP is substantively invalid if it fails to include appropriate goals (34 C.F.R. §3000.347[a][2]; 8 NYCRR 200.4[d][2][iii]; Application of the Bd. Of Educ., Appeal No. 03-100; Application of a Child with a Disability, Appeal No. 99-97).

In this case, Counsel for the parent argues that the goals were not appropriate for . Firstly, it should be noted that the parent did not object to any of the goals at the IEP meeting. Specifically, counsel raise that there were no goals for punctuation and capitalization. However, there was testimony that they would be inferred from the main goal. admitted that she forgot to write the date for the completion of certain goals. With respect to the math goal, she agreed that she probably should have added multiplication and division to the goals but she was sure that the would have added it as an oversight on her part. She agreed that only four of the goals were academic and two were social but she explained that the social goals could be addressed both with the guidance counselor and the . There was testimony from both DOE witnesses that the goals were measurable. I find that the goals were measurable and appropriate and any minor omission would not deprive of

FAPE.

In conclusion, I find that the DOE has met their burden under prong one. I find that the program that they recommended was appropriate and the DOE offered a FAPE for the 2010-11 school year.

Although it is not necessary to address prong two in a case as this where I find the DOE has offered an appropriate program, I will briefly address this in order to have a full record.

is a State approved school and provides with a class size of

:1 ratio with a certified in each class. There was testimony that he has benefited from the Saxon program for reading and that his current independent reading level has improved. There was testimony that he has improved with respect to his state.

The SRO has held that a private placement is inappropriate if it does not provide the necessary related services to address the student’s individual needs. See Application of a Student with a Disability, Appeal No. 08-119 (denying reimbursement where private school did not “provide the level of related services identified as appropriate to meet [the student’s] needs”); Application of the New York City Dept. of Educ., Appeal No. 07-018

(same).

In this case, the parent very movingly described the that had with self esteem and confidence and . There was testimony from all the witnesses that he suffers from these issues and I cannot understand that when there is such a pervasive theme that the parent could choose a program that did not offer one on one . While I am happy to learn that is smiling more, I find that a program with could have given the opportunity to be in a less restrictive environment. The parent raises financial concerns as one of the reasons she had for terminating . However, she chose a school where there is no individual at as mandated by 's IEP. There is a group of six students that meet weekly to discuss certain issues but this does not begin to address his needs that were described by his mother. There was no psychological testing done by . Counsel for the parents attempt to count as a form of . However, this consists of a group of students who meet to discuss certain issues. I find that this is not a substitute for his need for one on one to address the concerns that were described in detail by his mother. There is also a Split Group which consists of a group for students that have divorced parents. While I am not discounting the benefit of any groups, in this case it is not what was mandated by 's IEP. In addition, the group was canceled for a period of time due to a provider shortage.

I find that is inappropriate because it does not meet his related service needs.

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”). In this case, has absolutely no opportunity for mainstreaming, or to interact with non-disabled peers, at . There was testimony from about her concern with attending a school comprised of only special education students. She described him as capable of functioning with typically developing children with modifications. I cannot find that such a restrictive program is appropriate.

In summary, I find that the environment where there are only special education students and where has absolutely no opportunity for mainstreaming or to interact with non-disabled peers is too restrictive. I find that it did not provide the necessary to address which appear to be the of his and have stopped him from making progress. I, therefore,. cannot find it was reasonably calculated to for him to make educational benefits. I find the placement selected is not appropriate and the parent has failed to meet her burden under prong two.

With respect to prong three the mere fact that parents may enroll their child in a school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a school prior to the date of the relevant CSE meeting). However in this case the parent did not only enroll in prior to the IEP meeting but also paid (an amount more than a mere deposit) and had expressed her preference for early on to the team. Whether she was correct in her thinking she did believed that had she sent to a school recommended by the DOE she would have received her money back from . The testimony is undisputed that she did participate at the CSE meeting and visited the recommended placement. She sent a timely rejection letter and notice of her intent to place at . The

Department argues that she always had and expressed her preference for . However, a parent's preference for a private school placement is not disposative of a claim for tuition reimbursement. (Application of a Child with a Disability, Appeal No. 05-070;

Application of a Child with a Disability, Appeal No. 03-003). I find that she did in fact fully participate at the meetings and did visit the recommended placement and notified the CSE of her concerns. I find that the equities would not have barred the parent from relief.

In conclusion I find that the DOE offered a FAPE, the parent's selected program is not appropriate and the parent's request for tuition is denied in its entirety.

ORDER

The parents request for tuition at for the 2010-11 school year is denied in its entirety.

Dated: March 1, 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.

EVIDENCE ENTERED INTO RECORD ON DECEMBER 1, 2010

PARENT

A Letter from Parent to New York City Department Of Education, 8/13/2010, 1 p. B Fax Transmittal Receipt, 8/13/2010, 1 p. C Fax Transmittal Receipt, 6/22/2010, 1 p. D Letter from Parent to New York City Department Of Education, 6/21/2010, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 9/13/2010, 1 p. 2 Due Process Response, 9/23/2010, 4 pp. 3 IEP, 5/11/2010, 13 pp. 4 Report, 10/15/2009 and 10/28/2009, 4 pp. 5 Update, 4/14/2010, 2 pp. 5A Evaluation Update, 11/05/2009, 6 pp. 6 Evaluation, 1/21/2010 and 1/25/2010, 12 pp. 7 Evaluation Flexible Assessment, 4/27/2010, 2 pp. 8 Report General Education, 4/13/2010, 2 pp. 9 Report , 4/13/2010, 2 pp.

10 Assessment System for , 4/20/2010, 10 pp.

11 Progress Report, 11/02/2009 to 3/02/2010, 5 pp.

EVIDENCE ENTERED INTO RECORD ON JANUARY 20, 2011

PARENT

E Enrollment Contract, 3/26/2010, 2 pp.

EVIDENCE ENTERED INTO RECORD ON FEBRARY 14, 2011

PARENT

F Parent Closing Brief, 2/14/11, 15 pp.

DEPARTMENT OF EDUCATION

I2 Department Closing Brief, 2/14/11, 16 pp.