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: January 12, 2011

February 28, 2011

March 3, 2011

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 12, 2011

-,, of and — Student

Student

Student

DOE

CSE (via telephone) — DOE

at (via telephone) — DOE

/, at (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 28, 2011

-, Representing the — Student

Parents

Parents

Teacher, (via telephone) — Student

Administrator, (via telephone) — Student

Representing — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 3, 2011

-, — Student

Student

DOE

— DOE

By amended request dated October 28, 2011, the matter of (“ ”) came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges procedural and substantive violations in the Individualized Education Program (“IEP”) and its proposed implementation and requested tuition reimbursement at the School. The matter was extended numerous times on joint application to May 10, 2011, as a result of witness availability, complexity of issues, decision writing, and related issues. No objection was raised in connection to any extension. The record close date was May 10, 2011.

TESTIMONY AND EVIDENCE

,a assigned to the Committee on Special Education (“CSE”), is a former . (24) She appeared at the CSE review dated April 13, 2010. (26) As , she reviewed the material presented by the School, the progress reports, and worked with the team to generate the IEP. (27) Also at the review were the parents, a , a parent member, and the at the School. (28) Everyone on the team participated in the review and signed the IEP. (28)

They were provided the mid-term reports from the school, a and report, an report, and the reading and math goals that the school provided.

(29) This was an annual review. (31-32) The child was classified as . (31-32) The recommended class was in a school, placement with services of and . (32)

This class was recommended because of the classification of , and because of the he presented that spoke to the . (33) The class is highly structured, with very specialized curriculum. (33-34) This was for a 12 month school year. (33-34) Academic goals were created by the team and were based on goals from the School. (36-37) Academic management needs and social emotional needs were discussed with the team and agreed upon at the meeting. (37) The team did not really consider a classroom with a general education since he really requires more assistance; a collaborative team teaching class would have been too big for him. (38) There shouldn‟t have been any mention of the (“ ”) on the IEP. (39)

The team didn‟t feel that a (“ ”) was necessary for the 2010-2011 year. (40) The program itself provides the supports that the child would need. (41)

She was last in a classroom three years ago, as a Education Teaching (“ ”) . (43)

He was described as a child who craved social interaction. (46)

The reports from the school were comprehensive. (49)

The team also considered a or a for this student. (55)

She is not familiar with the school in question. (55)

The District did not have actual testing at the review, only reports. (57)

There had been a report done, but this was not reviewed during the meeting.

(57) This was not reviewed because such a report had been reviewed at a previous review, and they were looking at that IEP but not their testing. (58) For an annual review, they can use progress reports from the school. (58)

The parents and teacher did not disagree with the recommendations or goals. (60)

,a , is a “lead coverage” teacher at at ; she covers the classes, each of the classrooms, during instructional settings of ELA and math, “sing,” lunch, and a variety of different things. (64) These are programs for children who have or . (65) Children at the site are from to third grade. (65)

would have been placed in a classroom with Ms. . (68) Six children would have been in the class. (69) There is parent training for the parents of the children in the class; there is a ,a , there are “ ” meetings. (69) The training can be in regard to “Saxon math,” how they would be able to implement this, what they can do at home, if they understand what the IEP says. (89) They can also come to the class at any time and view the class and the setting. (89) They are affiliated with , which provides workshops for parents during the week and weekends. (69) There are ongoing parent meetings at the school and workshops via District 75. (69-71) There are one or two parent meetings or workshops throughout the summer. (89) There are IEP meetings twice a year, or any time they request. (90) There are two parent meetings at the school and every month or every other month there is an invitation for parents to attend training. (90)

She teaches students at the site in four different classes, including an class.

(74) Students have education, and students can do this with the general education population in the building. (74) There is an , in which some students interact with the general education population. (75)

Children‟s reading and math levels are pre-readiness and level. (76) Four of the children are verbal. (78)

The would have training in (“ ”) techniques, social skills. (86)

,a , has had over ten years work with children has worked at several schools with , works with on , and has been trained in and Balanced Literacy. (97)

would have been in her class over the summer. (98) All the children would have been diagnosed with . (99) The children would have been from ages 5-7; reading and math levels were from - to . (99) Three children were verbal. (100) They were grouped for the majority of the day, and there was one-on-one instruction in the class. (100)

They use teacher made assessments in the class and the ABLLS assessment as well. (100-101) They use Everyday Math; for reading, they use “e-class,” which is a “DRA.” (101) Every student has a . (101) Every student in the class has to have a . (102) Students received and and over the summer, mostly in a pull-out model. (102)

During the summer, the day proceeds with breakfast; ADL skills; morning circle; calendar skills and greetings; ELA reading using balanced literacy; one-to-one instruction with work on reading and other skills; lunch; gym; sensory period where they can work on requesting and labeling and other skills; ELA writing; math; social studies or related services. (103-104)

Attentional and focus issues would be addressed with one-on-one work. (105) There would be physical and verbal redirection, perhaps sensory breaks. (105-106) They would work to make sure materials are motivating. (106) Social stories would be used, as would positive reinforcement. (106)

would be used to assist with - . (107) They could come up with a sensory diet. (107)

Each of the students has an individual schedule that they use daily. (108) This helps with transitioning and keeping up with the routine. (108)

They use a multi-sensory approach; students will see the letters, listen to the letters, there is music about the letters, a movement activity about the letters. (109) They use Handwriting without Tears. (109) There are wooden blocks that are used to build the letters. (109) They form the letters with play dough, shaving cream, sand. (109-110)

They would work on the goals in the IEP. (110-114) They do read alouds, guided reading, having students answer wh questions, if they can list the characters of a story and plot. (110-111) They used Balanced Literacy Writing Workshop. (111-112) They will work on writing components from a story. (112) They will answer questions about the story and maybe write a word and a sentence about what happened in the story. (112)

students had , and one had conversational skills. (114)

They would have generalized the curriculum across form and environments. (115)

Parent training is provided through monthly meetings that the related services typically run. (115) There are fliers through agencies that offer support groups. (115)

There were students who were working on emerging skills that were at the and three who were on a level (knew numbers and letters, working on academic readiness). (117)

of the children were really only able to label but they did not have conversation.

(118) That student is not in her class as of the date of testimony (1/12/11). Two students could sequence stories, three students could identify shapes and sizes. (122) Three could count to 10; one is inquisitive. (123) Three engaged appropriately with adults. (124) Three had minor . (133) One hit, and one was staying on task. (133)

A would involve his and his “ ” . (126)

For the fall, 2010, there were new students. (131-132) of these students were verbal and conversational. (133) They were at the and - level. (132) They all had a plan for minor ; some have . (133) One will hit. (133)

He needs more conversation, so he would be grouped with a peer. (139) He probably could benefit a lot from scripting. (139)

If they have a workshop or something special is going on, Ms. is in the classroom. (136)

,a at the School, testified that she plans and implements the curriculum, teaches small groups, communicates with team members and parents. (170)

There are in the classroom, a , an ,a , the school . (171) There were children in her class. (171)

The classroom has and ; they are to years of age. (173)

This is a school for students with and , , integration.

(174) There are small class sizes and teach through a multi-sensory approach.

(174) Reading, writing and math levels are all in the range. (174-175) They work on how to form uppercase letters according to the Handwriting Without Tears model.

(175) Some children need cues for contact; some students need help with answering questions when someone asks them a question; some needs support in turn taking during conversation; some need support for cooperative play. (175)

Children in the class are verbal. (176)

was in the at the school. (176)

Upon presentation, was working with CVC words, identifying numbers, extending conversations with peers, expanding his topics, remaining engaged in cooperative play. (177)

The plan consisted of the “One, Two, Three Magic” system, a system which awards points for negative . (178-179, 227) He is given rewards for positive . (179-180, 228) He has responded very well, his time that he is able to be maintained in an activity has increased. (181)

His pragmatic is his biggest issue. (181) He is very social and he likes to talk to people and peers but will often have expanding on a conversation or he‟ll ask many question to a person and won‟t answer their questions. (181) He also needs support in expanding his topics of what he wants to talk to a person about. (181)

Part of his plan is answering questions. (182) He gets a “number” if he doesn‟t answer a question within five seconds. (182)

When other peers ask him a question and he doesn‟t answer, then he will be directed to answer it. (182) The child will then repeat the question and then he will answer the question. (182)

He receives and through (183)

He has fine motor deficits, he has a weak hand that hinders him fron being able to fluently form letters. (184) He needs direct teaching of the “step formation” of the letters.

(184) He receives . (184-185)

is at a mid-reading and math level. (185)

He is very social, he loves to ask peers questions. (186) Often he asks his peers the same question, questions that he has learned how to ask. (186) He will not answer questions. (186) The has worked with to try to implement in the classroom a program where asks a question, listens to the answer and then makes a comment about the person‟s answer. (187)

There is a social skills group taught by the . (190-191)

He makes eye contact sometimes, not all the time. (187)

He can identify letters and identify phonemic awareness background such as identifying rhyming two words but he wasn‟t consistently decoding CVC words. (189)

His greatest need is to stay attentive during the instructional period and for selfregulation. (189) They put him on a rewards system, which has helped. (190) They check in on him to make sure that he answers an activity. (190)

He has responded well to the interventions and when given support he will answer a peer or adult‟s questions. (191)

They use the Fundations program, a program called Sounds in Motion. (192) They use Saxon math and also Stern math, which uses wooden blocks. (192)

He learns best with a multi-sensory activity. (193) He likes to participate and is motivated to take a turn. (193) He benefits from movement breaks after each activity. (193, 229)

He is answering more “wh” questions. (196) He reads CVC words with more consistency; he is able to identify learned diagraphs and with support is able to read words with the diagraphs. (196) He is now able to count by tens to one hundred and count by fives to fifty and count by ones to one hundred. (196) He is able to tell time to the hour with support and to identify a dime, nickel and penny with visual support. (196) He understands more number concepts now. (196) He is much more engaged in cooperative play with getting peers to participate, communicating what he wants to do. (197)

His handwriting has also improved. (198) He benefits from a phonic ear system in the classroom. (198) He is less impulsive, remains in his seat longer, needs less movement/sensory breaks. (222)

He responds to positive support, a multi-sensory approach, a highly structured environment. (203)

The classroom has two assistant ; they are not certified. (204)

He attended summer school in summer, 2010 with a different certified . (211-212)

The school is a for-profit company. (210)

All goals are created by administration; all the children have exactly the same goals. (215)

He gets two pull-out sessions and sessions per week. (215-217) He gets one push-in session for social skills. (215)

students in the class are on the . (217) Other students have and impairment. (217) There are children in the class who are not classified. (218) These children are verbal like , and they require support in expanding play themes, a multi-sensory hands on approach, a structured environment, movement breaks, a small class. (219)

One other child in the class has a plan. (219-220)

It is important for children to be placed in classes with other children with similar needs. (218-219)

Twice a week there is “park time,” in which the children get outside time, work on play skills, play various games. (220-221) Three go to park time with the children. (221)

She is not positive as to whether there was progress in reading or math over the summer. (226) He came into school in September with the same reading and math levels that he ended with in the spring. (226) There were the same social skills as in the spring as well. (226)

Recently he is engaging in attention seeking , in particular, saying “shut up.”

(234) They try to ignore it if possible. (234)

It is very important for to be in a class with children who are since he is a student who is working on communication skills. (235)

She has never been at a CSE meeting for the entire session. (238)

, of school at School, indicated that the school is for children who are cognitively average or better but who need a small, multi-sensory program. (241-

242) Children tend to have and , , , and , social awareness issues, pragmatic issues. (242) They do take some high functioning children and high functioning children. (242) all have masters‟ degrees in special education and are certified by the state; are usually pursuing a master‟s in special education or some related field, but have at least a minimum of a BA plus experience. (242)

All the classrooms have FM systems. (244-245)

Tuition at the school is $ , which does not include the summer program.

(248) The summer program is a split program which is to reinforce skills learned so that a child doesn‟t regress and to provide therapies. (248, 261) The afternoon is more camplike. (248-249)

They send out contracts to the parent early January; they are due early February.

(249) The $ deposit is non-refundable. (249-250) The contract permits withdrawal if the parent finds an appropriate placement. (250-251)

The school is a for-profit company. (252) The parents paid the tuition for the year. (252)

Some of the other classifications for classroom are and , . (256)

The parent testified that was in and went to , a typical preschool. (266-268) He wasn‟t getting enough support, so she then went to the District and he was sent to a full day school called School. (270) They then withdrew him from the school because he wasn‟t getting enough attention there. (271) She then put him on a heavy, intensive home program with 30 hours a week of instruction. (272-273)

This is his second year at the School. (275)

She attended the CSE meeting; there were a lot of conversations about classification. (276-277) She insisted that he be in a class with verbal children. (277) There was no general education teacher at the meeting. (278) The , , was not on the telephone for the entire meeting. (278) She was not on the phone for a discussion of his classification and placement. (279)

There was no discussion of parent training. (279) No new evaluative information was reviewed. (279) There was no discussion of a . (280) She was given a full opportunity to raise concerns. (293) She indicated that the was too . (294)

She received the final notice of recommendation in July, after the summer had started. (281)

She visited the program and the children were non-verbal, they required “hand over hand” instruction. (282) She did not see any children who were talking to each other. (282-283, 301-306)

He is making huge progress at the School. (285-287)

Summer tuition was $ (289)

Evidence includes the observation of dated 12/9/09, which indicates that had issues, sought conversation with another child, played with a sensory animal, listened to a story, worked on a comprehension activity, was taken out by the school‟s specialist. (Exh. 10) He responded to prompting and redirection but did not participate in the lesson.

The fall report from the School indicates that he benefits from the structure and multi-sensory approach in reading and writing and social studies; requires frequent redirection in math and requires a hands-on approach; benefits from “choices” in arts. (Exh. E) He is interested in peers and plays wit them during choice time; he benefits from facilitation to express himself and to collaborate effectively. Most global goals resulted in grades of E, for emerging; reading goals were a mix of S (executes with moderate support) E andN (not yet introduced); math goals resulted in mostly E with some S; literacy goals were largely S but also N and E.

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

While testifying on issues relating to the District‟s proposed placement of a special class in a specialized school, the testified that the District‟s class setting is too “restrictive” for this child. This contention is consistent with the allegations in the Complaint stating that is “highly verbal and socially related” and that the children in the proposed classroom were too “non-verbal” and “much lower functioning” than . M.H. v. NYC Department of Education, 2010 WL 1904005 (S.D.N.Y. 2010)(parent raised issue of methodology in testimony; reversed the SRO and allowed parent to raise issue of methodology).

The parents‟ contention raises questions relating to the duties of school districts to provide the “ ” (LRE) to students. In New York State, LRE requirements should be guided from the Second Circuit decision in P. v. Newington, 546 F.3d 111 (2d Cir. 2008), wherein Judge Katzmann adopted a fact-specific inquiry following the Third Circuit‟s two-pronged test in Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993).

Oberti and its progeny largely concern questions as to whether a child should be in a placed in a general education class with support. This is not the case here, where the parents argue that the child should be placed in a less restrictive special education setting with higher functioning special education students and some general education students. Still, the principles of Oberti and Newington are applicable to the matter at bar. In , indicated that “(w)e have underscored the IDEA‟s “strong preference for children with disabilities to be educated, „to the maximum extent appropriate,‟ together with their nondisabled peers.” 546 F. 3d at 119. In Oberti, the second “prong” of the analysis requires an assessment of “whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.” Id. At 122.

These principles are appropriately applied in reimbursement cases involving children who are sought to be placed in classes that contain special education students but that are less restrictive than the classes proposed by the District. For instance, in Jennifer

D. v. NYC Dep‟t of Educ., 550 F. Supp.2d 420 (S.D.N.Y. 2008), the parents sought reimbursement for a placement in a special education class within a school that included non-disabled peers. The District‟s recommended placement was for a special education class within a building that did not include non-disabled peers. The Impartial Hearing Officer granted the parent‟s request for reimbursement, citing LRE considerations. The SRO reversed, but United States reversed the SRO, underscoring that the unilateral placement would have provided an education in an school attended by disabled and nondisabled students.

In this matter, where the District bears the burden on the first criterion, the District has not shown that they have satisfied LRE requirements. There is no dispute that the parents‟ unilateral placement has non-disabled peers in it. (District Closing Argument, at 351; Exh.14) As discussed, infra, the testimony and evidence show that the student has made significant progress in the parental placement with some unclassified students and a number of students who are not on the . Further, the record shows that the child has in fact benefitted from the presence of unclassified students and other verbal students in the parental placement. The record shows that this student needs to be surrounded by other verbal children so he can learn to appropriately communicate with his peers. As a result of such partial mainstreaming, the student has made progress in his expressive and receptive . See L.B. and J.B. v. Nebo School Dist., 379 F.3d 966, th 978 (10 Cir. 2004)(in ruling that the parents‟ unilateral placement was less restrictive, Circuit court noted that the student in question functioned at a much higher level than the other children in the District‟s proposed class and benefitted from peer modeling in the parental placement).

The District‟s placement did not include any students who were unclassified. As to the composition of the students in the class, the District‟s summer class profile only included students on the . Only one of these children were conversational. The District did not establish the proposed class profile for the 2010-2011 school year. Accordingly, I find that the District‟s proposed placement for summer, 2010 and the 2010-2011 school year does not satisfy LRE requirements.

I also find that the District‟s proposed placement does not satisfy requirements for appropriate grouping. Students with disabilities who are placed together for the purposes of special education shall be grouped so that individual needs are similar. 8 N.Y.C.R.R.200.1(ww)(3)(ii), 200.6(a)(3). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. 8 NYCRR 200.6(a)(3)(ii), (iii). State regulations further provide that the composition of the students in a special class program shall be based on the similarity of the individual needs of the students according to academic achievement characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom. 8 NYCRR 200.6(h)(2). Moreover, a special class shall be composed of students with disabilities with similar individual needs. 8 NYCRR 200.6(h)(3). As noted, the record establishes that this particular student likes to be verbal, but does not know how to engage in appropriate verbal exchanges. The persuasive testimony from the teacher at the school indicates that the student requires other students in the class who are so he can work on properly asking questions, answering questions, and generally entering into verbal exchanges. While the proposed District summer placement does involve one student who is able to engage in conversation, the District did not show that its programs have a sufficient amount of students who have the ability to engage in conversation.

There are also issues with respect to the CSE review in this case. The CSE did not review any psychological evaluations or and evaluations. I find that the CSE should have endeavored to review the previous psychological evaluation to better measure the student‟s progress during the prior year at School. Application of a Student with a Disability, Appeal No. 09-077; 8 NYCRR Sect. 200.4(b)(ii). The CSE also did not have the from the School on the phone while it was discussing the student‟s educational program. Instead, the CSE appears to have received an oral report from the teacher and made its own recommendation. It would have beneficial to have the teacher from the school on the phone while it was making its recommendation, especially since the CSE was relying so heavily on the teacher estimates and opinions in formulating the IEP. It should be noted that 8 NYCRR 200.3(a)(iii) indicates that a review must include a “of the student.”

As a result of the above, the District impeded the child‟s right to a FAPE and significantly impeded the parent‟s opportunity to participate in the decision making process. The parents prevail on the first criterion.

On the second criterion, the test for a parent‟s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address ‟s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

Initially, the District argues that a tuition award cannot be rendered here because

School is a for-profit institution. However, the District did not cite to any on point caselaw in support. In fact, as United States District Judge Denise Cote has indicated, for-profit schools may be the subject of claims for tuition awards. A.D. v. Board of Educ. Of the City School Dist. Of City of New York, 2010 WL 447371 (S.D.N.Y. 2010) at n.16.

The record reveals that has a variety of special education needs in terms of communication skills, attention, , reading, writing, , , math, fine motor, handwriting. The most important of these needs is with respect to pragmatic and attentional issues, as per the unrebutted testimony of . The record reveals that the class has implemented a variety of interventions, including special education interventions, to address these issues. A structured environment is provided throughout, with redirection and a hands on approach. Multi-sensory instruction and the Fundations program has been employed in reading; multi-sensory instruction and the Saxon and Stern programs are used in math; a points plan called One, Two, Three Magic has been employed; small class size with three adults in the class is used to assist in attentional issues; handwriting issues are addressed through the Handwriting without Tears program; is provided; a social skills group is provided. Progress is noted in terms of , conversational skills, handwriting, answering questions, reading CVC words, identifying learned diagraphs, counting, telling time, number concepts. is also reported to be “much more” engaged in cooperative play.

The District protests that the student was not appropriately grouped with other students. On the contrary, the record indicates that this student was appropriately grouped. The record indicates that the student has benefitted from the composition of the class, which includes children that he can engage with and model on. There is no testimony in the record about any issues that might have had with the other children in the class. The observation from the District, in fact, notes that engaged with another child during the District‟s observation.

The District contends that the class is too big for because there are students in the class. However, the District did not call any witnesses to substantiate this claim. Indeed, the District did not call any witnesses that have actually met the student. The District also fails to note that the class is not a 12:1 but a class that contains two assistant – and a head teacher with a Master‟s Degree. This argument is without merit.

The District argues that the and and the provided by the school are inadequate. However, the District did not present any reports from a and or an to substantiate this claim. Additionally, as noted, the District did not call any witnesses who had evaluated the student to substantiate claims that the related services here were inadequate. The teacher testified that was making progress in his expressive and receptive and also in regard to his fine motor and handwriting skills.

The District also argues that the School goals are inappropriate for this student because the administration of the school provides uniform goals to all the students in the classroom. Because it is beyond cavil that special education students must have individualized programs, this is an allegation that must be carefully considered. A review of the record does not establish that the student received the same program as the other students in the class. The record establishes that the school provided the student with an individualized approach, including a detailed, particularized plan. The school‟s progress reports also indicate that the student received individualized attention at the school and was provided special learning programs in small groups. Further, a review of the goals reveals that they appear to be more of a checklist than traditional IEP goals. The School goals do not include “rates of accuracy,” they do not refer to “reports of progress,” and there is no testimony in the record suggesting that the goals are the spine of the curriculum at School as they would be in a public education program. While I agree with the District that the School‟s goals are not in compliance with the regulations, it is not necessary for a school to be in full compliance with the regulations for the parent to be awarded reimbursement. Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). As stated by the Circuit in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 (emphasis added).

The District also argues that the student‟s summer tuition should be excluded from any award. Here, I agree. The parents did not call any witnesses from the school to testify in any meaningful detail about the special education instruction provided to the student during the summer placement. There is testimony in the record that the summer program consisted of traditional summer camp half a day. Further, there is testimony suggesting that the student did not make any gains during the summer months. Summer tuition should not be part of any tuition reimbursement award for the 2010-2011 school year.

In sum, the parent prevails on the second criterion but for the education provided over the summer months.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents‟ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District suggests that the parents did not really consider the District program. However, since private schools routinely require a contract well before the start of a school year, the equities do not and should not prevent a parent from entering into an enrollment contract with a preferred school prior to the date of the CSE review. Application of a Child with a Disability, Appeal No. 03-091. Further, the parents here indicated she was open to the public school site and the in fact visited the school. The District contends that the visit to the school was disingenuous, but the District did not present any witnesses from the visit to support such claim. The District argues that the parents should have raised all issues relating to the IEP at the IEP meeting or be subject to a denial of the award. This argument puts a new, strict burden on pro se parents that exists nowhere in the law, the regulations, or in the commentary to the regulations. Moreover, there is no support for this argument within the Circuit. The District also argues that the parents‟ letter indicating notice of unilateral placement (Exh.

I) is unsigned and that no proof of mailing has been submitted. However, the District failed to present any witnesses that to support its view that such notice was never received. Further, the parents‟ s had previously sent the District a notice indicating the intent for unilateral placement with an accompanying rationale. (Exh. 1) It is clear from the record that the parents gave the District a fair opportunity to create a program for the child. There is nothing in the record to suggest that the parents failed to comply with any directive from the District or failed to respond to phone calls from the District. The parents prevail on the third criterion and are awarded reimbursement for School for 2010-2011, excepting the portion of tuition allocated to the summer months. Dated: May 10, 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 ON JANUARY 12, 2011

PARENT

A Omitted B Omitted C Omitted D Omitted E School Progress Report with goals, dated 11/10/10, 10 pp. F and Progress Report, dated October, 2010, 1 p. G Progress Report, dated October 2010, 2 pp. H Omitted I Parent Response to Final Notice, Undate d, 1 p.

DEPARTMENT OF EDUCATION

1 Notice of Placement dated 6/15/10, 2 pp. 2 Response to the Complaint, dated 9/24/10, 4 pp. 3 Amended Due Process Complaint, dated 10/28/10, 6 pp. 4 Amended Due Process Response, dated 11/8/10, 4 pp. 5 IEP, dated 3/20/09, 15 pp. 6 IEP, dated 4/13/10, 17 pp. 7 and Plan, dated 2009/2010, 1 p. 8 Plan, dated 2009/2010, 2 pp. 9 Mid Year School Report, dated February, 2010, 6 pp. 10 CSE Classroom Observation Report, dated 12/9/09, 2 pp. 11 CSE Correspondence to School, dated 2/15/10, 1 p. 12 Final Notice, dated 6/22/10, 1 p. 13 Contact Sheet, the dates listed 9/30/09 to 4/26/10, 1 p. 14 Class Profile from the School, Undated, 1 p. 15 DOE correspondence to School, 11/8/10, 3 pp.

16 Reading Goals, dated 2009 – 2010, 1 p.

17 Math Goals, dated 2009 – 2010, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBUARY 28, 2011

PARENT

J Tuition Agreement, dated 1/20/11, 1 p. K Attendance Report, dated 1/19/11, 1 p. L Reenrollment Contract, dated 2/1/10, 2 pp. M Summer Program Contract, dated 2/23/10, 1 p. N Summer Tuition Agreement, dated 1/20/11, 1 p. O Summer Attendance Report, dated 10/27/10, 1 p. P Class Profile Undated, 1 p.

DEPARTMENT OF EDUCATION

18 Due Process Complaint, dated 9/15/10, 5 pp.

19 Corporate Status- Undated, 2 pp.

20 Bus Schedule Undated, 1 p.