New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: November 3, 2010

December 17, 2010

May 12, 2011

May 23, 2011

Hearing Officer: Martin Schiff, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2010

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17, 2010

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

School Teacher, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011

Attorney — Student

Parents

Program Director — Student

Teacher (via telephone) — Student

Therapist (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2011

Attorney — Student

Parents

Attorney — DOE

On September 23, 2010 I was appointed to hear the matter of a child with a disability, pursuant to the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. 1415 (f)(1) and Florence County School District Four v. Carter by Carter, 114 S. Ct. 361 (1993). Hearings were held on the merits on November 3, 2010, December 17, 2010, May 12, 2011 and May 23, 2011 with an adjournment on March 21, 2011. The hearing was completed on May 23, 2011. At this time the proceedings were closed, and no further testimony was taken. There were closing statements submitted on May 23, 2011. The parents requested and were granted an extension of the compliance (decision) date from June 2, 2011 to July 2, 2011.

It is noted that this is a parental request for an impartial hearing, dated August 24, 2010 [Exh. A] based on the allegations that: (1) the school district failed to offer their child, a -year-old boy diagnosed with Disorder (“ ”), integration disorder and delay. a Free and Appropriate Public Education (“FAPE”) in a timely manner for the 2010-201112-month school year; (2) the alleged school district failure is based on both procedural and substantive grounds; (3) the basis for these allegations is a Committee on Education (“CSE”) review held on May 7, 2010 to develop an Individualized Education Program (“IEP”) for the child which recommended a -month ized class in a ized school (a in a District program with related services); (4) the parents allege that both the program and placement were inappropriate because the goals and objectives set forth at the CSE meeting were incomplete, inappropriate and lacking in evaluative criteria, procedures or schedules to measure progress; (5) the parents were denied the opportunity to participate meaningfully in the CSE meeting of May 7, 2020; (6) the placement recommended for the child,

@ , was visited by the parent on August 13, 2010 and found to be inappropriate on a variety of grounds; (7) the parents timely informed the school district of the deficiencies of the recommended placement and of their intention to enroll the child in a private school if they did not receive an appropriate placement as required by law; (8) the school district failed to offer the parents any alternate program or placement; and (9) the school district's failure necessitated the parents taking the initiative to reenroll their child at the School for the 2010-2011 school year. The parents allege that this placement is appropriate to address the child’s and developmental disorders, provides the small, structured therapeutic environment that he needs, and is, therefore, reasonably calculated to enable the child to receive educational benefits. The school provides a full day -month program for the 2010-2011 school year for which the parents seek prospective (direct) payment of tuition and reimbursement of tuition already paid for the child’s attendance for the 2010-2011 school year.

The Department of Education (“DOE”) denies the allegations in the parents’ complaint and responds, in summary, as follows. The child was offered a FAPE for the 2010-2011 school year since the DOE complied with all of the procedural and substantive requirements set forth in the IDEA. Further, with respect to prong 2, the School is inappropriate for the 2010-2011 school year, and, under prong 3, the equities do not favor the parents. The evidence shows that a timely CSE meeting was held on May 7, 2010 wherein the child was classified with being on the spectrum and recommended for a class in a school with a ratio of . The child was offered a timely placement at @ in a District school that met his IEP program needs. The parents unreasonably rejected the offer. Therefore the parents are not entitled to reimbursement for the School tuition. Moreover, since this school is a for-profit school, the parents are precluded by law reimbursement for tuition paid and/or prospective (direct) payment to the School of any tuition not yet paid by them.

THE DEPARTMENT OF EDUCATION’S CASE

1st Hearing Date: November 3, 2010

, esq. made the opening statement for the school district. She addressed subpoena issues regarding a subpoena prepared by the DOE. Then she issued an opening statement on behalf of the DOE. The DOE claims that it offered the child a FAPE and that the parents’ placement of the child in question at the School for 2010-2011 was inappropriate. The IEP was tailored to the specific needs of the child and was reasonably calculated to enable the child to receive some educational benefit. The child is classified as and recommended a -month class in a school with related services of , and therapy (“ [Tr. at 57] The placement was to be at @ . The parents placement at the School was inappropriate since it is an overly restrictive school strictly for children with and does not provide the child with the Least Restrictive Environment (“LRE”). The school provides no opportunity for the child to interact with typically developing peers and does not provide the related services and needs set forth for the child in his IEP. The ages of students in his class exceeds the month age range. The school is a for-profit school and so is not eligible for the prospective payment of tuition under the IDEA. The parents are also not entitled to reimbursement under the equities of prong 3. Moreover, they paid a $10,000 deposit to the School on June 21, 2010, before the start of the -month school year and before visiting the recommended placement, @ . [Tr. at 59] The parents had no intention of accepting a public school placement. 2nd Hearing Date: December 17, 2010

The DOE case continued on this date with the school district’s witness, , a school psychologist. She has also been an educational evaluator and education teacher. [Tr. at 87] She has a doctorate on psychology from N.Y.U. She knows the child from her position with the DOE as a case manager assigned to review students attending the School, a private school. She sat on the child’s CSE review committee. [Tr. at 88] The IEP was issued on May 7, 2010. [Exh. 4] It was an annual review. [Tr. at 93] No new evaluation was needed at the time. [Tr. at 93-94] The boy was classified with and recommended for a class in a ized school with related services of and and . [Tr. at 94] It was a -month program. The child had academic, , communication and deficits. He needed the months to avoid regression and the highly structured and small class. [Tr. at 95-96] It did not sound like he was making a lot of progress in reading and math at the School. [Tr. at 96] Goals were created for the child on the IEP from both School reports and from DOE suggestions such as use of phonics and decoding. [Tr. at 97-98] The School relied more on sight word vocabulary. The School previously had no decoding goal. She also added management need goals. The mother fully participated in and contributed to the IEP. [Tr. at 100-101] The parent received a copy of the IEP and CSE minutes at the end of the meeting. [Tr. at 102] In ’s opinion all of the child’s academic, and needs were addressed in this IEP. [Tr. at 104] She has visited the School some 40 to 50 times in observing some children there. She saw a lot of running and noise in the classrooms and in the hallways. It was not a very structured environment. The teachers work more at /communication skills than academic skills. [Tr. at 106] She does not consider the School to be an appropriate placement for the child for the 2010-2011 school year. [Tr. at 106-107]

However, on objection, she admitted that she never actually saw the child in his classroom or talked to his teacher. At the CSE meeting she relied on a December 2009 report from the School – the interdisciplinary report of progress – for the IEP of May 7, 2010. [Tr. at 109-110]

On cross-examination from Mr. , she testified that she has participated in 90 or so CSE/IEP meetings per year. She has never met or observed the child in a classroom. Nor had any of the other DOE participants at the May 7, 2010 CSE meeting observed the child before the meeting. There was also no DOE testing or evaluation. She does not know when the last DOE testing or evaluation had taken place. [Tr. at 119] She does not know when the most recent history was done. Most of the goals that she had suggested for the IEP on May 7, 2010 came from the December 2009 progress report. [Tr. at 121] The input that she provided for the IEP came from current goals told to her by the School education teacher. [Tr. at 125127]

The next DOE witness was Ms. ,a education teacher with the DOE who works at @ . She also has worked for the School, a private school for children with . She taught a class using the methodology. [Tr. at 148] The @ school houses 44 children. She currently teaches a education class. In summer 2010 she taught a education class. The child’s IEP for 2010-2011 would have put him in her summer 2010 class. She believes that he would have fit well into her class. The children in that class ranged from to years of age with reading grade equivalents of to grade. [Tr. at 151] All of the children were classified with , and they had mixed verbal abilities. There were a total of children in the class throughout the summer. [Tr. at 150-152] She performed the Diagnostic Reading Assessment (“DRA”) and assessment of the children during the summer of 2010 to determine their reading and math levels. [Tr. at 153-154] The children also received their related services during the summer. This child’s goals and behaviors were similar to the children that she had in her class. [Tr. at 158] There were actually three adults in the room in her summer 2010 class. [Tr. at 161] The school also offered parent training for the parents of these children. [Tr. at 173] The training is to help the child generalize the skills for the home which were learned at school. [Tr. at 174] Although she has never visited the School, she has heard that it is not as academically focused as it should be. [Tr. at 175]

On cross-examination from Mr. , she testified that part of her duties with the DOE is to testify at impartial hearings. She was not aware that the child had previously attended @ . There are education children at who are served by therapists, one full time and another who comes in 3 times a week. She would have been the child’s teacher in summer 2010 but not in the fall of 2010. 4th Hearing Date:

Ms. made her closing statement for the DOE. [IHO Exh. I] THE PARENTS' CASE: 1st Hearing Date: November 3, 2010

After challenging certain aspects of the DOE subpoena to the School , esq., representing the parents, made the opening statement. The child in question is a year-old boy who has attended the School, a private school for children for the past two years. The DOE did not offer the child a FAPE for the 20102011 school year. They have not evaluated him for years. Instead the DOE relies on reports from the School for its case. The School by way of contrast has provided the child with a FAPE. The law permits tuition reimbursement for the School even though it is a for-profit school.[Tr. at 60].The fact that the parents made a deposit on June 21, 2010 for the School in no way disqualifies them for tuition reimbursement. It was a refundable deposit, refundable if they accepted an appropriate DOE placement. 3rd Hearing Date: May 12, 2011

The witness for the parents on this date was Ms. , the program director of the School. The school enrolls students between the ages of and . The students have disabilities which involve “ developmental delays in relating and communicating, which includes children diagnosed on the spectrum.” [Tr. at 204] The average classroom has students but some have However, the ratio of students to adults is always the same: students for adult in each classroom. The reason for this ratio is to enable students to facilitate communication with one another as peers with the adult acting as facilitator. [Tr. at 204-205] The annual tuition for the 2010-2011 school year is $ [Tr. at 205] That amount includes all evaluations, related services, family training, and home visits. [Tr. at 205] The children receive 30 hours per week of instruction and attend school 5 days per week. The summer session began on July 6, 2010. The primary teaching methodology is (Developmental Individual Differences Relationship Based Model). Research studies establish that is an appropriate model for children with . [Tr. at 209-210] serves to delay a child’s 6 basic developmental levels: (1) regulation; (2) shared attention; (3) back and forth communication; (4) shared problem solving; (5) symbolic thinking; and (6) building logical bridges between ideas. DIR works on all these levels. differs from Applied Analysis (“ABA”) which is a methodology. The child in question is a student at and has developmental delays and processing difficulties which affect his communication, cognitive and academic abilities. [Tr. at 212] Using DIR, the school has achieved progress with the child across all developmental levels. Floor Time is an intervention under the model. The child has attended the School since September 2008. He receives related services of and therapy and which included the summer of 2010. Her class has a total of students, teacher, and teacher assistants. His current teacher, Ms. , has a Masters degree in teaching, is certified as a teacher with advanced certification in and developmental disabilities. The teaching assistants have Bachelors degrees. [Tr. at 216-217]

The model used by the School is more effective than the model because the latter does not supply sufficient adult support to facilitate peer interactions or allow a teacher to work individually with a student which they often need. [Tr. at 218] This child needs such adult support. [Tr. at 218] The child’s current reading ability is at early grade level. His math level is at mid to late grade level.

The parents’ contract with the School provides that if the child is enrolled at a public school before the start of the school year, the parents’ obligation under the contract ceases with the forfeit only of a portion of the initial deposit. [Tr. at 223]

On cross-examination by Ms. , she testified that Floor Time is a developmental intervention that can be done anywhere and not just on the floor. [Tr. at 226] The child receives 3x30, twice individually and once in a group; is 4x30, twice individually and twice in a group; and is 2x30 individually. The grade level among the 6 children in the class is - with an age level of to years. [Tr. at 233] The school is a for-profit school. [Tr. at 239-240] The child does not use a computer as part of his program although it is used for other students. It has been determined not to be best overall for his development and learning. [Tr. at 243] The child has made progress as measured by assessments. [Tr. at 244-245]

The parents paid a deposit of $ toward the overall tuition of $ [Tr. at 246] The contract was signed on June 21, 2010 with the $ check paid on June 23, 2010. The non-refundable portion of the $10,000 deposit is $ with $ refundable were the child to have enrolled at a public school prior to the September 2010. [Tr. at 247-248] The parents qualified for direct prospective funding rather than reimbursement. [Tr. at 248-249] The parents currently owe $

The next parent witness was Ms. , the child’s current head teacher. She has a Bachelors degree in psychology, a Masters in education and is New York State-certified to teach grades through . The children in the class are all on the spectrum. The child’s educational deficits are comprehension difficulties in reading and math and great and rigidity. [Tr. at 257] He made progress over summer in learning coping strategies for his . Thus, for example, when there is too much going on for him to handle, or things are too loud, he learned to ask permission to leave the room for a brief period. [Tr. at 259] He also learned to come to some group meetings for a few minutes which he did not do at the beginning of the summer. [Tr. at 259-260] Now about three times a week he participates for a full 30 minutes in group meeting and morning meeting. [Tr. at 260] He has also learned to participate in gym which he did not do at the start of the summer. He will stay and use the facilities in the gym for 10 to 15 minutes now on 1 day out of 2 days per week. [Tr. at 262] He is still very sensitive to sound and to children moving about very quickly in the room. He has learned to speak to his peers with respect to asking them to lower their voice and to leave the room instead of his leaving the room. [Tr. at 263] The child also receives instruction several times during the course of the school day when learning a new task or when there is a lot of activity going on in the room. [Tr. at 264] He is much less aggressive than he was and has learned to control his behavior. [Tr. at 267] He has learned addition and subtraction and how to count mo and to interact peacefully with his peers. [Tr. at 268-269] He has learned to identify peer emotions and to comfort others. [Tr. at 270-271] He can answer “who” and “what” questions consistently. [Tr. at 272] “Why” questions can be answered when he is given two choices. Modeling answers from other children and fading away choices are strategies for future and more independent learning. [Tr. at 273] He reads on a grade level, but his reading ability has improved. His studies work at this point involves interacting with his peers and learning to go out into the community. At one point his class had only one teaching assistant and an overall ratio. This did not work well for him since he became more anxious and had trouble learning new academics. [Tr. at 279-280]

On cross-examination by Ms. , she testified that he receives 2x40 in a group of one although his IEP recommends 3x a week. [Tr. at 282] His class went to from for two weeks when the prior teacher, , had to leave the school due to a family illness. [Tr. at 291] The school does not work on phonetic skills with the child because the school uses sight word curricula. The focus is on words of high interest to the children. [Tr. at 299-300] ABA is not used. The child does not have a behavior plan. [Tr. at 300-301]

On re-direct from Mr. , she testified that there are no decoding goals for the child because his decoding is on a higher level than his reading comprehension. So it is not useful to emphasize decoding when he does not understand what he is decoding. [Tr. at 306-307]

The next parent witness was Ms. , the child’s therapist. She has a B.S. degree in disorders and an M.A. in and pathology. She is a licensed and certified pathologist and is so employed at the School. She sees the child 4x a week providing therapy individually and in a group. The therapy is provided in a cooking class as a motivator since the child likes cooking. One goal is to teach spontaneous , and he has made progress. He now independently makes requests, asks questions and describes his feelings and emotions.

On cross-examination, Ms. testified that the child had made progress in expressive skills, going from short sentences to those of 6 to 7 words. [Tr. at 321]

The mother was the next witness. She attended the child’s CSE/IEP meeting in May 2010. The CSE used a December 2009 progress report from the School to develop his goals. was at the CSE, and she told the mother to use the same goals from 6 months ago since she was sure that the School was a good program for the child. [Tr. at 331-332] She does not recall if all the goals were read aloud at the meeting. Her husband on June 21, 2010 served notice on the DOE that he intended to enroll the child at the School unless the child were offered an appropriate school for the 2010-2011 school year. [Exh. D-1] Another letter of June 29, 2010 was also written by the husband in response to the DOE’s placement offer and expressed the parents’ intention to visit the placement recommendation site. [Exh. D-2] Then a third letter was written by the mother, dated August 18, 2010, in which the parents rejected the recommended placement after having visited it on August 13, 2010. [Exh. D-3] [Tr. at 337] Her letter listed 10 reasons why she found the placement offer to be inappropriate. She elaborated on her objections. [Tr. at 337-341] She liked the model as she saw it in practice at the School and how her son reacted to it. [Tr. at 341-345]

On cross-examination, Ms. questioned the mother about that part of an application for the School, dated March 18, 2008, in which the parent said that the child “does not any more, for over a year….” [Exh. 14-3] This was not explained by the parent in her testimony other than to offer that he still had some s initially at the School. She testified that at the May 7, 2010 IEP she did not get the full opportunity to discuss her child’s progress and deficits and that she “felt kind of pressured.” [Tr. at 353-354] The parent did not think that she had objected to the CSE recommendation of a class in a school. She offered that “it’s too abstract for me.” [Tr. at 365] She did not seem to understand the question about whether she asked for any re-evaluation or evaluation of her child. [Tr. at 366367] However, she did ask the CSE to perform an observation of the child. She visited the site at @ . [Tr. at 368]

On re-direct from Mr. , she testified that although he had stopped ing when she filled out the application form for the School, he still had panic attacks, he would lie down in a fetal position if he objected to something, and he would scream if he wanted to leave a certain place and/or throw things. These were other bad behaviors, not s. [Tr. at 385] His behaviors had already stopped. He no longer his head against the wall. [Tr. at 386] However, he still put objects in his mouth in May 2010. [Tr. at 387]

On re-cross from Ms. , she testified that he continued some bad behavior in the initial weeks at the School, but this did not constitute ing. [Tr. at 389] 4th Hearing Date: May 23, 2011

Mr. made his closing statement with an oral submission plus hard copies of two legal references.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Education once again bears the burden of demonstrating the appropriateness of the program recommended by its CSE based on legislation passed in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). Therefore, the Department (DOE) has the burden set forth in a long line of cases. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate education services to address the child’s education needs. Application of a Child with a Disability, Appeal No. 9312; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, for example, E.S., 135 F.3d at 569. Nor does the IDEA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit.” Id. At 200

In the instant case, the child, born on April 7, 2001, has been and continues to be a “child with a disability” as that term is defined under the IDEA, 20 U.S.C. Sect. 1400 et seq., and is classified as a student with , as that term is defined by 20 U.S.C. Sect. 1401(a)(1). The child has attended the School since September 2008. On May 7, 2010 the Committee on Education (“CSE”) convened to formulate an IEP for the child and to make recommendations for the 2010-2011 school year. The parents raised in their impartial hearing request issues, among others, about the composition of the CSE/IEP team which convened not being duly constituted.. However, this issue was not pursued at the hearing and, therefore, must be deemed to be abandoned since was no evidence presented to support the charge. Allegations not pursued at a hearing have been deemed waived by the SRO. See, e.g., SRO Appeal No. 05-080, SRO Appeal No. 08-037, SRO Appeal No. 04-043, and SRO Appeal No.,04-019. The DOE considered the following documents as part of the child’s May 7, 2010 IEP meeting: (1) the School’s Interdisciplinary Report of Progress of December 2009. [Exh. C]; and (2) the 2009-2010 IEP of May 4, 2009. [Exh. 9] Not considered was the School’s Interdisciplinary Report of Progress of May 2010. [Exh. J] The DOE did not create any evaluations or reports of the child on its own. No one assessed the child to see whether he could learn in the education group setting in a ized school recommended in the IEP which emanated from the CSE meeting of May 7, 2010. Dr. , a school psychologist assigned to the CSE, testified for the DOE that new evaluations were not needed because it was an annual review. [Tr. at 93] Moreover, no one requested any new evaluations. There was no documentation submitted to indicate when the last psychological evaluation for the child was done. testified that she relied for the most part in the preparation of the IEP on the goals and objectives prepared by School personnel in the previous IEP of May 4, 2009 and in the Interdisciplinary Report of Progress of December 2009.

The DOE’s Final Notice of Recommendation (“FNR”) was mailed on June 14, 2010, recommending a placement at @ . The parents wrote to the chairperson of CSE 9 on June 21, 2010 indicating that they were signing a contract for the child with the School for the 2010-2011 school year and were putting down a deposit of $10,000. They were doing this to ensure a place for the child for the coming school year. However, they would enroll their child in a public school if such school offered an appropriate program and placement. [Exh. 8-1] There was a follow-up letter on June 29, 2010 which confirmed receipt of the FNR and informed the CSE of the parents’ intention to make an appointment to visit the recommended site as soon as possible. [Exh. 8-2] There was a third letter dated August 18, 2010 in which the parents declined the placement of @ . The reasons given were that, upon visiting the site on August 13, 2010, the parents found that the physical layout of the school, a multiplex of sub-sites, would not give the child the close supervision that he needs. The school was also, allegedly, dirty which was a particular problem for a child who often puts objects into his mouth. The teacher and the students who would be his classmates were not available since his proposed class not in session. The class that the parents did see had children who were higher functioning and better behaved than their child. The teacher that they met said that she used a “push-in” model whereas their child would be distracted in such a large class setting. The children that they saw were working in a group whereas their child could not work in such a group and required individualized attention. One teacher explained that she handled behavior problems by using an “embedded schedule” which the parents believed would not work for their child. There was no one at the site to address the parents’ specific concerns about how the academics offered would be tailored to their child’s specific education needs. The DOE never responded to the parents’ third letter which rejected the proposed placement, and the DOE did not recommend any placement other than @ . Upon information and belief the child began to attend classes at the School in September 2010. The tuition was to be $ for the school year ending June 2011.

The DOE presented as a witness M. ,a education teacher who would have taught the child at the proposed @ . It was a -month class composed of exclusively children. She felt that he would have fit well into the class in terms of age range and reading grade equivalent. There was a space for the child since there were only children in her class that she taught in summer 2010.

The critical issue in this case is whether the school district’s IEP issued by CSE on May 7, 2010 (Exh. 4) provided or would have provided this child with a FAPE as required by law. It is significant that who administered the CSE/IEP process made no new evaluation of the child and had no record of the last evaluation made of the child. While it may be true that it was an annual review with no evaluation required, it is difficult to discern what substantial basis – adequate to meet the DOE’s prong one burden of proof under the law – existed for the DOE’s recommendation of a program for this child for the 2010-2011 school year. and the CSE/IEP team professedly relied on two documents: the Interdisciplinary Report of Progress of December 2009; [Exh. C] and the IEP of May 5, 2009. [Exh. 9] However, these were very dated documents for the measurement of progress made or not made by a very young and child. She testified that she visited the School regularly since it was her job to measure progress of these children for the DOE. [Tr. at 132] She was also aware that the School generated reports in December and May of each year. [Tr. at 133] Then she fails to explain why she did not seek the latest information on the child by obtaining and using the May 2010 Interdisciplinary Report of Progress [Exh. J] instead of the dated report of December 2009. If, in fact, the May 2010 was not ready yet for the CSE meeting scheduled for May 7, 2010, then the meeting should have been adjourned for the few days necessary until the May 2010 report was available. She did not recall if she even asked School personnel for the May report. [Tr. at 128] The question is: why not? She testified that no new evaluations were needed because the child’s grade level equivalents on his IEP’s of May 7, 2010 and May 4, 2009 were about the same. However, such a casual conclusion ignores evidence of actual if small progress from year to year. His decoding went from end of grade to . ; his reading went from beginning of grade to . ; and his computation went from grade to . . Moreover, he now had a sight-word vocabulary of . which was not even measured the year before. This last measurement is significant since the School, as indicated in its witness testimony, emphasizes sight-word vocabulary over decoding in learning reading and reading comprehension. Thus, with no evaluations, no recent documents and no observation of the child in his class by or anyone else who participated for the DOE at the May 7, 2010 CSE meeting [Tr. at 118], the casual dismissal of any progress made by the child as insignificant is not what is expected at a CSE meeting under the IDEIA. It must be noted that 34 CFR Sect. 300.310 requires that the public agency must ensure that the child is observed in the child’s learning environment to document the child’s academic performance and behavior in the areas of difficulty.

also dismissed the School program as weak on academic goals and emphasizing “ and communication”. [Tr. at 106] In fact the parent pointed out that the only goals discussed at the IEP meeting were academic goals, math and reading. She alleged further that the - , and goals were not discussed or revised even though the IEP was based on information that was six months old. denied the parent’s allegations, but her own testimony elsewhere makes her denial unpersuasive. Moreover, the parent testified persuasively that the child’s primary deficits are in the and areas due to his . The parent also testified persuasively that she felt “pressured” by to keep the goals as they were. Inexplicably, while she is highly critical of the goals of and communication of the School, leaves the School goals virtually unchanged and adopts them as the goals for the CSE/IEP of May 7, 2010. In fact the “ ization and communication” goals are left unchanged from what was written in the School documents. The few changes that were made, in ’s own words, were in reading and math goals with a decoding goal newly-created. [Tr. at 96-97] There is no logical explanation as to how goals and objectives created by and for the School for a program are adopted virtually intact in the IEP recommendation of a non-program which criticizes the very and communication goals just adopted from School documents. Furthermore, the program at the School is heavily criticized as chaotic, noisy and undisciplined by without any consideration of documents prepared by the Interdisciplinary Council on Developmental and Learning Disorders which strongly supports as beneficial for children. [Exh. F] The alleged chaotic, noisy and undisciplined conditions, of course, were not observed in the child’s class because the class itself was not observed.

As a legal matter the Southern District of New York has held that if reports and assessments produced by or relied upon by the DOE are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 (SDNY 2010). It is my opinion as a result of the facts set forth above that the IEP developed for the child did not develop a suitable program calculated to confer a reasonable education benefit and thus failed to provide FAPE to the student. The testimony and the evidence does not support the DOE’s conclusion that a program would be an educational setting that would be calculated to provide the child with meaningful education progress. It is a fundamental feature of prong one of Burlington/Carter that the school district must establish that it has met its burden of proof and its burden of persuasion, pursuant to Schaffer, supra, of demonstrating that it provided the child with a FAPE. Nowhere in its direct case has the DOE met this required burden of proof. Thus, the DOE has failed its prong one burden.

I must now consider prong two in which I must determine the appropriateness of the parents’ requested relief as set forth in the complaint dated August 24, 2010. Under prong two parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate. The DOE has argued that the parent has wholly failed to meet her prong two burden because the School is, allegedly, inappropriate for the child and because the parents are not eligible for reimbursement or direct payment for a for-profit school such as the School. However, with respect to the argument, the argument regarding for-profit schools is misplaced. The DOE offers no basis in law to support this argument. The U.S. Supreme Court has reaffirmed the general principle that the “IDEA authorizes reimbursement for the cost of private -education services when a school district fails to provide a FAPE and the private-school placement is appropriate.” The Court took an expansive view of the IDEIA so as not to exclude direct payment instead of reimbursement and so as not to limit payment to not-for-profit schools. See Forest Grove, 129 S. Ct. at 2493, 2496, A.D. & M.D. v. Bd. Of Educ. of the City Sch. Dist. of New York, 690 F. Supp. 2d 193, 215, footnote 16 (SDNY 2010). For direct payment that was permitted specifically to the School, see Mr. and Mrs. A v. New York City Dept. of Education, 2011 U.S. District Lexus 9475 (SDNY, Feb.1, 2011).

The DOE argument that the School is inappropriate for the child under prong two is made in the following manner. The DOE states that the child is still having behaviors at the School, according to the parent, even though the parent stated in her application for the child of March 18, 2008 [Exh. 14] that the child no longer has behavior. [Exh. 14-3] The parent’s testimony under cross-examination was that the child had some s initially at , but his s and worst behaviors have stopped. His behaviors have stopped, and he no longer his head against the wall [Tr. at 385-387] However, he was still putting objects in his mouth at the time of the May 7, 2010 CSE meeting.

The school district contends further that the parents did not meet their burden of proof for prong two. The DOE argues that the School’s DIR program was not suitable for the child because he has not made much academic progress there. However, there was persuasive testimony from Ms. that the child was making progress with the School’s program. His progress was across all 6 developmental levels which characterize . He has improved to a current reading ability of early grade level and a math level at mid- to late grade level. The DOE also argues that his class at is too large, too noisy and too chaotic for the child, but this criticism is not persuasive coming from DOE witnesses who have never seen the child in his class.

The DOE argues further that the child does not receive his required levels of related services at the School. The record reflects that the child was to have 3 sessions of , 2 individually and 1 in a group. However, supplied 2 sessions of individual . Other DOE arguments are that the age range in the child’s class – from 5 to 10 – is too great for the child and that his teacher – Ms. – is only a general education teacher. In fact, Ms. testified that the age range in the class is to years not to years. [Tr. at 233] Moreover, both the parents and the School are satisfied with Ms. ’s performance.

With respect to prong two, parents have the burden to establish that the child is grouped with others who have similar academic abilities, learning characteristics, , physical and management needs. 8 NYCRR Sect. 200.6. It should be noted, however, that there is broad discretion in determining the appropriateness of a program initiated by a parent. The Supreme Court in Burlington held that a parent who can show that the education offered by the public schools is inappropriate may unilaterally place the child in a private educational setting and obtain reimbursement for tuition and other expenses provided that the child’s privately funded service is appropriate. 471 U,S. 359, 105 S.Ct. 1996 (1985). What was to be deemed “appropriate” received a broad and flexible interpretation in Florence County School District Four v. Carter by Carter, supra, and Frank G. and Dianne G. v. Board of Education of Hyde Park, 459 F. 3d 356, 363 (2d Cir.2006). The courts have held that the test for the parents’ private placement is that it is appropriate and not that it is perfect. Frank G., 459 F.3d at 364. Nor must the parents show “that a private placement furnishes every service necessary”; all that is required is that the alternate placement “provides educational instruction ly designed to meet the unique needs of a handicapped child.” Frank G. 459 F.3d at 365.

The school district contends that the parents have not met their burden under prong two. However, with respect to the School program, the school district did not establish by its cross-examination that the program is not adequate to satisfy the parents’ prong two obligation. The parents’ witnesses and the parent testified that the School’s program as implemented has already resulted in some notable improvements in the child’s skills. He is in a classroom with students, a head teacher and teaching assistant, a student to teacher ratio of : . This enables students to receive one-to-one attention and support with peer interactions. [Tr. at 215, 217-218] The child was taught strategies to address his [Tr. at 259-265] and to address situations which overwhelm him. [Tr. at 263] He receives instruction every day to work on reading fluency and when he works on new tasks. [Tr. at 264] He sits on a bouncing ball during morning reading to address his needs. [Tr. at 266] His math program is multi . [Tr. at 268] He is taught how to answer “why” questions. [Tr. at 273] The child has made progress at the School in decoding, reading comprehemsion and math computation. [Tr. at 220-221] The child has learned to participate in group activities [Tr. at 259-260], to stay in the gym longer [Tr. at 262], to ask for activities like using a bouncing ball [Tr. at 266], and to not become aggressive when feeling “disregulated”. He has also learned addition and subtraction and how to make change. [Tr. at 268-269] He has learned to identify peer emotions and how to react appropriately to their display of emotions.. [Tr. at 271-272] He has improved his reading fluency. [Tr. at 274] The school district's cross-examination of the parent's witnesses did not cast any doubt on the parents' assertion that the School program is an appropriate education for their child. The program and placement appear to be appropriate and reasonably calculated to provide the child with meaningful educational benefits and continued progress in developing his skills. The program is not unduly restrictive under the law since the child is not currently capable of succeeding in a group setting without continued support at times which he gets at the School.. Under prevailing law and based on the testimony of the parent’s witnesses, therefore, the parents’ choice of the School for the child's daily education is entirely appropriate. The evidence of appropriateness satisfies the prong of Burlington/Carter.

The third prong addresses the equitable considerations for the relief requested. The school district alleges that the parents have not satisfied their prong three burden. The DOE contends that the parents had put down a deposit of $ for the child at the School by a check dated June 21, 2010. [Exh. I] The DOE alleges that since the payment was made less than 10 days before the beginning of the school year at , the parents were in violation of the 10-day rule. The 10-day rule requires, as a condition for DOE reimbursement of a private school enrollment, at least 10 days notice before the beginning of the school year for a child to be removed from the public school system. However, the law does not support the DOE allegation. The child was not “removed” from the public school system in favor of the School with the deposit of $ because the child had been attendance at said school since September 2008. Case law confirms that since the deposit was only less than 10 days before the re-enrollment at a private school where the child was already in attendance, the parents did not abdicate their right to seek reimbursement or direct payment for the private school tuition. See, R.E. v. New York Coty Dept. of Education, 10 Civ. 3176 (SDNY, March 15, 2011); see, also, Letter to : Office of Education Programs, Ed Connecticut Case Report, 110 LRP 73646, May 5, 2010.

In further consideration of the parents’ burden under prong three, a deposit of $ for a school that charges $ a year in tuition creates only a rebuttable presumption that the parents had definitely decided to enroll the child at the School. The parents had supplied the school district with notice letters of June 21, June

29 and August 18, 2010 for the child which made the case to convince the school district to supply the child with an appropriate program and placement to give him educational services to which he is entitled by law. [Exh. D] The mother attended the CSE meeting of May 7, 2010 in the hope that the DOE would change its mind and offer the child a program and placement that would constitute a FAPE. It cannot be concluded that the parents knew that the DOE would reject the parents requests so that the parents would then proceed with the School enrollment which was what they intended all along. All that the $ deposit did was preserve a place for their child at the School in the event that the DOE remained adamant. As it turned out, that is exactly what happened; without that $10,000 deposit the child in September 2010 would have been forced to accept the DOE offer of @ which they considered inappropriate or perhaps have no school program at all. The record indicates that the $ was a non-refundable fee but that the parents would have been released from the tuition contract in the event that the child enrolled in a DOE–recommended placement by the day of school. The parents had until September 7, 2010 to cancel the child’s enrollment at and accept a DOE-approved school with a forfeit only of the $ deposit. [Exh. H] Thus, the parents acted reasonably and in good faith under the circumstances. The parents had a right to make arrangements to preserve their options should the DOE-recommended placement prove to be inadequate. The parents had also cooperated with the DOE by participation at both the May 7, 2010 and May 4, 2009 CSE meetings which were scheduled.

In weighing the equities, “the critical consideration, as the Court sees it, is not whether the parents have their minds set on private school, but whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible. If they have not, they cannot fairly be heard to complain that the school authorities have failed to develop an IEP and consequently have failed to offer a FAPE for their child. But if they have cooperated – even if throughout they have held to the belief that the best the school authorities can offer will not be good enough – they are entitled, acting “at their own risk,” to place the child privately, hoping that eventually they will be able to convince an ALJ or a judge that the child was not offered a FAPE.” Weast v. Schaffer, 240 F.Supp 2d 396 (2002). The record is clear in this case that the parents cooperated in good faith at all times with the DOE. Upon the absence of an appropriate recommendation for the child's educational needs and with time running out for obtaining a program and placement for their child, the parents acted reasonably in proceeding with their contract with the School. Therefore, I find that equity supports the parents’ claims under prong three.

Accordingly, I find that the evidence supports the parents’ claim for reimbursement and direct payment by the Department of Education (DOE) with reimbursement to the parents for what they have already paid to the School and direct payment of the balance of the $ tuition fee to the School for the September 2010 – June 2011 school year. WHEREFORE, it is hereby ordered that:

1. The Department of Education (DOE) failed to provide the child in question with a free and appropriate education (FAPE) for the 2010-2011 school year.

2. The parents acted appropriately in enrolling their child at the School for the 2010-2011 school year to give him the educational services to which he is legally entitled.

3. The Department of Education (DOE) shall reimburse the parents of the child in question in the amount of their payment to the School towards the tuition of $ for the 2010-2011 school year. The DOE shall also make direct payment to the School for the balance of the $ tuition, comprising that portion of said tuition not already paid to the School by the parents for the September 2010 – June 2011 school year. All payments shall be made upon presentation of documentation of a billing invoice and of payment.

4. This decision is subject to appeal to and review by the State Review Officer. Dated: June 14, 2011

_________________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the 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 NOVEMBER 3, 2010

PARENT

A Impartial Hearing Request, dated 8/24/10, 5 pp. B IEP, dated 05/07/2010, 17 pp. C Interdisciplinary Report of Progress, dated 12/09, D Parent Correspondences dated 6/21, 6/29 and 8/18/10, 4 p. E School Calendar 2010-2011, 2 p. F /Floortime, dated 2009, 10 p. G Notice of Appearnace, dated 10/28/10, 1 p.

DEPARTMENT OF EDUCATION

1 Letter from Attorney (read into the record on page 9)

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 17, 2010

PARENT

H Enrollment Contract 2010/2011, dated 6/23/10, 5 pp. I Proof of Payment Affidavit, dated 11/15/10. Check dated 6/21/10, 3 pp. J Interdisciplinary Report of Progress, May 2010, 14 pp. K Parent's 2009 Taxes, 2 pp. L Interdisciplinary Report of Progress, December 2010, 13 pp.

DEPARTMENT OF EDCATION

2 Due Process Complaint, 8/24/10, 5 pp. 3 Due Process Response, 9/28/10, 4 pp. 4 IEP, 5/7/2010, 17 pp. 5 Minutes of CSE Meeting, 5/7/10, 2 pp. 6 DOE Correspondence to Parents, 2010, 3 pp. 7 Final Notice of Recommendation, 6/14/10, 1 p. 8 Parent's letters to CSE, June and August 2010, 4 pp. 9 IEP, 2009/2010, 5/4/09, 14 pp.

10 Withdrawn

11 Withdrawn

12 Interdisciplinary Report, 12/2/09, 12 pp.

13 School Class Schedule, 2010, 1 p.

14 Application Form for School, 3/18/08, 4 pp.

15 Correspondence to School, Re: Subpoena, 12/8/10, 6 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 12, 2010

PARENT

H Enrollment Contract, 2010/2011, dated 6/23/10, 5 pp. I Proof of Payment Affidavit, dated 11/15/10. Check dated 6/21/10, 3 pp. K Parent's 2009 Taxes, 2 pp. L Interdisciplinary Report of Progress, dated December 2010, 13 pp.

DEPARTMENT OF EDUCATION

16 E-mail, 3/15/11, adjournment