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: December 2, 2010

January 19, 2011

February 2, 2011

April 15, 2011

June 8, 2011

July 6, 2011 Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2010

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2011

Attorney (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2011

Attorney — Student

Attorney — Student

Parents

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2011

Attorney — Student

Attorney — Student

Parents

Admissions Director School (via telephone) — Student

Teacher (via telephone) — Student

School Psychologist School (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2011

Attorney — Student

Attorney — Student

Father — Student

Mother — Student

Interim Principal at (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 6, 2011

Attorney — Student

Parents

Attorney — DOE

INTRODUCTION

I was appointed to hear the matter of . pursuant to the Individuals with Disabilities Education Act (IDEA), 20 United States Code §1415(F)(1). A hearing was held on December 2, 2010, January 19, 2011, February 2, 2011, April 15, 2011, June 8, 2011 and concluded on July 6, 2011. I issued a pendency order at the request of the parents. Appended to the record are lists of persons who appeared and evidence that was entered on each date. The time line was duly extended.

BACKGROUND

is currently a year old student who is classified as disabled. On August 24, 2010 the CSE held an annual review for the 2010-11 school year when would be entering grade. They recommended a collaborative team teaching placement (CTT) with , therapy as well as and therapy. A final notice of recommendation was sent with a placement at the School. The parent rejected the placement and unilaterally placed at where she had attended during the 2009-2010 school year. The parents bring this request for tuition reimbursement for the 2010-11 school year at .

DISTRICT'S CASE

The District was represented by their attorney . They maintain that the Department offered a FAPE to . They contend that a duly constituted committee met on August 24th and they offered an appropriate program and recommendation. They maintain that is too restrictive an environment for and not appropriate. They also contend that the equities favor the District. In summary it is their position that tuition should be denied in its entirety.

DR. is a school psychologist and participated in the CSE meeting for that took place on August 24, 2010. She had also evaluated her prior to the meeting. She described the other members of the team, a education teacher, a general education teacher, the parent member, herself and a worker. She explained that although the education teacher is not on the attendance page he wrote the minutes and was definitely there. 's father was at the meeting who she had met when she had tested , prior to the meeting. An IEP had been done in May for the 2010-11 school year and the meeting was held because 's father did not agree with the recommendation and had requested this meeting. She gave academic testing to see her level of functioning in different areas and wrote a report with her findings. (Exhibit 5) She conducted the Woodcock Johnson which tests different areas of academic function, reading, decoding, reading and spelling and the Thematic perception test which determines what the child is preoccupied with and his or her concerns and feelings. The team also relied on old testing, the old IEP, teacher reports and providers' reports.

From the testing it stood out that had general academic delays. She was in third grade and functioning around grade. In math fluency was in the grade level but she explained that has more to do with attention and concentration than math skills.

had attended during the 2009-10 school year and was in a program. The team recommended the CTT program for a ten month school year. They recommended once a week for forty five minutes in a group of six, therapy once a week in a group of six and and therapy twice a week in a group of three. They recommended preferential seating for attention and concentration. They recommended multi-sensory modes to strengthen her weaknesses and aids to help her understand the lesson better. They recommended increase of repetition because of her observations during testing and allowed her short breaks because of her frustration. The parent disagreed with the team's recommendation and wanted to remain at . They were unable to discuss the goals with the parent because he left the room after hearing the recommendation. They discussed the goals among themselves. They included a goal regarding coping skills because of the issues. They had a goal regarding mastery of six syllable types of fluently decoding passage based on her reading decoding. There was a goal for writing, spelling and sentence composition and a goal related to receptive skills and following multi-step directions based on the report of the and pathologists. There was a goal regarding expressive skills and a goal regarding and self-regulatory skills and impulse control which the therapist would address. Based on findings of reading delays and delay there were goals regarding improved reading. The goal related to improvement of motor control and spatial organization is an therapy goal based on the the report's findings. The goals are measurable.

They considered and less restrictive programs like SETSS. They determined CTT would be appropriate for her based on 's functioning levels and based on her need for an additional teacher in class. They did not think her delays required a small setting as and opted for the least restrictive environment. Her father was present when they discussed the different programs.

She opined that is for severely leaning disabled and thought it was too restrictive for . She opined that the recommended placement for could address her needs. (Tr. 19-49)

On cross-examination she stated that the meeting probably took less than an hour because the parent left before it was completed. She agreed that there was no worker present. She described the documents in the file when they met as including all the testing, provider reports, the prior IEP and everything for the student. She discussed her findings and report at the meeting because it was new information since the prior IEP, which was taken out and distributed to the members. She agreed that they recommended twelve students with IEPs, a regular teacher and a education teacher. There was a report from and her teacher stated that required a small class size. She had spent about two hours with her during testing and did have difficulty comprehending instruction in this one to one setting. She acknowledged that she was two years behind at the time of testing in reading and almost two years behind in math, two years in spelling and in passage . She did not consider that significant. She agreed that some of the goals did not have a percentage of success however opined that they were specific. The and goals, the goals had percentages. She agreed that the reading goals did not state a specific grade level. (Tr. 49-79)

On re-direct she explained that a child with two years delay is not considered severely delayed and they do not recommend a restrictive environment. She re-iterated that math fluency doesn't tests knowledge of arithmetic but endurance, application and ability to take a timed test. She explained that the teacher and the provider would measure the student's progress with the goals. (Tr. 79-85)

MS. is a education teacher who currently teaches in a CTT class at . She described the class as ideal for exposing the children with needs to the curriculum in the least restrictive environment. They are able to receive extra support within the classroom and accommodating the related services they receive outside the classroom. There are two teachers in her classroom as well as a volunteer who does a variety of things including working one on one with a student who is struggling with a particular skill. There are general education students as well as education children in the room. She reads with the students a lot. After considering testimonies from 's teachers, her school psychologist and her formalized achievement tests it appeared that was performing below grade level. Most of her tests are at a grade level and in math fluency she was behind to a grade level. There were nineteen students in her class on the day of school and seven were receiving education services. Two students were classified with Disturbance, two with disability and two student are classified as and . The lowest one was functioning in math at a low third grade level at the start of grade and one of them was performing at mid grade level. In English Arts the range was from mid grade to grade level. She opined that would have fit in well with respect to her performance with the other students. There are two other students with low frustration tolerance and they do a lot of scaffolded work.

With respect to math would have needed a lot of one on one attention. She would have pulled her out to do a lot of one on one for calculation. She opined that 's needs could certainly have been addressed with either her or one of the other adults. They use a lot of pull out groups in the room and use alternate team teaching. She works with the students who need help generally in a small group setting. The group usually consists of three or four students but she has done it with one if a particular student is struggling. They also do one on one at lunch if a student is struggling. They would have pulled her out one on one to address her deficits in automatic recall of math facts. They also send work home and have an after school program which is run by Children Home with the hour being run through their school. They do either math or ELA and rotate each with with a teacher. There is also a Saturday morning school program where they review base skills which would include calculations.

For reading they use the Wilson system which is a decoding system and would have fit in that group which meets about two or three times a week. They use graphic organizers and try to make things as hands on as possible. They do a lot of manipulative and a lot of aids. would have gotten preferential seating and frequent recall to the task at hand. They give directions and make sure that the student understood them by having them restate it back. They also write directions for a task on the board. She opined that would have fit in fairly well in terms of her ELA skills.

There are two other students in the class with self esteem issues. They see the counselor and there is a psychologist and lunch with groups to address issues. They use graphic organizers for a new skill for ELA and in the content areas for studies and sciences. They are used to organize notes on a topic or to teach a specific skill. They have Services, , Therapy, Therapy and

ESL. There was a counselor to provide mandated services and a licensed therapist.

She described how she could implement the goals. would have been exposed to what the whole class was and would have been introduced to decimals. There is a lot of pull out and one on one in small groups. Her goal of six syllable types is easily taught through Wilson. They have a structured writing program in the class and she opined that would fit in well with the curriculum. They use dictionary and thesaurus in their writing to improve word variety and spelling. All of the students have separate locations for testing and directions read and reread aloud.

In summary she stated that as of September was performing in certain areas significantly lower than the lowest in the class but with all the support in and out of the room she could have made significant progress. (Tr. 85-115)

On cross-examination she acknowledged that she had never met or her parents. She is the only education teacher in the class. She is not with the class during lunch or a prep period. She explained that during lunch there are a lot of adult including several volunteers, additional school aids and occasionally the assistant principal. During her prep period the class is wither at gym, art, science or computer lab and there are always two teachers in the room, one of whom has a education license.

There are currently twenty students in the class and seven have IEPs. She agreed that in math would have been behind even the lowest group in the class. The class is set up in groups but they are very fluid and students are moved according to their performance in a subject.

All the staffing is : . She agreed that the staffing ratio that was on the IEP of is unusual because it does not fit with a CTT classroom. She explained that upon reading the IEP she would have understood it to be a CTT classroom and would have questioned the ratio which seemed to her to be “a misunderstanding”.

From reading the psycho-educational evaluation she would describe as being somewhat shy and under confident and she opined that this was standard and not out of the norm for a CTT class. She agreed that in terms of the assessments that were listed on the IEP tested lower.

She was aware that would have come from a significantly smaller classroom . She explained that anxiety and sadness is common for a child who is under confident in her academic skills. She explained that she has other students in her class that see a counselor to deal with their confidence issues.

She agreed that 's teacher report and her goals do not really align with the formalized testing. None of the students in her class receive related services of or therapy in a group of six. (Tr. 115-139)

On re-direct she testified that she would have given a diagnostic assessment and if she was really significantly behind she would have had the school psychologist do some informal evaluations. If she was not making progress they might have called another meeting for a reevaluation. They do a lot of small group work to help a child transition into as larger CTT class. They also work with the student one on one. (Tr.139-142)

On re-cross she explained that during lunch, generally, the children from the three grades are not in the same room at the same time. (Tr. 142-143)

PARENT'S CASE

The parent was represented by their attorney and Ms. . They maintain that the recommended CTT class is simply too large for and would not be appropriate. They further maintain that the proposed class would not have been appropriate to meet her needs. They argue that the IEP is procedurally invalid. They contend that is an appropriate placement where has been able to make progress. They maintain that the equities favor the parent. In summary, it is their position that the tuition for for the 2010-11 school year should be granted in its entirety.

MS. is the director of admissions at the School and Center. She reviews all the applications made for for school placement. She described as an approved school for children with average to above average range IQ with a classification by the Department of either disabled or and impaired. There are three hundred and ninety eight students in the school ranging from ages to . They are a non graded school. There are twelve students in each class and they all have either and impaired or disabled classification. There are two teachers in the class and most of the teachers are certified in education. They provide related services of therapy, and therapy and with certified providers. She had reviewed all of 's materials that were submitted with her application. They require a psycho education evaluation or a neural psychological evaluation.

attends a class with a ratio and there is always a certified education teacher with her. (Tr. 149-158)

is 's teacher and is certified in education grades one through six. She receives monthly professional development from . They are a non grade school but her class is about the grade equivalent. There are five girls and six boys in the class. Nine of the students have IEPs. The students in her class have a functional range of and grade in reading, writing and math. She has an assistant teacher in the class who assists her in administering all of the daily lessons. She is trained is Preventing Academic Failure (PAF) which is their reading curriculum and Saxon math. She supervises her on a daily basis. is a student in her class for about three hours a day. For the remainder of the day she has different teachers.

In September presented with weakness in math. She could not skip count, could not identify even or odd number and it was difficult for her to tell time to the hour. She was around a grade math level.

With respect to her reading, in September was around a grade reading level and she struggles with fluency. She could not understand what she was reading because of difficulty with receptive . Her reading accuracy was rather low and she didn't understand question marks and exclamation marks and periods and commas. She described her reading as unnatural. She required work with fluency, decoding and .

With respect to her writing in September had difficulty writing to complete sentences. She needs work with organization and couldn't organize her thoughts . She had difficulty with the purpose of capitalization and she opined that she was around a grade level. She based these levels off her performance from the year before.

She explained how struggles with . She has difficulty processing information and it is hard for her to follow multi -step directions. She has apparent processing delays and it is difficult for to to follow conversations where there is more than one speaker. She can become overwhelmed if there are too many words. Expressively she has a lot of word retrieval issues. She does not use precise wording when she is talking or writing. She cannot find the right words and becomes frustrated. She has difficulty spelling and her pragmatic skills are weak. Receptive and expressive is a major weakness that they see in the classroom.

She has a rather weak that interferes with her ability to process a lot of information. She requires a lot of repetition and can become inattentive because of overload. She requires a lot of small group individual attention.

She described a positive support system of reinforcement. They provide her with tasks that are broken down and repeat direction. They use supports for all lessons and kinesthetic support. She described her as a learner and provide her with a lot of support. She is close proximity to the teacher and they have lots of structured routine throughout the day.

They maintain the ratio of throughout the day. She receives individualized attention during all periods of the day including lunch and recess. She needs one on one support in reading, writing, mathematics, as well as in conversation. She opined that she needs two adults in the room and a low student teacher ratio is key.

They use Smart Board and laptops which is a benefit to her because she is such a learner and it helps her maintain her focus. The more supports they provide her, the less verbal support they need to give her.

receives double time for examinations and has directions read and reread aloud. Her schedule is not the same every day. Reading is taught five times a week. Her teacher is not certified but will have the certification by the end of the spring in education. There are seven students in her reading class which is taught three times a week in a group of five. They use PAF with a lot of small group instruction. It is hands on and extremely structure. She opined that is making progress. They give assessments on a weekly basis, use homework and class work, and teacher observation to measure progress.

Writing is taught three times a week and she is 's teacher. There are twelve students in the class. They use Being a Writer as the curriculum. There is a lot of support and she has an assistant which provides a lot of individual attention. She opined that is making progress.

Math is taught five times a week and Ms. is her teacher. There are four students in the class, with a group size of two and they meet twice a week. She supervises the class. They use Singapore math as well as Saxon. She opined that is making progress which is measured through assessments, homework and teacher observation.

studies consist of twelve students in the class. She is 's teacher and she has an assistant in the class. T hey use a created curriculum to work for studies. I t is very hands on. She opined that is making progress from studies assessments and through work product and teacher observation and class and homework.

Science is taught twice a week by a certified teacher in education. There are twelve students in the class. There is a lot of small group instruction, hands on work and she opined that is making progress. She concluded this from teacher observation and work product and class work.

HHR is a class which attends once a week. She described HRR as a class with the school psychologist wherefore students work on any of their needs. She opined that is making progress in that class. She is able to express herself when she is frustrated

Computer class is twice a week with a certified education teacher. There are twelve students in the class with two instructors. They measure her progress through work products and teacher observation.

Art class is twice a week with twelve students. The class is a small group with hands on instruction. She opined that is making progress through work products and teacher observation.

Music class is once a week and taught by a certified teacher. There are twelve students in the class. It is hands on, a small group with a lot of scaffolding, and lots of support. She opined that is making progress based on teacher observation.

has education three times weekly. There are thirty six children with six teachers including her two main teachers who are certified. The ratio is maintained. She opined that is making progress.

Lunch takes place in the lunchroom with seventy two kids and twelve teachers. There are thirty six students at recess with six teachers. The ratio is maintained.

receives related services of and therapy and makes up any work she misses.

She explained that they use the academic goals from the Department as a base and modify them as they deem appropriate. They measure 's progress towards goals through teacher observations and performance assessments.

She opined that a CTT class is not appropriate for . Recess would be overwhelming for her because of her difficulties. She requires the structure that she is given in .

She opined that is making progress. Her decoding level has gone up a grade level, her reading improved, her writing levels went up, and they are starting to see progress in mathematics. She is able to organize her thoughts and is starting to write with more detail. She has made a lot of progress in coping and managing her frustration. She requires a structured and small environment. Technology and aids help her and she has improved with respect to her attention. If the supports aren't there she becomes frustrated. She opined that addresses her needs. They are still working on developing her coding and fluency, her receptive and expressive and her math. (Tr. 160-208)

On cross examination, she explained that requires small group instruction because she becomes overwhelmed in larger class size or groups. She acknowledged that she has never observed in a CTT class. She was unable to say who modified 's goals on her IEP. She acknowledged that in reading class is the only teacher in the class. She provides the one on one instruction. She could not say how much individual time was available for . With respect to the groups in reading the students are about mid grade level. She opined that a multi sensory support is very useful for because she is a learner. Scaffolding allows them to modify the lesson to meet 's needs. In math class is the only teacher. She meets with on a daily basis for at least a half an hour and they have other students in commons as well. She speaks with about every day for a sustained period of time and they have emails going back and forth. She plans out lessons and oversees what does with . sits next to the teachers because she often needs prompting and support organizing her materials. She has expressed that she is most comfortable by a teacher. (Tr-208-223)

Ms. is a school psychologist at who does group and individual . is currently in one of her groups. She meets her once a week on a scheduled basis and she stops in during the days when she needs to talk. There are six students in the group and they meet for forty five minutes. She described as fragile without support and lacking self confidence. She has friends but her processing deficits can interfere with her interactions. She becomes confused with what goes on around her both in a situation and academically. In the group they she helps her understand the impact of her on other kids. They work on self esteem and there is a big emphasis on conversational skills. She opined that a CTT class would not provide with enough structure and support throughout the whole school days. The class size would not provide enough support for her processing. She requires a lot of prompting and help in organization. She thought that would compare herself to the other students and this would be overwhelming. They have the supports that a CTT class could not provide because everyone is similar to her. There are twelve students with two teachers and she is always close to the teacher. There is a lot of intervention needed in the lunchroom. (Tr. 223-236)

On cross-examination, she stated that she is the person who handles the HHR group. She described it as run as a group where they address individual needs of students as they come up. This is part of the curriculum. They meet once a week in the afternoon but she probably has some contact with every day. She agreed that it was important for to have interaction ly with other students.

She was not familiar with the School or which was the recommended placement. She was only aware of the basic structure of a CTT class. She was not aware of any particular supports at . (Tr. 223-236)

MS. is the Interim School Principal at . She interacts with during lunch because she is in the lunch room. comes to her with questions about her work and interaction with peers.

has two teachers, a head teacher and an assistant teacher in each class. There is a certified teacher and an assistant who is in the process of becoming certified. They received training in PAF and in the math program Facts of Math. They receive supervision from the head teacher and ongoing support from the reading and math coaches. There is a certified teacher with all day. She opined that a class with twenty four students would be too large for who currently requires the support of two teachers with twelve students. (Tr. 247-254)

On cross examination, she acknowledged that she was not familiar with the recommended placement. She is not a psychologist. She has never seen in a group of twenty four students. She goes into the classroom to address a particular problem. She recalled on observation in 's reading class for about an hour during the school year. She does not actually teach . (Tr. 254-263)

On redirect,she explained that they try to keep group size to about six and eight students. She explained that shuts down when she becomes frustrated and it is critical for her to understand the of the instruction. (Tr. 263-265)

MR. is 's father. is in her year at and prior to that she attended the school at Columbia University. He attended the meeting in August 2010 and he submitted her latest report cards. They discussed goals and he fully participated. He was there for the entire meeting. He verbally rejected the recommendation of a CTT class and related to them that he wished to remain at .

He visited the recommended school program and spoke with the education teacher and principal and was told that there was no room and the class was too large. He wrote a letter to the Department voicing his concerns and advising them that would be attending . He opined that has made progress during the year. Her reading, writing and mathematics have improved. She remains friendly with her peers and he attributed her progress to the smaller setting. (Tr. 265-275)

On cross-examination, he stated that he visited the recommended placement close to the beginning of school. was already attending . He acknowledged that her shut downs have been happening quite frequently which impacts on her academics. There had been another IEP meeting prior to the latest meeting. He did not agree with the CTT program and was “adamant” about remaining at .

FINDINGS OF FACT AND DECISION

The legal standard applicable to a request of reimbursement for educational services is well established. Reimbursement is granted if (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim (School committee of Burlington v. Department of Massachusetts, 471 U.S. 359 [1985])

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

The IDEA provides that the FAPE the District is required to offer be in the least restrictive environment. 2 U.S.C. §1412[a][5][A]; 34 C.F.R. §300.114[a][2][i], 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 32. A least restrictive environment is “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” Carlisle Area Sch. v. Scott P.,62F.3d 520,535 (3d Cir. 1995)

As per Education Law § 4404(1), school districts have the burden of proof to show that they offered a student with a disability a FAPE. See also, Chapter 583 of the Laws of New York 2007. A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). an IEP offers a student a FAPE, hearing officers and courts must

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services. (Application of a Child with a Disability, Appeal 17No. 04-046. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one education teacher, or where appropriate not less than one education provider of such child (20 U.S.C.§ 1414[d][1][B).

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

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

With respect to prong one, in this case the CSE held a review on August 24, 2010. The members of the team consisted of a psychologist who also had the role of the District representative, a education teacher, the father, a parent member and a general education teacher. I find that the meeting was duly constituted.

There had been a prior meeting at which the parent had disagreed with the recommendation and as a result more testing was conducted. The psychologist who was present at the meeting was the person who had conducted the testing. She did cognitive testing as well as testing for 's and functioning. She reviewed 's file and testing. There was testimony that based on testing and the review of the file which included prior testing, prior IEPs, teacher and provider reports, they made their recommendation for CTT with related services of therapy one time a week in a group of six, one time a week in a group of six and and twice a week in a group of six, to deal with 's processing issues.

Counsel for the parent argue that Dr. was not familiar with the ratio of a CTT class. It is true that the ratio on the IEP is , however, the testimony was clear that she understood the CTT class to have twelve students with one education teacher. The testimony is undisputed that everyone including the parents understood the recommendation to be a CTT class. T here was testimony that the team had in fact considered a but determined a CTT would be appropriate. They also considered less restrictive programs but determined needed the extra attention.

There was testimony that they considered her academic needs and provided with preferential seating, aides for her processing issues and repetition of questions and directions in order to address her issues due to the overload. Counsel for the parent argues that there is only one goal to address to deal with 's and issues. In order to deal with her frustration the team provided with breaks and . The teacher at the recommended placement explained how they use scaffolding work to help students and . This makes them feel more at ease because everything is chunked into smaller, more manageable tasks that helps give a student confidence and helps with a student's frustration. The team had also added repetition of questions and instruction to help better process the information that was presented to her which in turn would help her frustration tolerance. I note that the interim school principal at described the importance of scaffolding the instruction as critical for . and issues are two main concerns for and I find that they did consider her unique needs including her academic management needs. The psychologist at the meeting had met and was aware that she was self-conscious regarding her performance and the team added to address these issues.

With respect to the goals there was testimony from the teacher and psychologist about the specific academic deficits that the goals address. Counsel for the parent argue that there was no way to measure progress but there was testimony that the teachers would determine the progress. I note that the teachers at determined progress mainly from observation.

I find that the IEP is procedurally and substantively valid.

With respect to the recommended placement at , there were twenty two students in the class that would have attended, with a teacher who has a certification in education and a general education teacher. There is also one volunteer from Children Zone that is in the class every day. She is able to work one on one with students who struggle with a particular skill. Seven students receive education and the teacher opined that with respect to the range of functioning in the class would have fit in the range of the other students. With respect to English Arts the teacher had training in the Wilson reading program which is a decoding program. There are often small group instruction for the purpose of using Wilson and to help in reading and decoding.

There is an issue with respect to math that I must address. There was testimony from the teacher that with respect to 's math fluency she was on a grade level compared to the other students. However, it is important to note that the psychologist explained that it is a time normative test which may have impacted on the 's results. She opined that it may be not actually be indicative of her actual functional level. Furthermore, the education teacher explained how she would have been able to pull to the side and help her one on one. There are times when the general education teacher is teaching a full lesson which lends itself to her focusing on students who need help. She is also available at lunch for both academic and needs. They send math sheets home to help the student and there is an after school program with a certified teacher as well as a Saturday school with a certified teacher. I find that they would have been able to address 's math needs in this setting.

They use graphic organizers and manipulatives to assist students who like are learners. They have an incentive system for implemented in their class.

With respect to 's needs the teacher opined that she would fit in the class because there are other students with similar s. There is a guidance counselor available as well as a psychologist. They also use lunch time to help students who struggle with self esteem and issues.

With respect to transition the teacher testified that she had experience with another student who had come from a small environment and would have eased into the class. T he new students meet with the other girls at lunch in order to move them into the classroom.

Counsel for the parent brings up the fact that there are three grades together during lunch with no education teacher. There was testimony that during lunch there are always volunteers from the Children Zone present as well as several school aides. The assistance principal is also present for at least some of the time. I find that there are enough adults during lunch to meet 's needs.

I find that the District's program and recommendation was reasonably calculated to enable the to receive educational benefits in the least restrictive environment. The testimony shows that a procedurally and substantively appropriate IEP was developed for this student on August 24 2010, and the DOE recommended an appropriate placement for her at for the 2010-11 school year. I find that the District offered a FAPE to for the 2010-11 school year and met their burden under prong one.

I will address the and third prong strictly for the purpose of making a complete record.

Under the prong of the Burlington test, the parents bear the burden of proof with regard to the appropriateness of . The parents must show that offered an educational program that met 's educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; A Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that was properly designed for to progress and is not required to show the in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009)

is a New York State approved education school. is in a class with twelve students and two teachers.

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

In this case, is mandated by 's IEP. attends an HRR class which is in a group of six who meet once a week for forty-five minutes once a week. They choose topics that develop the curriculum and address the needs of the individual students as they come up. Her counselor also testified that she is available for speaking with and opined that she probably has contact with her every day. Counsel for the Department argues that this is not in fact . I find that this does constitute and I find that this is in accordance with what was recommended on the IEP. Counsel refers to the fact that there was testimony that has been shutting down lately and I hope that this will be addressed when drafting next year's IEP. However, at the time of the parent's unilateral placement for the 2010-11 school year this was not yet an issue.

There was evidence that did in fact make academic progress and her father reported progress as well. There was testimony that her reading level went up a grade level in all areas, her writing improved and there was some improvement in math. It is undisputed that had already made progress in the prior year at and I find that it was designed for to make progress.

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with education services in the LRE”). In this case there is a lack of specific evidence about 's need to be mainstreamed or to interact with nondisabled peers. I find that the parent's selection of private program was appropriate I find that the parents met their burden under prong two.

Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374. Mrs. C v. Voluntown Bd. of Education 226 F.3d 60, 68 (2nd Cir. 2000)l See Carter 510 U.S. 16 “Courts fashioning discretionary equitable relief under the IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required:

With respect to prong three the father did not deny that he was adamant about wanting to attend . I do find that he was and remained closed to any possibility of a public school and had made up his mind prior to looking at the school. He did attend the meetings but there was testimony that he did not remain at the meeting to participate in the making of the goals. However, he testified that he did remain for the entire meeting. He testified that he went to visit the recommended school but it was after had already started at . He thought he had visited the school at the beginning of September and he testified that he was told there was no room in the class. However, Ms.

testified at great length how would have fit into her class. I find that the parent went to the school at the very last minute in order to go through the motions. I find that had he really considered the recommended placement, he would have visited the school prior to having return to . I find that he was not open to the idea of a public school. However, it should be noted that he did attend all meetings, did notify the District of his intentions and provided all relevant documents.

The District held two meetings to determine a placement for . In response to the parent's disagreement with the recommendation from the meeting, they had additional testing and held another meeting.

I find that in this case the equities favor the District and any type of reimbursement would have been reduced due to these equitable considerations.

In conclusion I find that the District met their burden under prong one and the request for tuition is denied. July 21, 2011

____________________________

SHARYN FINKELSTEIN, ESQ.

Impartial Hearing Officer

SF:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 2, 2010

PARENT

A(1)1 Hearing Request, 9/23/10, 1 p. B(1) IEP, 10/20/09, 14 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 2, 2011

PARENT

C Affidavit of Payment , 1/21/11, 1 p. D Attendance Record, 1/21/11, 1 p. E Class Schedule, Undated, 1 p. F Interim Order of Pendency, 12/15/10, 5 pp. G Parent Letter to CSE, 9/15/10, 3 pp. H Parent Letter to CSE, 8/27/10, 3 pp. I Contract, 6/2/10, 2 pp. J IEP, 5/14/10, 14 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 10/4/10, 1 p. 2 IEP, 8/24/10, 12 pp. 3 Notice of IEP Meeting, 8/13/10, 1 p. 4 CSE 9 Minutes of CSE Meeting, Undated, 1 p. 5 Psycho-Educational Evaluation, 8/2/10, 6 pp. 6 History Update, 3/16/10, 2 pp. 7 CSE Teacher Report, 3 pp. 8 Therapy Progress Report, 12/2009, 1 p. 9 and Progress Report, 12/2009, 1 p. 10 Update, 1/4/10, 1 p. 11 Final Notice of Recommendation, 8/27/10, 1 p.

1 For pendency purposes to documents were issued. I am re-labeling them A (1) and B (1) so as to avoid confusion with the A and B that were entered with the other documents on February 2,2011