New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: February 17, 2011

March 28, 2011

May 3, 2011 Hearing Officer: Gary D. Peters, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2011

Attorney — Student

Father — Student

Mother — Student

Department Designee — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2011

Attorney — Student

Father — Student

Mother — Student

Department Designee — DOE

Ed Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2011

Attorney — Student

Father — Student

Mother — Student

Teacher — Student

Department Designee — DOE

INTRODUCTION

On February 17, 2011, March 28, 2011 and May 3, 2011, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA). 20 U.S.C. section 1415 (f) (3), regarding a education program for students with a disability, New York City Impartial Hearing Case Number 129551. The hearing was conducted at the Impartial Hearing Office, New York City Department of Education, and 131 Livingston Street, Brooklyn, New York.

The student’s parents submitted a request for an impartial hearing through their attorney on September 27, 2010. At the hearing, the Department of Education, hereinafter referred to as “The Department” was represented by the Department Designee, Dr. and the parents were represented by counsel, , Esq. A list of witnesses and documents received into evidence is attached to this decision.

BACKGROUND

The student is currently a ( ) year old female, classified as “ disabled”. On June 24, 2010, the Committee on Education, hereinafter referred to as (CSE) met to discuss the educational needs and to develop an Individualized Education Program (IEP) for the child, hereinafter referred to as . At the meeting, the CSE team classified the child as having a disability, and recommended placement in a class in a community school with a ratio. Initially, it was also recommended that the child receive related service recommendations as follows: and Therapy, three times a week for thirty minutes individually at a separate location. Additionally, the following accommodations were to be provided: extended time for test taking by 50%, in a separate location, directions to be read and re read aloud, and answered recorded in any manner (circle answers in a text book).

Parent’s counsel maintained that the CSE review team was not validly constituted and failed to properly include a parent member. Counsel maintained that the parent members are mandatory members of the review team, the absence of which renders the IEP void and nullifies any resulting program recommendation.

Additionally, Parents maintain that the IEP failed to meet all of ’s educational and needs, and that the CSE sent a final notice of recommendation “late”, precluding the Parents from visiting the proposed placement prior to the start of the school year. Lastly, the Parent maintained that ’ unilateral placement at was appropriate for the 2010/2011 school year and that there are no equitable considerations which would bar reimbursement.

THE PARENT’S POSITION

As stated above, in the introduction herein, the Parent maintained that the IEP that was created is substantively invalid and that the CSE team was improperly constituted; the goals were insufficient and a proper recommendation was not made for the child.

THE DEPARTMENT’S POSITION

The Department, in its due process response maintained that the child was properly classified as “ disabled” and that its recommendation, made on July 12, 2010, through its final notice of recommendation (FNR) was issued to the Parent, wherein placement at was offered and that the placement was reasonably calculated to enable the child to obtain meaningful educational benefits.

THE PARENT’S CASE

The witness to testify was ’s mother, hereinafter referred to as “Mrs.

”, and after being duly sworn stated that the child’s most prominent are in academics; , and . More particularly, in , and grade, her academic skills were “really non existent” as she could not read, identify letters or sounds, could not remember her address, phone number and or school (trans. 106). At the age of she attended School for a year and then went to /

’s School and remained there through grade. In the beginning of grade, attended , September 2010 and according to the Parent, she is a “completely different child than she was before” (trans. 107). The witness stated that her child and can add and subtract numbers up to ten which she could not do before (trans. 108).

The witness further testified that no longer calls herself and has made which were hard for her prior to attending the School (trans. 108). She described the school as smaller, quieter, wherein her child has ability to interact, maintain and keep hips. Her class is supervised by a head teacher, a teacher an assistant teacher with ten in home room; class is broken up for and into smaller groups of five or six with a teacher (trans. 109). She described the School as appropriate and that all of the in ’s class are on or about her level. She described the classrooms as being soundproof to assist her child with processing difficulties and described the staff as exhibiting consistent implementation of a program on a daily basis utilizing strategies and new teaching skills wherein she would not regress. Additionally, her child is able to write and achieve academically (trans. 111). The witness stated that tuition for the School was $45,500.00 and that the entire sum has been paid. She also stated that contract was signed on July 1, 2010 “as a backup” (trans. 111) and believed the down payment was $8,000.00.

The Parent stated that she attended the June 24, 2010 CSE review and that a parent member was not present. She was told at the meeting that she could cancel the meeting and postpone same until they could find a parent member; however, school was ending on the following day so they signed a waiver for the parent member (trans. 113).

The Parent stated that her daughter attended for the 2009/2010 school year, which was a collaborative team teaching classroom (CTT) in a general education environment (trans. 113).

Additionally, the team reviewed a neurophysiological evaluation, therapy evaluation, a report from New York and Hospital regarding an FM unit, teacher report and report which were all provided by the parents. To the best of her knowledge, the CSE did not conduct its own evaluations (trans. 114).

It was her recollection that the team did not review her daughters long term goals and short term objectives at the meeting, and that the time she saw the goals were upon receipt o f the IEP in the mail, a week or two after the meeting (trans. 115). She recalled discussing assistive technology at the meeting and was told that in order to receive an FM Unit, a doctor’s note would be required. She was not given the protocol by the team with respect to what the exact measures were (trans. 116).

Mrs. . stated she did recollect a discussion with the team concerning her daughter receiving , as she was having difficulties and making . She was told the counselor was not able to be at the school and a one page report was submitted and was not recommended on her IEP (trans. 116). She stated that she and her husband preferred to explore outside possibilities for and that they did not want her to miss time from classes. (trans. 117).

The witness was referred to the Department’s Exhibit #12, which she identified as a Final Notice of Recommendation (FNR) which offered a education class in a setting (trans. 117).

The Parent further testified that she signed the FNR as she was hopeful the Department would provide an appropriate class for her child and received a recommended placement at . She was unable to visit until after the school year began in September as she called several times in July and was not able to leave a message; the answering service indicated that the machine was full. She left messages at the end of August and did not receive a response until at or about the time school began, wherein she scheduled an appointment to visit the recommended class (trans. 119).

The Parent stated that she met the guidance counselor at in the or third week of September and was taken on a tour of the school, wherein she was introduced to Ms. and spoke to her briefly (trans. 120). The witness described the school building as very large, with a lot of and was told that there were close to 700 in total. Additionally, the school was very and there was ongoing construction outside of the school. With her child’s’ history of issues, she believed a large school with a large student population and that construction noise would be problematic as her child is easily (trans. 121).

The Parent stated that she was concerned that the recommended placement was not appropriate for , based upon the aforementioned description of the school. Further, Ms. did not possess appropriate credentials, and in her opinion, there would be no consistent implementation of a program. She was familiar with a “calming down and chill out corner” in the classroom, which are designated for with al issues and this concerned her as well (trans. 122).

The Parent identified Exhibit “B”, which was written notice to the Department dated September 21, 2010 and that she and her husband would not be accepting the recommended placement for ; additionally they did not receive a class profile.

Upon cross examination of the witness, she stated that her daughter receives and three times a week in a group of two (trans. 124) and she did not receive a personal FM Unit (trans. 125).

The next witness to testify after being duly sworn was who stated that he maintains a Masters Degree in General and Education and is certified in Ed and has been teaching for ten years. Additionally, she has taught in both CTT, , General Education and currently in a private education setting (trans. 132) and has been employed at the School as a teacher for ten months. Her responsibilities include planning curriculum, performing assessments and meeting with parents (trans. 133).

She described the School as a facility for with disabilities and / issues. It is based upon small groups, where curriculum is geared for each student and the groups are developed and based on the group needs and individual needs. (trans. 134). She described a typical student at the school as being and fit with processing difficulties, and disabilities (trans. 134).

Ms. stated that she met at the beginning of the school year and described her as being very shy, with difficulty in processing information and picking up routine. The difficulties increased in large groups, which is why small groups are beneficial for her (trans. 135). With the respect to processing, she stated that requires things to be repeated multiple times, needs directions to be broken down into single steps and often to have those repeated with cues and even prompts. (trans. 135).

The witness stated that the child responds well to the above as she is a “hands on student”. She thrives when she has stimulation or something to look at or touch and has become a “self advocate”. More particularly, when she has trouble understanding, she will ask for help or for something to be repeated (trans. 136). Ms. stated the current staffing ratio in her class is two teachers and ten students and based on the progress the child is making that it is “very appropriate” trans. 136.

Ms. described a typical school day, wherein the arrive between 8:15 and 8:20 am and participate in a morning meeting, wherein they go over a daily calendar and agenda. Thereafter, there is a small piece and the work on a journal topic. Subsequently, the break into their small groups for about one hour followed by snack, and an additional small break up group for , followed by lunch. In the afternoon there is or studies, depending on the day and followed by science, music, gym or computer.

The witness also stated that although there are no grades at the School, however the child is on a “ grade level” and they are taught in “clusters”.

In describing the group, Ms. stated there are four students and one teacher, wherein information is broken down into small pieces and go at a slow pace. Everyone in her group is on the same level (trans. 138) and the group follows “Foundations” and supplemented with other hands on activities such as the “SRA” program (trans. 139). Ms. stated that has responded well to the program and is making good progress (tans. 140). The group has four students and two teachers, wherein Ms. state that “struggles”. Even in the group lessons, the are broken down into even smaller groups, with two and one of two teachers, depending upon the lesson. The curriculum that is being utilized is “Stern ” and was on the grade level. It was also stated that the child was making progress, however her recollection of information is somewhat inconsistent from day to day (trans. 142).

skills are presented in a group of ten students and two teachers, and the witness stated that the child was on the grade level. Additionally, the are able to break out into a smaller group and work with a teacher to assist in organization skills (trans. 143). Ms. stated that has made “tremendous progress”, and that her willingness to write has come a long way (trans. 143). The “Basic Curriculum” and “the ” programs are utilized to teach skills.

Ms. stated that with respect to and functioning, has come a long way. More particularly, in the beginning of the school year, she was shy, timid and never really participated willingly; at the present time she comes in, eager to talk and share, not only with students, but with teachers. She is very enthusiastic and initiates interaction within the environment (trans. 144). Supports that are utilized in and functioning include team building, talk, modeling and role play (trans. 145). has built bonds and is part of a tight knit class wherein the love to hang out and communicate (trans. 146).

Ms. described the process of “pre teaching” wherein ideas are introduced, the are given a chance to kind of brainstorm what they know about it or relate the topic back to themselves, so that when it is presented, it is more easily learned it. Ms. stated that does much better when lessons are pretaught as she has difficulty with vocabulary and verbal recall. She also needs information given to her in small groups and repeated multiple times. (trans. 147).

The witness stated that every teacher wears an FM Unit and it basically helps centralize the teacher’s voice and tune out all extra noises (trans. 148).

systems are in place for the classroom, wherein there is a school wide “token system”. The accumulate a certain number of tokens and can redeem them for prizes (trans. 149)

Ms. testified that receives and and therapy at the School. Progress reports are prepared three times a year, wherein the child’s progress is measured either in , Great Leaps and is also based on teacher assessments.

Lastly, Ms. stated that in her opinion, the child has made progress, her desire to learn is apparent and that the placement was great for her (trans. 150).

Upon cross examination of the witness, Ms. stated that the age range of in her class is of to years old (trans. 151). The range of clusters in her classroom is basically through grade.

THE DEPARTMENT’S CASE

The witness to testify after being duly sworn was Ms. , who stated that she is currently employed by the “Department” as a school psychologist at , which is the “ ’s School”. She has been employed by the Department for approximately 13 years with at least two or three years at a neuropsychological clinic. She is a Licensed School Psychologist and Mental Health Practitioner (trans. 13). Her responsibilities to school include assessing students, consultations with teachers and parents, consulting with respect to services, IEP’s for team meetings and generally running the IEP meetings (trans. 13).

Ms. stated that was a student in her school, was known to her, and that she was part of the IEP team meeting that was held in June of 2010 (trans. 14). The witness was directed to Exhibit #3, the child’s IEP, and stated that both parents were there, a District Representative / IEP Coordinator, ’s General Education and Education Teacher, School Worker, School and herself. She described the meeting as a CSE review wherein the purpose of the meeting was to initiate services, as the Department was changing the general education recommendation to “at risk services” and that it was necessary to add and reconsider class placement (trans. 15).

Ms. confirmed that there was no parent member present and that one could not be located; a “Declination Letter” was signed by the parent on the day of the meeting (trans. 16).

The witness had recollection of reviewing a private neuropsychological evaluation and / evaluation, teacher report and history report. It was her recollection that the materials reviewed were credible (trans. 17).

Upon further questioning of the witness, she stated that the following standardized tests were utilized to assess ’s cognitive abilities: Wiatt-II which evaluates cognitive and academic skills and the Wisc-IV to address her intellectual functioning (trans. 18). Cognitive ability was noted to be in the overall average range; however there were weaknesses and strengths within her profile; her skills were delayed. She was receiving academic intervention services by a who is an OrtonGillingham Trained Teacher (trans. 19). It was also noted that the child was struggling and that her teachers reported that she seemed to work best in a smaller group, wherein she had difficulties with working memory and based tasks. (trans. 19).

Further review of the evaluations indicated that the child had difficulty in verbally sequencing information, recalling verbal information, with moderate to severe expressive difficulties (trans 20).

With respect to , the child was functioning on a level in problems which relate back to her processing difficulties. T he numerical operations were “a little bit higher” (trans. 21). Additionally, she had deficits in the domain, more particularly, trying to hold onto an idea, describe the idea, and then write about it (trans. 21).

Additionally, it was noted at the meeting that the child had difficulties in remaining focused on activities and that she required a smaller class. She also indicated that it was possible that due to her difficulties, it could be that processing was problematical. Recommendations to assist her would include graphic organizers, planners, and flow charts, in order to assist the child in retaining information and not just rely on verbal information (trans. 23).

The witness was directed to page 3.5 of the IEP and with regard to functioning, noted that was struggling, dealing with her issues, and that same were affecting her interactions. She reemphasized, that all members agreed that in a larger class placement, the child was had difficulty and she needed to be in a smaller class environment (trans. 25).

Ms. further stated that the child’s s was not seriously interfering with instruction and should be able to be addressed by a Education Teacher (trans. 26). In her opinion, it did not appear that the child’s difficulties were significant, in order to warrant a management within her public school setting (trans. 27). More particularly, the child’s s were being managed in the classroom and she was receiving “At Risk” . Ms. stated that the team did not consider a Functional Assessment as did not meet the profile for same, and reiterated that her issues were being managed in the classroom (trans. 28). She described the child’s in the classroom as not being oppositional and that the child was not acting out.

Ms. was directed to page 5/19 and 5/20 of the Neuropsychological Evaluation and stated that it was considered, including the child’s needs to be placed in a small, supportive, highly structured class placement. Additionally, services were recommended and initiated (trans. 30).

Upon further questioning of the witness, Ms. stated that on the IEP, in the Academic Management Need Section, it was noted that there should be a teacher signal, wherein if was having a problem, she could signal the teacher, and the teacher would walk over without her having to raise her hand constantly. Additionally, the Committee recommended testing evaluations and methods to utilize graphic organizers, etc. (trans. 31). The witness does not have recollection as to whether or not the team discussed the child’s processing difficulties however, did recall that an FM Unit being discussed, however same was not recommended as there was no medical clearance (trans. 32).

Ms. testified that the team, including the parents, had an opportunity to be involved in the development of the IEP goals (trans. 35). The child’s , difficulties in , and were discussed. With respect to , a recommendation was made for same, however it was her recollection that the Parent’s indicated they would “seek outside services” (trans. 36).

With respect to goals in order to address the child’s struggles, recommendations were made for , teacher redirection and prompts if needed, participation in classroom management and placement in a small class setting. (trans. 37). Further, there were no goals written to address the child’s avoidance situations which were noted on page 4 of the IEP as it was felt that a small structured environment would address same (trans. 38).

Ms. was directed to the promotional criteria portion of the IEP and that it was noted that the child would be entering grade in September 2010 (trans 40). Ms stated that the child was classified as “ Disabled” and that the classification was made as was struggling in , / problems, / processing difficulties and difficulties (trans 40). Additionally, the witness stated that the CSE team recommended a class in a community based school with a ratio. Possibilities of the student to teacher ratio were also discussed, however the team felt that the child needed additional assistance to help her focus.

Ms. stated that a discussion was had with the Parent regarding the differences between setting and setting and that the Parent agreed that an additional person was necessary (trans. 41). Additionally, the witness stated that the Parents were very cooperative and signed the final notice of recommendation, indicating that they would place the child in a needs school, however felt strongly that they needed to see the school and the recommended class before agreeing to a final decision (trans. 42).

Ms. was referred to the IEP, particularly page 3-16, wherein she stated consideration was also given for a collaborative team teaching class, however, same was rejected as the child was already in such a setting and that the teacher felt quite strongly the class was “too large”. (trans. 44).

Ms. stated that least restrictive environment is defined as a place where the student should be educated with their peers as much as possible, given their need. Accordingly, all possibilities were included including CTT, and settings and it was her opinion, that the classroom fits the least restrictive environment for (trans. 45).

Upon cross examination of this witness, Ms. reiterated that the Parents were told that there was no parent member and they signed consent to proceed without one; she conceded that they were not notified until the day of the meeting (trans. 47).

Ms. was referred to Exhibit 9, page 9-1, wherein it stated “Instructional Modifications Attempted” and the teacher noted that the child was getting guided three to four times a week in the “Academic Intervention Services (AIS) in a small individualized instruction setting with an Ortin Gillingham Instruction. She agreed that was functioning on a level.

Ms. further stated that she recommended a classroom based plan, however, it was not specific (trans. 50). Further, Ms. conceded that consideration was given to Dr. ’s report recommending and FM Unit, however “medical clearance” was required in order to put same on an IEP (trans. 51). She did not recall specific discussions at the IEP meeting regarding the FM Unit. Ms. stated that it was not possible to adjourn or cancel a meeting to request documentation for the FM Unit as there was only one or two days left of the school year.

Upon further cross examination, Ms. stated that the goals were drafted in the meeting, however typed after the meeting. The Parents had discussion with the team at the meeting, concerning the goals, but did not specifically see them (trans. 53). The witness also conceded the time the parents would have seen the goals theoretically, was when they received the IEP in the mail.

With respect to , the witness stated that the child’s present counselor opined that she should continue with therapy; however the parent was of the position that they would take care of same outside of school (trans. 54). Additionally, she confirmed that the counselor was not at the IEP meeting and reiterated that the IEP did not contain specific goals for and performance, but did provide for support (trans. 54).

Ms. stated that a specific profile of class was not made as the team does not “give placement”. Generally, she stated that should be placed with other “ disabled ”.

Lastly, the witness stated that given the continuum of services that the Department has to offer, a was the most appropriate in the continuum at the time of the meeting.

The last witness to provide testimony was who stated that she is a education teacher and holds licenses in general education and education for grades - . Additionally, this was her year as a education teacher and she was assigned to , in , Brooklyn, New York. She stated that she teaches a small class with a ratio and that she provides instruction to the class in all matters; there is a classroom paraprofessional who was assigned to her class. Currently, there are 11 students in her class, and at the beginning of the 2010/2011 school year there were six students. She has frequent contact with the parent, including providing daily calls to some parents, frequently sends home notes and there are also opportunities for the parents to come to school for discussions. She described a program called “Families as Partners” which are conducted on a monthly basis, where the parents come in to school for one period of the day and participate in a subject (trans. 69). Ms. stated that she was an assistant teacher for three to four years and a SETTS provider for four months prior to having her own class. She stated the paraprofessional in her class assisted the students, reminded them to pay and walks around the classroom and helps the with whatever needs they have while doing their table work. Also, there are times that the are split up into groups and the paraprofessional will lead a group (trans. 70).

The witness stated that there are students with disabilities, and impairments and one student who is classified as “other health impaired” and the age levels of the range from years to years old. She further stated that the majority of the would be on a grade level and a grade level in her class is a / grade. She described the three levels in her class being comprised of pre

/ to grade. The Department designee refreshed the witness’s recollection as to the class profile, wherein she was able to provide more concrete information as to the composition of the students and their abilities. She testified that she leads the entire class and then splits them up into different groups and adapt their class work accordingly (trans. 77). In , she stated that the students in the lower school were functioning on a level, the group is early grade level and the most advance group was functioning at a grade level.

Ms. stated that she also creates her own modules wherein the would be rewarded for positive and she also utilizes charts for the to track their own . Additionally, there are individual plans for students wherein she calls every day to let the parent know how the child did in school (trans. 79). She also stated that there were no “formal intervention plans”. She did have significant concerns about the ’s’ s and that often, when they become , they become not wanting to participate, calling out and or getting (trans. 81). She often utilizes strategies on such occasions where the child can take a break, take a walk or go to the corner of the classroom and take a break; they can hug a pillow, listen to music or utilize a strategy to calm down (trans. 82).

Ms. stated students received related services including , therapy and and that some of the services are on a “push in basis” including and therapy and sometimes (trans. 83). Ms. stated that she utilizes instruction, and incorporates it into every subject. She provided numerous examples and strategies that she uses (trans. 84). She also stated she is currently being trained in Ortin-Gillingham and although she has been exposed to the Wilson Technique, she “wouldn’t call herself an expert” (trans. 85). She testified that there is a grandparent/volunteer and pulls out two student’s twice a week to work on Wilson with the as she was a former teacher of Long Island and trained in Wilson and Fundatations (trans. 85).

Upon further questioning of the witness, she stated that she has several students in her class who are “ learners” and utilizes strategies such as pictures, drawing, hands, acting things out to teach (trans. 86). She also describes some of the as having processing wherein she writes things on the board, utilizes pictures, reminders and other cues. (trans. 87).

Ms. stated that she did not meet , but had an opportunity to review her IEP and was referred to page 3 and stated that by looking at the child’s test scores, it would seem like she would fit in academically in all subjects with other in her class (trans. 90). She was directed to Section 3.2 of the IEP-Academic Management Needs and stated that she would be able to implement all the goals as stated (trans. 90)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400 – 1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Education v. Rowley 458 S.Ct. 176, 179-81, 200-02 [1982]; Frank G. v. Bd. of Educa. 459 F. 3d 356, 371 92d Cir. 2006). A FAPE includes education and related services designed to meet the student’s unique need, provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 {9}{D}; 34 C.F.R. section 300.13 see 20 U.S.C. section 1414 {d}; 34 CFR section 200-347). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A];CFR section 300.13 [a][2][i], 300.1.116 [a][2]; 8 NYCRR 200.6[a][1]; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132 [2d Cir. 1998]).

I will not repeat all of the details of evidence herein which is the basis for my findings of fact and decision; however my decision is grounded in that testimony as it appears above. I have considered the testimony of all of the witnesses who testified at the hearing. With respect to the issues presented at the hearing, I make the following findings of fact.

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1) the services offered by the Department of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate, and 3) equitable considerations support the parent’s claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S, 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist., 427 F. 3d 186, 192 [2d Cir 2005]) “reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the instance had it developed a proper IEP’

Under the criteria of the legal standard, the child’s parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability , Appeal No. 94-29; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act” (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parents private placement is that it is appropriate not that it is “perfect” (M.S. v Bd. of Educ. 231 F. 3d 96, 105 [2d Cir 2000], cert. denied 532 U.S. 942 [20012]). The private school need not employ certified education teachers, nor have its own IEP for the student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School. Comm., 315 F. 3d 21, 26-17 [1st Cir. 2002].

The final criterion for an award of tuition reimbursement is that the petitioners’ claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P, 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005] aff’d 2006 WL 2334140 (2d Cir. 2006); Frank G. 459

F. 3d at 363 – 64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ. 226 F. 3d 60, 68 [2d Cir. 2000]; see carter, 510 U.S. at 16 [noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required}) Such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties’ positions, and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist, 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984}, aff’d, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)(iii). Warren G. v. Cumberland Co. Sch. Dist. 190 F. 3d 80, 86 (3d Cir. 1999); see Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd., of Educ. Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in or harm 20 U.S.C. 14122 (a)(10)(C)(iv)(I)(cc)(II)(bb).

Parents maintain the totality of that evidence (1) both procedurally and substantively, establish that the Department failed to offer a free and appropriate public education (FAPE) that was “reasonably calculated” to meaningfully address ’s unique and individual needs (Prong I); (2) ’ services at the Steven School and related services supports amply meets the Circuit’s “reasonably calculated” test for Prong II; and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III) Accordingly the Parents maintain that for the 2010-2011, they met the recognized test for Burlington/Carter reimbursement relief.

A Department’s Committee on Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised of full evaluations, an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate site offer. 34 C.F.R. section 300.111, 300.116, 300.301. In this matter the Department maintained that they held a timely review, constructed an appropriate program that would provide the educational support that would need in her least restrictive environment, and offered an appropriate placement in a timely fashion.

The Department’s position is that both procedurally and substantively an appropriate IEP was created for the child by the members of the IEP team with the full participation of the child’s school and the parent. Further, following the creation of the IEP, the Department made a “quality offer of placement” where ’s need for individual instruction could be amply provided for. The Department designee maintained that the testimony indicated that the staff at the recommended placement would collaborate and work together to meet the goals that had been crafted for the child.

It is the Parents’ position that the Department did not meet its burden to provide a FAPE for . More particularly, that the IEP that was developed was developed with a group of people from the district “who did not know, ever meet, ever test, or ever observe this child”. Parents further argued that ’s placement at the School for the 2010-2011 academic years clearly has conferred upon her an educational benefit. It is clear that the parents have satisfied the three pronged test for reimbursement as set out by Burlington Carter. With respect to Prong I:

presents with overall academic range intelligence, while demonstrating isolated areas of strength that suggest far greater potential with moderate to severe receptive and expressive , difficulties with organization, working memory, mental shifting and processing difficulties. On June 24, 2010, a CSE review was held at the District. At that meeting, the Department classified as “ Disabled” and recommended placement in a class with a staffing ration.

Ms. (phonetic), the school psychologist who participated at the June 24, 2010 meeting testified that the class was, “what we were able to offer, and did not testify that the program was appropriate” and was unable to answer if the program was appropriate. Ms. testified that the teachers who participated in the meeting were strong advocates for the class and that these were the teachers who participated from the CSE. They were advocates of the class, simply because of the ratio of and not necessarily considering the makeup of the class. In fact, Ms.

testified that the teachers were not aware of the makeup of a typical class in a New York City public school and simply knew that there would be a ratio of 12 students, one teacher and one paraprofessional.

Additionally, there was no parent member at the CSE review, which seriously hindered the parents’ rights to meaningfully participate in the meeting. The testimony was that the Parents arrived at the meeting and were told that the parent member was not available and that they would need to sign a waiver declining the participation of a parent member. It appears that the Parent if she wished to proceed had no choice but to sign the document so that the meeting could continue.

Further, the Department did not consider assistive technology, even though it was recommended by two reports, which were relied upon by the CSE. There was testimony that CSE informed the Parents that they needed medical clearance for this, but never informed the parents as to how to obtain the medical clearance. Ms. testified that it was two days before the last day of the school year so they did not consider the use of an FM unit. The Department was remiss in not following through with the assistive technology and FM Unit, as it was recommended by two audiologists.

The testimony established that the June 24, 2010 IEP did not contain appropriate goals. Most importantly, it did not contain any “ and goals” for , even though page four of her IEP indicated that she is struggling with her significant issues and is at risk for more significant pathology in the future. Further, there was testimony that the goals were not created at the meetings, but were created subsequent to the meeting, thus denying the parents and teachers from meaningfully participating in the ’s CSE reviewer.

With regard to the recommended placement, I find that the class was not appropriate for ; the school is too large and and would cause to shut down. Additionally, there were no provisions made for suitable functional peer grouping. The levels of the in the class ranged from pre primer to third grade, which could not be appropriate for . With Respect to Prong II

Under the criteria of legal standard, as stated above, the child’s parent bears the burden of proof with regard to the appropriateness of the services which the parents obtain for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal No. 93-93; Application of a Child.

The parents have met their burden in proving that the services that they have unilaterally chosen for are appropriate. The testimony from the staff provided significant information about the school and the testimony was credible regarding the educational services provided to and explained in detail, how those services meet her identified needs. The Parents have convincingly established that the program including the related service programs are appropriate and that the child is making meaningful educational progress. With Respect to Prong III Equitable considerations for the fact finder to consider in determining whether reimbursement and related relief is appropriate “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions and like matters.” See Application of a Child with a Disability, Appeal No. 05-087 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 (N.D.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773, 801-02 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985)).

As the State Review Officer has expressly recognized, “[i]n the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See supra, Appeal No. 05-087 (referencing Application of the Board of Educ. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).

’s parents complied with every request for evaluation or assessment made, executed and proved all evaluations and gave appropriate and timely notice to the Department. ’s parents acted reasonably, and cooperated at every stage. Accordingly, the Prong III equities amply support the child and her parents.

Based on the evidence and testimony at trial the relaxed standard of Frank G., and for all of the foregoing reasons, I find in ’s favor and I award full reimbursement as hereinafter ordered. Dated: July 15, 2011

Corrected Date: August 3, 2011 (Reimbursement Order included)

_______________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Notice of Unilateral Placement, 8/24/10, 2 pp. B Parent Letter Rejecting , 9/21/10, 1 p. C Contract, 7/1/10, 3 pp. D Mid-Year Report, 2010-2011, 9 pp. E Class Profile, 2/10/11, 3 pp. F Information, Undated, 6 pp.

DEPARTMENT OF EDUCATION

1 Impartial hearing Request, 9/27/10, 4 pp. 2 Department Response to Parent Request for Impartial Hearing, 10/19/10, 4 pp. 3 Individualized Education Program (IEP), 6/24/10, 17 pp. 4 Initial History, 5/27/10, 3 pp. 5 Neuropsychological Evaluation, 4/2010, 20 pp. 6 Evaluation, 12/3/09, 4 pp. 7 and Evaluation, 3/17/10, 5 pp. 8 Classroom Observation, 6/23/10, 2 pp. 9 Student Progress Report, 5/10/10, 2 pp.