New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 15, 2010

December 17, 2010

January 7, 2011

January 18, 2011

January 31, 2011

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2010

Parents

DOE

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

Parents

Parents

Parents

DOE

via telephone School, CSE — DOE

via, — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2011

Parents

Parents

DOE

via, — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2011

Parents

Parents

of, the School (via telephone) — Parents

via at the — Parents

telephone School

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2011

Parents

via at the — Parents

telephone School

DOE

On September 28, 2010, I was designated by the New York City Department of Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of and the parent through her who initiated this hearing on September 28, 2010. On November 2, 2010, I scheduled a pendency hearing on November 15, 2010. Hearings were held on November 15, 2010, December 17, 2010, January 7, 2011, January 18, 2011 and January 31, 2011. The extension date was extended for submission of post-hearing memoranda by the parties. Appended to the record are lists of persons in attendance and documents entered into the record.

The hearing was requested by the parent through her to challenge the February 22, 2010 review and the recommendation of the Committee on Special Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the School for the 2010-2011 school year. The School which is a New York State approved program for students who are inter alia and . The School has a small class program with a high to student ratio of or students and 1 head and . (Exh. 14) The parent brought the hearing seeking direct funding or tuition reimbursement for the 2010-2011 school year in the amount of (Exh. I) The parent submitted a letter from the Chief Financial Officer indicating the parent paid $ for tuition. (Exh. J)

BACKGROUND

is a year old who is currently in grade and is classified as and on a CSE review conducted on February 22, 2010. (Exh. 1) classification is not in dispute. (Tr. at 18) is currently attending a school approved by the New York State Education Department. attended the School from through grade for the 2007-2008 through the 2010-2011 school years. (Tr. at 531)

The parent related that was from in June 2002 at age . She noted that had and been receiving education services of (“ ”) and and (“ ’) since he was old through (“ ”) and had attended at the where his recommended a education (“ ”) for to address his in development. (Tr. at 569;571) At from age 4 to 5 received for 12.5 hours per week, individual twice a week for 45 minutes per session and twice a week for 45 minutes per session and services. (Tr. at 572; 574) received , and services through the Committee on Special Education (“ ”). He turned during his last year in . At age was placed in the School for the 2007-2008 school year in a class when services ceased, but he received and for through grade. (Tr. at 575)

was evaluated when he was years old. On February 7, 21 and 26, 2009 a evaluation was conducted. The examiners found that ’s general cognitive ability as assessed by the Wechsler Intelligence Scale for Children–Fourth Edition, (“WISC-IV) was in the range and with a verbal comprehension score of in the percentile, in the range, a perceptual reasoning score h of in the percentile, in the ange, a working memory score of , in the percentile, in the range, a processing speed score of , in the percentile, in the range and his yielded a full I.Q. score of in the range. , , noted that scores had decreased from previous testing in 2006 and indicated the decrease was the result of problems with attention and pragmatic . (Exh. 3 at 7) administered the Woodcock- Edition (“WJ-III”) and assessed ’s reading, writing and computational abilities and found scored in the range in basic reading skills, at the percentile, his sight-read words score was in the percentile and his ability to decode was in the percentile. (Exh. 3 at 5) His reading comprehension was in the percentile and percentile and noted that fidgeted in his seat and stated the tasks were too hard. assessed his spelling and mathematical ability in the range. (Exh. 3 at

6) assessed ’s attention and concentration and noted he became easily distracted when the task complexity increased and became distracted and fatigued as the test continued. (Id.) ’s memory score was in the range in the percentile which attributed to and . (Exh. 3 at 7) He opined that the at addressed his needs. (Id.) recommended a full-time special education in a non-public school. (Id.)

On January 11, 2010, when was in grade he was evaluated by , , conducted a evaluation. used the WISC-IV and found attained in verbal comprehension score of in percentile, in the range, a perceptual reasoning score of in the percentile, in the range, a working memory score of in the percentile, in the range, a processing speed score of in the percentile, in the range and his yielded a full I.Q. score of the range. (Exh. 2 at 2) He used the Wechsler Individual Achievement Test-Second Edition to assess ’s academic skills and scored in word reading, in percentile, grade equivalent; his reading comprehension score was in the percentile, grade equivalent; his pseudoword decoding score was

h

in the percentile, grade equivalent; num l operations score was in the percentile, in the grade equivalent; his math reasoning score was in the percentile, grade equivalent; his spelling score was , in the percentile, grade equivalent and his listening comprehension score was in percentile, grade equivalent. (Exh. 2 at 3) noted that “ did not appear to invest energy into tasks which he experienced as . This may be related to and getting easily at the very onset of a task’s which may prevent greater persistence on work which may well still be within the range of his abilities” (Exh. 2 at 4.)

The and progress report from September 2009 to December 2009 indicated that “as the complexity of tasks increases, he often has retaining information.” The recommended twice a week for 30 minutes per session in a group of 3. (Exh. 8) The progress report from December 2009 indicated gross motor skills were adequate for functioning in school and recommended twice a week for 30 minutes per session in a group of 6. (Exh. 7) The update on January 4, 2010 indicated that was seen once a week in a small group and once a week in an individual session for the 2009-2010 school year and “a significant amount of prompting and questioning is still required to support sustained involvement in dialog.” (Exh. 9)

For the 2008-2009 school year the IEP and recommended the School in a class with a ratio of on the November 26, 2008 IEP. (Exh. 14) For the 20092010 school year the parent and the Dept. of Education agreed to place at the School and the Dept. of Education funded the tuition at the School. (Id.)

On February 22, 2010 CSE met and classified as and and recommended a special class with a student to ratio of 12:1:1 in a school and recommended individual once a week for 30 minutes and once a week for 30 minutes in a group of 6; twice a week for 30 minutes per session in a group no larger than 6; twice a week for 30 minutes per session in a group no larger than 3. (Exh. 1 at 21)

THE POSITION OF THE PARTIES

The district’s counsel maintained that District 3’s CSE met on February 22, 2010 with a duly constituted team and developed and an appropriate IEP for and classified as and and recommended a placement in a class in a school program in the (“ ”). (IHO Exh. II at 9-12) He noted that ’s parent and child’s current at the School participated at the IEP review. He stated that the team considered the most recent evaluations and school reports and considered his strengths, his deficits, his academic, emotional, and social concerns of as reported by the parent and the school . (Tr. at 19) On June 28th, 2010, a Final Notice of Recommendation (“FNR”) was made for to attend which is located at . He stated that lives at in , so the school is appropriately placed in near his and he noted that has all of the supports and programs required by the IEP. On June 28, 2010, a seat was offered at for the class on the FNR. (Exh.

13) The parent challenged the February 22, 2010 IEP and disagreed with the recommended placement and program and maintained that District 3 failed to provide a free and appropriate public education (“FAPE”) and indicated that February 22, 2010 IEP was not duly constituted because there was no CSE participant to explain how the recommendation in a would meet needs and there was no CSE member to explain the curriculum of the school. (Exh.14) The parent alleged that the team crossed out the need for a and crossed out the need for a and crossed out the need for adaptive . (IHO Exh. I at 4, 6) The parent asserted that page 19 of the February 22, 2010 IEP mandated 40 periods of special education per week in a class and the recommendation of in a school precluded full-time 40 periods of special education per week in a class because would be mainstreamed for gym, lunch and recess. (IHO Exh. I at 6; Exh 1 at 19) The parent alleged that she and then current advocated for a deferral to CBST and a placement at the School in an ratio. (Tr. at 590) The parents further alleged that all of the evaluations considered by the February 22, 2010 CSE recommended a ratio at . The parent asserted that required a small setting and could not transition to be mainstreamed in large settings in a large school setting. She argued that the team did not consider proper evaluative material as there was no current and evaluation conducted. (IHO Exh. I at 3) She argued that the CSE team did not tell the parent of the IEP was changed to fit a in a school without any input from the parent. (IHO Exh. I at 4) The parent asserted that meeting notes indicated that was a child who can withdraw in large groups, yet on page 9 of the February 22, 2010 IEP CSE crossed out a statement that - and preclude participate in general education and non-academic areas. (IHO Exh. I at 6; Exhs. 1 at 9;12 at 4) The parent also asserted that meeting notes indicated that had (“ ”) and yet the IEP did not include the diagnosis (IHO Exh. 1 at 8; Exh. 12 at 4)

The parent further alleged that the goals and management needs were not discussed at the February 22, 2010 IEP and further the at the School developed those goals for the School program not the actual program that was recommended. (IHO Exh. I at 8) The parent asserted that the goals were created to be implemented in a class with and there was no discussion about the goals implemented in a class with education . (Id.)

THE DISTRICTS CASE

The District’s case was presented in the testimony of , School and , Special Education for . testified that she had worked for the Dept. of Education for the past 7 years worked for CSE for the past 3 years. (Tr. at 22) She had a Master of Science degree in school from the of , and a doctorate in from and that she was certified and licensed by NYS in . (Tr. at 25) She stated that she participated in the February 21, 2010 CSE annual review as School . She recalled participated as district representative and education assigned and a special education from , the of and the parent participated in the February 22, 2010 CSE meeting. (Tr. at 29) She maintained that the team determined that should be placed in a class with a ratio of or students and a education and a education . (Tr. at 32)

described levels of functioning and noted that had made a lot of progress in reading and in social skills and a setting would give him more exposure to general education students and would have peer models with children in his average range of cognitive functioning. (Tr. at 36) She noted the team considered a setting of in a school was appropriate, but a New York State approved school was too and not a setting with sufficient stimulation. (Tr. at 38-39; Exh. 1) She recalled that the team removed education because the team decided did not need education because he was appropriate. (Tr. at 43) She listed in reading and listening comprehension as well as expressive and noted he had fine motor skills and would or become and . (Tr. 45) She maintained that had educational issues and would not be able to survive academically without a special education to meet his goals. She listed the management needs on the IEP included multisensory instruction, simplified oral instruction and guided review. (Tr. at 55; Exh. 1 at 4) She maintained that required a - , highly structured environment so the team recommended a education and a in a class of students and this program would give small group instruction and the support he required. (Tr. at 56) She stated that the was crossed out on the IEP because did not with instruction and could be addressed by the education . (Tr. 60) She noted did not have - or so he did not require a . (Tr. at 61)

maintained that the academic goals met academic and were based on the ’ reports (Exh. 6) and the evaluation. (Tr. at 70-84;Exh. 2) She recalled that no one on the team disagreed with the academic goals. She noted the goals and goals were developed by the progress report (Exh. 8) and the progress report (Exh. 7) and that the vocabulary goal was appropriate as had identifying and comparing and contrasting different objects and words. She related that the goal was appropriate because had retaining info and had following multi-step directions. (Tr. at 85) She noted that the first goal helped develop better writing fluency and the second goal addressed sensory processing needs and his problems with . (Tr. at 87) She maintained that the goal was appropriate because needed increased impulse control in social situations and he needed to identify when his was and off task” (Tr. at 89; Exh. 1 at 18)

explained the modified participation and testing modifications listed on page 9 of the IEP were appropriate, as was the modified criteria. (Tr. at 90-92; Exh. 1 at 21) She explained that the team crossed out the statement that should be excluded from participating in the general education setting because the team determined that would be able to participate with general education students in physical education, lunch, and recess. (Tr. at 93) She explained that the team discounted the 2009 report from who recommended that required a “small, private, special education program in a structured, and -based setting, such as .” (Tr. at 95; Exh. 3) She noted that team considered the reports, (Exhs. 6-9) the 2010 (Exh. 2) the social history (Exh. 4) and the observation (Exhs.

10) and based on the those documents the team determined ’s needs could be adequately addressed in a small class in a school. (Tr. at 98) She further noted that the team determined that could “take on the challenge of being in a larger school, and being able to interact with non-disabled peers. (Tr. at 99)

On cross acknowledged she did not test and did not observe him and never met him. (Tr. at 100) She stated that she and , the district representative and special education were a “team” at the IEP meeting. (Tr. at 102) She recalled that Ms. took notes at the meeting. She further recalled that Ms. was not teaching a special education class in the 2009-2010 school year or the 2010-2011 school year. (Tr. at 107) She recalled that and his then current , Ms. , were concerned that if were not recommended then would not have enough support. (Tr. at 108) She recalled that the of , Ms. , was very adamant in her opinion that was an appropriate placement. She further recalled all the people who were familiar with and his special education needs present at the February 22, 2010 IEP meeting recommended and she and Ms. did not recommend . (Tr. at 110) She acknowledged the observation from Ms. (Exh.

10) indicated that was easily even in a class with children and . (Tr. at 115) She further acknowledged that the 2010 report noted that was a child who can when presented with a challenge. (Tr. at 116) She agreed that the 2009 report recommended a school like to prevent . She further agreed that no assessment the team considered contradicted the 2009 or the 2010 (Tr. at 117) She could not recall if all the members at the CSE February 22, 2010 review had copies of the reports she and Ms. had. (Tr. at 118) She was not sure if the participants by telephone had access to the or the social history or the observation. (Tr. at 119) She acknowledged that the management needs developed at the February 22, 2010 IEP meeting were written for a placement in a class with . She further acknowledged that the academic management needs indicated that required special education using -based curriculum on a continuous basis throughout the school day and he required a environment; however in handwritten notes a special education and a would be responsible to implement the IEP. She could not explain why there was no explanation as to the discrepancy of his present level of support of certified in a class and a education and a in a class. (Tr. at 123) She agreed that page 4B of the February 22, 2010 IEP stated that his and pragmatic issues interfered with social interactions with his peers and those issues were discussed at the IEP meeting. (Tr. at 126) stated that his biggest issue was that becomes with the verbal information that he receives and so he tends to and paying attention, yet she or Ms. crossed out statement that he required a school-wide and . (Tr. at 127) She recalled that there was strong disagreement with the removal of a with individualized goals and a positive reward system from the February 22, 2010 IEP. (Tr. at 129) She could not recall why education was removed from the IEP or whether there was a discussion regarding the need for except she recalled he did not need it. (Tr. at 130) She could not recall whether there was a discussion of the diagnosis of and agreed it was mentioned in the meeting notes, but the diagnosis of was not on the IEP. (Tr. at 132; Exh. 12 at 4) She agreed that the academic goals and the related service provider goals were developed by the at . (Tr. at132-134;Exh. 1 at 8-18) She stated that was no discussion as to how the goals would be implemented. (Tr. at 134) She stated that there was no discussion as to why the support was charged from a special education and an to a special education and a or and the disagreed with the reduction of support and opined he needed the support of . (Tr. at 136; Exh. 1 at 19) She could not explain the inconsistency of the student receiving 40 periods per week in a class of on page 7 of the IEP and page (Exh. 1 at 19) and the student participating fully in lunch, assemblies, trips with - on page 9 of the IEP (Exh. 1 at 21) except to state she and Ms. crossed out the statement that an preclude participation in the general education environment. (Tr. at 138-139) stated that as that statement was crossed out she told the parent and the at she thought could manage a general education setting in non-academic subjects despite their objections because he “progressed enough.” (Tr. at 140) She maintained that despite the fact that she never met she opined that he was up to the challenge of a general education setting in non-academic subjects. (Tr. at 144) She could not recall whether the parent waived the parent member. (Tr. at 150). stated that she could make an appropriate recommendation despite the fact that she never met because the documentation was extensive. (Tr. at 155)

, certified and licensed in education grade through with a Master’s degree in education, testified that that she was the education in proposed - class with education and a education and a . (Tr. at 179) She explained that when the year started in September 2010 she taught the class with and grades students at . (Tr. at 180) She stated that her students were classified with a and or were classified as or classified with (“ ”). (Tr. at 181) She stated that there were students in her class aged to . (Tr. at 190), and the reading levels ranged from to grade. (Tr. at 186) She explained that her was in the process of obtaining her Master’s degree in education. (Tr. at 189) She further explained that she divided her class into smaller groups with similar academic skills. (Tr. at 196) She explained that her program does not provide for 40 periods of special education per week, only 35 periods of special education instruction and the she assumed the IEP was error (Tr. at 198)

Ms. recalled that her students received , , and and ’s related services could have been met at . (Tr. at 209, 217-219) She maintained that had attended her class she (Ms. ) could have met his special education needs and he would fit in her class in terms his levels of academic or social functioning. (Tr. at

251) She noted that her students required frequent prompting, repetition, sensory learning and verbal/visual cues. (Tr. at 210) She stated that she used a multi-sensory approach to teach: visual cues for words and guided reading as well as scaffolding and manipulatives and prompts as well as positive reinforcements for her class. (Tr. at 204) She maintained that goals were similar to goals of other students in her class and she could have worked with to meet his goals, (Tr. at 234-245) and she was familiar with the related service providers and opined that the related service providers would have been able to meet his goals. (Tr. at 245-252) She stated that extra support from the or a would be with him when he was in the 5 periods with the general education students and Case No. 1 she was not with him. (Tr. at 254) She recalled that when the parent visited her program the parent appeared disinterested, but asked about the grade levels of her students. (Tr. at 208)

On cross Ms. stated that at the beginning of the school year there were grade students and grade students. (Tr. at 260) She acknowledged that the students had which with their ability to learn that she or the addressed. (Tr. at

261) She recollected that when she provided instruction for a smaller group or working with the student while her worked with the other children. (Id.) She stated that student had a reading level and students on a math level and 1 student performed on a grade level in reading and math and the other were in the middle of that range.(Tr. at 262; 267) She stated that she worked with the students on the bottom level and the worked with the higher level of math and reading students. (Tr. at 272) acknowledged that lunch, gym and recess were in the general education environment without education . (Tr. at 282) She explained that there was no set time to meet with the in or , but that she meets with the once a week to deal with the students and the once a week and there was a formal meeting once a year. (Tr. at 284; 297; 302) She could not explain why she felt the parent was disinterested. (Tr. at

287) She further explained that most of her students were in the grade level and some students worked independently or with the and then she checks their work. (Tr. at 292-294) She further stated that there was no (Tr. at 295) had attended her class she would have had student at math level and 4 students at her reading level. (Tr. at 199

THE PARENTS’ CASE

Ms. , the parent; , the of the School, , the current for the School and 2009-2010 testified in support of the parent’s claim for funding or tuition reimbursement for the unilateral placement of in the School. The parent contended that the February 22, 2010 recommendation of a class in a school with a ratio of with recommended individual once a week for 30 minutes and once a week for 30 minutes in a group of 6; twice a week for 30 minutes per session in a group no larger than 6; twice a week for 30 minutes per session in a group no larger than 3 did not meet education needs and as well as his and , his and his sensory processing needs. The parent argued that CSE failed to offer FAPE on both procedural and substantive grounds and is seeking direct funding or tuition reimbursement for the 2010-2011 school year in the amount of (Exh. I) The parent believed that the School placement was appropriate and that the equities favored her.

The parent argued that the IEP that resulted from the February 22, 2010 meeting was procedurally flawed because CSE was failed to consider the extensive documents that supported a full-time special education placement like and failed to provide proper evaluative material. (IHO Exh. I at 2) The parent further argued that academic goals and the related service goals presented by the at were duplicated as the goals on the IEP without consideration that the goals were drafted to be met in the class with and without discussion from the parent and . The parent further argued that the IEP that resulted from the February 22, 2010 meeting was procedurally flawed because there was no participation from the parent or the from all of whom disagreed with the sections that were crossed out on the IEP. (IHO Exh. I at 5-9) The parent also argued that there was no rational at the CSE meeting for the refusal to defer to CBST. (IHO Exh. I at 13) The parent also argued that the IEP that resulted from the February 22, 2010 IEP meeting was substantively flawed because would not be appropriately placed in the proposed class at in terms of his academic or social needs or emotional. (IHO Exh. I at 17)

, of , testified that the School had students from grades through with children who had IQ and were classified as either or and without any or and was approved by the NYS Education Department. (Tr. at 326;331) She stated that the had and the school was located in the floor. (Tr. at 327) She stated that students were approved for funding by NYS. (Tr. at 331) She stated that she was the liaison with CSE and as liaison she provided CSE with all the reports and progress reports from related service providers and goals were submitted developed by and . (Tr. at 333) She stated that she participated in the February 22, 2010 meeting as did , his then current . She recalled that Ms. spoke at meeting regarding needs. She further stated that she was surprised that at the end of meeting there was not a deferral to CBST nor was there a justification not to defer. (Tr. at

339) She recalled that in addition to the goals created there were additional goals on the IEP and there was no discussion regarding either the goals or the additional goals. (Tr. at 342)

On cross, Ms. stated that the purpose of the meeting was to provide a free and appropriate public education (“FAPE’) for the following year and to work out an appropriate program. (Tr. at 344; 347) She testified that she did not recall receiving any documentation from the CSE during the February 22, 2010 meeting such as the observation or new evaluation. (Tr. at 353) She further stated that she did not receive the pages of the IEP that contained crossed out material. (Tr. at 359) She recalled that she only had documents prepared by at the IEP meeting and that the documents did not indicate any significant problems with social interactions. (Tr. at 361;374-6) She agreed with the Ms. report (Exh.6) that noted he was respectful to authority and responds well to instruction. (Tr. at 376) She explained that programmatically there were strategies utilized all day and a learning disabilities curriculum that was part of the mental health curriculum. (Tr. at 381) She agreed that the , Ms. , targeted his receptive skills and noted that was pleasant and cooperative in his group and there was no mention of social problems. (Tr. at 383;Exh. 8) She further noted that on the application process in dated November 8, 2006 that had a lot of friends when he was 4 years old. (Tr. at 389; Exh. 16) Ms. further stated that in grade the demands placed on were greater than when he was in . (Tr. at 391) She noted that there was a discussion at the February 22, 2010 CSE meeting that was and and that he was a sensitive child who could withdraw as noted in the CSE meeting notes. (Tr. at 393; Exh. 12 at 3,4) The CSE meeting notes indicated that he was sweet and compassionate and shy and rigid as appeared timid, shy and rigid with friends. (Tr. at 395)

, Head with a Master’s degree in special education, testified that she was ’s the special education since August 2010. She stated that her year as head for the grade class at the School and that she was ’s head . She testified that was very who in school with . (Tr. at

406) She stated that had a and needed during unstructured time such as recess or lunch. She recalled that he had with his expressive and became when there was a overload. She further recalled that he had issues and had trouble navigating the social scene. (Tr. at

407) She related that required help to initiate social interactions and engage with peers at lunch, recess and during class. (Tr. at 408) She further stated that there were students aged to in room and there was another in the class, , who was in the process of obtaining her Master’s degree in education. (Tr. at 409) She related that the students in her class were classified as and or (Tr. at 410) She noted that socially had a lot of friends, but he had trouble initiating social interactions or activities during recess. (Tr. at 412) She stated that ’s reading was certified in special education and had a Master’s degree in education and literacy. (Tr. at 415) She stated that for reading he was in a class with a ratio of 7:1 that used a phonics program called “Preventing Academic Failure” and that he had trouble with verbal expression and comprehension of the text the group used. She stated that there was frequent repetition and chunking of information. (Tr. at 416) She stated that functioned in the grade in reading as were the other students in reading. (Tr. at 418) She maintained that progressed in reading based on observation, student work and unit assessments. She explained that math , , reading was certified in special education and had Master’s degrees in general education, special education and literacy. She further explained that the math used Saxon Math, a program that ensured math skills were reinforced and retained. functioned in the grade in math as were the other students in ’s math class. (Tr. at 423) She maintained that progressed in math based on observation, student work and unit assessments. She opined that progress in her social studies class. She explained that could only do independent work with one-to-one . (Tr. at 426) She explained that there were always in all academic subjects with students in each class so always had a to facilitate his reading, writing, math and social studies. She further explained that she broke the social studies class into small groups to individualize instruction. She related that required review of all material in her class and he required individualized support to write his ideas and in social studies. (Tr. at 432) She stated that his science has Master’s degrees in general education, special education and was certified in special education and general education. She noted that attended a group once a week in addition to art, music, library, computes and gym. She noted that non-academic classes special also had a ratio of 6:1 except for gym which had 4 . (Tr. at 433) She explained there were 4 gym with students to maintain the ratio of 6:1 and there was an (Tr. at 436) She related that was unable to when something him and required intervention during gym when he was . (Tr. at 435) She noted that lunch time was monitored by a , , who assisted with social pragmatic problems and that helped facilitate conversations. (Tr. at 438) She maintained that was very and when he perceived a rule breaking activity by a . She noted he became and required during unstructured time. (Tr. at 440) She stated that because had special education training she could assist him about perceived injustices. (Tr. at 443) She recalled that had social when he was provided with a task that he perceived as and required intervention to express himself. (Tr. at 445) She explained that the social skills group also assisted and benefited his self-esteem. (Tr. at 448) She recalled that during lunch time social conflict could arise as was very with notice when other student did not follow the rules during lunch. She further recalled that he with his and and she worked with him to lesson his . She noted that all of the at was trained in special education. She described as polite and well-behaved, but his struggles him and affected all aspects of his learning and his social time. (Tr. at 465) She further described that social skills group was in lieu of the mandated on the IEP and he received twice a week for 30 minutes per session in a group of 3 and twice a week for 60 minutes as push-in group and 45 minute in a gross motor group. (Tr. at 466) She further recalled that there were daily meetings with his , and monthly meetings with the and and quarterly meetings with the parents. (Tr. at

467) She maintained that progressed during the 2010-2011 school year in math and reading and writing as well as socially. (Tr. at 471)

On cross Ms. stated that in reading, math and social studies and his group of were working on an instructional level of and a independent level. (Tr. at 477;481) She stated that she was unable to ascertain how much individual time his reading and math spend with . (Tr. at 486;497) She agreed that he could initiate interactions with students in a small group of children, but a experienced in special education and trained to assist his based needs help succeed socially. (Tr. at 501)

Ms. testified that she was when he was . (Tr. at 524) She noted that had been having educational since he was old. (Tr. at 525) She stated that when was in she received , and services during and and CSE. (Tr. at 574) Ms. recalled that at age when fell into the jurisdiction in December he was in . (Id.) She recalled CSE the team classified him as and . She explained that she placed in the School in September 2007 for the 2007-2008 school year in . (Tr. at 531) He remained at the School for the next 4 years. (Id.) She recalled she attended the CSE meeting on February 22, 2010 and personnel were present via telephone. (Tr. at 533) She recalled that and Ms. were present at the February 22, 2010 IEP meeting. She further recalled both and Ms. reviewed ’s test scores. She opined insufficient time was devoted to discussing . (Id.) She recollected that she informed the team that had issues early as his told her could not keep up with his peers. (Tr. at 535) She further recollected that Ms. , his then current , informed the team that had and it was very for him to work independently. (Tr. at 536) She opined that her would not ask for help and required a placement as supportive as because in addition to his and he had - . (Tr. at 537) She stated that the recommended he remain at because required the support of a setting at , a full-time education school, not only a class of in a school. (Tr. at 539) She recalled that when and Ms. recommended a class with a student to ratio in a public school she felt that the placement was too for , (Tr. at 367) and that told her that was under estimating . (Id.) She recalled there was no and evaluation conducted by CSE since was (Tr. at 544) She recalled that she informed the team that would in the setting in a school because was not able to his when he was . (Tr. at 545) She stated that she attempted to mainstream , but was not successful. (Tr. at 548) She maintained that had CSE offered her an appropriate public school placement she would have considered it. (Tr. at

558) She further recalled that twice she wrote to Ms. , after she received the FNR: once on July 5, 2010 (Exh. B) and again on August 25, 2010 to request information about and to arrange a visit, (Exh C) and that she did visit the proposed class at in early September 2010 and she considered the students in the proposed special class were on a first grade math level and completed grade math. (Tr. at 575) She was concerned that the school at was a with students in the hall and was concerned that there would be no special education during non-academic time. (Id).She wrote on September 23, 2010 to voice her concerns with the proposed placement in that the setting was too large and loud for , in that academic abilities of the students in the proposed class were below reading and math level and the teaching was not sufficient trained to address his significant -based . (Exh. D) She explained that the School was an appropriate placement because progressed academically in reading and math and progressed socially as he recently made a new friend which was very for him and progressed emotionally because he was happy there. (Tr. at 561-565;568)

On cross the parent stated she did not feel at setting in a school was appropriate. (Tr. at 581) She maintained it was reasonable to sign the contract on March 9, 2010 because she did not receive the FNR until July 2010. (Tr. at 582) She further acknowledged that has never been placed in public school as was a . (Tr. at 585) She maintained she would have considered a public school (Id.)

, education for the 2009-2010 school year and currently worked as a testified that she had a Master’s degree in special education and was certified in special education in NYS. (Tr. at 594) She stated that she was in writing and math. (Tr. at 595;601) She stated that biggest was in both and and in . (Tr. at 597) She further stated that was very and required a lot of support during unstructured time like lining up and in lunch and recess time. (Tr. at 598) She stated that during lunch would with his , but was not able to participate in the conversation and needed her help to facilitate conversation. (Tr. at 605;617) She wrote some of the academic goals (Exh. 1 at 4,6,7,10,11,12) on the February 22, 2010 IEP. (Tr. at 612) She noted that the wrote the goals, the wrote the goals and the at wrote the goals. (Id.) She wrote under Academic Performance and Learning Characteristics on the February 22, 2010 IEP that required based curriculum on a continuous basis throughout the day. (Tr. at 613:Exh. 1 at 6) She wrote under Social and Emotional Performance on the February 22, 2010 IEP that his , to take , and pragmatic issues interfere with social interactions peer adjustment and environment. (Tr. at 616) She stated that she wrote that statement because although he wanted he did not know how to sustain a or to for . (Tr. at

617) She recalled that he was not able to tell a on to . (Tr. at 618) She further recalled that required because he needed support during every period of the school day and for his social pragmatic needs. (Tr. at 621) She noted that he required to be broken down during academic times and during unstructured time at lunch, recess, lining up in the , during physical education to facilitate conversations with his friends and to respond to . (Id.) She recommended 40 periods in a education environment and that his and precluded participation in the general education environment for non-academic areas. (Tr. at 623) She further stated that she participated in the February 22, 2010 IEP meeting and shared her concerns with the team and thought that CSE would defer to CBST but as setting was recommended based on his test scores and his grade levels. (Tr. at 625) She stated that he would shut down even in education setting so he would not be appropriately placed in a general education setting. (Tr. at 631)

On cross she stated that her was not a NYS licensed special education because her had not completed her degree. (Tr. at 635) She stated that her was trained in the programs that used. (Id.) She further stated that wanted to interact and join in and play, but he had making contact and and hesitated to participate. (Tr. at 641) She stated that not all the deficits were noted on the progress reports. (Tr. at 657)

FINDINGS OF FACT AND CONCLUSION OF LAW

The legal standard applicable to a request of reimbursement for educational services, such as in this case, 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 Education of Massachusetts, 471 U.S. 359 [1985]) The district bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. The district must establish prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (see, e.g., IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5)

To meet its burden, the district must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the (“ ”) for the child.

The parent asserted many procedural flaws in the February 22, 2010 IEP: there was discussion of the goals; no participation of the parent or the to develop the goals for a placement of a class with a ratio of in a school instead of a education school; the management goals were not discussed; the academic goals and the related service goals presented by the at were duplicated as the goals on the IEP without consideration that the goals were drafted to be met in the class with and the change in goals was made without discussion from the parent and . The parent further argued that the IEP that resulted from the February 22, 2010 meeting was procedurally flawed because there was no participation from the parent or the from all of whom disagreed with the sections that were crossed out on the IEP. The parent also argued that there was no rational at the CSE meeting for the refusal to defer to CBST. The parent asserted there was no discussion of the elimination of management needs or discussion of the goals to determine what type of progress the could make with the changes. The parent argued there was substantive flaws in the February 22, 2010 IEP in that the proposed placement at the class at was not appropriate because the class size was too and the was too and would have not have been group appropriately in terms of his academic, social or emotional needs.

To support its burden to prove that prong (1) was appropriate the district argued that while school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 [2d Cir. 2003]) The district further argued that if a procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. ( J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) (IHO Exh. II at 4) The denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y., 2005]) The district asserted that the proposed class with a ratio of provided the LRE which could make gains and have access to a mainstream and the district must place the student in the LRE. The district argued that the IDEA and Commissioner’s Regulations in 8 NYCRR 200.6[a][1] required that the placement must be in the LRE. (IHO Exh. II at 16) Lastly, the district asserted that school districts were not required to maximize the potential of students with disabilities. I find the district is not required to maximize potential. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982) and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, [2d Cir. 1998]) Instead the school district must merely provide an IEP that is likely to produce progress not . Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186,[2d Cir. 2005])

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007])

The parents asserted that the change in goals and crossed out material on the February 22, 2010 IEP was made without her participation. I find that testimony adduced at the hearing established that the parents and from the School did not participate in developing the IEP goals and for a placement in a school and not per class in a education school. I credit the parent’s testimony and the testimony of the that there was no discussion of goals during the February 22, 2010. I credit the testimony of the parent and the that the team crossed out the need for a and crossed out the need for a and crossed out the need for without parent participation. I find that page 19 of the February 22, 2010 IEP mandated 40 periods of special education per week in a special class and the recommendation was for a special class with a ratio of in a school. I find full-time 40 periods of special education per week was not possible in a class in a school setting because would be mainstreamed for gym, lunch and recess. I find that the team crossed out material that did not correspond to current academic needs and management needs or social emotional needs. I find CSE had ample evidence of and and in the reports. noted scores had decreased from previous testing in 2006 and indicated the decrease was the result of problems with attention and pragmatic . (Exh. 3 at 7) assessed attention and concentration and noted he became when the task complexity increased and became and as the test continued. noted that “ did not appear to invest energy into tasks which he experienced as . This may be related to and getting easily at the very onset of a task’s which may prevent greater persistence on work which may well still be within the range of his abilities” (Exh. 2 at 4) I find and needs were addressed on the February 22, 2010 IEP and then those sections which addressed those needs were crossed out. I find CSE had ample evidence of ’s fragile state as the CSE meeting notes indicated he was quiet and and that he was a sensitive child who could withdraw. I find that CSE presented no evaluation presented to justify the elimination of nor the elimination of special education services during non-academic periods such as lunch, recess or gym which was necessary to support his emotional needs. I find that related services under the IDEA are supportive services and are to be provided a student with a disability to assist the child to benefit from his or her special education program pursuant to 34 C.F.R. Section 300.34. I find the hearing record is devoid of evidence supporting the appropriateness of a reduction in services, the lack of and the lack special education services during the non-academic periods. I further find the lack of appropriate academic goals to address his , and social and emotional needs deprived right to FAPE and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE.

Testimony adduced at hearing established that and the from who participated by telephone and were not provided with copies of the CSE assessments including the evaluation and the observation that the CSE team relied on to develop the February 22, 2010 IEP. SRO decisions have held that a member who participates by telephone must have the same materials as the members of the CSE team. (Application of the New York City Dept. of Educ., Appeal No. 00-069) I find that the district failed to establish that the parent and meaningfully participated the decision making process and the lack of CSE evaluations to support the reduction of special education services significantly impeded the parents’ opportunity to participate in the decision making process.

The parent asserted that the change from the School to the placement at was not appropriate because CSE did not rely on any assessment or evaluation to decide that the placement at was appropriate. I find the district presented no documentary evidence to support the appropriateness of the especially in light of the and Testimony adduced at the hearing established that had expressive and receptive , , and with as well as in his fine motor development. The district failed to present any evidence that a class size of provided sufficient special education support for in the class room. I further find that the failure for CSE to consider the parent’s and recommendation that required a full-time special education setting significantly impeded the parents’ opportunity to participate in the decision making process. Further, I find that the placement was the for .

The parent asserted that the proposed class at that she observed was not appropriate. I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, social development, physical development and management needs. (8 NYCRR 200.6(a)[3]) I find testimony adduced at the hearing did not indicate the abilities of proposed students satisfied the academic need as I find that would be not be grouped with children with similar academic needs in terms of reading and math. Moreover, I credit the parent’s testimony of the physical description of the school and the children she observed in the proposed class and I do not find the grouping was similar in terms of management needs. I find the grouping of students classified with was not appropriate. Therefore, I find the district failed to establish that FAPE was provided during the 2010-2011 school year as I find CSE failed to offer an appropriate placement for the 2010-2011 school year.

The parent must establish (prong 2) that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. Testimony adduced at the hearing clearly demonstrates that the School is providing a small structured environment. The parents asserted that the School was appropriate because had made progress at the School. I note that progress in and social pragmatic was slow; but I find academic achievement was made and he progressed socially and emotion. It was noted that at the hearing that requires redirection and refocusing and that and impact on his performance. The evidence indicated that required and received and and the and coordinated with the head of the to provide the head with techniques to assist in receiving education and make gains with and social pragmatics. Testimony adduced at the hearing indicated that received in the social skills class to address his .

The evidence presented from both sides indicated , , and and were for and I find testimony adduced at the hearing established that these special education needs were met by his and at the School. I find that there was sufficient information about how the at the School individually met his needs. In light of with the students, I find was grouped appropriately for social development at . The SRO ruled that the school must provide sufficient information about how the program and the related services of the private school meet the individual needs. Application of the New York City Dept. of Educ., Appeal No. 09-020. I find there was sufficient information about the academic needs in reading and math and sufficient information about the related services to determine that the School met needs. Therefore, I find that the parent met her burden regarding the unilateral placement of at the School for the 2010-2011 school year.

The prong of the test for tuition reimbursement (prong 3) is whether the equities favor the parent’s position. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find this provision applied only to removing a child from the public schools and I find was on the continuum of special education services. I find the parent informed the district that she intended to place at the School for the 2010-2011 school year after visiting the proposed placement on September 23, 2010 (Exh. D) and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). Further, I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability and make available for evaluations. I credit the parent’s statement that she would have considered a placement in a school if it was appropriate. I find that the equities favor the parent’s position.

ORDER

Therefore, it is hereby ordered that the Department of Education continue to fund the placement at , or in the alternative provide tuition reimbursement for the 20102011 school year upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Dated: March 8, 2011

_______________________

ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2010

A. IEP, 11/26/08, 16pp. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 17, 2010

B. Parent Letter and Proof of Receipt, 4/5/10, 3 pp Parent

C. Parent letter and Proof of Receipt, 8/25/10, 2 pp Parent

D Parent Letter and Proof of Receipt, 9/23/10, 3 pp. Parent

1 IEP, 2/22/10, 21 pp District

2 Report, 1/11/10, 4 pp District

3 Report, 2/7/09, 2/26/10, 14 pp District

7/2/08, 1 p

4 Social History, 12/30/09, 6 pp District

5 Consent for Reevaluation, 12/30/09, 1 p District

6 Report, 2/22/10, 3 pp District

7 , 12/09, 1 p District

8 and Report, 2/22/09, 1 p District

9 Update, 1/4/10, 2 pp District

10 Observation, 12/10/09, 2 pp District

11 Observation, dated 2/4/09, 2 pp District

12 CSE Review Minutes, 2/22/10, 6 pp District

13 FNR/Placement Offer, 6/28/10, 1 p District

14 Due Process Complaint, 9/27/10, 1 p. District

15 Due Process Response, 10/7/10, 4 pp District

DOCUMENTATION ENTERED INTO EVIDENCE ON JANURY 18, 2011

E Class Schedule, 1 p. Parent

F Saxton Math Program Reports, 10/10 to 12/17/10, 3 pp. Parent

G Merrill Reading Report, 10/12/10, 10 pp. Parent

H School Contract, 3/11/10, 2 pp. Parent

I Affidavit of CFO, 1/3/11, 1 p. Parent

J Statement of Payment, 12/20/10, 1 p. Parent

16 's Application for Admission, 11/8/06, 5pp. District

17 Parent's Conference notes, 10/21/10, 1 p. District

18 Admission Questionnaire for ,

, 10/7/06, 2 pp. District

19 Admission questionnaire for ,

, 12/11/06, 2 pp. District

20 Admission Questionnaire for :

and , 10/13/06, 2 pp. District

DOCUMENTATION ENTERED INTO EVIDENCE ON JANURY 31, 2011

K report, 1/2011, 3 pp. Parent

L Report, 1/2011, 1 p. Parent

M Report, 2010-2011, 1 p. Parent

N progress Report, 1/2011, 1 p. Parent

POST HEARING SUBMISSIONS

I Closing Brief by , 2/17/11, 29 pp Parent II Closing Brief by , 2/17/11, 21 pp., District III Reply Brief by , 2/21/11, 5 pp. Parent IV Reply Brief by , 2/21/11, 5 pp. District