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: December 8, 2010

December 10, 2010

December 13, 2010

February 4, 2011

April 4, 2011

April 22, 2011

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2010

Attorney — Parents

Attorney School, CSE 3 Department of Education (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2010

Attorney — Parents

Father — Parents

Mother — Parents

Attorney — DOE

(via telephone) Education Teacher — DOE

Classroom Teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2010

Attorney — Parents

Father — Parents

Mother — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2011

Attorney — Parents

Father Parent Teacher Parent (via telephone) — Parents

Teacher — Parents

Headmaster — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2011

Attorney — Parents

Teacher (via telephone) — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 22, 2011

Attorney — Parents

Father — Parents

Attorney — DOE

On September 29, 2010, I was designated by the New York City Department of Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 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 parents through their attorney who initiated this hearing on September 28, 2010. Hearings were held on December 8, 2010, December 10, 2010, December 13, 2010, February 4, 2011, April 4, 2011 and April 22, 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 parents through their attorney to challenge the April 10, 2010 review and the recommendation of the Committee on Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the for the 2010-2011 school year. The is for a profit school and is not approved by NYS Education Department private school. (Tr. at 401 The has a small class program. The parents brought the hearing seeking tuition reimbursement for the 2010-2011 school year in the amount of $54,150. (Exh. J at 2) The parents submitted a proof of 4 payments in the amount of $9, 830 per payments to the indicating the parent paid $39, 320. (Exh. J at 3-6)

BACKGROUND

is a year old who is currently in grade and is classified as (“ ”) on a CSE review conducted on April 20, 2010. (Exh. 7) ’s classification is not in dispute. (Tr. at 37) is currently attending a private school not approved by the New York State Education Department. The parent related that was born wit

, water on the , and soon after birth had several surgeries to reduce the pressure. (Tr. at 191) The parent noted that her was sensitive to and and because of his health issue he received related services in . attended a mainstream at the where he had a SIET. (Exh. 10 at 2) The parent related ’s deficits included general disorder, word issues, term issues and issues with reasoning. (Tr. at 194) attended the School from through grade. (Tr. at 191) The School was a private school focused on children with disabilities with very small classes. (Exh. 10 at 10) The parent related that the School recommended the because he progressed to the point that he required a more “enriched curriculum … that could still attend to his disabilities and issues”. (Tr. at 196) The parents placed in the for grade. (Tr. at 197)

was evaluated when he was in grade. On various dates in January and February 2008 a evaluation was conducted. , Ph.D., Licensed , tested his general cognitive ability as assessed by the Wechsler Intelligence Scale for Children– Edition, (“WISC-IV”) fell in the average range and with a verbal comprehension score of , in the superior range, a perceptual score of , in average range, a working score of , in the low average range and a processing speed score of , in the low average/borderline range. (Exh. 10 at 4) Dr. used Woodcock-Johnson- Edition (“WJ-III”) was used to assess ’s and math. Dr. noted that performed below his measured verbal aptitude in all areas and he “evidenced a weakness with spatial aspects of math.” (Exh. 10 at 7) Dr. further found weakness in fine- coordination, graphomotor copying and -perceptual skills. (Exh. 10 at 11) She diagnosed with Disorder, Disorder, Disorder of , Disorder, Not Otherwise Specified and Developmental Disorder. (Id.) She recommended a small school for students with disabilities. (Exh. 10 at 12)

was evaluated when he was in grade. On various dates in October 2009 and May 1, 2010 a re-evaluation was conducted by Dr. , who used the WISC-IV and compared the results with her 2008 evaluation. Dr. noted that her performance score increased and his focus intention improved; however, his processing speed remained an area of weakness. (Exh. A at 6) She used the WJ- III and compared the results with the 2008 evaluation. Dr. found his oral improved significantly and his rate improved. (Exh. A at 7) She noted he also improved in and math. (Id.) She recommended a small class inclusion program for grade. (Exh. A at 9)

On April 20, 2010 CSE met and classified as and recommended an Integrated Co-Teaching class (“ICT”) with a student to staff ratio of inside a general education class in a community school and recommended individual

Therapy (“ ”) twice a week for 40 minutes per session and and Therapy (“ ”) twice per twice a week for 40 minutes per session and once a week for 40 in a group no larger than 3. (Exh. B at 11) The April 20, 2010 Individualized Education Plan (“IEP”) did not recommend a 12-month school year. On July 28, 2010, a Final Notice of Recommendation (“FNR”) was made for to attend which is located at , NY, NY. On August 10, the parent wrote to CSE upon receipt of the FNR to request a visit to the proposed placement and indicated he would seek reimbursement for tuition at the . (Exh. C) On August 17, 2010 the parent wrote to CSE to enclose the latest medical report from ’ doctor who recommended a small inclusion program that provided individualized education support to address ’ and issues. (Exh. D and E)

THE POSITION OF THE PARTIES

The district’s counsel maintained that District 3’s CSE met on April 20, 2010 with a duly constituted team and developed and an appropriate IEP for and classified as and recommended a placement in an ICT class in a community school program within a general education class in the least restrictive environment. (Tr. at 35) She maintained that ’s parent and child’s current teacher at the School and an advocate from office participated at the April 20, 2010 IEP review along with the school , the general education teacher, parent member, education teacher and district representative. (Tr. at 34) She further maintained that the team considered the most recent evaluations and school reports. She maintained that IEP goals were measurable. The district’s counsel maintained that was appropriate he would have been surrounded by students with similar academic ranges, and development and management needs. (Tr. at 36) She maintained that had all of the supports and programs required by the IEP and that a Free and Appropriate Public Education (“FAPE”) was offered to . On July 28, 2010, a seat was offered at for the CCT class on the FNR. (Exh. 9) The district’s counsel maintained that the was not appropriate. (Tr. at 36)

The parents' counsel challenged the April 20, 2010 IEP on the due process complaint and alleged the April 20, 2010 IEP recommended an ICT placement contrary to the opinions of the professional who worked with . He further alleged that the meeting was not properly constituted as the education would not have been able to implement the proposed program and the education teacher only had a general knowledge of the proposed program. He alleged that the regular education teacher did not meet the necessary criteria as defined by federal and state law. He asserted the goals were inadequate and lacked specificity and were not individualized for . He alleged that the goals were developed without the input of the parent He further asserted that the program was not appropriate because CSE failed to conduct a social observation and CSE did not timely test . He argued that CSE reduced the level of services without any documentation to support the reduction. (Exh. 1 at 4) The parent disagreed with the recommended placement and program and maintained that District 3 failed to provide FAPE as the placement at not appropriate in that the class size of 35 children was too large and the school was too large with over 600 students that who had difficulties with focus, orientation and integration would be overwhelmed in a large noisy environment. (Id.)

THE DISTRICTS CASE

The District’s case was presented in the testimony of , Education Teacher and , Education Teacher for . Ms. , a NYS certified education teacher with a Master’s degree in education, testified that she worked for the Dept. of Education for 23 years and she worked for CSE for the past 6 years. (Tr. at 41) She stated that she participated in the April 20, 2010 annual review as education teacher. She recalled a , the parents, the general education teacher and a teacher and the parent’s advocate were present. (Tr. at 44) She stated the team reviewed the progress report, (Exh. 11), the psychological evaluation (10) determined that should be placed in an ICT class with a ratio of or 12 students within a general education setting with a education teacher and a general education teacher and general education students with related services of , and . (Tr. at 51)

Ms. noted that the team discussed ’ academic needs such as his problems and problems with relationships. (Tr. at 54) She noted that goals were developed for academic management such as the use of graphic organizers and repetition and redirection and goals were created to help with interaction. (Tr. at 57) She noted that had and required a shunt and had fine motor skill delays so adaptive education was recommended. (Tr. at 58) She stated that she requested a medical report from the parent, but recalled that the parent stated that was “doing fine.” (Id.)

Ms. stated that CSE requested a medical report from the parents sometime in March or April, but the CSE did not receive a medical report submitted by the parents so the CSE team told the parents that meeting could be stopped and then rescheduled another CSE. She recalled that the team felt they had to continue to finish the meeting and to request a medical again and then have another CSE meeting. (Tr. at 60) She recalled that academic goals were measured by classroom participation, homework, examinations and the classroom teachers or providers. (Tr. at 62) She stated that the read the goals aloud and the team agreed with the goals and the determined the goals were measurable. (Tr. at 64) She further stated that the team developed the goals to improve his skills, a deficit area for . (Tr. at 65) She stated that she drafted the goals to work on expressive skills and use appropriate grammar and syntax and the team agreed with her goals. (Tr. at 69) She opined that the ICT placement was appropriate and the parents had an opportunity to participate in the April 20, 2010 IEP meeting. (Tr. at 77) She stated that ICT was the same program as a Collaborative Team Teaching (CTT) and ICT and CTT were interchangeable terms. (Tr. at 79)

On cross Ms. recalled that she was education teacher assigned to CSE for the past 6 years and had participated 300 reviews per year. (Tr. at 84) She stated that it was important to have current medical reports and evaluations in the reviews. (Tr. at 85) She further stated that CSE did have the authority to have evaluated if evaluations were deemed necessary. (Tr. at 86) She agreed that the CSE could have continued the meeting at another date for the medical documentation. (Tr. at 90) She recalled that the parents’ advocate did request to reconvene the meeting at another date for the medical documentation. (Tr. at 91) She agreed that the Dept. of Education had the burden to produce the proper documentation required in a CSE meeting including a medical. (Id.) She acknowledged that she drafted the goals yet she had no expertise in . (Tr. at

93) She further acknowledged that the CSE had no or reports at the review. (Tr. at 94) She did not recall if the parents disagreed with the goals. (Tr. at 95) She did not recall that the parents voiced concern that the size of a CTT or an ICT class would create a overload for . (Tr. at 96)

testified that that she was the education teacher in ’s proposed grade class and that she was in the process of obtaining a Master degree in education and had a Transitional B certification. (Tr. at 117) She stated that ’s proposed ICT class had 10 education children and 12 general education children. (Tr. at 118) She stated that on the day of school there were 10 to 11 education students whose academic functioning levels ranged from to grade. (Tr. at 119) She described classifications of her students included disabled and and impaired. (Id.) She described her classroom several desks grouped together for small group areas. (Tr. at 121) She stated that if attended her class she could have addressed his needs in and by the use of graphic organizers and she would use graph paper to help his hand and she would use visual reminders to help him work through a problem. (Tr. at 131) She maintained that based on the IEP functioned higher than the majority of her students. (Tr. at 132)

On cross Ms. stated that in a CTT setting sometimes 2 teachers taught in front of the class and sometimes she taught a mini lesson for 10 to 15 minutes while the rest of the class worked independently or in partnerships. (Tr. at 156-158) She could not explain the percentage of time a child received individual attention in or . (Tr. at 161) She stated 2 of her education students were on grade level in and 3 were in math. (Tr. at 168) She explained that shared space with another school, , which was also housed in the same building. (Tr. at 172)

THE PARENTS’ CASE

The parents; , Ph.D. Clinical , , Headmaster of the , , Teacher of the , , Teacher for the and , Teacher at the , testified in support of the parents’ claim for tuition reimbursement for the unilateral placement of in the . The parent’s counsel contended that the April 20, 2010 recommendation of a ICT class in a community school with a staffing ratio of with 12 education students and a education teacher and 15 regular education students with a regular education teacher with individual twice a week for 40 minutes; twice a week for 40 minutes per session in a group no larger than 3 and twice per week for 40 minutes per session in a group no larger than 3 did not meet 's education needs and as well as his disorders, his attention problems and his processing needs. The parents’ counsel argued that CSE failed to offer FAPE on both procedural and substantive grounds and is seeking tuition reimbursement for the 2010-2011 school year in the amount of $54,150. (Exh. J at 2) The parents believed that the placement was appropriate and that the equities favored them.

Dr. testified that was very bright young man with a number of deficits. She stated that he had very developed reasoning skills, abstract thinking and vocabulary. (Tr. at 246) She further stated that he had very processing speed and working problems. (Tr. at 247) She noted that his and issues were evident in his laborious pace of understanding and . (Tr. at 249) She recalled that attended a school at the School with small classes given his developmental delays and neurological issues. She further recalled that he progressed at the School and could attend an inclusion school with a very small class size setting with teachers trained with education techniques for students with issues. (Tr. at 253) She opined that the CCT placement at with 29 students in the proposed class was not appropriate. (Tr. at 258)

The mother testified that was born with on his and several surgeries were performed from birth to 2000 to place a shunt in his to relieve pressure. (Tr. at 191) She stated that was very sensitive to and and had problems in art and gym class at the School, a small school with only 150 students and very small classes. (Id.) She stated that Dr. tested in 2008 to check on his progress and then Dr. retested him in 2009 when the staff at told her that needed a more challenging environment and the staff recommended the , which provided a more enriched curriculum, but could address his disabilities and issues. (Tr. at 196) She opined that the was a small school like the School so given his aversion to crowds and noise the was an appropriate environment. (Tr. at

198) She further opined that he progressed at the in his classes because the classroom teachers used education techniques such as and chunking and his teacher supported him. (Tr. at 202) She recalled that she attended the April 20, 2010 IEP meeting by telephone and provided an up-dated medical dated July 29, 2010 to report from his pediatrician (Exh. F) to CSE after the CSE meeting as requested. (Tr. at 204) She further recalled that she had objected to the size of the recommended classroom. She opined that progressed at the in his study skills and had made the Honor Roll. She further opined that he progressed in that his confidence improved and he progressed and made 2 friends. (Tr. at 212)

On cross the mother stated that she signed contracts for both the tuition and the program before the CSE meetings. (Tr. at 214) She further stated that never attended public school. (Tr. at 216)

The father testified that when he received the letter at the end of July for the proposed placement he wrote to CSE on August 10, 2010 (Exh. C) to request a visit to the proposed placement. He stated that he visited on September 14, 2010 wrote to CSE on September 15, 2010 (Exh. F) to state the proposed placement was not appropriate. (Tr. at 232)

, Head Master of for 42 years testified that the was begun in 1969 to provide a supportive environment. (Tr. at 362-3) He stated that 13 years ago the program was started to provide education support twice a day. He stated that the program started at 8:00 am to 8:40 am before school and 3:15 pm to 4:00 pm after school. He further stated that the teachers were certified education teachers. (Tr at 369) He explained that the program was also instituted to communicate with the parents. He further explained that was a computer program sent to the parents each week and the grades and homework were posted on . He noted that the teachers also posted comments and reviewed homework assignments so there was constant feedback. (Id.) He further noted that the teacher collaborated with the classroom teacher to ensure each child had their accommodations of extra time on test. (Tr. at 370) He explained that over the years had faculty of 63 and 20 had education training. (Tr. at 373) He further explained that last year an inclusion program was developed to focus on strategies for disabilities. (Tr. at 371) He further stated that the teachers provided workshops to the regular education teachers and taught the regular education teachers strategies for disabled students. He noted that the teachers taught the lowest tract students at the . (Tr. at 371)

On cross Mr. stated that 12 teachers were certified education teachers. (Tr. at 395) He further stated that the did not have adaptive education. (Tr. at 396)

testified that she was the English teacher at for grade. She stated that she had a Master’s degree in English and that was enrolled in her English class. She further stated that there were 12 students her in class. (Tr. at 290) She stated that 8 students were disabled. She explained that Dr. , the school and the head and director of the Program provided her with notes regarding the strengths and weaknesses of her students with disabilities before school started. (Tr. at

291) She further explained that ’ deficits included written expression, processing in terms of retrieval and his working . (Tr. at 292) She further stated that had a deficit in written expression. She explained that she addressed ’ deficit with the use of the PowerPoint presentation and the chunking method. (Tr. at 293) She further explained that she used his graphic organizer to ensure that was able to define a topic sentence and add developing sentences and use a concluding sentence to support the paragraph. (Tr. at 294) She noted she used techniques such as chunking the material visually on paper and used the graphic organizer so could see what he was able to outline on paper. (Tr. at 296) She recalled that was a visual learner. She described the visuals she used included the PowerPoint, the overhead projector and the Flashcard Exchange which was also online. (Tr. at 305) She further recalled that she used the overhead projector that included movie clips and looked at various websites to review vocabulary. She explained that the Flashcard Exchange and were 2 programs she primarily used as study tools. She stated that she posted the tests and assignments and linked the websites she used in class as well as her PowerPoint presentations as would have access to all her materials at home. (Tr. at 298) She further stated that she was able to use larger print on the overhead projector when she saw squinting. (Tr. at 300) She opined that the small classroom environment increased ’ self-confidence and she observed an improvement in his self-esteem. (Tr. at 303)

On cross Ms. stated that functioned in grade to grade level. (Tr. at 309) She maintained that she used the education techniques, but she did not have a degree in education. (Tr. at 313) She stated that there was a therapist and Dr. , who provided . (Tr. at 318) She further stated that the quarter grade was comprised of written assessments such as tests and quizzes, class participation, homework, mini projects and assignments from the lab. (Tr. at 325)

, a NYS licensed certified education teacher with a Master’s degree for grade K through 12, testified that he was the World Geography teacher at for grade and he taught . He described ’s deficits included difficulty with and and processing information as well as difficulty in written expression. (Tr. at 332) He stated that sometimes had difficulty sequencing along with his pace of processing. (Tr. at 333) He explained that he conferred with the school to list ’s strengths and weaknesses. He further explained that had difficulties and was overwhelmed in a large group setting such as art. (Tr. at 335) He further explained that he placed in front so had close access to him or the chalk board. Mr. explained that he redirected to ensure was able to focus. He further explained that he repeated the same information in various ways and he chunked material and used multi-devices such as a graphic organizer to present information visually as well as auditorially. (Tr. at 339) He opined that improved in his ability to sequence and to structure his ideas and express his ideas more clearly. (Tr. at 345) He further opined that was at the start of school, but his lessened. (Tr. at 346) He maintained that the was appropriate for because it allowed him to be in a mainstream environment with smaller classes and individualized attention. (Tr. at 347)

On cross Mr. stated that he used strategies such as graphic organizers, chunking, modeling were not unique to the . (Tr. at 351) He stated that the children in his class functioned from the grade to the grade and that a of the children in his class had IEPs. (Tr. at 354)

Kate Logan, a Education Teacher employed by the , testified that she was ’s Teacher for the grade since September 2010. (Tr. at 443) She described ’ issues included and disabilities and the disorder of written expression, working and processing and execution. (Tr. at 444) She stated that there were 11 students in her Program and the classifications of the group were in the category of based disabilities. (Tr. at 447) She explained that she addressed his issues in her sessions of 45 minutes. She further explained that she addressed his written expression disorder with a graphic organizer and a sequence pattern graphic organizer. She noted that retrieval was difficult for and she used character charts which is a type of graphic organizer to help him understand meta-cognitive thinking. (Tr. at 450) She explained that used his graphic organizers at night in his studies and that she was in constant communication with his parents who helped by using neumonic devices. (Id.) She further explained that she used scaffolding and modeling to address his based difficulty. (Tr. at 453) She noted that she used the Program to address his needs as the notes and handouts from his classroom teachers were posted and listed by subject and she could review their notes and prompt him. She opined that progressed in advocating for his needs and enlarged the print when he could not see a diagram or map. (Tr. at 457) She noted that had severely compromised and required a screen that could zoom 200 percent and he would enlarge when needed. (Tr. at

458) She stated that she was in constant communication with ’ teachers and observed his teachers implement the strategies she developed to address ’ needs. (Tr. at 463) She opined that progress academically as his grades improved each semester and improved emotionally in his confidence and lessening of and his ability to selfadvocate. (Tr. at 464-466)

On cross she stated that she was not licensed in NYS, but in Pennsylvania. She further stated that she received her Master’s degree in education. (Tr. at 490-491) She was not aware if a principal who was asked to leave the had any personal contact with . (Tr. at 500) She was not aware if received or or or adaptive education at the . (Tr. at 504)

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 least restrictive environment for the child.

The parents asserted many procedural flaws in the April 20, 2010 IEP: there was no discussion of the goals; no participation of the parent or the staff to develop the goals; the goals were inadequate and lacked specificity and were not individualized for . The parents asserted that the program was not appropriate because CSE failed to conduct a social observation and CSE did not timely test . The parents argued that CSE reduced the level of services without any documentation to support the reduction. The parents further argued that the IEP that resulted from the April 20, 2010 meeting was procedurally flawed because general education teacher did not meet the necessary criteria by law and the education teacher would not have been able to implement the IEP or the proposed program. I find there was insufficient information as to how the general education teacher met the criteria or how the education teacher would have been able to implement the proposed program. The parents’ counsel argued that CSE proposed a program without considering the independent evaluations of Dr. . The parents argued there were substantive flaws in that the proposed ICT placement with a class size of 35 children was not appropriate because the class size was too large and the school size of 600 children was too large for due to his aversion to noise and crowds.

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]) 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. School Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y., 2005]) The district asserted that prong 1 was met with the proposed ICT class with a integrated co-teaching class with related services of OT, , would have provided with a meaningful education benefit. (Tr. at 548)

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 Education, 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 pro 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’ counsel asserted CSE failed to conduct the necessary evaluations required by 200.4(b)(3) there were no medical reports in the file, no medical reports or updates were considered nor obtained at the April 20, 2010 for a child with with repeated placement of shunts in his . (Tr. at 528) The district’s own witness acknowledged that the CSE needed to have the medical report which it did not have and was “uncomfortable without medical documentation” as stated at in the CSE rationale. (Exh. 8;Tr. at 529) The parents’ counsel also asserted that the district’s witness stated that CSE was aware of his impairments and his medical issues and did not reconvene despite the request of the advocate to reconvene the CSE meeting so the IEP would be drafted with a medical report. (Tr. at 529) The parents’ counsel asserted that the proposed class had 29 students and was too large a class size given ’ aversion to noise and crowds and the functional levels of the education students in the proposed class were far below ’s levels. (Tr. at 530; Exh. H)

The parents asserted that there was no discussion of goals in the April 20, 2010 IEP and the goals were drafted without parent participation. The district’s witness, the education teacher, testified that she developed the goals without any evaluation or report from the provider. (Tr. at 69) The district’s witness stated the read the goals aloud and the team agreed with the goals and the determined the goals were measurable. (Tr. at 64) Testimony adduced at the hearing established that the parents and ’s then current teacher from the School did not participate in developing the IEP goals nor did any related service providers participate in the drafting of the goals. I find CSE had ample evidence of ’s processing problems, his processing needs as the team reviewed the progress report indicated organization and processing, (Exh. 11at 6), the evaluation (Exh. 10). I find ’s processing problems and needs were not addressed on the April 20, 2010 IEP.

I further find the lack of appropriate academic goals to address his processing, and his processing needs and the related therapy goals pre-drafted significantly impeded the parents’ opportunity to participate in the decision making process regarding the pro of FAPE. I find that the district failed to establish that the parent and ’s then current teacher meaningfully participated the decision making process. I find the lack of CSE evaluations to support the reduction of education services and the large class size significantly impeded the parents’ opportunity to participate in the decision making process. I further find that the failure for CSE to reconvene to obtain a medical report or consider medical needs significantly impeded the parents’ opportunity to participate in the decision making process.

The parent asserted that the proposed class at that he 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, development, 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 had similar academic need as I find that would not be grouped with children with similar academic levels as only 1 education child in the proposed class read at grade level. (Exh. H) Moreover, I credit the parent’s testimony of the description of the school and I find the large building that housed 600 children was too overwhelming and noisy an environment for ’ issues. Therefore, I find the district failed to establish that FAPE was provided during the 2010-2011 school year.

To meet prong 2 the parent must establish 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 education needs. The fact that the facility selected by the parent to provide educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent’s claim for tuition reimbursement. Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993] The parents must prove that the student will receive an appropriate educational benefit from the program at the non-public school. The parents’ counsel argued that the Circuit framed the legal standard for prong 2 in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) that the parents need not show a private school placement furnishes every service necessary to maximize the child’s potential. (Tr. 535) Testimony adduced at the hearing clearly demonstrates that provided a small structured therapeutic environment. The parents asserted that was appropriate because had made progress at the . The District representative requested that reimbursement must be denied because the parents failed to establish that provided related services and there was no adaptive education (Tr. at 553-554) and did not make any progress in his processing speed. (Tr. at 559; IHO Exh. II at 5) In Application of the New York City Dept. of Education, Appeal No. 09-017, the SRO held that the absence of which may have been beneficial to the student did not warrant a finding that the private placement was inappropriate. Accordingly, I find the absence of related services at the did not render the private placement inappropriate. The evidence presented from the parents indicated that processing problems, his processing, focusing, were issues for and I find testimony adduced at the hearing established that these education needs were met by his regular education teachers who provided scaffolding, and chunking and repetition to ensure learned. I find that the classroom teachers addressed ’s specific deficits using multi-methods. I find the testimony of the English teacher described the multi-techniques she used such as chunking the material visually on paper and used the graphic organizer so could see what he was able to outline on paper. (Tr. at 296) She described the visuals she used included the PowerPoint, the overhead projector and the Flashcard Exchange which was also online. I find the testimony from the World Geography teacher listed the techniques he used with including using graphic organizers, presenting information in small pieces and modeling. I find the teacher described how she met his education needs. 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 Education, Appeal No. 09-020. I find there was sufficient information about how ’s academic needs and social and emotional needs were met at the . Therefore, I find that the parent met her burden regarding the unilateral placement of at for the 2010-2011 school year.

The prong of the test for tuition reimbursement is whether the equities favor the parent’s position. The district’s counsel noted in her post hearing brief that the reimbursement should be denied because the school had not responded to her subpoena. I find no merit in this argument. I find the parents were not responsible for the non party’s failure to comply with the subpoena. The district’s counsel also argued that the parents did not cooperate by not submitting the medical report. I find the parents submitted the medical update (Exh. E) on July 29, 2010.

Tuition reimbursement is 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 the parent informed the CSE that he intended to continue to enroll at for the 2010-2011 school year after visiting the proposed placement on September 14, 2010 (Exh. F) and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parents fully cooperated with the district to the best of their ability and made available for evaluations. I find that the equities favor the parent’s position.

Therefore, it is hereby ordered that the Department of Education reimburse the parent $34,800 for tuition at and reimburse the parent for the tuition for the Program in the amount of $16,250 upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Dated: June 6, 2011

__________________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:dl

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 10, 2010

PARENT

A Neu ropsychological Reevaluation, 5/1/10, 12 pp. B IEP, 4/20/10, 11 pp. C Parent Letter to CSE, 8/10/10, 1 p. D Parent Letter to CSE, 8/17/10, 1 p. E Medical Update Letter from Dr. , 7/29/10, 1 p. F Parent Letter to CSE, 9/15/10, 1 p. G Omitted H Class Profile Request, 9/22/10, 3 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 9/28/10, 6 pp. 2 Due Process Response, 10/7/10, 4 pp. 3 Notice of IEP Meeting, 3/9/10, 1 p. 4 Request for Documents, 3/9/10, 1 p. 5 Notice of IEP Meeting, 3/9/10, 1 p. 6 Request for Documents, 3/9/10, 1 p. 7 IEP, 4/20/10, 12 pp. 8 CSE Review Rationale, 4/20/10, 3 pp. 9 Final Notice of Recommendation, 7/28/10, 1 p. 10 Report, 2/19/08, 16 pp. 11 Progress Report 2009-2010, 10 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 13, 2010

PARENT

E Dr. Letter, 7/29/10, 1 p.

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 4, 2011

PARENT

I Enrollment Contract, 2/20/10, 3 pp. J Proof of Tuition and fees, 5/24/10, 6 pp. K Quarter Report Card, 1/6//11, 1 p.

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 4, 2011

PARENT

L Affidavit of , 2/11/11, 1 p.

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 22, 2011

PARENT

Quarter Report Card, 4/7/11 1 p.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Closing Brief by , 5/23/11, 11 pp. II Closing Brief by , 4/14/11, 30 pp.