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: May 12, 2010

May 27, 2010

June 11, 2010

July 28, 2010

September 21, 2010

September 27, 2010

Hearing Officer: Hearing Officer‘s

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 12, 2010

Student

-, — Parents

Parents

DOE

School, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 27, 2010

Student

Student

Parents

Parents

, DOE

,

, of , (via telephone)

,

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 11, 2010

Student

Parents

DOE

(via telephone) — DOE

Hearing Officer‘s — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 28, 2010

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 21, 2010

Student

Student

Parents

Parents

of School (via telephone) — Student

, DOE

,

,

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 27, 2010

Student

School (via telephone) — Student

Hearing Officer‘s — DOE

On March 23, 2010, the parents of (― ‖) filed an impartial hearing request on his behalf, in a letter from their dated March 19, 2010. (Ex. A) I was appointed to hear the matter on the same date. The hearing was held on May 12, May 27, June 11, July 28, September 21, and September 27, 2010, pursuant to the Individuals with Disabilities Education Improvement Act, (―

IDEIA‖) 20. U.S.C. Sec. 1415 ((f)(1). Lists of the individuals who appeared and the documents entered into evidence are included in this decision.

On May 12, 2010, the parties requested an extension of the time lines which was granted from June 6, 2010, to July 6, 2010. On June 11, 2010, the parties jointly requested an extension of the time lines for thirty days due to the availability of the witnesses and I granted it to August 5, 2010. On July 28, 2010, the parties jointly requested and I granted an extension of the time lines for thirty days due to the availability of witnesses, to September 4, 2010. (Tr. 386) On September 21, 2010, the parties jointly requested and I granted an extension of the compliance date to October 4, 2010. The parties jointly requested an extension of the compliance date on September 27, 2010 due to time needed to close the record and submit post-hearing briefs. I granted the extension to November 3, 2010. (Tr. 632) On November 3, 2010, the parties requested an extension of the compliance date to allow time to close the record and to allow time for the decision to be written. The time lines were extended to December 3, 2010. On December 3, 2010, the parties jointly requested an extension of the compliance date due to the hearing officer having a personal in her and needing additional time to complete the decision. The time lines were extended to December 13, 2010.

is a year old student who was classified by the New York City Department of Education (―

DOE‖) Committee on Special Education (―

CSE‖) as . There is no dispute regarding his classification. (Tr. 9) The parents allege that the DOE did not offer a free and appropriate public education (―

FAPE‖) on procedural and substantive grounds for the 2009-2010 school year. As a result, the parents unilaterally placed at for * (― ‖), a private school serving special

Hearing Officer‘s

needs students that is not approved by the New York State Commissioner of Education for that purpose. The parents are seeking a declaratory judgment that the DOE failed to provide with a FAPE and an order for tuition reimbursement for the 2009-2010 school year. (Tr. 9-10)

A January 14, 2009, Social Update notes that the student is due for a triennial review. His previous IEP classified him as and recommended a class in a school with individual twice a week for thirty minutes, and once a week for thirty minutes and and once a week in a group of for thirty minutes. (Ex. 3-1) He has been receiving these services since he was in -school. (Ex. 3-2) The school report and parent's view both reflect that ― has staying in class‖ or ― remaining ‖. (Ex. 3-1) *In the course of the hearing, effective July 1, 2010, the for changed its to School. (Tr. 424-425)To be consistent, the school will be referred to as throughout the decision as that was the name of the school during the schoolyear in question, 2009-2010.

The parent noted that ―

has been taking some more responsibility for doing homework on his own‖ and has taken initiative choosing books to read independently. (id.) ― He is treated for at and at where he has been getting since 2005.‖ (Ex. 3-2)

The parent provided the CSE with a evaluation conducted over four dates in January 2009. The report notes that the student was tested at age , when he was found to be ― a very bright boy with excellent reasoning skills but exhibited in and and efficient abilities.‖ (Ex. 4-14) Consistent with previous testing, on this evaluation his ― overall cognitive functioning was Across cognitive tests, [ ] exhibits very well developed verbal comprehension and perceptual reasoning skills and an adequate working memory.‖ The found his ― relatively performance in tasks assessing his processing speed of information‖ to be significant. (id.) He performed in the superior range in tasks assessing verbal comprehension, the high range on tasks

Hearing Officer‘s

assessing perceptual reasoning, the range in working memory tasks, and the average range in processing speed tasks. The evaluator wrote that a full scale IQ could not be calculated due to the large discrepancy between his scores. His General Ability Index, which is comprised of verbal and perceptual reasoning scores, fell in the superior range of functioning. (Ex. 4; Ex. 1-3)

Academically, was noted to have ―

made significant gains‖. (id.) ―

He exhibits good comprehension skills and strengths in decoding and reading comprehension. His skills are variable, demonstrating adequate ability to perform each operation but abilities in understanding concepts.‖ (id.) His challenges relate to his writing abilities, ― specifically in his knowledge of capitalization and punctuation rules.‖ (id.)

―

While his skills are very high, he still however demonstrates in expressive and pragmatic , although these skills seem have [sic] improved since his last evaluation. In addition his visual-motor functioning is also well developed, demonstrating another improvement in response to . However tests of fine motor speed indicate that [ ] is still having in this area.‖ His attention to tasks was noted as variable, and ― while he was able to effectively plan and problem-solve, [ ] style hindered his performance on tasks assessing executive functioning.‖ (Ex. 4-14)

Based on the parent's response to the Rating Scales is rated as ― clinically significant for and shyness.‖ (Ex. 4-20) reports vary regarding peer relations (id.)

The recommendations in the evaluation included continued placement in ― a small and highly structured setting‖, , and . Due to his ― significantly slow processing of information and academic fluency, he should continue to receive extended time to formulate responses when being called on in class, during in class assignments, and on academic and standardized tests.‖ The evaluator stated that would benefit from a social skills group. She also recommended remediation in writing

Hearing Officer‘s

skills, and organizational skills. She suggested the use of visual aids and check lists. (Ex. 4-15)

The IEP Conference Sum (Ex. M) notes that the materials considered included a educational, social history update, report, classroom observation and report. The minutes reflect that ― & tends to affect his performance in school.‖ (Ex. M-1) The student's reading is noted to be on grade level with ― somewhat delayed‖ on a grade level. (id.) The minutes note that based on information provided by the parent, and the evaluation, the student has . An was recommended to assist.

The DOE sent the parents a Final Notice of Recommendation dated May 28, 2009, offering a placement in a class at , , . (Ex. 2) The Department of Education's Case

Ms. testified that she sat on the CSE for triennial review as the school on May 14, 2009. (Tr. 18) The meeting participants included the student's and , as the District Representative, as the general education , as the school , as the , , an and , then current at . (Tr. 19-20,50; Ex.1-2)

At the meeting, the team continued previous classification of . (Tr. 20) The team recommended a class in a school with services of and . The team relied on a social history update, the evaluation provided by the parent, a classroom observation, and a progress report. The team also had the evaluation and . (Tr. 52-53) The team did not have a and evaluation or an evaluation. Ms. could not recall when the student was last evaluated in either area. The team had the 2008-2009 IEP. (Tr. 53) Ms. did not recall whether anyone at the CSE scheduled a and or evaluation for the student. (Tr. 75-76) Ms. did not recall whether everyone at the meeting had a copy of the documents that were being discussed. (Tr. 51) She testified that the written IEP was a collaborative Hearing Officer‘s effort based on the documents the CSE had received and what was stated at the review. (Tr. 70)

Ms. testified that the IEP was written after the parent left and no longer was on the telephone. It was created ― based on the information we had‖. (Tr. 52, 69-70) She did not recall whether the or parents were asked whether any goals, in addition to those included in the IEP, should be added. (Tr. 70)

At the time of the review, areas of deficit were ― in based , as well as in his writing, with punctuation and capitalization.‖ (Tr. 26) ―

Reading in general‖ was a strength. (id.) The IEP does not reference very or specifically state that he has paying . (Tr. 59-61, Ex. 1) Ms. testified that the team addressed areas of through the goals and explained that the goal: ―

In one year, [ ] will improve his ability to edit self-written paragraphs by identifying sentence fragments, runon sentences, errors in punctuation and capitalization‖ addressed the with capitalization and punctuation. Another writing goal is: when is writing paragraph essays, ― he will demonstrate grade appropriate grammar, syntax, spelling, capitalization, and punctuation.‖ (Tr. 27; Ex. 1-8) At the time of the review was writing at a grade level. A goal states: ―

In one year, [T.V] will increase his ability to organize information (determine key words, recognize the correct operation, etc.) to assist in solving multi-step word problems....‖ (Tr. 27-28, Ex. 1-9) Also, the student ― will increase his ability to use the of to express ideas precisely using appropriate representations and terminology when describing objects, relationships and solutions and rationales....‖ (Tr. 27-28; Ex. 1-10) Ms. testified that the goals were measurable. (Tr. 28)

Regarding needs, the team ascertained that was cooperative and diligent during testing. The evaluation ― states that when doing , he has some , also some with organization and he was somewhat .‖ (Tr. 30, Ex. 4) According to Ms. , nothing in the evaluation reflected that his had a detrimental impact on his educational progress. (Tr. 31) His current stated that the Hearing Officer‘s student has with whom he appropriately, but that there are times when he by . He did not appear to have . (Tr. 30) The team was aware that received privately, outside of school, but had no information to indicate that school was required. Nothing in the report or that the stated indicated that school was required. (Tr. 84)

Ms. testified that the team addressed focusing issues by its recommendation for a class size, with the additional available to help in refocusing. The team created the academic management needs based on the stating what she thought that needed to be successful in the classroom. The academic management needs include: graphic organizers to assist with the writing process, preferential seating to avoid distractions, repetition and repeated practice of skills previously taught due to , and , daily review of skills, directions presented in a clear and concise manner, chunking of information to assist with recalling information, and extra time allotted for writing assignments. (Ex. 1-4, Tr. 40-42)

According to an report, was found to have . An was asked to participate in the CSE review and the team recommended an to address the student's issues. (Tr. 33) Ms. was aware that has classrooms wired with an and the team provided an for to use in another setting. (Tr. 83-84)

The team continued and because the student previously had been recommended to receive the related service, the suggested that it continue and stated that he would benefit from it. (Tr. 35) Ms. testified that the only goal included in the IEP is: ―

In one year, during weekly sessions, [ ] will develop and implement strategies to assist in his ability to process multi-step directions presented verbally by the , with no more than one verbal reminder, over three consecutive sessions.‖ (Ex. 1-10) She stated that the CSE did not have a report at the review. (Tr. 36-37) The team continued because there was no documentation that the student no longer required the services. (Tr. 37) At the time he was not receiving

Hearing Officer‘s

because does not have an for its school students. (id.)

The academic levels included in the IEP are based on the estimates in the progress report. (Ex. 1-3) Ms. testified that the goals were individualized for , and were based on ― what the felt [ ] needed to work on‖. (Tr. 42) Ms. recalled that reported that he was on grade level for decoding and reading comprehension. She did not recall his level for fluency. (Tr. 54-55)

Ms. testified that the parent cooperated in the drafting of the IEP. She did not think that the parent withheld access to any necessary information. (Tr. 64)

The CSE considered an - based on ―

cognitive abilities, as well as academic functioning‖, but it was rejected because the and ― felt that [ ] required a class environment to be successful, due to , and .‖(Tr. 22-23)

Ms. testified that she has been a special education assigned to the CSE for eight years, and employed by the DOE for twenty-nine years. (Tr. 155-156) She is licensed as a general education and a education . (Tr. 166) She sat on the May 14, 2009 IEP review for in the capacity of general education .

In her view, the parents were given a full opportunity to participate in the review and agreed with the program of special class in a school. (Tr. 171) She recalled that the parents provided a obtained report, an report and a for an . The parents clearly stated that they wanted a class placement where would be challenged. (id.) They were concerned about too a class setting due to , , and . (Tr. 180) The parents said that could not function in a general education setting and his stated that an integrated teaching class would be too (Tr. 187) She stated that he needed a class with and additional full time . Ms. testified that in the course of the CSE meeting, the parents told her that never attended public school. (Tr. 173) The parents expressed concern ― about sending to a public school in the and they wanted an appropriate placement.‖ (Tr. 181-182) The parents' concerns were about class size and ― having cognitively bright students and Hearing Officer‘s students who he would be able to have intelligent conversations with, and students whose parents took them to different places‖ . (Tr. 187) Ms. testified that the parents ― made it clear that they were going to go look at the placement.‖ (Tr. 175, 182)

Ms. testified that she has been an at , the offered placement, for seven years. She described herself as being in charge of and . (Tr. 100) Related to special education, her responsibilities include ― ensuring students are in their correct program, receiving their services, transportation issues, making sure IEPs are upto-date by the .‖ (Tr. 101-102) She ensures that related service and keep attendance booklets. She sits as a district representative during annual reviews and educational planning conferences. (Tr. 102) Ms. has no degree or certification in education.

Ms. stated that is located in the of the on and . (Tr. 102) The has with occupying the and . (Tr. 103) One other school is on the and . The only grades within the school are , and . About students are enrolled in the school. (Tr. 130) has classes, general education and - education classes. The school is divided into academies. In grade all of the students are in the which has classes. For and grades they are placed either in the which has classes or the which has classes. (Tr. 105,134) There are special education classes in the and one special education class in the . classes have graders in them. (Tr. 106, 135)

Ms. stated that she is familiar with from reading his IEP and the parents' impartial hearing request. (Tr. 136) Based on his IEP recommendation he would have been placed in class with Ms. , a certified education , as homeroom . (Tr. 107-108) Ms. also taught the class English Arts. (Tr.141) Ms. , a certified education , taught the class . (id.) Ms. , a certified education , taught the class social studies. (Tr. 142) Mr. was the . Ms. did not know his credentials. In the 2009-2010 school year, the class had children, of whom were graders and was staffed with the Hearing Officer‘s and a . (Tr. 117, 137) The students' classifications included , , , , and . (Tr. 117-118, 140) If a student is achieving at grade level, the school tries to mainstream them for that class. (Tr. 161) The school provides and , , and . (Tr. 108) For the 2009-2010 school year, there were students mandated to receive and , and the school had those available to provide the mandated services. (Tr. 108-110, 145) The , who is education certified, was on staff and the was an who serviced of the students on four days per week. (Tr. 146)

Lunch takes place on the . (Tr. 146-147) During lunch, the lunchroom is by to and the . (Tr. 111, 147) Ms. estimated that there are between and students in the lunchroom at the time that Ms. class has lunch. Three general education and one other education class are having lunch at the same time, with each class assigned to its own table. (Tr. 147, 161-162)

Ms. recalled showing a parent, who she did not identify, the education classes in May 2008, and that the parent informed her that was in a school. The parent said that she was not planning to remove from the school. (Tr. 128-129) The conversation struck Ms. as unusual because the parent stated that she had to look at the school ― even though she had no intention of bringing the child there.‖ (Tr. 151-152)

Ms. testified that she is a education at in a with a ratio of . The students are and graders. (Tr. 212) She has been a education for fourteen years. (Tr. 213) She is licensed to teach kindergarten through twelfth grade. At she teaches English Arts (ELA), a program that includes ― , ; reading which includes decoding; and reading comprehension; and writing‖. (Tr. 214) She testified that she is with the class ― a majority of the time as homeroom , ELA or for extended day. (Tr. 215-216) She explained that extended day applies to a later dismissal on Tuesdays and Thursdays when she usually does remedial work with the students such as building on phonics, spelling, or ― whatever Hearing Officer‘s the students are lacking in.‖ (Tr. 216, 275) The core purpose is to prepare the students for the State ELA and exams. (Tr. 216-217, 277) She also is the for a peer driven advisory period. If the students do not have a pressing issue to discuss she follows a curriculum in the book, . (Tr. 305)

The for , , and social studies come into the main classroom to teach. (217-218,272) The classroom is present during those classes. (Tr. 270) Ms. testified that the ELA Department meets weekly as does the Special Education Department, when discuss ― strategies, what works, what needs to be tweaked.‖ IEP compliance also is discussed. (Tr. 229)

There also are conferences when the communicate about the students. (Tr. 218-219) The also communicate informally at the start and end of the school day, and have access to e-mail if they want to address a particular issue.

In September 2009, on the first day of school, Ms. had students in her class. (Tr. 256, 307) It is a and grade class. (Tr. 257) were graders. (Tr. 258) At the start of the school year they were about to years old. (Tr. 259)The students have a range of classifications including , , other , , and . (Tr. 219220, 260-261) There are students who are classified as . The noted on their IEPs included ― easily when not able to complete a task‖, ‖, prone to , ― ‖, calling out without their and exhibiting ― -of- such as to the or . (Tr. 263, 265-267) Ms. testified that these are not common in her presence as she is able to manage the students using ―

[v]erbal prompts, a tap on the back, time out, the going to the to their , and a reward and consequence system. (Tr. 263, 313-314) She was aware of that occurred in or the when the students were . She estimated that the she described occurred once per week. (Tr. 312-313)There are students who are classified as based on having combined with and such as . (Tr. 266-267) There are and . Tr. 261)

Ms. testified that the reading levels based on overall reading ability and comprehension in her class range from grade. (Tr. 268-269) Ms. Hearing Officer‘s testified that the classroom , Ms. , has been a education at for approximately 10 years, and they have worked together two previous school years. They meet in the morning ― to address students' needs, also to review the lesson plan and my plan that all the students I would want her to work with for that given day.‖ (Tr. 221) They also have a chance to speak at the end of the day and ― discuss , academics, and/or whatever issues that might have presented themselves throughout the day.‖ (Tr. 222)

Ms. described her class as usually set up in of seats, with preferential seating for those whose needs require a different arrangement. (Tr. 223-224) The classroom is ― very print rich‖ with pictures, ELA and standards, c s to reinforce skills and a word wall posted. (Tr. 224) The classroom has a Board and a cart with the students' laptops. (Tr. 228) There are two bookshelves with books of various genres and reading levels. In their notebooks or folders, the students each have rubrics, or a description of what is expected of them to achieve a particular grade. (Tr. 226-227) The students receive their related services on a pull out basis. (Tr. 228) She communicates with the related services providers in weekly meetings and on an informal basis as well.

Ms. testified that the curriculum for her and graders was geared toward the same skill set since the ELA exam tests the same skills for both grades - ― main idea, inference, drawing conclusions‖. (Tr. 230) She noted that the only difference is that the grade has a mechanical component which she would stress when grouping the class, presenting mini lessons and presenting individual work. (id.) The learning differs in that there are books at different levels available and Ms. uses workbooks at each of the grade levels. (Tr. 230-231) For ELA, the class first writes the AIM in their notebooks, followed by a mini lesson taught to the whole group. During the mini lesson Ms. is ― modeling‖ and exposing the students to a particular skill through either a read a loud or shared reading. This is followed by group work and independent work. (Tr. 285-286) Ms. uses a balanced literacy approach and the method. She has had Hearing Officer‘s specific training in for about one hour three or four years ago. (Tr. 282-283) She does not use a specific methodology to teach reading, but uses a multi-sensory approach. To teach phonics and decoding she is using a workbook. (Tr. 284) For writing, she uses a multi-sensory approach as well. (id. )

Ms. explained that she uses differentiated grouping depending on what she is teaching. She uses or grouping, dividing the students according to strengths and weaknesses. (Tr. 231) Depending on the task, while the students are in groups, Ms. conferences, facilitates, aids and assists, or provides individual attention. (Tr. 238-239) The students are given independent work to see if they can take the information that was taught and apply it on their own. She sticks to her schedule ― religiously so that each child receives the conferencing‖ and each of the students gets time. (Tr. 239-240, 294) For reading, Ms. testified that ideally she would have groups, grade, grade and a group that did not understand the lesson as well. (Tr. 288) She thought that would be in the grade group since at the beginning of the year he was functioning a half year level and she believed he would be able to function at a grade level. (Tr. 287-288)

Ms. administers ongoing assessments. She keeps a ― running record‖ of the results of a one minute test to see how many words the student can read on their grade level, allows the student to complete the reading in an additional two minutes, and then answer reading comprehension questions. (Tr. 232) She stated that she is ― assessing them daily because there's constant repetition. There is ― constant carouseling and repeating skills through out the course of the day, week and year. (id.) She also uses Acuity to assess how the students have learned a particular skill and directs her instruction based on the results. (Tr. 233) Ms. stated that she uses a multi-sensory approach to teach including the use of graphic organizers and and student-made c s. (Tr. 242)

At the time of her testimony, Ms. placed the students' functional levels in reading and writing at between to grade level. She estimated that in September those skills would have been from a year to year . (Tr. 234) Hearing Officer‘s

Ms. testified that for students who are easily distracted she uses preferential seating, close to her desk. (Tr. 242-244) Depending on the student's IEP she would give the student breaks, modify the task to a shorter one, or give the student extra time. To address the needs of a disorganized student she would label books, use very big print, use an incentive c , verbal praise and prompts. (Tr. 244-245) To address auditory processing difficulties she would position herself in front of or close to the child where they can hear her as clearly as possible, and use an as required. She has experience using an . (Tr. 245) In her class, Ms. breaks down the information into smaller steps, presents information visually, repeats directions constantly, and prompts the students frequently on a daily basis.

Ms. testified that based only on a review of the IEP, for to reach of the grade ELA standards ― is a tad bit high‖ since he was functioning on the grade level for decoding. (Tr. 250)She concluded that too many variables are involved for her to render an opinion as to whether it was an appropriate promotional criteria for him.

Ms. testified that she is the education for and grade at where she has taught for four years. (Tr. 321) She teaches Ms. class for eight periods per week. (Tr. 323) She communicates with Ms. on a regular basis including once a week on a formal basis in the special education meetings. (id.) Her communications with the classroom occur in the same way. (Tr. 324) She groups the children according to grade and the graders are grouped further according to their functional levels.

Ms. instructs the group as a whole for the topics that overlap for both and grades, such as equations. Ms. testified that she splits the class according to chronological grade to teach both and grade curricula because of the different content that appears in the Statewide Tests given at the end of the school year. (Tr. 324325, 367-368) Within the main grade groups, she further ― tiers‖ the work according to functional levels and might create up to groups. (Tr. 326-327, 344-346) At the Hearing Officer‘s beginning of the year she assesses the students using the a series of questions in problem solving and computation that helps determine their functional level based on the number of questions answered correctly. (Tr. 327) She also administers biweekly quizzes, a monthly unit test and an Acuity assessment every two to three months. (Tr. 328) At the time of her testimony, the students functioning levels ranged from to grade. In September, she stated, ― a lot of my students were at much evels like at maybe‖ the grade level up to the grade level. (Tr. 330, 346-347)

Ms. testified that she modifies the work by ― how I present the material that's in the workbooks, and the types of questions that I select for different students— that determines the differentiation.‖ (Tr. 336) She uses manipulatives such as algebra tiles, geo boards, and the board. (id.) She and the both provide individual attention. (Tr. 337) For the students who are easily distracted, Ms. uses a tap on the shoulder, prompts, and seats them on their own or with students who are not a distraction to them. (Tr. 337-338) To address the students who have issues with organization, Ms. relies on labeling and finds that Ms. 's method for designating a particular section of her classroom for each student's belongings has been helpful.

Ms. used an with a previous student to assist with . Ms. also explained that for a student with auditory processing issues she would ensure that her directions were written as well as presented verbally. She would provide the student with partial notes to reference at the same time she is modeling steps for the class. (Tr. 339-340) If a student has issues with frustration tolerance, Ms. uses positive reinforcement, especially praise. She tries to first assign tasks on which the student most likely will be successful and win the student's cooperation and participation in a more difficult task. (Tr. 353-354) She might use this strategy to reduce a student's as well. (Tr. 354)

Based on a review of IEP, Ms. felt that she would have been able to implement his goals and that he would have been appropriately placed in her block. (Tr. 340-341) She explained that in her teaching she currently emphasizes solving Hearing Officer‘s and vocabulary strategies, areas she understood to address needs. (Tr. 341-342) She noted that was in the grade range going into the grade, ― pretty much within the of my students.‖ (Tr. 358) She later stated that he would be the functioning student in the classroom. She explained that he ― would still get mini lessons with the grade group, but I would definitely modify and give him enrichment questions...‖ (Tr. 362-363) To her, he presents with similar such as academic in , solving, particularly multi-step . (id.) He needs ―

[t]ools and methods and strategies and modifications that my already use.‖ (id.)

Ms. testified that she has encountered students from Ms. class this year being or . She has needed to contact their parents. (Tr. 355-356) The did not escalate to the point of necessitating a call to the . (Tr. 357) The Parent's Case

Mr. testified that he is the school - of with . (Tr. 416) Both hold Master's degrees in special education. (Tr. 416-417) They run the building and day to day operations of the school, as well as all of the school . (Tr. 417) For the 2009-2010 school year, the staff received training in Orton-Gillingham reading and spelling, the writing program, a Scientific Spelling workshop and modification workshops. (Tr. 419) There are faculty meetings once a week, where the including the related services providers talk about students and school . Additionally the meet individually with each at least once per week to talk about curriculum, coming events, and whether the specific needs of each of the students are being met. (Tr. 418, 420) The has a and as well as two .

Mr. described as a school for students who have . There is no component to the program. (Tr. 426) There are classrooms and ― in each class.‖ In 2009-2010, the school served through grade.(Tr. 421) The school had a school division serving students, grades through , which was located in a from the grades. (Tr. 423-424) The standard classroom staffing ratio was to . The are either or a and an ,―

[b]oth that Hearing Officer‘s

are integral members of the class and the curriculum.‖(Tr. 425, 451-452, 474-475) They are interchangeable. (Tr. 451) had one , as did literacy and which were taught in groups.

Mr. knows from his previous attendance in the division of , his enrollment in the school since grade and as a student in his literacy group during the 2009-2010 school year. (Tr. 426) The literacy group was comprised of grade students who met times per week with Mr. as the sole . (Tr. 427, 429) They were grouped on the basis of similar strengths and weaknesses, such as ― strong reading comprehension for the most part, with lots of gaps in being able to articulate what their understandings were, in being able to regularly produce work at that level, lots of organizational needs and lots of grammatical spelling and writing struggles.‖ (Tr. 428) The students in the group were ― primarily all reading right around grade level‖ meaning grade. (Tr. 468) The level reader was at the grade. (id.) The students' writing skills ranged from a grade to a grade level. (Tr. 469) The spelling levels were grades. (id.)

The group had over the course of the year, and . Ms. has a Master's degree and doctorate in education and Mr. has a B.A. in and . Mr. taught during the three months that Ms. was out on . (Tr. 433) The cofor media literacy were who has a degree in both and education and . The for were and , both with Master's of education and certification. (Tr.

435) The current events was with a Master's in history. The was Ms. who has a Master's degree in education and state certification. (Tr. 435,

470) The school teaches a course, , on like peer pressure and hygiene. (Tr. 437-438)

Mr. described as having a lot of skills and a ― great deal of needs.‖ (Tr.

440) He is not always aware when he is attentive or when he has lost focus. He is not a so he often has the tendency to slip under the radar.‖ (id.) Consequently, he ― ― requires a lot of refocusing. You need to check in with him explicitly throughout a class to make Hearing Officer‘s sure that he's still following along, understands the directions, has actually processed the information that's been shared in the class.‖ (Tr. 440) Mr. noted that also has ― lots of organizational issues which make the completing of daily assignments a real challenge.‖ (Tr. 440, 476) The school has a number of systems set up that help know what work he has to do, has the right materials, and check what is needed if he is lost. (id.) Although he has ―somestrong written expression skills‖, he ― lacks a lot of selfmonitoring skills. And so grammar, punctuation, editing, all of those things are real impediments to the sharing of his ideas.‖ (Tr. 441) Another is that is relatively shy and not very forthcoming with advocating for his needs or participating in conversations. He requires both check-ins with to ascertain his comprehension and ― significant prompting to get involved and to share his ideas.‖ (Tr. 441)

To assist with organizational skills, when an assignment is given, was to write it down in his homework planner. Mr. would check to see if wrote it down accurately. He also either gave a copy of the assignment and either e-mailed it or put it on the website. (Tr. 442) At the end of the day, the would look at all of the assignments and make sure that he was bringing home all of the necessary papers and materials to complete the assignments. (id.) To address inability to self-advocate, the staff tried ― to create as welcoming and supportive an environment as we can.‖ (Tr. 442-443) Mr. also was available to answer questions at the end of the day by e-mail.

To address mechanical difficulties with writing, Mr. provided - instruction based on his particular needs as reflected in a piece of writing. The taught the skills in and used workbooks and worksheets on writing mechanics. The used a lot of graphic organizers ― and a brainstorming of ideas to help collect and collate thoughts. (Tr. 443-444) He is provided editing check lists and re-focusing techniques to assist him with editing his own work. (Tr. 485-486)

Mr. testified that progressed over the 2009-2010 school year. (Tr. 444) The progress was measured by tests and was reflected in the quality of his work.

Hearing Officer‘s

exhibited ―

greater sophistication of his ideas and more complex ideas presented with greater clarity.‖ (Tr. 445) The TerraNova standardized test for reading comprehension was administered at the end of the 2009-2010 school year. (id.) Mr. stated that on the grade level test, scored ― what's equivalent of a grader.‖ (Tr. 446) The test was modified in that it was untimed. (Tr. 465-466) He further stated that was ― not reading material‖ in class, but grade level text and was

‖. (id.) He does well silently reading texts. ― he has much greater being part of a group and sharing his ideas and writing his ideas and consistently handing in homework.‖ (Tr. 447)

had in a group of both as a push-in and pull-out service. It primarily was pushed in during and history, once a week, because they are rich activities for which needed extra support. (Tr. 447-448) issues include the need for help with articulation and word finding skills. (Tr. 448) Mr. testified that only needs were to spend as much time keyboarding as possible because his handwriting is often illegible. (Tr. 449, 464-465, 481, 484) He did not receive . (Tr. 449) He had the opportunity to practice keyboarding in his technology media and literacy classes. (id.)

Mr. has observed that when receives instruction in a group, he needs a to repeat the directions specifically to him in order to follow them accurately, or to check in with him. (Tr. 455-456, 462-463) He described as ― not being present in what is being asked of him.‖ (Tr. 463) Mr. testified that managed in the class of students and one because he ― has a pretty good sense of the ‖ and the class was taught at a very basic level. (Tr. 501) When Mr. observed the class it seemed as though had attending and staying focused. (Tr. 502)

Mr. ―

never made the connection‖ between bus ride to school and his ability to attend to his academic responsibilities. (Tr. 477) He never observed with a heightened due to his . (Tr. 477) Throughout the school day, would have Hearing Officer‘s to change using the to go to another for his classes. Initially there may have been some , but he usually followed other students and was able to locate where he needed to go. (Tr. 478, 495) He was required to navigate portions of a story every day. (Tr.

479) During a between classes there would be students on a given . (Tr. 495-496) Mr. stated that makes more . Neither or in the sense of making him , but those environments are ― more for him.‖ (Tr. 480)

Tuition for the 2009-2010 school year was

Mr. testified that he was a grade school at for the 2009-2010 school year. (Tr. 577) It was his fourth year teaching at . (Tr. 578) He is New York State certified in history education and education. (id.) He was responsible for the curriculum and instruction in the grade history class, as well as the curriculum for literacy and . He also was responsible for a of grade students, making sure that other were modifying materials for his students. (Tr. 578)

was in Mr. and class for the 2009-2010 school year. The class was composed of and . (Tr. 579-580) The were years old and some turned by the end of the school year. Their classifications included , and and other due to or . Most students in the class were classified with , like the rest of the population. (Tr. 580) The class had an additional ― ‖, , who has a B.A. Mr. and Ms. met before the students arrived and planned their homeroom time. Once the students arrived, the divided the tasks of ― making sure that they're organized for the day, making sure that they have all their homework completed, make sure that they have checked in with when they need to.‖ (Tr. 581-582) At the end of the day the homeroom reconvened so that the students could get organized before they went home.

The same students were in the Am History class and there was a second in the classroom as well, , who Mr. believes has a B.A. (Tr. 584-

585) The history lesson was presented to the entire class at the same time. Following the group lesson, for the ― majority‖ of the class, the students were asked to complete an Hearing Officer‘s activity during which both walked through the classroom and assisted students with written work or discussions. If either saw that a student was not understanding the material, the student received individual instruction. (Tr. 586, 589) Depending on the content and difficulty of the lesson, the class might get divided into groups, generally with no more than students. (Tr. 589) Ms. and Mr. met at least once a week to discuss the weekly plan or long term plans. acted independently to give instruction or reinforce material. (Tr. 587)

Mr. characterized issues as ―

the need for reinforcement of executive functioning kinds of .‖ While noting his active mind and good work last year, Mr. also noted that ― significantly organizing his material, checking in with the during a lesson, asking a question, asking for help‖ or ― self-regulating his own attention.‖ (Tr. 590-591) had ― from class to class‖ and often arrived slightly for a class. He might get into a , go to the n or the . (Tr. 591, 617) Mr. does not see navigating the stairs as an issue for (Tr. 617) Steps taken to help with his organization included the class requirement to maintain a study folder where ― critical‖ handouts for upcoming tests only were to be kept. The students were to check in with the to ensure that they still had all of the handouts. Students were required to write down their homework assignments before they left the room in their homework planner. The checked that the homework assignment itself was in the history folder before the students left the room. (Tr. 592) The would remind to ask for their help if he was struggling to remember what was expected next. (Tr. 593) Mr. did not think ― that we specifically systematize the way to help him ask for help.‖ (Tr. 594) The built-in schedule including binder check times and twice daily organizational times helped with executive functioning . (Tr. 625) Mr. testified that all of the received updated training to address students' issues with executive functioning. (Tr. 623624)

In terms of helping maintain focus, one of the would ― either tap him on the or would move closer to him‖ or would verbally direct his attention to the lesson. Hearing Officer‘s (Tr. 595, 615-616) ―

...redirection is certainly the way we most often would get him back on task.‖ (Tr. 616) If was connected with the material he would volunteer answers frequently, but if he was not as connected, the would check in from one to four times a class, as needed. (Tr. 595-596) required more ― check-ins‖ if the lesson was more of a lecture than class discussion. (Tr. 596) Mr. discussed these issues as well as with long-term assignments in his meetings with other grade . (Tr. 597-598) Mr. thought that ― definitely requires a second in the classroom for monitoring his attention.‖ (Tr. 613) The second often would provide with individual attention at the end of class when he needed assistance to write his homework assignments in his planner. (Tr. 613, 615)

The reading levels in the class ranged from grade to grade. (Tr. 587,

620) The text used is written on a grade level. (id.) The text is modified for lower functioning students. For the higher functioning students they were asked ― more critical thinking questions‖. (Tr. 588) They taught a grade curriculum, similar to the State's grade curriculum because some students go on to a mainstream high school setting and will be in sync with the curriculum. (Tr. 616-620) was on grade level for comprehension. His written expression was ― rich‖ , but in terms of ― punctuation and so forth‖ it was not on level. (Tr. 621) In and writing, the class functional levels ranged from to grade. (Tr. 627) was functioning at the level and was grouped with students also on that level. (Tr. 630)

Mr. testified that at times the students engaged in disruptive like calling out or asking questions that were tangential to the discussion. When it persisted to the point ― where it was actually not beneficial for that student or for the rest of the class to keep them in the room‖ the student was asked to leave the class, and the administration and parents were asked to be involved. In history, this type of incident occurred approximately once or twice a week. (Tr. 602-603) Most often the incident would require a two to three minute conversation outside of the classroom and the student would be able to reenter the class and complete it successfully. (Tr. 603) Socially, the students'

Hearing Officer‘s

and interactions were age appropriate, from , with no serious gap from any student to the lowest functioning student. (Tr. 628) Physically the group was developing similarly. (Tr. 629)

Mr. measured progress formally through tests, completion of essays at the level, projects and long-term assignments. Informally, progress was measured by observation and conferences with other . (Tr. 603-604) In Mr. \ 's view, progress through the 2009-2010 school year. He learned how to articulate his thoughts, how to better write strong paragraphs, and how to better organize for upcoming tests. (Tr. 604-605) Mr. , as homeroom , conferenced with in the other content areas, and for the progress report composed a written synopsis of ― performance each trimester, as well as set academic goals for the student for the upcoming trimester and also report on how the student is progressing in each content area.‖ (Tr. 611) Mr. testified that the in other content areas noted similar trends in progress. In particular, the reported good work on the fair project, a long-term, multi-step assignment. (Tr. 612-613)

Ms. , testified that the parents first became aware of learning difficulties when at the end of his of t was pointed out that he had . (Tr. 505-506) The parents began a and evaluation process in the fall of his second year of They also noted that he kept to himself in the playground and in the classroom and the director requested a comprehensive evaluation. (Tr. 506) Consequently, received and , and Special Education Itinerant (―

SEIT‖) services 10 hours per week. (Tr. 506-507) transitioned to the CSE for services, but returned to his for more year after the parents were told by the supervisor of the school offered by the CSE that it could not comply with IEP. The following year, began to attend in September 2002, after the parents again received an offer for the same public school as the year before. has been attending since that time. (Tr. 507-508, 552) Hearing Officer‘s

The parent testified that she participated at the May 14, 2009, CSE review. The arrived about ten minutes after the meeting had started. Everyone else participated for the full time. The parent recalled referring to the evaluation and that the was asked questions. The CSE looked at the previous year IEP. (Tr. 510) The parent did not think that the CSE participants had read the thirty page report because she kept referring them to different parts of it throughout the meeting. She did not think that the goals of the previous IEP specifically were discussed. (Tr. 511) She recalled that the was asked about and reading levels as well as test results. (Tr. 511-512, 560) The parent stated that the documents listed as considered on the conference sum (Ex. M) were not discussed at the CSE review. (Tr. 513)

The parent testified that the CSE recommended collaborative teaching, but she and Ms. , who participated, did not agree. (Tr. 514) She thinks that it was their ― perseverance in what we felt was necessary for our son‖ that resulted in the recommendation. (Tr. 514-515) The wording of the goals was not discussed at the meeting. (Tr. 515-516) The parents received the IEP several weeks after the meeting.

Once the parent received the placement letter from (Ex. 2) she called the school and asked if she could visit. She visited the school on June 8, 2010, and met with the special education supervisor, Ms. . (Tr. 517-518) The parent testified that she did not discuss 's current placement with Ms. , or have any discussion with her about whether the program was appropriate. (Tr. 518-519) Ms. directed someone to take the parent to a class, but it was a class. The parent returned to Ms. informing her of the error, at which point Ms. reviewed a few pages of the IEP. Ultimately, she left the parent to observe a class of and graders for about four hours, during classes, transitions and lunch. An additional students were assigned their own s. (Tr. 520-521, 565)

The parent did not think that the class and program were appropriate because ― there were over students in a very encompassing most of a . There were schools in the .‖ (Tr. 522) There was in the during as well as during classroom Hearing Officer‘s instruction. There were frequent and the had to stop teaching in order to ― address certain students and their .‖ (id.) The size of the school and the would be too for . The range of reading levels was too wide. The students were taught as a whole group with coming in and out of the classroom. During , the class was taught as a whole by a general education , and the provided help to one child during the entire class. (Tr. 524, 547)The parent was not at all sure that would be able to get the attention he needed. The issues ranged ― from children who just had modification plans‖ to those who needed a in the class. One child was having difficulty, was lying on the floor, and eventually had to be escorted from the room for a short period. (Tr. 524) The parent stated that she stayed for four hours because she wanted a real sense of ― what a day would be like for our son there.‖ (Tr. 545)

The parent testified that Ms. told her that there was one for all schools, all of the children receive group , and probably would be in a group of . (Tr. 525) Ms. informed the parent that there was no and she had helped all of the parents whose children needed

RSA‖) forms and was able to contract with a to obtain Related Services Authorization (― to come to the school for a specific period during the week to provide to all of the students.

The parent testified that Ms. told her she could not tell her what class would be in if he came to the school because most of the special education classes were grades. (Tr. 528) She did not represent that his class would be the one that the parent viewed. (Tr. 525-526) The parent wrote a letter to the CSE dated June 8, 2010, stating her concerns about the offered placement, the size, the number of students, the lunch environment,the levels in and outside of the classrooms, the students' issues, the whole group instruction she observed, the range of disabilities and functional levels in the classroom and the provision of related services. (Ex. E) The parent did not receive a response to her letter.

The parent testified that she received a telephone call from , an or to Hearing Officer‘s

Mr. , the placement officer at She was informed that had offered but rescinded the same placement the parent had received from , because the parent had not responded to the offer. According to the parent, Mr. stated that it was confusing because was the child on the list. Mr. asked to see the letter the parent had written to District so she faxed it to him along with a letter dated August 27, 2010, recapping her conversations with him and . (Tr. 527-528, 529, Ex. D) She sent copies of the letter to the CSE chairperson at both . The letter reiterated the parent's willingness to see the placement again and to consider any appropriate program offered by the DOE. She notified the CSE that would start the year at and that they would be seeking reimbursement for the placement. (Ex. D-1) The parent did not receive any further communication from any CSE. (Tr. 530-531)

The parent returned to in the beginning of September to see the proposed placement. A receptionist informed the parent that she could not see a class without an A-

1 authorization letter. (Tr. 531-532) Following her attempt to see the proposed class, the parent wrote a letter to Mr. , dated October 10, 2010, describing what had happened (Ex. C). She asked for more information about the specific class for and help to make a visit possible. She copied the chairs again. (Tr. 532-

533) The parent never received a response to these letters.

The parent signed a contract for to attend the on February 1, 2009, because ―

[i]t was the only way to ensure that he would have a placement for the following year. (Ex. G) The tuition amount was but awarded an award of financial assistance for making the tuition due (Tr. 534-535) The parent paid tuition for the 2009-2010 school year. (Ex. F; Tr. 535) The first payment was made on February 4, 2009, and the check was processed on July 1, 2009. (Tr. 535536; Ex. J)

The parent believed that progressed academically and socially during the 2009-2010 school year. He progressed from reading books for ages - to reading Hearing Officer‘s books. (Tr. 538-539) He was reading more sophisticated and complex books. He improved in , specifically his work on fractions and converting a written question into a equation. (Tr. 539) He socialized with children both in and outside of his class. (Tr. 540)

The parent testified that the classroom that was described by the DOE witnesses was not the same class she was shown. (Tr. 543) There was no small group instruction in the class she was shown. (id.) The children were and graders, and seemed to have more issues than was testified about. (id.) Findings of Fact and Decision Legal Framework The IDEIA requires states that are receiving federal funds to provide ― all children with disabilities‖ a ― free appropriate public education‖ Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. Sec. 1412(a)(1)(A); see also Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 122 (2d Cir. 1998). A free appropriate public education must provide ― special education and related services tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'‖ Walczak, 142 F.3d at 122 (quoting Bd. Of Educ. v. Rowley, 458 U.S. 176, 207 (1982) Moreover, the law expresses a strong preference for students to be educated to extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular education classes cannot be achieved satisfactorily. Walczak

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being met. (Walczak, supra at 122) In New York, the responsibility for developing an Hearing Officer‘s appropriate IEP for a child is assigned to a local CSE. Parents are significant members of the IEP team. (Schaffer v. Weast, 126 S.Ct. 528, 532 [2005])

The legal standard to be applied to a parental request for reimbursement from a board of education for special education services obtained privately by parents of a child with a disability is set forth by the U.S. Supreme court cases regarding tuition reimbursement for private school placements. In School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985), the United States Supreme Court held that, where a school district fails to provide FAPE, reimbursement of tuition for a parent‘s unilateral private school placement is an appropriate form of relief under the IDEA. Subsequently, in Florence County School District v. Carter, 510 U.S. 7 (1993), the Supreme Court made it clear that school districts may be required to reimburse parents for unilateral placement in a private school even where the selected private school is not state approved. Thus, under the three-pronged Burlington/Carter test, when (1) a school district offers services that are ― inadequate or inappropriate,‖ (2) ― the services selected by the parents [are] appropriate,‖ and (3) ― equitable considerations support the parents‘ claim,‖ the district may be required to pay for educational services obtained for a child by the child‘s parents. This three-pronged test remains well established under prevailing law.

In New York State, the burden of proving that the DOE offered the student a FAPE is on the school district. Prong One – Did the Department of Education offer the Student a FAPE?

The DOE failed to prove that it provided the student with a FAPE for the 20092010 school year on both procedural and substantive grounds.

In determining whether an IEP is appropriate, the court must consider ―

(1) whether the [school board] complied with the procedural requirements of the IDEA, and

(2) whether the IEP was ‗reasonably calculated to enable the child to receive educational benefits.‘‖ M.H. v. New York City Dept. of Educ., 2010 WL 1904005, *1 (S.D.N.Y., May 10, 2010) (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) Hearing Officer‘s

(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982))). To meet this standard, an IEP must ― set out the child‘s present educational performance, establish[] annual and short-term objectives for improvements in that performance, and describe the specially designed instruction and services that will enable the child to meet those objectives.‖ Id. at 1 (quoting D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 504, 508 (2d Cir. 2006)) In addition, the IEP must be ― likely to produce progress, not regression, and . . . afford[] the student with an opportunity greater than mere trivial advancement.‖ T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (quotation omitted) Moreover, the ― students in a [recommended] class must have sufficiently similar academic levels and learning characteristics [such] that each child will have the opportunity to achieve his or her goals.‖ Walczak, 142 F.3d at 123 (citing 8 N.Y.C.R.R. § 200.6(a)(3)(i)). Procedural Violations

In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violations either

1) impeded the student‘s right to a free and appropriate public education, 2) significantly impeded the parents‘ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 20 U.S.C. Sec. 1415 (f)(2)(E) see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007. Insufficient Evaluations

Both the U.S. Code of Federal Regulations and the Regulations of the New York State Commissioner of Education require that in performing an annual review of an IEP and developing a new IEP, the CSE team must consider the results of the initial or most recent evaluation of the child, the strengths of the child, and the academic, developmental, and functional needs of the child, in addition to the parents‘ concerns for enhancement of their child‘s education. 34 C.F.R. § 300.324; 8 N.Y.C.R.R. 200.4(f)(1). The federal

Hearing Officer‘s

regulations further state that in conducting an evaluation, the agency must ― use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the child, including information provided by the parent,‖ and that a team should not rely upon any single measure or assessment when developing an appropriate educational program. 34 C.F.R. § 300.304 As part of any reevaluation, the IEP team ― must review existing evaluation data § 300.305 assessments are not included as one of the accepted methods of evaluation for the determination of current functional levels. See 34 C.F.R. pt. 300, Appendix A. A CSE‘s failure to perform an adequate evaluation prior to recommending a change in placement may constitute a basis for annulling the recommendation. Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 96-22; Application of a Child with a Disability, Appeal No.99-72.

Although this was a triennial review, the only evaluations conducted by the DOE were an updated social history, and a classroom observation. At the meeting the team had those as well as the Progress Report, and the privately obtained evaluation provided by the parents. the CSE assigned who completed the observation, did not participate in the review. In addition, while the CSE recommended and , it not only failed to conduct evaluations in either area prior to the meeting, but also did not contact current at or ask the parents to have evaluated. (Tr. 37, 85, 515) In fact, Ms. testified that the CSE only included in the IEP because it had no documentation that no longer needed the . (Tr. 37) It must be noted that the CSE could have ordered updated or evaluations at the meeting, but failed to do so, even though it could not fashion appropriate new or goals without them. (Tr. 72, 75)

Failure to Provide Materials to Teleconference Participant

In addition, individuals who participate in a CSE review by telephone must be Hearing Officer‘s afforded every opportunity for meaningful participation. As noted by the State Review Officer, telephone conferencing of participants at CSE meetings is permitted, provided:

2. Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting. During the meeting, all participants, including the child‘s and the parents, must hear all information provided by Committee members and other participants and must be able to discuss all issues with the CSE/CPSE

members.

3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child‘s , for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting. Similarly, the Committee should be provided with all relevant and related service provider reports....

Application of a Child with a Disability, Appeal No. 00-043 (Citing a memo to the field by former Assistant Commissioner Thomas B. Neveldine entitled ―

The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (IEP)‖, dated June 1992, the State Review Officer found that the participating by phone did not have access to the same material available to all others); Application of a Child with a Disability, Appeal No. 01-028.

The notes prepared by the CSE team at the meeting, as well as Ms. ‘s testimony, indicate that the team considered the social history and classroom observation, as well as a progress report from ,a report, and a private evaluation that had been commissioned by the parents. (Tr. 21, 513; Ex. M) Ms. could not recall whether all team members at the meeting had copies of all the evaluations and reports considered in drafting IEP. (Tr. 51) The DOE did not establish that it provided Ms. with the materials considered. In fact, the parent Hearing Officer‘s testified that the CSE did not discuss the materials in any meaningful way, did not read the report findings or recommendations to Ms. , and because the parent often referred the others to sections in the neurological evaluation to support requests for services for , she was left with the belief that even those present had not read the report. (Tr. 511, 560-562)

In addition, while the CSE asked Ms. her opinion about progress and needs, it did not consult her regarding the drafting of new goals for (Tr. 69-70, 511-512, 516). Ms. testified that the team did not even review the goals in 2008-2009 IEP with to determine whether he had actually achieved those goals. (Tr. 53-54).

Cumulatively, the DOE's failure to conduct evaluations in all of the student's areas of deficit, the failure to provide with all of the materials considered at the CSE review, and the failure to review the goals with or the parent amounted to a denial of FAPE for the 2009-2010 school year because they deprived the student of educational benefits and impeded the parents ability to fully participate in the development of an appropriate IEP. Substantive Violations The IEP The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130); in that it is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]).

2009-2010 IEP fails to address all of his areas of deficit. Despite well-documented difficulty with expressive and pragmatic , Ms. conceded that nothing in the description of his ―

Present Performance‖ in the IEP referenced this Hearing Officer‘s deficit. (Tr. 61-62). Moreover, despite the numerous references throughout the private evaluation to processing speed of academic information there is only a passing reference to his average‖ processing speed score on his evaluation in the ―

Present Performance‖ section of the IEP, and Ms. could not recall whether his was even discussed at the CSE meeting. (Tr. 77; Ex. 1-3; Ex. 4) The only way in which the IEP directly addresses is by providing for extra time to complete writing assignments and to receive double time on tests. (Tr. 71-72; Ex. 14-1) Goals

The CSE did not develop sufficient goals for 2009-2010 IEP. The goals developed were insufficiently comprehensive to appropriately address his needs and allow him to make adequate progress. Ms. testified that the IEP goals were based upon his areas of ; however, she also testified that that the CSE team did not review with Ms. whether he had actually achieved the goals listed on his previous IEP and that the goals were drafted after the meeting was over, without the input of the parents or Ms. . (Tr. 39, 52-54). Moreover, the CSE failed to draft any goals to address weak expressive and pragmatic skills and speed, or to improve his memory and ability to self-monitor his own inattention, despite his well-documented in those areas. (Tr. 66-69). While the IEP provides for some management tools to address his , those hardly can be pointed to as ways of ameliorating his in this area. In addition, the CSE only drafted one goal for his and deficits, without any input from a , and did not include any goals for . (Tr. 37, 85, 515; Ex. 1) While Ms. testified that no one indicated goals were needed in additional areas at the meeting, she could not recall whether the parents or had even been asked whether they had issues with the goals, and the parent stated that they were not asked. (Tr. 39-40, 69-70).

In addition, the CSE failed to include appropriate and measurable goals in his IEP. None of the goals in the IEP except for one referenced a equivalent for Hearing Officer‘s measuring progress, leaving it unclear how his progress would be measured. (Tr. 65, 69; Ex. 1) Moreover, the only goal that referenced a grade, ―

In one year using a multi-sensory writing approach [ ] will write a 3 paragraph essay on a given topic demonstrating grade appropriate grammar, syntax, spelling, capitalization and punctuation,‖ did not which grade was meant by ― .‖ (Ex. 1). When questioned about this, Ms. claimed that since was in grade in 2009-2010, ― ‖ referred to a ― modified‖ level; however, since was writing on a level at the time of the CSE review meeting, it is unclear how could have been expected to make two years progress during the 2009-2010 school year, even with a modified curriculum. (Tr. 65; Ex. 1-3). The Placement

The class offered at was not appropriate to meet needs. First, it is too a setting and has too a student population for to attain meaningful educational benefit. Mr. testified that is ― the kind of student who would in a setting, [since] he is not a and is smart,‖ that his ability to function varies depending upon the size of the grouping he is in, and that he has a tendency to become and in . (Tr. 451, 454, 480, 492) Mr. , who is a certified general and education , testified that requires considerable individualized attention due to his , organization, and executive functioning issues, that he has remembering to ask for help, and that he with in school. (Tr. 577, 590-591, 613) Similarly, the evaluation commissioned by the parents noted that due to his ― , , and with organization, [ ] academic placement should continue to provide a and structured setting.‖ (Ex. 4).

There was also too a range of classifications in the class, including , , , and students, as well as a wide disparity in the functional levels of the students, who ranged from a to an grade level in reading and from a to a grade level in . (Tr. 219-220, 268, 329) Even though a was present in the classroom and the testified that they differentiated instruction Hearing Officer‘s according to the students‘ needs, given the range of classifications and functional levels of the students, this class would not have provided a placement with sufficiently similarly functioning peers so as to ensure he received the individualized attention he needed to make academic progress. Ms. did not provide testimony suffcient to establish that she had an understanding of needs in reading instruction, citing the Wilson method as the approach she uses. The parent submitted evidence from the DOE Administrator‘s Reference Guide to Understanding the Reading System stating that is meant for ― students in grades who are in the in reading and have not mastered basic decoding skills‖ such that they are ― at risk of reading failure.‖ (Ex. N-6, N-10). Since was decoding on a grade level at the time of the CSE review and was described by his as a reader, would not have been appropriate for him. (Tr. 428; Ex. 1). Moreover, Ms. testified that the only instruction she had had in was an hour-long professional development course. (Tr. 283). The DOE Administrator‘s Reference Guide requires that attend at least a ― three-day training‖ on the method in order to teach in public schools; Ms. clearly did not have the requisite training. (Ex. N-7).

Additionally, both Ms. and Ms. testified that there were issues in the class. (Tr. 266, 356-357). While Ms. claimed she ― managed‖ the issues in the class, she testified that some of the students had exhibited confrontational , use of excessive profanity, frustration and walking around the classroom in the past, and Ms. testified that she had problems with verbal aggression in her class during the 2009-2010 school year. (Tr. 266, 356-357). Although the student's in class were noted to call out and at times were asked to leave the classroom, none of their approached what was described by the two . Since is easily distracted, the level of disruptions would greatly interfere with his ability to learn. The DOE also did not present any evidence that these students would provide a functionally appropriate social group for who is described as quiet and shy. Hearing Officer‘s

Based on the of the school, the of students, the range of disabilities and levels, and the failure to adequately prove how needs would be met, the placement offered to was not appropriate to meet individual needs and therefore deprived him of a FAPE for the 2009-2010 school year. Prong Two- Appropriateness of Parent’s Placement

Once it is established that a school district did not offer a FAPE, it must be considered whether "the private education services obtained by the parents were appropriate to the child's needs." Walczak, 142 F.3d at 129. As noted, parents who seek reimbursement bear the burden of demonstrating that their private placement was appropriate, even if FAPE was not offered. See M.S., 231 F.3d at 104. Nevertheless, "the standard applied to determine the appropriateness of parental placement is less restrictive and subject to fewer constraints than that applied to the school authorities." C.B. v. New York City Dept. of Educ., No. 02 Civ. 4620, 2005 U.S. Dist. LEXIS 15215, 2005 WL 1388964 *53 (E.D.N.Y. 2005). For instance, "an appropriate private placement need not meet state education standards or requirements." Additionally, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Nonetheless, IDEA's requirement that an appropriate education be in the mainstream to the extent possible, see 20 U.S.C. § 1412(5)(B) (1994), remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate.

Subject to those limited exceptions, "the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Frank G., 459 F.3d at 364. Courts should "consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs," and whether it is therefore likely that the child will progress, rather than regress, in the alternative school. Id. "Ultimately, the issue turns on whether a placement-public or private-is "reasonably Hearing Officer‘s calculated to enable the child to receive educational benefits." Id. (quoting Rowley, 458 U.S. At 207).

The parents proved that was an appropriate placement for for the 2009-2010 school year. The school addresses the needs of primarily students. features small classes of students or fewer and normally has assigned to each class. (Tr. 424-425). Classrooms in the school are equipped with , , and , which are used across the curriculum in all classes to foster a - environment, and which are used to address and auditory processing issues. (Tr. 455) in the School receive extensive training in reading, writing, and management, as well as support in the form of weekly faculty meetings and supervision meetings with the co-directors of the School. (Tr. 418-420).

classes during the 2009-2010 school year were made up of and year olds and ranged in size from to students, with one or two depending on the size or of the class. (Tr. 492, 580)

Having classes of similarly-classified students, with an extra full-time or in his classes, allowed the school to effectively address need for constant check-ins and redirection in the classroom to help him stay focused. (Tr. 595, 613, 616) Frequent intervention also allowed his to help him improve his ability to recognize when he was off-task and to ask for help when he needed it. (Tr. 592-593). The school environment helped alleviate tendency to get distracted during transitions because there were only students in any given stairwell during transitions and the distances between classes were relatively short. (Tr. 496, 600) Similarly, the presence of only - other students with - during his lunch periods allowed him to transition back into the school day, despite his following and in groupings. (Tr. 455-456).

addressed , , and working through frequent reinforcement of material and directions, by providing him with support in his courses and a - environment, by grouping him with similarly functioning peers , and by Hearing Officer‘s providing him with keyboarding instruction to allow him to edit and manipulate his written work. (Tr. 452, 455-456, 465, 485-487, 630) Frequent check-ins with throughout his classes allowed his to make sure that he understood instructions sufficiently and had processed the material presented in class. (Tr. 440) executive functioning and organization issues were also adequately addressed through the use of homework planners regularly checked by the homeroom . and binder checks. (Tr. 442)

also accommodated service needs. He received in a group of once per week on a push-in basis and twice per week on a pull-out basis. (Tr. 448) His push-in services were provided during - courses to provide the extra support he needed to make sense of the material. (Tr. 447-448). did not receive at nor did his find that he demonstrated any need for it during the 20092010 school year. (Tr. 449, 481-484)

Overall, the record establishes that provided with an educational program designed to meet his individual needs. In fact, progressed in his writing skills, in his ability to express more complex ideas, in working independently and with his overall organization. (Tr. 445-446, Ex. K) Equitable Considerations

To receive an award of tuition reimbursement, parents must show that a weighing of the equities supports an award of tuition reimbursement. ―

[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.‖ Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir.

2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, ― the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.‖ N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A ― major consideration in deciding whether Hearing Officer‘s the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.‖ Id. (quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).

Here, the parents cooperated with the CSE by actively participating in the CSE review, providing privately obtained evaluations, persevering at trying to observe the offered placement despite less than easy access to view it, going to observe the placement, writing numerous letters that went unanswered to the CSE expressing their concern about the placement, asking for more information, remaining open about an appropriate placement and timely notifying the CSE of their intent to place privately and seek reimbursement. (Tr. 526-528, Ex. C,D,E) The parent never received a response to any of her letters. (Tr. 530) The testimony and documentary evidence reflecting the parents' statements and actions show that the parents may have been concerned about a change in educational placement for a variety of reasons, but were open about an appropriate placement offer. The testimony of Ms. , in the context of the entire record, is not credible or reliable with regard to the conversations the DOE put forth as having taken place between the parent and Ms. . The parents did nothing to impede the DOE's ability to offer a FAPE to , the tuition reimbursement amount of is a reasonable one, and accordingly they should be awarded tuition reimbursement for the 2009-2010 school year.

ORDER

1. The New York City Department of Education failed to provide with a FAPE for the 2009-2010 school year.

2. The Parents' unilateral placement at the for was appropriate.

3. Equitable considerations weigh in favor of awarding the parents reimbursement for the 2009-2010 school year, within two weeks of the date of this order.

4. If the CSE has not conducted a evaluation since the May 14, 2009, Hearing Officer‘s

IEP review, it shall conduct one within three weeks of the date of this order.

5. If the CSE has not conducted an evaluation since the May 14, 2009, IEP review, it shall conduct one within three weeks of the date of this order. Dated: December 13, 2010

_____________________________

Impartial Hearing Officer Hearing Officer‘s

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.

Hearing Officer‘s

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 12, 2010

PARENT

A Impartial Hearing Request, 3/19/10 6 pages B Department of Education Answer, 3/23/10, 4 pages C Letter to with Fax Reports, 10/10/09 - 10/20/09, 3 pages D Letter to with Fax Reports, 08/27/09 – 8/28/09, 5 pages E Letter to with Fax Reports, dated 6/8/09 - 6/11/09, 5 pages F Affidavit of 02/16/10, 1 page G 09-10 Enrollment Contract, 2/1/09, 2 pages H Attendance Report, 9/9/09 to 4/16/10, 1 p. I Class Schedule, 2009 to 2010 1 page J Cancelled Checks, 2/4/09, to 1/25/10, 8 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 5/14/09, 13 pages 2 Final Notice of Recommendation, 5/28/09, 1 page 3 Social Update, 1/14/09, 2 pages 4 Evaluation dated 1/8, 1/13, 1/15, 1/22, and 1/28/09, 26 pp. 5 10/21/08, 1 page 6 Evaluation and , 5/1/09 and 5/13/09, 2 pages 7 Report, 9/2008 to 6/2009, 23 pages

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 27, 2010

PARENT

K for Reports, Fall 2009- 2010, 23 pages L for Reports, Winter 2009-2010, 2 pages

DEPARTMENT OF EDUCATION

None

Hearing Officer‘s

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 11, 2010

PARENT

M IEP Conference Sum , 5/14/09, 2 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 21, 2010

PARENT

N Administrator's Reference Guide, a Tool to Understanding The Reading

System, 31 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I DOE Closing Brief, dated 10/25/10, 11 pages II Parent‘s Memorandum of Law, dated 10/25/10