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: January 12, 2011

January 21, 2011

February 16, 2011

March 7, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 12, 2011

Student

Student

DOE

School, CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 21, 2011

Student

Student

of the School (via telephone) — Student

at the School (via telephone) — Student

DOE

Classroom,, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 16, 2011

Student

Student

at the School (via telephone) — Student

ERIN, Classroom at the School (via telephone) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2011

Student

Student

DOE

of, (via telephone) — DOE

On October 20, 2010, I was designated by the New York City Department of — DOE

Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of and the parent through her who initiated this hearing on October 20, 2010. On November 18, 2010, I scheduled this hearing for December 16, 2010. On December 9, 2010, the parent amended their due process request. Hearings were held on January 12, 2011, January 21, 2011, February 16, 2011, and March 7, 2011. The extension date was extended for submission of post-hearing memoranda by the parties. Appended to the record are lists of persons in attendance and documents entered into the record.

The hearing was requested by the parent through her to challenge the March 24, 2010 and June 15, 2010 review and the recommendation of the Committee on Special Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the School for the 2010-2011 school year. The School is a for profit corporation, (Tr. at 231) and was not approved by NYS Education Department, but was accredited by . (Tr. at 235) The School has a small class program with a staffing ratio of or students and and . (Tr. 364) The parent brought the hearing seeking tuition reimbursement for the 2010-2011 school year in the amount of $ (Exh. F at 1) The parent submitted a letter from the School indicating the parent paid $ by December 8, 2010. (Exh. G)

BACKGROUND

is a year old who is currently in grade and is classified as and on a CSE review conducted on June 15, 20100. (Exh. 18) classification is not in dispute. (Tr. at 662) is currently attending a school not approved by the New York State Education Department. attended the School from through grade for the 2005-2006 through the 2010-2011 school years. (Tr. at 531)

The parent related that was from on October 2001 at age of years as the parent was told he was born in . The parent related that was in an with other children. (Tr. at 516) The parent later learned that he was year old when he was . She noted that when she brought to to his was diagnosed with to , , , and . (Tr. at 517) She noted that had expressing and had been receiving education services of (“ ”), and (“ ’) since he was years old through (“ ”) and had attended school where his recommended a education (“ ”) for to address his in . (Tr. at 518) attended the School from age to and recommended that he receive (“ ”) to help and his . (Tr. at 520) Because his improved was able to discontinue (Tr. at 520) ( ) provided did not recommend that attend mainstream class. (Tr. at 522) The parent recalled that due to the a test indicated that was not born in , but was born in so he spent 3 years at School. (Tr. at 528) When he during his last year in preschool the parent stated she considered , the school attended, but there was no special education program suitable at . (Tr. at 525) The parent stated that she visited a special education class at , but did not consider the class appropriate and she visited a special education class at , but was not accepted at . (Tr. at 526) At age was placed in the School for the 2005-2006 school year in a class. The parent recalled that because there was no school placement for the years 2006-2007 to 2008-2009 so remained at the school. (Tr. 533) For the 2009-2010 school year, the parent recalled there was a public school placement offered, but she decided the placement at was not appropriate so he remained at the School. (Id.)

was evaluated when he was in grade. On various dates in October 2008 and November 2008 a evaluation was conducted. The noted that received and twice a week at the School and that he was delayed in expressive and receptive , , intelligibility, and pragmatic/social . (Exh. 25 at 3) His general cognitive ability as assessed by the Wechsler Intelligence Scale for Children–Fourth Edition, (“WISC-IV) was “well below range to range” and with a verbal comprehension score of in the percentile, a perceptual reasoning score of , in the percentile, a working memory score of in the percentile, a processing speed score of , in the percentile. (Exh. 25 at 11) The noted that his nonverbal skills and processing speed were in the range, but his overall verbal skills were significantly (Exh.25 at 4) The Woodcock-Johnson- Edition (“WJ-III”) was used to assess reading. The noted that ability to read aloud, and his speed and accuracy were in the range and his comprehension was in the range. (Exh. 25 at 7) His writing skills were assessed by the WJ-III and the noted that “ had great producing coherent sentences.” (Exh. 25 at 8) His mathematics skills were assessed by the WJ-III and he scored in the range. (Id.) The noted that had a evaluation in 2005 when he was and another evaluation in 2007 and that he had a history of receptive and expressive deficits as well as . The recommended a small classroom with student to ratio and noted if were placed in a larger classroom he would have following the classroom agenda and would . (Exh. 25 at 10)

The and progress report from the School dated October 2009 indicated that received twice per week for 30 minutes per session once in the room with a peer and once in the classroom and a group session in the classroom for 30 minutes led by the . (Exh. 10) The listed the goals. (Id.) The progress report from the School dated October 2009 indicated received once a week for 30 minutes with a peer and that he participated in the once a week led by the for 30 minutes for - skills and listed the goals. (Exh. 11) The School Spring Report 2009-2010 indicated that was placed with students in a homeroom class equipped with a to enhance his processing and attention skills and described progress in academic. (Exh. 21)

The progress report from the School dated May 2010 indicated received once a week for 30 minutes with a peer and he participated in the once a week for 30 minutes and that these sessions focused on , , fine motor and graphomotor skills, gross motor development and self help skills. (Exh. 22) The noted that the was designed to adjust arousal level with different sensory tools and that he benefited from sensory breaks to help maintain alertness and improved attention and initiation. (Exh. 22 at 2) The and progress report from the School dated May 2010 indicated that received twice per week for 30 minutes with a peer and a weekly session of group led by the for 30 minutes within the classroom. (Exh. 23)

On March 24, 2010 CSE met and classified as and and recommended a class with a student to ratio of in a school and recommended individual once a week for 30 minutes and once a week for 30 minutes in a group no larger than 2 and individual twice per twice a week for 30 minutes per session and twice per week in a group no larger than 2. (Exh.^[5] at 16) The March 24, 2010 Individualized Education Plan (“IEP”) did not recommend a 12-month school year. (Exh. further noted that CSE met again on June 15, 2010 to change the birth date of the and to add as a summer related service. (Id.) She maintained that parent and child’s current at the School participated at the June 15, 2010 IEP review along with the School , , the general education , parent member, special education and district representative. (Id.) She further maintained that the team considered the most recent evaluations and school reports. She noted that social history was not warranted and was outside the scope of the hearing. She further noted the fact that the School’s was not noted on the due process complaint and was outside the scope of the hearing. (IHO Exh. II at 8) She maintained that June 15, 2010 IEP goals were measurable and were unchanged from the March 24, 2010 goals. (IHO Exh. II at 6) She further maintained that March 24, 2010 IEP did note the need for both and over the summer (Exh. 5 at 15). She explained that the reason CSE met on June 15, 2010 was to add and for the summer; however, the parent did not want over the summer as evidenced by the June 15, 2010 IEP that only recommended over the summer to prevent regression and the minutes of the CSE meeting (Exh 19). (IHO Exh. II at 9) The district’s counsel maintained there were no procedural errors on the June 15, 2010 and the fact that no related services were provided over the summer was not a lack of a free and appropriate public education (“FAPE”) as the summer services were separate from the issue of FAPE for the 2010-2011 school year. (IHO Exh. II at 11) On June10, 2010, a Final Notice of Recommendation (“FNR”) was made for to attend (the ) which is located at , , . The district’s counsel maintained that was appropriate and that the classroom and would have been able to implement measurable goals. (IHO Exh. II at 12) She maintained that had all of the supports and programs required by the IEP. On June 10, 2010, a seat was offered at for the class on the FNR. (Exh. 14)

The parent’s counsel challenged the March 24, 2010 on the amended due process complaint dated December 9, 2010. She alleged the March 24, 2010 meeting was not properly constituted as the general education and special education would not have been able to implement the proposed program. She argued that the birth date of on the IEP was erroneous. She asserted the goals were inadequate and lacked specificity and lacked methods of measurement. She alleged that the March 24, 2010 IEP stated that required summer services, but the March 24, 2010 IEP failed to recommend summer related services. (Exh. 15 at 1) She alleged that the parent wrote to CSE to request the change in the birth date and the need for and during the summer. (Exh. B) The parent’s counsel argued that June 15, 2010 IEP corrected the birth date to June 15, 2010, yet the CSE who recommended summer services did not offer related service authorizations (“RSA”) for the summer related services. (Exh. 15 at 1)

The parent disagreed with the recommended placement and program and maintained that District failed to provide FAPE as the placement at was housed in a very large building which was not appropriate for needs. The parent’s counsel asserted that would be placed in a class with more than students in lunch, gym, recess and specials and that required a highly structured small group placement throughout the day. (Exh. 15 at 2)

THE DISTRICTS CASE

The District’s case was presented in the testimony of , School , , Special Education for and , at . Ms. testified that she had worked for the Dept. of Education since 1997 and she worked for CSE for the past 3 years. (Tr. at 19) She had a Master degree in School and was certified and licensed by NYS in . (Tr. at 20) She stated that she participated in the June 15, 2010 CSE annual review as School . She recalled a general education and a parent member were present. She recalled Ms. participated as district representative and licensed special education assigned and a special education from , the of and the parent participated in the June 15, 2010 CSE meeting. (Tr. at 24) She stated the team reviewed the progress report, (Exh. 21), the progress report (Exh. 22) and the progress report (Exh.

23) which were updates of ’s progress since the March 24, 2010 IEP and recalled that the staff indicated he progressed, but he continued to have significant needs and required support. (Tr. at 27) She recalled that the staff at the School maintained needed summer services for related services. (Tr. at 25) She stated that the team determined that should be placed in a class with a ratio of or students and a education and a education . (Tr. at 29)

She noted that had that impacted his functioning and required a small classroom and noted required provided 4 times per week and to meet his sensory processing needs. (Tr. at 31) She stated that the academic management needs included redirection, repetition, visual prompts, the use of manipulatives and preview and review of instruction materials. (Tr. at 32) She noted that visual reminders helped him focus. She recalled that academic goals were measured by observation. (Tr. at 38) Ms. maintained that she and the parent, ’s classroom , and the special education gave input towards the goals and the goals were developed by the School. (Tr. at 39-41) She stated that sessions were added over the summer because ’s felt he would regress without sessions over the summer. She further stated that the felt he would regress without sessions over the summer, but the parent did not want sessions during the summer. (Tr. at 43) She stated that she reviewed the goals with the parent that mirrored the March 24, 2010 goals but and parent felt the goals should remain the same as the goals were appropriate. (Tr. at 45; 49) She acknowledged that June 15, 2010 IEP meeting was a briefer meeting than the March 24, 2010 IEP meeting, but the parent agreed with 12-month service of and the date was changed to reflect the correct date. (Tr. at 50)

On cross Ms. recalled that the special education assigned to CSE participated in the March 24, 2010 and the June 15, 2010 IEP. Ms. stated that the special education had taught in a classroom in 2007. (Tr. at 58; Exh. 5,

18) She stated that she relied on the School observation to determine the instruction level of at in decoding. (Tr. at 61) She acknowledged that as a child with that listening comprehension was potentially important, but reading comprehension goals were used when student could read. (Tr. at 62) She acknowledged that page 15 of the March 24, 2010 IEP recommended summer services of and to prevent regression, but the March 24, 2010 did not include summer services of and . (Tr. 64) She acknowledged that although was reading at a grade level his June 15, 2010 IEP the annual goal was to improve his reading to grade level (Exh. 18 at 6) and in her experience children did not gain 2 years improvement in reading over the course of 1 year to improve reading to a grade level. (Tr. at 67) She acknowledged that June 15, 2010 IEP promotional criteria indicated would achieve 75 percent of grade in reading and math. (Tr. at 70) She acknowledged that had sensory concerns which would be met with testing in a separate location there was no significant . (Tr. at 72) She further acknowledged that the June 15, 2010 IEP mandated 35 periods with a student to staff ratio of , yet there was no information as to how would refocus after unstructured time. She agreed that had attention issues and that the School had a . (Tr. at 74) She agreed there was no spelling goal and no goal for executive functioning. (Tr. at 78) Ms. explained that the School was in session for 10 months and a camp was in session during the summer. (Tr. at 80) She further explained that was not a student who required 12 months of school. (Tr. at 81) She noted that IEP did not mandate a , but the School was equipped with an in each classroom. (Tr. at 83) She further noted that an IEP would recommend a after a determined the student needed a . (Tr. at 86)

testified that that she was the Special Education in ’s proposed grade class and that she was in the process of obtaining a Master degree in special education and had a Transitional B certification. (Tr. at 98) She stated that proposed class was a - class with education students and a . She stated that she spoke continuously with the and s. (Tr. at 99-100) She further stated that on the first day of school there were student aged to whose academic functioning levels ranged from lower to grade. (Tr. at 101) She noted that now students were in her class. (Id.) She stated that the classifications of her students included , and and . (Tr. at 102) She described her classroom that had a math center, a reading center and an . (Tr. at 104) She explained that there were teaching in the school and there were 2 gyms for her class on the and first floors. (Tr. at 105) She noted that the and graders had lunch together with both general education and special education students. (Tr. at 106) She explained that there were constant opportunities for individual attention. She further explained that she divided her class into smaller groups to provide mini lessons for students who need individualized help. (Tr. at 108) She maintained that had attended her class she could have met his special education needs and he would fit in her class in terms his levels of academic ability. (Tr. at 114) She noted that sensory integration difficulties and was a visual learner and that she used chunking to give information in small increments and provided differentiated instruction. (Id.) She noted that she used a lot of manipulatives to assist in learning. (Tr. at 115) She noted that she had a - student who became . (Tr. at 117) She explained that she would partner with a buddy because he had a tendency to fall a lot. (Tr. at 119) She maintained that she used a based curriculum and she could implement goals. (Tr. at 120-129) She further maintained that the goals were measurable. (Tr. at 131) She noted that she used graphic organizers. She further noted that she was familiar with the related service s and opined that the related service s would have been able to meet his goals. (Tr. at

134) She stated that if required breaks during testing or class she would allow the breaks to allow him to stretch to help him relax. (Tr. at 135) She maintained that she would have provided testing accommodations, (Tr. at 140) and based on his IEP could have been provided with an appropriate education. (Tr. at 141) She explained that had other schools in the same ( a charter school that serviced school students and a charter school for through grade) in addition to the grade students in the . (Tr. at 145) She further explained that there was an extended period 35 minutes of instruction offered to her students from to . (Tr. at 149)

On cross Ms. stated that she had experience teaching grade during the summer of 2010. (Tr. at 152) She acknowledged that at the beginning of the school year there were students and more students joined her class. (Tr. at 154) She acknowledged that there were less than student in the and there was a large cafeteria. (Tr. at 156) She stated that students had and sessions. (Tr. at 158) She stated that students were classified as and student was nonverbal with a classification of on the first day of school and student had . (Tr. at 168) She acknowledged that during lunch, gym, health, technology, recess and her prep periods she was not with her class. (Tr. at 172-178) She was not aware if a special education taught science or gym. (Tr. at 179) She explained that when she taught a student individually the taught the rest of the class of students. (Tr. at 182) She was not aware of the educational background of the . (Id.)

Ms. , of , the , testified that she had been the for 6 years. (Tr. at 685) She noted that the had that separate schools: that serviced grades through grade and the School serviced grades through . (Tr. at 690) She noted that the schools all utilize shared space including a multipurpose area and the gym. (Tr. at 700) She noted that the students were accompanied to their related service sessions by their s. (Tr. at 701) She maintained that her grade students never have contact with the grades through . (Tr. at 707) She explained that the students from grades through grade arrived at and the grade students arrived at through the same A. (Tr. at 712) She stated the students from the School arrived at through . (Tr. at 714) She stated there were staggered times for the schools in the same . (Tr. at 715) She maintained that the students in do not interact with the school students at the School. (Tr. at 726) She explained that there were no students in or grades in the because the school was phased out 2 years ago. (Tr. at 731) She described the school encompassed Street to and to . (Tr. at 738) She stated that the students from the school wore different , (Tr. at 749) and that she and her the and . (Tr. at 752)

THE PARENTS’ CASE

Ms. the parent; , the of the School, , for the School, , at the School, , and at the School, and , of the . and testified support of the parent’s claim for funding or tuition reimbursement for the unilateral placement of in the School. The parent’s counsel contended that the June 15, 2010 recommendation of a special class in a community school with a staffing ratio of 12:1:1 with once a week for 30 minutes in a group no larger than 2; individual once a week 30 minutes; twice a week for 30 minutes per session in a group no larger than 2 and individual twice per week for 30 minutes per session did not meet special education needs and as well as his and disorder, his attention and his sensory processing needs. The parent’s 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 $ (Exh. F) The parent believed that the School placement was appropriate and that the equities favored her.

, of the School, testified that the School taught students from through grade. (Tr. at 210-212) She stated that next year there would be a sixth grade and that that cohort of students would go on to grade and grade. (Tr. at 213) She stated that many students at the School had , , social awareness issues, sensory issues and executive functioning issues in the planning areas and organization areas. (Tr. at 214) She noted that the staff used a team approach and meets every other week to discuss the needs of the individuals in the class. She further noted that the needs would be met by sensory tools such as a and the unit allowed the to exceed the . (Tr. at 216) She stated that the entire staff met each Wednesday to address behavior issues. She further stated that the and s presented the staff with methods to help children regulate themselves such as yoga. (Tr. at 217) She maintained that staff used a consistent approach and consistent terminology and consistent modification and that benefited from consistency. (Tr. at 219) She noted there was an adaptive PE gym to assist the gym . She further noted that the school used a multi-sensory approach because everything was presented as visually, auditorily and manipulatively as possibly. (Tr. at 226)

On cross, Ms. stated had been at the School for 4 years. (Tr. at 229) She acknowledged that math did not have a license or certification in special education. She maintained that his was certified in special education. (Tr. at 230) She noted that the parents signed the contract on January 31, 2010 and paid a deposit of $ on February 18, 2010. (Tr. at 233)

testified that she had a Master’s degree in Special Education and she was grade Special Education for 2009-2010. She stated that participated in the March 24, 2010 IEP meeting and the June 15, 2010 IEP meeting. (Tr. at 240) She recalled that the reports from fourth grade from School were presented to the CSE. (Tr. at 241) She testified that struggled in school with and as well as and . (Tr. at 243) She stated that required breaks and body breaks to keep him actively engaged. She further stated that he required a consistent approach by all his . (Tr. at 248) She explained that she used a , and to help organize him. (Tr. at 250) She stated that she wrote a 12month rationale for because it was useful for him to receive services over the summer. (Tr. at 259)

On cross Ms. could not recall a discussion of 12-months of education at the March 24, 2010 IEP or the June 15, 2010 IEP. (Tr. at 261) She stated that she did not disagree with the goals developed by the June 15, 2010 IEP. (Tr. at 272) She could not recall that the parent stated that she did not want over the summer during the June 15, 2010 IEP meeting. (Tr. at 272)She did not recall a discussion of goals during the June 15, 2010 IEP, but recalled the meeting was to discuss the summer services. (Tr. at 279) She stated that the goals were discussed at the March 24, 2010 IEP. (Tr. at 283)

, a certified Education employed by the School for 3 years, testified that she was Education for the grade for 2010-2011 and her had an undergraduate degree in . (Tr. at 324) She stated that there were students in her class. She stated that she taught writing, arts, social studies, science, health and was in her literacy group. (Id.) She described the that into her class included a ,a , the to and social skills. (Tr. at 326) She described ’s deficits included based issues, body awareness issues and difficulty initiating writing tasks. (Tr. at 329) She noted that progressed in self regulating his body. (Id.) She explained that the entire staff at used “ isms” e.g., “stacking blocks” to help organize ’s body to remind him to place his back against the chair, his feet flat on floor and his hands on desk like stacking a block. (Tr. 332) She described another “ ism” to regulate ’s system was called “how is your engine running?” (Id.) She explained that a “low engine” was used in the library with quiet voices and a “ engine” was used in the gym. She maintained the consistency of this approach used by the entire staff met his sensory needs. (Tr. at 334) She related that was grouped with children in her reading group with a similar reading level to and the children had a reading level. She opined that improved in decoding. (Tr. at 338) She noted that at lunch time was with grade students and at lunch duty. She further noted that the utilized the lunch time to facilitate conversation and that benefited from prompting from the to facilitate conversation. (Tr. at 341) She stated that she did not teach math, but she was told that he was grouped with peers who all functioned on a grade math level. She further stated that she was told that ’s math level was . (Tr. at 342) She stated there were no math goals in the June 15, 2010 IEP (Tr. at 347) She explained that the school was a small independent special education program that was based and . (Tr. at 348) She further explained that the entire population of the School was between children to children and that thrived in this environment. (Tr. at 350) She noted that tended to become with children in the lunch room because he if there was too much . (Id.)

On cross Ms. stated that neither her nor math possess a certification in special education. (Tr. at 359) She further stated that the students in her class had functioning levels of to (Tr. at 364) She stated that there were no nonverbal students in her class, but she did not know the classifications. (Tr. at 365) She further stated that she was not sure how many sessions of received. (Tr. at 387) She acknowledged that he did not receive individual sessions of or . (Tr. at 388) She further acknowledged that required support for his quizzes in her class and so she asked leading questions to assist him. (Tr. at 410)

, employed by the School for 5 years, testified that she was licensed and certified through (Tr. at 415) She stated that she provided twice a week with a peer. (Tr. at 416) She targeted his oral and utilized processing strategies for his expressive and receptive and his auditory processing. (Tr. at 416) She reviewed the June 15, 2010 IEP and noted that she was not contacting for her input as his . (Tr. at 417) She noted that he required a peer to work on social thinking and pragmatic . (Tr. at 418) She reviewed the March 24, 2010 IEP and the June 15, 2010 IEP noted that the goals on page 9 were also listed on the October 2009 report (Exh. 23) and that he had achieved the goals prior to June 15, 2010. (Tr. at 423) She noted that there was regression because did not receive goals during the year. (Tr. at 427) She noted that he made progress in the area of organization of and was working hard utilizing the strategies of receptive and expressive . (Tr. at 431) She further noted that had difficulty with concepts and with auditory information and that background noise and distractions can limit his success. (Tr. at 435)

On cross Ms. maintained that did not require individual . (Tr. at 448) She further maintained that she did not write goals in terms of the measurement of goals. She did not write the percentage of time the should be attained. (Tr. at 457) She stated that she charted ’s progress in his session notes. (Tr. at 460) She stated that she did not used formalized testing. (Tr. at 461)

, NYS licensed and certified , testified that she wrote the October 2009 progress report (Exh. 11) and she wrote the May 2010 progress report (Exh. 22) and that the goals on the June 15, 2010 IEP (Exh. 18 at 11,

12) matched the October 2009 goals and he had achieved those October 2009 goals by May 2010. (Tr. at 474-477) She stated that it was important to provide to with a peer because she was not just working on fine motor skills, but was also working on socialization. (Tr. 480) She maintained that progressed in initiating writing and improved in his awareness of his sensory need. (Tr. at 484) She explained that the classroom used her strategies and used a sensory based approach to accommodate needs. (Tr. at 487) She stated that there was a sensory motor gym and small fine motor rooms to work on grapho motor skills, fine motor skill, social interactions and postural truck control. (Tr. at 489)

On cross Ms. stated that was not listed on the schedule. (Tr. at 493) She further stated that she did not read ’s IEP because she did not use his IEP. (Tr. at 496) She maintained that benefited more from with a peer than individual session. (Tr. at 498) She further maintained that she did not use formal assessment or objective measures, but took notes. (Tr. at 505)

Ms. testified that she was and she when he was year. She noted that had been having educational since she brought him . (Tr. at 518) She stated that received and in . She further stated that he received services during and . (Tr. at 519) Ms. recalled that at age when fell into the jurisdiction of CSE she wanted him to go to public school because his attended public school. (Tr. at 524) She recalled CSE the team classified him as She explained that she placed in the School in September 2005 in . (Tr. at 530) He remained at the School for the next 5 years. (Tr. at 535) She recalled she attended the CSE meeting on March 24, 2010 and she recalled a discussion of summer services of and . (Tr. at 545) She further stated that she was present at the June 15, 2010 IEP meeting and noted that the meeting lasted 10 minutes. (Id.) She did not recall that there was a discussion of goals at the June 15, 2010 IEP meeting. (Tr. at 546) She stated that she telephoned the person responsible for and for the summer of 2010 and was told that due to a change in services that only District children would receive summer services. (Tr. at 548) She further stated that did not receive or for the summer and she did not receive a RSA for or for the summer. (Tr. at 549) She stated that her son had trouble understanding written or spoken. (Tr. at 551) She stated that had and had with articulation. (Tr. at 552) She further stated that he had poor body awareness and wearing a helped him regulate. (Id.) She explained that he had with input or his in space. (Id.) She noted that used - to make feel present in his . (Tr. at 553) She further noted was a very who looked or years than his age. She stated that had poor motor planning skills; he was clumsy and fell down a lot. (Tr. at 555) She stated that spoke in a very and could not formulate his thoughts into well. (Tr. at 554)) She further recalled that she wrote to Ms. , after she received the FNR to visit on August 24, 2010 to request information about and to arrange a visit, (Exh C) and did not receive a response. (Tr. at 550) She stated that she did visit the proposed class at in early September 2010 and she considered that students in the as well as the other schools with student in school and school all in the same was too large an environment for . (Tr. at 558) She was concerned that the school at was a with students in the in . (Tr. at 559).She wrote on September 15, 2010 to voice her concerns with the proposed placement in that the setting was too and and for because of his sensory issues. She voiced her concerns that the setting was only used during academics and would be mainstreamed for lunch, gym, recess, music and art and the teaching staff for those subjects were mainstreamed which did not meet his . (Exh. D) She explained that the placement at was extremely due to the large size of the student population, the large size of the because was a small child. (Tr. at 582) She opined that the School was an appropriate placement because progressed academically in reading and math. (Tr. at 588) She stated that she was in with the School and utilized their recommendations using working on his understanding and figures of . (Tr. at

598) She recalled that she bought a balanced wheel and a to assist his at . (Tr. at

599) She noted that she attended the workshops conducted by the School such as engine running to assist him in regulating himself. (Id.) She further noted that the 6 student she observed in the proposed class at was too restrictive and he was not appropriately placed with a - child. (Tr. at 602)

On cross the parent stated she did not feel at setting in a school was appropriate. (Tr. at 581) She maintained it was reasonable to sign the contract on February 18, 2010 and pay $ deposit to hold a space because she did not receive the FNR. (Tr. at 613) She further acknowledged that has never been placed in public school as he was in the School from 2005 to date. (Tr. at 613) She maintained she would have considered a school despite paying $ on September 8, 2010. (Tr. at 616) She stated that she observed the students from the 3 schools comingling during her visit to on September 8, 2010. (Tr. at 628) She agreed that the goals on page 13 addressed . (Tr. at 651) The parent agreed that did not receive individual sessions of , but the parent maintained that was provided all day during because all the School were trained in and sensory integration issues. (Tr. at 657) The parent did not recall if received individual at the School but maintained she wanted to receive during the summer and he required because he fell frequently. The parent noted that was worked on throughout the day at the School. (Tr. at 660)

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 (“LRE”) for the child.

The parent asserted many procedural flaws in the June 15, 2010 IEP: there was no discussion of the goals; no participation of the parent or the staff to develop the academic goals; the and goals were taken from the October 2009 progress report and and goals were met prior to June 15, 2010. The parent further argued that the IEP that resulted from the June 15, 2010 meeting was procedurally flawed because general education and special education would not have been able to implement the proposed program. I find there was insufficient information as to how the general education and special education would have been able to implement the proposed program. The parent’s counsel argued that June 15, 2010 reconvened meeting corrected the birth date to yet the CSE who recommended summer services of and did not offer a RSA for the summer related services of . The parent asserted there was no discussion of the goals as the June 15 2010 meeting was 10 minutes in duration. This testimony was not contested. The parent argued there was substantive flaws in the June 15, 2010 IEP in that the proposed placement at the 12:1:1 class at was not appropriate because the school size was too large and the environment of 3 separate schools housed in a single building was too noisy and would have not have been group appropriately in terms of his academic, social or emotional needs with a nonverbal child.

To support its burden to prove that prong (1) was appropriate the district argued that while school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 [2d Cir. 2003]) The district further argued that if a procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. ( J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) (IHO Exh. II at 4) The denial of FAPE occurs when procedural inadequacies either result in a loss of educational for the student or seriously infringe on the parent's to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y., 2005]) The district asserted that the proposed class with a staffing ratio of 12: 1: 1 provided the LRE which could make gains and have access to a mainstream community and the district must place the student in the LRE. The district argued that the IDEA required that the placement must be in the LRE 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. (IHO Exh. II at 18) The district counsel argued that 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 greater than mere "trivial advancement" Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; in that that it is likely to provide some "meaningful" benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). (IHO Exh. II at 12)

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

The parent’s counsel indicated in her post hearing brief that was not added on the June 15, 2010 IEP and CSE refused to issue a RSA for the . (IHO Exh. I at 2) The parent’s counsel asserted procedural errors on the June 15, 2010 included no social history, no psycho-educational evaluation conducted by CSE, no update or update conducted by the CSE. (IHO Exh. I at 8) The parent’s counsel also asserted that the June 15, 2010 CSE reviewed the progress report, (Exh. 21), the progress report (Exh. 22) and the progress report (Exh. 23) and yet the and goals listed on the June 15, 2010 were already met per report of October 2009. (IHO Exh. I at 14; 16) The parent’s counsel asserted that the June 15, 2010 IEP goals were copied from the March 24, 2010 IEP. (Id.) The parent’s counsel also alleged that that the reading and math goals indicated at the end of the year should be at a grade level, yet he started the year at a grade level. She noted there was no listening comprehension goal or a goal for attention and memory. (IHO Exh. I at 17) The parent’s counsel argued that the current in the proposed class had a Transition B certification and did not have sufficient experience to teach to and needs. (IHO Exh. I at 18) She further noted that June 15, 2010 IEP mandated 35 periods with a special education and his special education of the proposed class as was with her class less than 30 out of 40 periods. (IHO Exh. I at 20) The parent’s counsel asserted that the June 15, 2010 IEP was substantively deficient as he required a small school environment and there were approximately students attending . (IHO Exh. I at 22) The parent’s counsel argued that the IEP that resulted from the June 15, 2010 meeting was procedurally flawed because CSE was failed to consider the extensive documents that supported a placement in a highly structured environment and failed to use proper evaluative material. (IHO Exh. I at 2, 3) The parent’s counsel further argued that academic goals and the related service goals presented by the staff at were duplicated as the goals on the March 24, 2010 IEP without consideration that the progress attained. (Id.) The parent’s counsel argued that related services of and were not provided due to policy reasons and CSE refused to issue RSA for or despite the recommendation. (IHO Exh. I at 3) The parent’s counsel argued that the IEP that resulted from the March 24, 2010 and June 15, 2010 were procedurally flawed. (Id.)

The parent asserted that there was no discussion of goals in the June 15, 201 and the June 2010 goals were drafted without her participation. I find that testimony adduced at the hearing established that the parent and then current from the School did not participate in developing the IEP goals nor did participate in the drafting of the goals. I credit the parent’s testimony and the testimony of the staff that there was no discussion of goals during the June 15, 2010 IEP meeting. I find that page 14 of the June 15, 2010 IEP mandated 35 periods of special education per week in a special class and the recommendation was for a special class with a staffing ratio of in a school. I find full-time 35 periods of special education per week was not possible in a special class in a community school setting because would be mainstreamed for gym, lunch and specials. I find CSE had ample evidence of , his needs and in the reports and the reports from the staff from the School. I find and needs were not addressed on June 15, 2010 IEP.

The parent argued that June 15, 2010 reconvened meeting corrected the birth date to June 15, 2010, yet the CSE who recommended summer services of and did not offer a RSA for the summer related services of . I find that related services under the IDEA are supportive services and are to be provided a student with a disability to assist the child to benefit from his or her special education program pursuant to 34 C.F.R. Section 300.34. I find the denial of over the summer was a denial of FAPE pursuant to the definition of FAPE is special education and related services in 34 C.F.R. 300.17. I credit the testimony of the parent requesting for the summer. I find the June 15, 2010 IEP did not recommend summer services of pursuant to page 15 of the March 24, 2010 IEP. I find the failure to provide over the summer was denial of FAPE.

I find the hearing record is devoid of evidence supporting the appropriateness of a reduction in summer related services, and the lack special education services during the non-academic periods. I further find the lack of appropriate academic goals to address his processing, and his sensory processing needs and the outdated related service goals significantly impeded the parents’ to participate in the decision making process regarding the provision of FAPE.

I find that the district failed to establish that the parent and then current meaningfully participated the decision making process and I find the lack of CSE evaluations to support the reduction of special education services during non academic periods significantly impeded the parents’ to participate in the decision making process. I further find that the failure for CSE to consider the parent’s and classroom recommendation that required a full-time special education setting significantly impeded the parents’ to participate in the decision making process. Further, I find that the School was the for .

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

The parent must establish (prong 2) that the proposed parental placement is appropriate under the IDEA, i.e., that the school is offering an instructional program that meets the child’s special education needs. Testimony adduced at the hearing clearly demonstrates that the School is providing a small structured . The parents asserted that the School was appropriate because had made progress at the School. I note that progress in decoding and and goals was demonstrative. I further note that progressed in regulating his needs. It was noted that at the hearing that requires redirection and refocusing and that and impact on his classroom performance. The evidence indicated that required and received and and the and with the of the classroom to provide the classroom with strategies to in receiving education and make gains with and social pragmatics. Testimony adduced at the hearing established that used a consistent approach and consistent terminology and consistent and that benefited from consistency. I find the use of consistent approach and consistent terminology and consistent assisted in is needs.

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

The district’s counsel argued that the for-profit preclude reimbursement and moved to dismiss the parent’s due process complain. (IHO Exh. At 26-29) I find that the SRO ruled on the issue of the for-profit status. In Application of a Student with a Disability, No. 09-085. the SRO held that:

“In Forest Grove, the Supreme Court reaffirmed its holding in Burlington and courts have authority to "grant such relief as the court determines appropriate" (20 U.S.C. § 1415[i][2][C][iii]; see Forest Grove, 129 S.Ct. at 2494, 2496; see also Frank G., 459 F.3d at 368-69). The

Supreme Court further explained that if a district failed to provide a FAPE and the parent's unilateral placement was appropriate for the student, with respect to relief, the hearing officer must "consider all relevant factors . . .

in determining whether reimbursement for some or all of the cost of the child's private education is warranted" (Forest Grove, 129 S.Ct. at 2496; see Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 415-16

[S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. 2006]). In this case, although the parties do not dispute that the Academy is a for-profit entity (Pet. ¶ 28; Answer ¶ 31), in view of the statutory text and the case law discussed above, I cannot conclude that the parent is categorically barred by § 1412(a)(10)(C)(ii) from seeking relief in the form of tuition reimbursement at a for-profit school (Application of a Student with a Disability, Appeal No. 09-085.”

Based on the foregoing I deny the District’s counsel’s motion to dismiss and find the reimbursement or prospective payment is not barred is the school is a for-profit entity.

The prong of the test for tuition reimbursement (prong 3) is whether the equities favor the parent’s position. I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability and make available for evaluations. I credit the parent’s statement that she would have considered a placement in a community school if it was appropriate. I find that the equities favor the parent’s position.

ORDER

Therefore, it is hereby ordered that the Department of Education provide tuition reimbursement for the 2010-2011 school year upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Dated: April 28, 2011

_________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD JANUARY 12, 2011

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 10/19/190, 2 pp. 2 Due Process Response, 10/29/10, 3 pp. 3 Amended Department of Education Process Response, 12/8/10, 4 pp. 4 Notice of IEP Meeting, 2/5/10, 1 p. 5 IEP, 3/24/10, 16 pp. 6 CSE Meeting Minutes, 3/24/10, 1 p. 7 SBST Case Material Checklist 2010-2011, 1 p. 8 School Fall Report, 11/2009, 7 pp. 9 School Midyear Report, 2/2010, 5 pp. 10 School Plan, 10/2009, 1 p. 11 School Occupational Plan, 10/2009, 2 pp. 12 Classroom Observation, 11/5/09, 3 pp. 13 Notice of Deferred Placement, 3/24/10, 1 p. 14 Final Notice of Placement, 7/9/09, 1 p. 15 Amended Due Process Complaint, 12/9/10, 2 pp. 16 DueProcess Response, 12/14/10, 6 pp. 17 Notice of IEP Meeting, 5/13/10, 1 p. 18 IEP, 6/15/10, 16 pp. 19 SBST Case Material Checklist, 6/15/10, 1 p. 20 School Report, 5/2010, 10 pp. 22 Progress Report, 5/2010, 4 pp. 23 Progress Report, 5/2010, 5 pp. 24 12-Month Rationale, 4/23/10, 3 p. 25 Evaluation, 10/2008-11/2008, 13 pp.

DOCUMENTATION ENTERED INTO THE RECORD JANUARY 21, 2011

PARENT

A IEP, 2/24/09, 16 pp. B Parent Letter, 4/19/10, 1 p. C Parent Letter, 8/24/10, 2 pp. D Omitted E Fall Report, 2010/2011, 11 pp.

DEPARTMENT OF EDUCATION

26 School Degrees, Undated, 2 pp. 27 School Class Schedule, 2010/2011, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 16, 2011

PARENT

A IEP, 2/24/09, 16 pp. B Parent letter, 4/19/10, 1 p. C Parent Letter, 8/24/10, 2 pp. D Parent Letter, 9/16/10, 3 pp. E School Fall Report, 2010-2011, 11 pp. F School Enrollment Contract, 2010-2011, 2 pp. G School Affidavit, 2010-2011, 1 p. H School Attendance Report, 2010-2011, 1 p. I Parent Proof of Payment, 2010-2011, 7 pp. J Omitted K Parent’s Log Regarding RSAs, 7/8/10, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD MARCH 7, 2011

PARENT

L Special Commissioner Report, 5/19/10, 15 pp. M 2010 Schools In Need Of Improvement, 2009/2010, 2 pp. N Omitted O NYSED.GOV – Non Schools, 10/19/10, 8 pp.

DEPARTMENT OF EDUCATION

28 Plans for , Undated, 5 pp.

POST HEARING SUBMISSIONS

PARENT

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

DEPARTMENT OF EDUCATION

II Closing Brief of , 4/14/11, 30 pp.

Footnotes

[5] at 1) On June 15, 2010, CSE met again and classified as and and recommended a special class with a student to staff ratio of 12:1:1 in a community school and recommended individual once a week for 30 minutes and once a week for 30 minutes in a group no larger than 2 and individual twice per twice a week for 30 minutes per session and twice per week in a group no larger than 2. (Exh. 18 at 16) The June 15, 2010 IEP recommended related summer services of twice per week in a group of 2. (Exh. 18 at 1) THE POSITION OF THE PARTIES The district’s counsel maintained that District ’s CSE met on March 24, 2010 and June 152, 2010 with a duly constituted team and developed and an appropriate IEP for and classified as and and recommended a placement in a special class in a school in the (“ ”). (IHO Exh. II at 18) She noted that the March 24, 2010 IEP team composed the mandated members. (IHO Exh. II at 5) She