New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: January 18, 2011

March 1, 2011

March 2, 2011

March 28, 2011

Hearing Officer: Lana S. ‘Flame, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 18, 2011

Attorney — Student

Parents

Parents

Department of Education Attorney — DOE

Education Teacher Assigned (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 1, 2011

Attorney — Student

Parents

Parents

Attorney — DOE

Guidance Counselor (Via Telephone) — DOE

Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 2, 2011

Attorney — Student

Mother — Student

Father — Student

Dean of (Via Telephone) — Student

Teacher at (Via Telephone) — Student

Attorney — DOE

Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 28, 2011

Attorney — Student

Mother — Student

Relative — Student

DOE Attorney — DOE

The parents of , through their attorney, requested an impartial hearing on his behalf, in a letter dated October 20, 2010. The parents alleged that the New York City Department of Education (“DOE”) failed to provide a free and appropriate public education (“FAPE”) as required by the Individuals with Disabilities Education Act (”IDEA”), 20 U.S.C. 1400 et. seq., on both procedural and substantive grounds (Ex. A ). The parents sought “reimbursement for the unilateral placement” of their son at the School (“ ”) (Ex. A-6). An impartial hearing was held on January 18, 2011, March 1, 2011, March 2, 2011, and March 28, 2011. Both parties were represented by attorneys. Lists of the individuals who appeared and the documents entered into evidence are included in this decision.

EXTENSION REQUESTS

The parties jointly requested an extension of the compliance dates due to the availability of the witnesses on December 10, 2010 and it was extended to February 1, 2011. On January 18, 2011, the parties jointly requested an extension of the compliance dates due to the availability of the witnesses. The extension was granted to March 2, 2011. On March 1, 2011, the parties jointly requested an extension of the compliance dates due to the availability of the witnesses for a thirty day period and they were extended to April 1, 2011. (Tr. 167). On March 28, 2011, the parties jointly requested an extension of the compliance dates to allow time for post-hearing submissions. The extensions were granted to May 1, 2011 (Tr. 565). On May 2, 2011, the parties jointly requested an extension to allow time to complete the post-hearing memoranda and the time lines were extended to June 1, 2011. On May 31, 2011, the parties jointly requested an extension of the time lines to allow time for the record to be closed and for a decision to be rendered. The time lines were extended to July 1, 2011. On June 30, 2011, the parties jointly requested an extension of the time lines to July 31, 2011. The extension was granted to allow time for the record to be closed and a decision to be rendered. At the time of the requests the educational needs of the student were considered as well as the benefit or harm to both parties of granting the extensions.

BACKGROUND

is an year old student who was classified by the Committee on Education (“CSE”) on January 21, 2010, as a student with a and impairment (Ex. 12). There is no dispute about the student's classification (Tr. 5). The CSE recommended a Collaborative Team Teaching (“CTT”) program with a ratio of and and therapy. The CSE offered a placement in the School for Democracy and Leadership. The parents allege that the CSE failed to develop an appropriate Individualized Education Program (“IEP”) due to procedural and substantive violations. More specifically, the parents allege that was denied a FAPE because they did not receive a timely IEP, the CTT program was inappropriate to meet 's needs, the specific placement offered was inappropriate, the CSE did not rely on sufficient evaluations to assess 's current functioning levels, the composition of the CSE team was flawed, the IEP fails to identify how progress on the goals will be measured, the transition plan is inadequate, and the IEP references another person's name in a number of the goals (Ex. A).The parents rejected the proposed placement and unilaterally placed their son in School. The parents are seeking an order finding that the DOE failed to provide with a FAPE for the 2010-2011 school year, that the placement at was appropriate and “reimbursement for the unilateral placement” of their son at the School (“ ”) (Ex. A-6).

SELECTED DOCUMENTS ENTERED INTO EVIDENCE

IEP, January 21, 2010

The IEP indicates that the CSE met for an annual review. The CSE gave the classification of or impairment and recommended collaborative team teaching (“CTT”) in a community school, , with related services of and therapy twice a week, forty minutes per session, in a group of three. (Ex. 12-1, 12-17).

The CSE terminated as a related service. (Ex. 12-17).

The IEP lists the following participants: , Parent, , District Representative and Education Teacher, , General Education Teacher, , School Psychologist, , Parent Member, and ,

Teacher. The IEP indicates that Mr. participated by telephone and “non cert.gen ed or sp.ed.” (Ex. 12-2).

The student's academic performance and characteristics IEP section lists the student's decoding, writing and math computation levels, based on teacher observation, all were at the ninth grade level. Based on teacher observation his problem solving level was at the grade level. His listening was found th to be at the end of grade level based on a spring 2009 administration of the WIAT II

(Ex. 12-3). The text of this section states that according to standardized testing done in th the spring of 2009 when was at the end of grade, by the student's private school, th

, his word was at the grade level “while pseudo word decoding was significantly weak at the late grade level. ranged from 8th

th

grade (WIAT-II) to grade (Gates McGintie) on two silent measures and

th

vocabulary was found to be well developed at grade. In terms of writing, spelling was th th at the mid-grade level, and written expression was early grade” (Ex. 12-3).

is noted to have difficulty making connections and grasping main ideas, ing instead on details. “He has difficulty with inferential/abstract reasoning” (Ex. 12-4).

's management needs included: a approach; visual representation; graphic organizers and outlines; proof and editing checklists; teacher prompts to re ; teacher checks for understanding; encouragement to ask for clarification when needed; use of manipulatives for math problems; repetition and review; chunking material into manageable units; extra time for completion of work; preferential seating; new information presented within a structured and meaningful context and structure and clear expectations provided (Ex. 12-3, 12-4).

For the IEP section on 's / performance, his teacher described him as “very personable”. He is noted to do “very well in school and he has many friends. At times, [ ] loses and requires reminders to get back on task. A simple reminder is sufficient.” (Ex. 12-5). He does not present with behavior issues (id.). No / management needs are included and his behavior is indicated as “age appropriate” (id.). On one page of the IEP goals, is referenced both at the top of the page and within the body of each of the two goals, but a student, “ ” is referenced in the goals as well (Ex. 12-14).

The CSE considered general education with education teacher support services , but the IEP notes that “would benefit from additional support at this time” (Ex. 12-16). “A class in a community school was considered: however, this was deemed excessively restrictive” (id.).

According to the IEP, was to participate in State and local assessments with double time and directions read and reread (Ex. 12-17).

's transition plan includes attending a four year . No diploma objective was selected (Ex. 12-18).

CSE Meeting Minutes, January 21, 2010

The minutes list the same participants as the IEP, noting that , 's teacher is “Non-Cert Ed” (Ex. 11). According to the section on parent concerns,

's parent expressed that he is making progress, but still needs assistance with and math. He has an executive functioning disorder, but his organization is better with the help he receives. The document notes that the parent provided an August 2009 neuropsychological evaluation that was reviewed.

The minutes attribute the following statement to the parent: “I was never looking for a public school education. I have visited some public schools that you have recommended. I am looking for him to go to Winston and that Winston is paid for in large amount by the Department of Education.” According to the minutes the parent was informed that the CSE was creating an IEP and that the parents could use their due process rights (Ex. 11).

The teacher is noted as stating that is at the th grade level

th

independently and for instructional purposes. 's also is at a grade level. The teacher noted that is not a fast reader, his decoding has improved, but not his . 's spelling improved slightly to . grade level. struggles to organize his ideas into a paragraph or to put details into a larger context.

The teacher noted that needs frequent reminders to get back on task, although a [s]imple reminder is sufficient.” (Ex. 11-2). The parent agreed that there are no behavior problems (id.).

The team discussion of the classroom observation is noted. The CSE, parent and teacher discussed whether the student has sleep issues, the fact that he did participate, and although he needed to be “pulled in” by the teacher, he kept track of the class and wrote margin notes. The student was not receiving and therapy. (Ex. 11-2).

The minutes include the following: “Visited CTT last year- it was a good fit for [ ]-children were at all different levels. I felt he wouldn't get the services he needs. Even the counselor said he wouldn't get what he needed. Mom: The students weren't functioning on a enough level. He would be moving backwards.” (Ex. 11-

2). Another issue the parent noted was that in the schools she visited the students with

IEPS did not graduate (id.).

The mother was noted as saying that for his last year of school, should stay where he is. The mother thought that asking a child as a senior to go to another school is “traumatic”. (Ex. 11-2). She had no opinion between a recommendation of CTT or SETSS. The teacher asked what the size of the classes would be.

The minutes note that Ms. explained CTT, the parent's rights were explained and the parent voiced her disagreement with the recommendation. A deferral notice was given.

The recommendation continued and 2x40:3 (Ex. 11-2).

Neuropsychological Evaluation, August 8, 2009

At the end of 's grade year, his parents referred him for a neuropsychological evaluation “to determine the need for testing accommodations.” (Ex.

5-1).

was noted to be “functioning fairly well”, , although “there are some indications for the presence of irritability and occasionally becoming self-deprecatory.... there are no reports of difficulty.” (Ex. 5-2).

At that time he continued to struggle with math, word problems and understanding the main idea and with inferential reasoning while . He continued

“to display difficulty across all academic areas.” (Ex. 5-3).

Based on the WAIS-IV, 's intellectual skills were found to be in the average range (32%) while his visuo-perceptual reasoning abilities were in the low average range (12%). “His processing (e.g. ) skills, basic output, basic writing and skills were all performed in the average ranges.” (Ex.

5-9). The testing results indicated “areas of concern with regard to his level processing skills and math skills that are complicated by difficulties with processing speed, working , executive functioning and .” (Ex. 5-9). Based on his deficits in these areas, the neuropsychologist diagnosed with a Disorder, according to DSM-IV criteria. (Ex. 5-9). performed below expectations on a neuropsychological measure of sustained or vigilance, but since his parents' ratings were within normal limits and the teacher ratings had not yet been ascertained, the evaluator gave him a “provisional” diagnosis of Disorder, (“ ”),

Inattentive type. (Ex. 5-10).

The evaluating neuropsychologist recommended that continue at “a school or school designed for children with broad based disorders where the consolidation of basic academic skills such as , writing, and math can be mastered.” He noted that a more structured and smaller class setting, such as the one at School, continues to be “an ideal placement” for . (id.). He also recommended extended time (1.5) on all examinations, “[t]reatments with a and therapist, or a well-trained in helping children with level difficulties”, two to three times per week, tutoring to “fortify” basic math concepts once to twice weekly, a foreign waiver, and use of a computer for all writing related assignments or tests. The evaluator also recommended strategies to assist in organization difficulties, including, brainstorming techniques, previewing information, graphic organizers for information from lectures and texts, teaching how to break down tasks into their smaller parts, using a daily planner, and manipulatives for math (Ex.

5-11 to 5-14).

Classroom Observation, November 4, 2009

Carol observed during two classes at . The classes had a ratio of 12:1. (Ex. 7-1).

Ms. observed in his history class where he joked with the teacher, participated in the class discussion, but had difficulty expanding on his ideas, and required teacher prompting to write a homework assignment in his planner. He also was observed to put his head on the desk and after about five minutes was told by the teacher to wake up. (Ex. 7-1).

also was observed in his next class, Literature, where he underlined parts of the text under discussion. He was asked to read aloud and did so “without much expression”. He put his head on the desk and the teacher asked him to sit up.

THE DEPARTMENT OF EDUCATION'S WITNESSES

testified that she is a teacher assigned to the Committee on Education (“CSE”) 9, with about twenty two years experience as an educational evaluator, two years of being a resource room teacher, three years of being “an IEP teacher” for “at risk” general and education students, and experience teaching a self-contained class of students with many different disabilities (Tr. 18-22).

Ms. testified that her observation of in his two classes was about an hour and a half (Tr. 25-26). She did not discuss her observation with either teacher (Tr. 22, 54).

, the school psychologist typed the CSE minutes contemporaneously with the meeting to provide a “clear recollection of it afterwards” (Tr. 27).

Ms. testified that Mr. , 's teacher, was not a education certified participant at the CSE review (Tr. 31).

Ms. testified that the CSE had the student's “entire folder looking back at previous material”, but the most “immediate materials” used were the neuropsychological evaluation provided by the parent, the classroom observation, progress reports from the fall 2009 and standardized testing that had done in the spring 2009 (Tr. 31-32). Ms testified that the CSE members reviewed the neuropsychological evaluation for about twenty minutes at the meeting (Tr 54-56; Ex. 11). She did not recall when the CSE did its last psychological or educational testing of the student and adopted the neuropsychological evaluation as its own (Tr. 101).

Ms. recalled that Mr. , 's teacher from , reported that “comes across comfortable on a general level with and , but that when you get into level inferencing skills it affects both his and his and area” (Tr. 35). The psychologist developed the IEP goals related to based on “the information that was shared with us during the meeting as to the areas that continued to need work” (Tr. 40).

Ms. testified that the CSE reviewed related services. “Since was not receiving at , “there was no service provider to give us a report about that area” (Tr 38, 39). Ms. testified that the DOE did not try to conduct a and evaluation. Nor did she know when the last one was done (Tr. 100). She stated that the neuropsychological evaluation included and sections (Tr. 100-101).

The CSE reviewed the reasons for which received on his previous IEP, determined that the and issues no longer were “very positive” and removed from his IEP (Tr. 38-39; 95). Ms. testified that ’s self esteem was discussed at the meeting and the teachers commented that he was able to deal with the frustration related to his disability (Tr 57-58, 61). Everybody was in agreement with removal of the ” (Tr. 66; 95). She pointed to those statements in the neuropsychological report relied upon to reach the determination that no longer was needed (Tr. 61-62). Ms testified that the observation conducted by the CSE assessed whether ’s self-deprecating tendency had an impact on his academics and found no evidence of an impact (Tr. 65).

The goals were written out “more completely after the meeting”, after the meeting discussion of “the specific areas that he needs help in” (Tr. 40, 87). Ms. testified that the and goals were discussed at the meeting and , the school psychologist, developed them in writing, after the meeting (Tr. 89). Ms. could not speak to why an individual by the name of “ ” was referenced in these goals and stated that “it's clearly...an accidental error” (Tr. 89).

A transition plan was developed based on interview inventories given to the parent and the student, and subsequently discussed at the CSE meeting with the psychologist facilitating (Tr. 43, 73-74; Ex 6; Ex. 12- 18). Ms did not know why the diploma section was not marked on ’s IEP; nor did she recall whether the team discussed his expected graduation date or the number of credits had earned. The transition page was completed sometime after the meeting by the school psychologist (Tr. 75-77).

Ms. testified that the recommended CTT class is appropriate because “this is a youngster with some very scores and real potential in areas…the teacher had talked about his ability to listen and understand material pretty much on grade level.” She referred to the standardized testing done by during the spring 2009, th th particularly the scores ranging from to grades (Tr 67-68; Ex 9). The DOE CSE team members wanted him to be exposed to a general education curriculum, but receive the support of the education teacher who would be present to help him and adapt in his areas of need (Tr. 45). The CSE did not conduct any updated standardized testing to determine ’s academic levels (Tr 71-72).

The parent and staff were given the opportunity to voice concerns and contributed useful information (Tr 46-47). The parent voiced concern that switching her son for his senior year would have an impact. Ms. recalled that the team thought that making a transition into a larger school environment would be a good “stepping-stone” towards (Tr. 79).

The parent and the teacher did not agree with the recommendation. In Ms ’s role as the district representative she made the final determination (Tr. 50). Ms last taught in a classroom three years ago, grades through

(Tr 50). She last taught school students twenty years ago (Tr. 51). Her “understanding” is that the CSE general education teacher currently is a school teacher, but she did not know where he teaches (id). She did not recall what he contributed to the meeting.

Ms. testified that the team discussed the education portion of a CTT class, but stated that the number of mainstream students would vary from school to school She had no opinion about the appropriate number of students in total for a class for (Tr 69-70).

The CSE deferred ’s placement from the January 21, 2010, meeting to September of the following school year (Tr 82-84; Ex 4). Ms. 's explanation for the deferred placement was: “When we develop these annual review IEPs, it's for the next school year” (Tr. 82). She added that the previous year the CSE also had recommended a CTT class that the parent rejected, and the team continued to feel it was the appropriate recommendation (Tr. 83).

testified that she is a guidance counselor at School for Democracy and Leadership, responsible for planning, report cards, intake and recruitment (Tr. 124-125). She meets with parents who visit the school, provides information and answers questions. In this capacity, according to the log she keeps, she met with 's mother on th September 21, 2010 (Tr. 126). Ms. knew that would be in the grade, but not which program because she did not have any paperwork for him. (Tr. 128). She met with the parent in her office and took her on a tour of the one floor where the school is located th (Tr. 129). She would not have shown the parent a grade CTT class because for the th first week and a half to two weeks of school the graders are in “like miniworkshops” on issues like the SAT or financial aid, “just to get them acclimated to this th th being their grade year...” (Tr. 130, 153). Ms. assists the graders with applications, scholarship applications, and financial aid applications, all services that would have been available to (Tr. 140).

th

As of September 2010 there were about seventy-two graders and three grade classes (Tr. 156-157).

th

Ms. did not recall the parent telling her that was a grade student with an IEP or needs, or that she asked to see a CTT class (Tr. 142). She did not recall any specific details of the class the parent stated that she looked into (Tr. 144-145, 151).

th

Ms. testified that the school has a grade CTT program (Tr. 129). The CTT model is available in one English and one history class, the two core classes that are th mandatory for graders (Tr. 145-146). Regardless of their individual needs, if the student's IEP says CTT, they will be put into these classes (Tr. 146). During academy th period, the graders with IEPs “meet with the education teacher...to work on...I guess whatever they work on with the education teacher” (Tr. 161).

th

All of the students in the grade CTT English class are pursuing a local school diploma (Tr. 147-148). All but one are bound (Tr. 148-149).

th th th

For one period a day, , and grade students are mixed in together, in th “an academy period”, where students make up missing credits (Tr. 137-138). graders need eight credits each in English and history. In math and science they need six (Tr. 138). Students need an additional seven elective courses to make up the 44 credits needed to graduate (Tr. 139).

testified that she has been the principal of School for Democracy and Leadership, , for the past three years (Tr. 172). The mission statement “is to prepare students for the world beyond school and to engage them in their and also to prepare them to become active agents of change in their communities and the world at large” (Tr. 175). There are approximately 430 students in the school, 70 with IEPs (Tr. 232). The school is located in a larger building that houses three other schools; all four schools are “very discrete, separate programs” (Tr. 176). It occupies the third floor of the building (Tr. 175-176). There are school workers to provide and a therapist (Tr. 178-179). Ms. testified that 's related service mandates would have been met “in house” if he had attended the school (Tr. 179).

Ms. noted that it is a problem if a classified student does not have an IEP on the first day of school (Tr. 233). The school tries to do evaluations in house; “we will do anecdotal observations where both general education and education teachers will observe the student in class and then we also administer diagnostic exams” (Tr. 234).

Ms. testified that since the diploma objective on 's IEP is blank, there would be a meeting with the student, parents and teachers to review the student's credits and make a determination about the type of diploma that would be earned (Tr. 181).

th

Ms. testified that there is a grade CTT class in studies, math and English, but not necessarily science (Tr. 182-183). In studies, there are 26 students in the class, nine with IEPs. The math CTT has 24 students in total, nine with IEPs. In English there are 25 students, nine with IEPS (Tr. 184, Tr. 422-423). In September there were eight students with IEPs in each of the three CTT classes. (Tr. 184). In each of these three classes there is a student with a paraprofessional. (Tr. 236). The general education teacher for each subject changes, but the education teacher is the same. (Tr. 410).

The studies teacher mixes whole group and small group instruction, grouping the students based on the topics being taught and the students' needs (Tr. 185186). In math, usually the class starts with a prompt to get the class , followed by a mini-lesson based on a particular objective and individual or partner work (Tr. 186). The teacher groups according to assessments that have been given, the objectives of the lesson and the needs of the students (Tr. 187). The English class also begins with a prompt and usually is followed by a or writing workshop. The writing workshop “tends to be fairly individualized” (id.). is both individual and in groups that are based on ability (Tr. 187-188). For each of these classes the teachers adapt the curricula designed by New York State that are aligned to the Regents exams for their students (Tr. 237). The education teacher uses a approach (Tr. 411). For example, in math she uses graphic organizers or visual representations of the concepts (Tr. 411412). The education uses chunking of material to address the students' needs (Tr. 413).

The CTT and general education teacher meet regularly. Students are pulled out from classes individually if there are skills that the teachers determine need more individualized instruction (Tr. 188). The models used in the CTT classes are parallel teaching with one teacher teaching the lesson and one assisting, one teacher teaching and the other observing, stations or collaborative groups (Tr. 189, 207-209).

Ms. was shown the class profile in evidence, but could not identify whether it th reflected any of the grade CTT classes (Tr. 191; Ex. F). She later testified that the th th class profile listed the grade students in the CTT classes and grade general education students who change from class to class (Tr. 195-196). Ms. testified that the levels of functioning listed on the profile come from the triennial review (Tr. 196, 257-258). She based this statement on her experience that students are not tested annually so she assumed that the grade levels on IEPs were from triennial testing (Tr. 258-260). Ms. testified that she was “roughly” familiar with the students' levels and the range of the functioning levels in math seemed “a little low” for the students' current levels.

th th She thought that the range in math was from to grade (Tr. 199). The ranges were similar in September, but “probably a little bit lower” (Tr. 199-200). She testified that the ranges for were a little low, with the level, on average, “around th”, “probably slightly better than September, but similar” (Tr. 200). Ms. testified that the and math levels for the general education students in the CTT classes are approximately th th to grades (Tr. 267-268). In studies and English the materials range from to grade based both on the needs of the students and the actual pedagogical content of the materials (Tr. 438-441).

Reviewing 's IEP, Ms. testified that did not have “any of the required exams that he would be required to take to graduate from our school” so his schedule would include some test prep classes for either the Regents or Regents Competency tests (Tr. 201-202). She noted that had a lot of the required course credits and would be able to choose from some electives like (Spanish only), physical education, advisory or art. Ms. thought that would be required to take Spanish since she did not see any foreign on his record (Tr. 271). There is no CTT Spanish class available (Tr. 434). The Spanish class has 24 students and is taught by th a subject matter certified teacher (Tr. 434-435). There is no grade science CTT class (Tr. 237). For science, if were in a Regents preparatory class, he could be in a CTT class with students in a different grade, such as the 11th grade living environment class (Tr. 238-239, 451). If he were in science class in preparation for the Regents Competency Test, he would have been in a class with only IEP students and two teachers (Tr. 203204). Based on his IEP and the Winston report, Ms. thought that would have been placed in the living environment class (Tr. 451).

The IEP students are mostly ages 17-19, with one student who had a brain injury who is 21. Most of the students are classified as disabled (Tr. 209-210). Including students in the general education portion of the class, the ages range from 17 to 21 (Tr. 263). Ms. did not believe that any of the students in the class have had disciplinary issues this year or have issues (Tr. 268-269). The student who has an assigned paraprofessional has issues with and maintaining (Tr. 269270).

Ms. testified that additional supports for the students include three full time th workers, a half-time worker and a guidance counselor. The grade students have one teacher as an advisor with whom they meet weekly to discuss their academic progress (Tr. 210-211). The school also has a transition coordinator who works closely th with the grade students on post graduation vocational or plans (Tr. 211-212).

th

Of the grade CTT students with IEPs, four of the eight are on track for a Regents diploma and bound, and four are pursuing a local diploma (Tr. 212-213). Twenty-two of the class total are bound (Tr. 270).

Based on a review of 's IEP, Ms. felt that was appropriately placed in her school in a CTT model class because he has “fairly solid grades” which could be addressed with the additional support of the CTT teacher, the school is able to meet the related services needs of and therapy, his needs were addressed resulting in a removal of as a related service and his goals are similar to those addressed in the CTT classes for other students (Tr. 214-215, 413-414).

THE PARENTS' WITNESSES

testified that she is a dean and science teacher at School (Tr. 287). is an independent school certified by the New York State Association of Independent Schools. (Tr. 307). She described it as a school for students with disabilities and executive functioning difficulties. Students are grouped according to their needs and within each class “the faculty generally develops an individual program for the students as much as possibly can be done” (Tr. 288). The classes are as homogeneous as possible (Tr. 289, 359). The students range from to grade, with ages to (Tr. 288-289). There are approximately 206 students (Tr. 289).

has known since 2007, as she was his dean then and again is his dean this year. She never has taught him classes, but has observed him in his classes and talks to him “all the time” (Tr. 294-295). 's issues include decoding, executive functioning, being distracted as well as , working and organization (Tr. 295). His executive functioning “impacts his planning, his problem solving, sometimes his processing speed when there's complex information given, his organization of information when he's writing and that influences his and ” (Tr. 297). He now is brought back on task “very easily” and more often keeps a calendar as well as uses his planner (Tr. 295).

Dean testified that most of the teachers have Master’s degrees in education or specific content areas (Tr. 288), but she was not sure of any of 's teachers' credentials except his math teacher (Tr. 313-314). The teachers collaborate regularly and make use of an internet system on which each student has a file that is updated throughout the day (Tr. 291). is in the program, a one-on-one specific class on the skills that are most challenging for such as decoding (Tr. 292, 309). has a skills-based curriculum rather than contentbased (Tr. 292-293). The main goal of the school is to “remediate students”, meaning that they work on the skills to improve them (Tr. 293-294). Accommodations are provided when deemed as necessary (Tr. 293). He is given extra time to complete tests (Tr. 318), has directions read and reread if he asks for it (Tr. 319), and is given individualized testing modifications (Tr. 322). Tests are modified particularly for him (Tr. 322, 356357).

With the exception of math, art and physical education, travels with the same group of nine students for all of his other classes, two juniors and seven seniors (Tr. 300, 314, 363). They all have the same style and need decoding work (Tr. 363). Math classes are formed based on an assessment given to the students in the beginning of the school year, “the math indicator”, and math scores from the WIAT (Tr. 360). In math is in a class of 8 to ten students algebra. The math teacher is certified in education (Tr. 313). is allowed to use a calculator when necessary (Tr. 302). The students are to years old. (Tr. 338). is in an art class of 15 students where he is able to function because the work is more independent and creative (Tr. 299300). There are no more than 18 students in his gym class and they divide into groups for activities (Tr. 315).

The school issues three reports during the year. A fall report states the goals the student will be working on during the year. The winter report describes the student's progress and provides the basis for modifying the goals, if necessary (Tr. 305; Ex. D). The teacher writes the heading page and each content area teacher writes his or her own report. The winter report indicates that has made progress during the 20102011 school year (Tr. 305-306). He became more independent. Since the time of the report he has taken more responsibility for organizing his information, getting his work done on time, looking his work over more carefully, and for putting more detail in his work. Dean stated that made progress with decoding, fluency, math and time management (Tr. 306). has given the confidence to know that he can continue on to and be successful. The strategies he has ed are geared toward an increased independence and self advocacy and is demonstrating his ability to use these strategies (Tr. 309-310).

Last year of 30 to 40 graduates, 75% were planning on going to . According to Dean of 50 students planning to graduate this year, about the same number or a will be graduating (Tr. 294). The school gives a School diploma upon graduation. The graduation requirements are to “complete all of your courses without failing them” (Tr. 332). was accepted to a (Tr. 307-308).

has parent teacher conferences twice a year; one conference is timed with the fall report and one is in April. 's parents participate in these meetings (Tr. 327-328). The teacher communicates with the parents regularly (Tr. 330).

is not receiving services at and the school does not provide them (Tr. 341). Dean testified that is “worked on throughout the day in all of his classes, and it would be worked on specifically in his class” (Tr. 351).

Mr. testified that he is 's English literature and writing teacher at (Tr. 378-379). He described 's education needs as “ , fluency, and writing” (Tr. 379). The main area of concern is issues because it impacts on all of the rest (id.). Mr. provides modifications to address these needs. “The class itself on scaffolded lessoning and instructions....” (Tr. 380). The material is broken down into its smaller parts with each area taught as a skill (id.). Mr. thinks that the class ratio of nine students to one teacher has been very effective for because he receives immediate feedback on his behaviors, the curriculum can be tailored to his specific needs, and he can be helped to manage his issues (Tr. 382-383, 396-397).

Mr. described how the programs fosters communication among the teachers and gives the teachers “a holistic picture of how the student performs” (Tr. 387). Mr. measures progress by “setting standards and goals” appropriate for at the time of the fall report, giving informal assessments that test the skills is addressing, and seeing how well he is acquiring the targeted skills (Tr. 389, 391). 's writing skills have improved; he writes with greater depth and complexity (Tr. 389). “Varying sentence structure has gotten better” (id.). His ability to write more sophisticated paragraphs has improved as has his , specifically with his understanding of implicit details (Tr. 390). Mr. does not administer any standardized testing for grading a student (Tr. 399).

Mr. observed that 's ability to manage his frustration has improved. He is better able to handle a situation when he feels that someone is not listening to him or he disagrees with a point of view in the discussion (Tr. 390-391). Mr. would not describe as particularly self deprecating (Tr. 392).

, 's mother, described him as a “visual er”. She described his difficulties as including executive functioning disorder, problems with receptive , and problems with decoding. He now is starting to self advocate (Tr. 455). began to suffer from self esteem issues around or grade when his differences became evident (Tr. 460). For and grades, attended the Manhattan Country School, an ungraded school where he was put in with the nine and ten year olds (Tr. 504-505). A psychologist, Dr. , had recommended that be put in smaller classes (Tr. 505). continued to have difficulty, the parents had him evaluated by Dr. , and they sent him to beginning in grade (Tr. 506).

first was referred to the CSE in 2005 when he also started at (Tr. 462). He has attended since that time (id.).

testified that all of the teachers address the receptive issues has. addresses 's needs by redirecting him and teaching him different self-management skills (Tr. 464). His self esteem issues have been dealt with by teaching him that he can (Tr. 465). has the benefit of the homogeneous grouping because he feels that all of the students are similar and together. The students are on the same level so he has made friends and can (Tr. 466). For the 2010-2011 school year he plays many sports and is captain of the soccer team (Tr. 470). During and eighth grades, 's teacher was a and therapist. The parent felt it was a benefit because at that time it was needed (Tr. 507).

is set to graduate on June 16, 2011. He has been accepted to two s, Widener University and University of Maryland Eastern Shore, in programs for students with differences (Tr. 467, 508-509). At Widener, the class ratio is . was not sure what the ratio is at University of Maryland (Tr. 509).

In response to the Hearing officer's request, the parent submitted a more current academic record for the fall and spring 2009-2010 and for fall 2010-2011 (Ex. K). He received a D+ in world history, an issue the teacher discussed with the parents and (Tr. 470).

The parent signed a consent form to give the CSE permission to conduct any necessary evaluations and to observe (Ex. 1, Tr. 473). The parent received the observation report at the January 21, 2010, CSE meeting (Tr. 473-474). After the parent presented the neuropsychological report to the CSE, “the psychologist asked for about a 15-minute recess” and the parent stepped out of the meeting room for approximately fifteen minutes (Tr. 475). At the meeting the team also had the observation and the IEP from the prior school year (Tr. 476, 497-498). did not recall there being a progress report present (Tr. 499-500).

The parent testified that she agreed with Dr. 's recommendation for a school or a school designed for children with broad based disorders because she has seen her son in larger settings and they “did not work” for him; they “were not appropriate for him” (Tr. 477). She thought that a class size of thirty, the number of students she estimated to be in the classroom, would trigger 's issues (Tr. 495). The parent saw in a larger classroom setting from first to fourth grades at the Epiphany School, a parochial school in Manhattan with 25 students in a class (Tr. 502-503).

The parent explained that she brought up 's prior self esteem issues, reminding the CSE that he was going to be a senior going into a new setting (Tr. 477-478). did not recall any response from the team (Tr. 478). received at in the 2008-2009 school year.

The parent recalled filling out a form regarding 's future plans (Ex. 6), but she did not recall any specific discussion about her son's future plans. She also stated that she could not tell if the transition page of the IEP (Ex. 12-18) was drafted at the meeting because the psychologist was typing on a computer during the meeting, but the parent could not see what she was typing (Tr. 478-479). The parent recalled talking about some of the goals included in the IEP (Ex. 12-7 – 12-14), but again, was unable to see what was typed at the meeting and was not given a copy of the IEP at the end of the meeting even though she asked for it (Tr. 480, 486). She was told that the CSE would send her a copy (Tr. 486).

At the meeting, the parent was told of the recommendation for a CTT class. The parent stated that she requested and received an explanation of what a CTT class is and that she voiced her disagreement with the recommendation (Tr. 480- 481). The parent testified that the team did not explain their rationale to her, tell her how many students would be in the class, or discuss the appropriate academic levels for 's placement (Tr. 481-482). The parent stated that she neither asked for to be continued or stopped (Tr. 501).

The parent testified that the CSE minutes section on the parent concerns was inaccurate because “it was taken out of context” (Tr. 483; Ex. 11-1). She testified that she wanted to “emphasize” that was appropriate for and that she “said I just want things to remain the way they are” (Tr. 483-484). She never said that she was not looking for a public school (Tr. 484). The parent testified that she received the IEP in late October, 2010. She contacted the CSE prior to receiving it, in October, left messages on voice mail, but never received a return call (Tr. 486, 503).

testified that she received a letter recommending a placement from the DOE, dated July 21, 2010 (Ex. 13) in July or August 2010. She called the recommended school and left voice mail messages, but never was called back (Tr. 487). She wrote a letter to the CSE dated July 26, 2010, informing them that the school was closed, she was unable to get specific information, and she requested specific information about the placement and how the program would meet 's needs (Ex. E-2). She also stated her belief that her son needed a full-time education program, meaning that “he needed to be in a program and a school with a program that could appropriately meet his needs and that would have faculty and staff there that were familiar with the type of educational needs that my son has” (Tr. 511, 547). She never received a response (Tr. 488).

The parent visited the School for Democracy and Leadership on September 21, 2010, and brought the letter recommending the placement. She had not yet received the IEP (Tr. 488-489). She met with the guidance counselor, Ms. , who told her that there was not a specific grade class to see, but that graders “are only put into classes that they need” (Tr. 490, 496). The class she visited had , and graders in it. The parent approximated that there were about 30 students in the class (Tr. 490-491). She was unsure of how many adults were in the class (Tr. 491). She observed the teacher “giving a lesson or trying to give a lesson” although she did not know what the content of the lesson was (Tr. 491, 552-553). She saw one student with his head down on the desk, not appearing to be engaged in the class (Tr. 491). The parent observed one student walk out of a class and Ms. redirected her back into the classroom (Tr. 494, 554). The parent testified that Ms. did not tell her anything about the program for grade students and that she never heard of the academy program (Tr. 491-492).

The parent did not think that the age ranges of the students listed on the two class profiles in evidence were appropriate for her son because “[ 's] a teen....and many times a young teen” so she did not feel that “it's appropriate for him to be in classes with adults”, referring to the and year olds (Tr. 493).

The parent did not think that the grade levels for and writing were appropriate for her son because there was too large a range.

The parent testified that she signed a contract and simultaneously paid a deposit of $5000.00 for between March and June 2010 (Tr. 516-517). The tuition for the 2010-2011 school year is $46,800.00, of which “maybe” $15,000.00, including the deposit, has been paid to date. (Tr. 517-518, 521-522, 539, Ex. L). The parent was not sure when she would finish paying the balance due and makes monthly payments of varying amounts (Tr. 520, Ex. O). The parent intends to pay the full amount (Tr. 539). She filled out financial aid forms, but was not sure whether had been granted aid or a scholarship, later testifying that he did not (Tr. 520-521, 551). The contract states that the parent will pay $5000.00 by March 12, 2010, but the parent paid it on May 24, 2010 (Ex. N; Tr. 540). The parent was unable to make the next two payments of $20,900.00 by the dates indicated on the contract because they were unable to meet the deadlines and instead has allowed them to make payments over time, without penalty (Tr. 548, 550; Ex. L). The parent still owes tuition for the 2009-2010 school year, having paid only $15,700.00 of that tuition contract (Tr. 542; Ex. M). The parent testified that she is not sure how applies the monthly payments that the parents are making given that they owe money for two different years (Tr. 555, 562). The parents submitted checks reflecting payments through August 26, 2010, and testified that they have continued to make monthly payments beyond that date (Tr. 543, 555-556).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

To determine whether a school district provided an appropriate education as required under IDEA, courts examine: 1) whether the school district complied with the procedural requirements of the IDEA; and, 2) whether the educational plan developed by the school was “reasonably calculated to confer education benefits to the child” (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-

07 (1982)). Prong I: Did the DOE offer a free and appropriate education for the 20102011 school year? Procedural Violations

The importance of IDEA's procedural provisions was lighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality” Id. “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 U.S. At 206).

Although procedural flaws do not automatically require a finding of a denial of F APE, procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, do constitute a denial of FAPE. (Application of a Child with a Disability, Appeal No. 03-061, citing Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; W.G. v. Bd. Of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973,982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see J.D. v. Pawlet Sch. Dist., 224 F.3d 60,69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a F APE]). Cumulatively, the procedural flaws pertaining to the development of the January 21, 2010, IEP resulted in the loss of educational opportunity for and seriously infringed on the parent's participation in the formulation of the IEP.

The DOE committed too many serious procedural flaws to sustain its burden to prove it provided a FAPE for the 2010-2011 school year. The CSE did not provide an IEP for for the 2010-2011 school year until October, 2010, well after the start of the school year. The composition of the CSE review team was flawed. These deficiencies resulted in a substantial loss of educational opportunity and significantly impacted on the parents' right to participate in the formulation of the IEP. The CSE failed to produce an IEP by the start of the school year.

Section 300.342 (a) of the IDEA states that at the beginning of each school year, each public agency shall have an IEP for each child with a disability within its jurisdiction. (20 U.S.C. 1414(d) (2) (A)). In the instant case, the Parent did not receive a copy of her son's IEP until October, 2010, after repeated attempts to receive the document (Tr. 486). The DOE offered no testimony or documentary evidence to rebut the parent's statement or to demonstrate that an IEP existed before that time. Failure to produce an annual IEP by the first day of the school year is a denial of FAPE. Here, the IEP was not given to the parent for nine months from the time of the CSE review and more than a month into the school year. The parent did not have a copy of the IEP to show the proposed placement and more importantly 's school and teachers did not have the critical information contained in the IEP; both consequences resulted in a loss of educational opportunity and meaningful parent participation. The composition of the CSE was flawed.

The IDEA requires that an IEP be developed by a group of individuals including at least one education teacher, or where appropriate, at least one education provider of such child (20 U.S.C. § 1414[d][1][B][iii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1][iii]). The U.S. Department of Education (DOE) has further advised that the education teacher or provider, if applicable, member of the IEP team should be the person who is or will be responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 26).

In Application of a Child with a Disability, Appeal No. 00-031, the State Review Officer held that the student’s education teacher member of a CSE could be the student’s private school teacher, a education teacher who was likely to implement the student’s IEP, or the student’s related service provider. He noted that it was unreasonable to expect a board of education to designate the education teacher who would be a student’s teacher before the CSE had met to even determine the student’s needs. However, he went on to point out that it was reasonable to expect that a board of education would have sufficient information about the student to designate a education teacher who was not only appropriately certified to teach the student, but was also teaching in one of the programs which might be appropriate for the student. (Application of a Child with a Disability, Appeal No. 05-087).

, the education teacher who attended the CSE meeting did not fulfill the requirements of a education teacher contemplated by the IDEA, regulations or case law. Although she was certified to teach education, she was not the student's current education teacher, a education teacher who would or might have implemented the student's IEP, or an appropriate related services provider who was currently providing services or would or might have implemented the student's IEP (see Application of a Child with a Disability, Appeal No. 01-072; Application of a Child with a Disability, Appeal No. 00-044; Application of the Bd. of Educ., Appeal No. 00-031). This CSE member was not an active teacher but was assigned to the CSE for the purpose of being its education teacher member or district representative (Tr.18-22). Indeed, Ms. had not taught school aged students such as in about twenty years (Tr. 51). Additionally her personal knowledge of was limited to the one observation of in two of his classes, lasting less than two hours. She never spoke to him directly or to his teachers (Tr. 53).

While one of 's education teachers from did participate in the meeting, he is not a certified education teacher and there is no evidence in the record that he possessed any knowledge of the recommended program or any other DOE education programs that he could bring to the CSE discussion. In fact, someone at the CSE made a point of indicating on the sign in section that Mr. was not a certified education teacher, an action that only can be interpreted as a designation that he was not serving in that role (Ex. 12).

Under these circumstances, I find that the absence of a education teacher as contemplated by the IDEA and its implementing regulations was a denial of FAPE. The record shows that very little information was given to the parent about the size of the entire CTT class, how it would function, or how it would meet 's needs. Ms. seemed only able to promote the recommendation as a good “stepping stone” for a student moving from a education school and class to a . In this regard, the parent was deprived of meaningful participation and the student was most certainly deprived of a thoughtful or meaningful discussion of options along the continuum, including the ultimate recommendation, thereby depriving him of educational opportunity. Substantive Violations The CSE did not rely on necessary evaluations to properly assess or reflect 's current skill levels on his IEP.

In developing the recommendations for the IEP, the CSE must consider "the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any considerations" (8 NYCRR 200.4[d][2]; see 34 C.F.R. § 300.324[a]). The law is clear that "school districts may use a variety of assessment techniques such as criterionreferenced tests, standard achievement tests, diagnostic tests, other tests, or a combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1). "Teacher observation" is the assessment technique noted on 's IEP for his current level of decoding, , writing, computation, and problem solving; however, teacher observation is not one of the acceptable methods of evaluations for determining current levels (Ex. 12).

While Ms. testified that 's entire file was available to develop the IEP she only could recall using her classroom observation, 's 2009-2010 IEP, the parents' privately obtained neuropsychological evaluation, progress reports from the fall 2009 and standardized testing that had done in the spring 2009 (Tr. 31-32). She could not recall when the last educational or psychological testing was done; nor did the CSE conduct any of its own testing despite obtaining the parents' consent. In fact, according to her testimony, the CSE adopted the private neuropsychological evaluation as its own (Tr. 101). However, the CSE failed to include the results of the neuropsychological testing or any standardized test results to reflect

's levels, except for a few vague references in the text of the IEP. The CSE failed to adequately prove that the IEP reflects accurate skill levels for and thereby deprived him of a FAPE. The recommended placement was inappropriate to meet 's individual education needs.

The proposed placement does not implement the recommended IEP. The School for Democracy and Leadership could not have met 's individual education needs because it did not have CTT classes in all of the courses he would be required to take and the classes that did have a CTT option did not offer a suitable functional peer group for instructional or / purposes. Additionally, the school witnesses' testimony did not reflect an understanding of 's current levels and needs th and how the grade program specifically would address them. The DOE failed to prove that the placement fulfilled the DOE's obligation to provide a FAPE for the 2010-2011 school year.

th

According to the school witnesses, both testified that there is one grade CTT class in studies and in English (Tr. 145-146, 182-183); all students with IEPs who are recommended for a CTT class are in those classes regardless of their needs (Tr.

th 146). Only the principal testified that there also is a grade CTT class in math; the th guidance counselor testified that only studies and English have a grade CTT option (Tr. 182-183). The DOE offered no other evidence to establish whether there th is, in fact, a grade math CTT class. The principal also testified that would be required to take a science course in preparation for taking a required Regents exam as well as Spanish to fulfill his requirement. Neither science or Spanish are offered th in a grade CTT class. Instead, would be in a mainstream class for Spanish with th no education support in the classroom and possibly an grade CTT living environment class (Tr. 238-239, 451).^[1] The principal testified that also might have to be in additional test prep classes, none of which are CTT classes. The record in no way suggests how 's individual needs would be met without the support recommended by the CSE in all of his classes. The CSE failed to offer a FAPE because it did not even offer a placement that could meet the mandates of the IEP it created.

Additionally, the DOE failed to prove that would be suitably grouped academically for instructional purposes or / in the proposed placement. The class profiles produced by the DOE show a range of academic functioning for math between grade .0 and . (Ex. 14) or grade .0 and . (Ex. F), and for between grade 0. and . (Exs. 14 and F). The principal testified that she was only “roughly” familiar with the grade levels of the students in math or English and that the levels on the class profiles, which the DOE argues should be disregarded, she assumed were based on triennial scores and seemed a bit low. Her estimation puts the students in the entire class, IEP and general education students, in a range of eighth grade to grade for and grade to grade for math (Tr. 199, 267268, 269-270). The DOE did not offer any evidence to support Ms. 's testimony which was tentative at best. would not be suitably grouped with students with this range of functioning. Nor did the DOE present any evidence beyond describing in general terms some of the supports used by the teachers to demonstrate how would have his needs met in a class of so many students with such a wide range of functioning levels.

th

Similarly, the age range of the students in the proposed grade CTT class covers too great a span, ages to (Tr. 263). Not only is it an overly broad range, but who was described as a “young ” would not be appropriately placed with a

- year old. (Exs. 14 and F).

Last, one of the students in the CTT class requires a paraprofessional for 100% of her school day because she has "issues with and maintaining " (Tr. 269). If in fact this testimony is correct, the student's issues must be far more severe and pervasive than 's. A student with this level of disability would not be an appropriate peer for .

For all of the foregoing reasons, the DOE failed to meet its burden of proving that the proposed placement provided a free and appropriate public education for . The DOE has failed to meet its burden under prong one of the Burlington and Carter analysis. In order to prevail in their claims, the parent must prove that the placement they chose for their son was appropriate. Prong II: School was an appropriate placement for the 2010-2011 school year.

The parents bear the burden of proving that School is an appropriate program for . See Schaffer ex rel. v. Weast, 546 U.S.49, 58, 126 S.Ct. 528, 163 L. Ed. 2D 387 (2005); N.Y. Educ. L. 4404(1)(c). To meet this burden, the parents must demonstrate that the educational services provided by address 's identified education needs. The core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” ( Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006) citing Rowley, 458 U.S. at 207). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115. The record supports the finding that provided an appropriate program and placement for to receive educational benefit.

The standards for determining whether a private school placement is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Carter, 510 U.S. at 14; Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). "Subject to certain 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…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F. 3d 356, 364 [2d Cir. 2006][quoting Rowley, 458 U.S. at 207 and identifying exceptions]).

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. at 14). The private school need not employ certified education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

According to the recommendations of Dr. , is an “ideal” placement for (Ex. 5-10). It is a school designed to meet the needs of students with profiles similar to 's, students with disabilities or executive functioning issues (Tr. 288). The classes are created to group students in as homogeneous groups as possible, so is grouped according to his levels and needs (Tr. 288). The small class sizes and low student to teacher ratio support his needs because he receives immediate feedback, it allows the curriculum to be specifically tailored to his specific needs, and helps him manage his (Tr. 382). The school provides accommodations to when needed, such as extra time to complete tests (Tr. 318), having directions read and reread (Tr. 319), and individually modified tests (Tr. 322). Additionally, has a one-on-one class every day during which he and the teacher work on targeted skill areas specific to , particularly decoding (Tr. 292, 309). The extent to which has identified 's needs and addresses them is further elaborated upon by each teacher in the fall and winter progress reports (Ex. 8; Ex. D).

has made substantial academic and - progress at . He has how to better manage his frustration (Tr. 390), has become more independent and has"taken on more responsibility for organizing his information, getting his work done on time, looking it over more carefully, for putting more detail into his work, really beginning to understand the grade between effort and achievement ....He's made progress with decoding ...He's made progress in math...He's made progress with his fluency, time management." (Tr. 306). Further, his writing skills have improved in terms of depth and complexity (Tr. 389). The record shows that is on track to graduate at the end of the 2010-2011 school year with a diploma and he already was accepted at two s, further evidence of the appropriateness of the program for him.

Grades can be considered as proof of the appropriateness of a parents' placement, but are not dispositive (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Here, at the time the parents enrolled for the 2010-2011 school year, the end of th 's grade year, maintained a B- or average, supporting the parents' choice (Ex. K-1). The fact that 's grades dropped in science ( -) and history ( +) during the first semester of the school year at issue does not render inappropriate (Ex. K-2). The parent's testimony that she was made aware of the issues in history class and the teacher remarks in the progress reports are proof positive that 's program for was designed to meet his needs and did provide educational benefit. (Tr. 470; Ex. D-6).

Even though does not provide direct and services, the totality of the circumstances shows that 's needs are being met by the program. The education offered to is designed with his needs in mind. The record supports the finding that allows to benefit from instruction there. Equitable Considerations

Equitable considerations generally support a claim of tuition reimbursement, in the absence of evidence demonstrating that parents failed to cooperate in the development of the IEP, otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice (Application of a Child with a DisabilityAppeal No. 04-049). A parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP, or if the parents' conduct precludes the CSE's ability to develop an appropriate IEP. (See Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80,86 [3rd Cir. 1190]; Application of a Child with a Disability, Appeal Nos. 04-102 and 04-026).

In the instant case, equitable considerations support the parents' claim. The record is devoid of any testimony demonstrating that the parents have not cooperated with the CSE. The parents provided a private neuropsychological evaluation to the CSE and granted consent for the CSE to conduct whatever evaluations they deemed necessary (Ex. 1; Tr. 475).The mother also attended the January 21,2010 CSE review meeting and attempted to participate (Tr. 29, lines 15-23). The mother called the school to arrange a visit after receiving the final notice of recommendation which was sent about six months after the CSE review, when the school was not in session. She followed up the call with a letter to the CSE, asking for information about the program and how it would meet her son's needs (Ex. E). She received no response. She also visited the school when it reopened (Tr. 270).

With regard to notice, the parents satisfied the requirement under 34 C.F .R. § 300.148( d) (1 ), given that the parents, through their attorney, notified the DOE of their intent to place at a private school ten business days prior to the student's removal from the public placement (Ex. G).

The fact that has never been enrolled in a public school (Tr. 506) is irrelevant in light of the Court's decision in Frank G. v. Bd. of Educ. Frank G. held that the IDEA does not preclude an award of tuition reimbursement where education and related services have not been previously provided to a student by a public school or public agency (Frank G., 459 F.3d at 376; see also Carmel Cent. Sch. Dist. v. V.P., 2006 WL 2335140, at *1 [2d Cir. Aug. 9, 2006]; Application of a Child with a Disability, Appeal No. 06077; Application of a Child with a Disability, Appeal No. 06-041; Application of a Child with a Disability, Appeal No. 06-032; Application of a Child with a Disability, Appeal No. 06-021).

Likewise, the date on which the parent signed the contract for is irrelevant. "The critical consideration is not whether the parents have their minds set on private school, but whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible...if they have cooperated even if throughout they have held to the belief that the best the school authorities can offer will not be good enough-they are entitled, acting "at their own risk," to place the child privately, hoping that eventually they will be able to convince an ALJ or a judge that the child was not offered a FAPE." Weast v. Schaffer, 240 F.Supp. 2d 396 [2002]. In the instant case, the parents signed their contract in May, nearly four months after the January 21, 2010 IEP meeting (See Ex. L). Further, the parent testified that she pursued the offered placement from the DOE even after signing her contract at . The parent tried to visit the school before classes began, wrote a letter to the CSE requesting information, and visited once school was in session. As such, the parent cooperated in good faith with the DOE and in no way thwarted their efforts to provide a FAPE to (Tr. 270).

The enrollment contract between the parents and holds the parents responsible for the full amount of tuition for the 2010-2011 school year, $46,800.00 (Ex. L). The parent testified that she intends to pay the full amount of tuition whether she is successful at the impartial hearing or not (Tr. 539, 550). The parents consistently have been making installment payments toward 's tuition which was applied to the previous school year (Ex. O) and the contract for the school year in question states: “All payments will be applied in inverse order, to the oldest outstanding invoice.” (Ex. L). The DOE's only response to this evidence is the argument that has excused the parents from the time frame specified in the contract and allowed the student to continue to attend the school, thereby calling into question the legitimacy of the parents' debt to the school. There is no substantive proof in the record that the parents' debt is not real or challenge to the parent's statements that they have been paying incrementally as they are able.

Section 1415 of the IDEA authorizes a reviewing court to “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). Accordingly, the parents are entitled to reimbursement of the five thousand dollars ($5000.00) they already have paid for the tuition for the 2010-2011 school year and direct payment of the outstanding balance for the 2010-2011 tuition. (See Mr. A ex reI. D.A. v. New York City Dep't of Educ., 2011 U.S. Dist. LEXIS 9475 (S.D.N.Y. Feb.1, 2011). The parents agreement with and the school's leniency with regard to keeping the payment schedule does not change the fact that Defendants denied D.A. a FAPE, that was an appropriate placement, that the equities favor payment of tuition, and that § 1415(i)(2)(C)(iii) is sufficiently broad to encompass the retroactive direct tuition payment relief the parents seek.

ORDER

1. The New York City Department of Education failed to provide with a free and appropriate public education for the 2010-2011 school year.

2. The parents' placement of at the School was appropriate for the 2010-2011 school year.

3. The equities favor an award of tuition reimbursement ($5000.00) to the parents and the remainder of the outstanding balance to the School for a total of $46,800.00.

4. The Department of Education shall make payment within fifteen days of the parents' proof of payment including cancelled checks and a current affidavit from the authorized school representative about the monies paid and the monies owed for the 2010-2011 school year. The parents also shall provide a record of their son's attendance at the School for the duration of the 2010-2011 school year. Dated: July 27, 2011

LANA S. FLAME, ESQ.

Impartial Hearing Officer LSF:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Impartial Hearing Request, 10/20/10, 7 pgs. B Due Process Response, 10/28/10, 4 pgs. C Student Schedule, 2010-2011, 1 pg D Winter Progress Report, 2011, 8 pgs E Response to Final notice of Recommendation, 7/26/10, 2 pgs F Class Profile for Class 222/T07 at School for Democracy and Leadership

(contained within email from S. Kapoor), 2/7/11, 2 pgs G Notice of Unilateral Placement, 8/24/10, 2 pgs H NYC DOE Progress Report, 2009-2010, 1 pg I NYC DOE Education Service Delivery Report, undated, 1 pg J Standardized Test Report, Spring 2009-2010, 1 pg K Report Card 2009-2010, Fall for 2010-2011, 2 pgs L School Student Enrollment Agreement, 2010-2011, 5/13/10, 2 pgs M Affidavit of , 1/4/11, 1 pg N Affidavit of , 1/19/11, 1 pg O Cancelled Checks to School, 4/27/09-8/26/10, 2 pgs.

DEPARTMENT OF EDUCATION DESCRIPTION

1 Parent Consent, 9/28/09, 1 pg. 2 DOE Meeting Notice, 12/2/09, 1 pgs. 3 DOE Meeting Notice, 1/5/10, 1 pgs. 4 DOE Notice of Deferred Placement, 1/21/10, 1 pg. 5 Confidential Neuropsychological Evaluation, 8/8/09,14 pgs. 6 DOE Level 1Vocational Interview, 1/20/10, 2 pgs. 7 DOE Classroom Observation, 11/4/09, 1 pg. 8 Report Of Progress, Fall 2009, 9 pgs. 9 Standardized Test Report, 10/13/09, 1 pg. 10 Academic Record, 2 pgs. 11 DOE Minutes of Meeting, 1/21/10, 2 pgs. 12 DOE Individualized Education Program, 1/21/10, 18 pgs. 13 DOE Letter of Recommended Placement, 7/21/10, 1 pg. 14 Class Profile, undated, 2 pages

HEARING OFFICER DESCRIPTION

IHO- I Subpoena, 1/18/11, 1 pg.

Footnotes

[1] It must be noted that Dr. recommended in his neuropsychological evaluation that 's requirements should be waived (Ex. 5).