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 19, 2011

March 8, 2011

April 1, 2011

April 15, 2011

May 13, 2011

May 17, 2011

June 29, 2011

Actual Record Closed Date: August 25, 2011

Hearing Officer: Rachel Potasznik, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2011

Attorney — Parents

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 8, 2011

Attorney Mother — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 1, 2011

Attorney Mother — Parents

Paralegal — Parents

Attorney — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 15, 2011

Attorney — Parents

(via tel.) Mother

Attorney — Parents

Attorney — DOE

(via tel.) Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 13, 2011

Attorney Mother — Parents

(via tel.) Pathologist — Parents

(via tel.) Occupational Therapist — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 17, 2011

Attorney Mother — Parents

(via tel.) Teacher — Parents

(via tel.) Director, — Parents

Attorney — DOE

Teacher, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 29, 2011

Attorney — Parents

(via tel.) Mother

(via tel.) — Parents

Attorney — DOE

On November 15, 2010, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of . ( .) pursuant to a request for an impartial hearing made on November 15, 2010. The parent was represented by , Esq. and the Department of Education (DOE) was represented by and , Esqs. An Amended request was submitted and accepted on consent of the district on March 11, 2011. (Exh. A) The hearing was held on January 19, 2011, March 8, 2011, April 1, 2011, April 15, 2011, May 13, 2011, May 17, 2011 and June 29, 2011. Lists of persons in attendance and documents received in evidence are appended to the record. Timelines for compliance were extended at the request of the parties due to availability of witnesses, extensive evidence and post hearing briefs and submissions.

BACKGROUND

. is a , a private in Brooklyn for the 2009/2010 school year and the prior 2008/2009 school year. An Individualized Education Program (IEP) was created for M. on February 25, 2008 which classified and recommended a special class in a community school with related services. (Exh. E) On April 30, 2009 an annual CSE review meeting was held and an IEP was developed for the 2009-2010 school year. M. was classified with (Sp/L) and the CSE recommended a special class in a community school class at in Manhattan. The CSE also recommended related services of Speech therapy 2x 30 1x 30 ; 3x 30 and 2x 30 . (Exh. 4) The parent is seeking tuition reimbursement on the grounds that the DOE failed to offer the student a free appropriate public education (FAPE) on procedural and substantive grounds.

ISSUES

Did the DOE provide FAPE?

If not, is the parent entitled to tuition reimbursement?

THE DEPARMENT OF EDUCATION'S POSITION

The DOE claims that the CSE held a timely IEP review, with a duly constituted IEP team which took into account the parents' concerns and questions and relied on appropriate material to understand the child's unique educational needs. There was full participation of all the IEP team members, it properly classified , created appropriate goals and recommended an appropriate educational program. Based on the materials before them and input from the teachers and providers working with M. at the time, the DOE claims that the CSE developed an appropriate program that provided an opportunity for . to receive an educational benefit in the least restrictive environment. The recommended placement was staffed by experienced education professionals who could have provided . with the individualized education that he requires as a student with a disability. Therefore the DOE claims that the parent is not entitled to reimbursement under the IDEA and there is no need to address Prong II as the DOE provided FAPE.

The DOE maintained that even if the DOE made any procedural error/s under the IDEA, they were de minimus and the parents' chosen program was inappropriate on numerous grounds. It is too restrictive, the related services were not available at the school and one-quarter of the school day was devoted to religious studies. They claim that equities support the DOE as the parents were not truly interested in a public school program and wanted their son to stay in their preferred placement of a private religious school where they had an ongoing relationship and where 's father is related to the Executive Vice-President of the Gesher Yehuda School.

, DOE school and a member of the CSE review team, testified in detail about how the IEP goals were drafted from the input from the student's teacher at the school [Tr. 119] and the provider reports from the providers who worked directly with the student [Tr. 121-124] She explained how the parent, teacher and whole team had a discussion at the meeting regarding all of the goals [Tr. 121-122] and that the parent did not object to any of the goals identified by the team. [Tr. 123] Ms. . testified how the CSE team formulated the goals in the IEP and how they addressed 's unique needs. [Tr. 147-166] The goals were formulated based on the information provided by the recent reports from the school and information provided at the meeting. [Tr. 116-124] The parent had the right to bring any people to the meeting she believed to be beneficial and service providers were welcome but they usually send their reports in an annual review. [Tr. 177] At the CSE meeting the parent did not express an objection to the program that was recommended based on the information that was presented. [Tr. 178]

, Principal of , the proposed placement testified that has grades kindergarten through fifth grade and is located on . In September 2009 there were two kindergarten special education programs at the school, an inclusion or CTT class and a self contained class. [Tr. 192-193] In September 2009, there was a seat available in the recommended class, and there were six students in the class at that time. [195-196] The teacher of the class was Ms. who was licensed in both general and special education and a certified paraprofessional was also assigned to the class. [196-197] An additional paraprofessional was added to the class in December because there were additional children and she wanted extra support in the class room. [ Tr. 198] The class was originally seven students but one did not attend so there were only six students, but for the original seven students in September the age range was 30 months. [Tr. 201] In November 2009 the class dynamics had changed as four students transferred into the class and three students transferred out of the class. [Tr. 200-201]

Ms. testified that related services were available at the school and that all of the related service mandates in .'s IEP could have been provided at the school by licensed certified providers. [Tr. 205-207] The students in Ms. s class would transition from the class room to another site within the school or outside of the building accompanied by the paraprofessional. [Tr. 209] If needed, accommodations could have been made for . in situations where there were large groups of students such as at lunch time. [Tr. 212]

, special education teacher , testified that she had a B.A. Degree in early childhood education and a Master's degree from Teachers College at Columbia University in early childhood education and special education. She was NY state certified to teach early childhood education and special education. In September 2009, it was her second year teaching at . [Tr. 356-357] In September the age range of the of the class was years old. Their reading levels were from emergent pre-readers to middle of readers. The math levels were from pre to early kindergarten level to high level. Regarding social skills Ms. testified that some students had and some students were functioning at about a level who served as role models for the younger students. [Tr. 359-361]

To address the varied levels of the students in her class in September 2009, Ms. testified that she differentiated her class lessons using multi-modal presentations using visual supports. She had a modified workshop design where in one reading, writing or math workshop she might have two to three lessons going on in small groups to address the needs of each student. She did a lot of small group work and guided reading groups and conferenced with each student individually and offered individual instruction during independent work time. She had a certified paraprofessional assigned to the class who helped students transition to and from activities and helped students stay on task during independent work time. The paraprofessional stayed with the class during lunch, recess and classroom prep. [Tr. 362-364]

Ms. explained that the November 2, 2009 class profile which was prepared in response to a subpoena for this hearing, differed from the class profile in September 2009 due to the fact that three students transferred out of her classroom into a less restrictive environment and three students transferred into the class. [Tr. 367] Ms. indicated the deficit areas in .'s April 30, 2009 IEP and explained in detail how she would address each of .'s identified needs. [Tr. 368-369] She discussed how she would address the needs of her students during arrival and dismissal procedures and during lunch time and explained how she would make individual accommodations if necessary for any of her students who were having problems due to the large volume of students. [Tr. 370-374] As to the goals indicated on .'s IEP, Ms. detailed her strategies for achieving them. [Tr. 374-376] Ms. stated that based on .'s September 2009 IEP, he would have fit in well in the class and believed that he would have made progress. [Tr. 427-428]

THE PARENTS' POSITION

The parents seek tuition reimbursement at the school on the grounds that the DOE failed to provide the student with FAPE for the 2009-2010 school year and the school offered a program that provided special education and related services tailored to meet needs. The equities support the parents due to their cooperative participation throughout the CSE placement process.

The parent claimed that the IEP was invalid as the CSE was not properly constituted; there was not an appropriate recommendation or offer of placement; the CSE failed to fully evaluate the student in all areas of suspected disability and did not consider sufficient and appropriate evaluative and documentary material to justify their recommendations and goals. The parent claimed that no parent member or general education teacher attended the CSE meeting; the CSE did not fully evaluate . in all areas of suspected disability, including the area of gross motor development.

The parent claimed that the IEP was not reasonably calculated to provide meaningful educational benefit and avoid regression. The program specified in the IEP did not provide for sufficient individual support to allow . to make measurable academic and social progress and avoid regression. The IEP failed to fully and accurately reflect .'s current levels of performance and need, and the management supports specified are insufficient to adequately address .' s learning and social needs in the classroom and throughout the school day. There was an insufficient number of appropriate, objectively measurable goals to adequately address .'s needs. No goals were provided to address his emotional issues, anxiety, auditory process issues, oral dyspraxia, visual motor issues or difficulty with visual discrimination, or his gross motor delays including balance and coordination issues. The goals that were provided were compounded, too few, and too generic to adequately address .'s needs, and did not provide objectively measurable benchmarks by which to assess .'s progress throughout the year. Additionally, the program and supports provided in the IEP were not sufficient to allow to achieve the goals specified, and no transition supports were provided to facilitate 's transition from his current program to that recommended in the IEP. (Exh. A)

Witnesses for the parent included the director and .'s class room teacher from the school, the occupational therapist who provided related services at the school, the occupational therapist and provider who were hired by the parent to provide services outside the school and the parent.

, parent has a doctorate in education. [Tr. 598] Ms. testified that when . was . [Tr. 599] After . left nursery school they saw an immunologist who gave . a couple of to help with that were a result of the and which caused an inability to metabolize certain foods. When he was about three they noticed that his for his age. [Tr. 601] He was enrolled in a nursery school that specialized program for children with significant language impairment at the . [Tr. 603-604] After that he was enrolled at the where he had a SEIT and where he spent a regular pre-K year. [Tr. 604] In 2008 the M. was enrolled for kindergarten at the so he could have a smaller class room setting and more attention. [Tr. 605]

Ms. testified that she recalled some of the CSE meeting which took place in April 2009 because it was two years ago. She recalled that those present at the meeting were a school psychologist who was also the District representative, 's class room teacher at the time, , who participated by telephone, Ms. a DOE special education teacher was there and a parent member that was there for part of the meeting by telephone. Ms. testified that she was asked at the CSE meeting if it was okay that the parent member was not present in person but participated on the telephone and if they could continue without her being present for the entire meeting and she stated that it was okay. [Tr. 606-608] Ms. stated that the level of services recommended was sufficient for the school day because the parents provided at their own expense additional services of . [Tr. 615-616]

The parents are not seeking reimbursement for the after school services which they provided at their expense. [Tr. 619] Ms received a placement offer from the DOE for the 2009/2010 school year in May 2009. [Tr. 620] She went to visit the recommended school in June 2009 and met with the parent coordinator for the school. [Tr. 621] She stated that she had a lot of questions about the recommended class but did not have them answered. She wrote a letter dated June 8, 2009 which she faxed to the DOE in an effort to have her questions answered but never got a response. (Exh. C) [Tr. 622-623] Ms. wrote another letter dated August 27, 2009 stating that she visited the recommended program and sent a letter addressing her concerns regarding the inappropriateness of the placement and that she had not received a response. (Exh. D) [Tr. 624] The parents enrolled school for the 2009/2010 school year for which they paid $25,000 for tuition and for which amount they are requesting reimbursement. [Tr. 626-627] Ms. is very pleased with the school because it’s a small class, . gets a lot of one on one [support] is reading now on grade level and getting all the support he needs. Also they allow her to work with them. The school along with the six private appointments a week after school with providers has enabled to make progress. [Tr. 628-629]

During cross-examination Ms. stated that she did not raise any objections to the composition of the IEP team nor did she raise any objections at the meeting regarding the team not discussing any of the reports provided. She stated that she did not need to question the team to discuss things that she knew about and did not feel that were any changes in his from the 2008/2009 school year that should have been discussed at the IEP meeting. Ms. testified that the CSE team basically went over the services that . was receiving; the CSE team concluded that it would be wise to just continue the same level of services and she agreed. “I agreed with that, I said yes , then they went on to discuss the classroom assignment and ….they wanted to know if my opinion of the classification should be kept the same of or should it be and I said I was fine with speech impairment.” She testified that did not want the team to discuss more things and she was okay with the meeting because they were going to continue the level of services. [Tr. 630-633] Ms. stated that at the IEP meeting she was informed that they recommended a class but did not recall raising any objection at the meeting. [Tr. 635]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose of the IDEA is to ensure that students with disabilities are provided with a free appropriate public education (FAPE). 20 U.S.C. §§ 1400-1487 A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. §1414 (d) 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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 , (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, (1993); Cerra v. Pawling Cent Sch. Dist., 427 F.3d, (2d Cir. 2005).

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits Bd of Educ. v. Rowley, 458 U.S. (1982). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Schl. Dist., 346 F. 3d 377 (2d Cir. 2003) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir. 2003).

A denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process, see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656, 659 (S.D.N.Y. 2005); W.A. v. Pascarella, 153 F. Supp. 2D 144, 153 (D. Conn. 2001); Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242 (D. Vt.

1996) or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP, see Arlington Cent. Sch. Dist. v. D.K. , 2002 WL 3151158 (S.D.N.Y. 2002). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression”, see Weixel v. Bd. Of Educ., 287 F.3d 138, 151 (2d Cir. 2002) quoting M.S. v. Bd. of Educ., 231 F.3d 96 (2d Cir. 1998) This progress must be meaningful; i.e., more than mere trivial advancement, Walczak, 142 F3d at 130. The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability, Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. Of Educ., 281 F. Supp. 2D 710, 726 (S.D.N.Y. 2003). The student's recommended program must also be provided in the least restrictive environment LRE, 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.550 (b); 8 NYCRR 200.6(a)(1).

In this case there was no dispute that required special education services and related services. There was also no dispute as to the CSE's classification of the student with and the CSE's recommendations for related services. The parent claimed that the placement was not appropriate on procedural and substantive grounds. However, at the April 30, 2009, CSE meeting the parent did not disagree with the recommendations made and in fact stated that she was satisfied with the meeting because it continued the related services M. had been receiving. [Tr. 635]

The policy considerations of incorporating a full team are to ensure that the CSE team and the parent(s) are provided with all of the appropriate people and expertise necessary to make an informed decision about the course of services which would benefit the student in question, as well as ensure that the parent's due process rights are protected.

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

1) impeded the student's right to a free and appropriate public education, 2) significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. 2007); Application of a Child with a Disability, Appeal No. 007-007. In consideration of the IDEA's requirements and the case law, I find that the alleged procedural errors did not deny the student FAPE, or impede the parent's opportunity to participate in the decision making process regarding the provision of FAPE, nor cause a deprivation of educational benefits.

The review team must include all the legally mandated members as required under the IDEA and the New York Ste regulations. 20 USCS § 1414(d)(1)(B); 8 NYCRR § 200.3 (a). Pursuant to New York State regulations, the required participants must include the parent; a regular education teacher if the student is, or may be participating in the general education environment; a school psychologist; a special education teacher and/or a related service provider; a district representative who is a representative of the school district, who is also qualified to provide or supervise special education is knowledgeable about the general curriculum and the availability of resources of the school district and who may also fulfill the role of another person on the team; a school physician is required if the request is made in writing by the parent(s) at least 72 hours prior to the meeting; a parent member; any other person that the school district and/or parent designate as having knowledge or special expertise regarding the student; and the student if deemed appropriate. 8 NYCCRR Sec. 200.3(a)(1)(i) through (x).

The CSE review team which met on April 30, 2009, was comprised of the student's mother, the student's then current special education teacher from , the district's school psychologist, who also served as the district representative, a special education teacher from the district, Ms. and a parent member who appeared by telephone. (Exh. 4)

The parent claimed that the CSE review team was not duly constituted as it lacked a general education teacher and the parent member. I find this claim to be without merit as the student was not being considered for general education, therefore it had no substantive effect on whether the student was provided a FAPE. A general education teacher was not required where the student was never considered for general education. M.P.G. v. NYCDOE, 08 Civ. 8051 (TPG) The parent acknowledged that a parent member appeared by telephone and the parent consented to the parent member not being present for the entire meeting. [Tr. 607-608] There was no evidence presented to indicate that the parent wanted or requested that any other person to be present at the meeting or that any of the members at the meeting were inappropriate. I find that the CSE team was duly constituted as it was comprised of all the legally mandated members and the parent, a doctor of education, was fully aware of the process and was afforded full participation in the meeting.

Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation See P.K. v. Bedford, 569 F. Supp. 2d at 383 ["A professional disagreement is not an IDEA violation"]; Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella, 2006 WL 3697318.

The parent claimed that the IEP was not valid because performance standards were not based on standard evaluations or testing. However, New York State regulations do not require these sections to be based on such information. A CSE is responsible for evaluating children with disabilities and/or suspected of having disabilities who reside with the school district. The team must conduct certain assessments that they deem necessary. 20 USCS Sec. 1414(b)(2); 8 NYCRR § 200.4 (b) and (d). See also Application of Child With a Disability, Appeal No. 10-004. There the SRO found that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs and that a CSE is not required to use its own evaluations in the preparation of an IEP and in the recommendation of an appropriate program for a student. For such purposes, a CSE may rely upon a private evaluation in lieu of conducting its own evaluation. The SRO also found that there was no testimony that the parents requested the district to conduct any evaluations of the student that the district declined to conduct, nor did the parents claim the evaluations in the record were deficient in any way.

In this case, the present levels of performance pages of the IEP were derived directly from the student's teacher at who participated in the IEP meeting and the related service providers' reports. (Exhs. 5-7) [Tr. 110,112] The reports were based on their working with during the 2008-2009 school year and data collected during the student's working with them. The reports were written by the people who knew the student best and had regular, consistent and recent contact with the student. The teacher gave what she determined to be the student's performance at that time. Both the DOE and the parent agreed that the levels and descriptions on the April 30, 2009 IEP were accurate, and the parent stated that she was satisfied with the meeting. [Tr. 635] There was no evidence presented indicating that the parent objected to the Gesher school evaluations, or claimed that they were deficient or inaccurate nor was there any evidence that the parent requested additional evaluations.

The most reliable indicators of how was performing at the time of the review were the progress reports and statements by the teachers and reports of the therapists who worked with him. There was no evidence presented to refute the accuracy of the assessments of 's performance.

The CSE worked with recent objective evaluative criteria and updated information from the student’s mother and current teacher, and service providers from which it made educated and reasoned professional decisions to make its recommendations to reflect .'s current functioning and to recommend an appropriate program for the student’s 2010-2011 school year.

The parent claimed that the goals and objectives on the IEP are inadequate to meet M.'s needs. However, Ms. , the psychologist from the IEP team testified in detail how the goals were drafted with input from the student's teacher at the , the provider reports from the providers who worked directly with the student, and how the parent, teacher and whole team had a thorough discussion at the meeting regarding the goals and that at the end of the meeting the parent did not object to any of the goals. On the contrary, Ms. testified that she found the meeting to be satisfactory. [Tr. 119, 121-123, 633]

The goals written on the IEP were specific . and measurable in that they give detailed instructions as to what M. should be working on, based on his educational deficits noted on the IEP. Ms. testified how the CSE team formulated the goals as they were written in the IEP and how they addressed 's individual deficits. [Tr. 147-166] She stated that the CSE team created the goals based on what they were provided in the most recent reports from the and information provided at the meeting. [Tr. 116-124] Based on the evidence presented, I find that the goals and objectives on the IEP are clear, unambiguous, adequate, sufficiently challenging and tailored for . and could have been implemented in the recommended program.

The parent claimed that the recommended placement at was not appropriate for . because it was too large, could not provide . with appropriate support to meet his needs and the class offered did not provide appropriate functional grouping. However, the principal of , Ms. and the special education teacher in the recommended class, Ms. , testified that . would have been functionally groups in the proposed class. Ms. testified how her class at the start of the school year in September 2009 had six students on the first day of school ranging from ages 5-8 years old and functioning at anywhere from preK to high first grade level for math and reading. [Tr. 201, 228, 359-361] According to M.'s IEP, he was functioning between a K level for reading and math going into the 2009-2010 school year. (Exh. 4) Therefore, would have been functionally grouped within such a class. Ms. also testified how she would implement .'s goals in her class room if he attended and that she believed that . would have fit well in her class and would have made academic progress there. [Tr. 374-376, 418]

Both Ms. testified how if . came to and was found to be overwhelmed at times when he was around a large group of students that accommodations could have been made for him. [Tr. 212, 371] Further, Ms. testified that the school would have been able to provide the related services mandated in the IEP within the school and that no student received related service authorizations for the 2009-2010 school year. [Tr. 248] However, if the DOE needed to issue RSA's to . the school district may order the RSA's to satisfy its duty to provide FAPE. See Application of a Child With a Disability, Appeal No. 10-060. The recommended placement allowed M. to interact with general education students in special classes such as library where there was one librarian and two paraprofessionals. Based on all the evidence presented, I find that the recommended placement was appropriate.

An appropriate education is one that should be reasonably calculated to enable the child to receive an educational benefit, and the IEP need not be designed to maximize the student's potential. The preponderance of the evidence in the record show that the DOE's recommended program was reasonably calculated to confer educational benefits to M. in the least restrictive environment. The IDEA does not require that a district provide “everything that might be thought desirable by loving parents. Walczak, 142 F. 3d at 132. The record shows that the DOE met its evidentiary burden of providing FAPE in this case and therefore the issue of the appropriateness of the parent's placement need not be addressed. Accordingly, the parent's request for reimbursement for the tuition at a nonpublic private special education school is denied.

ORDER

The parent's request for reimbursement is denied and the parent's complaint is dismissed in its entirety. Dated: September 7, 2011

_____________________________

RACHEL POTASZNIK, ESQ.

Impartial Hearing Officer RP: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

No. Date Document No. of Pages

Parent Exhibits

A 03/10/11 Amended Impartial Hearing Request 4

B 02/02/11 Subpoena to Principal 3

with fax transmission

C 06/08/09 Parents’ Letter to CSE 3

D 08/27/09 Parents’ Letter to 2

E 02/15/08 IEP 15

F June 2010 Student Progress Report 2 G 02/11/10 Therapy Progress Report 2 H Undated Progress Report 1 I 01/14/10 Progress Report 1 J 2009-2010 Class Profile 1 K January 2009 Progress Report 1 L 12/21/10 Affidavit of 1 M 2009-2010 Enrollment Contract 1 N 2009-2010 Daily Attendance Record 1 O 2009-2010 Class Schedule 1 P 2009-2010 Schedule 1 Q 2009-2010 Schedule 1 R 2009-2010 Schedule 1 S Undated Program Description 4 T Various Proof of Payment – Cancelled Checks 11 U April 2010 School Demographics and Accountability Snapshot 3

V 2009-2010 Special Education Service Delivery Report 1 W 03/07/11 Organization Sheet 2009-2010 1 X 03/07/11 Class Profile Request 2009-2010 Grade K-2 3 Y 03/07/11 Curriculum Materials 35 Z 03/07/11 Prep Schedule Fall 2009, Spring 2010 2 AA 03/07/11 Class Schedule 1 BB 03/07/11 K-2 204 Class Information 1 CC 06/01/09 Parent Coordinator’s Log 1 DD 11/09/09 Parent Coordinator’s Log 1 EE Undated Report Card 1 FF Undated Class Schedule (Friday) 1 GG 05/04/10 Report 2 HH 06/08/10 Progress Report 3 Department of Education Exhibits 1 3/09/11 Due Process Complaint 4 2 3/21/11 Due Process Response 4 3 5/29/09 Final Notice of Recommendation 1 4 4/30/09 Individualized Education Program 17 5 2/09/09 Related Service Progress 2 6 2/03/09 Related Service Progress 1 7 1/26/09 Related Service Progress Report 1 8 12/05/07 Classroom Progress Report 2 9 12/04/08 Medical Report 15 10 3/17/06 Classroom Observation 1 11 Undated Pamphlet 3 Impartial Hearing Officer's Exhibits i. Parent's Memorandum of Law in Closing Argument, dated 8/10/11 24 ii. DOE's Closing Brief and Memorandum of Law, dated 8/10/11, 19