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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District: 2
Hearing Requested By: Parent
Date of Hearing: March 24, 2011
June 22, 2011
Actual Record Closed Date: August 1, 2011
Hearing Officer: Judith T. Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 24, 2011
Attorney — Student
Parents
Parents
DOE Attorney — DOE
Psychologist (Via telephone) — DOE
Teacher (Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 22, 2011
Attorney — Student
Parents
Parents
Administrator (Via telephone) — Student
Teacher (Via telephone) — Student
DOE Attorney — DOE
— DOE
INTRODUCTION
On March 24, 2011, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (“DOE”) to provide a free appropriate public education (“FAPE”) to . (“the child“) for the 2010-2011. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. and was continued on June 22, 2011.
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On November 17, 2010, the parent filed a request for an impartial hearing alleging that the Committee on Education (“CSE”) failed to provide a FAPE for the 2010- 2011. Among other things, the parent alleged that there were procedural and substantive deficiencies in the creation of the Individualized Education Program (“IEP”). As such, the parent is seeking tuition reimbursement for the child who was unilaterally placed in and attended the Center School-Our of (“ ”) for the 2010-2011 school year. (Parent‟s Ex. A)
THE PARENT’S POSITION
The parent contends that there were many procedural and substantive defects in the child‟s IEP created on March 24, 2010 including the fact that:1) there was no general education teacher present at the CSE meeting, 2) the goals were vague, 3) there was no adequate level of current performance noted, and 4) there was no indication of how the goals were to be measured. She further alleges that the placement at was not an appropriate placement for the child. The parent contends that provides the child with an appropriate placement and that she has made progress there. Lastly, the parent contends that the equities favor her because she has fully cooperated with the DOE. Accordingly, she is seeking tuition reimbursement for for the 2010-2011 school year.
THE DOE’S POSITION
The DOE contends that it provided a FAPE to the child. It contends that the IEP was properly created and that the CSE was appropriately constituted. It further contends that the placement at would have provided the child with an appropriate placement. Finally it contends that the parent is not entitled to tuition reimbursement for . The DOE asks that the request be dismissed in its entirety.
THE EVIDENCE PRESENTED
The child is -year- - month old child who was born with syndrome
(T. 259). She was first evaluated at and a months old and immediately began receiving Early Intervention services consisting of and therapy (“ ”), therapy (“ ”), and instruction, ending at about 14 to 16 months (T. 260-61). Upon aging out of early intervention, the child then received therapy (“ ”), , , and instruction through the Committee on Education (“CPSE”) (T. 261). The child attended a Center Based program at the Street Family Center for (Id.). After a few months at the program, the child was given a management paraprofessional (para) as she would place dangerous objects in her mouth or try to run from the classroom (T. 262). The child attended Street with a para and received education itinerant teacher (“SEIT”) services at home until she aged out, upon turning (T. 263).
A neuropsychological evaluation by Dr. in August of 2009 indicated that the child experienced expressive deficits, and that although she reached her motor milestones generally on time, the child has continued difficulty with complex motor movements (Dist. Ex. 1 at p. 1). He observed during the evaluation that the child fluctuated between periods of “ ” or “ ” and “ ” or “self-directed” s; though overall she was friendly and (Id. at p. 2). Throughout the evaluation, Dr. noted the child‟s responsiveness to redirection, reminders, and scaffolding. (Id. at p. 6). The evaluation further states that the child‟s [re-academic abilities are solidly average but that she needed redirection and . (Parents‟ Ex. H.4). He recommends a structured but less-restrictive pre-setting with some 1:1 instruction. (Parents” Ex. H.5)
A “turning ” CSE meeting was held on March 24, 2010 to develop an IEP. The CSE members had the child‟s neuropsychological evaluation, her Street progress report, and all of the reports from her related service providers (T. 29). Additionally, the CSE team reviewed the classroom observation completed by Dr. , a school psychologist (Id.). The child was one of only 11 students at the School. She was in a classroom with four adults including a para,
The CSE team recommended a collaborative team teaching 1 („CTT”) classroom with related services. (Dist. Ex. 11). The parents received a final notice of recommendation on June 9, 2010, recommending the class at in Manhattan (Parent Ex G). The parents visited the school and observed the classroom, voiced their subsequent concerns in a letter to the district, and asked for additional help and information (Dist. Ex. 13). When the parents did not hear back from the district, they enrolled the child at for the 2010-2011 school year, and requested an impartial hearing seeking tuition reimbursement from the district (Parent Ex. B).
, a certified needs teacher at testified that she has been teaching at for one year (T. 75-76, 77). Prior to that she was the needs coordinator and educational coordinator at Early Head Start. (T. 76). Ms. had never taught a student with syndrome (T. 121). She has no personal familiarity with but reviewed her IEP (T. 114-15).
In September 2010, Ms. co-taught a Collaborative Team Teaching
(CTT) class with 21 children and one other teacher (T. 77). This is the class the child would have attended at (T. 114-15). Six other children in that class had IEPs
(T. 78). Only one other student was -years-old in September, most were . (Id.). The child would have been four years and eleven months in September 2010. (Parent‟s
1 A collaborative team teaching (CTT) class, also referred to as an integrative co-teaching (ICT) class, means "the provision of designed instruction and academic instruction provided to a group of students with disabilities and non-disabled students" (8 NYCRR 200.6[g]). It is a requirement of any ICT classroom that no more than half of the students be classified with disabilities, such that there is at a maximum a ratio between and general education students (8 NYCRR 200.6[g][1]).).
Ex. D.1)Ms. , testified that she reviewed the goals on the child‟s IEP and would have worked towards these goals in her classroom. She stated that the goals are benchmarks for (T. 108). [2]
Ms. described the parallel teaching process that is typical of a CTT classroom (T. 88). She indicated that “the students are split into two groups and each teacher teaches the same lesson” (T. 88). She mentioned that the class spent a lot of time doing small group teaching with a group of children. (T. 90) She also thinks that “parallel teaching in most is small group [instruction]” (T. 94). For children that need “extra assistance” or “more prompts,” Ms. said that groups would be reduced to three or (T. 88, 90). They also do station teaching and instruction. (T. 89-91)
In addition, Ms. stated that for students who still require additional support, there was “extended time” from 2:30-3:27 p.m. where children received instruction and/or station work (T. 95-96). Ms. further testified that if the child was having difficulty sitting in the larger group “[I] would have been able to sit with [the child] or have her sit in a chair a little separate from the group” still sitting with her peers” (T.109). Ms. testified that she would speak with the family and ask if there is anything that helps to calm her such as a toy or a strategy they‟re using at home to help make the transition into the classroom a little easier (T. 122). She would: 1) give the child preferential seating placing her close to a teacher at all times, until she began to feel comfortable with the other students, 2) do a lot of small group and one-onone instruction to help the child feel more comfortable and 3) assign her to a buddy that she had good interactions with that could assist her and give her extra peer support (T. 123).
Ms. addressed the child‟s and issues. She testified that the classroom is kept free of ; only charts and posters that benefit the students are up on the walls. There is nothing hanging from the ceiling to distract the students (T.80-81). It‟s a very calming and quiet room that gets a lot of natural light, so they have the opportunity to turn off the lights at times to add more of a calming factor to the classroom (T. 81). She employs a lot of redirection and prompting. Ms. also uses manipulatives to help the children stay and on task. (Tr. 107-108).
She testified that the classroom techniques like “small group time” and one-onone instruction were also options to address the child‟s issues with large groups. (T. 94). Ms. indicated that each student with an IEP received instruction every day.
(T. 94), The instruction is between 15 and twenty minutes. (T. 124).
Ms. described a typical day in her classroom. Throughout the day she is working on , and of skills with the students (T. 81-84). She works towards regulating their minds and bodies to the classroom and builds their independence (T. 82). The class schedule includes writing, reading, transition aids, math, word study choice time, studies, and science and cluster classes of music, library, art and drama (Tr. 82-84).
Ms. described a typical math session where she uses parallel teaching, which works well because they use many supports (T. 86). The children move from a mini-lesson to small group, to independent work and a reflection (T. 87). Ms. will model ; partnered with one of the students and the children can watch (T. 8687). After the mini-lesson, she and her co-teacher walk around assessing and providing assistance to those who need it. (T. 87). Reading is usually started as a whole class, and then a small group is pulled for prompting and redirection to make sure they continue on with the lesson (T. 92). Writing is usually done in parallel teaching (T. 92). Star charts are used to help transition the students to the next class and to positively encourage the students s based on their goals (T. 93).
She uses a multi-approach and has various materials and equipment in the classroom to assist the children to stay regulated such as disco seats, weighted vests, sand tubes and movement breaks (T. 100-101). She is also familiar with the PECS system which the child uses at and which she uses in her class (Tr. 106). She has never taught a child with syndrome but a member of her family has syndrome and she has familiarity with it. (T. 105)
She has regular communication and with the related service providers. (T. 78-79). Ms. testified that the related service and therapy rooms are on all different levels, with - on the third floor (T. 125). The classrooms themselves are located in the “basement” and require descending 10 or 15 steps to access
(T. 134).
She also testified that there were two children with needs who had trouble expressing themselves and would sometimes crawl under a desk or put their head or sir in the middle of the rug when others were lining up to go to music. (T.119) They never hit anyone but might shove someone to get in line. (T. 119). These students did not have Intervention Plans because they do not need one (T. 120).
The child‟s and note the child‟s overall muscle weakness, including weaknesses with postural control, endurance, coordination, and body awareness (Dist. Ex. 5; Dist. Ex. 6; Dist. Ex. 7). The report stated that she has some episodes of and but is independent with most tasks. It further notes that she can ascend and descend stairs while holding the handrail. (DOE Ex. 6.3)
Dr. is a Ph.D. in educational psychology and has worked as a school psychologist at for close to 20 years (T. 24). He is a duly certified school psychologist in the state of NY (T. 24). He sat as the school psychologist for the CSE review on March 24, 2010 (T.26). He testified that at the time of the CSE review the child was attending Street and was a pre-student (T. 26). The purpose of this review was to determine what services would help the child in September when she went to (T. 28). Dr. testified that both parents were present at the review, as well as the child‟s SL therapist, a parent member and a worker (T. 28). Ms.
, the child‟s teacher from Street was called by telephone after the CSE meeting. (T.28-29)
Dr. testified that the team reviewed that psychological evaluation dated August of 2009, a Street Educational Progress Report dated 1/13/2010, a DOE observation by Dr. dated 1/15/2010, a Street Therapy report dated January 2010, a SPOTS Therapy report dated 1/6/2010, a SPOTS Therapy report dated 1/19/2010, a Therapy report dated 1/21/2010 by Allyson Perch, a and progress note dated 1/10/2010 by Phyllis Fabricant and another dated 1/11/2010 by Sara Scharf (T. 20-23; 29; DOE Ex. 1-9).
Dr. observation of the child included a Evaluation Scales from the teacher‟s point of view in order to get the estimate of the child‟s functioning. He also administered the Vineland (T. 30; 32). The Vineland was done to get a sense of how the child is adapting. In this case the information was given by the child‟s mother as to how the child functions at home (T. 32). The results of the Vineland showed that the child made improvements in all her core areas (T. 32).
Dr. stated that the purpose of an observation is to observe the child in her current educational setting and interview of the teacher in addition to reading the reports. It gives him “first hand experience and understanding of a child”. (T. 33).
He testified that he administered the Evaluation Scale which consists of questions in different areas from the teacher‟s point of view (T. 30). The Evaluation Scale revealed that the child was able to participate in the daily routine in the classroom and that she is able to seek assistance, which she did (T. 55). The scores when compared to Dr. ‟s report which included adaptive skills such as in communication of concepts, in self-care, skills and daily living skills showed improvement. (T. 5758; 64; DOE Ex. 1; Ex. 3). Dr. also compared his Vineland scores to older Vineland scores from 2008, which were in the CSE file and likewise found improvement in the child‟s adaptive skills (Tr. 57-58). The results of the various evaluations are not noted on the IEP. The information that was contained within the evaluations that was relied upon by the CSE was noted in the performance description of present performance on the IEP.
(T. 67-69; DOE Ex. 11).
Dr. clinical impression of the child after having observed her was that she was a high functioning ‟s syndrome child who had improved since September 2009
(T. 31). He described her as a “very lovely child who has no maladaptive , but a lot of needs” (T. 31). He observed that she was able to follow instructions and enjoyed play (T. 31). The teacher relayed to Dr. that this was a usual day for the child (T. 31). Dr. stated that the child was not observed during an academic period in her program. He further stated that it is not necessary to observe the student in an academic setting in order to be able to understand the child‟s functioning (T. 40).
Dr. testified that the CSE ultimately recommended a CTT program for the child because of her progress and the potential to continue making more progress if she is able to be with the mainstream population. (T. 38). Dr. , as the psychologist who sat on the review, believed he had sufficient information to make a determination as to this student‟s educational program. Dr. testified that the CTT classroom would be a supportive and structured environment with two licensed teachers, one licensed in needs, to support and provide services for the child to be able to make educational progress (Tr. 48). Dr. specifically testified that if the program did not work out, and the child required more support, it was subject to change and he explained this to the parent (T. 48-49; 274).
Dr. testified as to how the CSE team conducted the review and that the parents were included in the CSE review process. (T. 33). The participants discussed the improvements that the child had made which were impressive to all her service providers
(T. 33). They discussed the child‟s needs as of September and how to best meet those needs (T. 33). Those discussions showed that the child continues to need related service supports. Dr. also believed that the child could benefit from the least restrictive environment in an integrated class (T. 34; 35).[3]
Dr. testified that he reviewed the 2009 psychological evaluation done by Dr.
at the CSE review. (T. 45-46). He stated that he afforded the parents and the teacher, Ms. (who was later contacted by telephone and who previously spoken with Dr. at the time of his evaluation),4 an opportunity to ask questions and voice any concerns. They both offered useful information.
Dr. testified that the goals for related services were provided by the child‟s service providers (T. 36) and that the classroom goals were provided by Street, presumably by her teacher (Tr. 36-37). The parent also testified that the goals were written by each therapist or provider and the classroom teacher ahead of time and given to Dr. (Tr. 268). All of these goals had been provided to the parent ahead of time by Street and were incorporated into the IEP on March 24, 2010 (T. 37; 271).
Dr, testified that the goals were specific and measurable primarily by teacher observation at the level. (T. 61) Dr. gave as an example the goal on page 6-A of the IEP which stated that the child will greet peers independently 80% of the time independently and ask at least one question with teacher support which would be measured by teacher observation (T. 37; 60-61). The parent testified that she did not have a problem with any of the goals (T. 311-312).
Dr. testified that the child did not need one-to-one para. Ms. testified that a paraprofessional might have been an “added support” for the child. (T. 124). Dr.
explained that once the child attended the school, and it was determined that she needed further support; a request for a para could be made. (T. 274). Ms. explained that if a one-to-one para was warranted she would be able to assess the situation with her administration and the IEP team at the school in with the family. (T.131-132).
The testimony from the witnesses from indicated that the child‟s program consisted of a class of 8 needs students who generally have one teacher, an assistant teacher and two paras in the classroom. These 8 children are mainstreamed, accompanied by the two paras for art, gym and library each once a week in a class with 18 typically developing children. (T. 159-161, 192). For children who could not handle this integration, they are re-scheduled to attend other services. (T. 161). The child was not one of those who had to be re-programmed. She successfully participated in this integrated program at . (T. 200-201; 208). In addition, the child participated in an extra integrated play period in the morning where she participated as the 19th student (T. 162-163; 193). Ms. testified that she has observed the child in larger settings with up to 26 students and this integrated setting was successful for the child. She never had to 4 Dr. explained that because he did not have a speaker phone, he called Ms. after the CSE meeting to confer with her. He asked if anything new should be added (T. 50-51). accommodate the child when in the inclusion class. She said that the child benefits from peer modeling and from inclusion. She testified that the child‟s program will be extended to the full inclusion program with support at next year (T. 197). The parent testified that she was in agreement with that recommended program for next year.
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes education and related services designed to fulfill the unique needs of the student with a disability, and it is provided in uniformity with a written IEP. 20 U.S.C. §1401(8).
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; WalczakE.G. v. City Sch. Dist. of New RochellePatskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
The DOE may be required to pay for tuition at a unilateral placement in a private school or for education services where the DOE is found to have denied the student FAPE. Burlington School Comm. V. Dep‟T of Educ., 471 U.S. 359 (1985); Florence County School Dist. V. Carter, 510 U.S. 7 (1993).
The DOE has the burden of showing by a preponderance of the evidence that it provided the child with a FAPE for the 2010-2011 school year. The DOE has met that burden.
First, the parent‟s belated request at the hearing that the child should have a para assigned to her may not be considered. The DOE correctly asserts that pursuant to the Regulations, a party requesting an impartial hearing may not raise issues at the hearing that were not raised in the due process request unless the other party agrees or the request is amended at least days prior to the hearing. Here, no such agreement or amended was offered. Therefore, the issue of whether the IEP should have included a para, may not be considered since it was not included in the request for an impartial hearing. (See Application of a Child with a Disability, Appeal Nos. 08-056 and 09-141).
The parent‟s claim that the child was denied FAPE because there was no general education teacher present must also be rejected. The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive al interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; 34 C.F.R. § 300.324[a][3]; 8 NYCRR 200.3[d]).
However, in this case, a regular education teacher was not required at the CSE meeting, because the evidence does not show that the CSE considered placing the student in a general education classroom for the 2010-11 school year. In fact, the evidence shows that the DOE recommended a CTT classroom with a needs teacher in the class. Thus, a regular education teacher of the student was not required at the June 2010 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned exclusively to such a teacher (34 C.F.R. § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 287-88 [S.D.N.Y. 2010]; M.N. v. New York City Dep't of Educ., Region 9 (Dist. 2), 700 F. Supp. 2d 356, 365-366 [S.D.N.Y. 2010]; Tarlowe, 2008 WL 2736027, at *5-*6; see Application of a Student with a Disability, Appeal No. 11-008; Application of a Student with a Disability, Appeal No. 10-076).
In evaluating whether the DOE has complied with the procedural requirements of the IDEA, several factors must be considered before a violation of FAPE may be found. Those factors are did the alleged procedural violations either 1) impede the student‟s right to a free and appropriate public education, 2) significantly impede the parents‟ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) cause a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007. “While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.” [Appeal No. 07046].
It is true that the CSE did not have a education teacher present. However, the child‟s provider was present. On the IEP there is specific line indicating that a education teacher or the related service provider must be present. Here, the absence of the education teacher and the presence of a related service provider was not a violation of FAPE or deprive the child of an educational benefit.
The parents also contend that the CTT program was not appropriate. However, the testimony of Dr. supports the conclusion that the CTT class could have implemented supported all of the academic and goals set forth on the IEP. The fact that the CTT class at contained only six children with IEPs --fewer than 12 recommended on the IEP--is also not a deprivation of FAPE. It is well settled that discrepancies between services actually provided by a placement school and those mandated by an IEP do not necessarily violate IDEA. See A.P. v. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (attached); see also Van Duyn v. Baker Sch. Dist., 502 F.3d 811 (9th Cir. 2007); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341 (5th Cir. 2000). Here the actual class ratio was more favorable than the one provided for in the IEP. Thus, the child would have had a greater opportunity to receive more individualized attention and to work in smaller groups.
The parents also claim that the absence of any reference to evaluations used to determine the child‟s current level of performance is a violation of 34 CFR Part 300. However, Dr. testified that he and the other members of the CSE relied upon many things including the Evaluation Scale, the Vineland as well as the evaluations performed by Drs. and Dr. . The evaluations were consistent in that all showed improvement. That these test results were not listed on the IEP and only the teacher estimates and narrative descriptions of current level of performance were, does not rise to the level of a violation of FAPE.
As to the parents‟ claim that the goals on the IEP were too vague and generic (Parents‟ Ex.A-3), that too is not supported by the evidence. Ms indicated that the goals on the IEP set forth the goals and benchmarks for kindergartners. Ms. testified that she was using them in her classroom and the parent testified that she had no problem with the goals which she stated were written by the child‟s related service providers and her teacher, Ms. .
Finally, the parents contend that is too large for the child. They state that she will be unable to navigate the stairs and that she will have a hard time adjusting to a large group such as in the lunchroom. However, the evidence submitted by the child‟s provider stated that she can ascend and descend the stairs while holding the handrail and that she can engage in such activities independently. Moreover, Ms addressed the many strategies that she would have used to mitigate the child‟s difficulty with large groups. With regard to the lunch hour, Ms indicated that she walks the children to the lunchroom.(T. 83) She would sit with her at lunch and also have a buddy sit with the child in the lunchroom to give her support. (T. 123) Thus, the parents concerns, while understandable, did not establish that the placement at denied their child a FAPE.
Since the DOE has met its burden to show that it provided the child a FAPE, it is not necessary to address the issue of whether is an appropriate placement or whether the equities favor the parent.
Ordered that:
The parent‟s request for tuition reimbursement for the Center School is dismissed. Dated: August 16, 2011
JUDITH T. KRAMER, ESQ.
Impartial Hearing Officer JTK: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 Exhibit List
Description Date Pages
A. Hearing Request 1/17/10 4 pages
B. Due Process Response 11/23/10 4 pages
C. Notice of Placement 9/10/10 2 pages
D. IEP 3/24/10 20 pages
E. Center Progress Report 11/19/10 19 pages
F. Class Schedule 2010-2011 1 page
G. Final Notice of Recommendation 6/9/10 1 page
H. Psychological Evaluation August 20 9 pages
I. Proof of Payment 3/14/11 2 pages
J. Enrollment Contract 5/24/10 2 pages
District Exhibit List
1. Psychological Evaluation August 2009 8 pages
2. Street Progress Report 1/12/10 6 pages
3. DOE Observation 1/15/10 3 pages
4. Street Family Center
Therapy Report 1/10 1 page
5. SPOTS Therapy Report 1/6/10 3 pages
6. SPOTS Therapy Report 1/19/10 3 pages
7. Therapy Report 1/21/10 3 pages
8. and Progress Report 1/10/10 2 pages
9. and Progress Report 1/11/10 7 pages
10. Child Outcome Summary Form 3/4/10 10 pages
11. NYCDOE IEP 3/24/10 20 pages
12. Letter from Parent and FNR 6/23/10 2 pages
13. Letter from Parent re: 6/30/10 1 page
14. Center Admission Form 1/15/11 6 pages
Footnotes
[2] Ms testified that the child was low level in reading and level for math (T. 221). Ms. also stated that she was working on the goals set forth in the IEP (T. 243- 249).
[3] Ms. , from , also testified that the child benefits from peer modeling and being in an environment with typically developing peers (T. 202).