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: July 28, 2010

October 18, 2010

November 8, 2010

November 18, 2010

December 6, 2010

February 16, 2011

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 28, 2010

-, — Student

Student

Parents

CSE- District Representative — DOE

(via telephone) — DOE

of. (via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 18, 2010

-, — Student

Student

Parents

CSE- District Representative — DOE

School (via telephone) — DOE

-, School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 8, 2010

-, — Student

Student

Parents

Program (via telephone) — Student

— Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 16, 2010

-, — Student

Student

Parents

(via telephone) — Student

(via telephone) — Student

(via telephone) — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 6, 2010

-, — Student

Student

Parents

(via telephone) — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 16, 2011

-, — Student

Student

CSE District Representative (via telephone) — DOE

— DOE

INTRODUCTION

On July 28, 2010, October 18, 2010, November 8, 2010, November 16, 2010, December 6, 2010 and February 16, 2011, I conducted hearings, pursuant to the Individuals Disability Education Act (“IDEA”) 20 U.S.C. section 1415 (f)(3), regarding special education program for students with a disability, New York City Impartial Hearing Case Number The hearing was conducted at the impartial hearing office, New York City Department of Education. The student‟s parents submitted a request for an impartial hearing, through their on April 26, 2010. At the hearing, the Department of Education, (hereinafter referred to as “the Department”) was represented by the Department Designee, and the Parents were represented by counsel, Ms. - and Ms. . A list of witnesses and documents received into evidence is attached to this decision.

BACKGROUND

The student is currently a ( ) year old who is classified as “ and ”. On May 13, 2009, a Committee on Special Education (hereinafter referred to as “CSE”) review was conducted regarding a education program for the 2009/2010 school year. The child, (hereinafter referred to as “ ”) was recommended to attend a class in a school with a staffing ratio of . Additionally, it was also recommended that the child receive related service recommendations as follows: and -3x30x1 and 2x30x3; (“ ”) 3x30x1; 3x30x3 and (“ ”) 2x30x1, all in a separate location.

Parent claimed that the CSE review team was not validly constituted and failed to properly include parents in the development of her Individualized Education Program (“IEP”) and that they were not given proper notice for the required CSE participants for the meeting.

Parents maintained that the Department failed to offer an actual placement and that such failure is “ ”. Also, even if it is determined that the Department‟s offered placement at in a was timely, the placement was not appropriate to meet the child‟s special education needs.

The Parent maintains that the for Education (“ ”) was an appropriate placement and its program was aligned to meet the child‟s unique needs to provide her with educational benefits. Parent states that equitable considerations should not be disputed and favor the Parent and that the Department should be ordered to pay for the child‟s placement at the .

THE PARENT’S POSITION

As stated above, in the introduction herein, the Parent maintained that the IEP that was created is both procedurally and substantively invalid, that the CSE team was improperly constituted, the goals were insufficient and that a proper recommendation was not made for their child.

THE DEPARTMENT’S POSITION

The Department maintained that the child was properly classified as “ and ” and an appropriate recommendation was made for her to attend with related services as described more particularly above.

The Department is of the position that the Parent lacks standing to bring their direct payment and or tuition reimbursement claim, as there is no legal authority for the Parent‟s proposition that they are entitled to such relief. Additionally, the Department is of the opinion that the Parent‟s unilateral selection of a private school placement at the was not appropriate to meet her special educational needs and that the equities do not favor the parent.

THE PARENT’S CASE

1. The CSE review team for the May 19, 2009 IEP meeting was not validly constituted and failed to properly include ’s parents in the development of the IEP, in violation of the IDEA, which led an inappropriate IEP and denied a Free, Appropriate Public Education, (hereinafter referred to as “FAPE”).

,a employed by the Department testified that the CSE is required to indicate the invited participants on the CSE meeting notice and that a is a required participant but was not present, there was no present the meeting and that the notice confirmed same (Ex. L, T. 42). Although the CSE team considered placing in a general education s g, there was no qualified general education at the CSE meeting (t. 20, 581).

Ms. , signed the IEP as the general education and stated that if was attending an or education class at the time of the meeting, then in that instance the participation of a general education would be required. (T. 39) She has not taught general education for twenty years and admitted that she does not have any recent experience teaching general education (t. 43-44) and admitted that she has not reviewed the state standards in the last two years. (t. 42, 45-46).

The CSE failed to review progress on ‟s previous IEP goals (t. 590) and Mrs. stated that during a CSE meeting, the team is required to review the prior IEP and make necessary adjustments if necessary(t. 54). She did not know if mastered her previous goals (t. 55) and testified that the CSE team did not discuss ‟s previous goals in order to determine if she mastered any of them. (t. 780).

, the Department‟s only other witness who attended the May 2009 CSE meeting did not remember if the CSE had the April 2008 IEP at the May 2009 meeting. (t. 181). The CSE did not include ‟s parent in the creation of any IEP goals and handed her a copy of the goals at the meeting, directing that if she wanted to discuss them she should talk to the school (t. 590-91). The CSE informed the Parent and what the recommendation would be without any discussion (t. 590-91).

2. The Department failed to meet its burden of proof that it offered an appropriate IEP and placement to , resulting in a complete denial of FAPE. The district failed to produce witnesses that had sufficient knowledge and expertise to demonstrate that it provided a FAPE to .

The Department presented five witnesses, none of whom ever met (t. 19, 81, 151-153, 159, 249) , of for the Department testified that he had never met or observed and did not with a who had personal knowledge of (t. 151-153) Mr. did not to anyone who had met , observed her, or attended her CSE meeting and did not review her April 2008 goals prior to rendering an opinion (t. 151-53). Two of the Department‟s witnesses, Mr. and Ms. never observed or met and did not attend the CSE meeting and or visit the recommended placement. The Department presented two witnesses regarding the May 2009 IEP, and . Ms. , a District school testified “I don‟t remember the meeting very clearly…this was a long time ago, and we‟ve had a lot of meetings since then…” (t. 167) Ms. could not recall what current said at the time of the CSE meeting about her gross motor functioning. (t. 57-59). Additionally, Ms. did not know the size of the class was attending or how many were in the classroom. She believed that was in a class at the School, when in fact, she was in an integrated class with both special education and general education students.

The Department presented only one witness to testify regarding the proposed class. - , the school who testified that her knowledge of the students in the recommended class came from being on the same floor as the recommended class and seeing the students every day “on their way to lunch or as they‟re preparing to go into another class.”. (t. 262-263). The witnesses knowledge was limited to information garnished from the computer system, classroom visits and seeing the students in the (t. 259, 262-63). Ms. ‟s knowledge of was limited to the May 2009 IEP and the documents provided to her by the representative for the District. Her perception of through the review of documents was that she believed could not function in a general education class, something that the CSE had only “fleetingly” considered, which the witness stated was not possible for . (t. 20, 24, 272).

3. The CSE failed to conducted adequate evaluations of causing decisions made at the May 19, 2009 meeting to be based on insufficient information.

The CSE failed to conduct a classroom observation as part of the evaluation process of . (t. 76). Despite the fact that the CSE terminated ‟s services, the CSE failed to conduct a evaluation and none of the CSE members who agreed with the decision to terminate her had observed . Ms. stated that she did not recall having any completed progress charts for , which would have indicated her progress towards mastery of her IEP goals in , , / and her educational progress (t. 200-01). She testified that all of the related service providers are contracted by the Department and could be compelled to complete progress reports. The 2008 educational report was absent from the list of reports considered by the CSE (t. 47, 173-174). This report indicated that had issues in all areas (e.g. communication, social, daily living and motor skills).”

4. The May 19, 2009 IEP failed to adequately address ’s academic, social, emotional and and needs and fails to indicate present levels of performance in multiple academic areas.

The IEP created for did not provide sufficient present levels of performance from which to draw appropriate IEP goals and did not indicate where was functioning in terms of her exact levels of expressive or receptive deficits. Ms. testified that the IEP lacks a breakdown in terms of what the actual issues are …” (t. 364) and notes that this “struck me as being incomplete…a person looking at this would not know what level the child is at and what parts of her receptive and skills are ” (t. 364). The IEP did not indicate level of pragmatic skills or the level of . (t. 80) “had in terms of her . There were that she could not produce and often the in the class did not understand so they wouldn‟t to to her”. (t. 335) The IEP failed to indicate what phonemes had difficulty pronouncing (t. 80). The Department‟s own witness stated that for a child classified as it would be very important for the IEP to have clear present levels of performance in and . (t. 78)

Ms. testified that the IEP failed to indicate or the level of her visual perceptual skills (t. 67-68). The present levels of performance did not indicate current functioning level for her writing skills as the IEP did not contain sufficient information to determine whether could copy letters (t. 68-69). ‟s IEP fails to contain any short term objectives which are necessary and important to help her achieve her annual goals (t. 71). Ms. , for the stated that the May 2009 IEP‟s single goal was to address writing, was vague and lacked short term objectives which could have provided clarification. (t.265). Ms. , the Department‟s stated on cross examination that the aspect of writing and not a writing goal was an goal (t. 175) Ms. stated that a handwriting goal would be important for because it is part of the (t. 365).

Ms. for testified that is a for and that she has for long periods of time. (t. 523) The only focusing goal on the May 2009 IEP was for independent tasks. Both Ms. and Ms. testified that this goal is highly inappropriate for as she did not yet have the prerequisite skills to work on this goal. She “wasn‟t able to focus on tasks that were going on in a …small group , she was having on tasks with somebody sitting next to her.” (t. 368 542).

Ms. and Ms. stated that some of the goals were “very broad” and failed to indicate a baseline. (t. 366) The IEP includes a goal for to paraphrase or summarize a story, however with answering questions and with conversations; Ms. “doesn‟t know how anybody expected to achieve that goal”. (T. 367, Ex. 5). With respect to the IEP goal of retelling a story and discussing remote events, Ms. stated that did not have the capacity to achieve that goal as she with a simpler goal, that of literal comprehension questions (T. 442-43). Another goal was to “demonstrate emerging interest in and attention to her peers‟ behaviors”, however she was completely unaware of the nuances required to determine a peers‟ behaviors and feelings (T. 543 Ex. 5).

5. The Department inappropriately terminated ’s , resulting in the denial of FAPE.

Ms. stated that the Department required a evaluation or the input of a to terminate the service. (T. 189) Ms. testified that did not need , as she was not a child who has or any , anything that would prevent her from up, from in a , from going from a chair to circle time…there was no gross indicated by the or that she was or not being able to the classroom…” (T. 31 see T. 34). She described other areas which impact the recommendation of , such as completing classroom and playground activities participating in fire drills, and navigating the school building. (T. 34). Ms. a on behalf of the child stated that is required not just for issues in the classroom, but also for the student to participate or succeed in the gym, recess, and the school‟s environment (t. 482). The only report that the CSE had concerning ‟s gross motor issues was a report which stated: “presents with delays in her gross motor skills development such as coordinating her movements.” (Ex. J) Ms. admitted that this was the most current written information the CSE had at the meeting (T. 193) and that the information was insufficient to justify the termination of (t. 446).

There was no progress report at the CSE meeting nor did a did not participate in the meeting. (t. 60-61). Ms. , Ms. nor the parent member observed navigating the classroom. (T. 63) and the Department‟s witnesses admitted that they did not know why was not at the time of the meeting. (T. 64, 179-180). There was no documentation to indicate the level of support required to navigate the playground equipment and no program accommodations, classroom modifications, or informal assessment at the time of the meeting. (t. 65, 77). Ms. did not know the levels of ‟s joint laxity or bilateral coordination as of the day of the meeting, nor did she know how decreased bilateral motor coordination and decreased body awareness were affecting her functioning. (t. 62, 98). Ms. did not know what was said during the CSE meeting in terms of ability to respond to fire drills and get to circle time (T 58). She testified that she did not know whether achieved her goals from the previous IEP. (T. 58-59) The CSE‟s insufficient information led to their failure to indicate functioning, any progress in that showed if she had met her goals, or why was terminated on the IEP. (T. 428, Ex. 5) Ms. testified that had "gross motor that with her to in class." (T.334, See Ex. K) Ms. agreed with this stating that had a time in a ; " on for ... if you can't sit at the desk for three minutes and be able to sit and focus, you are on trying to keep yourself ." (T.438) She testified that tone affected her ability to in a and that her impacted her placement causing her to be on the . (T. 466-68) She also noted that had and coordination . (T. 444) She found to be " in all areas" and noted that she could not a , was always , could not forward without , could not and keep up with her , and had . (T. 436-37) Overall, Ms. noted that "she was just ."

(T. 437) The CSE did not consider at the May 19,2009 meeting) Ms. stated that page eight of the IEP, where all services and programs that are considered should be listed and did not indicate that was considered and rejected.

(T. 53, Ex. 5) She further stated that the parents were not provided with prior written notice as to why was terminated, either on the IEP or anywhere else.

6. The District failed to meet its burden of proof that it properly offered a placement for and even if a placement was offered, the District failed to prove that the 12:1:1 Special Class at was appropriate to meet ’s needs.

Ms. stated that a "parentally placed notice” was sent (T. 228-29, 231) and explained that such notice is typically a recommendation for students whose parents are not seeking FAPE." (T. 231). Additionally, she testified that it should not have been sent to parents, stating: "I'm guessing that it was an error that it was sent to her, because an IEP was derived for her .... and I am guessing that the person who sent it on my behalf sent out the wrong piece of paper." (T. 232) She further testified "she should not have received a parentally placed Final Notice. She should have received a regular Final Notice." (T.232). The Department not send a final notice of recommendation for a public school placement, however the notice listed the wrong school providing for a recommendation to as opposed to .

As per the parent, the recommended placement would not have provided with an educational environment appropriate to meet her unique needs. At the hearing, Ms. testified that "cognitive and academic abilities were very delayed. She would not be able to function with students at her own age and be at the appropriate grade level ...[s]he needed a lot of repetition, reinforcement, and a “lot of going over” the material." (T. 24) She noted that "needed to be in a smaller environment where work could be repeated, gone over, with an additional , an additional in the room.” (t. 24-26)

Ms. testified that needs could not be met in a classroom and that would be “ ” in a class of students, because she had “ focusing issues” and “ and ”, and would not have gotten the one on she needed to move forward (t. 369) Ms. agreed noting, “she needs to be refocused…every minute, a small class would work better for her.”. (t. 541) In addition, the classroom in the class also served as a for at least students, leaving to help and with the other students. (T. 286, 370).

Ms. testified that the reading and math levels ranged from - to grade, however she did not know the number of students at each level. (T. 259,263,29394,296-967) To derive this information, she‟ used the Department‟s CAP system and spoke briefly to the class' , . (T. 259) Ms. did not know when the assessments were completed; the scores could have been from June or even the previous year. (T. 291, 295\) She conceded that the students were not even being compared at the same point in time and that the scores from CAP, "really [are] just telling us the last piece of information that we had for that child." (T. 295-96) The reading scores could not be compared because some were for reading comprehension and some were for decoding. (T.293) Likewise, some math scores were from the WAIT and some from Key Math which are also incomparable and lacked a breakdown for math reasoning and computation skills. (T. 298) In terms of academics, the class was doing inventive spelling at the beginning of last year. (T. 296, 597, Ex. H). As per Ms. , had , could not write all of her letters, and had "very " fine motor skills as of the beginning of last year, this would have been highly inappropriate for her. (T. 573); the students functioned at a higher academic level than was ready for. (T. 573) The recommended placement had students, students required : spoke and at least , if not more, spoke . (T. 283-85) Ms. ,a , explained this would be inappropriate for as and is one of her primary deficits and she needs peers who could appropriately model or with whom she can communicate to improve her socialization skills. (T 369, 574)

At , would have to up to reach her classroom in the morning (T. 277); going to lunch or gym would require her to two of and then back up to return to the classroom (T. 278). If lunch was before or after science, she would have to of , which occurred up to three times per week. (T. 281) Computers, art, library and science were all up or down a of (T. 278-80) and the girls‟ bathroom was located on a different floor than the classroom (T. 310, 372).

The school has approximately students and would be in the lunchroom with approximately and students. (T. 256, 288) Ms. testified that this would be and for her. She would be unable to follow directions in an environment with that many students and the concomitant level of , which posed obvious concerns for (T. 370)

7. The for Special Education (“ ”) appropriately met needs.

The testimony of Ms. , and / , established that has a “wide variety of global significant that created learning for her. She had global and delays…[with] reduced semantics, reduced vocabulary both receptively and expressively ... [plus, she had issues with ... the pragmatics of ." (T. 329,333-34) , , testified that is "extremely , very , [and] does not maintain ... [which affected] her ability to socialize with the other students." (T. 523) 's awareness of needs allowed them to appropriately address these needs and to tailor an intervention program for each child based on their needs. We provide as close as we can to type of instruction and divide the in small groups for reading and math ... [and] only use handson very, very - approaches so that the children learn, and we provide very structured program for. the children ... to get them to follow classroom routines and directions. (T.332) in and significantly interfered with her education. provided with a small classroom s g with a small student to staff ratio. class consisted of children, one , one assistant, and another child's . (T.

337) addressed expressive, receptive, and pragmatic needs as had " with receptive skills. She had a hard time following multi-step directions, and ... understanding the complex sentence, so things had to be broken down for her .... " (T. 336) spoke with reduced vocabulary and syntax skills and in ''very short ... sentences complicated by in articulation that made the hard to understand." (T. 336-37) provided "directions in very, very small manageable quantities," with simplified that she could understand. (T.341-42) were mostly and the provided , , many kinds of manipulative, " her with and cues." (T. 341-342,346) "learned how to follow classroom directions. Her and improved greatly, and she was able to comprehend more [of] what the was saying [including] ... two-step directions and longer sentences by the end of the school year. Her vocabulary has grown and she has made “nice progress." (T. 345-46)

The students in class were all and years old and started the school year on a - to level. (T. 337, 395) Like her classmates, was working on the and was often grouped with another student who was on a similar level for math and reading. (T. 340) The students all functioned at similar academic levels: they all needed to work on ABC letter-sound correspondence and number skills. (T. 343) All of the students required small group instruction and hands-on materials to be engaged. (T.337-

38) Like , the other students in her class needed to work on social emotional skills like following directions, sitting at circle time, responding to questions, and focusing on a book. (T. 343) All but one student in the class was classified as or impaired. (T. 337-38) used a variety of methods to address academic goals. reading comprehension goals were addressed during shared reading time, by the highlighting the contents of the story and various literary components. (T.529). addressed her phonic skills by using letter tiles as a tactile and visual reinforcement to the concepts she was learning. (T. 529) addressed her math skills by "working in small groups and using hands-on materials where she was manipulating numbers and objects." (T. 533) addressed 's fine motor skills and handwriting goals by using Handwriting Without Tears, a structured program developed by an that uses a specific order of movement to teach handwriting. (T. 336-37, 349-50) At the beginning of the year, could only draw a line and a circle, but by the year's end, she mastered writing her name. (T.536)

Ms. testified that "really progressed nicely ... with the use of ...manipulative [and a] multisensory approach. She would really only be able to focus if we used lots of hands-on material with her to engage her .... " (T. 523) Ms. testified that chose "hands on materials that were very clear for her and very motivating, so that it would hold her attention and not be distracting in any way." (T.530)

also employed a using a token system to meet

and focusing needs in which she was reinforced for focusing, maintaining her attention, and completing her work. (T. 343,526) was very motivated to get points, which she could turn in at the end of the day for a prize. (T. 526) added an additional chart to reinforce for as it was an area of concern. (T. 343-44) encouraged to focus through the , but also by choosing hands on materials to encourage experiential learning. (T. 344-45) Ms. gave the example of one such motivating material used: a pen called the "Tot Dot Pen" that lit up whenever a child got a correct answer. (T. 525)

provided with appropriate mainstreaming opportunities, in accordance with the IDEA's provisions. is located in the same as a mainstream school, . (T. 352) tries to integrate and mainstream their students as much as possible. (T.333) was mainstreamed during lunch, recess and assemblies, such as school productions and holiday events, where she could interact with her typically developing peers. (T. 352, 390)

also provided her with ; ,a licensed with more than seventeen years of experience, screened and found her to be "delayed in all areas" and felt ''very strongly that she ... require[ d] services." (T. 422, 425, 439, see supra) Ms. testified that in November, Ms. asked her to do a screening of because was concerned for 's safety. (T. 427) Ms. conferred with who also felt that she needed . (T.429) Since 's fine motor skills were also a significant concern, her needed to focus only on fine motor issues.

(T. 429) At the screening, Ms. did a battery of tests, such as observing on the stairs, and jumping, running, skipping and catching a ball. (T. 433-34) She used the Peabody Gross Motor Performance Test as a guide to assess gross motor issues. (T. 433-34) As she "strongly felt the child needs services right away," Ms. made recommendations to the and to help prior to the Department reinstituting services. (T.475)

The Department did not provide the parents with the evaluation stating needed services until the impartial hearing, when the school year was already over. (T. 609) Ms. provided about two times per month. (T. 430, 440) and taught 's how to guard on the steps and how to sit appropriately in class by providing a sitting disc which gives proprioceptive input to the child. (T. 362, 429-30) Ms. observed at recess and provided the and with ideas, suggestions, and guidance to ensure her participation. (T. 362,430) During a typical session, Ms. worked on strengthening and with , , , on , motor planning, and safely navigating the . (T.446-47). made progress in her balance, on the stairs, in the hallway and in her ability to sit in a chair. (T. 448-49)

The school provided the structure including hands on kind of activities (T. 345) At the beginning of the year, only knew a couple of letters, but by the end of the year; knew the entire alphabet and was starting to blend sounds. (T. 530 Ex. C) also made progress in math; at the beginning of the year she only knew 1-11, but by the end of the year, knew numbers 1-20 and had some number skills such as sequencing and greater than, less than four numbers 1-10. (T. 532, 535) Ms. testified that met most of her short term goals in terms of math and reading. (T. 345, Ex. E).

8. Parents Cooperation and Equitable Considerations.

A review of the record demonstrated the Parents' cooperation with the CSE. The parent participated in all CSE meetings to which she was invited, including the contested

May 2009 IEP review. (Ex. 5) Ms. , the testified that she was told at the May 2009 meeting that she would not receive a placement until August. (T.591-92) When the parents finally received a letter nearly three months after the CSE meeting, it was labeled "parentally placed notice". (Ex. 5, T. 592) testified that she was confused because it did not look like the placements she received in prior years. (T. 592) She called the Department and spoke to , who told her she was not sure what was happening, that did not have a placement and gave another person to contact, . (T.593) continued to pursue this placement, and called Ms. who also informed her that did not have a placement. (T.

494) At this point in time, wrote a letter requesting further information, in case the District was offering the school mentioned on the parentally placed notice, but never received this information. (T. 595-96, Ex. G) After the school year began, Ms. , who had informed her that did not have a placement, asked her if she was accepting the school mentioned on the parentally placed notice. (T. 595-96) informed her that she would let her know as soon as she visited this school. (T. 596) It was not until this point in time, after the start of the school year, that the Department provided clarification that they were recommending P. (T. 596, Ex. 2) visited and found it to be inappropriate for her . (T. 597-600) She wrote a letter stating her concerns and rejecting the placement as inappropriate. (T. 600; Ex. H) The CSE did not respond to either one of Ms. letters. (T. 600) The District questioned the amount of instruction provided by and pointed to instruction about the alphabet, which they claim is instruction. (T. 555-56) However, provides instruction about the letters in English (T. 555-56).

parents are not in a financial position to advance the entirety of the tuition. (Ex. M. T. 497). The parents are legally responsible for the tuition for the 2009/2010 school year, as they signed the contract and assumed financial and legal responsibility (Ex. O; T. 496, 510, 601) testified that she and her husband were not able to lay out the entire tuition during the 2009/2010 school year, due to the financial hardship (T. 601).

Pursuant to an agreement with , the parents are making payments towards the tuition, which was $ for the 2009-2010 school year (T. 495-511, 602) As of the final day of hearing (December 6, 2010), the parents had made payments in the amount of $ . (Ex. Y; T. 496) , , testified that to secure the remainder of the tuition, he has sent bills to the parents and spoke to

(T. 500, 622-23). Though the District points out that contract requests that the parents to cooperate with the Impartial Hearing process, does not require the parents to pursue a hearing (T. 505-07). stated that even if the parents do not prevail at an impartial hearing, they are still responsible for the entire tuition (T. 510).

THE DEPARTMENT’S CASE

1. STANDING

The Parents are clearly asserting a claim on behalf of this school because the school has not bothered to enforce the contract signed by the Parents. The only indication of the school's willingness to enforce the tuition contract was contingent to the parent's failure to cooperate with the impartial hearing process in an attempt to- get tuition funding to from the Department. (EX. 0). (Tr. 507,508; 513)

testified, that he had the parent's bring in their tax returns when they did enrollment and it is "standard practice in their school building" (Tr. 500). During the cross examination, the was asked if would take legal actions against the parent for unpaid tuition. He responded by stating that "how we work to ask the parents to pay up the full tuition; we send bills, and we make phone calls as long as the parents have an open line of communication and they are sending in the money, we don't take any legal action yet". (Tr. 500; 501). The also pointed out that there is no time limit as to when the full tuition can be paid. The parent testified that the administration at has allowed her to register into another school, a new school for the current school year 2010-11 with the unpaid full tuition, without them aggressively seeking payment. The parent reported that the school has only contacted her husband by telephone and has sent them bills, which were not produced for these proceedings in regards to the unpaid tuition for the school year 2009-2010. (Tr. 623; 624)

It is the Department‟s position that based on the testimonial and documentary evidence, the parents have only incurred $ out-of-pocket expenses for the student's attendance at Program for the 09-10 school year. Therefore, the parents have failed to establish that they are financially obligated to pay the full tuition to the school towards 's tuition; therefore, do not have standing to bring a tuition reimbursement claim.

Additionally, the Department maintains that since the 09-10 school year has been over since June 30, 2010, this can no longer be a claim for prospective funding pursuant to Connors. Additionally, given that the parents have not made a $ 00 out of pocket payment in connection with the student's attendance at Program for the 09-10 school year and failed to establish that they are financially obligated to pay the full tuition to the school, they do not have standing to bring a reimbursement claim and are thus, not entitled to reimbursement.

2. DEPARTMENT PROVIDED A FAPE

is a year old student classified by the CSE on 5/13/09 with a “ and ”. (Ex. 5) and was recommended for a class in a school and related services for the school year 09-10 (Tr. 256). The Department claims that the program offered to the parent was carefully calculated and would have conveyed educational benefits for . , the School from the IEP team testified that based on progress reports, 's report and discussion with the parent it was determined that major were more and related.( Tr. 168;169;170; Ex. 8) The team made a decision to terminate the student's which she was not receiving and increased the services "we felt that was something more relevant to her academic progress" (Tr.166;

167 ) Mr. , the supervisor for confirmed that the team can make such a final decision, even when a might make a recommendation for services.(TRI09; 110;) He further stated that the Department follows the mandates of IDEA and the recommendation of the in terms of providing IEP driven related services. (Tr. 111; 131). According to Mr. , the supervisor, is not a school functioning issue and the student‟s was not clearly described in Ms. report. testified that, this IEP recommendation was discussed with the parent and the classroom and neither the classroom or the parent offered any objections pertaining to the termination of the . (Tr. 167;168;169; 170;171;172). The Parent reportedly shared with Ms at the meeting that was receiving the services because she had . (Tr.173).

As was not receiving at the time of the IEP meeting and during the school year 2008-2009, testified that an RSA was forwarded to the parent for , and and . All were enacted except for the . (Ex. 15; Tr. 245,246; 247) The parent confirmed receipt of all the RSAs except for the one for . (Tr.611). Even after, the was terminated at the IEP meeting of 5/13/09 more RSAs were forwarded to the Parent for summer services; the Parent chose to execute only the RSA, claiming that she was not able to locate a provider for the services .. (Tr. 614; Ex. 15). Mr. testified that just the diagnosis of and as was written in the justification report and in general, does not constitute an impediment in the classroom and does not automatically warrant service. (Tr. 134).

Ms. , the school at , testified that Ms , the , of the proposed classroom is certified in both general and special education, including having the possession of a extension. (Tr.270). Her class the , the only such program on the first grade level that year had a seat available for the student in September 2009

2010 and remained with only students towards the end of the school year. One student had a . (Tr. 257) Ms. who was very familiar with Ms. class testified that the who stood next to the student in this fairly large classroom would reiterate the instruction for a particular assignment. She would also work with some other student's according to Ms. observation (Tr. 301; 302). The class follows a based program in math; they use every day math which follows the NYS standards and guidelines. One of their actually served as a math coach. For reading, the Big Book is used with guided reading which is based off of levels. The Fountas and Pinnell, a based test is administered every September in order to assist to further individualized lessons. (Tr.268;269;270;274). provide a science, social studies, Art, music and a computer program for its students; and boasts science and computer labs. (Tr.300).. An extended day program is also available at the school Monday through Thursday, particularly for students receiving special education services. (Tr. 275; 276). Ms. testified that fits the profile of the students in Ms. class. Most of the student's are classified with a and and functions academically on the grade level according to their most recent scores, which were the ones from , (T. 301; 302; 307, 308, 309).Ms. testified about the IEP goals which she found to be fairly general and common for students entering . She was able to ascertain, the student's level on the page 3 of the September IEP. The student's goals can be revised by administering the Fountas and Pinnell tests after the school year begins. (Tr. 273; 274; 275). defended the lack of goals for this student in cognitive writing to be due to the fact that she is not at that cognitive ability for such a task. However, such a goal exists from the to address the mechanics of writing. (Tr.164; 175) According to Mr. , the , is not a school functioning issue and the student‟s was not clearly described in Ms " report, (Tr. 115; 116)

3. THE PARENT HAS FAILED TO DEMONSTRATE THAT THE

PROGRAM IS APPROPRIATE

Ms. , the at is employed there part time, two days a week. (Tr. 520) and has never worked directly with and did not develop the IEP for (Tr. 546; 551). Additionally she was unable to describe a research based program that is followed in the classroom and when she was asked if the Big book, she made reference to during her direct testimony was from a researched based program; she asked "Can you explain what you mean by research based?" (Tr.552). She added to her response "all the materials that were used complied with the NYS Board of Ed standards, standards"; yet the student at 's school's site do not take the NYS standardized exams. (Tr, 547) Mrs. who returned on a following date on December 6th 2010, to complete her testimony was able to clarify on the re-cross examination what the "Big Book" is. (Tr.570.) She testified that she recalled visiting the proposed school at with the Parent (Tr 571; 576) and gave an account as to what she observed at the school and why it would not have been an appropriate site for . On cross examination, she testified of not having any recollection as to when she last visited a public school special education class (Tr. 560).

Mrs. , also functions as an RSA , was notable to tell who was in charge of the school supervision when she was fulfilling her RSA duties. (Tr.377; 378; 379; 380). Mrs., acknowledged that it would have been very, very difficult for to function in a general education environment. (Tr, 272). Mrs. testified that she only discussed the termination of the from the IEP with the parent and did not look any deeper into the possible reasons. She testified that the in her school building did provide to for the school year 2009/2010. However they wanted the services to be added to the student‟s IEP by the Department in order to have it as mandated services (T. 384; 385; 386). The parent presented an IEP created for the student by ; which did not add this service to their own IEP. (Ex. E).

The , Ms. asserted that she did not really service the student and picker her up occasionally when she had an absence. The testified how the letter of justification that she sent to the CSE for evaluation of serviced was not an actual evaluation but an assessment. It was stated on the report that she began seeing the student in school, although child was not mandated to receive these services (Ex. I). Ms. reported the student‟s level of gross motor delays and used the Peabody, a standardized exam as one of the tools to arrive at the conclusion. Ms. , a Department supervisor explained that it was not possible for Ms. to yield such results using the clinical tools that she indicated on her report. Mr. , stated that Ms. report has no validity and lacks clarification and if supervising Ms. , he would have asked her to start all over (T. 140) A evaluation was conducted for the student two years earlier in 2007; at the time, she was found to have adequate gross motor skills. (e. 13; I) Ms. testified that upon consultation with the for the school year, 2009/2010, they agreed that the student warrants , however the report delineated and described the students gross motor skills which some were being addressed with . Mr. confirmed that can certainly address these issues in I addition to the student‟s low muscle tone. Ms. who is an independent provider who enters into private agreement with parents once an RSA is awarded to them by the Department has monetary gains for services rendered (T. 450-451).

4. EQUITIES DO NOT FAVOR THE PARENT

The Parent testified that she rejected the Department‟s proposed school placement because the other students were not similar to socially and academically. Mrs. only visited the classroom for approximately 15 minutes and did not observe any students in the classroom or a second being spoken in the class. She was concerned about the student‟s but testified to the fact that the student was not completely at . She testified that she observed the other students doing inventive spelling, a skill much higher than . The parent testified that she did not have a placement until September when she received a telephone call from , from the Department two or three weeks after the beginning of the school year asking her if she was accepting the placement. In evidence is a letter written by the parent on 8/27/10 confirming receipt of the final notice of recommendation offered the e same school, (Ex. G). She had already informed the CSE that would start the school year at . An error was presented on the FNR with the identification of the school number and stated instead of , however the schools address and school district were correct. Ms. informed the CSE on Oct 1 2009 of her intentions to keep at the (Ex. H).

FINDINGS OF FACT AND CONCLUSIONS

I. ST ATUTORY BACKGROUND

The central purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C§ 1400 – 1482)is to ensure that students with disabilities have available to them a FAPE; (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 546 U.S. 49, 51 [2005]; Bd. of Education v. Rowley 458 U.S. 176, 179-81, 200-02 [1982]; Frank G. v. Bd. of Educa. 459 F. 3d 356, 371 [2d Cir. 2006). A FAPE includes special education and creates services designed to meet the student‟s unique need, provided in conformity with a written IEP (20 U.S.C§ 1401 {9}{D}; 34 C.F.R. § 300.17 see 20 U.S.C. §n 1414 {d}; 34 C.F.R. § 300.320.

A FAPE is offered to a student when (a) the board of education complies 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 (Rowley 458 U.S. at 206-08; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186 192 [2d Cir. 2005]). 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. School Dist. 346 F. 3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. School Dist. 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student‟s right to a FAPE, (b) significantly impeded the parents‟ opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][iii]; 34 C.F.R. § 300.513 [a][2]; Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]).

The IDEA directs that, in general, an impartial hearing officer‟s decision must be made on substantive grounds based on a determination of whether the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE “by providing personalized 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 School 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 School Dist. 873 F. 3d 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 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 Least Restrictive Environment (“LRE”) (20 U.S.C. § 1412 [a][5][A]; 34 C.F.R. §300.114[a][2][i], 300.116 [a][3];8 NYCRR 200.6[a][1]; see Walczak 242 F. 3d at 132). The LRE is defined as “one that to the greatest extent possible, satisfactorily educates the disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle Area Sch. v. Scott P. 62 F. 3d 520, 535 [3d Cir. 1995]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a child 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 (School Comm. of Burlington v. Dept of Educ. 471 U.S. 359 [1985]; Florence Country School Dist. Four v. Carter 510 U.S. 7 [1993]). 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 (Burlington, 471 U.S. at 370 – 71; Gagliardo v. Arlington Cent. School Dist. 489 F. 3d 105, 111 [2d cir 2007]; Cerra 427 F. 3d at 192). 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 child a FAPE (Burlington 471 U.S. at 370 – 71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 30.148.

The CSE must also consider the unique benefits academic and otherwise, which a student may receive remaining in regular classes e.g. and role modeling with no disabled peers (Geer v. Rome City School Dist. 950 F. 2d 688 [1] the Cir. 1991).

In order for the hearing officer to determine whether the district provided a FAPE, it is necessary to review the composition of the IEP committee An IEP prepared by an invalidly composed CSE is a nullity, and the school district can not meet its burden of proving that its recommended program was appropriate (Application of a child with a Disability): Appeal No. 02-014; Application of a Child with a Disability Appeal No. 01096). With Respect to Prong I The parent claimed the IEP review was not a properly constituted review team as there was no certified general education at the CSE meeting. Ms. was listed as the general education on the IEP however she stated that she has not taught general education for 20 years and did not have recent experience. (T. 43-44) and has not reviewed state standards in past two years (T. 42-45-46).

The CSE must include “not less than one regular education of the child (if the child is, or may be participating in the regular education environment” 20 U.S.C. 1414 [d][I][B][ii]; see also 8 NYCRR 200.3 [a][1][ii]. “A regular education would have been able to contribute to discussions with petitioners and other CSE members about the supplementary aids and services, program modifications and other school personnel support that were available and would have been appropriate to ensure the child‟s involvement in general and participation in regular education environment to the maximum extent appropriate.” Application of a Child with a Disability Appeal No. 06-132.

I find that Ms. did not fulfill the requirements for serving as the general education at the IEP meeting and could not provide information as to why a general education would not have been appropriate for . However I will still make a decision as to whether the Department‟s recommendation for placement of was appropriate.

The Department failed to meet its burden of proof that it offered an appropriate IEP and placement to , resulting in a complete denial of FAPE. The Department failed to provide witnesses that had sufficient knowledge and expertise to demonstrate that it provided a FAPE to . The District failed to meet its burden of establishing that the May 2009 IEP and the 12:1:1 special class at was appropriate to meet ‟s needs. Pursuant to Education Law section 4404 (1)(C) and chapter 583 of the laws of new York 2007, a school district has the burden of proving that it offered a student with a disability a FAPE.

The District presented five witnesses, none of whom had personal knowledge of or any specific recollection of the May 2009 meeting. The Department did not meet its burden of proof as it didn‟t present witnesses with personal knowledge of or her needs to testify as to May 2009 IEP‟s adequacy or the appropriateness of the recommended class. Notably, the Department had access to multiple professionals with personal knowledge of and her needs who could have testified on its behalf. I (See Ex. 8, 12, 16)

Furthermore, I agree with the parent‟s counsel that the Department could have presented the exact levels of the recommended class' students by presenting a witness who had daily educational interactions with these students. The District had the opportunity to present witnesses with personal knowledge of and the proposed class to testify to the appropriateness of the Department‟s IEP and proposed placement, but instead presented witnesses with questionable qualifications to testify in this matter due to their lack of knowledge of , limited personal recollection of the May 2009 meeting and limited knowledge of the recommended class.

The CSE failed to conduct adequate evaluations of , causing decisions to be IEP meeting based on insufficient information. I find that theses facts confirm that the CSE failed to conduct proper assessments of , and thus her IEP was based on insufficient information. This failure directly led to an entirely inappropriate program and placement recommendation and, therefore, a denial of FAPE. The IDEA requires districts, in evaluating students with disabilities, to "use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information." §1414(b)(2)(A). It further requires that a "child must be assessed in all areas of need ... and the evaluation must be tailored to assess the child's specific areas ... of need." §1414(b)(3)(B); 34 C.F.R. §300.305(c). As part of any re-evaluation under IDEA, the IEP team (including the parents) is required to "review existing data and, on the basis of that review, and input from the child's parents, identify what additional data ... are needed." § 1414(c)(1), (d)(B)(i); 8 NYCRR 200.4(b)(5)(i)-(ii). assessments are not included as one of the accepted methods of evaluation for the determination of current functional levels. See 34 C.F.R. Part 300, App. A. The CSE was in direct violation of the IDEA as it did not review existing data nor did it seek input from parents in determining what evaluative material was needed.

Despite the fact that was attending an at the time of the CSE meeting, the CSE changed recommendation from an integrated class to a 12: 1:1 without conducting a classroom observation. Under federal law, a school district is required to evaluate a child before making a significant change in her placement. 34 C.F.R. § 104.35(a); Section 504 of the Rehabilitation Act. The CSE failed to conduct a classroom observation (part of the evaluation process) of . (T. 76) See 8 NYCRR 200.4(b)(5)(i); 34 C.F.R. § 300.310(a).

Furthermore, even though the CSE terminated services, the CSE failed to conduct a evaluation and again none of the CSE members who agreed with the decision to terminate her had observed . Thus, when making their program recommendations, the CSE had insufficient information on which to make an informed decision. Failure to obtain critical information about a child's suspected disability renders achievement of FAPE nearly impossible, as the CSE cannot create an IEP that addresses the child's needs without fully understanding them. N.B v. Hellgate Elementary School Dist., 541 F.3d 1202 (9th Cir. 2008). See e.g., Monterey Peninsula Unified School Dist. v. Giammanco, No. C 9420782 JW, 1995 WL 476610 (N.D. Cal. 1995).

Also, the May 19, 2009 IEP did not adequately address academic, social, emotional, and and needs. The evidence demonstrates that IEP was substantively inappropriate to meet her academic, social, emotional and / needs. IEP was inappropriate as it was missing substantial components. "An IEP must include measurable annual goals, including academic and functional goals, designed to meet the child's needs that result from the child's disability ... and meet each of the child's other educational needs that result from the child's disability." § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.047(a)(2). It must also include appropriate objective criteria, evaluation procedures and schedules for determining whether the student's objectives are being achieved. 34 C.F.R. § 300.320(a)(2),(3); 8 NYCRR 200.4(c)(2)(iii). The 2009 IEP did not accurately address full range of needs. (T. 365)

Also, the CSE failed to include appropriate goals that sufficiently addressed academic, social, emotional and / needs. The IEP‟s goals and objectives must be 1) measurable; 2) designed to address the child‟s needs that result from her disability; and 3) written with sufficient precision to enable her to understand the CSE‟s expectioants and for the student‟s parents to assess the student‟s progress. Section 1414 (d)(1)(A)(i)(II); 34 C.F.R. section 300.047 (a)(2); 34 CFR section 300.374 (a)(2). ‟s IEP did not to contain any short term objectives which are necessary and important to help her achieve her annual goals. (T.71) Thus the goals included on May 2009 IEP were insufficient to meet her needs, in violation of the IDEAs purpose. The May 2009 IEP‟s single goal to address writing was entirely gauge, and lacked any short term objectives which could have provided clarification. (T. 365)

goals were insufficient and inappropriate as expressive, receptive and pragmatic are among her most significant deficits.

Further, the May 2009 IEP is inappropriate as it failed to indicate 's present levels of performance in multiple academic areas. Federal and state regulations require that an IEP contain indications of the student's present levels of academic achievement and functional performance and indicate the student's individual needs. § 1414(d)(A)(i)(I); 8 NYCRR. 400.4(c)(2)(1). The IEP created for does not provide sufficient present levels of performance from which to draft appropriate IEP goals. The IEP does not indicate where -was functioning in terms of her exact levels of expressive or receptive . (T. 79)

The District inexplicably and inappropriately terminated , which resulted in the denial of a FAPE for as she requires these services to make educational progress. While there was substantial testimony from the professionals who knew that she required , the CSE team terminated it without reviewing her prior goals, without re-evaluating her, without any input from a and without a report. The District's witness conceded that they needed a evaluation, to initiate a service, yet inexplicably stated that they did not need an evaluation or even the input of a to terminate the service.' (T. 189) A District must provide prior written notice whenever it proposes to initiate or change the provisions of a FAPE to the child. Section 1415 (b)(3)(c ); 8 NYCRR 200.5 (a)(1). Furthermore, the prior written notice must contain a description of the action proposed, an explanation of the reasoning for the action and a description of each evaluation procedure, assessment, record or report used as a basis for the proposed action, a description of other options considered and the reasons for their rejection, and 200.5(a)(3)(i)-(v). Providing a written notice provides for a clear record and not only helps to eliminate factual disputes but assists the parents in presenting complaints with respect to any matter relating to the child's educational placement. See Knable v. Bexley City School Dist., 238 F.3d 755, 768 (6th Cir. 2001).

The District failed to properly offer a placement to 's parents. Circuit courts have held that a school district must formally offer a parent a placement, and that failure to do so is not a de minimis error. The Sixth Circuit explained why the notice of the written placement requirement to the parent is so critical, holding that: The requirement [of a formal written IEP offer] is not merely technical, but serves the important purpose of creating a clear record of the educational placement and other services offered to the parents. The written offer not only helps to eliminate factual disputes between the school district and parents about proposed placements, but also greatly assists parents in presenting complaints with respect to any matter relating to the ... educational placement of the child. The written offer requirement should therefore be enforced rigorously. Knable v. Bexley City School Dist. 238 F.3d at 768 (6th Cir. 2001). See also Union School Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994); § 1415(c) (requiring school districts to provide parents with prior written notice of a placement recommended, including "a description of the action proposed or refused by the agency").

, the CSE Region placement , testified that the notice sent to parents was a "parentally placed notice”. (T. 228-29, 231) and explained, a "parentally placed final notice of recommendation is for students whose parents are not seeking FAPE." (T. 231) She admitted that it should not have been sent to parents, stating: "I'm guessing that it was an error that it was sent to her, because an IEP was derived for her .... and I am guessing that the person who sent it on my behalf sent out the wrong piece of paper." (T. 232) She further stated, "she should not have received a parentally placed final notice. She should have received a regular Final Notice." 3 (T.

232) A parentally placed notice does not meet the requirement of describing the action proposed by the District because it is not formally offering the parent a placement. Not only did the district not send a final notice of recommendation for a public school placement, the notice that was sent listed the wrong school. (T. 248, Ex. 2) The notice listed the school as .

Even if the District had properly offered the Class at , this placement was insufficient and inappropriate to meet academic, social, emotional and / needs. The recommended placement would not have provided with an educational environment appropriate to meet her unique needs. At the hearing, Ms. testified that "cognitive and academic abilities were very delayed. She would not be able to function with students at her own age and be at the appropriate grade level ... [s]he needed a lot of repetition, a lot of reinforcement, a lot of going over the material." (T.24) She noted that "needed to be in a smaller environment where work could be repeated, gone over with an additional an additional adult in the room.” (T. 24-25).

The recommended placement was not small enough nor did it offer sufficient individualized instruction to meet needs. As needs a significant amount of attention, and there was only one and one classroom who services as a translator, this s would be highly inappropriate for .

Further, the placement at could not provide with a suitable functional class grouping with similar academic needs, in violation of state law. State regulations require that placement in special classes be based on similarity of needs of individuals in four key areas: 1) academic or educational achievement and learning characteristics 2) social development 3) development and 4) management needs (as well as a chronological span of no more than 36 months). 8 NYCRR 200.6 (a)(3)6(h)3, 6(h)(3). As part of its burden of proof the district was required to show that would have been suitably grouped for instructional purposes in the recommended class. Despite these requirements, the Department failed to produce sufficient evidence regarding the functional grouping and thus appropriateness of the recommended program. Prong II

To demonstrate that the private school placement chosen by the parents is appropriate, the parents must show that the program met the student‟s educational needs. Burlington Sch. Comm v. Mass Dept of Educ. 471 U.S. 369 (1985

Evidence of progress at the private school is also a relevant factor in determining appropriateness. . 459 F. 3d at 356. The evidence demonstrated that ‟s placement at the was appropriate as the program was aligned to meet her unique needs and provided her with educational benefits. The recognized that had significant needs in terms of her academics, and social emotional development and that had a “wide variety of significant that created for her.

The program provided an appropriate academic program in a class with other students who had similar academic needs. The students in class were all and year old and started the school year on a to level. was working on the as were the other students and was often grouped with another student who was on a similar level for math and reading. used a variety of methods to address academic goals; reading comprehension goals were addressed during shared reading time, by the highlighting the contents of the story and various literary components. The addressed her phonic skills by using letter tiles as a tactile and visual reinforcement to the concepts she was learning and addressed her math skills by "working in small groups and using hands-on materials where she was manipulating numbers and objects. 's fine motor skills and handwriting goals were addressed by using Handwriting Without Tears, a very structured program developed by an that uses a specific order of movement to teach handwriting. (T. 336-37, 349-50) At the beginning of the year, could only draw a line and a circle, but by the year's end, she mastered writing her name. She also had at school in order to address her .

also employed a using a token system to meet and needs in which she was reinforced for , maintaining her and completing her work.

had appropriate mainstreaming opportunities in accordance with the IDEA‟s provisions as is located in the same building as a mainstream school, . tries to and mainstream their students as much as possible. (T 333) and was mainstreamed during lunch, recess and assemblies such as school productions and holiday events, where she could interact with her typically developing peers.

The evidence and testimony demonstrate that the program had awareness of needs, and provided an individually tailored program to meet her academic, social, emotional, and , fine and gross motor needs, with an appropriate class grouping with an appropriate class size/staffing ratio, a close range of chronological age and academic functioning, use of multi-sensory and hands-on approaches, and a highly program to meet these needs. As evidenced by the considerable progress made academically, socially, and in terms of her and and gross motor skills. I find that the child‟s placement was appropriate.

PRONG III

EQUITABLE CONSIDERATIONS FAVOR FUNDING.

Congress grants hearing officers broad discretion to fashion equitable relief in "light of the purpose of the Act," to ensure that a child with a disability receives a FAPE. Burlington School Comm. v. Mass. Dep't of Educ., 471 U.S. 359, 370-371 (1985). See also, 20 U.S.C. § 1415(i)(2)(C)(iii); Florence County School Dist. Four. Carter, 510 U.S. 7,16 (1993). If a student is not provided with a FAPE and the placement obtained by the student's parent is appropriate, then a hearing officer may engage in a "balancing of the equities" to determine appropriate relief. Burlington, 471 U.S. at 367,374.n kind of activities for her.”

A review of the record demonstrates the parents' cooperation with the CSE. The parent participated in all CSE meetings to which she was invited, including the contested May 2009 IEP review. (Ex. 5) The Parent testified that she was told at the May 2009 meeting that she would not receive a placement until August. (T. 591-92) When the parents finally received a letter nearly three months after the CSE meeting, it was labeled "parentally placed notice". (Ex. 5, T. 592) testified that she was confused because it did not look like the placements she received in prior years. (T. 592) She called the Department and spoke to , who told her she was not sure what was happening, that did not have a placement and gave Ms. another person to contact, . (T.593) continued to pursue this placement, and called Ms. who also informed her that did not have a placement. (T.494) At this point in time, wrote a letter requesting information, in case the District was offering the school mentioned on the parentally placed notice, but never received this information. (T. 595-96, Ex. G) After the school year began, Ms. , who had informed her that did not have a placement, asked her if she was accepting the school mentioned on the parentally placed notice. (T.595-96) informed her that she would let her know as soon as she visited this school. (T. 596) It was not until this point in time, after the start of the school year, that the Department provided clarification that they were recommending P. (T. 596, Ex. 2) visited and found it to be inappropriate for her . (T. 597-600) and wrote a letter stating her concerns and rejecting the placement as inappropriate. (T. 600; Ex. H) The CSE did not respond to either one of Mrs. letters. (T. 600) complied with the CSE by participating in meetings, visiting the placement recommended for her , and communicating with the CSE about her concerns. , The Department questioned the amount of instruction provided by . The District pointed to instruction about the alphabet, which the Parent maintained is foreign instruction, not instruction.

(T. 555-56) provides instruction about the letters in English. (T. 555-56) Regardless of this, the law supports that is entitled to funding for all aspects of the program, , as the United States Constitution's Establishment Clause does not bar a decision requiring the Department to fund the total costs of 's unilateral placement pursuant to the IDEA. The IDEA provisions regarding the payment for a sectarian private school pass the "Endorsement Test" proffered in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), as the IDEA has a secular purpose. L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003). See also, Application of a Child with a Disability, Appeal No. 96-14 (holding that tuition reimbursement for a sectarian school does not violate the Establishment Clause as it passes the tripartite Lemon v. Kurtzman Test, 403 U.S. 602 (1971)).

THE IDEA GRANTS HEARING OFFICERS BROAD EQUITABLE POWER TO

FASHION APPROPRIATE RELIEF, INCLUDING PROSPECTIVE PAYMENT, IN CASES WHERE THE DISTRICT HAS FAILED TO PROVIDE A FAPE.

The uncontested testimony and evidence clearly establishes that parents are not in a financial position to front the entirety of the tuition. (Ex. M, T. 497) The testimony is also clear that the parents are legally responsible for the tuition for the 2009-2010 school year, as they signed the contract and assumed financial and legal responsibility. (Ex. 0; T. 496, 510, 601) testified that she and her husband were not able to layout the entire tuition during the 2009-2010 school year, due to financial hardship. (T.601) In agreement with , the parents are making payments towards the tuition, which was $ for the 2009-2010 school year. (T. 495-96, 511,

602) As of the final day of hearing (December 6, 2010), the parents had made payments in the amount of $ (Ex. Y; T. 496) , , testified that to secure the remainder of the \ foreign instruction, not instruction. (T. 555-56) provides instruction about the letters in English. (T. 555-56) Regardless of this, the law supports that 's family is entitled to funding for all aspects of the program, as the United States Constitution's Establishment Clause does not bar a decision requiring the DOE to fund the total costs of ‟s unilateral placement pursuant to the IDEA. The IDEA provisions regarding the payment for a private school pass the "Endorsement Test" proffered in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), as the IDEA has a secular purpose. L.M. v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003). See also, Application of a Child with a Disability, Appeal No. 96-14 (holding that tuition reimbursement for a school does not violate the Establishment Clause as it passes the tripartite Lemon v. Kurtzman Test, 403 U.S. 602 (1971)).

In accepting federal funds, New York agreed, and is required to, guarantee a FAPE to every child with a disability. 20 U.S.c. § 1412(a)(1)(A). The IDEA defines a free and appropriate public education, in relevant part, as one that is "at public expense." 20 U.S.c. § 1402(9)(a). The United States Supreme Court has recently recognized that the IDEA's express purpose is to "ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs." Forest Grove School Dist. v. T.A., 129 S. Ct. 2484 (2009) (citing 20 U.S.c. § 1400(d)(1)(A) (emphasis added)). In order to ensure that students with disabilities are afforded a FAPE, hearing officers are invested with broad equitable powers to fashion appropriate equitable relief. 20 U.S.c. § 1415(i)(2)(B)(iii); See § 1400(c). The Supreme Court recognized that "appropriate relief' could include prospective relief: Where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school. Burlington School Cornrn. v. Mass. Dep't of Educ.,471 U.S. 359, 370 (1985). The Court's holding is anchored in the broad equitable power granted to courts by the IDEA, which permits both tuition reimbursement and a "prospective injunction" requiring placement in a private school at public expense. The United States Supreme Court has recently held that the IDEA's 1997 amendments did not modify the § 1415(i) (2) (c) (iii)'s test, and refused to read § 1412(a) (1) (C) as limiting the relief available under § 1415. Forest Grove, 129 S. Ct. 2484. The Court referred to its Burlington decision, noting that "the ordinary meaning of [grant such relief 'appropriate' must be determined in light of the Act's broad purpose of providing disabled children a FAPE, including through publicly funded private school placements." Id. at 7 (citing Burlington, 471 U.S. 369). The broad discretion, afforded by § 1415 to impartial hearing officers to ensure children with disabilities receive FAPE, is separate and apart from the limited authority to grant tuition reimbursement afforded under § 1412. Id. The New York Northern District Court faced the issue of whether prospective payment to a nonpublic school was an available remedy under the IDEA when the District failed to offer FAPE. Connors v. Mills, 34 F. Supp.2d 795 (N.D.N.Y. 1998). The court found that underlying the Supreme Court's decisions in Burlington and Carter, was a concern that a child be provided with meaningful access to needed education such that IDEA's intentions are respected. Id. The court found the difference between reimbursement and prospective tuition funding is an issue of "the time of payment" and "is irrelevant to the fact of payment." Id. at 805. The court reasoned that the IDEA should not be applied in a discriminatory manner against families without economic means, and noted that where a parent did not have adequate means to finance unilateral placement but won a court decision years later, "the victory would not only be empty but meaningless." Id. at 804. The court further noted the disparate impact on poor children if prospective payment cannot be ordered. Id. at 804. Thus, the court held that once the Burlington requisites were met and the parents proved that they did not have the financial means to front the tuition, a district must immediately pay the placement's cost. Id. In Sabatini v. Coming-Painted Post Area School Dist., the Western District of New York issued an injunction requiring a District to pay prospectively for a child with a disability to attend a non-approved private school, finding that the fact that parents sought direct payment of the tuition, rather than "reimbursement", was a "distinction without a difference ... since the ultimate issue in [both cases] is the same: whether the school district can be made under the IDEA to disburse funds to cover a child's cost of education at a private school." 78 F. Supp.2d 138, 142, n.1 (W.D.N.Y. 1999). See also Draper v. Atlanta Ind. School System, 518 F.3d 1275 (11th Cir. 2008) (holding that prospective payments were authorized pursuant to IDEA, and finding that the statute was not intended to treat children with disabilities from wealthier families more favorably than poorer families), See also Susguenita School Dist. v. Raelee, 96 F.3d 78, 87 (3d Cir. 1996) (noting "[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset"). Moreover, two recent Southern District cases support granting the precise relief sought by 's parents. See A.D. & M.D. v. Bd. Of Educ., No. 08 Civ. 9424, 2010 WL 447371 (S.D.N.Y 2010); N.R. v. Dep't of Educ., No. 07 CV 9648, 2009 WL 874061 (S.D.N.Y. 2009).

I find that the Department failed to offer a FAPE for the 2009-2010 school year and order funding and restoration of as stated in my order. Dated: April 4, 2011

_______________________________

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 06, 2010

PARENT

A Impartial Hearing Request, 4/26/10, 3 pp. B NYC Board of Ed. IEP, 4/15/08, 14 pp. C Progress Update, 2/17/10, 1 p. D Progress Report, 2/15/10, 2 pp. E IEP with Dates of Mastery, 6/2010, 9 pp. F Program Description, Undated, 2 pp. G Letter from Parent to Ms. with Fax Transmission Confirmation, 8/27/09, 3 pp. H Letter from Parent to Ms. with Fax Transmission Confirmation, 10/1/09, 2 pp. I Letter of Justification for Evaluation for Services, 1/7/10, 1 p. J Educational Progress Report, 4/21/09, 3 pp. K Progress Report, 4/21/09, 3 pp. L Notice of CSE Meeting, 5/7/09, 1 p. M 2008 Income Tax Return, Undated, 2 pp. N Proof of Payment, 7/21/09 & 4/11/10, 9 pp. O Enrollment Contract, 9/1/09, 2 pp. P Affidavit, 7/7/10, 1 p. Q Evaluation, 6/6/10, 2 pp. R Prescription for , 5/12/10, 1 p. S Letter from , Undated, 1 p. T Affidavit, 7/17/10, 1 p. U Proof of Payment, 6/1/10 & 7/1/10, 2 pp. V Progress Report, 4/26/10, 1 p. W Class Schedule, 2009/2010, 1 p. X Canceled Check and Proof of Payment, 11/10/10, 1 p. Y Affidavit, 11/16/10, 1 p.

DEPARTMENT OF EDUCATION

1 Letter from Parent, 10/1/09, 1 p. 2 Final Notice of Recommendation, 8/13/09, 1 p. 3 Placement Withdrawal Notice, 8/13/09, 1 p. 4 M-2 Meeting Notice and Letter, 5/7/09, 2 pp. 5 IEP, 5/13/09, 17 pp. 6 IEP Cover Sheet/P 164, Undated, 2 pp. 7 Requested reports Checklist, 5/4/09, 1 p. 8 Educational Progress Report, 4/21/09, 3 pp. 9 and Progress, 4/21/09, 3 pp. 10 Service Recommendations, 4/24/09, 1 p. 11 School, 4/7/09, 2 pp. 12 and Progress Report, 3/24/09, 2 pp. 13 Evaluation, 10/28/07, 3 pp. 14 RSA, 6/2/09, 1 p. 15 Transactional History, Undated, 7pp. 16 Education Report, 3/17/08, 5pp. 17 Classroom Observation, 1/26/10, 2 pp. 18 Weekly Schedule, Undated, 2 pp.