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: March 7, 2011

May 2, 2011

June 27, 2011

September 16, 2011

November 14, 2011

Actual Record Closed Date: November 18, 2011

Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2011

FOR THE STUDENT

(via phone)

FOR THE DEPARTMENT OF EDUCATION

None 1

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2011

FOR THE STUDENT

Attorney

Parent

Parent

FOR THE DEPARTMENT OF EDUCATION

Attorney

Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2011

FOR THE STUDENT

Attorney

Parent

Parent

FOR THE DEPARTMENT OF EDUCATION

DOE Attorney (via telephone) School Psychologist (via telephone) Special Education Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMER 16, 2011

FOR THE PARENT

Attorney

Parent

Parent

FOR THE DEPARTMENT

1Department's Attorney Mr. was stuck Upstate in snow storm. Contacted Attorney for Parent early this morning.

Attorney (via telephone) Special Ed Teacher (via telephone) Principal

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4, 2011

FOR THE PARENT

Attorney for family

Mother

Father (via telephone) Head of (via telephone) Classroom Teacher

FOR THE DEPARTMENT

Attorney for Department

INTRODUCTION

I was appointed to hear the matter of . pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). The hearing was conducted on March 7, 2011, May 2, 2011, June 27, 2011, September 16, 2011 and concluded on November 4, 2011. A list of persons in attendance and of evidence is appended hereto. The Department was represented by their attorney Mr. . The parents were represented by their attorney . A list of persons in attendance and evidence are attached herein. The compliance date was duly extended because of unforeseen circumstances, (see footnote 1), a witness who was sick on the day they were scheduled to testify, and witness availability.

BACKGROUND

is now an eight year old classified as impaired. The Committee on Special Education (CSE) met on May 5, 2010 and developed an Individualized Education Program (IEP) for the 2010-11 school year. had already been attending the at that time. The team recommended a special class in a community school with related services with a staffing ratio of . The parents agreed with this recommendation. mother went to visit the recommended placement at and that is what is at issue in this case. The parents did not agree with the placement and had remain at the . They brought this hearing to obtain tuition reimbursement for the year.

DEPARTMENT'S CASE

The Department was represented by their attorney Mr. . They argue that the Department has provided a free appropriate public education (FAPE) for . They maintain with respect to the IEP the goals are appropriate and the staffing ratio is appropriate. They argue that recommended placement could have addressed all of 's issues and parents' concerns. They maintain that the unilateral placement by the parents at the is not appropriate because it is too restrictive and offers no mainstream opportunities. They also maintain that it does not offer the amount of related services that required. With respect to the equities, they argue that they favor the Department. In summary it is their position that they offered an appropriate program and placement, that the parents placement was not appropriate and the equities favor the Department and tuition should be denied in its entirely.

MS. is a New York certified school who assesses students, observes students and participates in IEP meetings and writes IEPs. She participated in s IEP meeting, an annual review on May 5, 2010 and sat in as the psychologist. , her partner, is a licensed special education teacher and sat in the meeting as District Representative. Both parents were present at the meeting, a general education teacher, a parent member, and 's teacher appeared by telephone. They used reports and evaluations as well as a classroom observation that had been conducted by . The report was from the and they provided the goals. is classified with impairment. They recommended a special class in a community school with a student to teacher ratio of (“ ”) with related services of therapy twice in week in a and twice a week on an individual basis. They added once a week in a group of three. The were continuations and they initiated . He was recommended for a ten month program. was in at the time of the IEP and functioning in the mid first grade level in math and reading. In writing his teachers estimated that he was in the beginning to mid first grade level. In addition to the School report, his teacher at the time provided additional information with regard to his functioning. 's mother expressed concern with respect to his ability to focus on tasks and that he was easily distracted. He was actually taking medication at the time to address this issue and they took all this into consideration. They decided that he needed , and seating.

They considered social cues to address his performance and decided on body breaks. They did not have a because he did not exhibit . They created goals for his management needs. He was pretty close to grade level in all areas but they created two academic goals, one for and and . She explained that they only write goals in areas that are . The goals originated from the clinicians that are working with him at the School. The Speech goals were revised at the request of the parent. The two academic goals and the related service goals are measurable. She explained that everything is included in the annual goal rather than breaking it up into short term objectives.

They considered a less restrictive environment but everyone agreed that the program would be too large and overwhelming.

The parents did not express any particular disagreement at the IEP meeting. They did not ask any questions at the end of the meeting. She opined that the recommended special class with a ratio would be appropriate because it is small and could support and attention concerns. He would have access to non disabled peers in terms of . She described the School as a special education school which is very restrictive for someone who is close to grade level academically. She opined that this setting would not be in his best interest. She opined that the IEP is designed to provide educational benefits to . (Tr. 20-46)

On cross-examination she acknowledged that she had never met . She had reviewed his , , language evaluation prior to the IEP meeting. At the IEP meeting they focused on the School report and the classroom observation. No other reports were reviewed. These were the only current information. She acknowledged that the School report was not a formal evaluation. She agreed that there was no formal evaluation listed on the IEP.

She explained that was functioning on or close to grade level in all areas and based on the previous he is functioning within the average range in terms of his intelligence. Both those factors lead her to believe that he should be in a more mainstream environment. He has some in terms of tendency not to engage in a . She opined that with the larger peer group and access to non disabled peers he would have the potential to .

With respect to speech goals there were reports from the from clinicians who worked with . They had written therapy plans which were at the meeting which were discussed with the parents. There was no participating at the CSE meeting. The were written at the same time earlier that year. They recommended on his . His parents also indicated that he gets angry when things do not go his way and it was agreed that was warranted. His communications with peers were not typical and she opined that giving him access to non-disabled peers would help him develop more typical relationships.

They discussed the reading and writing goals at the meeting in a general way but the teacher provided more specific goals. With respect to his reading comprehension he was functioning around the mid-first grade level. She opined that the related service goals and the academic goals were appropriate. The occupational goal was directly from the . With respect to the speech goals, they used them as a basis and made modifications.

She explained that they do not have short term objectives unless the student is significantly impaired. They measure the goals through teacher observation. His goals were written for the second grade. In writing he should be given materials at his functional level which would have been on the first grade. She acknowledged that the IEP goals does not explicitly state that.

She did not think he had his own but they have a school wide . There was no provision of him requiring private space. The goal dealt with transition which could take place in the classroom. The teacher would be involved with this goal. With respect to related services for they leave it up to clinicians and teachers to determine if it is a pull out or push in. (Tr. 46-74)

On re-direct she explained that Ms. had a very pivotal rule at the meeting because she was s teacher and knew him best. She had a very solid understanding of his functional level. They explained that his teacher would develop a system that would work best for r and deal with his need . (Tr. 74-78)

MS. is a special education teacher at who teaches a special education self contained class, consisting of . She teaches and the students are , impairment and . They are pulled out for related services. At the beginning of the year there were eight students between old. In terms of reading and writing their functional levels range from grade. In math they are at the and the ranges in general are within the . She groups the students according to the IEP goals and abilities. They follow the school's curriculum based on the core standards and modify the curriculum based on the needs of the students and their IEPs. As soon as students come into her class she conducts assessments and or evaluations to guide instruction and group the students. The para has a Bachelor's degree and is pursuing a Master's in counseling.

She was familiar with from his IEP and conversations with the District. Had he attended her class she would have assessed him to see where he fit in academically within the class.

She described his reading and writing needs that were written in the goals and explained that she would be able to implement them. She explained that since he is . She would easily provide him . She explained that a lot of the students in the class struggle with expression as does and with a routine in place transition becomes easier. They use a headlight system. This tells the student if everything is fine, or gives them opportunity to change things or as in red will result in a small consequence. Positive reinforcement is by means of the green headlight which perhaps could result in more computer time, or a letter to parents to . She stated that she would be able to implement his needs. She uses visuals for student which she described as coming hand in hand with verbal prompts.

In math she . With respect to his she described it as going back to his being . She has an assistant to assist in helping him . She suggested that she might group him with students who are . She described a classroom community and she would utilize the para if he required a . She would that lead to . She provides breaks for students before lunch and after lunch prior to starting instruction. During writer's workshop she allows the students to walk around.

is provided by the who pulls the student out. is also provided on a pullout basis most of the time. in the school as well.

Based on her review of 's IEP she opined that she would have been able to implement all of the things on his IEP and address his deficiencies and needs. She described him as similar to the other students in the class who are between six and nine years old. (Tr. 78-106)

On cross-examination she stated that he is similar to the other students with respect to classification and impulsivity and distractibility. She described his delay from her reading of his IEP as the way he receives and processes information. She described some of the strategies she uses in the classroom apart from repetition and reinforcement as visuals and trying to keep the information clearer using hands on activities or manipulators. She explained that the reward system in the classroom helps students self regulate and focus. She opined that he and . She groups the students according to proficiency level and the para may manage one group while she give instruction to another. He responds well to reward system which is in place in her class. She does not have an .

She groups the students in reading groups according to their reading level. grouping. She would put him in an area where he is not distracted, perhaps closer to the front, and a spot where it is clear in order to get him to focus. She would provide him with when he . She would and .

The majority of the class are and . They have issues all across academic areas. She has students in the class who are plans, however, there is one student for whom she is going to develop a plan.

The school has a gym. She provides time for the students to stand and does not require them to sit for long periods of time. She was unaware the meaning of . There are times when the related services are pushed into the classroom if they are working on something that is being addressed in the classroom. She explained that the students start at different ranges but all move up during the year. Once six months have passed they are in a three year range.

She acknowledged that there is no information regarding with respect to his . She explained that she would determine the triggers as she got to know him. With respect to listening problems she would provide more visual cues and hands on for him to be able to process information. With respect to his chair she was unaware of any physical chair modification. (Tr. 106-113) (Tr. 133-173)

MS. was the principal of the school in 2010-11 school year. There was both a , , as well as guidance counselor. All of s related services would have been available for him during the year. (Tr. 175-180)

On cross-examination she stated that the students all received their mandated services in a timely fashion. (Tr. 182)

PARENTS' CASE

The parents were represented by their attorney Ms. . They argue that the recommended placement is not appropriate for . They express concern that the teacher was not familiar with , , or with the use of an , and the . The parent was worried about the of the school and s . They argue that the is appropriate and receives the support that he requires. It is their position that had an appropriate placement been offered they would have accepted. In summary they argue that the District failed to offer an appropriate program, the School is appropriate and they are entitled to tuition reimbursement.

MS. holds a New York State teaching credential in and has been in the field over in a variety of capacities. Presently she is the head of the which she described as a special needs school from grade. She has been there for the and described her present position as consisting of more administrative duties but she does know every child by . She described the school as for children who are or better but require a more structure with in order to learn. They have difficulty setting that is . They use programs such as or a hands on . They adapt their curriculum, with to the in the classroom. They are a grade program and the curriculum matches to the State standards per grade. There are has six or eight students in n, around ten in grade, twelve students in grade and school. There is a head teacher in every classroom and an assistant teacher. They have , pathologists that pull out and push into the class setting. The team meets every other week to discuss the students and they take a group approach to the individual child's needs and learning style. They use smart boards and the teachers wear a microphone which amplifies the level of her voice above the ambient noise of the classroom. This helps students focus on teacher's language and on the material that is being presented. The students are based in classrooms on a level and evaluated in math and reading and placed across the board in skill based smaller classroom consisting of up to six students for reading and math. She explained that a child can be reading on a grade level.

She explained that the academic program, social skills program and executive functioning program helps the children progress. The younger children have a language based social skills program where they work on various different levels of awareness. They are taught appropriate . For math they follow . It is a hands program that they use in all grades.

In order to apply to the school, the parents submit a or and any supportive documentation either in . If they think the student is a good fit they come in with their parents and are met by the school psychologist or a teacher supervisor. They look at their ability to communicate and if they think the child would benefit they make an offer. They explain to the parent their obligation to look at a publicly funded program. Based on her conversations with his teachers she opined that was appropriately placed.

The tuition for last year was $45,675.The contract is sent in January for planning and budget reasons. The parents put down an $8,000 nonrefundable deposit when they sign up. However, there are out clauses for the remaining money depending when they withdraw, specifically by July first they would receive seventy percent back and by August 15 they would receive a fifty percent refund. 's parents paid the full tuition for the 2011-12 school year. (Exhibit 14) (Tr. 190-205)

On cross-examination she stated that she believed had ten or eleven students in the class. His classroom was up on a mezzanine with four classrooms and a bathroom. There are two floors and a mezzanine. The third floor has the and department. The school is above residential floors. They have a separate entrance from the residential entrance.

The providers are all certified as well as the teacher who is certified in special education.

There are approximately a hundred and ten students that are special education and a large majority have issues. With respect to probably went to the park once a month but they are not with typically developing students from regular public schools. They did not have any plan for the grade to interact with typically developing students. They practice skills with other students in the school who are developed but none of them can handle environments.

With respect to the contract the deposit is due February 1, the first payment is due May 15 of $12,558 and the next payment is due August 31 of 12,558 and the third payment on December one of $12,559. If the parent withdraws in writing by July 1 then seventy five per cent of the May payment is refundable. They inform the parents that they must cooperate with the CSE and if the Department recommends an appropriate program they should take it. (Tr. 292-312)

On re-direct she explained that mainstreaming begins in the fourth grade because at that time they have enough language and are regulated enough to deal in a larger social setting with other students. She did not believe had been read to be because of and about his ability to keep up wise with the other students.

There are gym to help the students . They work on . (Tr. 228-232)

On re-cross she explained that the team did not think was ready for a mainstreaming setting but they encourage parents to arrange play dates or after school programs with typically developing peers.

MS. is a New York certified special education teacher and this is her fourth year at the School as a head teacher. She provides academic support and help with social skills and and . She helps them with and turn taking.

Last year she was the head teacher in the grade and all of the students received small group instruction in math and reading. She first met in September and he was in her class last year. He language and auditory processing as well as skills. He has difficulty and with with , and . She considered his as his most . They gave him a lot of and which they break into smaller steps. They use and into small step. For they ask a lot of leading questions and they provide choices for answers. They use the approach for him to get a hands on experience and the graphic organizers to help him receive the information. Every teacher uses the to redirect students and support them. She described a problem solving method that they use for any , to help them sequence the order of problem solving. They stop in order to , they need to identify the problem, make a plan, and the go is the implementation. “ ” is used across the board in all classes if a student becomes well. more during whole group activity because of and maintaining attention and requires back to the task. He was able to participate in group prompts. he had a hard time compromising his ideas. They use the problem solving strategies on how to problem solve. He also received a week in a small group. His targeted some of the in her session. He was part of a group which included the entire class which was led by the pathologist. was in a group of three and led by a . She explained that at times her might overact to a situation in a classroom and would need a few minutes but she did not describe this as a .

was in second grade and there were twelve students, herself and an assistant teacher. She opined that this small setting with a very structured environment and the individualized modifications were appropriate to address his needs. There were six students in his math class and six in his literacy group ranging from beginning of grade to grade. He received literacy every day for forty five minutes and math every day for thirty minutes. He had and she and he cures. She provided strategies to help him with which was another area of difficulty for him. His spelling. He struggled with and they created goals to address these issues. For reading they use a lot of games and interactive activities. Comprehension and he is given a lot of with comprehension question. They and pieces. In math they use a activities, and . Their curriculum is based on the which is a approach. Their reading program is based on the Multiprogramming which is also a . They use program which is also . For they created their own program and focus writing. Creative writing was one of and he benefited from and ideas. He made progress with the supports. For curriculum.which they make . He made progress with all the supports. He was able to grasp concepts in science with the and . In reading and math, at the end of the year he was towards the grade.

They have a fall, mid-year and spring report which is used to assess current progress and make a plan to best support the student. She described as making progress but he still really relied on teacher support for . He still required teacher support with . He made , however he sometimes .

Several of these students were impaired and a few were . The day begins at eight thirty and ends at two twenty. They have lunch in the building with two other classes consisting of no more than twenty four students with two teachers. There is time for after they are done eating. Twice a week they go to a local park and engage in group activity for about forty five minutes.

She opined that was appropriately grouped with his peers for academics as well as . She opined that he made progress which was assessed by teacher observation. He responded to all the strategies that were given to him to help him maintain attention. She and the assistant teacher meet daily with their supervisor who is involved with the of the classroom.

With respect to his , they use , , and . The , , and . If is not engaged in activity he becomes a bit more . They which could consist of , or or anything to get the energy out. They had a available to help them focus. They have to his chair such as a foot rest. They use to calm him down and help organize his thoughts which helped him.

She opined that requires clear expectations, a lot of , a , new materials with him, which provide him with information and choices, individual support, active equipment and in order for him to benefit.(Tr. 240-292)

On cross examination she stated that they have field trips three or four times a year to museums or parks and last year she thought they went to the Museum of Natural History and Botanical Gardens.

They assess the student throughout the year but formal assessments are done at the beginning of the school year. The goals vary from literacy group to another. The goals are generated at the beginning of the year and are changed if the group masters all of the goals. The groups are based on skills levels and he was grouped with students that were functioning on the same level. The goals are applied to the whole group. They revisit the group if the entire group masters the goals. The related their own report as in , and and these goals are individual. therapy goals were mainly pull out and they were in a group of two. was once a week as a pull out with a peer. She explained that the team felt that were appropriate. The students are pulled out for so as not to miss academic periods. They count groups as an session.

She explained that all students in the lower school receive four therapy sessions in total in addition to their group. The team decides which services make up the four periods. She reiterated that usually the goals are throughout the school year. At the beginning of the year was in another classroom with a different group for reading. They are grouped in skill based not on grade based level. (Tr. 292-312)

On redirect she explained that as far as literacy all the students were functioning at the end of beginning of , all on the same level, even though some were in grade homeroom classroom and some in grade homeroom. was moved because it was determined that because of his and lack of in reading and writing he should start off in a lower group.

The progress reports are individualized for each student. provides the goals to the CSE team. She explained to me that they assess the students as they go along. (Tr. 322-323)

MS. is s mother is years old and classified as . She explained that he is unable to and does not . He has , and and has a . He has difficulty with word retrieval. His speech issues impact him educationally because he does not understand what the teacher is trying to say. His difficulty with being understood has caused him difficulty with his maintaining friendships with peers. He and has been diagnosed with and takes . He is on the outside and he .

She and her husband attended the meeting that was held of May 5, 2010. The team recommended a placement in a community school with three times weekly and . They added because of his issues, which she was not in support of because she did not want him to leave the class. She did agree to the . His teacher from the school attended by phone and provided reports. There was an observation done at the school by Ms. (Exhibit 5) which was consistent with how he presents in class. He has a and . They discussed the goals at the meeting and the goals on the IEP are from the progress reports. They added the percentage of accuracy for him to attain. She did not have any issues with respect to the goals. The goals were taken from the and she opined that they were appropriate. They added management needs that she brought up at the meeting and incorporated them into the IEP. She explained that things like on the bottom of his chair to have a major impact. The report provided information regarding his functional levels. She was not sure if anything that was relevant was missing from the IEP. The short term objectives were missing on the IEP. The math goals were discussed briefly and were provided by the school and should have been included.

She explained that although he is not on a particular he is about what he and the teachers at the encourage him to eat. The team recommended a community school, as well as counseling. She agreed to the special class in a community school. She agreed with the staffing ratio. She received a letter of notice of recommendation with deferred placement which she signed. She did not receive a final notice of recommendation until June 24th two days prior to the end of school even though she had asked at the meeting if she could have a placement prior to the end of school. She called immediately and went the next day to visit the site.

She met with Ms. who is the head of special education. They were having a party in the classroom. There were nine students and a Para helping the students stay together. The class was going to be physically moved next year. She was told that the students were level. She was told that seven out of nine children were ESL children that were receiving English as a Second Language services. This was not the same class as he would be in next year, however, it was some of the same students.

She was told they do on an as need basis which is important for in order to deal with his distraction. No one in the class had a para. The , or .

She expressed concern that if a student in the class act out it would distract . She was worried that there was no in place. There is no and is conducted partly in the hallways. The cafeteria is a basement converted half in gym half in cafeteria. The children leaving the cafeteria go through the gym to go outside for recess and so the special education students are mixed with the general education students. There are five aides to supervise. She was unsure about the classification of the other students but based on her observation she did not think anyone was significantly different. She was concerned that the students had needs with the English Language. She thought the school itself was all right. There was no music room and no sensory gym.

She made full payment to the for the 2010-11 school year. She opined that made and was . He continues to have and they have outside services to help him with his . She would have accepted an appropriate program from the Department. She reiterated that . She worried that because he does not have the teacher would just leave him sitting quietly. (Tr. 323-377)

On cross-examination she stated that s testing indicates that he has the aptitude for average achievement. She did not bring up the math goal at the meeting. She saw the and grade children who would be graduating into the grade. She saw nine children who she described as happy and smiling. She was told that part of the which was skills would be push in. is involved in a group at school for eight sessions once a week. They did two eight week sessions that she thought would help . She took it upon herself to help encourage him to participate in mainstream activities and she noticed he . She acknowledged that she did not like that everyone at the School received four sessions of services. They explained that they did not want the children to miss academics. He receives two .

She acknowledged that the teacher from this year added a piece which she was told they did not have. She thought the students were probably speaking English but she could not say if they were speaking exclusively English. (Tr. 377-391)

In response to my question about her concerns she reiterated her concern with lack of component and the fact that . She was concerned that these particular students required a lot of attention from the teacher. She was concerned there were not enough supports in place.

r goes for general counseling but they are tapering off of it. At the School he received two , one which is done outside the class in a group of three and one session of . In addition the whole class receives a a week. She explained the importance of his being able to communicate with the children. (Tr. 391-402)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of 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]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).

In this case there was an annual review meeting held on May 5, 2010 and in attendance were: the parents, District representative, general education teacher, school psychologist, special education teacher, parent Member and Special Education teacher from the School where had been attending. I find that the review team was properly constituted. They reviewed several reports, evaluations and a class observation and discussed all of the goals. The parent had no disagreement at the meeting or after with the goals. The only issue raised was the lack of a math goal and it was explained that is on average level and it was not required. I do not find that this rises to any procedural error that would render the IEP invalid.

The team recommended a special class in a community school with a ratio of and related services. (Exhibit 1) The parents raise no issue with respect to the IEP and only address the issue of placement.

's mother visited the placement and raises several objections which I will address. Firstly the fact that there is no gym does not render a placement inappropriate. The issues and concerns that were expressed throughout the hearing had to do mainly with . There was testimony from , who would have been his teacher how she addresses these issues and the plan that she has in place. The parent did not describe the students as any different from . There was no one in the group that appeared to have problems and there is no reason to conclude that would not receive the required attention. The staffing ratio was not an issue raised by the parent and I agree with the Department's attorney that it is designed to address issues. The teacher explained how she deals with transition and there was nothing unique to that she could not deal with. The parent raises issue with the fact that she was not aware of certain terminology, however, she does provide , allowing the , , and , which appear to be very similar to the School. There was testimony that all of the students fall within the required range. The parent raises concern with the related services specifically that there is no gym. There is a certified and there was testimony that would have received all of his required services. In fact, he would have received more services in , than the School provides. He would have received which is his most significant area of delay and to address some of his issues. He would have been in an environment where there was that would also provide him with individual attention.

It is well known that the IDEA requires the least restrictive environment, however, that environment must provide sufficient support for a student to receive meaningful educational benefit. The evidence indicates that they did consider a less restrictive environment but did not feel was ready for that setting.

The Department does not have to maximize a child's potential. I find that the team did consider all the support had been receiving and even added because of his needs. I find that the Department did consider his and his and the individual support he had been receiving. I find that he would have received three sessions of speech which is his most significant area of delay and to address some of his issues. I find that he would have been in an environment where there was opportunity for mainstreaming that would also provide him with individual attention. I find that the recommended placement provided with a structured program that could address his needs, including his , and provide him with the in the least restrictive environment. I find that the Department offered a FAPE and was appropriate. I find that the Department has met their burden under prong one.

I will briefly discuss prong two in order to have a complete record.

While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”). Counsel for the Department argues that School is not s Least restrictive environment. The evidence is clear that there are no mainstreaming opportunities and they are not even considered until the grade. I find that this is certainly not the least restrictive environment.

The SRO has held that a private placement is inappropriate if it does not provide the necessary related services to address the student’s individual needs. See Application of a Student with a Disability, Appeal No. 08-119 (denying reimbursement where private school did not “provide the level of related services identified as appropriate to meet [the student’s] needs”); Application of the New York City Dept. of Educ., Appeal No. 07-018 (same).

The School only provides four sessions of related services to any student. Even the parent expressed her concern. The parent is left choosing between a session of which seems warranted in this case and a session less of . I find that two sessions of when the IEP recommended three is not sufficient in this case. This is 's main area of struggle. I find that the related services are not appropriate for s individual needs.

In summary, I find that because of the lack of opportunity for any mainstreaming and the set amount of services for every student without considering individual needs is not appropriate for . I find that the is not appropriate and the parent has not met their burden under prong two.

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).

In this case the parents had signed the contract and made payments required by School prior to receiving a placement offer from the DOE. Counsel for the Department raises the fact that the parent would lose a substantial amount of money (approximately $10,000) if they accepted a public school placement. However, I find that this is the policy of School and it does not automatically mean that the parent would not have considered a public school placement. The school provided testimony that there have been parents who forfeited the money and accepted the Department's recommended placement. I find that the parent always cooperated with the CSE, participated in the meetings, informed them of her concerns and intentions. I find that the equities would not have barred the parents from relief.

ORDER

The request for tuition reimbursement is denied in its entirety. Dated: November 30, 2011

SHARYN FINKELSTEIN, ESQ

Impartial Hearing Officer

SF: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 RECORD ON MARCH 7, 2011

There was no evidence entered by either party.

DOCUMENTATION ENTERED INTO RECORD ON MAY 2, 2011

PARENT

A Notice of unilateral placement 8/25/10 2 pages B Classroom Observation 11/10/2010 2 pages C Attendance Report 9/2010-6/2011 1 page D Evaluation 11/19/2010 16 pages E Proof of Payment various dates 4 pages F Class Schedule 2010-11 1 page G Fall and Midyear reports 2010-11 21 pages H Class Profile 1 page

DEPARTMENT OF EDUCATION

1 IEP 5/5/10 14 pages 2 IEP minutes 5/5/10 1 page 3 Due Process Complaint 12/210 4 pages 4 Due Process Response 12/10/10 4 pages 5 Classroom Observation 11/17/09 2 pages 6 Midyear Report 2/2010 9 pages 7 Final Notice of Recommendation 6/22/10 1 page 8 Notice of IEP meeting 4/12/10 1 page 9 Notice of Recommended Deferred

Placement 5/5/2010 1 page

10 Evaluation 2/3/08 3 pages

11 History 1/16/07 4 pages 12 Evaluation 2/23/07 4 pages 13 Evaluation 12/19/06 3 pages 14 Enrollment Contract 2010-11 2 pages 15 Statement of Tuition Payment to

School 2/09/2011 1 page

EVIDENCE ENTERED INTO RECORD JUNE 27, 2011

There was no evidence entered by either party

EVIDENCE ENTERED INTO RECORD SEPTEMBER 16, 2011

FOR THE PARENT

I Notice of Deferred Placement 5/5/2010 1 page

FOR THE DEPARTMENT

No evidence entered

JOINT

I Notes taken by Miss 6 pages

EVIDENCE ENTERED INTO RECORD ON NOVEMBER 4, 2011

PARENT

J Report Spring 2010-11 9 pages