New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: January 26, 2011

March 9, 2011

March 11, 2011

April 27, 2011

May 6, 2011

May 18, 2011

Hearing Officer: Jeanne Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 26, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 9, 2011

Attorney — Student

Attorney — Student

Attorney — Student

Father — Student

Attorney — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 11, 2011

ESQ., Attorney, & Associates — Student

Parents

Pathologist, School (Via Telephone) — Student

Therapist, School(Via Telephone) — Student

ESQ., Attorney, — DOE

Teacher Assigned, CSE 9 (Via Telephone) — DOE

Assistant Principal, at (Witness, did not testify) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 27, 2011

Attorney — Student

Parents

Teacher (Via telephone) — Student

— Student

DOE Attorney — DOE

Assistant Principal (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 6, 2011

Attorney — Student

Parents

(Via Telephone) — Parents

(Via Telephone) DOE Psychologist — Student

DR., (Via Telephone) Director of Placement for District — Student

DR., (Via Telephone) Educational Director at Mc Carton School — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 18, 2011

Attorney — Student

Parents

Department of Education Teacher (Via Telephone) — Student

Department of Education Attorney — DOE

— DOE

INTRODUCTION

On January 6, 2011 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the education program of . (“ ”).

BACKGROUND

is an year old student classified with (classification of is not disputed). attends the School (“ ”) a private program not approved by the New York State Education Department to provide education to students with disabilities. On April 20, 2011 the Committee on Education (“CSE”) held a review and issued an Individualized Education Program (“IEP”) (Parents Exh. D) recommending a class in a school with related services including but not limited to Management Paraprofessional; Therapy; and and Therapy.

On or about June 8, 2010 a letter was sent to ., ‟s father recommending placement. (Parent‟s Exh. E) The school recommended was @

located at 442 East Houston Street, New York, New York. The program recommendation was substantially the same as the set forth in the IEP. On June 17, 2010 . sent a letter (Parent‟s Exh. F) to the CSE Chairperson notifying him they had received the recommendation letter, had not yet received a copy of the IEP and had made a number of efforts to arrange a visit to the program to no avail. He further stated that he had finally heard back from the school and a visit had been arranged for June 22, 2010 (the same date noted in the recommendation letter to advise the CSE as to whether they found the recommendation acceptable). . advised that if the school/program was not found appropriate they would continue at and seek reimbursement for tuition, costs and expenses. On December 22, 2010 , Esq. attorney for ‟s parent‟s requested an impartial hearing seeking reimbursement for 2010-2011 tuition at and transportation costs.

At the hearing the Department of Education (“DOE”) asserted that the program recommendation and related services offered a free and appropriate public education (“FAPE”) for the 2010-2011 school year.

THE DOE’S CASE

The DOE argues that it provided with FAPE for the 2010-2011 school year by providing him with an appropriate program recommendation in the least restrictive environment (“LRE”). DOE further takes the position that the equities favor the DOE as the parents had no intention of placing in a public school and only gave the appearance of cooperation and that as such the parents are not entitled to reimbursement for tuition and transportation for their unilateral placement at .

The DOE called three (3) witnesses to testify on its behalf and submitted a number of documents in to evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE‟s first witness was a teacher at . Ms. testified that she holds a BS in Education and a Master‟s of Science in Education and is licensed as a teacher in the City of New York (T 76). As a education teacher in District 75 she has taken professional development courses in TEEACH and ABLS and has ABA training on her own. (T.77). She states that is not an ABA school but if she deems it necessary she will run a modified ABA. (T. 78,

149) In the summer of 2010 Ms. was a classroom teacher. She actually taught at , though the main site is actually but it was closed because they were renovating. (T. 81). The program was a summer program and was different from the regular school year (T. 82) The class that she taught that summer consisted of four (4)

years olds and one (1) year old. Another child joined the class shortly after school started, an or year old. In addition to Ms. there was a paraprofessional and a crisis para who was assigned to one of the students. (T. 87, 139) The functioning levels of the class ranged from to the middle of the grade, depending on the subject. (T. 92) She testified that she had three different lessons plans per day for the groups that she was working on, the classroom para would work with the other two and the crisis para would work with the other student. If able to work independently a student would do so. She would rotate through so she could work with all the students. She did not use a particular methodology. The class had a broad during the summer. (T. 94, 111) Ms. mixed methodologies because based on her experience she would try to provide the student with what she felt was best for that student. She would not use ABA for students at a much higher functioning level because they did not need it. If a student needed it she would try to incorporate it and eventually move them into something else. (T. 99, 100) She was responsible for the actual instruction in the class but felt the para‟s she had were very competent and was confident leaving them to work on certain things. (T. 101)

Ms. has not met but has reviewed his IEP and believes that he would have fit in to her class. (T.135) At the time in question was years old. There is a broad over the summer as to the student‟s academic levels. Ms.

testified that the was broader because it is a smaller group of both staff and students. (T. 140, 141) This broad is unique to the summer program. (T. 182) She would not have continued as ‟s teacher because in the st Fall she would be teaching at school that had only and grade. She did not know if would have been in her class that summer, but probably would have though there were other classes in the school. (T. 144, 145) Ms. states that the difference between the summer program and the regular school year is that in the summer they do the core subjects, literacy and math and a lot of socialization/trips. During the school year they have transitions to science, theatre, music, technology. Ms.

agrees that the summer program is an edited version of the school year. (T. 150-151) She did not know what class would have been in after the summer.

(T. 156) She did not have any students over the summer with mandates as high as ‟s for and OT. (T. 172, 173) From a review of ‟s IEP Ms. believes that he definitely has difficulty with attending but does not know if he has the attending skills necessary to be in a TEEACH classroom. (T.180, 181) The DOE‟s second witness was Carol , Teacher Assigned at CSE 9. Ms.

has been an employee of the DOE for over 30 years and for the past 3 years has been the teacher assigned to CSE 9. As such her duties include going to private schools to do observations, consult with teachers, meet with the parents and develop IEP‟s. She works with all categories of students with the exception of hearing and vision impaired. (T. 247, 248) Ms. is familiar with as she has participated in his IEP reviews for the past two years, and has been assigned to for almost three years. (T. 250. 251) Ms. participated in the IEP review for in the capacity of education teacher. (T. 253) Also present was , district representative and school psychologist, , parent member, , , Director , , education teacher, , and therapist. (T. 255, 256) The team recommended, at the IEP meeting a class in a school, as well as a management para and related services. (T. 262, 263) Ms. believed that continued to need a small group of six, as he had at . (T. 267) She testified that no one, with the exception of ‟s mother brought up the need for to stay in a one to one situation. She stated that the teachers were saying that during much of the day was in different groups and so it did not seem appropriate to have him in a one to one situation all day. (T. 268, 269) Ms. testified that at the IEP meeting they discussed ‟s transitioning and that it had become easier for him as he had transitioned to a new school and that he had a difficult time in the beginning but had adjusted. (T. 275-276) Ms. is unsure what steps, if any, were taken by staff to ease ‟s transition and is not sure if it was specifically discussed at the meeting. (T. 342) She believed that would need a transition plan to move to another school in July. At the time of the IEP meeting she was aware that had significant difficulty with transition. (T.343-346)

The school staff insisted that needed to continue with 1 to 1 teaching in spite of his success in group situations that they had put him in. Ms. conceded that while in those group settings he was at all times being supported by one of the ABA teachers in the classroom during those times. She did not know if could succeed in a group setting independently without one to one support because it had never been tried or attempted. (T. 327-329) She does not know if anyone from the DOE assessed without one to one support in a group situation. (T. 330). Ms. believes that is too restrictive. (T. 347) The staff at did not think it was a good idea to move in to a school. (T. 367, 368)

The DOE‟s third witness was , Assistant Principal and has worked in that capacity for six years. She has had training in TEEACH and training in ABA. She provides professional development to staff. (T. 460) In the summer of 2010 there were no classes at the site as it was being renovated. They were moved to an alternate site at , one block away. Parents were notified of the move via letter and phone calls. (T. 461) Ms. testified that they do not place a child in to a specific class until they enter the program. At that point they look at the IEP and see which class is the best fit. The IEP is a benchmark, but then they use observation and acclimate the student within the program. They often move students, but some stay where they are if they are effectively placed (T. 468, 469) They try to maintain consistency with the crisis para and the classroom para when the students moved from back to after the summer. We try to keep the team together. The only thing that might change is the teacher. The teacher was doing some work in the District Office and that is why Ms. filled in for the summer. The classroom went back as a team, with the same kids, these were the same kids the teacher had, just that she was absent for the summer. (T. 474, 475) In the fall there was no at , so parents were given RSA letters (T. 479)

THE PARENT’S CASE

The Parent‟s argue that the DOE has failed to afford with FAPE. That the program offered was not reasonably calculated to provide with meaningful educational benefits as the program does. As such they seek tuition reimbursement and transportation cost for the 2010-2011 school year. The Parents called nine (9) witnesses to testify on their behalf and submitted a number of documents in to evidence. In sum, substance and relevant part the testimony on behalf of the Parents is as follows:

The first witness to testify for the Parent‟s was Kaitlin , a Therapist at . Ms. provides 5 hours per week of therapy to in the classroom. (T. 410) She also works with him informally throughout the day. (T

418) Consistency for is extremely important (T. 414) Ms. has observed making meaningful progress and has seen him improve in his ability to attend for longer periods of time. He has also improved in his ability to follow multi step directions around the classroom. (T. 411) The services provided to are all one to one. Ms. has been providing therapy to since September 2010, prior to that time she observed him working with the prior therapist throughout July and August, 2010 (T. 412, 413) Ms. believes that it is important that maintain the same level of services.

The second witness was , an Therapist at . Ms. , along with a Ms. provide 45 minutes, 5 times per week of to (T.

429) Having two people provide promotes consistency and generalization (T. 438) Ms. believes that needs one to one support to make meaningful progress, and to keep him engaged as he has such low . (T. 434, 435) Consistency is important to , he is making meaningful progress, overall his attention is better

(T. 433, 434)

The third witness was , ‟s teacher at . He testifies that needs a lot of support in the classroom. He always has a teacher working with him, but it is not only one teacher, teachers are rotated hourly. follows a classroom schedule and an individual schedule. He has a lot of written and visual support while transitioning. There is a system of rewards in place such as if he pays attention for more than 25 seconds in group work he gets a reward. (T. 616, 617) is one of five students in his : classroom. (T. 609) is appropriately placed in the classroom, he works in a group of 5 students. He always requires one to one instruction for support.

If he‟s not monitored he will walk away from his desk. He usually has poor attending but they have worked over time to increase his attending (T.612, 613)

Mr. testified that they are trying to maintain ‟s independence. As an example has a schedule where he needs to go to the , his and his . He has a teacher with him but that person stands at the door rather than providing prompting. (T.630) Initially, they helped him a lot but they fade the teachers so he doesn‟t need a lot of help. (T. 616) Mr. believes that is appropriately placed and is making good progress and finds his progress remarkable compared to previous years (T. 643) Mr. recommends that remain in the same setting with the same group of students in a : setting. (T. 616-620) If there is no teacher to work with he will not participate in group or pay attention for longer than 5 seconds. (T. 620)

The witness was Dr. , Educational Director. is a not-for-profit with tuition of $125,000 for a 12 month program. had 8 classrooms with 39 students. (T. 754-755. Dr. is the Director of the lower school. The teaching staff consists of 5 Board Certified Analysts (BCBA). To be a head teacher you must have a Master‟s in education and in addition must work at to learn the teaching model for at least one year and have experience with students who have working in an ABA setting. (T. 758, 759) All other staff must have at least a bachelor‟s degree and experience working with children on the . (T. 460)

Dr. is in ‟s classroom each day. (T. 760) ‟s class has

5 students and between 3-5 instructors. always has a : teaching ratio. (T. 769, 770) The classroom placement is determined by age and functional level. Not every student in ‟s class requires : but he was placed in the class because he is academically capable of doing the work. (T. 795) Teachers are rotated so that does not have the same : instructor all day. It helps the student to generalize. (T. 770) The teaching in ‟s class is moving towards group teaching. (T. 782) They are trying to fade out the : support. (T. 772, 773) Dr. believes that is appropriately placed and that he is making meaningful progress. (T. 791,792)

Dr. stated that at the IEP meeting Ms. started off by asking ‟s mother if she wanted to stay at . It was at the very beginning of the IEP meeting and no other schools were mentioned. (T. 788) As to transitioning Dr. believes that it would be very challenging for and he would need support. She states that even in transitioning from one class to another at they work with a transition plan. (T. 779) Dr. believes that it would be difficult for to gain skills in a situation and because of his interfering s he would be noncompliant. (T.776)

The fifth witness called by the Parents was , DOE psychologist. Ms. did an observation of at for approximately 1 hour. She was also able to review documents at the school. She states that he was making progress. No one at the IEP meeting disputed that was making meaningful progress at . (T. 702, 703) Ms. does not dispute that learns in a one to one environment. There was no assessment done by the DOE to see if could learn in a setting, or any setting less than : . No assessment was done by the DOE to see if was amenable to learning under the TEEACH model (T. 704, 705) Ms. acknowledged that transition would be a problem for (T. 717)

The sixth witness called by the Parents was Dr. , Director of Placement for District 75. Dr. described the typical procedure for making a placement. The placement officer looks at where the student lives, the recommendation, age, home district and classification. They then search the system to find the best class. (T.746) They try to make a placement for the same school for the summer and fall. (T. 748) The placement officer does not visit sites before making individual recommendations. (T. 750)

The seventh witness called by the Parents was , DOE teacher. Ms. is a education teacher at with a Masters Degree in education. This is her first year teaching for the DOE (T. 839, 840) She has four students in her class, ages - and each is diagnosed on the (another student was added later T.845). They use ABA on an as needed basis though Ms. has no training or experience in ABA. (T. 841, 842) Ms. has no specific training in the TEEACH model just what she learned from working with her mentor. They follow the TEEACH model in her classroom. (843, 844) There was no in the school in September so students received RSA‟s. (T. 845) Ms. believes that out of the students in her class two of them were in summer school at (T. 843)

The eighth witness was , ‟s mother. Mrs. testified that the IEP meeting started with either Ms. or Ms. asking her if they wanted to continue at , no other school was mentioned at that time. Mrs. states that the best possible situation would be a free and appropriate public education as a private education has been a huge financial burden for them. (T. 801) Mrs. believes needs a one to one setting (T. 803) The ‟s would have given consent for any evaluation or assessment (T. 806) They borrow the money to pay for from Mrs. ‟s father. (T. 805)

The ninth witness was , ‟s father. The s made three attempts to see the school that was recommended to them (T. 821) When Mr. visited @ he met with the principal. (T.831) He was informed that there would be 2 different programs, one for the summer and one for the fall. (T. 824) The s were told there was no transition plan in place. (T. 825) Mr. states that he would be thrilled to have an appropriate DOE placement. (T. 827) His father-in-law funds a loan account to pay the tuition. There is a loan agreement in place. When reimbursement is made it is put back in the loan account. (T. 815-817) Whether they win or lose repayment of the loan is required. (T. 854) There is interest on the loan, prime plus one. (T. 830)

FINDINS OF FACT AND CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes education and related services designed to meet the student‟s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

The Parents argue that the DOE failed to provide a FAPE for the 20102011 school year based on multiple procedural and substantive deprivations which could not be cured by the DOE after the fact. Among the many issues raised, the Parents argue that the DOE failed to properly evaluate ‟s present levels, instead relying instead on teacher estimates; the DOE failed to develop an appropriate and adequate Intervention Plan (BIP) or Functional Plan (FBP) for ; the DOE failed to adequately consider ‟s need for consistency in that no transition plan was discussed, recommended or developed; the DOE failed to offer adequate levels of related services to address ‟s unique needs; the DOE failed to properly address ‟s generalization deficits by making provision for teaching across different settings and different personnel; the DOE failed to provide with consistent : teaching support throughout the school day; and failed to assess and/or otherwise meaningfully consider what, if any, educational methodologies and approaches are reasonably calculated to promote meaningful educational progress.

I find that based on the testimony adduced at the hearing that there were defects regarding the development of the IEP some of which were severe enough to deny a FAPE. Of the eight people present at the IEP meeting two were DOE employees (Ms.

& Ms. ) one was the parent member (Ms. ), ‟s mother and the remaining four were teachers and therapists from . In her testimony Ms. stated that the “team” had recommended a class in a school as well as a management para. She further stated that only ‟s mother brought up the need for to stay in a : situation. She stated that the teachers spoke of how was in different groups all day so it did not seem appropriate to keep him in a : situation, and also how much easier transition had become for him, as he had successfully transitioned from one school building to another the prior year. However, on cross examination Ms. testified that the staff had insisted that needed to continue with : teaching in spite of the success in groups, as well as conceding that while in those settings he was at all times supported by one of the ABA teachers in the class. In addition, she was unaware of what steps had been taken to ease his transition from one school building to another. Neither Ms. , nor Ms. was aware of any assessment done by the DOE to see how would adjust to being moved from a : situation to a , or if he would be amenable to the TEEACH model. Both agreed that transition would be difficult for and Ms. believed that a transition plan would be needed for to move to another school. It seems clear that the team was not in agreement as to what would be the best course of action to take regarding the placement for and while the DOE takes the position that there is no requirement that a BIP or FBP to be done every year it would appear that given ‟s interfering s and issues with transition as well as the leap between a : environment and a environment such evaluations could have been key in assessing, and possibly supporting such a change, as well as investigating whether would have the necessary skills to profit from the TEEACH model after years spent learning with the ABA model.

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO note that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies : (a) impeded the student‟s right to FAPE; (b) significantly impeded the parent‟s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y 2007) I find that the Parent and staff were clear in their disagreement to place in a program and the DOE‟s decision to place in a without any evaluative data to support that placement denied a FAPE and impeded the Parent‟s opportunity to participate and caused a derivation of educational benefits

As to the placement itself I find that such placement has not been proved by the DOE to be an appropriate placement for and as such denied him FAPE. The DOE takes the position that they need only present evidence as to the first day of school in July, notwithstanding the fact that the program that was offered at @ was broken up in to a summer program being held at (due to renovations at the other building) and was not the same program that would be offered for the rest of the school year. I find this position disingenuous. The testimony of the classroom teacher that probably would have been placed with was clear that the summer program is an annotated version of the regular school program. Ms. testified that there is a broad over the summer as to the student‟s academic levels, and that the broad is unique to the summer session. Ms. stated that she would not have continued as ‟s teacher and did not know what class he would have been in during the regular school year. She further stated that she did not have any students with mandates as high as ‟s.

, Assistant Principal at testified that they try to maintain consistency with the crisis para and classroom para when they moved the students back to after the summer. She stated that they try to keep the team together and the only thing that might change is the teacher. She stated that the classroom teacher that Ms. filled in for was only gone for the summer because she was doing some work in the district office. The classroom went back as a team, with the same kids, just the teacher was different. The DOE rested with this testimony, no further evidence was offered by the DOE as to the appropriateness and educational benefits of the placement offered . The DOE, in resting after presentation of the summer school presentation, asserts that they “accordingly, offered evidence regarding the placement at the start of the school year.” and “…need not present evidence regarding the actual recommended school placement for the entire school year to meet its burden of proving that it provided a FAPE…” citing to T.Y. v. N.Y. City Dep‟t of Educ., 584 F3d 412, 420 (2d Cir. 2009). A review of the aforementioned case reveals that the court specifically referred to educational placement and defined it as referring to “…the general education program— such as services a child will receive—rather than the „bricks and mortar‟ of a specific school.” The transition problems raised by Parents aside, this case goes well beyond the particular school building. The DOE‟s own witness, Ms. was clear that the July/August program was a summer program, and that it is unique to the summer. The actual program that would be attending would begin in September and there was no testimony offered by the DOE about that program. There was also no evidence offered as to whether there would have been a summer program if there had not been renovation work at @ during the summer. The Parents subpoenaed the classroom room teacher that would have been have been most likely to have in her classroom, . She testified that she was in her first year of teaching for DOE, had no training in ABA and no specific training in TEEACH. Of the five students in her classroom she believed that two were in the summer school program. Her testimony contradicts Ms. ‟s testimony of keeping the team and the students together.

The Parent has the burden to prove that the services they obtained for are appropriate to meet his needs. In order to meet that burden the Parent must show that the services provided were “proper under the Act.” Florence County School District v. Carter, 510 U.S. 7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child‟s education. The fact that the facility selected by the Parent to provide education services to the child is not State approved as a school for children with disabilities is not dispositive of the Parents claim for tuition reimbursement.

The DOE concedes that there is no requirement that a unilateral placement by a parent adhere to the IDEA mandate of educating students in the least restrictive environment. However, the DOE asserts that the program at was overly restrictive and that the record supports the conclusion that the classroom was overly restrictive and therefore could not be an appropriate setting for . The DOE further asserts that has never had the opportunity to be taught in a different setting so it is not possible to say that a setting would be totally inappropriate for him. The SRO ruled in Appeal No. 06-013 that “the LRE requirement (20 U.S.C. Section 1412 (a) (5)) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 (2d Cir. 2000), it must be balanced against the requirement that each student receive an appropriate education Briggs v. Board of Educ., 882 F2d 688, 692 (2d Cir. 1989) While the parents are not held as strictly to the standard of placement in the LRE as the school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement M.S. v. Board of Educ. at 105 The test for a parental placement is that it is appropriate, not that it is perfect Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) see also M.S.v. Board of Educ. at 105

I find that the Parents offered substantial evidence to meet their burden of the appropriateness of ‟s placement at . The evidence demonstrated clearly that was progressing academically and emotionally. The DOE asserts that there is no objective evidence as to whether the program is appropriate and that such determination must be based on objective evidence M.S. v. Board of Educ. A review of the testimony reveals that Ms. testified that was making meaningful progress at and that this fact was not disputed at the IEP meeting. I further find that the staff credibly testified as to the progress that was making in the : class this school year. Therefore I find that the Parents have met their burden regarding the appropriateness of the placement at for the 2010-2011 school year.

The third prong of the test for tuition reimbursement is whether the equities favor the Parents position. I find that ‟s parents cooperated fully with the IEP process and timely notified the DOE that they were rejecting the proposed placement and program. There was testimony by the DOE that ‟s mother had stated that she wanted to remain at at the IEP meeting. Both . and Dr. testified that the question of whether or not . would like to remain at was one of the first things asked and without any other placements being discussed.

. further stated that a free and appropriate public education would be best as the tuition at is a huge financial burden. . also stated that they would be thrilled to have a FAPE for . The Parents testified that ‟s grandfather funds an account to pay for ‟s education and that this is a loan and must be paid back whether or not the Parent‟s prevail at an impartial hearing and receive tuition reimbursement. Despite the absence of a current loan agreement I credit the testimony of the Parents regarding their arrangement with ‟s grandfather as well as their willingness to have their son attend an appropriate placement at a public school. In view of the foregoing I find that the equities favor the Parents position.

ORDER

Therefore, it is hereby ordered that the Department of Education shall reimburse the Parents for the school for the tuition for the 2010-2011 school year in the amount of $125,000 as well as the cost of transportation for that same period. Dated: July 14, 2011

JEANNE KEEFE, ESQ.

Impartial Hearing Officer

JK:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 9, 2011

A. Demand for Due Process and fax confirmation

12/22/10, 7 pages Parent

B. Finding of Facts Decision, 9/2/08, 9 pages Parent

C. Due Process Response, 12/23/10, 3 pages Parent

D. NYCDOE Individual Education Plan,

4/20/11, 32 pages Parent

E. Final Notice of Recommendation @ ,

6/8/10, 1 page Parent

F. Letter from Parent to District, 6/17/10, 1 page Parent

G. Final Notice of Recommendation @ M,

6-21-10, 2 pages Parent

H. Letter from parent to District, 7/13/10, 2 pages Parent

I. Service Delivery Report, 2010-2011,

1 page Parent

J. The School IEP by , Dr.

Cecilia , , M.S., Ed.

OTR/L, M.S., Ed.

M.A., CCC-SLP, 2010-2011,

13 pages Parent

K. Therapy Report and IEP Goals

The School, By , M.S.,

OTR/L, , M.S. OTR/L, 12/00/10

10 pages Parent

L. and Progress Report, The

School, By: , M.S.

CCC-SLP, TSSLD, 12/00/10, 3 pages Parent

M. Educational Progress Report, The

School, By: , ,

12/17/10, 7 pages Parent

N. School Enrollment Contract,

2010-2011, pages Parent

O. Class schedule and attendance record,

2010-2011, 3 pages Parent

P. Subpoena‟s served on the District,

2-11-11, 14 pages Parent

Q. Subpoena sent by the District, 2/15/11, 3 pages Parent

R. Paraprofessional requirements, undated, 2 pages Parent

S. T.E.E.A.C.H. Methodologies, undated, 3 pages Parent

T. A.B.A Methodologies, undated, 3 pages Parent

U. ABA SEIT Report, 2010-2011, 4 pages Parent

V. District 75 Placement Office Referral Form, undated, 1 page Parent

W. E-1 Request Form, undated, 1 page Parent

X. Standard Operating Procedures Manual, undated, 154 pages Parent

Y. Jose P. 7/28/88, 69 pages Parent

Z. School Affidavit, 2010-2011, 1 page Parent

AA. Curriculum Vitae, undated

12 pages Parent

BB. Proof of Payment: Transportation and Tuition

2010-2011, 13 pages Parent CC School Description, undated, 7 pages Parent DD E-1 Subpoena, 2-25-11, 2 pages Parent

1. Impartial Hearing Request, 12/22/10, 6 pages District

2. Due Process Response, 12/23/10, 3 pages District

3. IEP, 4/20/10, 34 pages District

4. IEP Meeting Minutes, 4/20/10, 3 pages District

5. Final Notice of Recommendation, 6/8/10, 1 page District

6. IEP-The School;

9/2009-2010, 14 pages District

7. The School-Educational Progress

Report; , 1/4/10, 6 pages District

8. The School- and

Department Progress Report;

1/2010 District

9. The School- and

IEP Goals September 2009-August 2010,

Updated January, 2010; , 1/2010

9 pages District

10. The School- Therapy

Progress Report; , 1/20/2010

6 pages District

11. The School- Therapy

IEP Goals; , 1/2010, 1 page District

12. Reduction Plan-The School;

, 9/2009-8/2010, 2 pages District

13. DOE Observation of , 2/2/2010,

3 pages District

14. IEP, 5/11/09, 28 pages District

15. Parents Subpoenas Duces Tecum A, B#1, B#2

and C-submitted for signature with accompanying email, 2/3/11, 11 pages District

16. DOE Subpoena Objections to Parents Subpoenas

Duces Tecum A, B#1, B#2 and C, 2/9/11, 7

Pages District

17. Emails between parties to the Case, and

Impartial Hearing Officer Keefe regarding

DOE‟s 7 page Subpoena Objections and Hearing

Officer‟s Rejection of DOE‟s Subpoena Objections

2/11/2011, 2 pages District

DOCUMENTATION ENTERED INTO THE RECORD ON 4/27/11

EE DOE Student Information/E1 request form,

2009-2010, 24 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON 5/6/11

FF D75 referral form, 2010,^[1] page Parent

DOCUMENTATION ENTERED INTO THE RECORD ON 5/18/11

GG Affidavit of 11-10-09,

4 pages Parent

II Additional Proof of Payment for Transportation and Tuition, 2011, 3 pages Parent

POST HEARING SUBMISSIONS

Closing Brief For The Department of Education, June 13, 2011, 16 pages (with cover sheet) District Petitioners‟ Post-Hearing Brief, June 13, 2011

16 pages (with cover sheet) Parent

Footnotes

[1] page Parent HH Payments made to , 2011