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

Dates of Hearing: February 4, 2011

March 7, 2011

March 25, 2011

April 13, 2011

Hearing Officer: , Esq.

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

Parents

Parents

District Representative — DOE

District Representative, CSE — DOE

Assigned, CSE, — DOE

School, CSE — DOE

School,, CSE — DOE

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

Parents

Parents

/ School — Parents

(via telephone)

District Representative — DOE

District Representative, CSE — DOE

DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2011

Parents

Parents

School — Parents

(via telephone)

School — Parents

(via telephone)

District Representative — DOE

District Representative, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2011

Parents

Parents

District Representative — DOE

District Representative, CSE — DOE

On February 4, 2011, March 7, 2011, March 25, 2011, and April 13, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”), - , , , pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated December 23, 2010, received at the DOE‟s Impartial Hearing Office on January 3, 2011. (Ex. A) I was appointed Impartial Hearing Officer on January 3, 2011. The resolution period ended on January 10, 2011. At a telephone conference with the parties on January 14, 2011, the initial hearing was scheduled for February 4, 2011, the first mutually available date for the parties and the hearing officer.

The initial compliance date in this matter was February 24, 2011. The parties moved to extend the compliance date on three occasions in light of anticipated testimony, the scheduling of witnesses and the submission of evidence. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.

The current compliance date is May 27, 2011. The record closed on May 3, 2011 upon my receipt of the transcript of the April 13, 2011 hearing.

Background

The student is an year old who is currently in her year at School (or “the school”), a general education school located in . The most recent IEP describes her as being in the range in all areas except broad skills where she tested with significant deficits. (Ex. E) for student‟s attendance at School during the 2008-2009 and 2009-2010 school years was paid by the DOE pursuant to a settlement with the parent in connection with a prior impartial hearing request. At that time the student‟s disability classification was . On May 17, 2010, the CSE reconvened to develop a program for the 2010-2011 school year, the student‟s senior year. The May 17, 2010 IEP changed the student‟s classification to and recommended (“ ” or “ ”)( ) - (for and ) and ( ) and by a ( ). (Ex. E)

By letter dated June 14, 2010, the student‟s (“the parent”) was informed that the IEP team recommended a placement at School in . (Ex. F)

By letters dated June 14, 2010 and September 30, 2010, to the CSE, the parent stated that the recommended placement could not provide the recommended program and requested another placement. (Exs. H, J) By letter dated November 18, 2010, the parent informed the CSE that she had placed the student at School and was requesting DOE funding for that placement. (Ex. K)

By letter dated December 23, 2010, the parent requested the instant impartial hearing. (Ex. A) Testimony Presented

A. DOE

(“ ”), is the education assigned to the CSE who participated in the May 17, 2010 review (“the IEP meeting”) and who also participated in a September 2009 CSE meeting. (T. 26-27, 128) He testified that at the May 17, 2010 meeting the CSE had considered the assessment and other material and concluded that the student had to in and , in comparison to her other skills, and developed a program that provided collaborative team teaching in those areas at a public school in a general education program. (T. 29) The CSE also considered the student‟s history of and , noted that the student had been on medication for that and that improvements appeared to have been made and recommended and a change in classification from to . (T. 29-30) The classification had been made in 2009 after the student entered school for her grade and had begun classes. At that time a evaluation indicated significant concerns related to emotional issues. (T. 30)

stated that the CSE had considered a profile from a and a evaluation as well as reports and report cards from School in making its May 2010 recommendation, including the change in classification. (T. 30, 32, 36, 47, Exs. 1, 2, D) A classroom observation had not, however, been done. (T. 32) testified that he had never been permitted to conduct a classroom observation at that school. (T. 33) With regard to the program proposed he recalled no objection from the parent and noted that none was referenced on the conference summary. (T. 41, 55, Ex. 2)

opined that that the program proposed would have benefited the student in view of her functioning at that time and that it was the least restrictive setting for the student. (T. 42-43) Further, he stated that an instructional setting without the recommended support services would be inappropriate. (T. 51)

has never met the student. (T. 69) He had no knowledge as to the scheduling of the IEP meeting or why it was not scheduled earlier than May 17, 2010, but acknowledged that the parent‟s letter of September 3, 2009 was a request for an evaluation. (T. 77-82, Ex. B) characterized as a large building with a large population (2000 minimum) which is basically departmentalized and statated that the specified classes would have up to 40% of the students with an IEP and would have both general education and a special education . (T. 95-101)

(“ ”) testified that he is a certified school and has been working for the DOE for 20 years at various locations and for two years assigned to the CSE. (T. 145-147) He conducted a assessment of the student on September 30, 2009. (T. 147, Ex. D) He testified that the student was somewhat and quite and that she had described being and to in school which she by not . (T. 149) He described the student as “ .” (T. 154) stated that he knew that she was doing well in School at that time (the 2009-2010 school year) and that his intention in his recommendation was that she not change schools at that time. (T. 151, 159) His recommendation was based only upon his clinical interview of the student and his interview of the parent as well as upon a review of records. (T. 153, 158, Ex. D)He was not asked to and did not participate in the May 2010 review. He testified that he had not making a recommendation for the 2010-2011 school year and that he did not know what was appropriate for that year. (T. 151, 160, 161)

(“ ”) testified that she is a school with about 15 years experience in that capacity with the DOE and participated in the May 17, 2010 review. (T. 165-167) She stated that the parent and her requested a change in classification and that the CSE had decided on a classification based upon its review of the documents submitted, which included evidence of . (T. 168-171, 188. 190) A change in classification to was discussed and rejected by the CSE. (T. 187) The CSE concluded that the recommendation made was the least restrictive environment that would serve the student‟s needs. (T. 190) She noted that the had reported , the reports indicated appropriate social-emotional functioning and the information submitted indicated that she is an intelligence student but had deficits in certain areas. (T. 192-193, 197, 210 Ex. D) She could not recall, however, what led the CSE to recommend for as well as . (T. 201)

recalled that there was no objection to the recommendation. (T. 172-173) She stated that she had attempted to observe the student in School but was informed that parental consent was required. (T. 174) recalled being informed by the parent early in the 2009-2010 school year that she would not give permission because had not yet been paid and “it was her only leverage.” (T. 175-176) That conversation was not recorded in the student‟s file. (T. 177-178) She never made any subsequent attempt to obtain parental permission. (T. 216) did not know the reason for the time gap between the September 30, 2009 evaluation and the May 17, 2010 review and stated that in her understanding the review should have been conducted within 30 days of the parent‟s September 3, 2009 request. (T. 180-182, 185-186) She stated that her letter concerning the May 2010 review was prepared and mailed in late April 2010 and that the date specified on the letter was an error. (T. 183-184, Ex. C) acknowledged that a student‟s during test taking could impact performance on a test. (T. 199) She could not recall whether the CSE specifically considered whether a placement in a new school environment would result in regression from the she had made. (T. 231)

(“ ”) testified that she is a education who is the compliance coordinator for School and has run the education program at that school for the last 8 years. (T. 265) She first became aware of the student in June 2010 when she received a telephone call from the parent requesting an opportunity to visit (“ ”) classes. She informed the parent that at that time it was test week and there were no classes to observe. (T. 267, 269, Ex. G) The parent would, however, have been free to visit the school to tour and to discuss the program with her. (T. 270) She stated that she never told the parent the school could not accommodate the student‟s academic needs or meet the recommendation of the IEP. (T. 270, 271, 282) Further, the school would have been able to meet the IEP‟s mandate. (T. 274) stated that the September 28 through September 30, 2010 e-mails submitted by the parent were the only ones she exchanged with the parent and that the September 28th email was the parent‟s first communication since June. (T. 275, Ex. I) She stated that it was possible that she told the parent to wait until the second week of school to arrange a visit. (T. 288) With regard to the availability of appropriate classes for the student, stated that one term of trigonometry was given but that if the student had not previously taken a Regents it would not enable her to graduate. (T. 298) At least one regents or RCT is required for graduation with a diploma. (T. 296) There were, however, other courses that could have satisfied the student‟s graduation requirements. (T. 299-300) The parent had informed her that the student needed trig and chemistry and she assumed that the parent knew what was necessary. (T. 300, 316) could have provided classes that would culminate in a Regents and enable a student who had not previously taken a Regents to graduate but the parent was not told about that possibility. (T. 308309)

B. Parent

(“ ”) testified that she is the director of School, is certified as grades - and licensed as a counselor. (T. 331-332) She has had no training with regard to education students. (T. 380) The school currently has about students (about 5-6 with IEPs) in grades - , with in the class, an average class size of about and .

(T. 332, 380, 391, 407-421) Of the 19 seniors the majority have average IQs with 1 or 2 higher and none below average. (T. 385) students receive a New York State school diploma but those students who wish to take Regents exams and obtain a Regents diploma may do so and 5 seniors are on that track this year. (T. 333, 362-364, 365-366,

387) Staff meetings are held every 2 weeks and students are reviewed. (T. 398) This student chose not to take Regents exams, in ‟s understanding due to test , but is on track for receiving a private school diploma in June 2011. (T. 333, 362-363, 393) The student is generally is absent only about 2 days a semester at most and her academic functioning is very good. (T. 337) With regard to available special education resources, stated that the president of the Board of Trustees was a superintendant in special education and available to consult. (T. 338, 369)

The student‟s is addressed with extra time for testing, the ability to see the to clarify notes and available tutoring every day which the student has utilized. (T. 363, 390) described she provides for the student which now focuses on her adjustment from a small class size to college and on life goals. (T. 339, 349, 352-354, 367)) She described the student as happy and stated that she had been admitted to the program at the (T. 350) The student participates in class and has become one of the senior class leaders. (T. 368) She believes that the student would be “totally and completely overwhelmed” if she entered a school with 2000 or more students and that a class of 35 would be too big for her. (T.

343) Further, she believes the student could not handle taking 3 Regents exams in June 2011. (T. 393, 399) received the May 2010 IEP very early in the year and used it in connection with scheduling. (T. 348)

testified with regard to DOE on-site observations that the school requires written permission of the parent and upon presentation of that the observation would be permitted. (T. 340) With regard to the submission of reports, she stated that she had never been asked to provide one. (T. 360) has not yet been paid for the 2010-2011 school year because agreed to wait until the impartial hearing concluded.

(T. 409)

(“ ”), the of Students of School, has a Masters degree in School , does not have a teaching license, and does not have a school district administrator license nor an administrative supervision license. (T. 435, 456) His sole professional experience has been at the school, starting as a in 2000 and becoming dean in 2004. (T. 435, 473) He testified that the school currently has 39 students in classes of from 8-15 students. (T. 435) There are 18-19 students in this year‟s graduating class. (T. 435) The student has three and is currently taking 4 courses. (T. 439) He characterized her behavior as good. (T. 444-445) The student socializes “very well” with other students. (T. 451-453) Free after-school tutoring by a faculty member is available for all students and the student has utilized it. (T. 446) DOE observations are permitted if parental permission has been obtained but he does not believe there have been any DOE observations since at least 2004 but is aware of only one request, and that with regard to this student. (T. 459-463, 475) None of the students has serious behavior issues. (T. 465-466) The student‟s and her English each have a long term substitute teaching license from New York City. (T. 479-480) The school follows the State curriculum and requirements and the students graduate with State approved diplomas. (T. 480)

(“ ”) testified that that she has a Bachelors degree in History with a double minor in English and Secondary Education and a Masters Degree in Educational . (T. 507). She does not have a teaching license but completed coursework for a teaching license in social studies in 1986 and intends to take the test for licensure. (T. 541, 562) She held a per diem substitute teaching license after graduation in 1986 but did not renew it when it expired in about 2002 shortly after she started working at School. (T. 560-561, 563) During the 2010-2011 school year she has been the student‟s for Art and Culture of the 1920‟s, economics and in classes of from - students (T. 508, 539) She described the student as cooperative, accommodating and a “fine student” who participates in class discussions and debate, and expresses her concerns and stated that her other ‟ opinion was consistent. (T. 508, 511, 513) She read the student‟s IEP at the beginning of the year. (T. 512) Extra time and other accommodations with regard to test taking are available although the student has not requested them. (T. 518-520) stated that she believed the student‟s has been alleviated by the ability to obtain help, including from and further, that the school‟s small size and small classes have improved the student‟s ability to function.(T. 522, 538-539, 557)

The student’s (“ the parent”), an school employed by the DOE (T. 784), testified as follows: Through the grade the student had been an honors student and/or in an . (T. 575-577) Although she always had some and it had been , she attended school regularly and she did not have an IEP. (T.578-579) For her grade the student attended ., a very large school. Her first report card raised concerns but the parent was advised that there was not a problem at that time. In February the parent learned from the student that she was cutting classes substantially, sitting with the school instead, and having and and informed school attendance . response was to simply change the student‟s program. (T. 579-587) The student failed every course at the and was receiving for cutting notwithstanding school knowledge of the student‟s panic.

(T. 588) She was , overwhelmed and school phobic. (T. 598) The parent requested an evaluation in about April 2008 but the CSE did not review the matter until July. (T. 588595)

The student had not completed any courses in the Spring term and summer school was not offered so the parent enrolled her in a summer program at School, about which she had been informed by a ., and the student was successful. (T. 587, 598-

599) During summer 2008, the CSE recommended a deferral to the CBST for a nonpublic school placement. The parent first received information from the CBST about a possible placement in October 2008. (T. 606-614) By that time, the student had been enrolled in School in which she did well (T. 615-616, 620) The parent rejected the proposed placement as not appropriate. (T. 617) She received no other possible placements but it was claimed that she had refused many and failed to cooperate. (T.

618) Several months later she filed an impartial hearing request requesting for the 2008-2009 and 2009-2010 school years. (T. 619) During the pendency of the impartial hearing, in June 2009, the CSE reconvened and recommended a full time program for the 2009-2010 school year. (T. 623) After the commencement of testimony by DOE witnesses, the DOE agreed to pay for for the 2009-2009 and 2009-2010 school years, the 2008 School summer program, and for and the matter was settled. (T. 624-628) The parent signed the stipulation of settlement on September 4, 2009 and it was signed by the DOE the following week.. (T. 634, 650)

On September 3, 2009, the parent requested a reevaluation for the purpose of changing the student‟s classification after she learned it could not be done pursuant to settlement of the action and the CSE, which had reconvened on September 3, 2009, told her that additional evaluations and an observation were required and she needed to request a new evaluation. (T. 634, 639, 648-650, Exs. B, T, U, V) During the subsequent September 30, 2009 evaluation, told her that the School saved her daughter‟s life. (T. 655, 789) She did not, however receive a copy of his evaluation until the May 17, 2010 IEP meeting. (T. 658-659)

The student is not a good test taker, had to leave the SAT exam due to and, in the opinion of the parent could not take the number of Regents and/or RCTs required for graduation from the DOE‟s proposed placement even if she knew the work. (T. 691692, 783-784) She believed that if the student was aware that that would be required she would stop going to school. (T. 818-819) The student goes for provided by the parent for one 50 minute session per week and to a once a month for 50 minutes. (T. 631, 723, 783) School staff worked with the student to prepare her for college and the admissions process. (T. 787) The parent chose School after the student appeared to be doing well there and supplemented the program there with . (T.756)

The parent stated that she had offered to facilitate a School observation by DOE staff in connection with her September 2009 request to change the student‟s classification but no one contacted her to do that at that time or thereafter and she never refused. (T. 632, 660-663, 781-782, Ex. B) She did, however, receive a request to have various reports filled out and she complied. (T. 664-665) At the May 17, 2010 meeting, the CSE acknowledged that the student was doing much better than before and the parent repeatedly asserted at the meeting that she would regress with a radical change of program. (T. 673-674) The parent testified that she was willing to accept a DOE placement if it was appropriate and had sought to obtain one through requests to the DOE which were ignored. (T. 791-794, 798-804, Exs. J, K) She believed based upon her communications with that the student would not be able to obtain a diploma at the recommended school. (T. 785, 796Ex. G, I)

With regard to the DOE‟s recommendation, she had desired a visit to the site but after her interchanges with about what was available concluded that the school‟s programming options would not enable the student to graduate in June 2011 and would not therefore meet the student‟s needs. (T. 675-681, 683-686, 742-744) The parent acknowledged that she believed that any school change at that time could cause regression and would be “catastrophic” but stated that she would have considered any DOE placement proposal. (T. 682-683)

The and required fees for the student‟s attendance at School for the 2010-2011 school year is $ of which the parent has paid $ (T. 775-777, Ex, P) The parent‟s agreement with the school was that the student would remain at the school until a DOE placement was obtained and in about November 2010, at the parent‟s request, the school agreed that the student could remain for the school year and that payment could be made subsequently. (T. 687-688)

Findings of Fact and Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). Prong 1:

An appropriate educational program begins with an Individualized Education Program (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; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce , not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This , however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The DOE has the burden of proof with regard to whether a FAPE was provided.

The student was about when the May 2010 IEP was created. She had been classified as but in May 2010 the CSE changed the classification to . Although the parent prefers another one, the classification is not in dispute in this hearing. The credible evidence shows that the student, although an honors student, had a history of some and but that that had been manageable until she entered a large departmentalized school program for the grade when she had panic attacks, became school phobic and unable to attend classes and failed all courses in her 2nd semester there. (T. Ex. D) She was thereafter parentally placed in a very small nonpublic school in which she appeared to have thrived. (Ex. D) In May 2010, she was completing the grade in that .

None of the CSE members knew the student. The CSE had before it in determining the student‟s senior year program a evaluation conducted by a CSE on September 30, 2009, which, in addition to describing the student‟s academic strengths and , described the student as “ ” with generalized of , accompanied by feelings of , with moves toward of ” and that she had been unable to cope with the demands of school including both academic requirements and peer interactions. (Ex. D-5) The CSE also had before it the May 4, 2010 report of the student‟s which stated that the student had at that time, even while in a small school , of and and was approximately two times per week experiencing for school on time and still needed to work on with and . (Ex. R) Moreover, the parent had provided the CSE with a letter from the student‟s stating that the student had moderate to mild and which when left unsupported and not accommodated exacerbated to a severity that would cause a significant regression in her presentation and condition. (Ex. 1)

The IEP specifically acknowledged the student‟s and its relationship to school attendance and other school contingencies. (Ex. E) The CSE, however, recommended a program which did not make any effort to ensure, by for example, even noting the student‟s need for a small school environment, that the student would not be placed in, as indeed was later recommended, a large school environment similar to that which had had such a negative impact previously. Further, I conclude that the CSE did not consider in developing its program to what extent the provision of a small school environment had brought about the improvements it observed. The provision of , for two subjects, and certain test accommodations in an environment in which the student would be in large classes throughout the day in a populous school, entering as a senior, was not I conclude reasonably calculated to result in meaningful educational . Rather, I conclude that the parent has established that the likely effect would be regressive. Accordingly, I conclude that the IEP was substantively defective and that the DOE has failed to meet its burden to establish that it provided a FAPE. In these circumstances I do not address the parent‟s other claims. However, I note that although the CSE stated in its Transition Services that the student was expected to successfully meet the curriculum requirements for a Regents diploma: 1) there is no indication that the CSE considered whether this student was reasonably likely to be able to do that in view of her emotional difficulties and anxieties, response to pressure and feeling of inadequacy and the number of tests that would be required if the student attended a public school; 2) the evidence supports a conclusion that she could not accomplish that in the proposed placement. (T. 747) Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

The persuasive evidence shows that School follows the New York State curriculum, is accredited by the State and provides academic diplomas that are accepted by the State. The CSE witnesses acknowledged the student‟s need for academic support as well as support for the student‟s and which the evidence shows can be by an inappropriate school setting. It recommended a small -student ratio for and classes with mixed mainstream and education students, and accommodations. The school provides this student with small classes with mainstream students, test accommodations and afterschool tutoring as well as some in school . The and are available to discuss the student‟s emotional and academic concerns. Moreover, I conclude that the very small size of the school diminishes the student‟s need for ongoing scheduled sessions in the school setting since she does not have to confront the physical and social issues that arise in a school with in excess of students. Further, the academic program provided will enable her to graduate with a diploma, a CSE concern, enabling her to move on to college. I also note the testimony, which I find credible, that the IEP‟s goals are worked on and that the student has made . Indeed the CSE‟s September 30, 2009 evaluation noted that the student had made significant in that environment, the May 10, 2010 s evaluation confirmed that and the CSE and DOE apparently do not dispute that. Moreover, persuasive evidence, not rebutted by the DOE, shows that the student continued to make during the current 2010-2011 school year for which DOE payment is sought in this proceeding. (Exs. DD, EE, FF)

I note that the educational credentials of the and are minimal and that none have special education certifications. However, the staff‟s credentials are acceptable to the State of New York and special education credentials are not required to entitle a parent to payment by the DOE when the DOE has failed to provide a FAPE . Issues of (“ ”) do not arise here because the school is providing the student with a general education program. I also note that the vast majority of the students do not have IEPs. The testimony of the school witnesses was also at various points inconsistent, contradictory and/or evasive, for examples with regard to staff credentials, the circumstances of the provided and experience with the student. However, I find that the credible evidence supports the conclusions concerning what was provided for the student set forth in the foregoing paragraph and conclude that the parent has met her burden to establish that the program selected was reasonably calculated to result and in meaningful educational gains.

The DOE asserts that the school was not appropriate because the student did not have a program that was specifically designed to meet her unique needs. Appeal No. 06114, aff‟d Allison Thies and Arthur Thies v, New York City Board of Education, 07 Civ. 2000(RMB) (U.S. D.C., S.D. N.Y.2008); see also Appeal No. 06-094. However, the student in Appeal No. 06-114, which concerned funding for School, was classified as and the CSE had concluded that she “would benefit from placement in a highly structured, educational setting with a focus to address her specific academic as well as her social-emotional needs” and deferred the matter to the CBST for a private school placement. In the instant matter, the CSE classified the student as and recommended fundamentally a general education program with for two courses, one of which could not be explained by in view of the student‟s record, and . There is no specification of any other academic management needs or special education methodology in the IEP. The school selected by the parent provides a substantially similar student/ ratio recommended by the CSE for the classes with opportunities for tutoring. Further, I conclude the student receives some at the school which is supplemented by the weekly , concerning among other things, school issues that has been provided by the parent. In the foregoing circumstances, I conclude that the parent has met her burden to establish that the program she selected is appropriate.

Prong 3

The DOE claims that equitable considerations warrant a denial of DOE payment. It asserts that the parent did not cooperate with the CSE and was not willing to accept any public school placement. The credible evidence shows however that the parent facilitated evaluations and provided such documents as were required by the CSE. Further, I find credible the parent‟s claim that she did not refuse to permit a School observation and note with regard to that finding that there is no written documentation of a DOE request, recalled being informed that the parent had agreed to facilitate the observation and the DOE made no follow-up attempts and has not rebutted the parent‟s claim that she had no motivation to refuse to cooperate. (T. 89, 90, 117) Also relevant in considering the equities is the DOE‟s failure to conduct an review until more than eight months after the parent‟s request and the unrebutted and credible evidence that the parent informed the CSE several times of her concerns regarding the proposed placement and received no response whatever. (T. 85-88, 683-686, Exs. J, K) In the foregoing circumstances, I conclude that equitable considerations warrant reimbursement to the parent and direct payment to School. The DOE may be ordered to make a retroactive direct payment to an appropriate private school for expenses already incurred when, as here, the DOE has failed to provide a FAPE. D.A. v. New York City Dep‟t of Educ., No. 09 Civ. 5097, 2011 U.S. Lexis 9475 at *67 (S.D.N.Y. Feb. 1, 2011)

ORDER

The DOE shall immediately pay the parent $ for the deposit she made for the 2010-2011 school year at School.

The DOE shall immediately direct pay School $ for the student‟s attendance during the $2010-2011 school year. Dated: May 17, 2011

______________________________

ESQ.

Impartial Hearing Office

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.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 12/23/10, 3 pgs. Parent

B Request to Re-open Case, 9/3/09, 1 pg. Parent

C Notice of IEP, 2/23/10, 2 pgs. Parent

D Report, 9/30/09, and subsequent reports and Parent report cards, 15 pgs.

E IEP, 5/17/10, 16 pgs. Parent

F Final Notice of Recommendation, 6/14/10, 1 pg. Parent

G Letter from Ms. , 6/22/10 Parent

H Letter to CSE from , 6/24/10, 3 pgs. Parent

I Corres.betw. and , 9/28-9/30/10, 3 pgs. Parent

J Letter to CSE from , 9/30/10, 2 pgs. Parent

K Letter to from , 11/18/10, pgs. Parent

L Letter from , 1/19/11, 1 pg. Parent

M Letter from , 1 /17//11, 1 pg. Parent

N Lertter from Mrs. , 1/20/11, 1 pg. Parent

O Late Notice, 12/15/10, 1 pg. Parent

P School Invoice, 7/29/10, 1 pg. Parent

Q Copy of Check to School, 8/11/10, 1 pg. Parent

R Rpt- , 5/1/4/10, 2 pgs. Parent

S IEP, 6/9/09, 12 pgs. Parent

T IEP, 9/3/09, 13 pgs. Parent

U ED Justification Form, 9/3/09, 1 pg. Parent

V CSE Summary Notes- , 9/3/09, 1 pg. Parent

W Letter to & FNR, 2009, 2 pgs. Parent

X Justification Form, undated, 1 pg. Parent

Y Social History Report, 5/27/08, 3 pgs. Parent

Z Letter from Mr. , 6/1/09, 1 pgs. Parent

AA Faxed Letter Given to , 6/18/10, 3 pgs. Parent

BB Letter given to Placement Office, 9/30/10,^[2] pgs. Parent

CC CSE Access Log, 2009, 1 pg. Parent

DD School Report, Period ending 10/21/10, 1 Parent pg.

EE School Report, Period ending 12/10/10, 1 Parent pg.

FF School Report, Period ending 3/11/11, 1 Parent pg.

GG Letter from , 5/27/09, 1 pg. Parent

HH FNR, 7/23/09,^[1] pg. Parent

Footnotes

[1] , - evaluation, 6/15/09, 1 pg. Department of Education

[2] CSE Conference Summary, 5/17/10, 2 pgs. Department of Education