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 30, 2011

April 5, 2011

April 8, 2011

May 2, 2011

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 30, 2011

Student

Student

Student

DOE

(Via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 5, 2011

Student

Parents

School (via telephone) — Student

, DOE

, Education (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 8, 2011

Student

Parents

Parents

School — Student

, DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 2, 2011

Student

— Student

Parents

Parents

(Via telephone) — Student

, DOE

On January 5, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on January 4 (1) to challenge the alleged failure of the Committee on Special Education for District (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year and (2) to seek reimbursement for tuition expenses at the School, a non-public school for the 12 month school year commencing July 2010. The hearing convened on March 30 and was continued on April 5, April 8 and May 2.

The compliance date for the submission of this written decision was extended to April 18 and then to May 18 in order for the school district‟s and the parent‟s witnesses to be available. The compliance date was then extended to May 30 to permit the preparation of the transcript. The record closed on May 10 upon the receipt by the hearing officer of the transcript of the last day of hearing. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

is a year-old who attends the School in . His disability is classified, for the purposes of the IDEA, as . This classification is not in dispute. was diagnosed with of the ( of that connects the of the ) at of age, , , - , and . He experiences global , primarily through and with , and continues to require assistance with . The School District‟s Case , a school employed by the Department of Education at the CSE, testified that she had a doctorate degree in and a master‟s degree in education (trans. 16-17). participated in the CSE‟s annual review for for the 2010-2011 school year (trans. 18). The CSE convened on May 28, 2010 and recommended that attend a 12 month class in a school and receive the related services of (“ ”) (four 40 minute periods per week individually and one 40 minute period in a group of students), (“ ”) (four 40 minute periods per week individually and one 40 minute period in a group of students), and and (four 40 minute periods per week individually and one 40 minute period in a group of students) (School District Ex. 2). The IEP also recommends that have the assistance of a one-to-one full-time . The parent attended this meeting. Prior to the meeting, reviewed ‟s December 2009 and May 2010 progress reports from the School and his “file” (trans 19-20). She did not specify the contents of this “file.” stated that a classroom observation of was not performed prior to the CSE meeting (trans. 61-62). She did not know when a classroom observation was last done for nor when his last evaluations were conducted (trans. 62). No “new testing” was conducted for during the 2009-2010 school year (trans. 66).1

At the meeting, the parent informed the CSE that she was taking for a evaluation (at her own expense) and would provide the CSE with the report (trans. 22, 56). asserted that “if there were anything in [the report] . . . that would change our mind about how he was functioning or what type of class that we thought would be appropriate for him, then we would have had another meeting and we would have addressed it” (trans. 56). stated that the report did not change her recommendations for (trans. 56-57). contended that if the parent had stated that “she wanted new testing” from the CSE, the CSE “would have stopped the meeting and we would have reconvened after with that information” (trans. 66).

contended that “new evaluations” of were not necessary because “his cognitive abilities had stayed the same, most of his behaviors actually had improved in some areas” and the recommendation “was still appropriate,” and, in any event, the parent was getting a new evaluation (trans. 82). acknowledged that the CSE did not have any current testing of at the CSE meeting (trans. 87-88).

With respect to academic performance, the IEP sets forth “ estimates” of sight word recognition ( level), listening comprehension level) and math computation ( grade level). The IEP notes that “overall attention to people and activities is dependent upon his readiness to engage, the incorporation of his passions, and affect of the facilitator. Sensory integration, particularly gross-motor and physical play, all help increase readiness to engage.

The parent had consented to the CSE‟s classroom observation and evaluations of (Department Ex. 9).

At times, he may become in , ; and, as a result, he may exhibit such as , making , vocalizations and at his sometimes” (Department Ex. 2 at p. 3). benefits from -to- support and needs visual and verbal prompts, redirection and sensory activities (id). According to , the information about ‟s current performance came from the School progress reports and his participating in the CSE meeting by telephone (trans. 33, 37).

The IEP states that with instruction and requires additional support (Department Ex. 2 at p. 5). He is able to attend to classroom activities with support. In “busy, over-stimulating environments, requires moderate to maximum adult support to help him stay engaged and regulated” (id). The IEP includes a (Department Ex. 2 at p. 7). A was not conducted prior to the creation of the (trans. 76). explained that the would “hopefully . . . be able to understand and recognize the triggers for him by his . So before he becomes too frustrated, or if [he] becomes disregulated in the classroom, to be able to distract or give him some kind of support so that he could be calm” (trans. 40).

The IEP includes goals and objectives in the areas of integration, communication skills, attention, social skills, fine motor skills, gross motor skills, motor planning, play skills, and skills, feeding skills, reading and math readiness skills (Department Ex. 2 at pp. 9-14; trans. 46-52). According to , the goals “come from the reports” (trans. 46).

The CSE recommended that classification be changed from to (Department Exs. 2, 10 [1/29/09 IEP]). testified that the parent requested this change. explained that the CSE “considering all the records that we have reviewed and the documentation, we felt that [this change] was valid” (trans. 23; see also trans. 2728).

The Department submitted in evidence a progress report from the School dated December 2009 (Department Ex. 4). The report describes in detail the teaching methods and practices and special education techniques used by with and ‟s responses. The report indicates that has made progress in his ability to relate to others and to communicate; he continued to be challenged by self-regulation, communicating emotions, motor planning and pretend play (Department Ex. 4 at p. 9). prepared an update report in May 2010 (Department Ex. 5). Since the December 2009 report, had made progress in communication, sight word reading, counting, vocabulary, motor planning and maintaining regulation, focus and attention (Department Ex. 5 at pp. 1-6).

The parents obtained a evaluation of . This evaluation commenced on May 29, 2010 and was completed in August, by a and a (Department Ex. 8). The reported that they were unable to complete formal cognitive and academic testing of because he could not attend to the tasks and materials (Department Ex. 8 at pp. 3, 5). Based upon their observations of during attempted testing and in his classroom at the School, the stated that “ presents with significant deficits in all areas of language, reciprocity and activities of daily living. He engages in - and demonstrates consistent with his [ ] diagnosis” (Department Ex. 8 at p. 5). The concluded that: “ requires as much individual attention, support, and instruction via -modulated techniques as possible in order to facilitate his regulation, attention and participation, as well as to improve upon functional communication, and social interaction” (id).^[2]

, a certified special education employed by the Department of Education at , testified that she had a master‟s degree in education and taught a class (trans. 103). is located in a school building with general education students (trans. 130-131). The education includes students who are and students who have (trans. 133-135).

In July 2010, her class included students. These students were through years of age and were classified with (trans. 104, 136, 139). The students‟ reading levels ranged from - to grade for decoding and math levels ranged from - to “ ” grade (trans. 105). All these students “ ” of the in September, and Ms.

received new students (trans. 136). These students‟ reading levels ranged from through or grade and math levels ranged from - through grade (trans. 158). Ms. described the class daily schedule (trans. 105-107). The curriculum is based on the New York State standards, and Ms. adapts the curriculum to the students‟ individual needs (trans. 108). She uses the method in the classroom and provides students with one-to-one and small group instruction (trans. 109-114). There are students in the class with , , gross motor deficits, and goals and related services similar to the goals and related services set forth on IEP (trans. 116-117). Students, assisted by the and , spend lunch and recess with the general education school population (trans. 114, 132). Ms. described the sensory materials available in her classroom (trans. 121-122). The classroom also contains laptop computers and a CD player, each with headphones for individual listening (trans. 122-123). Ms. described how she would address the reading and math goals listed in IEP (trans. 126-128).

Ms. did not know whether the at would be able to fulfill the related services mandates in IEP (trans. 149-151). The Parent‟s Case The parent testified that is now years of age and experiences global “challenges”—“every system in his is affected,” including motor planning, , and cognitive. He is also delayed—“he has the appearance of a much child. He‟s very small. His features are very . He‟s only lost now its . He lost his in the summer” and was until recently (trans. 209-210, 234). has y communicating and understanding the world around him, and, as a result, often experiences “ ” and on , , things and , and (trans. 210-211).

received and attended a education . For and grade, he attended a at . School informed the parent that “didn‟t fit in the ” and recommended that she look for a different type of for him (trans. 212-213). She enrolled him in a school in for two years, and then in the School.

The Department did not conduct any evaluations of before the May 28 CSE meeting (trans. 214). The Department has not conducted a evaluation of since a 2005 evaluation was done by (trans. 215; Parent‟s Ex. M). The Department has not done a social history since 2006 when attended (trans. 216). The parent could not recall the Department ever conducting and , or evaluations of (trans. 216).

At the CSE meeting, the determination to change classification was based only upon discussion and not upon any evaluation materials (trans. 217). The parent did not disagree with the recommendation because needs a small class size and as much adult support” as possible” (trans. 218). He is unable to “sit and work on his own” or engage in group work unless “the engagement” was “very creative musical” (trans. 240).

By letter from counsel dated June 15, 2010, the parent notified the CSE that she had not received a placement for (for the July 1, 2010 school year start date) from the Department and that, therefore, she would have remain at until the Department recommended an appropriate placement for him (Parent‟s Ex. C at p. 2). The parent received the notice of placement (which was dated June 15) at “the very end of the school year” in June, called the school the same day to arrange a visit, and visited a few days later (trans. 219, 241; Department Ex. 6).

The parent found to be a “ with ” (trans. 221). The education included classes for students with and which worried the parent because was “so little and vulnerable” (trans. 222). The parent “got the sense of . . . putting a -yearold in an grade class” (trans. 223). The parent did not observe any sensory materials in the classroom or the room she was shown by school personnel, and when she asked about sensory materials, she was informed that the students “did yoga for sensory integration” (trans. 224, 226, 265). The parent was also informed by the that the school was unable to meet the related services mandates of the students in the school with the single , and on (trans. 225, 242-243). The parent explained that would be unable to manage the cafeteria and “would just flip . . . out” and he would “very, very and his in ,” and things and asking to (trans. 227-228). He would “just do whatever was in his power to get out” (trans. 239). The parent stated that would not be safe in the school (trans. 230).

On the day of the visit, she wrote a letter to the CSE stating that the school was not appropriate for because there were too many students in the school, students‟ related services were not met, there were no sensory materials in the classroom, and there was neither music nor art in the school (trans. 231-232; Parent‟s Ex. E). The parent handdelivered the letter personally to the CSE (trans. 232, 246). In addition, the parent stated that was “very small and vulnerable” and there were students at the school who had and were grouped by age, rather than developmental level.

, a licensed employed by the School, testified that she has been at the School for the past three years (trans. 169). She functions as a “liaison” between the and the parents and observes and works with students in the classroom daily (trans. 169, 188). She attended May 28 CSE review and visited with the parent at the end of June (trans. 171-172). Ms. noted that was a “very large school” with approximately students and a general education population (trans. 172). Ms. did not observe any sensory equipment at the school and was informed that yoga was the “sensory kind” of activity used in the classrooms (trans. 174). There were no music or art at the school (trans. 175).

Ms. explained that “is a very high energy and needs a lot of movement to help him engage with people” and he often seeks out movement and pressure—“ are very important and for him” (trans. 174). At , uses a swing, body socks and a trampoline in his classroom to help him focus and then attend to activities (trans. 174-175). In addition, music and musical activities helps stay focused and attend to class activities (trans. 175-176).

Ms. stated that the cafeteria would be “” for because “the amount of stimulation that he would get would be very distracting for him” and “disregulate him” (trans. 178). Ms. opined that would not be an appropriate setting for because it lacked the sensory equipment and integration he needed and it did not have support sufficient to meet the related services needs of the students, including , because informed her that there was only one and to serve all the students in the school (trans. 178-179, 198-199).

, a licensed with a master‟s degree in education and a school administrator supervisory certification and a school district administration certification, testified that she was the of the School (trans. 282). The philosophy of the School is that “all children with delays in relating and communicating have the ability to learn and move ahead” (trans. 283). The School uses the -based model (“ ”) of education. Each student in the School has his or her own individualized plan to address there sensory, communication, gross and fine motor, and developmental needs (trans. 284-285). There are children, ranging in age from to years, enrolled in the School (trans. 286). includes and plus , and and a , and art and music therapists (trans. 286). The student ratio is 2:1 (trans. 287). Ms. has observed in his classroom or in a related services session weekly and communicates with his and (trans. 295).

The School uses a variety of academic curricula that adapts to the students‟ needs—balanced literacy, Reading from A to Z, - , Orton-Gillingham, Everyday Math, Growing with Math, Creative Curriculum and the Carolina Curriculum (trans. 292). There is a variety of sensory equipment and materials available at the School (trans. 293; Parent‟s Ex. H). There are two sensory gyms. The classrooms include , , , , , and (trans. 293).

The School provides and through who are assigned to each , parent education groups, support groups, and (trans. 294, 321).

Ms. described as a “complicated child” with many needs—motor delays, fleeting relatedness, communication deficits, , and and attending (trans. 296). He is a “sensory seeker” who is often “on the move” and has a “lot of ” which interferes with his functioning throughout the day (trans. 296). During the current school year, anxiety has been reduced. At the beginning of the school year, it took much support and time to get off the and changes in the schedule or within the classroom were “ for him” (trans. 298). Now, he can transition and adjust to changes in “just a few minutes” (trans. 298). also “uses more language more consistently” in a functional manner, and his length of are getting longer—now reaching four to five words (trans. 298). is reading more words independently and answering more questions. He can engaging in more activities independently, including taking care of by and up after lunch, toileting with reduced support and his (trans. 298-299).

There are students in class (trans. 301). has been initiating interactions, and engaging, with his peers in the class. He has not done this in prior years (trans. 301-302). There are one and in the class. works on literacy, math, science and social studies. He does not work on decoding at this time because his makes the process of breaking down words (trans. 304). His have used a sight word approach with him.

receives , , and , and at (trans. 305). Music is provided by a New York State certified creative arts (trans. 307). “is ” to this (trans. 307).

has demonstrated improvements in sustaining his regulation for longer periods of time, in attending to and engaging with peers and , and in play skills (trans. 311).

Ms. opined that would “become incredibly ” in a lunchroom with children (trans. 312). If he were to start the school day in the lunchroom, he would begin “every day in a state of and ” and he would not be available to learn (trans. 313).

, classroom this year, testified that he was employed by the School and has a master‟s degree in education and is a licensed art education (trans. 391). There are students and three teaching in the class (trans. 393). The academic functioning levels of the students are from - through grade in both reading and math (trans. 394). Mr. communicates with the service in , , and . push-in to the classroom about once each day (trans. 396). There are classroom meetings one time per week, and school meetings twice a week (trans. 397). Each child‟s academic is individualized by Mr. and his supervisor based upon academic abilities (trans. 397).

In September 2010, had with math concepts such as number correspondence and in reading words. Mr. has addressed these by working on number correspondence and on identifying letters and working on word recognition. It is a sight word based which includes words from his environment, favorite books and songs—words which are “all relevant to and who is” (trans. 407). receives both individual and small group reading instruction with students at his reading level (trans. 399, 400-401). also has anxiety problems which Mr. addressed through slowing down and simplifying language and demonstrating slow and deep breathing techniques (trans. 399). Classroom also works with to foster his interaction with peers throughout the day using the method, to which has responded well (trans. 400, 402).

Mr. described weekly schedule at the School (trans. 403; Parent‟s Ex. G). Each day starts with getting off the , going to his , handing in his communication book and joining in morning play activities and then morning meeting (trans. 404). During snack, Mr. engages in math counting activities with . The class then moves to movement activities and then reading time. Mr. reads stories aloud and then students move to small group or individual reading instruction. The class also has visual/spatial activities, during which works on visual scanning, identifying letters and numbers, working on sequencing and patterns, and working on concepts of same and different. The class engages in art activities and lunch (in the classroom) during which works on fostering peer interactions. After lunch, there is work on activities of daily living, more movement and sensory activities, an afternoon meeting, and reading and/or math. schedule also includes (on different days) cooking, , drama , , music and gym. Morning and afternoon meetings also include work on science and social studies topics.

Mr. explained that the December 2010 progress report (Parent‟s Ex. F) describes progress and the areas in which he is “still ” (trans. 409). Such reports are prepared by Mr. and related services providers twice each year. Sensory materials in the class permit to obtain the sensory input he needs during the school day (trans. 414-415). Mr. stated that “one of greatest gains is in terms of relating to classmates”—he independently seeks out interactions with his peers, which he did not do in the beginning in the school year (trans. 416). has also increased his engagement in group activities, increased the number of words he recognizes and can read up to two words combined, increased number sense and concept of correspondence, improved in his daily living skills (Parent‟s Ex. F).

The parent communicates with at the School on a daily basis. She has observed that has made improvements this year at the School (trans. 233). His communication has developed such that he is not just requesting items, but also commenting. He has made a friend at the School, is engaging in pretend play and is socially more engaged. at the School has improved his communication and motor planning (trans. 233). School has worked with on , and he no longer , but still needs assistance with toileting (trans. 234).

The parents signed a School enrollment contract on June 3, 2010 (Parent‟s Ex. J; trans. 234). The parents paid a deposit on June 21 (trans. 237, 272). The tuition for the 2010-2011 12 month school year is $ Through February 2010, the parents had paid $ to the School for this year‟s tuition (Parent‟s Ex. I). The parents have since paid the balance of the tuition (trans. 344).

CSE personnel conducted a social update for on May 15, 2006 (Parent‟s Ex. L). CSE personnel also conducted a evaluation of on December 29, 2005 (Parent‟s Ex. M). was unable manage the demands of the Stanford-Binet Intelligence Scales. On all areas of the Scales, scored in the “ ” range and attained an composite standard score of below the percentile, indicating to the that ‟s “intellectual abilities fall within the ( ) range” (Parent‟s Ex. M at pp. 3-4).

Findings of Fact and Decision

A board of education may be required to pay for educational services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents‟ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District‟s

The central purpose of the IDEA is to ensure: (1) that all students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of all students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the recommended by its CSE.

A recommended special educational must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203.

An appropriate educational “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. 07-010. The IDEA contains very specific requirements with respect to those evaluations. For example, a school district “must ensure that a reevaluation of each child with a disability” is conducted “at least once every 3 years.” 20 U.S.C. §1414(a)(2)(A), (B)(ii). The evidence in this proceeding establishes that the CSE did not reevaluate within this time frame. When the members of the CSE sat down together in May 2010, the most recent evaluations were dated 2005 and 2006—ancient history in the life of an year old and ancient in terms of the requirement that a CSE evaluate a disabled child “at least” every three years. The Department argues that “diagnoses” are “permanent” (trans. 443). This does not absolve the Department its obligation to evaluate . The IDEA does not exempt school districts from fulfilling their obligations to severely disabled children. In fact, the opposite is true. As stated above (yet bears repetition), the central purposes of the IDEA are “to ensure that all children with disabilities” are provided with special education and that their rights and their parents rights are protected. 20 U.S.C. §1400(d)(1)(A) & (B) (emphasis supplied); Schaffer v. Weast, 546 U.S. 49, 51 (2005). And “all” children means precisely that—all children regardless of the severity or long-standing nature of their disabilities. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F2d 171 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989).

Furthermore, the IDEA requires school districts, inter alia, to: “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information;” “use technically sound instruments that may assess the relative contribution of cognitive and factors, in addition to physical or developmental factors;” and ensure that “the child is assessed in all areas of suspected disability.” 20 U.S.C. §1414(b)(2)(A), (C) and (3)(B). The CSE did not fulfill any of these requirements. See A.D. v. New York City Board of Education, 690 F. Supp. 2d 193, 208 (S.D.N.Y. 2010) (responsibility of school district to administer all necessary evaluations to create an appropriate IEP for child). testimony that the School progress report and the input of at the CSE meeting were sufficient to create an appropriate IEP for does not “save” the Department, and this testimony is rejected. The progress report is what it says it is—a report of a child‟s progress in an educational setting. The progress report does not constitute “a variety of assessment tools,” or “technically sound instruments that may assess the relative contribution of cognitive and factors, in addition to physical or developmental factors” or an assessment of “all areas of suspected disability.” As a result, the CSE had no business relying upon the report as an “evaluation” to create . IEP.^[3]

Now to move to the requirements of New York‟s educational laws and regulations. School districts in New York State are required, at least every three years, to reevaluate a child. Such a “triennial” evaluation must “be conducted by a multidisciplinary team” and must “be sufficient to determine the student‟s individual needs, education progress and achievement, the student‟s ability to participate in instructional in regular education and the student‟s continuing eligibility for special education.” In addition, reevaluation results must be “addressed” by the CSE. 8 N.Y.C.R.R. §200.4(b)(4). A few members of the School do not constitute a “multi-disciplinary team”—regardless of how qualified they are. If the CSE is to address reevaluation results, then there must be reevaluation results. The CSE did not have any such reevaluation results before it when reviewing IEP. Moreover, with respect to determining current needs, the Department did not establish that the CSE had any information other than the progress report. stated that she had “file,” but she did not describe what was in that “file” and did not state what, if any, evaluative information the CSE had available at the CSE meeting (other than the progress report).

The CSE did not have a social history, a evaluation, a evaluation, a and evaluation, a classroom observation, nor fine/gross motor assessments of . Again, a school progress reports is no substitute for evaluations, a social history and a classroom observation. Taking goals and objectives drafted by personnel at the School and incorporating them into the IEP does not rescue the CSE from failing in its duties under the IDEA. How does the CSE know those goals and objectives are appropriate without evaluative data and a classroom observation? Without such “backup,” the CSE was impermissibly delegating its duty to craft appropriate goals and objectives to someone else. In reality, without evaluative data the Department is unable to establish the validity of ‟s IEP because, at the time of the CSE meeting, there were no evaluations to support that IEP. The after-the-fact single evaluation obtained by the parent does not “save” the IEP.

Are the CSE‟s failures to conduct a triennial evaluation, and to have current evaluative data available at CSE meeting, a substantive or a procedural violation of the IDEA? These failures are both substantive and procedural. Failure to conduct a triennial evaluation is a significant substantive violation of the IDEA. A triennial evaluation is a clear obligation of a school district and an important component of the Act‟s framework to ensure that each child receives special education and related services is tailored to his or her current and identified special educational needs as revealed by objection assessment data. Such failures are also procedural and “impeded [ ‟s] right to a free appropriate public education.” Again, without evaluative data, a CSE is unable to formulate an IEP “reasonably calculated” to address the child‟s special educational needs and to result in the child making “meaningful” educational progress.

And there is more. When a student‟s behavior “impedes his or her learning or that of others,” a CSE is required to “consider strategies, including positive interventions, and supports and other strategies to address that behavior.” 8 N.Y.C.R.R. §200.4(d)(3)(i). These strategies must comply with 8 N.Y.C.R.R. §200.22, which, among other things, requires the performance of an and the development of a . There is no dispute that -related impedes his learning and that, as a result, the CSE should have conducted an . Again, this is not a “mere” procedural violation of the law

The Department also complains that the parent did not request that the CSE evaluate and blames the parent for not insisting that the CSE adjourn the meeting while she obtained a private evaluation of (trans. 443-444). These arguments clearly misconstrue who has what duties under the IDEA. It is the school district‟s obligation to evaluate students, not the parent‟s obligation. It is not the parent‟s job to insist that the CSE meeting be adjourned—school district personnel have the obligation to do so when it becomes apparent that insufficient evaluative data has not been obtained.

The next step is to examine the IEP to determine whether it sets forth a that sufficiently addresses identified special educational needs. However, without timely and appropriate evaluations of , such a determination cannot be made at this time. The inability to make such a determination, in and of itself, establishes that the Department has not met its burden to demonstrate that it offered a free appropriate public education to . In any event, placement at was for him. was years of age in July 2010—and through February 2011 (much of this 12 month school year). At , he would have been in a class with students who were thirteen through fifteen years of age. This year age range is , especially for a child who is diminutive and for his age.

The evidence presented at the hearing establishes that the Department did not offer a free appropriate public education for the 2010-2011 school year. As a result, the parents prevail with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of the School

The parents bear the burden of proof concerning the appropriateness of the School for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parents must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‟s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child‟s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364.

Even though the CSE did not conduct an evaluation of , there is sufficient information in the record to find, under the Frank G. “totality of the circumstances” standard, that the at was appropriate for .^[4] provides with an individualized that addresses his key educational needs: communication, interaction with adults and peers, sensory regulation and integration, and -reduction. Ms. and Mr. described in detail the special education methods, techniques, equipment and materials school use with to address each of these areas of need. academic needs are also addressed at . He has improved his sight word reading and his number concepts. Furthermore, is using sight word reading rather than attempting to teach decoding. Decoding relies upon phonemic awareness— does not have phonemic awareness at this time, making instruction in sight word reading an appropriate reading methodology for him. While does not provide with all the related services set forth on the IEP, a nonpublic school is not required to provide every service to be found “appropriate” under Frank G.

has made progress at during this school year. His has decreased, and he is more available for learning. Observations by School personnel and the parent reveal that communication skills and ability to interact socially with adults and classmates has improved. He has increased his skills in activities of (specifically , and - ). He has made academic gains in the areas of number correspondence, reading sight words and listening comprehension.

As a result, the parents prevail on the second Burlington/Carter criterion with respect to the appropriateness of the .

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parents‟ claims, the evidence establishes that the parents cooperated with the CSE by, over the years, enrolling in the School District‟s for and first grade, consenting to the CSE‟s evaluation process (even though no evaluations were conducted), attending CSE meetings, sharing the summer 2010 evaluation with the CSE, and visiting the proposed placement and then communicating their concerns to the CSE.

Therefore, for all the above reasons, it is hereby ordered that:

The Department of Education shall reimburse the parents for tuition they have paid to the School for the July 1, 2010-June 30, 2011 school year in an amount not to exceed $ within fifteen school days of receipt from the parents of proof of payment and a school affidavit of attendance. Dated: May 16, 2011

___________________________

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Duplicate Hearing Request Removed B Department of Education Answer, 1/7/11, 4 pages C Notice to Unilaterally Place Child, 6/15/10, 3 pages D Removed by Hearing Officer E Parent Response to Final Notice of Recommendation, undated, 1 page F School Interdisciplinary Report of Progress, 12/10, 14 pages G School Schedule, 2010-2011, 1 page H Equipment List, 3/3/11, 3 pages I Tuition Payment, 2/9/11, 2 pages J Enrollment Contract, 6/3/10, 2 pgs K Attendance Record, 2010-2011, 1 page L Social Update, 5/15/06, 2 pages M Evaluation, 12/29/05, 5 pages N District Referral Form, undated, 1 page

DEPARTMENT OF EDUCATION DESCRIPTION

1 Impartial Hearing Request, 1/4/11, 6 pages 2 IEP, 5/28/10, 22 pages 3 CSE Meeting Minutes, 5/28/10, 2 pages 4 Progress Report, 12/9/09, 14 pages 5 Progress Report Update, 5/20/10, 13 pages 6 Final Notice of Recommendation, 6/15/10, 1 page 7 12-Month Consent Form, 5/28/10, 1 page 8 Evaluation, 5/29, 6/9, 8/23/10, 7 pages 9 Observation Consent Form, undated, 1 page 10 IEP, 1/29/09, 16 pages

Footnotes

[2] The parent explained that the 2009 report from the School referred to on page 3 of Exhibit 8 consisted of a review of previous reports about (trans. 254).

[3] It was similarly untenable for to contend that “interviewing” the parent at the outset of the CSE meeting was a substitute for a social history.

[4] To permit the Department‟s failure to conduct an evaluation of to stand in the way of a prong II finding would undercut the Supreme Court‟s holdings in Burlington, Carter and Forest Grove.