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 21, 2011

April 26, 2011 Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2011

Student

Parents

DOE

School — DOE

Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 26, 2011

Student

Parents

Parents

- School — Student

School — Student

School — Student

DOE

— DOE

On January 11, 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 after the recusal of the prior hearing officer. The parent requested the hearing on January 10 (1) to challenge the alleged failure of the Committee on Special Education for District 2 (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 - school. The hearing convened on March 21 and was completed on April 26.

The compliance date for the submission of t written decision was extended to April 24 in order for the school district‟s and the parents‟ witnesses to be available. The compliance date was then extended to May 24 to permit the preparation of the transcript and the submission of written closing statements by the parties. The record closed on May 16 upon the receipt by the hearing officer of the closing statements. 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 . is , for the purposes of the IDEA, as . T classification is not in dispute. has been with (“ ”). He attended the School in during the 2009-2010 school year and received and a Education (“ ”). parents enrolled in the School, a school, for the 2010-2011 school year. The School District‟s Case

A Ex. 9). The the , - , noted that “has a of when he does not get way” (Department Ex. 9 at p. 1). During the , was “ ,” but to and was able to (Department Ex. 9 at p. 5). Dr.

observed in class and noted that he was able to interact positively with and with “ ” from (Department Ex. 9 at pp. 5-6). On the , obtained a , a verbal IQ of ,a of , a index of and a . The noted that all these placed “solidly within the of ” (Department Ex. 9 at p. 7). He diagnosed with and noted that “has been observed and reported to be very responsive to support and redirection” (Department Ex. 9 at p. 14).

, a certified and school employed by the Department of Education, testified that she participated in the CSE‟s annual review for for the 2010-2011 school year (trans. 20). The CSE convened on March 26, 2010 and recommended that attend a (“ ”) class and receive the of ( ) and ( in a of students) (Department Ex. 6; trans. 38). Ms. stated that a teaching class includes two licensed , general education students and no more than education students (trans. 22-23). The following individuals attended the meeting: the parents, Ms. (serving as the district representative and school ), a general education , a education ,a , , and a from school (trans. 23, 34; Department Ex. 6 at p. 2). The parents and provided input at the meeting (trans. 37).

The IEP states that testing revealed that was in the . However, “progress is inconsistent due to , , and . He does not sustain topic interest or complete without supervision. T interferes with ” (Department Ex. 6 at p. 3). The IEP lists estimates of decoding and math computation at level. The IEP states, and Ms. explained, that he needs , , use of and to remain “on ,” preferential seating towards the of the , and (trans. 25-26; Department Ex. 6 at p. 3).

With respect to and , the IEP notes diagnosis and reports that “describe as a and child who is very and by . However, ability to participate productively in class depends on states” (Department Ex. 6 at p. 4). In addition, notes the IEP, when is , “he may engage in which include , , and to listen to either or ” and “ with being , , and ” (id). According to the IEP, “does not with ” and can be addressed by a education and a education. needs include “encouragement and support” (id).

To address educational needs, the CSE created goals in the areas of , and - , , and , , , to with and - (Department Ex. 6 at pp. 7-10; trans. 27-32).

The CSE considered education with education (“ ”) for for and determined that t would not provide for (trans. 32). He needed “another in the to help to and to , and social skills” (trans. 32). The CSE ruled out a - - education class for because he had the to in the education and would benefit from education (trans. 33, 35). Ms. explained that would also benefit from to improve and to express feelings and from to improve and - (trans. 33-34).

In August 2010, the Department offered a for at in (Department Ex. 11). , a certified and employed by the Department of Education, testified that she was a /first grade in a class at in (trans. 57). If had attended in September 2010, he would have been enrolled in her class (trans. 58). There are children in the class, of whom are education students (trans. 59). The students are and years of age and are reading and functioning in math at a level (trans. 81). There are students in the class who share needs, including a with (trans. 77). There are two , Ms. as the education and a certified education who has a license in (trans. 59-60). The on , on and both day-today and (trans. 60). In the classroom, the use a with units, and , , , and . The class has “ ” in , , and (trans. 61).

Ms. stated that, and described in detail how, she could have provided with each of the needs and needs on IEP (trans. 61-63, 66-67). She also described in detail how she would have addressed the goals set forth in the IEP (trans. 6875). would also have been able to meet (trans. 76). Ms. opined that would have benefitted from her class (trans. 78-79). The Parent‟s Case , the and of school at the School, testified that she was a certified school district and school as well as a certified of the and (trans. 94). She stated that the School was “generally a school for children who are or better, but need a in which to learn” (trans. 96). The School employs a - approach to learning, and its curriculum “is paired” with the New York State standards on each grade level (trans. 97). The curriculum is adapted and presented “visually, , and often in a concrete, hands-on manner,” and use - , and and (trans. 97-98). use an in the classrooms which children with needs and/or and needs (trans. 97). push into the classrooms (trans. 98). The School includes students in through grade (trans. 99). There are no more than students in each class with one and (trans. 102). class includes an additional (trans. 107). The are by a (trans. 103).

1

Ms. stated that she was familiar with and had been involved in admission process to (trans. 104). She observed that was “bright” but had “ ,” “ ,” and which required that he have a “ approach to ” (trans. 105). It is “hard for to sit in seat,” and he is “easily ” and seeks “ in a way” (trans. 105). According to Ms. , these needs are addressed at through daily work on “ appropriate [ ] ” and a weekly run by the / (trans. 106107). Ms. opined that was progressing at . After a “ ,” he adapted to the routines of the School (trans. 108).

, a certified and education employed by the School, testified that she was the of grade class (trans. 118-119). She stated that was easily , had , and “gets very easily when with or ” and has (trans. 119). When playing, “things need to be way or he gets ” (trans. 120). He has responded to the preferential seating, sensory tools and the breaks provided to in the class (trans. 124, 127). There is an extra assistant in the class some of the time “to provide just extra and call him “ .” In the transcript, he is referred to by both and .

support when needed” (trans. 120-121). Ms. opined that the was for because he needs the t class size provides (trans. 121). All the students in the class have “ ,” such as , and or “are on the ” (trans. 152).

Ms. described the schedule at (trans. 124127). Students are for , and is in the group with five students and one (trans. 128-129). The - is used along with and a -based (trans. 129). has made progress in and is now able to simple and with “ ” and recognize that have been taught to (trans. 131-132). He is also in a math group of five students with one (trans. 132). is - , and has responded well to t and can do simple addition with and tell time to the hour (trans. 133-134). has also made progress in (trans. 136).

Ms. implements the school-wide “ ” with , to which he has “responded well” (trans. 141-142). has improved—he is more aware of tone of voice and “more able to independently -regulate” (trans. 145). provides with therapy and ; Ms. communicates with these related services daily (trans. 147).

Ms. opined that would be “extremely and by” a class of students with (trans. 150). She state that there would be “too much going on” and it would be “hard for to focus.”

The parent testified that has “a lot of energy” and “a lot of attending” (trans. 161). He has “a really hard time , and , and attending to the matter at ” and is , “very ” and “very .” Last year, was diagnosed with (trans. 161-162).

When was almost years of age, he attended the School in . informed the parents that he might have some and suggested an evaluation (trans. 162). was evaluated and began to receive and services (trans. 164-165). The was “a huge help” to in class (trans. 165). However, according to the parent, continued to have “ still,” coping and attending in class (trans. 170).

At the CSE meeting, the parent and the “expressed . . . strong reservations” about whether “could hack it” in a class (trans. 174). He such a “larger setting” impulsivity would be a problem (trans. 175). In addition, according to the parent, needs “as much individualized attention as possible” (trans. 182).

The parent visited the recommended placement at in September (trans. 179). She stated that the school was not as near to the as “two of the best public schools,” which were “right around the corner” (trans. 179). The parent explained that “needs to be in a classroom with who have the same or intelligence, which is tough for . . . the Board of Ed” (trans. 182). The class at the school “wasn‟t ideal” for (trans. 184). There is “a huge black tarp wrapped around” the school (trans. 184). The parent was also “a little concerned about the language issues, because [she thought] maybe 90% or more of the attendees are or come from -speaking . And at the parent meeting, you know, there were translators” (trans. 184). Having children in class “whose first languages weren‟t English” would be “even more difficult” for “who‟s already distracted” (trans. 184-185, 192).

,a school at the School¸testified that she was ‟s during the 2009-2010 school year (trans. 197). In the class, there were children and two plus the for (trans. 197). Ms. opined that t level of support was “good” for —“he definitely needed a lot of the one-one-one,” and when the was not in the classroom, Ms. or the assistant provided with oneon-one attention and redirection. As a result, “did very well” (trans. 197198).

Ms. attended the May CSE meeting and described ‟s classroom functioning— need for one-on-one attention and redirection. She informed the CSE that he “became easily distracted,” but “with the extra support, he did fantastic” (trans. 198).

Ms. opined that in a class of 22 students, would be distracted and distract the other students (trans. 201).

The parent signed the contract with the School on August 16 (Parent‟s Ex. F). Tuition at the School for the 2010-2011 school year is $ The parents have paid t amount in full (trans. 183).

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 Program The central purpose of the IDEA is to ensure: (1) that 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 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 program 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 program recommended by its CSE.

A recommended special educational program 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 t 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. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for set forth information from the , described in current levels of performance and identified education needs. The IEP includes goals in areas of need— , and - , , and , increasing , , ability to with and - . The parents argue that the IEP is defective because it does not include academic goals (see Parents‟ Closing Statement at p. 5). Goals need to be to the child‟s educational needs. At t point in time, needs are in the areas described in IEP goals. Addressing these goals will permit to progress in academic areas. As such, the goals are appropriate for .

The next step is to examine the IEP to determine whether it sets forth a that sufficiently addresses identified needs. The recommended , with in the classroom, provides support sufficient for redirection and encouragement to address and to enable to make meaningful . A greater level of and -to- might be desired by the parents and might optimize ‟s progress. However, t level of support is not required by the IDEA.

The parents argue that the IEP should have included a behavior intervention plan (“ ”) for (see Parents‟ Closing Statement at p. 5). A is not necessary for because the he needs, redirection and support, can be provided by both the general and special education in the recommended class.

Moreover, the School District complied with the IDEA‟s mandate that it provide special education services in the . The IDEA requires that students with disabilities be educated “to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. §§300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. §§200.1(cc), 200.6(a)(1); P. v. Newington Board of Education, 546 F. 3d 111, 114 (2d Cir. 2007). The Second Circuit has set forth a two-pronged test for determining whether an IEP places a student in the least restrictive environment: (1) whether education in the general education classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the student; and, if not, then (2) whether the school has mainstreamed the student to the maximum extent appropriate. P. v. Newington Board of Education, 546 F. 3d at 119-120. The CSE recommended that be educated with general education students and participate in the mainstream environment. There was no basis for recommending removal from such an environment, and the supports of the program would have enabled to learn in that environment.

The evidence presented at the hearing establishes that the Department offered a free appropriate public education for the 2010-2011 school year. As a result, the Department prevails 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 program 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 t 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.

Considering the “totality of the circumstances,” the evidence supports a finding that the program at was not appropriate for . , as a education school, is so overly restrictive, given average cognitive functioning and education needs which do not require that he be from the general education environment, that it is not appropriate for under the IDEA. According to at , has made progress t year. However, t , by itself, does not demonstrate that was an appropriate setting under the IDEA for . See Gagliardo v. Arlington Central School District, 489 F.3d 105, 115 (2d Cir. 2007) (reimbursement denied where “the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not”). As a result, the Department prevails on the second Burlington/Carter criterion.

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 attending the CSE meeting, visiting the proposed placement and then communicating their concerns to the CSE. However, the parent‟s testimony reveals that she was not prepared to accept a public school placement for a variety of reasons. As a result, I find that the balance of the equities does not tip in the parents‟ favor.

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

The parents‟ request for tuition reimbursement is denied. Dated: May 19, 2011

___________________________

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of t 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 t decision.

Directions and sample forms for filing an appeal are included with t 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 March 21, 2011

PARENT

B Notice of Unilateral Placement, 8/24/10, 2 pp. C Final Notice of Recommendation, 4/19/10, 1 p. D Parent Letter to the Department of Education, 5/18/10, 1 p. F School Enrollment Contract, 8/31/10, 2 pp. I School Midyear Report, 2/2011, 8 pp. J Report, 3/7/11, 2 pp. K , 10/2010, 1 p. L , 10/2010, 1 p.

DEPARTMENT OF EDUCATION

1 Petitioner's Complaint, 1/10/11, 4 pp. 2 Department's Response, 1/11/11, 4 pp. 3 Omitted 4 Notice of IEP Meeting, 2/25/10, 1 p. 5 CSE Case File Contact Sheet, Various Dates, 1 p. 6 IEP, 3/26/10, 13 pp. 7 Minutes of CSE Meeting, 3/26/10, 1 p. 8 IEP, 3/12/09, 13 pp. 9 - , 2/15/10, 15 pp. 10 Report, 3/6/10, 2 pp. 11 Final Notice of Recommendation, 8/5/10, 1 p.