New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: May 12, 2011

June 24, 2011

July 13, 2011 Actual Record Close Date: July 29, 2011 Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011

Attorney — Student

Parents

Attorney — DOE

Assistant Principal, — DOE

and Sciences (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 24, 2011

Attorney — Student

Mother — Student

Program Director (via telephone) — Student

Legal Intern Neal Rosenberg's Office — Student

Attorney — DOE

School Psychologist (via telephone) — DOE

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

Attorney — Student

Parents

Attorney — DOE

INTRODUCTION

I was appointed to hear the matter of .( ) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1). The hearing was conducted on May 12, 2011, June 24, 2011 and concluded on July 13, 2011. As a result the time line was extended. A list of persons in attendance of evidence is appended hereto.

BACKGROUND

was a year old student during the school year in question. The Committee on Education (CSE) met on May 26th to develop an IEP. The team continued to classify as disabled. There is no dispute with respect to the classification. They recommended that she attend General Education with Education Teacher Support Services (SETSS) with a ratio of and receive the related services of . The parents were issued a Final Notice of Recommendation which recommended the and . The parent visited and then rejected the placement. The parents unilaterally placed at School ( ) where she had been attending for the past several years. The parents brought this hearing to obtain tuition reimbursement at for the 2010-11 school year.

DISTRICT’S CASE

The District was represented by their attorney Cheryl . They maintain that the program offered by the DOE is appropriate. They argue that they addressed 's individualized needs and provided her with a FAPE. They also contend that the parents never intended to place at a public school and that the equities favor the District. In conclusion, it is their position that tuition reimbursement should be denied in its entirety.

is currently employed at the and as the Assistant Principal of . She supervises the teachers, observes them formally and provides them with materials, tools and whatever they require to make their instruction better. In the past, she had worked as a classroom teacher in middle school as well as in a private elementary school. She has a Masters Degree in Education with in and disabilities.

The school occupies the third floor where all the students, approximately six hundred and sixty to six hundred and eighty, remain. Less than a hundred students have IEPs and they are in grades nine through twelve. They have a General Education with SETSS program for every grade. In grade, where would have been at the beginning of the year, there is an abbreviated day and SETSS are able to be given sometime during the day.

She met 's mother during a brief visit and there was no indication that they could not meet 's SETSS mandate. Her regular class would have consisted of approximately thirty to thirty four students. There are no more than eight students in the SETSS class. Students have different needs and they provide support in the different areas by using different books and programs. She described the program as very much individualized for the student. The goal is to have the student strengthen the areas that are considered weak in the IEP. She supervises both the regular class and the SETSS program. The teacher is very familiar with the IEP of the student and there is communication between the general education teacher and the SETSS teacher as well as with the providers of related services. They would have been able to meet 's students' mandate for .

They create progress reports to determine growth. The SETSS class is approximately forty two minutes and they would have been able to provide with her recommendation of two periods of SETSS per week for the 2010-11 school year. She would have received individualized because there are so few students in the class. On the first day of school, there were five students in the class with one teacher who has a Education license. The students were mainly classified as disabled. The instruction is differentiated and the teacher tailor makes the support to fit the student's needs. There are ongoing assessments to determine the needs of the students. She opined from looking at 's IEP that she had some weakness in writing and decoding. She would have recommended the use of Just Words, or a Starting Over or an Orton Gillingham based program. They also have a writing program. They use the different modalities, , audio, and tactile in the SETSS program. She opined that the program would have been able to address 's spelling, her problems applying her knowledge of word patterns in writing tasks, her difficulty with writing , her organization, and her oral . She opined that the General Education with the SETSS program would have provided with representation and reinforcement. It would have given her the ability to work with a calculator when solving problems, work with tables and diagrams to help her with , as well as providing her with extra time to complete her work.

She testified that they have tutoring in addition to the SETSS program. The school has a as well. She went through all of the goals on the IEP and stated that they could have worked on each of these goals including addressing 's and needs.

She explained that if there were a discrepancy on the IEP the school would immediately contact the CSE for clarification. (Tr. 12-52)

On cross examination, she acknowledged that she never met and has not reviewed any of her documents but her IEP. She presently teaches a class. There are three other schools in the building for a total of approximately two thousand students. They follow the New York State curriculum for grade. She has never seen 's transcript and was unaware of who her teachers would have been. There are two grade SETSS classes which she described as basically the same. Students are assigned for a subject and work with a education teacher and she thought that would have been coming for writing work and math. She explained that they work in accordance with the IEP. She testified that all her goals would have been met in the two mandated days of SETSS.

She agreed that there was nothing checked off on the diploma page of the IEP. She opined that would receive a regular diploma based on the IEP. (Tr. 52-76)

On re-direct, she reiterated that the SETSS program would work on all identified deficit areas of a student. She explained that when a student transfers from another school she and the guidance counselor review their documents to ensure an appropriate program that is geared for graduation.

On re-cross, she acknowledged that on page four of the IEP it references the name of a different student. She explained that it was covered and she had to literally push the page all the way down to see that name. However, in response to Ms. she agreed that the body of that page refers to .

MS. stated that she is a teacher assigned to CSE. She visits the schools, conducts observations and annual reviews and develops IEPs. She had been an educational evaluator on a team with psychologists and workers, she had been a resource room teacher, an IEP teacher and she taught a self contained class. She has participated in thousands of IEP meetings.

She had sat in on 's IEP meeting and had observed her in her class at . The meeting took place on May 26, 2010 but there had been a prior meeting which did not result in the development of an IEP. The team felt they needed more information and they asked for testing. She sat in as the education teacher and the District representative. She had familiarity with the different programs within the Department. She reviewed all the material ahead of time with and she spoke to the teacher from . She had been assigned to for the past few years and sat in on all of the reviews and meetings. She described it as a education school with small classes. All students have IEP's or some kind of classification. She observes and consults with the teachers.

She observed over three periods and wrote a report on February 22, 2010. She described as participating and able to give good answers. She was very involved in the literature class. In science, she was sidetracked and did not pay . However, she noted that a lot of the children were not paying . She had discussed her observation in the first meeting but did not think it was discussed in the second meeting.

Also present at the meeting was , school psychologist, a parent member, and a Teacher, who participated as the general education teacher. Everyone was present for the entire meeting which lasted about one hour and ten minutes. Everyone participated in the reviews. Prior to the meeting the school had reviewed progress reports from the teachers at , standardized testing (Exhibit 3) and a psycho-educational (Exhibit 5) as well as a history. (Exhibit 6) They reviewed the school winter progress reports because they had not yet received the final progress report which is due in June.

The reports told them that is very bright and has real strengths in the area, her is well developed, she has a vast vocabulary, her skills are above grade level, she makes wonderful inferences, predictions and draws conclusions. She has level skills. Her writings are a little delayed and her spelling affects her writing which is about a year or two delayed. She requires help in sentence instructions and some of the organizational parts of writing. She is on grade level in many of the subject areas.

was classified as disabled. The team recommended general education with education teacher support services (SETSS) and related services of . The SETSS group was a small group of eight students and it would have been for two periods a week to cover the areas that need to work in. was recommended once individually and once in a small group because of issues of skills development. They recommended a ten month program. She agreed with the recommendation because was a very functioning student who should be in mainstream.

She explained that there was another student's name on top of the IEP with a date that was later than the IEP meeting but it is that is being discussed in the body of the IEP and it reflects all the information that they discussed. She described this as a clerical error.

With respect to 's academic delays some were specific to her writing areas, for example organization in her writing and sentence structure issues. Multi step word problems needed to be broken down better for her to understand the steps. Her grade level work was not a total indicator and they developed goals in those areas. The SETTS teacher would pull out only for areas that she needs help in. She described how the SETTS would address her confusion on longer multi-step math problems. They added a goal to deal with her voice which she does not always use correctly in terms of level and tone. Both the counselor and the SETSS teacher could work on this goal.

has made progress and is making more connections with other students. She is involved in skills groups in her school.

With respect to transition goals, they provided a guideline for the guidance counselor and the person who works with the graders. All the goals that were written could be worked on in a general education with SETSS program. would have been provided. They increased the group size of to five so that she could interact with more students.

The psychologist worked on post school planning and transition goals and 's mother and teachers had opportunity to participate. The team left the diploma objective page blank because if started a public school program, she would take and see if she could get a diploma. Her current school does not offer and ultimately the determination would be made by guidance counselors and teachers at the school she was attending. She was going to be held to standard criteria for promotion.

They provided her with double time, for participation in assessments which reflects her issues. location is a small group setting that she could be tested in and the directions would be read and read again to allow her to .

The team did not consider her current placement of because they felt it was too restrictive a setting and she did not require a self-contained setting. They considered whether she needed any services at all. The parent disagreed with the recommendation and wanted a full time education teacher in the classroom for the entire day. They considered this but felt that it was too restrictive. (Tr. 90-127)

On cross-examination, she explained that although she only observed formally on two occasions she is often in her classroom and observes her on an informal basis.

's mother shared how she felt about the recommendation. She shared that was doing well academically. Ms. gave a lot of information about 's current functioning levels and her specific needs. All the information about her present level performances came from her. She did not agree with the recommendation that was made at the meeting. She felt that needed a education teacher for the full day. S he was participating as the general education teacher at the meeting. She was 's teacher and met with her on a daily basis. She was providing one to one with . There was no Department of Education general education teacher teaching in a general education setting at the meeting. She did not know if there was any education teacher who was currently a teacher in a education class for the Department of Education.

She was unaware if prior to the meeting reports were provided to the parent. The reports are given to parents who provide them to the private schools. They had the psycho-ed report (Exhibit 5) conducted by Dr. who was not present at the meeting. The history was conducted by a worker who was not present at the meeting. She did not know why the psychologist did not include the testing done for the meeting on the IEP. She did note that the psycho-educational portion is similar to the findings of those tests. They had discussed how individual was very efficient and 's speed was very low.

The SETTS class is a group of eight students or less. The size of the class would depend on the school but they felt could handle a larger class size based on her academics. Her mother and teacher disagreed. They included the group in her IEP because it had been mentioned as a support that had been given. She reiterated that they recommended being pulled out twice a week for SETTS because they thought that was all she required. She explained that in everything except for writing and spelling was on grade level. She would be pulled out for twice a week and twice a week for the SETSS. The school could always add more services if they felt she needed it.

With respect to transition, she explained that the guidance counselors could handle that as well as 's teacher and counselor. They did not consider CTT because of 's scores and academic levels. She reiterated that she leaves it to the school to discuss with the parents the issue of diplomas. She explained that there are different options in the Department of Education and it depends on the school. They assumed that was going to graduate in 2011. (Tr. 126-154)

On re-direct, she agreed that the psychological report was not included in the IEP but it was reviewed. The scores were consistent with the information that they had from the school and teachers. The teacher from was licensed as a general education teacher. (Tr. 154-156)

PARENT'S CASE

The parent was represented by their attorney . They maintain that the Department did not offer FAPE to . It is their position that the IEP is both procedurally and substantively inadequate. They argue that is an appropriate program and that progress in that setting. They contend that the equities favor the parents. In summary it is their position that tuition reimbursement for during the 2010-11 school year should be granted in it entirety.

MS. is a licensed worker and the Program Director at the . There are two hundred and eight students who start at grade and go until . The students fall into one of three categories, having a non disability, having executive functioning issues, or struggling with the mechanics of practicing. Many of the students fall into several of those categories. The class size is . They are a skill based program. They identify each student's greatest area of need and work to develop them into independent learners. It is a full time education class. She worked with when she was in the and grade as her teacher as well as during her senior year. She has been attending for seven years. She is her academic adviser.

's strengths are in her and her decoding activity. Her weaknesses are with speed which affects her written and her ability to concentrate, her motivation and executive functioning skills. She struggles with scanning in terms of writing. She struggles with starting and completing projects, organizations and self advocating. They use a continuous feedback system and they determined her greatest needs were in the executive functioning areas.

They wanted to experience a college like environment within a education setting where she could have structure and the familiarity of the education setting. Her classes met twice a week, with the option of her going to more, in lieu of daily individual remediation. The classes met for an hour instead of forty minutes. Her greatest need was with written and with executive functioning struggles and they wanted to see if she could handle long term projects. struggled throughout the year even with the very small class and one to one support. There were five students in the class between the ages of and . All the students struggled with executive functioning and in terms of so she was still grouped with students of the same profile. struggled significantly across writing, , math, skills, and management of her well being throughout the year. She observed as being in class and acting . She required direction and re-direction. She had many assignments due and was unable to follow through and was overwhelmed. T he of her English class was writing papers, research, and overall basic organization. In writing, they targeted her grammar, mechanics, proof , editing her overall written organization. In terms of organization, she was to organize her notes and her papers and to complete her homework as well as taking lecture notes. In terms of , it was to develop inferential skills and to read independently.

made some progress with support . She met with her teacher weekly. She opined that the classroom allowed her to receive support. Her writing gradually improved and required support. She improved with her second paper because of the support she received both from the classroom and individual support she received. She is now more able to ask for assistance and is able to get it in a one to one environment. Her math program was pre-calculus and she struggled. Her class met daily and her teacher was able to re-direct her when she became and met with her individually when she lost track of materials. The teacher broke down information for her into smaller chunks. She had difficulty with chemistry and they modified the curriculum through conversations on a weekly basis.

met with her teachers on an individual basis because she became in class or lost track of the information. She requires assistance for long term assignments. She required someone to break down what pieces to read first, how to read them and discuss them. Even in the class she was missing information and needed to be redirected. She struggled significantly in history with the executive functioning piece. They needed to break down her assignments and it was difficult for to keep herself motivated.

She explained that at the end of last year had been making progress but they were concerned how she would function with less structure. They wanted to give her the opportunity to practice more independent skills within a education environment and with access to one on one support. When they had taken away support she fell apart and midterm her grades fell. They would constantly put back the scaffolding and the remove it a little at a time. Even in the small classroom and the one on one support without the structure and scaffolding she struggled significantly. When they put the supports back in place they saw some progress. She made more progress when she met her four days a week and her classes met more often.

As her adviser, she wanted to mange her executive functioning struggles and adjust her and issues. With respect to academic goals, they worked on time management, effective planning of assignments and carrying them out. She reviewed 's progress, gave her encouragement and provided her with mini lessons.

made progress in recognizing what she needed. When her grades started to fall, she came more often to her and understood she would be more likely to complete her assignments. is better at and writing her ideas when she has support to get started.

, she struggles and they worked on self reflection and self awareness. She used the cognitive therapy approach with . They did a lot of supportive

. She explained that the small class is crucial for . They are able to alter the program and stop the class and redirect her if she was . She required the one on one support. She did not believe that had the capacity to be in a mainstream environment for this year. She explained the importance of being able to access her in order to talk her through her breakdowns and to talk her through the process of approaching a peer in a more appropriate way. She provides with the process of looking at her thoughts and feelings and hew own awareness of her strengths and weakness makes her more likely to make progress.

is a fundamentally bright student but requires the support to access her strengths. When they took away support she struggled. She required someone to break down two week assignments. They felt it was important for her to start to learn these skills an order to move on to a post school environment.

She explained that they are able to look at 's progress on a weekly or daily basis. They are able to create a class small enough to address her needs and offer a college like environment in a education environment with supports.

was interested in drama and participated in a school play which allowed her opportunities to spend time with other students. She was an assistant director with the drama coach for the middle school play .

With respect to academic progress, made progress in her actual writing output and in organization. In terms of her executive functioning she is better able to self advocate or solicits the support she required. She is somewhat more proficient with time management, and is better able to manage her academic responsibilities. With respect to progress, she had some friends and was more appropriate in her class participation. She is more inclined to solicit support before her frustration turns into a problem.

They do formal testing in the spring and have report cards that show progress.

's report cards show progress which she believed is due to the small classrooms and individualized curriculum and the one to one support. Her second writing paper was more complete. She was the drama director for the middle school play and this was another way to track her and progress.

The teachers meet once a month on a formal basis, and also weekly and sometimes daily on an informal basis. She opined that met 's needs. They communicate through the continuous feedback system and are able to alter her program at any moment. They provide her with a small education environment with frequent support and offer her redirection when she loses concentration. She explained that this year was meant to consolidate the progress that she made over time. (Tr. 158-200)

On cross examination, she reiterated that she was a licensed worker who is now the program director. She is not licensed as a teacher. et with her advisers between an hour and an hour and a half twice a week. She was in a : program for the entire year and her classes met twice a week. She did not know if all the students had IEPs. The same five students are in all the academic classes together with the exception of math. In math, was with seven students. She did not have an individual teacher. received a local diploma and will be attending which is a school with a strong support program for students with disabilities.

She acknowledged that neither Mr. nor the history teacher is certified. did not attend group during this year. She explained that in the smaller class of she was receiving interaction. She explained that there were five students who were identified as needing this program and they wanted her in a small environment because they were going to take away some of the structures that had been used to. Information is typically scaffolded and they would talk through the topic method and through the continuous feedback system they could communicate all the time. Professional development is a key component.

She stated that her role as adviser was similar to that as teacher. She actually spent more time with . (Tr. 200-208)

MS. is 's mother and she testified that she exhibits poor planning, and is , which she opined was part of 's executive functioning issue. She explained that requires a lot of structure and guidance to keep her functional. She has poor tone and very poor . She explained that they are a family committed to public education. She had been told by 's teachers that school was not working for her and she placed her at in grade where she has since remained. She has had IEP's throughout that time from the Department.

She described the 2010-11 IEP process and explained that it became clear right away that they wanted to declassify . The meeting in January was postponed in order to do additional testing. She described being very surprised with the declassification. She submitted a letter from the psychotherapist and she was told to come back in March. The worker took a history and a psychologist tested . She had requested the results of the testing but did not receive anything until she showed up for the IEP meeting on May 26, prior to going into the room. She discussed how

's speed is always in the first percentile and it affects her cognitive abilities. Her scanning is terrible and she is very slow in putting the pieces together. She explained to them that she thought it would be very difficult for her to be decertified. The team then agreed to give her SETSS twice a week. She told them that she had CTT and needed a education teacher in the room. She explained that it was her last year and had never taken examinations. They had always offered her a CTT program in the past. She always went and the school was either full or did not have a CTT program. They had no answer about the . Ms. was adamant about the program. They did not really discuss transition or the goals.

She explained how 's speed affects her executive functioning tremendously and how her organizations skills are challenged. It is hard for to keep track of everything and integrate it, act on it and process it. The CSE responded by saying that they did not agree that she needed a education teacher in the classroom. The observation that had been done by in February was not discussed at that meeting and she only saw it today at the hearing. There was no discussion about transition goals. They wrote down the goals and read them out loud and that was the extent of the discussion.

Her teacher talked about how much needed the support of a small classroom and her strengths and weaknesses. She told them that she did not think could succeed in a setting without a education teacher. Ms. did not agree because is very bright. She advised them that she did not think that the SETTS twice weekly would be at all appropriate.

She received a placement letter for the program at School complex and made a visit. She was told that the class size was currently thirty four. The SETTS program takes place during lunch. She was advised that would have to take . She opined that would not succeed in that environment. has poor tone, issues and she opined that going through her day without a lunch break would be very difficult. All of the electives were in science which is 's worst subject. She had never taken a exam. She did not think it was an appropriate program based on the class size, the lunch factor and the lack of a education teacher in the room. She wrote a letter to the CSE her opinion but no one ever responded. She received an IEP and wrote another letter reiterating her doubts and she did not receive a response to that letter. She explained that had they offered her an appropriate program she would have considered it.

With respect to the contract she had signed at , she explained that she had put a deposit after the first IEP conference, but had an appropriate placement been offered she would have sent her to public school.

struggled this year with her program at which targeted her weaknesses and executive functioning issues. She did get better in the spring and she has more confidence. She was able to complete lengthy assignments more easily.

She described the problems had in a mainstream environment. She opined that has made a lot of progress at and now has a circle of friends. The education is very individualized and they have both an academic and awareness of the students. The tuition at is $46,800 which she paid in full. She receives no financial assistance or scholarships. (Tr. 212 -240)

On cross-examination, she reiterated that a psycho-educational was donem as well as a history, both which were given to her to read before she entered the room for the meeting. She acknowledged that she made her first payment to in February 2010 and a subsequent payment in June and a final payment in September. (Tr. 240- 242)

On re-direct, she explained that by the time she made her second payment she had already visited the placement.

On re-cross-examination, she stated that she visited the school prior to June 8th but she could not recall the exact date.

FINDINGS OF FACT AND CONCLUSION OF LAW

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

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

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

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

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

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

In this case, there was an annual review meeting held on May 26, 2010 and in attendance were: Ms. , the parent, a teacher assigned from CSE-9 who sat in dual capacity as the District representative and education teacher, Ms.

who was 's then teacher and also a general education teacher, , a school psychologist, and a parent member.

The SRO has found that a review team could be properly constituted when a general education teacher participated in the CSE meeting , even though the teacher at the time of the review was not teaching in a general education classroom. It is undisputed that at the time of the review, Ms. was not teaching in a general education program. It is also undisputed that she was licensed under the State of New York. Counsel for the parents argues that because there was no general education teacher present at the review the team was invalidly constituted.

Ms. , 's teacher had been working with her in a one on one setting and as counsel for the parent points out in her closing she was the one educator at the meeting who did not agree with the general education recommendation. She knew well enough to give an opinion as to the appropriateness of a general education class. I find that the team was duly constituted. I find that the lack of a then working general education teacher did not cause a deprivation of educational benefits.

Counsel for the parents also argues that the parent did not have an opportunity to fully participate because some of her concerns were not addressed. However, I find that she did have the opportunity to voice her opinion. There had been a prior meeting in January where the team had wanted to declassify . The parent objected and remained classified. The fact that she did not agree with the outcome, or that the team did not agree with her concerns does not lead to a denial of FAPE.

The IEP includes the name and identifying information of another student. There was testimony from Ms. that the substance of the information listed on the page was in reference to . I credit her testimony and find that it is without question that the substance refers to . The fact that the name and student ID number on some pages referencing another student, or an incorrect date, while disturbing did not deprive of FAPE.

With respect to the classroom observation that had been conducted, Ms. acknowledged that the observation was not discussed at this meeting but at the prior meeting. As counsel for the parents point out, this seems inconsistent because the observation is dated after the date of the first meeting. Even more telling is the fact that 's mother testified that she had never received or heard about this observation until this hearing. Based on this I have to conclude that this observation was not used as part of the information at the CSE meeting. However, the team had actually postponed the prior meeting to this date because they wanted to obtain evaluations. The team relied on a several documents, including a psychological report, a history update, as well as information from 's mother and where she had been attending for the past several years.

In summary, I find that any procedural errors did not rise to the level of a deprivation of FAPE.

The team recommended general education with SETSS for two periods a week along with the related service of . With respect to how the team arrived at their recommendation, there is no dispute that performs well academically, as even acknowledged by her mother. However, was receiving a tremendous amount of support from . Her testing lights that she scores in the first percentile of which affects her across all subjects. There is no evidence that the team really addressed this issue even when raised by 's mother. I find that the team on the fact that is bright and did not really look at her individualized needs. There was evidence that she struggles even in a small class setting, both academically and . She had been in a group of five in a full-time education class . There is no evidence that the team even considered the class size in a general education setting. There was testimony that there are two SETSS class and both classes range from to grade in and to grade in math. There was evidence from with respect to the difficulties had when they tried to reduce her support. I find that the Department has failed to establish how a class with such a large grade span could provide differentiated instruction and support that requires.

There was testimony from Ms. that they could meet 's goals in her recommended time. Counsel for the parent argue that she was unaware of 's particular program and I find that she was not aware of her individual needs nor her program. She had thought that had been recommended for five hours per week. It is true that the SETSS class has only eight students, however, the recommendation consists of twice weekly for eighty minutes which does not allow for much individualized . I find that that the DOE failed to establish how two periods of SETSS per week could provide the amount of individualized meet 's needs.

It is also important to consider that would have been in her senior year and the issue of graduation. The IEP left out any information with respect to what type of diploma would receive. There was testimony that this would be left up to the school where would attend. However, there was testimony from the recommended placement that would have been tracked for a diploma. When 's mother visited the placement she was told that would have to take her examination in every subject. There is no realistic plan for to have to take all of the required in order for her to graduate. I find that this is an unrealistic expectation.

Counsel for the parents argues that the team did not consider alternative programs for . There was testimony that they could not seriously consider the parent's request of a school because of 's ability. However, it is very unclear why they did not consider a CTT class which they had recommended for several years.

With respect to transition, the DOE claims they relied on information from 's mother and teacher to determine her needs. I note that both these people who know better than anyone on the team did not think a general education would be appropriate. The recommended placement did have a education teacher who would have worked with on her vocational plans. I find the lack of a vocational plan in and of itself did not impede her right to FAPE.

Although a DOE does not have to maximize a child's potential, I find that in this case the DOE has failed to provide a meaningful education. I find that the team failed to consider all the support she had been receiving, a full time education class in a full time education school and one to one support, in order to achieve her academic scores. I find that the DOE failed to consider her issues and her issues. I find that they failed to consider the amount of individual support she had been receiving.

It is well known that the IDEA requires the least restrictive environment, however, that environment must provide sufficient support for a student to receive meaningful educational benefit. I find that the DOE did not consider the drastic change in her program. I find that they failed to consider how could successfully go from her present setting into a general education setting. I note that only last year they had recommended a CTT program and there is no evidence establishing why they believed that in her senior year, which has additional concerns, she could make such a drastic change.

In summary, I find that the DOE failed to provide an appropriate program for . I find that for all the above reasons they did not provide FAPE and they have not met their burden under prong 1.

The parents must show that the educational program met 's educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that the program waLs properly designed for to progress and is not required to show that in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

is a small, full-time education school with an emphasis on nondisability, executive function issues, and needs. had an individually tailored program which addressed her academic and needs. She was even given a precollege program coupled with education supports in a small setting. This has given her supports and tools for her to transition out of school and enter college. had struggled in this setting and they reshaped her classes and schedule to meet her needs. I find that that this is certainly evidence of a program tailored to meet her needs. This resulted in academic progress in her writing skills, executive function, self-advocacy skills. I find that the evidence establishes that did make progress.

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with education services in the LRE”). Counsel for the Department argues that is not 's LRE. There was evidence that in the past had struggled in the mainstream and also with her needs peers. This environment allows her the support for her and difficulties. There was testimony that she had made more friends this year and participated in the drama club.

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

In this case, the IEP recommended . Although this is not offered in the school Ms. who was assigned as 's adviser has a Masters in work and provided her with support. They addressed such issues as peer relationships, and how to address her breakdowns. I find that the fact that there was no per se does not render the program inappropriate.

In this case, there was undisputed testimony that did in fact make progress from this program. She received strong grades and made progress. I find that this was directly as a result of the program that was tailored to her individual needs. I find that was appropriate and the parents met their burden under prong 2.

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

The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1

(D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).

In this case, Ms. signed the contract after the first meeting which was tabled and she had been informed that they were about to declassify . She made no subsequent payments until the CSE meeting and advised the CSE of her disagreement with the SETSS recommendation. I credit the parent's testimony that she would have considered a different program that would have provided with a full time education teacher. I n the past six years, she had never been offered an available seat in a CTT class and therefore, had continued to enroll at . Given this history and the two meetings I find that it was understandable that she signed a contract.

I find that the parent always cooperated with the CSE, participated in the meetings, informed them of her concerns and intentions. Counsel for the Department argues that the parents did not exhaust their administrative remedies. I find that an impartial hearing is the proper forum for them to obtain relief. In this case the parents did advise the DOE of their concerns at both meetings as well as by letter. I find that there is nothing with respect to the equities that would bar the parent from relief.

In summary, I find that the DOE did not meet their burden under prong one and did not offer an appropriate program and placement, the parents did meet their burden under prong two and selected an appropriate program and placement and the equities under prong three favor the parent. I find that the parents paid $46,800 (Exhibit F and H) in accordance with their contract with . (Exhibit G) and are entitled to tuition reimbursement.

ORDER

The DOE shall reimburse the parents for tuition at for the 2010-11 school year upon proof of payment and attendance. Dated: August 2, 2011

____________________________

SHARYN FINKELSTEIN, ESQ.

Impartial Hearing Officer

SF:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 12, 2011

PARENT

A Letter from Dr. , 1/22/10, 1 p. B Parent Letter to CSE, 5/10, 1 p. C Parent Letter to CSE Fax Receipt, 6/8/10, 3 pp. D Parent Letter to CSE Fax Receipt, 7/13/10, 2 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 2/14/10, 2 pp. 2 Due Process Response, 11/24/10, 4 pp. 3 IEP, 5/26/10, 17 pp. 4 IEP Minutes, 5/26/10, 2 pp. 5 Confidential Psychological Report, 3/14/2010, 3 pp. 6 History Update, 3/16/2010, 3 pp. 7 Level One Assessment Parent/Guardian Interview, 2/26/09, 3 pp. 8 Classroom Observation, 10/08/08, 2 pp. 9 School Winter Progress Report, arks, 7 pp. 10 School Fall Report, 2009, 8 pp. 11 School Academic Report, Fall 2007-Fall 2009, 1 p. 12 School Standardized Test Report, 2008-2009, 1 p. 13 IEP, 2/6/09, 1 p. 14 Notice of IEP Meeting/Annual Review, 5/6/10, 1 p. 15 Final Notice of Recommendation, 6/1/10, 1 p. 16 School Fun Facts,l 5/9/10, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 24, 2011

PARENT

E 2011 Final Grades, 4 pp. F Affidavit of Payment to , 11/16/10, 1 p. G Tuition Contract, 2/20/10, 2 pp. H Proof of Payment, 2/2010 to 9/2010, 3 pp.

DEPARTMENT OF EDUCATION

17 Classroom Observation, 2/22/2010, 2 pp.