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: March 22, 2011

April 12, 2011

May 13, 2011

May 23, 2011

Hearing Officer: Jeffrey Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2011

Attorney (via telephone) — Student

ESQ., Attorney (via telephone) — DOE

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

Parents

ESQ., Attorney — Student

ESQ., DOE Attorney — DOE

Ed Teacher, via phone — DOE

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

ESQ., Attorney — Student

Parents

Center — Student

Teacher, Center — Student

ESQ., DOE Attorney — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2011

ESQ., Attorney — Student

Parents

ELA Studies Head Teacher, Center (via phone) — Student

Counselor, Center (via phone) — Student

ESQ., DOE Attorney — DOE

— DOE

Assistant Principal, School for, 751 (via phone) — DOE

— DOE

I. PROCEDURAL HISTORY

This hearing was requested on February 17, 2011 by ‟s Rights on behalf of the student and his parent pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay the cost of the student‟s tuition to the Center for Learning and Development (“ Center”), a private school, for the 2010/11 school year (Ex. SD-1 at 1).^[1] In a February 23, 2011 due process response, the DOE denied each and every allegation contained in the parent‟s impartial hearing request (Ex. SD-2 at 1). Following a March 22, 2011 pre-hearing conference, the hearing commenced on April 12, 2011 and concluded after three (3) days of testimony on May 23, 2010.

On the first day of hearing, the parent moved for an interim order on pendency, which was unopposed by the DOE (R. 39-40). The relevant provisions of federal and state law require that a student remain in his or her then current educational placement, unless the student‟s parents/guardians and the DOE otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). Although not defined by statute, the phrase “then current educational placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced. See, e.g., Application of the New York City Sch. Dist., Appeal No. 10-112 at 4 (SRO Dec. 13, 2010).^[2]

Based on the documentary evidence and stipulations submitted by the parties, I found that the Center was the student‟s “then current educational placement” at the time this hearing (concerning the 2010/11 school year) was initiated on February 17, 2011 (R. 40-42). In a December 4, 2009 Findings of Fact and Decision, IHO ordered the DOE to pay the student‟s tuition to the Center for the 2008/09 school year (Ex. P-B at 32). The parties stipulated that IHO ‟s December 4th Order was not appealed to the State Review Officer of the New York State Education Department (the “SRO”) and that a Stipulation of Settlement between the parties for the 2009/10 school year did not address the issue of pendency (R. 39-41).

My findings were reduced to an Interim Order on Pendency, signed on June 23, 2011, which ordered that:

The [DOE] shall make direct payment to the Center Academy for all tuition due for [the student] for the period beginning on February 17, 2011, the date of the filing of the hearing request, and continuing until a final decision has been rendered in this matter (Ex. IHO-I).

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received in evidence.^[3] See 8 NYCRR § 200.5(j)(5)(v).

II. FACTUAL BACKGROUND

The parties‟ familiarity with the student‟s educational history prior to the 2010/11 school year, as set forth in IHO ‟s December 4, 2009 Findings of Fact and Decision, is assumed and will not be restated here (Ex. P-B).

At the time of the impartial hearing, the student was -years-old and classified as or impaired (Ex. SD-2 at 1).^[4] He is presently attending classes at the Center (Ex. SD-1 at 2).^[5] The Commissioner of Education has not approved the Center as a school with which school district may contract to instruct students with disabilities. See 8 NYCRR §§ 2001(d), 200.7. The Center educates students ages 5 through 21 with mild-to-moderate cognitive or developmental disabilities that severely impact their acquisition of academic, and skills (Ex. P-N at 2). The student‟s eligibility for education programs and related services as a student with a disability is not in dispute in this proceeding (Exs. SD-1 at 2, SD-2 at 1). See 34 C.F.R. § 300.8(c)(10); 8 NYCRR § 200.1(zz)(6).

On February 2, 2010, the Committee on Education (the “CSE”) convened to conduct a reevaluation and an annual review, and to develop the student‟s individualized education program (“IEP”) for the 2010/11 school year (Exs. SD-4, SD-7). The following individuals attended the CSE meeting: the parent, a district representative, a school psychologist, a education teacher, an additional parent member, the student‟s then-current English/ Arts (“ELA”) and math teachers from the Center (via telephone) and the assistant head of the Center (also via telephone) (Ex. SD-7 at 2).

To develop the student‟s IEP, the CSE relied upon information from a October 29, 2009 classroom observation, fall 2009 progress reports produced by the student‟s teachers at the Center and scoring data from ELA and math testing conducted of the student at, and by, the Center (R. 56, 60-63; Exs. SD-2 at 2-3, SD-5, SD-6, SD-7 at 3-4, SD-8, SD-12). In the student‟s fall 2009 Center progress reports, teachers provided information about the student‟s current abilities in the areas of ELA, studies, science, mathematics, process skills, skills, skills, travel training, health, independent living, art, drama, technology and physical education (Exs. SD-6, SD-12).

From the Center progress reports, the CSE understood the student as performing significantly below his then- grade level in all academic areas. According to the student‟s Center teachers, while his skills were an area of relative strength, his reading skills were on a grade level. He displayed difficulty responding to which required critical thinking skills, such as inferencing and predicting. To improve reading skills, the student‟s Center teachers stated that he needed to develop his vocabulary skills. In writing, the student needed to learn to stay on-topic and add sufficient detail to writing samples. The student‟s math teacher reported that his math skills were stronger than evidenced by standardized testing (Ex. SD-7 at 3).

With respect to the student‟s / functioning, the CSE understood that the student was easily distracted by both internally and by his peers. He often needed redirection in class as he was talkative and . While the student related well with peers, he required adult supervision and support to maintain personal space and acceptable topic content (Ex. SD-7 at 4).

The CSE also noted that the student needed to participate in a program that incorporated academic instruction to support vocational/post-secondary goals as well as participation and exposure to the community-at-large to encourage long-term life skills toward independent living (Ex. SD-7 at 4, 13).

To address these areas of identified educational needs, the CSE recommended annual goals in the areas of ELA, written expression, math, / , and services (Ex. SD-1 at 6-8).

Based on its understanding of the student‟s then-current levels of functioning and performance, the CSE recommended for the 2010/11 school year, the student‟s tenth grade, that he receive all academic instruction in a class setting with a staffing ratio of 12:1 (Ex. SD-7 at 1). This recommendation represented a change from the prior school year (2009/10), where the CSE has recommended that the student‟s academic instruction occur in a class setting with a staffing ratio of (Ex. SD-1 at 2, 10, P-D at 1). The CSE also recommended that the student receive group and individual and group and individual / therapy (Ex. SD-7 at 11). The following program modifications were also recommended by the CSE for the student: small group instruction, direction repeated and rephrased (as needed), graphic organizers, scaffolding, visual and auditory cues, use of a calculator, preferential seating away from and teacher modeling for classroom interactions (Ex. SD-1 at 3).

On April 27, 2010, the parent signed an enrollment contract for the student to attend the Center for the 2010/11 academic year (Ex. P-M). Later, on May 30, 2010, the parent signed an enrollment contract for the student to attend the Center Summer Academy for the summer of 2010 (Ex. P-L).

On June 11, 2010, counsel for the student‟s parent wrote to the CSE to state that she had not received notice of the DOE‟s recommended placement for the student and that if a placement recommendation was not forthcoming, she would enroll the student in the Center‟s summer program at public expense (Ex. P-I).

Thereafter, on June 15, 2010, the DOE identified at the Center for as the placement at which the student would receive his recommended program and services (Ex. SD-3).

On June 28, 2010, and later on August 20, 2010, counsel for the student‟s parent wrote to the CSE to state that, following the parent‟s visit to the proposed placement, she was rejecting the recommended program and placement and would enroll the student at the Center for the 2010/11 school year at public expense (Exs. P-J, P-K).

III. POSITIONS OF THE PARTIES

A. The DOE

The DOE states that the student was offered a FAPE for the 2010/11 school year, that it complied with the procedural requirements set forth in the IDEA and that the CSE developed an appropriate IEP for the student which was reasonably calculated to enable the student to receive educational benefit (R. 43). Alternatively, the DOE argues that, to the extent that I should find any procedural errors in the CSE‟s development of the student‟s IEP for the 2010/11 school year, such errors were de minimis and did not deny the student a FAPE (R. 44; Ex. IHO-III). The DOE also argues that the Center was inappropriate for the student in that he has failed to make meaningful progress at the school (R. 44). Lastly, the DOE states that relevant equities do not support an award of tuition reimbursement because the parent failed to seriously consider the offered public school program (Ex. IHO-III at 19).

B. The Parent

The parent seeks an Order directing the DOE to pay for the student‟s tuition to the Center for the 2010/11 school year (R. 47). The parent states that the DOE denied the student a free appropriate public education (“FAPE”) because his IEP was not based on adequate evaluations and because the recommended public program and placement could not meet his individual educational needs (R. 45-47). In contrast, the parent argues that the Center offered the student individualized instruction which was narrowly tailored to meet his unique education needs (Ex. IHO-II at 11). Lastly, the parent states that equitable considerations support an award of direct payment of the student‟s tuition to the Center for the 2010/11 school year (Ex. IHO-II at 15).

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.^[6] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA‟s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student‟s right to a FAPE; (b) significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer‟s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See 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 Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see 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 Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is „likely to produce progress, not regression,‟ and . . . affords the student with an opportunity greater than mere „trivial advancement.‟” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some „meaningful‟ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192. The student‟s recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs education and related services, even though the [student] has not failed or been retained in a course or grad, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program being with an IEP that accurately reflects the results of evaluations to identify the student‟s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). A board of education may be required to reimburse parents for private educational services obtained for a student, 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Appropriateness of Public Program

I find that the DOE failed to offer the student a FAPE because: its CSE had insufficient evaluative information on which to premise the student‟s IEP for the 2010/11 school year; the CSE failed to develop annual goals for the student in all areas of identified need; the annual goals developed by the CSE were inadequate; and the proposed public program and placement was inappropriate.

1. Sufficiency of Evaluations

I find that the DOE had insufficient information relative to the student‟s present levels of academic achievement and performance at the time of the February 2, 2010 CSE meeting to develop an IEP that accurately reflected the student‟s education needs. See 34 C.F.R. § 300.306(c)(2); 8 NYCRR § 200.4(d)(2).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 8 NYCRR § 200.4(b)(4); see also 34 C.F.R. § 300.303(b)(1)-(2). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x).

A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, and status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).

I find that the CSE failed to reassess the student in all areas of suspected disability at the February 2nd reevaluation. Although the CSE understood from the Center progress reports and teacher input that the student, at times, engaged in inappropriate behavior, no updated psychological evaluation of the student was conducted (Ex. SD-7 at 4). The February 2nd IEP developed by the CSE for the student contains no information on the student‟s cognitive functioning or how, if at all, the student‟s cognitive functioning contributes to his significant academic delays (Ex. SD-7 at 3, 9).

Despite its recognition that the student displays significant / delays, and indeed is classified as / impaired, the CSE also failed to reevaluate the student‟s level of functioning in the domain of / skills (Ex. SD-7 at 9). Notwithstanding this omission and the absence of a / therapist or pathologist from the February 2nd meeting, the CSE increased the student‟s recommended amount of / therapy service from the level set for the 2009/10 school year (Exs. SD-7 at 2, 11; P-D at 13).

The CSE also conducted it reevaluation of the student without an updated history. Ms. conceded that no contact was made with the parent or the Center prior to the February 2nd meeting to inquire as to whether or not there were any significant changes to the information provided in the student‟s past history (R. 121-123).

Alternatively, the DOE argues that the applicable regulations did not require the CSE to conduct updated psychological and / evaluations and that the CSE was permitted to rely on teacher progress reports from the Center to determine the student‟s levels of academic performance and learning characteristics. See Application of a Student with a Disability (New York City Dept. of Educ.), Appeal No. 11-043 (SRO June 14, 2011). Had the CSE met on February 2nd only to conduct an annual review of the student‟s IEP (as was the case in Appeal No. 11-043), the DOE‟s argument might carry greater weight. See id. at 11. Here, however (and unlike the facts present in Appeal No. 11-043), the CSE met on February 2nd to conduct a revaluation of the student, in addition to an annual review of his IEP (Ex. SD-4). As part of a reevaluation, the CSE “shall administer tests and other evaluation materials,” 8 NYCRR § 200.4(b)(5)(iii), and, if additional data is not needed for the revaluation, “the school district must notify the parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine . . . the student‟s educational needs,” 8 NYCRR § 200.4(b)(5)(iv); see also 34 C.F.R. §§ 300.305(d)(i)-(ii). There was no evidence presented by the DOE of a determination by the CSE of needed evaluation data for the student‟s reevaluation and no evidence of any notice by the CSE to the student‟s parent of a determination that additional test and evaluation data was not needed to complete its reevaluation of the student (R. 104, 421).

Thus, I find the DOE argument that “the regulations only require a psychological evaluation as part of an initial evaluation” incorrect, as the regulations require the CSE to made a determination of whether or not a psychological evaluation is needed as part of its reevaluation and, if deemed unnecessary, written notice of that determination must be made to a student‟s parent or parents (Ex. IHO-III at 14). See 8 NYCRR § 200.4(b)(5).

Similarly, the DOE‟s argument that “the regulations do not require [it] to conduct a / evaluation as part of an initial evaluation or a reevaluation,” (Ex. IHO-III at 13) misses the mark because the regulations require that “additional evaluations and assessments be conducted [as part of an initial evaluation or reevaluation] in order to appropriately assess the student in all areas related to the suspected disabilities,” see 8 NYCRR § 200.4(b)(3). As the CSE recognized that the student displayed significant / delays, and indeed continued his classification as / impaired, the CSE was required at or before the February 2nd meeting to determine whether or not an updated / evaluation was needed as part of its reevaluation and, if deemed unnecessary, inform the student‟s parent of that determination in writing (Ex. SD-7 at 1, 9). See 8 NYCRR § 200.4(b)(5).

Even assuming, arguendo, the CSE had made a determination that updated psychological and / evaluations were unnecessary to its reevaluation of the student‟s educational needs and had provided the student‟s parent with notice of that determination, I find that, unlike the facts present in Appeal No. 11-043, the CSE did not rely on the 2006 psychological evaluation or the student‟s prior / evaluation in developing his IEP for the 2010/11 school year. Ms. ‟s testimony that she and Ms. (the school psychologist) “reviewed of the [student‟s] file” prior to the nd February 2 meeting does not demonstrate that the CSE specifically reviewed the 2006 psychological evaluation or the student‟s prior / evaluation or relied on those documents in developing the student‟s IEP for the 2010/11 school year (R. 56, 103).

To the extent that these evaluation deficits may be deemed procedural, I find that these procedural errors impeded the student‟s right to a FAPE, significantly impeded the parent‟s opportunity to participate in the decision making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); see also Rowley, 458 U.S. at 206 (“Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.”).

2. Annual Goals

I find that the student‟s 2010/11 IEP did not include specific annual goals to address the student‟s attentional difficulties and deficits in critical thinking. I separately find that the goals contained in the IEP concerning ELA, written expression, math, / , and failed to include evaluative criteria, evaluation procedures and schedules to be used to measure the student‟s progress toward meeting the annual goals in those areas (Ex. SD-7 at 6-8).7

7 As the parent‟s February 17, 2011 due process complaint notice alleges, inter alia, that “the DOE failed to recommend an appropriate IEP to meet [the student‟s] needs,” an analysis of the appropriateness of the

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student‟s needs that result from the student‟s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student‟s other educational needs that result from the student‟s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(I); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

None of the IEP annual goals contain evaluative criteria to identify how well and over what period of time the student must perform a skill in order to consider it met. Teacher made assessments, classwork, homework and teacher observations do not represent objective evaluative methods by which the student‟s skill in meeting annual goals in ELA, written expression, and math will be measured. The reference “by the end of the school year” in five of the six annual goals does not represent an appropriate evaluation schedule to measure the student‟s progress (Ex. SD-7 at 6-8). See Guide to Quality Individualized Education Program (IEP) Development and Implementation at 3033 (VESID Feb. 2010).

To the extent that deficits identified in the IEP goals may be deemed procedural, I find that these procedural errors impeded the student‟s right to a FAPE, significantly impeded the parent‟s opportunity to participate in the decision making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); see also Rowley, 458 U.S. at 206 (“Adequate compliance with the procedures prescribed

IEP‟s annual goals is within the scope of issues raised by the due process complaint notice. Cf. Application of a Child with a Disability, Appeal No. 08-056.

[by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.”).

3. Recommended Program

I find that the recommended public program at , The School for , was not reasonably calculated to address the student‟s significant academic delays and service needs.

Ms. , the proposed classroom teacher, testified that is a “career school” and that she employs a “life skills” curriculum which emphasizes vocational skills (R. 168, 260). While Ms. identified the Wilson program and Achieve 3000 as two resources used to facilitate ELA instruction, her actual use of the Wilson program this year was limited and the lessons provided her students via the Achieve 3000 computer program are not individualized (R. 173-175, 235, 241-242). The math curriculum of Ms. ‟s class, which included making a budget, reading a clock and basic measurements, is also inconsistent with the student‟s math goal of improved ability to solve math word problems and calculations (R. 168; Ex. SD-7 at 7).

Notwithstanding the vocational of the proposed program at , the planning and services available to the student there for the 2010/11 school year were inadequate. While the community integration component of the student‟s plan called for instruction about community agencies and their functions, Ms. stated that he was “too young” for this goal (R. 212). While the independent living component of the student‟s plan called for travel training, Ms. stated that this service, provided by another DOE component, is only offered for four-to-eight weeks and there was a waiting period for the service of two-to-three months (R. 213, 251-252). Internships are not offered to students age - at (R. 248-249). Instead, such students participate in vocational “exploration” through classes such as cooking, woodworking and clerical tasks (R. 214). The student would not have access to a coordinator while at until he reached years of age (R. 248-249).

C. Appropriateness of Private Program

Having failed to offer the student a FAPE, I turn to the appropriateness of the parent‟s unilateral placement. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet her education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student‟s education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, „the same considerations and criteria that apply in determining whether the [s]chool [d]istrict‟s placement is appropriate should be considered in determining the appropriateness of the parents‟ placement.‟” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every service necessary to maximize the student‟s potential. See Frank G., 459 F. 3d at 364-65. When determining whether the parent‟s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides „education instruction specifically designed to meet the unique needs of a handicapped child.‟” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89.

Based on my review of the hearing record, I find that the Center provided the student with specifically designed instruction to address his unique learning needs and that the student demonstrated progress while attending that placement.

Mr. , the assistant head of the Center, stated that the student is enrolled in the Center‟s Access to Independence Program (R. 271; Ex. P-N). This program was described as providing modified school level instruction in all core academic areas using classroom modifications and differentiated instruction (R. 277

278). For the 2010/11 school year, the Center had 108 enrolled students and 80 staff members (R. 272, 476). Every class at the center is co-taught with a head teacher, certified in education, and an assistant teacher (R. 286, 330). In addition to core academic subjects, the student is enrolled in a skills class, a men‟s forum, as well as art and music (R. 298, 300). The student receives / therapy at the Center on both a push-in and pull-out basis (R. 286, 330). Mr. stated, and the teacher progress reports reflect, that the student has made progress in reading, writing and mathematics while attending the Center (R. 279, 322, 385; Ex. P-G).

The student has received appropriate planning and services during both the 2009/10 and 2010/11 school years while at the Center (R. 306). During both years, the student participated in an internship under the direction of a job coach (R. 305). Travel training is provided to all and tenth grade students (R. 320).

D. Relevant Equities

I now turn to the issue of whether equitable considerations, e.g., notice, cooperation and reasonableness of cost, favor an award of tuition reimbursement. The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

I find that there are no equitable reasons for limiting tuition reimbursement to the parent of the student in this matter. In letters dated June 11, 2010 and June 28, 2010, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student for the 2010/11 school year at public expense (Exs. P-I, P-J). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is no contention or evidence indicating that the cost of the student‟s tuition to the Center is unreasonable (Ex. IHO-III at 19). See Carter, 510 U.S. at 16.

Alternatively, while the DOE also contends that the parent never intended to place the student in public school for the 2010/11 school year because the parent signed an enrollment contract with the Center on April 27, 2010, prior to her receipt of a June 15, 2010 final notice of recommendation, the parent‟s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of her failure to cooperate with the development of an IEP or her interference with the selection of an appropriate placement by the DOE (Exs. IHO-III at 19; SD-3; P-M). Cf. Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.

V. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS HEREBY ORDERED THAT:

Within 30 days of receipt of this Order, the Department of Education is to pay the Center for the student‟s tuition for the 2010/11 school year (July 1, 2010 through June 30, 2011). Dated: July 6, 2011

JEFFREY SCHIRO, ESQ.

Impartial Hearing Officer JF:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 12, 2011

PARENT

A Withdrawn/Reserved B Findings of Fact and Decision, 12/4/09, 37 pages C Withdrawn/Reserved D IEP, 3/6/09, 15 pages E Withdrawn/Reserved F Withdrawn/Reserved G Center Progress Report 2010/2011 School Year, 15 pages H Center Progress Report 2009/2010 School Year, 15 pages I Letter to Region 9, 6/11/10, 1 page J Letter to Region 9 CSE, 6/28/10, 2 pages K Letter to Region 9 CSE, 8/20/10, 1 page L Center Contract, Summer 2010, 5/30/10, 2 pages M Center Enrollment Contract, 2010/2011 , 4/27/10, 2 pages N Center Brochure, undated, 2 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 2/17/11, 5 pages 2 Due Process Response, 2/28/11, 4 pages 3 Final Notice of Recommendation, 6/15/10, 1 page 4 Notice of IEP Meeting, 1/12/10, 1 page 5 Classroom Observation, 10/29/09, 1 page 6 Center Report, 2/10, 14 pages 7 IEP, 2/2/10, 14 pages 8 GRADE Score Summary, 9/24/10, 1 page 9 GMADE Score Summary, 9/27/10, 1 page 10 Class Schedule, Grade 10, undated, 1 page 11 Center Report, 3/20/11, 15 pages 12 Center Report, 12/10, 17 pages

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 13, 2011

DEPARTMENT OF EDUCATION

13 Class Schedule, Summer 2010, 1 page

DOCUMENTATION ENTERED INTO THE RECORD POST-HEARING

IMPARTIAL HEARING OFFICER

I Order on Pendency, 6/23/11, 4 pages

II. Parent‟s Closing Statement, 6/20/11, 18 pages

III. DOE Closing Brief, 6/20/11, 20 pages

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability. See Honig v. Doe, 484 U.S. 305, 323 (1987).

[3] At the parties‟ request, I have made their closing statements/briefs exhibits to the record of this hearing (R. 511; Ex. IHO-II at 1). I have also, sua sponte, made my June 23, 2011 Interim Order on Pendency an exhibit to the record of this hearing.

[4] or impairment means a communication disorder, such as stuttering, impaired articulation, a impairment or a voice impairment, that adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(11).

[5] The student has attended the Center continuously for the past four (4) school years, beginning with the 2006/07 school year (R. 46; Ex. SD-1 at 2).

[6] The term “free appropriate public education” means education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.