New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 18, 2011

June 30, 2011

August 5, 2011

Record Close Date: September 1, 2011

Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2011

Attorney — Student

Parents

DOE Attorney — DOE

Teacher Assigned CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2011

Attorney — Student

Parents

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2011

Attorney — Student

Parents

Assistant Head of (via telephone) — Student

(via telephone) — Student

Attorney — DOE

Teacher at (via telephone) — DOE

— DOE

INTRODUCTION

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1) concerning the special education of .(“ ”) for the 2010-11 school year. The hearing was held on May 18, 2011, June 30, 2011 and concluded on August 5, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence. The parties submitted written closing statements and the time-line was duly extended.

BACKGROUND

. is an who is classified as . A CSE meeting was held for on March 16, 2010 and on April 19, 2010. (Exhibit 1 and 3) The Committee on Special Education (“CSE”) recommended a 12:1:1 class in a specialized school with related services of , to be provided on a twelve month basis. On June 8, 2010 the Department offered a placement at at the . The parents rejected the recommendation and unilaterally placed at the where he had been attending since September 2008. They brought this hearing to request tuition reimbursement.

DISTRICT'S CASE

The District was represented by their attorney Mr. . They maintain that CSE team made recommendations for based on his strengths and deficits, his classification and in conformity with the least restrictive environment provisions. They argue that the school is appropriate to meet his needs and they offered a Free Appropriate Public Education (“FAPE”) to . They further contend that the program and services offered by the Cooke Center are inappropriate to meet his needs and that the equities favor the District. In conclusion it is their position that tuition reimbursement should be denied.

is a teacher assigned at the CSE in , to do annual reviews, Individualized Education Program (“IEP”) meetings and case management. She is part of the team that generates an IEP for a student. She participated in 's IEP review on April 19, 2010 as a special education teacher and district representative. The other people at the meeting included a parent, the , parent member, and representatives from the . She explained that the space for the general education teacher is blank because general education was never considered for . The teacher observation report and progress report from the were available to all the participants at the meeting. All the parties were allowed to make full input as to . They recommended a special class in a specialized school, class ratio in order to meet his needs. At the time of the review which included difficulties as well as difficulties with skills. As well, he had and all of which the team considered and addressed in the goals. s overall level. They received this information from the teachers on the phone who gave them scores and from the progress reports. The team created specific management needs to address 's specific , including small group instruction, the , and or into , as well as . She explained how his problems impact on his ability to . They recommended and . in a , which would support his need to learn to . would also support his ability to interact with and help his . They also recommended individually to . The related services were discussed at the meeting and there was no disagreement. The goals were developed at the meeting. The goal for was in the progress report which was provided by the school and gone over at the meeting. The teachers from his school gave input into the development of the goal for as well as goals. The goals were developed from the progress reports. The goal with its short term objectives came from the teachers and progress report. All of the goals are measurable. All of the goals were discussed at the IEP meeting with the parent and the representatives and there were no objections to any of the goals.

The team considered other programs but determined needed more support. A plan was developed at the meeting with the school and parent and there was no objection. She explained that all of goals were leading to his . It was a clerical error that no boxes were checked off indicating who would implement the plan but the parent would be involved through the . was going to participate in alternate assessment which means he is measured in a different manner because he would not be able to take standardized tests due to his learning disability. The parent expressed no problems with the IEP. She opined that the IEP addressed 's . (Tr. 11-44)

On cross-examination she stated that she had taught in a District school and had observed a program in a District school last year. She had observed prior to the IEP meeting in his class. They had the test scores but the school does not provide copies of the tests. She acknowledged that there were no goals that specifically addressed or g. With respect to the goals she explained that the person at school would work with the parent and student on a regular basis to determine when things would be done. She acknowledged that under none of the specific boxes are checked. (Tr. 44-55)

On re-direct she explained that the school could implement the plan without the checked boxes by having a meeting with the parent. With respect to the skills the teacher would determine the specifics. The goals, and the goals all speak to 's moving forward. (Tr. 55-58)

MS. is a certified special education teacher at . Her class consisted of about from with . (“ ”) It was a class. One of the was assigned to an individual and the other to the whole class. In reading and mathematics the students ranged in ability from to about grade. She groups the students according to their levels. There are two rows with four tables around the room for students who prefer to work alone. There is another group in the front and another group in the back. She goes back and forth to the different groups and at the same time the . They use the . The groups are doing different things depending on their ability which they determine from the IEP, the , as well as her assessment. In math group one is learning and and she uses and provides a lot of t. They work and learn to . They have social studies and which teaches them to be more independent. Another teacher instructs them for science. Reading is a double period.

was the para assigned to her July 2010 class and she assisted her and is trained to do exactly what she does. She explained that when a student enters the class she welcomes them and introduces them to the other student and encourages the other students to student. She then student aside and gets some basic information. She does not do any formal assessments on the first day because she wants to the student to feel comfortable. She obtains samples of the student's . This is informal and then she does the more formal testing.

She opined from looking at s IEP that according to his he would fit comfortably in her classroom. He has difficulty following and responding to information. She explained how she would use to address this need. His group would respond to who, what, when and where and why questions . would learn to decode words and in writing he would start off with and eventually go into improving his and . She explained that the whole class is involved with this but the groups address each individual's needs. She described his IEP as “my class”. She described as an at the school and in her class she would be able to address his issues. They do project based learning. They have for the student to focus on preparing for . At the end of six weeks they present a project and each student presents their own individual project or it could be a class project. With respect to 's academic management needs she always provides motivation and encouragement. She gives directions and rephrases it in order to make sure everyone understands them. She would provide and praise and build on and make his learning fun. She would use the computer to address his problem with information that is orally presented. With respect to his needs she would provide him with a lot of and a lot of in order to build his . She explained how the small groups build because everyone is and the students help and encourage each other. In summary she opined that would fit fine into the class . With respect to his academic goals she described how they could be implemented in the classroom. She uses manipulatives in helping the students with . There is a computer program where the students go shopping and they are counting and using their numbers. The teachers work hand in hand. If there is a issue she and the speak about it. They would address 's issues in her reading class and she opined that his goal could be met in her class. She opined that his goal could be addressed. She speaks with the other providers on an as need basis. If they see any issues whether or they address it and work on it as a team. The students in her class had and and therapy. With respect to for , he would learn about in the class. They learn about to become more . She would connect with family workers in the school that would and his family with support services that are needed when he . At the end of the year he would start to go out to various work sites in the school in order to identify what skills or jobs fit him the best. (Tr. 71-119)

On cross-examination she estimated that there were about to in the school. There are approximately classes. She explained that because of 's age and his reading needs he would have been placed in her class since she is the only teacher that teaches in the school. She did not have any students last year that . She is one of the teachers who can but in her class last year they were mainly but never with another student. With respect to writing the upper range would be about grade. There is a Para with the groups and she goes around in order to address their issues. She teaches the lesson to the whole class and then when they divide in groups she goes around and gives instruction to the Para. The students work in groups with the Para and some students work by themselves. She goes around giving . There were one or two students who preferred to work by themselves. The school day is from 8:05 until 2:35. The students spend the day in the classroom except for gym, lunch and art class. There were no other students who were on 's grade level in decoding. The highest level was . She never met . She did not think they had education. would be for his related services that required . They have on staff. Three of her students participated in the training program that occurs during the . would have participated in that program. This involves sites. There are teachers and Paras who accompany the students. (Tr. 119136)

On re-direct she stated they have a and assistant principal and a job coach who assign student to work sites. They were at the out of the class until noon and then they would continue with the academic work that the class was doing. (Tr. 136-139)

PARENT'S CASE

The parents were represented by their attorney . They maintain that the Departmeent of Education (“DOE”) failed to offer a FAPE based on procedural and substantive grounds. They contend that the unilateral placement chosen by the parents, the is appropriate. They argue that the equities strongly support the parents. .In summary it is their position that the parents are entitled to tuition reimbursement.

DR. is the assistant head of the and is involved with all the responsibilities of maintaining and running the program. The is a high school for students with , aged between . They have a separate location for the students who are between one. They have a ratio about , . They have a for students whose functioning requires a lot of support. They have another program, which is more of a school program with a heavy emphasis on . They do a lot of both when the student first comes in. They look at the IEP to obtain a sense of the profiles as well as any other documentation that the student had. The largest class has students. There is a teacher and assistant teacher in most classes. In the program there are education teachers or instructors for each of the learning blocks. They provide and assistance and visual support. A certificate is required to be a head classroom teacher. They require teacher assistants to have a Bachelors degree.

is in the program which is for students with severe adaptive skills and . The goal of the program is to get students used to utilize on a daily basis functional academic skills such as math, reading and social studies with an emphasis on practicing adaptive skills. They have a , , and are counseling as part of the program and the instructors are with the students all day long through their classes. They do students if they require additional services but the intervention is always in a group of a maximum of students. Dr. works with on a daily basis and is in contact with his teachers on a regular basis. has severe and is very difficult to understand and interact with him and to know what he is . He also has which make . He has some which revolve around issues. He is extremely and these qualities . He interacts relatively well with his but it is not . The model of the classroom maximizes which is extremely important for . It provides with very . He is doing better with his , taking care , getting from by and maintaining and with people. Dr. described the intervention as critical for which he would not be able to receive in a . The instruction has to be presented and reinforced . He works in a group of period. On occasion he works in a group when listening to a but there are them. In his math class there are students with teachers. In there are no more students. During and they are in .

It is difficult to test but he can handle calculations, sight word vocabulary and comprehends multi -step directions. He works with an on and and and on a daily basis and works with a in certain classes. Every group has a different schedule. He has an which is comparable to a class. In math he works on both computational and problem solving skills as well as applied mathematics skills about money and time. He has a movement class which is an addendum to gym. is part of the daily community living skills where there is direct instruction and reading activities, comprehension or basically an English language arts period. There are students in the daily living skills class and there are teachers, the , the science teacher and the . During his unscheduled periods he has lunch or different electives such as dance, movement, music or art. The thematic science period is part of the daily living block. They work on knowing about different foods, healthy eating, and how foods effect people. It is basically a science class which is related to the adaptive theme. Life skills refer to the adaptive skills period where they work in the daily living lab which is the . The is run by the social worker and they talk about and after graduation.

With respect to his progress during the year has come a long way with his interpersonal skills and vocabulary. he is able to , he is much more than he was and a lot more . He can go into the area and . He requires much . His has They do standardized tests twice a year in mathematics and reading and in skills functioning they use an assessment scale. The teachers conduct individualized assessments on each student three times during the year. In Math they use a star math program which assesses basic computation a year. They use formal assessments in but monitor throughout the year. They provide progress reports three times a year to parents.

The is about a year and is based on the student's skills and interests. worked in the park with the and . It was a paid internship and he was always accompanied by a job coach. They start to so could . He was also involved in some community service activities such as a . Dr. did not think that a full time program would be appropriate for , based on his need of development. He is a to go. He is making progress in terms of his . His interact . Dr. opined it would be for and worried about the possibility of his . Dr. opined that if they aspect it would greatly impair the other areas.

The skills are what the works on which . He opined that the is very appropriate. It is on 's learning profile and and he has made progress. (Tr. 139-169)

On cross-examination he testified that he is a . 's largest classes have teachers with students Paras so . He worked with at recess, and lunch as one of the students in a group, on a daily basis who required . He probably spent an hour with him in that group. He does not provide direction instruction to . There are process goals and content goals. The content goals are goals that all the student in the class work on and the process goals are more individualized. The math team developed the process goals for math based on the classes of the students. 's mother was not involved at the meetings to determine the math goals. Parents do not attend departmental or curriculum meetings for any subjects. received a up to five days a week of related services as well as in a group. is not reflected in his schedule because they vary from day to day for different students but it is on his individual schedule which he carries around. (Tr. 169-183)

On re-direct he stated that there are a minimum of three parent teacher conferences throughout the year. He opined that the goals are appropriate for .

MS. at the and she worked with every day in the classroom and the community both individually and in a group. She communicates with his teachers on a daily basis as well as his providers every once to two weeks. They have a collaborative form of teaching so either she would be teaching or as the other teacher would be teaching she would . It was a double period class, five days a week. In the classroom they all use similar and concepts in additional to his other set classes. She was consistently there for him or to advise the other teacher on the best way to communicate with . On Mondays and Fridays she taught a full class session that she would lead. They worked specifically on and with the full class of students. During the rest of the week there were either students and her with or individually. His primary special education needs are in , his skills, his skills and skills. In the classroom they consistently use and stated in way that he can understand. The classroom has and they go into the community to teach specific concepts.

They do some basic training in the community to build independence in and streets. They went with into the and and .

's are in the and all of the students in his classes are in about the same level. They focused on his skills teaching him to and choosing an appropriate topic for his classroom. Then they would go to an gallery where he could use those skills more independently. He does not require that much assistance when she works with him in the small group. He is learning many skills that would not be supported in a one, such as increasing him . She is with his . She is in the classroom with him for a double period. are skills that one needs to increase their . In the a skills include and and it is in an . Whatever is done with the it is being taught through skills. She opined that made progress in his ability to generalize skills of building a , , and throughout the year. His ability to do this independently has increased. They determine progress through test. His goals are individualized and definitely made progress and definitely met goals. He has definitely increased his ability to answer . She opined that they are definitely meeting his needs. He is getting consistent use of classes. They have a strong focus on strengthening his skills needs for him to be more . (Tr. 184-198)

On cross examination she stated that the goals are based on research and typical goals that one would attain to in . The goals were not discussed with the parents, however, there is a parent teacher meeting that occurs at the very beginning of the year and if they have questions or concerts the goals can be changed or updated. She spends a double period with each week and each class is about . It is in a classroom setting but they break into small groups and usually once a week they do a community field trip. She worked with in the summer and he had some individual needs and she went with him and worked . She works with him about a . On Mondays and Fridays it is in a classroom setting for it is in a small group setting. When she teaches the whole class it is an important aspect of the curriculum to strength their in a group, utilizing the calendar and answering . She is not a certified special education teacher but within it encompasses special education. She is a certified for special education students. (Tr. 198-204)

MRS. testified that has always had which . He has difficulty expressing himself. started attending in September 2008. She attended a CSE meeting for the 2010-11 school year in March 2010 and it was reconvened on April 19, 2010 and then finalized to add . She did not think that the Department had ever conducted an evaluation on and they always had private evaluations. Transition was not discussed much at the meeting. She received a placement letter dated June 8th, 2010 and set up an appointment to visit the school. She met with the and discussed the schools approach to and aid. She had a quick tour of the classroom.. She was told that the emphasis would be on the component of 's education. She was not told which class would have been in. She described her greatest concern is that requires getting a functional education. She explained that he needs emphasis on to prepare him . She was concerned in the setting at the recommended placement he would not receive this and the emphasis would be on the vocational component. She did not think it was an appropriate placement.

With respect to the was in during the 10-11 school year. They have progress reports with the a year and they go over his . They also have through email and she is able to set up an appointment with them to meet in person. She described them as very . She opined that his year has been one of the better years for as reflected in his progress reports. His . He speaks up more for himself and can express his needs a bit better. His and he has more self confidence.

She signed a contract with to pay the full tuition but has not yet paid it. She made a $1000 deposit on June 22, 2010, to ensure that there was a spot available in the school. The contract does not obligate them to send to the school. She would have lost the deposit had the Department recommended an appropriate. attended their six week program in the summer. (Tr. 204-221)

On cross-examination she stated that a majority of the two CSE meetings were about the development of goals. She acknowledged that his current level of was discussed and the teachers had opportunity to give their input. (Tr. 221-229)

FINDINGS OF FACT AND DECISION

The legal standard applicable to a request of reimbursement for educational services is well established. Reimbursement is granted if (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim (School committee of Burlington v. Department of Massachusetts, 471 U.S. 359 [1985])

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 special 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.

The IDEA provides that the FAPE the District is required to offer be in the least restrictive environment. 2 U.S.C. §1412[a][5][A]; 34 C.F.R. §§300.114[a][2][i], 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 32. A least restrictive environment is “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” Carlisle Area Sch. v. Scott P.,62F.3d 520,535 (3d Cir. 1995)

As per Education Law § 4404(1), school districts have the burden of proof to show that they offered a student with a disability a FAPE. See also, Chapter 583 of the Laws of New York 2007. 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 special education services. (Application of a Child with a Disability, Appeal 13No. 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 special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

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).

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 provision 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.

With respect to prong one, in this case the CSE held a review on April 19, 2010. The members of the team consisted of , the DOE special education teacher and District (Exhibit 1-representative, the DOE , the DOE parent member, Dr. and Ms. r from the School and 's parent. (Exhibit 1) Counsel for the parents argue in the due process complaint that the team was not duly constituted because a general education teacher did not participate in the meeting. It is undisputed that a general education setting was never considered for and there are no allegations that a general education should have been considered. I find that a general education teacher was not required to be present at the IEP meeting and I find that the meeting was duly constituted.

At the IEP meeting, the team reviewed and discussed a progress report submitted by the and a classroom observation. In addition the IEP team relied on standardized test scores for in determining his present levels of performance. As noted by Counsel for the Department, there was no disagreement about 's levels of functioning. The parent herself acknowledged that 's current level of academic performance was discussed and the teachers had opportunity to give their input. I find that the team was prepared and had sufficient knowledge about 's needs and deficits in order to develop an IEP.

The team identified a series of educational goals and related service goals for the student. As noted by 's mother, a majority of the two CSE meetings were about the development of goals. The goals address and contain multiple short-term objectives. Counsel for the parents argue that they are not specific enough and there are blanks beside the methods of measurement therefore invalidating the IEP. There was testimony that the progress measured and monitored through class activities and teacher/provider observations. As with 's functioning level, these goals were created collaboratively by the team based upon the input of the as well as with 's mother. The goals were developed from the progress reports. There was testimony from Dr. how the progress report goals are developed and individually tailored to the students at . The team recommended related services of individual therapy and . They added at the request of 's mother and the . The related services also had corresponding goals contained in the IEP. There was no objection to any of the goals from the parent at the meeting. I find that the goals that were developed were appropriate, and measurable.

Counsel for the parents argue that there is no valid transition plan. There was testimony from Ms. who would have been 's teacher regarding how she would address his needs and implement the plan. The school has a , a Assistant Principal and Job Coach. The transition plan was developed at the IEP meeting with input from the and his parent. Certainly some of the academic goals deal with developing money skills in order to integrate into the community. I find that the transition plan was appropriate.

Counsel for the parent argue that the IEP is invalid because there is a lack of promotional criteria. Ms explained why this was not appropriate at this stage in 's schooling. I find that there was a reason for the lack of promotion criteria and do not find that t resulted in the loss of an educational opportunity for .

In summary I do not find that any slight omissions or oversights resulted in a denial of a FAPE for . The parent certainly had every opportunity to give her input and there were no errors that rise to the level of denying educational benefit to . The parent did not disagree with the IEP at the meeting and was directly involved in creating the goals. I find that the IEP was reasonably calculated to enable to receive educational benefits. I find that it was procedurally valid.

With respect to the recommended placement there was extensive testimony from Ms. who stated “this IEP is my class” when asked if would fit into her class. She functionally groups the students in small groups for reading and math. There are three small groups based on the student's individual needs. would have received instructional math and reading in a classroom environment. He would have received small group instruction. The program had components. Ms. gave detailed testimony about how she would be able to implement his various goals. 's mother indicated that her main concern was the emphasis on the aspect of the program. There was testimony from parent's witness that a full time program might cause regression. There was testimony from the school that this program only took place during the middle or towards the end of the school year. This would only take place three times a week in the morning. I find that this is certainly not a full time program and addresses issues to help prepare for the future. I find this aspect of the program is appropriate.

There was testimony from one of the parent's witness who expressed concern that would not receive the individual attention he required in the proposed class setting. I find that the evidence did establish that would receive individual attention, he would receive , and I find it was tailored to meet his individual needs.

I agree with Counsel for the Department that the parent seeks to raise issues that were not in the due process request. Consideration of things not raised in an impartial hearing request nullifies that portion of the decision. Application of a Child With a Disability, Appeal No.07-072. Those issues will not be addressed.

Counsel in the due process complaint maintain that would not be appropriately grouped with a suitable and functional issues. There was testimony that the students in the proposed class receive similar related services. The students were performing on a level ranging from in reading and grade in math. The students are functionally grouped in small groups for reading and math.

In summary I find that the IEP developed for for the 2010-11 school year was both procedurally and substantively valid. I find that the goals and functional levels were given due consideration and I find that the recommended program and placement was reasonably calculated for to receive educational benefits. I find that the program and placement were appropriate and the Department has met their burden under prong one.

Although it is not necessary for me to address the other prongs in this instance because the District has satisfied their burden, I will briefly discuss them in order to have a complete record.

With respect to prong two the parents must show that the educational program met 's special educational needs supra at . v. Board of Education, 231 F.3d 96, 104- nd 105 (2 Cir 2000). The private school need not employ certified special 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 was 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).

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 special education services in the LRE”).

issues. The staff to student ratio is about . They have a program called designed for students whose are in need of . The largest class consists with . They have all the related services that requires.

Counsel for the Department argues that Dr , is not one of 's providers or instructors and did not have any information regarding how the curriculum was individualized to meet his needs. I disagree with that assessment. He testified as to how the addressed 's needs. He described and , and . He explained that provides very intense small group direct instruction. receives academic instruction with the support of his or . He explained how critical it is for to have a small group because of the amount of that he requires. He receives all of his related services and is with a group of students who are similar in terms of his needs. He was able to describe in detail 's schedule. Although he did not provide direct instruction for he does have contact with him on a and was familiar enough with him to testify as to 's progress. He testified that made progress in his , he has more words, and he is able to generalize and put to use his skills. He testified that has made progress in his as well.

There was testimony from , the who works with every day both on an individual and group basis. She was very specific with respect to how they address his individual needs. His skills. He is in the in terms of his skills. She described that they use and in a similar way so he can understand and they teach him in conjunction with pictorial prompts. She shares a classroom with his and social studies teacher so that she is n to the classroom and co-teaching. She described how benefits from this form of teaching. She also focuses on skills. She developed goals for and provided a progress report showing the progress he made over the 2010-11 school year.

With respect to progress not only did Dr. describe progress but Ms. testified that he can now make purchase with much less prompting, he is better able to answer “ , he is .

's mother reiterated that his biggest issue in terms of learning is his impairment. She described 2010-11 school year as one of his better year. She testified that he has increased his and his has improved, he is reading more independently and he is more confident.

I find that testimony from Dr. and 's provider is sufficient to establish that the unilateral placement was reasonably calculated to enable him to make progress. In addition there is undisputed testimony that he in fact did make progress during the 201011 school year. I find that the parent met their burden under Prong two.

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. Mrs. C v. Voluntown Bd. Of Education, 226 F.3d 60, 68 (2nd Cir. 2000)l See Carter 510 U.S. 16 “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:

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 the parent submitted a deposit to ensure a seat for and testified that she would be willing to lose the deposit had been offered an appropriate placement from the District. She testified that the contract was not signed until right before the school year started. I do not find that this would result in any type of reduction in award. The parent testified that she went to visit the recommended placement sometime before the end of June. Counsel for the Department points out that the parent through her attorney filed a notice to unilaterally place at prior to this visit. The parent did raise issues with respect to the IEP and the program itself. Although I believe the parent had a preference for a private school, as counsel for her points out, she did attend and participate in the meetings and did visit the placement.

There was no contract submitted into evidence. I agree with counsel for the Department that the parent was uncertain about the contents of the contract including when she signed it, or her exact obligation but I do not conclude that there was no valid contract obligating her to pay the tuition. The Vice President of Finance and Administration submitted proof of payment on behalf of the parents indicating a total obligation of $48,675. (Exhibit I) There had been payments of $13,175 made and an outstanding balance of $35,000.00. I find that this is enough evidence of the obligation and any award would be contingent upon the production of the actual contract.

I find that there is nothing in the equities that would bar the parent from relief.

In summary I find that the District met their burden under prong one and the request for tuition reimbursement is denied. Amended Decision Dated: September 16, 2011 Original Decision Rendered: September 15, 2011

_______________________________

SHARYN FINKELSTEIN ESQ.

Impartial Hearing Officer

SF:dl

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 18, 2011

PARENT

A Hearing Request, 2/15/11, 6 pages B Notice of Placement, 6/15/10, 3 page D Progress Report, 2/10/11, 16 pages

DEPARTMENT OF EDUCATION

2 Final Notice of Recommendation, 6/8/10, 1 page 3 CSE Minutes, 4/19/10, 2 pages 4 Classroom Observation, 12/1/09, 1 page 5 Progress Report, 11/09, 21 pages

JOINT EVIDENCE

*1I IEP, 4/19/10, 14 pages

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 30, 2011

PARENT

E Progress Report, 12/20/2010, 17 pages F Class Schedule,^[1] page G Program Description, 5 pages H , 2010-11, 4 pages I Proof Of Payment, 5/23/11, 2 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 5, 2011

None

EVIDENCE PUT IN RECORD POST HEARING

DEPARTMENT OF EDUCATION

6 Closing Brief, 9/1/2011, 16 pages

PARENT

J Closing Brief, 9/1/201111, 18 pages

Footnotes

[1] Parent C and District same document put in as Joint I