New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 12, 2011

November 3, 2011

Actual Record Closed Date: November 12, 2011

Hearing Officer: Barbara Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 12, 2011

Attorney — Student

Father — Student

Mother — Student

Administrator of Special Ed — DOE

Special Ed Teacher — DOE

Psychologist — DOE

General Ed Teacher — DOE

Special Ed Liaison (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2011

Attorney — Student

Mother — Student

Clinical Coordinator (Via Telephone) — Student

Teacher (Via Telephone) — Student

Curriculum Coordinator/Reading Teacher (Via Telephone) — Student

Clinical (Via Telephone) — Student

Administrator of Special Ed — DOE

— DOE

This is New York City case #134312. On October 12, 2011 and November 3, 2011, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of

O. at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , administrator of special education for CFN , represented the New York City Department of Education, and , Esq., of the Legal Aid Society represented the parents. A list of witnesses who testified and documents received into evidence is attached to this final decision.

ISSUE

The sole issue before me is whether the parents are entitled to an order to have the New York City Department of Education “Central Based Support Team” (CBST) place . at the School, a non-public day school in which the parents have already placed her.

THE PARENT’S POSITION

The parents are not seeking reimbursement for tuition already paid to the School pursuant to Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); nor prospective direct payment to the private school pursuant to Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). Instead, they request that the Impartial Hearing Officer order the “Committee on Special Education” (CSE) to refer to the “Central Based Support Team” (CBST) to place School. (Ex. 1 at 4; Tr. 10) The parents suggest a Carter/Burlington analysis in their opening and closing statements in this impartial hearing:

“And finally: the remedy itself. In my opinion, we are looking at this as a

Carter/Connors analysis. However, the remedy that we're requesting is not for direct payment and reimbursement of what the parent has already put out. What we're asking for, because this is a state-approved school, is that the CSE be ordered to reconvene to write an IEP that defers to the central based support team for placement at the School. That's the remedy that we're seeking.” (Tr. 389-90)

According to the reasoning of Carter, the parents believe that the New York City Department of Education failed to offer a “free and appropriate public education” (FAPE) to . for the 2011 - 2012 school year. They contend that their placement of at the School constitutes an appropriate placement for her. They believe that equity favors their request for the requested order.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education contends that it did offer FAPE to . for the 2011 2012 school year. The Department of Education suggests that the general education placement is the “least restrictive environment” (LRE) for so that the School is an inappropriate placement for as it is too restrictive for her. (Tr. 374) The Department of Education expressed no clear position on equity.

FINDINGS OF FACT

. is an old grade student who has a . Her Mother testified that she was diagnosed with “ ) at the in May 2010 although the evaluation does not establish that diagnosis. (Ex. E; Tr. 197) The diagnosis is established in an unsigned letter from Dr. from Center. (Ex. 6) See also Exhibit 12 Profile. takes . (Tr. 197) Both ‟s and her impact her academic performance. (Ex. A; Tr. 200)

. had an “Individualized Education Program” (IEP) with as early as . (Tr. 187-8) In grade, , but she was as “ ” in . (Tr. 189)

has attended University, and at the College summer and Saturday programs since she was in grade. (Tr. 189-90) She has also participated in extended day programs at school since grade. (Tr. 192) In grade, participated in a program that the school discontinued for the following school year. (Tr. 193)

During the 2010 – 2011 school year, . attended grade at in Queens where her general education classroom teacher was Ms. . Ms. often “worked ” with as “she needed that.” (Tr. 107, 121-2) Ms. testified:

“She ( had a lot of--her , she could learn a whole lot, but that I had to kind of narrow my instruction and differentiate my instruction and take everything that I used for her, 'cause I selectively did teach to her with differentiating my whole group instruction, so she was always taken care of. . .

And I used it not only in conferencing when I was in front of a classroom, when I changed each reading or writing and math to a setting, was beside me. And I felt that that was of need. So I did very selectively because she was more than capable. And if I didn't do that, I--she might have, she might have been lost. That's honest.” (Tr. 103-4) I gave substantial weight to the testimony of Ms. as she worked closely with and gave credible testimony even when it contradicted the Department of Education‟s position. For example, Ms , the SETSS teacher, testified that she spoke with Ms. almost every morning while Ms. contradicted her. (Tr. 71, 147-8) Furthermore, ‟s Mother also had daily contact with Ms. and ‟s Father referred to her as a “jewel.” (Tr. 198, 261) All of these factors made Ms. s testimony more credible.

Ms. needed to remind of what she taught during the day and which books to take home every day. (Tr. 107) had small group instruction in the “ three times per day for reading, writing, and math. (Tr. 113-4) She had with than the other students in her class. (Tr. 121) When there was large group discussion, sat by her teacher. (Tr. 114-5) needed more than her peers, even though there were three other students who also needed individual attention. (Tr. 119 123-4)

Math is a clear area of strength for . Her grade teacher testified: “Her math ability would be-- class. So math, it was . (Tr. 106) I note that she in as her math fluency was in the in the percentile on a conducted by the Center in 2011. (Tr. 130, 106, 56; Ex. E at 5) Her Father believes that is not ready for math. (Tr. 259)

is an area of . “ is . She ideas .” (Ex. A) Her made her quiet at times and she appeared . (Tr. 105, 127-8)

for . Ms. testified that writing was “ ” and of most concern to her when first entered grade. needed to have and then put together. (Tr. 106-7) ‟s current teacher and other staff at the confirmed ‟s . (Tr. 314, 318)

Reading is an area of for . She has , word identification, and fluency. (Tr. 134) The Department of Education uses the assessment levels. (Tr. 258) Ms. believes that ‟s reading was on the grade, but that she was still level at the end of grade. (Tr. 106,

134) The SETTS teacher, Ms. reported that could read on the level at the end of fifth grade. (Tr. 61) ‟s Father is a and teacher for the New York City Department of Education, and he has taught in a class. (Tr. 255-6) ‟s father believes that :

“ most in , but her skills are what stand in the way of her comprehension. I have to say I've done reading levels with in the past and I have to disagree with the reading levels that they keep throwing up here as pertaining to her.” (Tr. 258)

The 2011 Center Assessment bears out the Father‟s belief that reads on a lower level than estimated by the Department of Education teachers. Her scores on the WIATIII establish that her oral reading accuracy is in the with a grade equivalent of , and her oral reading rate is in the with a grade equivalent of . (Ex. E at 5) is still below . (Tr. 297)

But did make academic progress in the general education grade class with substantial support:

“MS. : Do you believe that without a and , would have been able to make the progress that she made in grade?

MS. ): I don't, I don't think so. I don't think so.” (Tr. 133)

Despite making academic progress in grade, was one of or seven students in a class of twenty-six to receive a “ ” letter. (Ex. B; Tr. 148-9)

is a child, and she is by teachers and peers as she is “connected” to them. (Ex. A; Tr. 141-3) likes to . (Tr. 157) She has non-disabled friends outside of school. (Tr.

265) She in specials, such as chorus, in school with her non-disabled peers. (Tr. 156-

7) She developing students even on oral presentations. (Tr. 128) ‟s classroom teacher sincerely referred to herself as “lucky me” for having in her class. (Tr. 98, 138-9) ‟s SETTS teacher, Ms. , spontaneously stated that “ is a wonderful, delightful child and it was a pleasure to be her teacher all these years.” (Tr. 65) She believes that the “least restrictive environment” for would be a large group of age appropriate peers. (Tr. 91)

‟s Mother testified to , but I find that the evidence in this impartial hearing does not establish that was in school. (Tr. 202-5, 244) To the contrary, all other testimony and documentary evidence establishes that was by her peers in school.

‟s Mother requested an “ ) evaluation that was conducted at the Department of on April 29, 2011. (Ex. 8 at 1; Tr. 24-5) The evaluation recommended a laptop computer for to support her . (Ex. 8 at 3) The CSE followed the recommendation for a laptop computer for . (Ex. 2, Ex. 3)

‟s evaluation that was conducted by the Health System dated February 11, 2011. Ex. 10) ‟s scores on the CELF-4 were within the norms set for her age. I note that her Concepts (Following Directions) sub-test established an age equivalence of that is her . (Ex. 10 at 2) This in following directions is also established in the testimony of her teachers and evaluators. (Tr. 316-7, 293, 28, 48, 153; Ex. 12) Ms. thought that maybe should have to address her issue, but she realized that the February 11, 2011 did not recommend the therapy. (Tr. 129, 23-4) A Center evaluation did not establish an “ disorder” (APD) but it did report a “ ” processing weakness. (Ex. 11 at 3)

Ms. conducted a evaluation on . for the Department of Education in the spring of 2011. (Ex. 4) She used the Scales, Fifth Edition and she found that ‟s - , , , and a was in the . (Ex. 4 at 3-4) The parents obtained another cognitive assessment conducted by Dr. in September 2011. (Ex. E) Dr. and he found that ‟s verbal comprehension was , , with a percentile. Dr. gave possible explanations for the discrepancy between the Department of Education‟s findings that ‟s as in the was in the 18th percentile. The Department of Education used the that does not assess the subject‟s processing speed and ‟s slow processing speed impacts her scores, and it is not as sensitive as the to the . (Tr. 353-4) Dr. opined that needs a small student to teacher ratio with a slower pace than a general education class. (Tr. 357)

The parents pursued what is purported to be a evaluation from the Department of Education. There was testimony that “Dr. ” conducted the evaluation, but this is this April 9, 2011 document signed by a masters level certified . (Ex. 5; Tr. 211-2) The document does not refer to “Dr. ” or any other as being involved in the evaluation at all. The only new instrument administered to O. as part of this evaluation was the Second Edition. The rest of this document reports an interview, observation, and review of records. (Ex. 5 at 6) I find this document to be unreliable, and I have given it little weight.

The Department of Education “Committee on Special Education” (CSE) convened on June 9, 2011 to develop an IEP for the 2011 – 2012 school year. (Ex. 2; Tr. 214) The Mother received the evaluation by Ms. three weeks before the meeting, but she did not receive any of the other reports prior to the meeting. (Tr. 213-4) The CSE had classified ‟s disability as “ ” ( ). The June 9, 2011 CSE changed ‟s disability classification from “ ” ( ) to “ ”( ) based upon her diagnosis of . (Ex. 2; Tr. 25-6, 215) ‟s Father testified that neither her nor her is her primary .” (Tr. 263) Both Ms. and the Mother confirm that Ms. explained the classification change at the CSE meeting. (Tr. 26, 215) The Mother testified that she felt that she had no choice about changing the classification. (Tr. 215) I note that classification is not an issue raised in this impartial hearing. (Ex. 1)

The Mother testified that the CSE did not discuss the goals for at the CSE meeting. (Tr. 216) Ms. testified that she attended the CSE meeting, the goals for were discussed at the meeting, and ‟s Mother and Grandmother participated in the development of the goals by contributing ideas. (Tr. 111-2) I find that the Mother and Grandmother participated in the development of the IEP goals. I find that Ms. s detailed testimony on this point is credible while the Mother‟s blanket statement testimony on this point is not credible.

At the June 9, 2011 CSE meeting, Ms. believed that needed two periods of SETSS, or resource room, per day. (Tr. 99-100)

“HEARING OFFICER EBENSTEIN: And I

believe you said that you originally suggested two periods of SET(TS) per day.

MS. : Yeah.

HEARING OFFICER EBENSTEIN: Why?

MS. : I'll tell you why. I

really felt would always need one SET, one

SETTS for academic. If she was struggling in 'cause she didn't either or if it was too much for her, she could bring that to the table, bring that to the resource room. If it was social studies she was studying for. So I thought one period would have been for academic problems that she would have.

The second one, I wanted it because I

felt her skills. And the computer was a because it was just being introduced at the end of the year, and I wanted her to with that computer because her with mother's help at home, all her came in and they were done well as it. So she had just gotten the assisted technology at the end of the year. So I wanted to make sure, either over the summer or in the one resource room period, that they would work with her to make sure that she developed that so that she could go into her classroom, use the computer, bring it home, use it at home to complete her assignments and there could be some sort.

So I though(t) the extra resource room

period would be for that but then I also said, well, there would be--I'd still want it because if there were two subjects, because of her disabilities, then maybe I would have to--one thing--say , because we found reading was an area, now we have writing, I just-

-it's who I felt healthy with. I wanted to make sure she was covered. One was not okay in my book”.

(Tr. 139-40)

The CSE recommended one period of daily SETSS for for the 2011 – 2012 school year.

As a Department of Education teacher, ‟s Father has taught in a collaborative coteaching class with special education students. (Tr. 255-6) The Mother did not know that she could request two sets of books from the CSE, but the Father did know it. (Tr. 243, 274) The Mother did not know that she could request the continuation of instruction in the for . (Tr. 243) But the Father was familiar with it. (Tr. 276)

The June 9, 2011, the CSE developed an IEP that placed O. in an ICT class, with one period of resource room per day, therapy, and a laptop computer. (Ex. 2; Tr. 21) The CSE considered this placement to be the “least restrictive environment” (LRE) for . (Tr. 22) The Mother never received a “Final Notice of Recommendation” (FNR) for the proposed placement and there is none in the evidence in this impartial hearing. The assignment letter dated July 6, 2011 does not constitute a FNR. (Ex. 19)

The parents wrote a letter to the Department of Education dated June 23, 2011 in which they rejected placement at the School and the June 9, 2011 IEP as she did not believe that it would be sufficient to meet ‟s educational needs. (Ex. 17)

On June 28, 2011, the Mother came to the ‟s school for a meeting she thought would be with Mr. the school principal, but it turned out to be a second CSE meeting without any prior notice to her. (Tr. 225) At the June 28, 2011 CSE meeting, the Mother presented the contract to the CSE, and requested a referral to the CBST for placement at the School. The CSE rejected placement at the as they thought that students there had . (Tr. 227) The CSE also discussed, but rejected, a self-contained special education class of twelve students for the same reason. (Id.)

‟s Mother visited the School two or three times. (Tr. 219-20, 242, 249) The parents rejected the class, and they placed at the School. The Mother testified that she signed the School contract on June 27, 2011 although there is no signed contract in evidence at this impartial hearing. Apparently, the parents made only a small token payment to the School.

The School is an approved private special education day school for children with , deficits, , and that are of a “ .” (Tr. 286-7) The school has one hundred ten to one hundred fifteen students in grades three through eight in classes that have twelve students with one teacher and one assistant teacher. (Tr. 286-7) Teachers at the School are certified in special education and they all have masters degrees. (Tr. 289)

Although the School accepts students with , , other , and , the preponderance of the students there have disabilities that are classified as , , and . (Tr. 287) Students at the generally need direction, repetition, constant modeling, help with their organizational skills, assistance, and modified materials. (Tr. 314)

The School uses a to learning across the curriculum. (Tr. 287-8, 382-3) Students whose reading is more than a year or a year and a half level have individual reading sessions with a reading specialist, who then consults with the classroom teacher to further modify instruction in the classroom. (Tr. 288) The School does not provide its students with any opportunity to interact with peers. (Tr. 303-4, 307) It is a twelve month school. (Tr. 329) Hearing Officer‟s Findings of Fact and Decision ^[10]

The School had a reading teacher conduct an assessment of as part of its admissions process and it establishes that is approximately grade level in reading between the grade level. (Ex. H; Tr. 296-7, 336-7) ‟s teacher at the School noted that she has some significant difficulties following directions in the classroom and participating in discussions so the School conducted an screening using the CELF. (Ex. I; Tr. 298) This screening revealed areas of weakness in sentence structure and solving semantic word problems. (Ex. I) It suggests further assessment.

‟s class at the has ten students with a teacher and one teaching assistant. (Tr. 254, 294) Her teacher, Ms. , uses a , a , and s. (Tr. 311-2) In the beginning of this school year, had with her classmates, but she is doing better now. (Tr. 316, 326) She also had a and there were times that she so she could not do it. (Tr. 317) ‟s teacher is using checklists with her and makes sure that she before she leaves school. (Tr. 317) Now is completing her homework. (Tr. 321) receives two individual reading instruction periods each week using , an reading program, although her reading teacher is not certified in . (Tr. 343)

CONCLUSIONS OF LAW

The parents have made a request that the impartial hearing officer order the New York City Department of Education CSE to reconvene and refer to the Central Based Support Team to place . in the approved private school in which the parents have already placed her. They base their request on the reasoning of Carter/Burlington. (Tr.

the Department of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent‟s claim.

FIRST CRITERION

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. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd. Of Educe. v Rowley, 458 U.S. 178, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). 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 (citations omitted). 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); see Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the “least restrictive environment” (LRE). 20 U.S.C. §1412[a][5][A]; 34 C.F.R. §§300.114[a][2][i], 34 C.F.R. §300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009), and P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

An appropriate educational program begins 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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027 at 6 (S.D.N.Y. 2008), 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 special education services. 34 C.F.R. §300.320[a][4]; 8 NYCRR §200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; and Application of a Child with a Disability, Appeal No.

02-014.

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate. Under the IDEA, if a procedural violation is alleged, an impartial hearing 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. 20 USC §1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii). This principle is well established in case law. See M.S. ex rel. S.S. v. Board of Educ. of the City Sch. Dist. of the City of Yonkers, 33 IDELR 183 (2d Cir. 2000); A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003), Matrejek v. Brewster Central School District, 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, (2d Cir. Aug.19, 2008).

In the instant matter, the parents allege a number of substantive and procedural violations of the IDEA. They contend that the resulting proposed IEP will not meet ‟s educational needs. (Ex. 1 at 2) An appropriate IEP is based on evaluations that accurately identify the student's needs.

“An 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 (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. §300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP

2007]) . . . and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, . . . (34 C.F.R. § 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]. . . “

Application of a Child with a Disability, Appeal No. 11-041.

In the instant case, the Department of Education conducted a number of evaluations, but they did not generate accurate information about the level of ‟s needs. The 2011 Center Assessment and the School assessment establish that ‟s reading skills are at least two years below the level identified by the Department of Education testing. Her actual is in the h percentile rather than the h percentile when one utilizes an assessment that factors in her slow processing speed. The is dated September 21, 2011, which is three months after the two June 2011 CSE meetings, so the CSE did not have accurate evaluation information on which to base the June 2011 IEP‟s. Furthermore, I find that the document purported to be a Department of Education evaluation did not use a variety of assessments and was not conducted by any professional other than a bilingual school psychologist.

I find that the Department of Education conducted evaluations that over-estimated .‟s full scale IQ, under-estimated how large a deficit she has in reading, and failed to appropriately identify ‟s educational needs. The resulting June 2010 IEP‟s do not address those more substantial needs. The proposed IEP does not provide sufficient placement or support services to O. Even Ms. opined that needed more services and support to be in a general education class the 2011 – 2012 school year.

The parents also allege procedural violations of the IDEA. The parents never received a “Final Notice of Recommendation” (FNR). Despite this lack of formal notice, the Mother chose and visited the there two or three times. I find that the failure of the Department of Education to provide a FNR is a procedural violation that did not deny educational opportunity or benefit and it did not impact the parents‟ participation. I find that it is a procedural error that does not rise to the level of a substantive denial of FAPE.

The parents allege that there were other procedural errors, including but not limited to, failure to list grade level achievement in the IEP goals, failure to provide prior written notice, change of classification, and others. I find that all of these allegations of procedural violations to be without merit even when considered as a whole as they have no substantive impact.

I find that the Department of Education failed to offer a FAPE to O. for the 2011 – 2012 school year due to substantive reasons in that the proposed IEP does not adequately identify ‟s educational needs and it does not provide her with an appropriate placement nor sufficient supports to make educational progress.

SECOND CRITERION

With respect to the second criterion for an award of tuition reimbursement, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85. "The standards for determining whether a private school placement is 'appropriate' under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement." A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010).

In the instant case, the parents placed . at the which is an approved special education school for children who have disabilities and needs similar to hers. is in a small class with a certified special education teacher and a teaching assistant. The School uses a approach to learning across the curriculum, and receives two additional individual reading instruction periods each week. The School addresses ‟s educational needs. But the School does not provide its students with any opportunity to interact with non-disabled peers.

The IDEA mandates that school districts place students with disabilities in the “least restrictive environment” (LRE):

“To the maximum extent appropriate, children with disabilities, . . . are educate with children who are not disabled and special classes, separate schools or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that the education in regular classes with the use of supplementary aids and services cannot be achieve satisfactorily.” 20 USC §1412(a)(5)(A)

The LRE is determined on a case-by-case basis so that the term "LRE" is not synonymous with the "general education classroom." The LRE mandate must be balanced against the requirement that students receive an appropriate education. Briggs v.

Bd of Ed. of the State of Connecticut, 882 F.2d 688 [2d Cir. 1989).

While parents are not held to as strict a standard of placement in the LRE as school districts, it is well-established that the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement. M.S. v. Board of Education of the City School District of the City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000), Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). See also D.D-S. Individually and as Parent and Next Friend to B.D-S. v. Southold Union Free School District, 57 IDELR 164 (S.D.N.Y., 2011). Even when the school district conceded that it had filed to offer a student FAPE, the Court has denied reimbursement for a residential school for a student with learning disabilities due to LRE. S.H. ex rel. J.G. v. New York City Dep't of Educ. 56 IDELR 68 (S.D.N.Y. 2011).

The Second Circuit adopted the analysis used by the Third Circuit Court of Appeals in Oberti to determine the LRE. P. v. Newington Board of Education, 546 F.3d 111, 51 IDELR 2 (2d Cir., 2008).1

“ In sum, in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. . .

Although we adopt the Oberti approach, we also note that this list of factors is not exhaustive; courts facing these cases must engage in an individualized and fact-specific inquiry into the nature of the student's condition and the school's particular efforts to accommodate it, ever mindful of the IDEA‟s purpose of educating children with disabilities, "'to the maximum extent appropriate,' together with their non-disabled peers."

Walczak, 142 F.3d at 122; see also

Oberti, 995 F.2d at 1217 n.25 . . .“

The U.S. District Court for the Southern District of New York now applies the Oberti v. Clementon Sch. Dist., 995 F.2d 1204,1215 (3d Cir. 1993)

Second Circuit‟s Newington test of LRE to the second prong of parental cases for reimbursement of unilateral placements.

“. . . because mainstreaming may be a factor in deciding the appropriateness of a private placement, and because the test is designed to help courts decide whether a placement is the least restrictive environment, the above factors may be useful in determining the overall appropriateness of the parental placement.”

Weaver, ex. rel. J.W. v. Millbrook Central School District, 57 IDELR 126

(S.D.N.Y., 2011)

The Court applied the two prong Newington test to a case of reimbursement for a kindergarten student with autism to attend a private special education day school. The Court found that the autistic student could not benefit from a less restrictive environment or from opportunities to interact with non-disabled peers when it considered the second prong of the Newtington test. M.H. and E.K., individually and collectively on behalf of P.H. v. New York City Department of Education, 712 F. Supp. 2d 125, 54 IDELR 221 (S.D.N.Y., 2010).

In the matter before me, is a child with a and whose parents request a referral to a private special education day school where has no opportunity to be with non-disabled peers during the entire school day. I will apply the Newtington test for LRE.

Prong I: The first question is whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services. There are several factors to review:

(1) Whether the school district has made reasonable efforts to accommodate the child in a regular school and classroom.

The Department of Education made reasonable efforts to accommodate in a regular classroom during fifth grade. Although made progress in this class, she is still approximately three years behind grade level in reading. She needs more individual direct instruction and support than the Department of Education offered for her in the proposed 2011 – 2012 IEP.

(2) The educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education school.

A general education school could provide with two periods of SETTS per day as suggested by Ms. , and/or with a special education class for primary instruction in reading and writing, and/or with individual direct reading instruction on a regular weekly basis. But these options, although possible, were not available to for the 2011 – 2012 school year because the CSE did not recommend them. The private special education school provides a small special education class and a multi-sensory approach to learning across the curriculum, plus two periods of direct individual reading instruction per week. These educational benefits were not available to in the regular education class.

(3) There are no negative effects from the inclusion of the in a general education class on the education of the other students.

The first question is whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services. I find that . cannot be educated satisfactorily in the regular grade class as offered by the Department of Education. After considering these factors, I find that the parents were justified in placing in a segregated special education class. I must consider the second prong of the Newington test.

Prong 2: Whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. And this is where the placement of . at the School fails the Newington test. Even if does need a class for reading and writing or for all academic classes, she does not need it for specials, physical education, lunch, or for her full school day. Furthermore, there is no evidence in the record that the parents provide any regular program or activities with non-disabled peers to supplement the School experience other than the Father‟s blanket statement:

“No, because she's not in there 24 hours a day, seven days a week. We just went camping and one of her friends came camping with us. Her friend is general education. They had a great time.” (Tr. 265)

The Second Circuit also noted that the list of Newington factors is not exhaustive, and that a court must engage in an individualized and fact-specific inquiry into the nature of the student's condition and the school's particular efforts to accommodate it, ever mindful of the IDEA's purpose of educating children with disabilities, "'to the maximum extent appropriate,' together with their non-disabled peers." Despite ‟s academic needs, all documentary evidence, and the testimony of all witnesses who know her, establish that . has strong , is by her peers, makes friends with non-disabled peers in class, and that she likes to with other children. I find that is capable of benefiting from opportunities to be with non-disabled peers in school, especially during specials and noninstructional periods.

After considering these factors, I find that the parents were not justified in placing in a segregated special education school in which she has no opportunity to interact with non-disabled peers. I find that the School is more restrictive than necessary for . to obtain an appropriate education as it fails the second prong of the Newington test.

Upon the record that is before me, I find that the placement of . at the School is not appropriate under the Act as it does not comply with the LRE mandate even to the lower LRE standard as applied to parents who seek reimbursement for a private placement. Accordingly, I find that the parents have not met their burden on the second criterion to establish that the private program is appropriate for and that it is proper under the Act.

THIRD CRITERION

The third criterion for an award of tuition reimbursement under a Carter/Burlington analysis is whether equitable considerations support the parent's claim. I will consider the equity issues in this matter to complete the record in this case.

The parents cooperated with the Department of Education by attending all CSE meeting and even attended the June 28, 2011 CSE meeting without proper five day notice. The Mother visited the recommended placement more than once although she never received a FNR. I find that equity does favor the parents.

SUMMARY

The Department of Education has not carried its burden on the first criterion as it did not offer . a FAPE for the 2011 – 2012 school year. The parents have not carried their burden on the second criterion as the School is more restrictive than needed and, therefore, does not comply with the LRE for . even for a unilateral placement. Equity does favor the parents.

ORDER

There is no order. Dated: November 16, 2011

________________________

BARBARA EBENSTEIN, ESQ.

Impartial Hearing Officer

BE: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

PARENTS

A Student progress report dated 5/16/11, 1 page B Promotion in Doubt letter dated 1/25/11, 1 page C End of year report card, 2010-2011, 2 pages D report of standardized testing, 2009 to 2011, 10 pages E evaluation, , dated 9/21/11, 9 pages F Letter Summer Reading Program dated 9/21/11, 1 page G Acceptance letter and contract for the School dated 5/23/11, 2 pages H New student assessment for the School, dated 10/3/11, 1 page I screening for the School dated 10/3/11, 1 page

DEPARTMENT OF EDUCATION

1 Parents' request for impartial Hearing dated 8/3/11, 4 pages 2 IEP finalized 6/28/11, 14 pages 3 IEP finalized 6/9/11, 14 pages 4 evaluation Dated 5/24/11, 10 pages 5 report dated 4/9/11, 7 pages 6 letter dated 5/23/11, 1 page 7 therapy progress Report dated 6/6/11, 3 pages 8 evaluation dated 6/16/11, 8 pages 9 evaluation dated 4/29/11, 4 pages 10 dated 2/11/11, 3 pages 11 processing evaluation, Dated 3/28/11, 4 pages 12 profile dated 5/6/11, 1 page 13 Exam history, 1 page, undated 14 history, 1 page, Undated 15 Placement class detail, undated, 2 pages 16 Calendar, 7 pages, undated 17 Parents' letter dated 6/23/11, 1 page 18 Fourth grade progress report, 1 page, undated

19 Assignment Letter dated 7/16/11, 1 page

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Footnotes

[10] The courts and impartial hearing officers have broad discretion to fashion an appropriate remedy. See Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359, 105 S.Ct. 1996, (1985). (“The statute directs the court to „grant such relief as [it] determines is appropriate.‟ The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be „appropriate.‟”) I will consider the proposed remedy and apply a Burlington/Carter analysis to the facts and circumstances of this matter to determine whether the parents are entitled to their proposed relief. According to a Burlington/Carter analysis, the Department of Education may be required to pay for educational services obtained for a student by his or her parents, if the services offered by