New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 127870

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: July 27, 2010

November 3, 2010

January 4, 2011

January 10, 2011

January 25, 2011

February 17, 2011

March 16, 2011

April 7, 2011

Hearing Officer: Michael S. Lazan, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 25, 2011

Student

Student

Student

at School — Student

at School (via telephone) — Student

DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 17, 2011

Student

Parents

, DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 16, 2011

Student

(via telephone) — Student

(via telephone) — Student

Parents

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 7, 2011

Student

Parents

Student

, DOE

By hearing Complaint dated June 28, 2010, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The hearing was convened on a request for to the School for 2010-2011. The matter was extended to May 18, 2011 on joint application because of witness , of and , decision , and . The record close date was May 18, 2011.

TESTIMONY/EVIDENCE

, a school , and students, participates in Committee on Special Education (CSE) reviews, observes students, writes Individualized Education ( ). (26) She prior to the CSE meeting in 2010, and appeared at this CSE meeting for 2009 and 2010. (27) She writes all the to the School. (29)

She him in his classroom during . (30-31) There were students in the class, with to start; this shifted many times during as it normally does at School. (30) was and initially did not engage . (31) Eventually, prompted him into a . (31) was - and to engage; when an challenge was being presented, was likely more engaged than when the time was less structured. (32)

At the review were , who served both as District representative and as education . (33) The mother was there; an who was a ; , an ;a ; and , , by phone. (34)

In addition to the , speaks and so communicated to the parent during the meeting. (34) The reviewed the - reports from the School dated December, 2009; they used the prior year’s ;a classroom was reviewed; they also reviewed his file, which included a . (35)

The meeting lasted about 2 hours. (35)

The classified the child as a student with and recommended a class in a school with a . (35) This is a based for students on the . (36) They provide a good deal of with often times a “ ” to learning. (36) and and in a and and with a were recommended. (36) The student was recommended for of school. (37) This on students with and their , , .

(37) can benefit from a classroom with and . (37)

She and her partner came to the meeting with a draft of certain pages.

(38) Everyone signed in, and then read the draft to the . (38) They then reviewed the draft word for word, line by line, and made changes based on the input of all involved. (38) The generally provides the instructional levels. (38) They review academic management needs. (38) They created the goals at the table, reviewing the goals for the past year. (38) They moved on to the “ section”, where a draft is read out word by word. (39) They then changed it or modified it according to the input from the parent and the . (39) They then went through related and corresponding goals. (39)

There were many modifications made during the meeting. (40)

This was all to the parent. (39)

The parent mentioned the difference between the at school and the at . (42) She also mentioned that they at , whereas they in school. (42) The offered the child an , but the parent indicated that she didn’t want such service. (43)

was able to engage with others, especially to get his wants and needs met.

(44) does not know how to sustain or keep going for an extended period of time. (44)

is engaging in at and does engage with . (44) initiates , but doesn’t know how to sustain or keep going for an extended period of time. (44) has with that sort of back and forth flow of information. (44) They provided for . (44) The indicated, during the meeting, that was not a concern and can be addressed by the education . (45) The also provided the needs. (45) Movement breaks and a were added to the last . (45)

goals have their methods of measurement left blank because they recognize that a is the best person to decide how is measured. (47)

and , goals were taken from the report of the School. (48-49)

His wasn’t able to stay for the entire meeting. (53) She stayed for the . (53) Before she left, they asked her about what she felt was an appropriate recommendation and she indicated that a was appropriate. (53) The parent had no objection to this. (53)

Parent training would be available to the parent. (55) The specifics would be provided to her. (56)

The School so much on and that they do not academics.

(58) The is very and respectful. (58)

The had indicated that didn’t score very high, but this is partly attributable to his only being in the country for a year and a half. (59) Still, his was on grade level at the time, which suggests that was capable academically. (59)

functions best in a . (60) School is not a . 60) They let the student initiate to increase their ability to and . (60)

The parent wanted a goal with respect to . (82) They were seeing more at than were reported by the . (82)

Structure means that the is directing the class or classroom in specific areas. (84)

The student seemed during . (86) Comfort is important for a child.

(86) didn’t seem too responsive to the of the school. (87)

They do not work on at the school. (90) They use a sight word approach to . (90) would benefit from work on decoding. (90-91)

,a , is a certified education who has been working at .

(113) She converses with , with , , . (114) She holds , , . (114, 117)

There is a school who helps with of and . (115)

The school contains students, through Grade . (115-116)

The school is located within the School, which is a education school. (116)

There are related of , , and a . (117) They do not have an . (117) Students receive an ( ) to receive . (118, 156-157) Hopefully the would issue the before started. (156-157) She cannot guarantee that the would be done in time for the start of the school year. (157)

and do push-in with alternate students. (118) In addition to mandates, there is an additional push-in by and therapists. (119)

work on applying classroom to real . (120) are taught. (120-121) The go out into the . (121)

Insofar as involvement, there is a committee, there is , there are parent . (122)

The school has for children who are - to work with therapists on. (122)

Alternate assessment children can learn like any other student, they merely need the correct materials. (124) Some are visual learners, some are auditory, some are tactile.

(124) They need to be with other students who aren’t in education. (124) They try to students into the general . (124-125)

They use ; they use , ( ) for those who need it.

(125) They try to differentiate instruction in the classroom with the . (125-126) There is data collection, wherein they track the goals for the students. (127)

is a way to instruction based on classroom goals. (127) There is instruction based on goals in work stations; then there are lessons. (127) If they need assistance in the work , the or the can assist. (127)

There is , , , , , education. (129) There is a period of where use materials to do , , , . (131) is served at the school, and all the are included. (132) The are usually at the to meet the students when they get off the . (132)

They usually try to in each class. (137) Class would be with Ms. and Ms. for the summer. (137) Ms. class all children classified as . (151)

The school could meet the mandates for and and . (139)

in the class were a mixture of and - , and . (142) For , were and graders, ages and . (143) were , were - . (165) She doesn’t know the of the class. (171)

For the fall the class was to graders. (143, 159) They are ages and . (160) She then indicated that there were and graders in the class.

(162) Three were and one was an emerging and were - . (166) Most are about to grade level. (171)

Ms. summer classroom was set up with a lot of cues. (143)

There are movement breaks throughout the day; the students communicate with each other, especially through play. (145)

She does not know what is. (146)

and are - . (154)

Ms. class did not have or . (164)

They use for the students. (164) If that doesn’t work, they will usually have the to help. (165) They will also call the parents to get ideas. (165)

After the is issued, a letter goes to the parents listing the that provide the that would be provided. (169) The parent would then have to choose which agency they would like their child to attend or work with. (169) The would be provided after the school day. (169) It seems to be a in . (169) It is mostly a ; if they’re coming from an , the is . (170) She cannot say with any degree of certainty that the ( ) would be provided. (173-175) Her does not work with . (176) The only way she would be aware of problems with an is if the parents might complain. (177) She has not received any complaints from parents in the last six months or for the entire 20102011 year. (177, 179) If the parents states that they have having in getting the , there is someone at the District that they can contact. (178)

Ann ,a at at , has a classroom for children with ; they are at different levels on the . (183) There are in the room. (183)

of the is assigned to a particular student. (185) The children are all .

(186) The ages are to . (186) The is set up with , -to- areas, a that they use as a , ,a . (187-193) There is an area that is designed for , another area that is for . (187-193)

She has worked with . (194) There are a lot of trials, usually to . (195) Then they would try to reinforce a . (195)

There are plans for students. (194)

involves children working with a schedule. (196) Some children are on schedules, some are on word schedules, some use which involves objects. (196)

In work stations, children are practicing a ; once they have practiced the , they are sent to the work station for them to do it independently. (196)

She will collect data if the work is stemming from an goal. (196)

They use many that are linked to different s. (197-198)

There are ; a , and . (199)

She will -on- with a child to go over such work as work on decoding. (200)

She is familiar with prompting; she provides repetition throughout the day. (202) They work to increase . (203)

can be addressed through . (204, 211) She will try to understand what is going on with the child, they have a mood meter. (204) She will try to get to the of the . (204)

, which “ ” when a is , are used to work with and . (205)

Some of the students are but most of them lack . (206) She plans lessons with the . (206)

There is dance and movement within the classroom. (210)

She feels would benefit from , with the structured routine and the repetition and the prompting they use and the supports. (212)

can also help him deal with to the new school. (212)

She has children working on the exact goals that are within the . (213) work on , , “wh” , , , , . (214)

She did not teach over the . (215) have a bachelor’s degree. (217)

She does not with the outside . (222)

Children in her class do receive ; they are at and from perhaps through grade. (223-224)

There is a who workshops. (228-229)

She is not certified in . (230)

There is Studies, Art in the classroom. (231)

, at , testified generally about the procedures whereby final notices of recommendation are issued. (252-253) The Final Notices are sent out on the same day that they’re or sometimes the next day. (255-256)

, at the School, indicated that the school is for children with ; the school uses as its . (258-259) is an within the . (260) Working on is a huge part of the . (261) The consists of and as to a child’s needs. (262) are worked with. (262) Every parent is assigned a that does , . (264)

The child has been in the school since April, 2008. (265) presents as a child with in and ; is , but his is often scripted or rote and is very by what interests him. (266) has , can be “under- ” when be - , “over- ” when there is , has coming up with novel ideas, is able to engage in a back and where can “open and close .” (266) has with . (266)

His class has students with . (267) Children are ages to ; is probably in the . (268) is able to read; uses mostly. (268) is able to do on a . (268) has pretty good , is working on , understands coins, can tell time. (268) Developmentally, is also in the of the class. (269) is verbal, as is everyone in the class. (269)

receives , , , , art , and , education. (271) is ; the parents have of this . (272)

has been noted in his to , including his ability to and about his .

(273) will more with his . (273) is working on . (273-274)

His understanding of and numbers is much better. (274)

receives deep pressure to work on needs. (275)

the deposit is . (278)

They use a called to School, where are grouped around a student’s thinking. (286-287, 298-300) There is more traditional through a “ With ” . (287) Art relates to remaining engaged, working on . (287) receives . (290) is hands-on. (295) There is a music with a music . (296)

The is waiting on her certification. (291) The have Bachelor’s degrees.(292)

, a with a Master’s degree who has applied for initial , is . (302-304)

Students arrive in the morning, there will be early such as ,a , . (305) There is a morning meeting with studies, saying good morning. (305) During they read fairy tales and discuss elements of the story, expose the children to sight , work on fluency practice and comprehension. (306) They might act out the story. (306) There will be activity such as doing money activities or time. (306) They try to do activities that relate to real life. (306) There is and movement, there is also “ training,” an . (306-367-368) There is , organized movement, lunch, . (307) She or a will engage in . (307) This involves following his and doing what wants to do. (308)

There is again in the afternoon, more or less the same lesson with fairy tales. (308, 337-338) There is twice a week, handwriting twice a week; they use the Handwriting without Tears . (308) There is and , there is art a few times a week. (308) There is a few times a week.

(309) Related are pull-out. (312) The spends a lot of time in the classroom; despite the schedule, spends time with her daily. (314) She has designed a for . (314) This involves work . (315)

Most instruction is through small ; and studies are the exceptions. (309) , and are taught in smaller groups. (310-311) is on maybe a or grade level for , and . (311312)

In the beginning of the year, would keep to himself. (317)

wouldn’t initiate appropriately. (317) They have seen strides in his ability to communicate with s.

(317) is now frequently asking questions to validate his understanding. (317)

Testing has revealed that is at the primary grade . (319)

Per the , they work on , . (320-322) They tried to help with , throughout the day. (322) When is , now will respond to deep pressure and other techniques; the is for much shorter periods of time. (322)

has also started to write a lot more this year. (323)

The work has helped in general. (323) also has independently found a way to himself by starting to illustrate books. (323) now “makes books” very frequently, and they help with narratives. (324, 335-336) This helps him learn to write. (336-337)

With respect to engaging and relating, will engage better with s. (325-326) The few months are about facilitating relationships between the children. (327) has really developed in the last few months, is now able to ask a a question, engage better with “circles of communication.” (327-329)

does more problem solving. (330)

is adding that can read. (332) She indicated that probably has more than . (332) Then she indicated that probably reads about 200 . (380)

is a big part of his , including answering “wh” questions. (333)

His understanding of time and space has progressed. (339)

They assess him using the “ ” . (381)

is probably at the grade level. (384)

A student with emotional difficulties has acted out on others in the class. (388390)

In , the class is early literacy through maybe or fourth grade level.

(391) For , it ranges from really early skills to probably work on a grade level. (391) is in a with at his . (399)

has the to construct a paragraph; they are working on the paragraph so that it is sequential. (403)

has improved in . (340)

Transitional issues are dealt with by setting limits. (346)

also has dance and game groups on Fridays. (353-356)

is a way to give the child some control in an organized way. (358) There are a total of about 45 minutes devoted to daily. (359)

She uses stories a lot, engages in some direct instruction, does modeling. (374)

has strong memory. (376)

Sight are more appropriate for him than decoding, because the letter sounds don’t really have meaning to him. (377) If you match a whole word to a picture or item, it has more meaning to him. (377)

an at School, works with .

(419) has a difficult time participating and often needs a to participate in structured . (419) This means and , , “ .” (420)

has and one session. (421) One session is . (436) They work on fine motor, “core” work, handwriting.

(421) The session is - . (422) had a time participating in the in the beginning, now joins the . (423)

in the class are trained to deliver techniques, as well as a brushing protocol. (426)

asks a lot of questions now; does a lot of “reality testing.” (432)

requires a school with an on . (433)

There is an “ ”, and a . (443) also participates in a “ ”. (438)

His schedule has changed or times during the year. (445)

The has changed throughout the year. (446)

She also runs a cooking with . (448-449)

, an art , indicated that is a that uses the in combination with . (453)

uses drawing to explore his world, will draw characters. (455) has become more comfortable with his more challenging . (455) benefits from a as well. (456)

will now occasionally inquire what a is making or comment on a work or show his what is making. (457)

The school changed from to art because the weren’t working for him and was bringing art into the . (458)

She sees him a , in a . (463)

The parent testified that is making in his . (470) Previously, would ; now . (470) will tell them what happened, ask them questions that they don’t know how to answer. (471)

At the CSE meeting in March, 2010, a was provided, . (473)

Ms. did not indicate that she was a member of the CSE or a . (476) She the key things, not the details. (484) The parent was okay with her. (487) An educational was also at the review. (489) She added a goal at the review.

(494) Goals were translated to her. (494)

She received a letter from the school District that the District will not be able to provide an appropriate and authorized her to go and choose a school. (477478)

She received a letter indicating the placement on July 9 or 10. (479) The postmark is July 9 although the letter is dated June 28. (480)

She the school as a . (480)

She reads reports from the school in by using a and . (482)

She participated during the meeting in terms of thoughts, but not . (484)

They sent her a list twice with changes. (499)

On July 12, she tried to call the school through the and there was no response. (507)

She wanted to see if the school was ; if it was suitable, she would have sent him. (509)

Exhibits include the / dated 12/5/09 of dated December 5, 2009, which indicated that contact is “ ,” that does well with that works well with praise. (Exh. 7) There are and in with significant in . put him on the 4 year at the time. She suggests a “ - ” with emphasis on / .

The - of dated 11/28/07 revealed a per the and an . (Exh. 9) Adaptive per the indicates a . the indicates a , with a in and an in reasoning. Written resulted in a score of .

The Report from School dated December, 2009 indicates that can maintain a state but can be overwhelmed. (Exh. J) was with but this did not always result in success and become frustrated with his “ .” shows a large word , can answer simple questions about stories, is improving in . were noted in maintaining a flow of conversation.

The Report dated May 2010 indicates that works in a more , uses , joins in play with . (Exh. K) enjoys rhymes and predictable texts. His word on sight ; had been able to , now was able to . with , was able to complete addition with of , was working on understanding the concept of subtraction.

The Report of December, 2010 indicates that has been illustrating 10-

15 page books daily, is incorporating dialogue and narrative in the book. (Exh. S) was able to “ - ” after being “ ” with support. was able to be engaged with an adult for up to . has expanded his ability to make connections between ideas and answer why questions. could read a large amount of sight , 60 that are “ relevant and meaningful.” was able to answer fact based questions from stories on the “ ” level. can answer “wh” questions from texts read aloud. In , was able to understand coins, make money combinations, count to 100.

The District letter to the parent dated June 23, 2010, indicating that the New York City Department of Education was not able to provide the child with education for the 2010-2011 year and indicating that the parent could enroll their child in an appropriate approved school. (Exh. M) A letter signed by the parent dated June 28, 2010 indicates that she will be sending the child to the School for 2010-2011. (Exh. N). A letter signed by the parent dated July 12, 2010 indicated that she received a final notice of recommendation from the District on July 10, 2010. (Exh. O) This letter indicates that the parent called the proposed site but was not successful in reaching anyone at the school to schedule a tour. It indicates that if an appropriate is not found in a timely manner, she will be sending her child to the School. On

August 16, 2010, the parent sent the District a letter indicating that she would be enrolling the student in the School. (Exh. P)

The Final Notice of Recommendation is dated June 28, 2010. (Exh. R) It is accompanied by an envelope indicating that it was been mailed on July 9, 2010.

FINDINGS OF FACT AND DECISION

The District be required to pay for educational obtained for a student by a student's parent if the offered by the District are inadequate or inappropriate ("prong one,") the selected by the parent are appropriate ("prong "), and equitable considerations support the parent's claim ("prong three"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The well-reasoned decision of Judge Lawrence Kahn in Connors v. Mills, 29 IDELR 946 (N.D.N.Y. 1998), expands on Burlington in allowing for tuition payment in circumstances where a claimant cannot "front" money to the school . Judge Kahn stated that "(i)t simply cannot be the case that an act designed to grant "all" disabled children access to needed would undermine that very goal by making such access dependent upon a situation." Id. at 951. The reasoning of Judge Kahn has recently been expanded upon and approved in a decision by United States Judge Paul G. Gardephe in Mr. and Mrs. A v. NYC Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y.) (February 1, 2011), who noted that the legislative history of the IDEA specifically contemplates protection of low income individuals and ensures universal access to special education .

To meet the burden that it had offered a Free Appropriate Public Education, the District must show that it complied with the procedural requirements in the IDEA, and that the is reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982) If a procedural violation occurred, relief is warranted only if the violation affects the student’s right to a free appropriate public education (FAPE). Application of a Child with a Disability, Appeal No. 04-032.

In this matter, there is no dispute that the child requires a 12 month school year. There is also no dispute that the calendar year begins in July for such children. It is well settled that Districts must have an in effect for each student with a disability at the beginning of each school year. Application of the Department of Education, Appeal No. 08-058; Application of the Board of Education of the Williamsville Central School District, Appeal No. 01-012; Where there is a 12 month school year, “the Districts must have offered (the parent) a placement before July.” Application of a Child With a Disability, Appeal No. 10-055. Accordingly, this parent should have received their placement offer before July so that they might have an opportunity to enroll the child in the school and to visit the placement by the start of the school year. Application of a Student with a Disability, Appeal No. 10-074.

Here, the District presents a “Final Notice of Recommendation” letter dated June 28, 2010 which provides notice of the offer of placement. This follows a letter to the parent dated June 23, 2010 indicating that the District could not find a placement for the child and allowing the parent to select an approved school. The parent claims that she did not receive the June 28, 2010 letter until July 10, 2010, well after the start of school.

The District argues that under applicable law there is a presumption that an item is mailed on the day the letter is dated. The District contends that this doctrine is applicable where, as here, there is testimony from the District that letter date is reflective of the mailing date per office practice. In fact, New York law provides for a rebuttable presumption that a correspondence is mailed and received by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829 (1978). This doctrine is ordinarily applied where an addressee flatly denies receipt.

Here, the addressee does not deny receipt; instead, she claims that the mailing and receipt of the document were delayed. As a result, the District seeks to extend the above doctrine, arguing that it is appropriate to apply a presumption that the letter date should be presumed to be the mailing date upon testimony by a qualified witness.

The District does not present any authority that supports extending the mailing presumption in this way. Even if the District is right to that it is appropriate to extend the above presumption in this manner, the parent has effectively rebutted the presumption by presenting an envelope from the pertinent District office with the postmark July 9, 2010. This is consistent with the parent’s letter of July 12, 2010, which indicates that she had not received the notice until July 10. See Pettway v. Barnhart, 233 F.Supp. 2d 1354 (S.D. Ala. 2002) (date stamp by clerk in lawyer’s office deemed to have rebutted presumption). I must note that there is no suggestion in the record that the parent a credibility problem or has somehow manufactured this envelope with litigation in mind.

It should be added that courts do apply legal constructs to situations like these where receipt of a correspondence is disputed. A review of the law indicates that courts may apply either a three or five day presumption to determine the date the mailing is received. Adorno v. Lord and Taylor, 1999 U.S. Dist. LEXIS 14866 (S.D.N.Y. 1999) Assuming the District is correct that the Final Notice of Recommendation went out on June 28, 2010, and even if a more forgiving three day presumption is applied, the parent here would be deemed to have received the notice on July 1, 2010, the very day that school was to begin. Such a notice would not give the parent time to enroll the child into school and/or visit the placement before the beginning of the school year.

The District also argues that any such lateness is de minimus, pointing to statements in the parent’s letter of July 12 indicating that she was still open to visiting the school. However, the parent testified that the District did not respond to any such letter. Moreover, the parent testified that her called the proposed school and tried to arrange a tour of the school. The parent testified that the was not successful in these efforts due to a lack of response from the school. Accordingly, the parent did not visit the school. The District did not call any witnesses from the school or the District to explain why there was no follow-up to the parent’s letter or calls. The District indicates that the parent should have visited the school anyway, but I find the parent’s actions reasonable in this situation. Under the circumstances, the District impeded the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, and caused a deprivation of educational benefits. The parent prevails on the prong.

On “prong ,” the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be on whether the placement is an appropriate setting that provides specially designed to address special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

Initially, the District argues that a tuition award cannot be rendered here because School is a for-profit institution. However, the District did not cite to any on point case law in support. In fact, as United States District Judge Denise Cote has indicated, forprofit schools may be the subject of claims for tuition awards. A.D. v. Board of Educ. Of the City School Dist. Of City of New York, 2010 WL 447371 (S.D.N.Y. 2010) at n.16.

The record reveals that the student requires education in regard to, inter alia, and receptive , , , , , , , , . The record reveals that the school’s is to address and . The school employs a called to develop the child’s . The most recent report indicates that the student has made strides in this area, initiating more conversations with and asking questions to “validate .” With respect to , the record shows that the student receives small in subjects. The school uses a that is based on “ ” and involves children a . is a part of the , including answering “wh” questions. The record shows that the student made in this area and has recently been incorporating dialogue and narrative into a 10-15 page illustrated book that creates daily. The record also shows the student has improved in fluency and is better at answering “wh” questions. There is also in , including work on coins and in counting. With respect to al issues, the student has benefitted from an at the school involving heavy work activities. The record indicates that is now better in the classroom and is better able to “ ” after an . The student also benefits from that are provided by the school, including and , , .

A District witness, , indicated that the school is not sufficiently academic for this student. Ms. , who has at the school and is quite familiar with the school generally, points out that the school so much on communication and socialization that they do not on academics. The District therefore argues that has not been sufficiently challenged at School. However, a review of the transcript and the reports reveals that the school does provide academic instruction, including in , , , , , . While I agree that the approach of this school is different than the approach of a more traditional school and that the student would benefit from work such as in decoding, the evidence indicates that the student is benefitting from this school’s approach, including with respect to academics. A.D. v. Board of Educ. Of the City School Dist. Of City of New York, 2010 WL 447371 (S.D.N.Y. 2010)(awarding funding for School; District had argued that the school does not sufficiently on academics). It should be noted that a parental placement does not have to provide each and every special education service that would benefit a child. As stated by the Circuit in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's needs.

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such as are necessary to permit the child to benefit from instruction.

The District also argues that the school changes a student’s daily schedule too much, creating a problem for students such as who requires consistency. While I agree that the changes in schedule can be disruptive to students, there is nothing in the record to suggest that such changes have had any impact on education. The parent prevails on “ .”

On the criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an in a timely manner, fail to make their child available for by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). . With respect to a parents’ obligation to raise the appropriateness of an in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

Per this record, the parent cooperated fully with the District in regard to all issues concerning education. The District contends that the parent’s letter rejecting the placement does not particularize the complaint about the District. The District appears to base this argument on the parent’s duty to send a notice “stating their concerns” pursuant to federal regulation. However, the parent’s letter of July 12, 2010 does give the District notice of her complaint regarding timeliness. There is no record of the District responding to this letter and then addressing these issues. Moreover, I have found no authority requiring the notice to include every single factual issue to be raised at the hearing. Nor have I found any authority where an award is reduced or denied because the notice failed to particularize issues that were later raised by the parent in a Complaint. It should be noted that the District did not provide any specific authority in support of this argument. The parent prevails on “prong three” and is therefore awarded payment for all expenses incurred for the 2010-2011 year at the School.

Dated: May 18, 2011 Corrected Date: May 24, 2011 (Corrections made to pages 4,5,11,14,15,16,18,20,21,24) Corrected Date: May 31, 2011 (Corrections made to pages 8, 12, 16, 20)

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer MSL: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

PARENT DESCRIPTION

A Hearing Request dated 06/28/10, 5 pages B Student's dated 03/03/10, 15 pages C Letter of to or dated 09/04/07, 2 pages D SRO Decision dated 04/10/03, 4 pages E Impartial Hearing Officer McKeever Findings of Fact and Decision dated 06/17/10, 6 pages F , 2 pages G School Enrollment Contract, 4/13/10, 5 pages H Affidavit of Payment from The School, 10/8/10, 1 page I Class Schedule from The School, 10/11, 1 page J Report December '09, 11 pages K Report, May 2010, 11 pages L and ., , 12/5/09, 5 pages M Nickerson Letter, 6/23/10, 1 page N Parent Letter to CSE, 6/28/10, 2 pages O Parent Letter to CSE, 7/12/10, 3 pages P Parent Letter to CSE, 8/16/10, 2 pages Q Parent's Proof of Payment of School Deposit, 3/16/09, 1 page R FNR, 7/9/10, 2 pages S 12/10 Report from School, 11 pages T 12-Month Consent form, 3/3/10, 4 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 , 3/3/09, 14 pages 2 Withdrawn 3 Notice of Recommended Deferred Placement, 3/3/10, 1 page 4 - School Year Consent Form, 3/3/10, 1 page 5 Classroom , 10/22/09, 3 pages

6 Permission Form, 12/2/09, 1 page 7 and , 5 pages 8 Final Notice of Recommendation, 6/28/10, 1 page 9 , 11/28/07, 10 pages 10 CSE Meeting Minutes, 3/3/10 1 page 11 Class Schedule, undated, 1 page