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: July 31, 2012

August 14, 2012

September 7, 2012

September 20, 2012

Actual Record Closed Date: September 25, 2012

Hearing Officer: Daniel J. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2012

Parent Representative (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2012

Attorney — Student

Parents

CSE District Representative — DOE

Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7,

2012

Attorney — Student

Parents

Program Director (Via Telephone) — Student

Coordinator (Via Telephone) — Student

Executive Director (Via Telephone) — Student

District Representative — DOE

Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2012

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

INTRODUCTION

On June 27, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence. Post hearing submissions were not requested, nor submitted.

Parent commenced this matter through hearing request, dated June 25, 2012, seeking funding, or tuition reimbursement for CAHAL at Yeshiva Darchei Torah (CAHAL), for the 2011-2012 school year. (Ex A)

A motion to extend the compliance date, an additional thirty days, was made on September 7, 2012, at hearing, based upon extensive testimony and issues, and to allow receipt of the transcript witnesses. Motion was granted, on September 10, 2012, and the compliance date was extended to October 9, 2012.

A prehearing conference was conducted on July 31, 2012. Parties raised no unusual circumstances to be considered in detail at the preferring conference, and agreed to coordinate the commencement of the hearing itself within the next two weeks.

BACKGROUND

Parent Hearing Request and Individualized Education Program , of May 16, 2012, include basic information regarding the student. Student is male, classified with or . Student was recommended to a special class, with a 12 student, 1 teacher, and one paraprofessional (para), staffing ratio, and weekly related services of , in a separate location, in a group of three students for thirty minutes, and , in a separate location, in a group of three students, for thirty minutes. Present performance indicates reading, math and writing in a range, based on teacher estimate. Student has spent the 2011-2012 school year in the CAHAL program. (Ex A, & 5)

THE PARENT’S POSITION

( ) presented the case for the parent and student.

Parent position was outlined in Due Process hearing request, dated 06/25/2012, seeking funding, or tuition reimbursement for ( ), for the 2011-2012 school year. (Ex A)

, in an opening statement, alleges an improper Committee on Special Education (CSE) meeting took place, which was procedurally and substantively inappropriate, Department of Education (DOE) placement offering was inappropriate to meet the needs of the student, the IEP created at said meeting was inappropriate, the parent twice visited the proposed placement, however, was denied necessary information upon which to make a decision, parent notified the CSE of concerns regarding said placement, and parent did not receive a response regarding her concerns and requests for additional information, stemming from each visit. Having received no response from CSE, the parent sought out appropriate placement for her child at . Witnesses and evidence supporting parent’s case shall be presented at hearing. (T 37-42)

Parent attorney concluded parent case with closing statement that included, in part, the following.

IEP was procedurally inadequate in that it parents did not fully participate, there was no parent member present, the IEP was written following the meeting, and no one at the meeting had access to the draft IEP or the information ultimately included as part of the IEP. (T 378)

The IEP was substantively inadequate in that it did not appropriately reflect levels of performance, educational needs, and , contained inadequate goals, placement recommendation was limited to those available by the DOE, and placement offering was not appropriate, as indicated in testimony and parent correspondences to the CSE. (T 381-392, Ex C & D)

Parent placement at was shown to be appropriate through testimony and documents submitted at hearing. (T 399-402)

Equities favor the parent based upon testimony and actions of parent. (T 403 405)

PARENT WITNESS NAOMI NADATA

( ) testified as a program director of , and reviewed her professional licenses and experience. (T 195)

responsibilities include: “…hire and supervise our staff…admissions process…support and maintain all the communications with parents…tour guiding and providing teacher training and support…communicate and coordinate with the mainstream administration in the various schools where our classes are housed… supervise - - our educational coordinator…we work on developing programs…developing the educational program for all of our individual students in the classes…supervise , who is our Jewish studies and Hebrew educational coordinator…attend many of the CSE meetings that the parents participate in, and as well as attending many of the parent-teacher…conferences as well.” (T 196-197)

describes as: “ is a special education program, and we have many self contained classes for children who have , who have language-based disabilities, children with , or children whose disabilities impact on their acquisition of accepted social skills. We have classes from kindergarten through high school…” (T 197)

follows New York State standards. (T 197)

is a program housed in various Jewish general education day schools in the community. (T 198)

’s mission is to meet the individual needs of students and ensure academic, . Smaller classes are maintained for students who need the smaller class, and a parallel academic program exists in the building. (T 198-199)

reviewed how staff is selected, supervised and trained, and how curriculum is designed and implemented. (T 199-200)

is familiar with the student and confirmed he attended a first grade, program, for the 2011-2012 school year. Said class was a self contained class of ten students with one teacher and two assistants throughout the day. (T 201)

reviewed the qualifications of the teachers from the student’s class: “ has a Master's degree in special education and certification in special education. has a Master's degree in reading with an emphasis, focus on special education.” (T 202)

Teachers are responsible for providing whole group, small group and one-on-one individualized attention to students, and ensuring student participation in mainstream non-academic activities. (T 202-203)

Student received counseling and therapy as related services at the school, through the DOE provider agencies. (T 205)

Student schedule included some non-secular services, including, prayer, Jewish customs and holidays and Bible studies. Some Bible story and review addresses reading comprehension. (T 206-207)

described some educational benefits of non-secular activities: “…sequencing of events. There is memorizing so building memory and the strategies for memorizing materials. There is higher order thinking skills. There are a lot of listening skills involved, and, yes, and even with prayer there's leadership skills where the students take turns leading the prayers in the classroom. So a lot of different skills come into play…” (T 208)

described lunchtime and recess procedures for the school, including staffing. “…class recess was very structured. We actually implemented a recess program this past year, 2011-2012, when we met with our teachers during orientation we brought in a social worker to present to the staff the importance of facilitating for students during recess. It's not just watching. It's supervising it and helping facilitate for them to work on their play skills and also work on their communication skills with each other and with the mainstream students.” (T 209-211)

described some of the student’s issues for the 2011-2012 school year. “…presented with if he had a challenging task or a new learning task…would often be resistant/reluctant to do it…would need a lot of encouragement, and…a lot of simplifying of the directions for the task to clarify and to encourage and to build his confidence that he could actually do it. He also could be and rush through the material and not really--not do it accurately because he wanted to get through it quickly. I think sometimes he didn't want to worry about getting it right. He just wanted to finish it…at times could get moody and he would need to be refocused and redirected…there were times when he would become resistant and oppositional in terms of direction from adults.” (T 215)

To address this issue the program had a behavior modification program, a lot of . (T 216)

believed the program to be appropriate due to his progress academically, . A highly structured program was provided with a lot of individual support that addressed his total needs. Individual attention and the behavior modification program all helped the student to realize his potential in the program. (T 216-217)

attended the 05/16/2011 IEP meeting and recalls the parent wanting a parent member. When advised of the lack of a parent member at the meeting, recalls that parent wanted to complete the meeting that day since she could not take any more time off from work. (T 217-218)

testified to the class room teacher presenting information regarding the student, including student characteristics of: anything new or challenging, a need for a behavior management plan, a need for visual cues in order to learn better, difficulty with following directions, a need for simplification of information, and a need for placement in a highly structured class and individualized attention. The classroom teacher also spoke about mainstreaming for the student into a very small mainstream class for play skills. Children are also mainstreamed for assemblies, trips and physical education. (T 219-221)

A behavior modification plan, very specific to the student, was developed, with goals which were updated as achieved, coordinated at school and home, so t hat the student could be rewarded at he end of the week. (T 222)

CSE did not discuss the possibility of a functional behavioral analysis or behavior intervention plan for the student. (T 223) CSE review meeting did include a discussion of meeting goals from the previous

IEP. (T 224)

Once the ultimate placement was offered the parent indicated at the meeting that she would consider it, and go see the placement. (T 225)

On cross examination the witness indicated she had seen programs in the past. (T 238)

was asked if she believed the 05/16/2011 IEP was an accurate reflection of the student. “I fell it was missing some key elements…he really needed to have the behavioral piece more directly addressed…it was something that was really significant for this particular child….His could become oppositional and defiant, and he could become very difficult at times to manage. He also--with the behavior modification program that he had, the teacher was ongoing, as I said, to coordinate it with the home and the school. He was able to manage much better in the classroom.” (T 238240)

stated that, based on assessments done at the school student levels in September 2011, for reading were K-2 through 1.0, and for math K-2 to 1.8. (T 246247)

The hearing officer asked why if the student had potential to show aggressive behaviors, that the IEP did not indicate any such behaviors of the student, to which replied that the student has a very powerful plan that works with this child. (T 251)

stated that the teacher did have difficulty managing student behaviors at the beginning of the 2011-2012 school year. The teacher was able to manage these behaviors during the school year. (T 251-253)

continued that the behavior plan in place at the program targeted the student’s impulsive behavior, and targeting that he will listen to directions, wait until he is called on, and follow classroom rules. (T 254)

PARENT WITNESS ALICE FELTHEIMER

( ) testified as the educational coordinator at the program, and attested as to her professional and educational background. (T 257-258)

described the supervision she receives, indicating all important decisions are run through . (T 258)

described her responsibilities as supervising the English staff, overseeing curriculum, observing the children, meeting with the teachers, reviewing IEPs, coordinating related services, purchasing library materials, and attending CSE meetings and parent teacher conferences when available. (T 260-261)

is familiar with the student and sees him at least weekly. Student is in a class of ten male students, aged 5 and 6, classifications range from other health impaired, . General ranges of functioning for incoming September 2011, for Reading were K to first grade and Math from K to K.8. (T 261-262)

notes that the subject student had the following characteristic at the start of the 2011 school year. , , he was not , had great difficulty , had good number sense but was not able to do any computation with addition and subtraction, no understanding of place value was not able to identify any key words with manipulatives, weak, not able to write a whole word, no handwriting issues, had expressive and , difficulty following multi-step directions, difficulty with verb tense and pronoun agreement, , he would , and . (T 263-265)

described how addressed academic issues. Student was in a small group for reading and math. Different reading materials were used to address reading his needs, such as for phonemic awareness. Student worked with manipulatives in math and addition and subtraction were worked, as well as word problems. For writing, the spelling program was linked to the reading and word families were worked on until he was able to work with a regular spelling book, sentence structure was worked on, as well as mechanics of a sentence, and he was able to write several sentences. (T 266-268)

described issues of the student. The student does not like to fail, he would rather shut down, it was important to break down directions to , and we were sensitive to the fact that he could become were sometimes used. (T 270)

Behavior modifications for the class and for the student individually, were used to identify authority figures, such as the teacher and assistants. (T 271)

reviewed classroom instruction for the 2011-2012 school year. Student fit into small reading and math groups. Student started with a pre-reader and he moved to a regular basal reader, with a phonemic component. (T 271-275)

Students were assessed through the IEPs, teachers gave their own assessments, and student were then grouped. Student progress was measured from a baseline within the material. (T 275-276)

Assistant teachers provide a lot of extra support. There are two assistants in the room. The teacher takes one group and the assistant another group. Assistants go to lunch with the children and attend parent teacher conferences. They help organize student’s desks and make sure materials are packed in backpacks. (T 276-277)

Student was mainstreamed for lunch, recess, physical education and science lab. (T 279)

believes the student was appropriately placed for the 2011-2012 school year because was able to manage the student’s academics, and he made progress as indicated by his ability to write sentences, understand addition and subtraction, and understand place value. (T 280-282)

AF does not believe the DOE recommendation was appropriate for the student for the 2011-2012 school year. The student needed a smaller student to teacher ratio, he had a lot of , and needs a lot of support. A might have been too large for the student. (T 286)

visited the proposed placement, , twice, with the parent. (T 286)

describes the first visit: “It came at the end of the school year. I met the parent at the building…there was not a lot to share at that meeting…we saw the children playing there, but they could not give us a lot of information. It was not even 100 percent clear who the first grade teacher was going to be. So the parent obviously made another appointment in September and went out to see the site in September.” (T 287-)

describes the second visit: “…we observed in the classroom. We actually observed a math lesson. I saw one teacher and one assistant. What was distinctive in that classroom was that there were two boys. They were acting out tremendously. They were calling out. They were rocking their chairs back and forth, banging their hands on their desk and clapping their hands in the air while the teacher was continuing to teach. Although the assistant tried to redirect them, that didn't work. I felt very uncomfortable, because I wanted to--you know the object was to see how the classroom would function. So I sort of like moved towards the back. I moved away, just trying to get a feel for what was going on in the classroom. What was notable to me was that there was a B-mod chart up on the board, up on the wall, but nobody ever walked over to that behavior modification chart at all. We remained in the classroom, and eventually we left. So that was a little disconcerting, because nobody was able to stop those boys from misbehaving.” (T 288)

was concerned about the lunchroom and recess procedures at the school since there were about one hundred children at lunch and recess without the teacher present. Student does not do well in unstructured environments. Student can be wild and follow negative behaviors. (T 289)

responded to hearing officer question regarding the appropriateness of a para for the student. “I don't think it applies, because - - more restrictive. I think within an environment that's structured he's able to do well with people monitoring what he's doing.” (T 295)

noted her concerns about mainstreaming at . When the class is divided up and put into mainstream settings, the para goes with the most needy group, and the others are left without that support. continued that the student requires the structure and of a smaller class and would be at risk , in the larger setting. (T 295-297)

observed the therapy room where services were being provided to two students simultaneously without any divider, which would be a distraction for the student. (T 298)

IEP does not adequately address the . “I think it would be important to break things down…he would need to have prompting…he would need to have some one-onone support there…he would need to have some pre-teaching. We would need to be able to put the supports into place that would deal with his .” (T 300, Ex 5-3)

would add modeling to the academic management needs. (T 300, Ex 5-3)

continued that the IEP fails to target . Additional management needs include positive reinforcement, a behavior modification plan to deal with some acting out behaviors, one-on-one support, and prompting. (T 302-303, Ex 5-4)

described IEP goals as “very vague”, “you can’t measure it”, “no clear benchmark”, “no foundation”, “too high”, “no baseline”, and “broad and generic”. (T 303-308, Ex 5-6, 5-7, 5-8)

provided the following testimony on cross examination. is not certified in special education, she observes the class at least once a week, she does not write up assessments, there were no behavioral concerns in the class besides the student in question, and academic management needs reflected on the IEP are components that can help with anxiety. (T 308-313 Ex 5-3)

, on redirect, noted academic progress, and social and emotional progress as behaviors were modified. (T 320)

PARENT WITNESS SHELDON EHRENREICH

( ) testified as executive director of , whose responsibilities include financial matters such as collecting tuition, salaries and fundraising. . (T 323)

SE confirmed that the student attended for the 2011-2012 school year, which was housed at . Tuition reflected on contract signed 05-09-2011 is accurate in the amount of $30,000.00, with a $500.00 registration fee, that parents are bound to pay the tuition, no payment has yet been made under the agreement, and the parents have not received any financial aid. (T 326-330, Ex I & H)

On cross examination, and follow up questions from the hearing office, SE stated that the parents have not applied for a scholarship, though it is possible that the student would qualify for a reduction in tuition, though he is not the one that makes such a determination. (T 335-337)

PARENT WITNESS PAMELA ECKHAUS

( ) testified as the student’s mother. described her child’s early developmental delays, which included , , and . (T 340)

was to attend an IEP meeting in March of 2011, however, it was cancelled due to the parent not agreeing to conduct the meeting without a general education teacher. Meeting was subsequently rescheduled for 05/16/2011, which parent attended. Parent did not receive any documents prior to the meeting. Parent does not recall a discussion regarding behavior assessment or behavior intervention plan. At the meeting parent recalls a discussion of progress and goals. Parent recalls the teacher, stating the student made progress and discussion of the program which was recommended. (T 342-345)

Parent received the IEP a month later and a placement offer for , which she visited on two occasions. (T 345-346)

saw a class at with eight students. “I was like--I was even overwhelmed by seeing the class because it was a math class. I remember that, and the kids were just all over the place. People--kids were clapping, kids were banging. Kids were just being disruptive. There was a modification chart on the wall, but the teachers tried to refocus the children, but it didn't work. They didn't even go over to the B-mod chart, and we just went out of the room.” (T 346)

reviewed her correspondence to CSE, entered into the evidence which described her site visits. PE confirmed that she received no response to her letters. (T 350-352)

Exhibit D, dated 08/11/2011, describes her first site visit. It was the end of the year so PE could not see any work, teacher was not in the class, all students were classified as speech and language delayed, no other information was available regarding the profiles of the students. spoke to a first grade teacher, but wanted to speak to someone about her child’s special issues. was concerned about supervision during lunch and recess, and she was unable to meet any therapists in the school. (Ex D 1-2)

Parent letter includes: It is important for me to know the classifications of the students, their cognitive functioning and age range of the class…Without this information, I cannot determine whether the class would be appropriate….” continued to raise her concerns regarding supervision, building safety and security. Parent requested a class profile and behavior information regarding the proposed placement. She also indicated she is willing to consider any appropriate placement, but until she is able to visit a recommended class, she will be enrolling her child at the program, and seeking funding. (Ex D 3)

The parent letter of 09/27/2011, entered as Exhibit C, relates to the second parent visit to the proposed placement. indicates her observations, including two students acting out, students calling out, students banging their hands on the desk, clapping their hands and rocking back and forth in their chairs, and an unused behavior modification chart. points out that the class would be distracting for her child, and he would be unable to focus and learn. indicates that her child needs to be in a structured environment where he will not be distracted or follow negative behaviors. (Ex C 1)

continued to indicate her concerns with the lunch and recess supervision and structure. (Ex C 2)

indicated her concern with the lack of a divider in the therapy room to reduce distraction. (Ex C 3)

indicated her concern with the mainstreaming conducted in the program, that did not include the student teacher or para to provide assistance. (Ex C 3)

stated she could not accept the placement, would be willing to reconsider if provided with additional information or if she misunderstood anything about the placement. Meanwhile, she will continue to have her child attend the CAHAL program and seek tuition reimbursement. (Ex C 4)

states that she had no objection to her child attending a public school program. She eventually enrolled her child at the program, which she felt was appropriate. Her child grew academically and emotionally, she was able to speak to and work with the teachers to address concerns. (T 352-353)

confirmed he signed the enrollment contract. (T 354, Ex I)

confirmed the tax return submitted was accurate. That she does not own any other homes or properties, that she could not afford to pay the tuition up front, and that she was seeking direct payment of tuition to the for the 2011-2012 school year. (T 354355, Ex M)

DEPARTMENT OF EDUCATION POSITION

( ), Committee on Special Education (CSE) 4, representative, presented the DOE case.

In her opening statement presented the following information.

Student is year old child, completed , and received related services, as provided through the DOE.

On 05/16/2011 an IEP was created at an annual review, which classified the student as , and recommended a special class, . (T 32-33, Ex 5)

A FNR was issued on 06/14/2011, offering placement at , with services indicated on the IEP. (T 33)

DOE position is that IEP was properly constructed and the program, and placement are appropriate. Witnesses will be presented to substantiate the DOE position. Parent request for tuition reimbursement should be denied. (T 33 -36)

made closing statement, confirming the DOE position, that the offered program was appropriate.

“A special class program with one special education teacher and a paraprofessional with the additional support of his related service providers would have met… , , and academic needs. The IEP provided sufficient adaptations of the environment to address…management needs. The IEP does provide sufficient support.”

(T 372)

Regarding the lack of a parent member: “While the meeting proceeded without the participation of a parent member, the parent was represented by the representative who sat on many CSE reviews and was aware of the public school placements including the special class . Parent has also attended other IEPs meetings…and her other children and were familiar with the process and has visited Department of Education classes in the past.” (T 373)

DOE representative notes that: “…should the hearing officer consider an award (indicated as aware in transcript) of reimbursement for the program, it should be reduced by 50%, the portion of the program that can be deemed religious in nature.” (T 377)

DOE WITNESS

( ), reviewed his professional and educational background, and testified as the current teacher assigned for the CSE working with District , having attended the student’s annual review meeting of 05/16/2011. (T 44-45)

A parent member was not available for the meeting, however, the team felt that there was enough support for the meeting to continue. (T 46)

reviewed documents which were provided for the CSE review, including a classroom teacher’s report, related service reports, and a classroom observation conducted by , on 02/17/2011, and entered into evidence. (T 47-48)

Observation reflects the student was to be observed regarding level of engagement in class activity, the ability to remain on task, and task completion. Student was observed being on task and focused as he worked, showed the ability to check for understanding, and the ability to self correct. (T 47-48, Ex 8)

There were nine students in the class, could not recall the number of teachers. (T 48-49)

When asked if all the students were on task, replied, “Yes. Yes. It was impressive to see.” (T 49)

continued to review the teacher report, occupational therapy report, speech and language report, counseling report, and recommendations which were discussed at the IEP meeting. (T 50-54, Ex 7)

Student was classified as speech and language impaired, recommended to have a health para, and to a special class of , with related services of speech and language therapy, and counseling. (T 55-56 & 65)

testified that all parties agreed with the recommendations. (T 56)

continued that concerns were raised over the lack of a parent member, parent mentioned the behavior modification system used at home and at school, that no aggressive behaviors were reported, and that concerns were raised , a lack of self , and that the student needed a lot of reassurance. (T 56-57)

Student academic and management needs and needs were reflected on the IEP. Management needs included, in part, redirection as needed, directions repeated and explained, checks for understanding, and differentiated instruction. needs included verbal reinforcement. (T 58-61, Ex 5-3 & 4)

reviewed formulation of student goals, and goals created at the annual review. (T 62-66)

felt the ultimate recommendation was appropriate as the student was participating in a small class setting with supports, and seemed to be making progress. continued that he felt supports were in place and the smaller class ratio would allow more individualized support (T 66)

On cross examination testified that the parent requested a parent member be present, and that the parent was not notified that there would be no parent member, until the time of the meeting. (T 75)

was unaware that the student was receiving services after school. (T 91)

did not recall if a was used for the meeting, did not recall when a triennial was conducted, and did not recall a discussion of the student’s educational history, at the time of the annual review. (T 92)

acknowledged that the classroom teacher utilized a classroom behavioral system in the classroom, but did not recall any of the details and did not reflec t any information regarding the system in the IEP. (T 97)

continued under cross examination that mainstreaming was not specifically recommended on the IEP, and that the smallest class available to be recommended by the CSE was a program. (T 109)

stated that the related services, therapy and counseling were recommended to take place outside of the classroom, and not as a push-in service. (T 110-112)

DOE WITNESS ALTHEA MORGAN

( ), reviewed her professional and educational background, and testified as the current IEP teacher at . (T 125-126)

describes her role as: “…to assist other teachers, my colleagues, with IEPs and helping them learn about SESIS and making sure all the IEPs are done in an orderly fashion and attending any workshops or meetings and dispersing that information to my fellow colleagues.” (T 126)

For the 2011-2012 school year, , was the special education fifth grade teacher. (T 126)

Student is question was to attend a class for the 2011-2012 school year. At the time of the hearing the actual teacher for the proposed class was no longer working at the school, and was not available, according the DOE representative, to testify. (T 128-129)

testified as to some characteristics of the proposed placement, including lunch period time, the paraprofessional stayed with the class during lunch, school aides and an assistant principal were present during lunch, children were not allowed in the playground during lunch, and that she has seen the class in question in the hallway and when she had to “pop into her room for a minute”, maybe once a week. (T 136-138)

knew the name of the paraprofessional for the class. (T 138)

reviewed the class scheduled entered into evidence. (T 155, Ex 15)

testified that at times the class is split and the para accompanies one group of the students, based upon where she is needed most. At times a group of these students are placed into a mainstream class. (T 156-158)

continued that there are additional math and reading services available to first graders at the school. (T 160-161)

continued that she felt the IEP and proposed placement, and goals, would have been appropriate for the student. (T 163-165)

For the 2011-2012 school year, did not take part in any IEP meetings for placement, for first grade students, nor did she take part in developing any policy or curriculum or implementation procedures for implementing IEPs for first grade students. (T 168-169)

On cross examination continued that, at times, some students are split from the class and go to join mainstream general education classes. (T 179)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative 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 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; 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], 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]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

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. July 3, 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. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education , Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

Although not required by the IDEA (20 U.S.C. § 1414[d][1][B]; see 34 C.F.R. § 300.344), New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005]; Application of the Dep't of Educ., Appeal No. 09-024; Application of the Dep't of Educ., Appeal No. 08-105; Application of the Dep't of Educ., Appeal No. 07-120; Application of a Child with a Disability, Appeal No. 07-060; Application of the Bd. of Educ., Appeal No. 05-058). New York State law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]). Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (8 NYCRR 200.5[c][2][v]). New York State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member (Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][2]-[5]; see Application of the Dep't of Educ., Appeal No. 09-078).

DOE PROPOSED IEP AND FAPE

DOE witness reviewed documents which were provided for the CSE review, and attended the 05/16/2011 CSE meeting.

Present performance was indicated they be mid-kindergarten for reading, math and writing, though where this estimate came from is not clear, and not indicated on any documents submitted into evidence. (Ex 5-3)

noted parent concern over the lack of a parent member, parent mentioned the behavior modification system used at home and at school, that no aggressive behaviors were reported, and that concerns were raised , a , Teacher report included the following information: student work is satisfactory with prompting and redirection, student is work, student needs much repetition and directions repeated and simplified, and that the student is not being mainstreamed. (Ex 7)

felt supports were in place and the smaller class ratio would allow more individualized support. (T 66)

The IEP does not include any indication of the level of individual support the student requires, or who would provide that individualized support.

The IEP does indicate a student need for more repetition to learn new material, however, the IEP does not include how this is to be accomplished. (Ex 5 3),

IEP also includes the following: “He requires a great deal of prompting and coaxing and encouragement in order for him to complete tasks. He has a low frustration tolerance and he can feel overwhelmed and will shut down as a result.” (Ex 5-4)

IEP indicates personnel responsible for providing behavioral support is listed as counseling. management needs are listed as Verbal Reinforcement. (Ex 5-4) There is no clear indication of how the issues raised in the body of the IEP are actually to be addressed in the coming school year.

Academic management needs are included as: redirection as needed, directions repeated and explained, check for understanding, multi modal approach to learning with an emphasis on visuals Tasks broken down and retaught as needed. Exactly what “as needed” includes or how this is to be accomplished is not included in the IEP, or in the goals contained therein. (Ex 5-3)

IEP does not adequately address the . “I think it would be important to break things down…he would need to have prompting…he would need to have some one-onone support there…he would need to have some pre-teaching. We would need to be able to put the supports into place that would deal with his anxiety.” (T 300, Ex 5-3)

would add modeling to the academic management needs. (T 300, Ex 5-3)

The IEP includes goal. Student: ‘…will improve his school functioning by participating in school based counseling to help decrease his impulsivity, to improve his ability to solve difficult situations with peers in a rational matter, and to identify strategies to help deal with frustration, and to improve his self confidence for school based tasks.” Student “…will achieve this goal with 80% accuracy through counselor support and teacher conferences. Progress will be measured weekly by counselor.” (Ex 5-10)

This goal is found to be insufficient, vague and ineffective to address the student needs. The goal is written so that it appears the mere fact counseling is offered addresses student need. Goal is not clear as to what student need is being addressed and how the counselor is to meet and measure that goal.

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]). Short-term objectives are required for a student who takes New York State alternate assessments (8 NYCRR 200.4[d][2][iv]).

The aforementioned goal and other goals included in the IEP are found to be insufficient and vague, failing to address the unique needs of the student. I agree with the description of goals offered by : IEP goals are “very vague”, “you can’t measure it”, “no clear benchmark”, “no foundation”, “too high”, “no baseline”, and “broad and generic”. (T 303-308, Ex 5-6, 5-7, 5-8)

acknowledged that the classroom teacher utilized a classroom behavioral system in the classroom, but did not recall any of the details and did not reflect any information regarding the system in the IEP. (T 97)

was asked if she believed the 05/16/2011 IEP was an accurate reflection of the student. “I fell it was missing some key elements…he really needed to have the behavioral piece more directly addressed…it was something that was really significant for this particular child….His and , and he could become very difficult at times to manage. He also--with the behavior modification program that he had, the teacher was ongoing, as I said, to coordinate it with the home and the school. He was able to manage much better in the classroom.” (T 238-240)

There does not appear to be any IEP goal or service designed to target student , or to take into consideration the behavior plan mentioned by the parent and school personnel. Though the school has a behavior plan in place for the class and student, which has been serving the student well, the IEP does not mention student anxiety or management needs related thereto. IEP is insufficient by not including some form of service or goal designed to meet the student need for positive reinforcement, a behavior modification plan to deal with some acting out behaviors, one-on-one support, and prompting, as outlined in the witness testimony. (T 302-303, Ex 5-4)

stated that mainstreaming was not specifically recommended on the IEP, and that the smallest class available to be recommended by the CSE was a program. (T 109)

In limiting CSE consideration of classes and services to the smallest class offered by the DOE, insofar as was aware, in part, denied the student access to a FAPE, by limiting, without justification, the available options for the student.

testified that at times the class is split and the para accompanies one group of the students, based upon where she is needed most, resulting in some student being place, for that time into a mainstream class. (T 156-158)

On cross examination confirmed that, at times, some students are split from the class and go to join mainstream general education classes. (T 179)

The result of the placement into a mainstream class would deny the student the recommended placement offered by the DOE of , as the para is not with the class sent into mainstream.

The result of the DOE testimony is that even if the placement was appropriate, the DOE was unable to provide the setting at the proposed placement, as some students are not kept in the , instead they are mainstreamed at times, without amendment to the IEP or input from the parent, or CSE.

I find the IEP of 05/16/2011 does not accurately reflect the results of evaluations to identify the student's needs, does not establishes annual goals related to those needs, and does not provide for the use of appropriate special education services for the student.

I find the IEP of 05/16/2011, and the resulting placement offer, failed to offer the student a FAPE.

LACK OF PARENT MEMBER

In this case, it is undisputed that an additional parent member did not attend the 05/16/2011 CSE meeting and that the student's mother indeed wanted a parent member at the meeting. Parent agreed to have the meeting based up on the fact that the previous meeting had adjourned due to the lack of a general education teacher, and she did not want to have to take another day off from work to attend a rescheduled meeting, which may or may not have the required parties, and would have been the third scheduled meeting. (T 218, 342-345)

The question at hand is whether or not the absence of an additional parent member was a procedural error that impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H., 2008 WL 3930028, at *7; Matrejek, 471 F. Supp. 2d at 419).

Parent did not receive any documents prior to the 05/16/2011 meeting. Parent does not recall a discussion regarding behavior assessment or plan. At the meeting parent recalls a discussion of progress and goals. Parent recalls the teacher, stating the student made progress and discussion of the program which was recommended. (T 342-345)

Regarding the lack of a parent member DOE position is: “While the meeting proceeded without the participation of a parent member, the parent was represented by the representative who sat on many CSE reviews and was aware of the public school placements including the special class . Parent has also attended other IEPs meetings…and her other children and were familiar with the process and has visited Department of Education classes in the past.” (T 373)

testified that the parent requested a parent member be present, and that the parent was not notified that there would be no parent member, until the time of the meeting. (T 75)

did note that the parent raised a concern regarding the lack of a parent member. (T 56)

A parent member was not available for the meeting, however, the team felt that there was enough support for the meeting to continue. (T 46)

I note that the CSE appointment letter indicates that a parent member will attend only if requested. The DOE cannot absolve themselves of the obligation to provide a parent member by subtly attempting to shift the burden of parent member attendance to the parent, through the appointment letter. It appears that the CSE never intended to have a parent member at the meeting, unless the parent took an affirmative step to request one. Whether or not the parent was aware of this issue raised by the appointment letter, or was aware of the purpose of a parent member, does not relieve the DOE of its obligation. No does the presumed experience of the parent excuse the DOE from providing a parent member. (Ex 12 & Ex 13)

It is possible that the inclusion of a parent member, and the resultant full CSE team, may have been able to address, at least to some degree, the deficiencies off the IEP outlined herein, which denied the student a FAPE. For instance, parent raised concerns over behavior and seemed to accept the limited program placements presented by the CSE. With a parent member, additional options may have been vetted which could have improved the IEP and thus increased the possibility of an appropriate placement.

Based on the foregoing, I find that the absence of an additional parent member at the 05/16/2011 meeting denied the student a FAPE or significantly impeded the parent's opportunity to participate in the decision-making process.

APPROPRIATENESS OF THE CAHAL PLACEMENT

Parents and witnesses detailed the .

Witness outlined student program, modifications made to accommodate the student and student progress. Each witness substantiated the appropriateness of the program for the student.

follows New York State standards and its mission is to meet the individual needs of students and ensure academic, social, and emotional growth. (T 197-199)

Student’s 2011-2012 program was a self contained class of ten students with one teacher and two assistants throughout the day. (T 201)

Student received counseling and speech and language therapy as related services at the school, through the DOE provider agencies. (T 205)

Student schedule included some non-secular services, including, prayer, Jewish customs and holidays and Bible studies. (T 206-207)

addressed unique student needs, in part, with a behavior modification program, a lot of one-on-one attention, a lot of supervision and support, a lot of positive feedback from the teachers, teacher modeled for him, and a lot of explanation given for directions. (T 216)

believed the program to be appropriate due to his progress academically, . A highly structured program was provided with a lot of individual support that addressed his total needs. and the program all helped the student to realize his potential in the program. (T 216-217)

stated that the teacher did have difficulty managing student behaviors at the beginning of the 2011-2012 school year. The teacher was able to manage these behaviors during the school year. (T 251-253) This points again to the need to address the students behavior and needs with greater detail in the IEP.

Student was placed appropriately with students of similar need, and general ranges of functioning of K to first grade. (T 261-262)

described how addressed academic issues. (T 266-268)

described of the student. (T 270)

Assistant teachers provide a lot of extra support. (T 276-277)

Student was allowed access to normally functioning peers for lunch, recess, physical education and science lab. At all times receiving appropriate levels of support. (T 279)

believes the student was appropriately placed for the 2011-2012 school year because was able to manage the student’s academics, and he made progress as indicated by his ability to write sentences, understand addition and subtraction, and understand place value. (T 280-282)

noted academic progress, and social and emotional progress as behaviors were modified. (T 320)

I find that provides an appropriate placement and services for the student.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, twice visited the recommended school with an independent consultant, and continuously corresponded with the CSE. (Ex C, D & E)

Parent correspondence to CSE offered the DOE additional opportunities to rehabilitate the deficient IEP and supply requested information to allow parent to properly consider the offered placement.

Parent did not appear to deny any request from the DOE.

PE states that she had no objection to her child attending a public school program. She eventually enrolled her child at the program, which she felt was appropriate. (T 352-353)

AMOUNT OF TUITION FUNDING

Parent submitted affidavit indicating amount of tuition and balance of $30,000.00. (H)

Parent submitted tuition contract indicating $30,000.00 tuition, plus $500.00 registration fee. Payment of tuition, or arrangement to pay tuition, was due 09/30/2011. Tuition payment can be delayed so long as parent is seeking DOE funding. Payment can be made by installments or with credit card. (I)

Parent submitted attendance record indicating 12 absences for the 2011-2012 school year. (Ex L)

submitted and confirmed the tax return submitted was accurate. testified that she does not own any other homes or properties, that she could not afford to pay the tuition up front, and that she was seeking direct payment of tuition to the for the 20112012 school year. (T 354-355, Ex M)

Parent did not provide any financial information relative to the time period which is the subject of this hearing, specifically the 2011-2012 school year. Tax return provided supplied some basic financial information through the end of 2010. (Ex M)

Without current financial information a determination cannot be made that the parent cannot afford to outlay the tuition and receive reimbursement, either in one full payment, or over the course of time as indicated in the tuition agreement.

class schedule includes 460 minutes of attendance each day for Mondays through Thursdays. Non-secular, religious activities account for 60 minutes each of those days, leaving 400 minutes a day.

Fridays are 210 minutes less 55 minutes non-secular activities, leaving 155 minutes each Friday. However, there are 17 Fridays which run and additional 80 minutes a day. (Ex K)

For the purposes of this hearing I am relying on the Monday to Thursday schedule, which is most common, to determine the percentage of the day dedicated to non-secular activities, which amounts to 13% of the school day.

I find parent is entitled to tuition reimbursement as follows:

$30,500.00 (Tuition and registration fee) less $3,965.00 (non-secular/religious portion of the school day) = $26,535.00 reimbursable tuition amount.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2011-2012 school year.

2. I find the program provided an appropriate educational placement for the student for the 2011-2012 school year.

3. The parent shall be reimbursed for placement at , for student attendance for 2011-2012 school year, in the amount of up to $26,535.00.

4. DOE shall provide parent with any forms required to complete the reimbursement process within ten days of receipt of this Order.

5. DOE shall reimburse parent within 30 days of receipt of any required documents and proof of payment by parent of the 2011-2012 tuition or part thereof, until entire reimbursement amount has been received by parent.

6. This decision is subject to appeal and review by the State Review Officer. Dated: October 9, 2012

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA: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

A. Impartial Hearing Request, dated 06/25/2012, 7 pgs. B Excluded C Rejection Letter, 9/27/11, 5 pages D Rejection Letter, dated 8/11/11, 5 pages E IEP Letter, dated 3/14/11, 2 pages F Grade Report, 1 page G Teacher Report, dated 4/26/12, 4 pages H Affidavit, dated 7/2/12, 1 page I Contract, dated 5/9/11, 2 pages J Program Description, 1 page K Class Schedule, 2 pages L Attendance, 1 page M 2010 Tax Return, dated 3/29/11, 3 pages

DEPARTMENT OF EDUCATION

1 Notice of Scheduled Resolution Session, dated 6/27/12, 2 pages 2 Resolution response form, dated 6/27/12, 1 page 3 Due Process Response, dated 7/5/12, 3 pages 4 FNR, dated 6/15/11, 1 page 5 CSE Review IEP, dated 5/16/11, 12 pages 6 Excluded 7 Teacher Report, dated 3/28/11, 3 pages 8 Classroom Observation, dated 2/17/11, 1 page 9 Progress Report, dated 5/3/11, 2 pages 10 Confidential Progress Report, dated 3/3 & 3/8/11, 5 pages 11 Counseling, dated 2/8/11, 1 page 12 CSE Appt. Letter, dated 3/17/11, 1 page 13 CSE Appt. Letter, dated 3/11/11, 1 page 14 Excluded

15 Class Schedule, 2011-2012, 1 page

IMPARTIAL HEARING OFFFICER

I Subpoena for , dated 08/28/2012, 2 pages II Subpoena for , B dated 08/28/2012, 2 pages II Subpoena for , dated 08/28/2012, 1 page