New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 26, 2011

December 12, 2011

Actual Record Closed Date: February 10, 2012

Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 26, 2011

Parents

Esq. Attorney — Student

CSE District Representative — DOE

CSE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 12, 2011

Parents

Esq. Attorney — Student

Director of Special Education – — Student

(via telephone) — Student

Teacher, (via telephone) — Student

CSE District Representative — DOE

INTRODUCTION

This case was brought before me upon my designation by the Department of Education (―District‖) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (―IDEA‖), 29 USC §1400[f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parent (―Parent‖) on behalf of ., the student (―Student‖), through her attorney , Esq. from the law office of , by filing a Due Process Complaint on June 27, 2011 with the District. The District was represented by , CSE District Representative.

The Parent is alleging that her son, , was denied a free and appropriate public education (―FAPE‖) for the 2010-11 school year and is seeking tuition and transportation for his unilateral placement at the for said year. D-1.

There were two days of hearings in this matter. Hearings were conducted on October 26, 2011 and December 12, 2011. Extensions were granted in this case and briefs were filed making the final compliance date February 10, 2012. A list of Exhibits is attached as Exhibit A. Both Parent and the District submitted exhibits. The Impartial Hearing Officer is submitting the parties memoranda of law as exhibits as well.

BACKGROUND

This case involves a year old student. During the 2010-11 school year, the student attended the where the Student was unilaterally placed by the Parent.

On November 9, 2010, the Parent sent a letter to the District requesting that an Individualized Education Program (―IEP‖) be developed for her son. P-C. The file was being sent from District for their review. P-C. A Social History was taken on November 19, 2010 (D-3) and a teacher observation was conducted on November 12, 2010 (D-4). The Committee on Special Education (―CSE‖) meeting took place on December 16, 2010 and it was determined at that time that additional evaluations were required. A Consent form was signed by the Parent and . was evaluated on February 7, 2011 . D-2. A CSE meeting took place on March 25,2011. D-5. At that time the District determined that the student was non-handicapped and was recommended for general education. D-5.

The Parent then sent a letter dated March 30, 2011 indicating that she disagreed with the decision at the March 25th CSE meeting ( P-D) and on June 27, 2011 the Parent sent a Due Process Complaint to the District requesting tuition reimbursement, provision of transportation and related services. D-1. I was appointed as an impartial hearing officer on June 27, 2011.

POSITION OF THE PARTIES

Parent’s Case

The Parent called three witnesses, , , and and placed ) documents in evidence. P-A – P-K.

The first witness was . She is a teacher who is certified to teach through in English. She is a general education English teacher at the Tr. 75-76. She is familiar with . because he was her student for the 2010-2011 school year. Tr. 77. She is presently his teacher as well. Tr. 88. She testified that in her grade class, they are reading ―The Great Gatsby‖, ―To Kill a Mockingbird‖, and ―Macbeth‖. Tr. 78.

She testified that‖ is a special education school for students who have a variety of . The classes are very small, so it makes it easier for the teacher to reach every single student and give them the individual attention they need . . .‖. Tr. 78. She testifies that many of the students have IEP’s. Tr. 78. She stated on cross examination that no regents are given just Regency Competency Tests (RCT’s). Tr. 91.

She stated that there were students all together in her class including ., boys and girl. Tr. 79. She also stated that these students are together all day and that she communicates with the other teachers and has formal and informal staff meetings. Tr. 79. She testified that she is the only teacher in the room. She stated that . was extremely creative but very disorganized. Tr. 79. She stated that ―he will start many things but never follow through. He needs a lot of focus. . .‖ Tr. 80. With respect to writing stories, she testified that ―. . . he comes to me with great ideas for writing and then he doesn’t finish them up. And he really needs a great deal of individual attention to help keep on task and to finish what he starts.‖ Tr. 80.

She stated that with respect to poetry, ―He can write poetry, no problem, because it’s straight and to the point.‖ Tr. 81. She indicated that in order to help him she would do outlines and story plans with him. Tr. 82. She testified that his grades in English for the four quarters were and respectively; an on the final; and a final grade of Tr. 86. She stated that of his grade is based on projects, writing tests and quizzes, on homework and on classwork. Tr. 86.

Ms. testified that there were times that he would seem tired in class and lack attention and focus, ―like many teenagers‖, but there were other times when he could not focus. Tr. 82. At these times, the teacher stated that she would refocus him and call his attention to it. Tr. 83. She testified that this was his biggest deficit. Tr. 84. She also stated that his reading comprehension skills were good and in class she testified that he is ―a reader on his own. He reads all the time.‖ Tr. 92. She stated that he has no trouble with decoding or spelling words and has a great vocabulary. Tr. 93. With respect to fluency, she says he may miss a few words because he is reading too fast. Tr. 97.

Ms. testified that being in a small class gives . the opportunity to receive individual support and attention and helps him focus himself. Tr. 85. She stated that she thought he might get lost in a larger class. Tr. 85. She further stated ―I think in a public school setting, I don’t see him being as successful.‖ Tr. 86. Ms. testified that she believes that the Student has become and makes sure that he is on task now. Tr. 88. She also , his and he was never . Tr. 89.

The second witness was . She is a New York State certified special education teacher for grades four through twelve. She became certified in 2003. Tr. 102. She just became the Director of Special Education for the School this year. Tr. 104. For 20102011, she was an elementary school teacher at School, she also worked as a teacher for five years before that at . Tr. 103-104. She testified that ― is a private school that addresses the needs of reluctant learners, with students with learning disabilities, such as attention deficit disorder (― ‖) and (― ‖), , Disorders in grades four through twelve.‖ Tr. 104.

She testified that is not State approved but they are chartered by the New York State Board of Regents as an independent non-profit institution and they are accredited by the New York State Association for Independent Schools. Tr. 105. There are three school buildings – lower school, grades through middle school, grades through and high school, grades through Tr. 105.

Ms. testified that she did not have any responsibility for teaching during 2010-2011, however she had reviewed his educational file and was familiar with his special education program in 2010-2011. Tr. 106. She stated that she thought there were students in grade with . (tr. 106) and had no idea how many students total were in the high school. Tr. 107. She testified that the mission statement of is ―to provide a small nurturing and supportive setting for students and students are provided with the necessary education and social support that will enable them to reach their highest potential and become productive members of our global society.‖ Tr. 108. The teachers are certified but do not necessarily have to be certified in their branch area and special education. Tr. 108. Ms. testified that no class in the high school is larger than and one teacher is assigned to each class. Tr. 109. She stated that the curriculum is based in the New York State Learning Standards and that the diploma the students receive is a general diploma, a school diploma. Tr. 109. They do not administer regents, just RCTs. Tr. 110.

Ms. testified that he took an RCT in math and reading. Tr. 110. She stated that based on his file, he appears to have issues in ―attending, staying focused, organizing his thoughts, and his processing speed. Tr. 110. She stated that extracurricular activities are built into the day. Tr. 111. She testified that not all students are classified. Tr. 111. She also stated that does not have related service providers on staff. Tr. 111. She testified that ―. . . . As far as New York City goes – the students receive an RSA Form-- where you have a service provider that works with the RSA Form and we can get these services during the school day.‖ Tr. 112.

The third witness was . She stated that was her and he is presently old. Tr. 120-121. She described him as . Tr. 121. in the and remained there through . Tr. 120,

123. She testified that he was . Tr. 121. His mother testified that the school did not provide services so she took him to . Tr. 122. She said that he was doing better until grade because the school only had kids per class. Tr. 122. She then stated that they then ―put him in a class with and then he went down.‖ Tr. 123. She testified that in the the principal told her that he wouldn’t be able to do it through high school in the School and that she should look for a smaller environment. Tr. 122. It was at this time she had him evaluated for the first time by Dr. . Tr. 122.

The mother testified that the Student then went to the , a private independent school in and remained there for . Tr. 123. In he went to the . Tr. 124. While at the , Ms. testified that ―he was doing poorly in every aspect of his life in . He was isolating. And the teachers…they didn’t understand him.‖ Tr. 124. She stated that she was called to an emergency meeting three times because he would say .‖ Tr. 124. Ms. testified that he had an IEP with at this time. Tr. 125. She testified that at he was . She specifically stated that ―he because there were , , .‖ Tr. 125.

Ms. stated that the first time . received an IEP was when he was at the . Tr.

127. She then testified that he first got the IEP in the city at the end of grade when he was still at the . Tr. 127. She then indicated that he may not have had an IEP while he was at the . Tr. 128. Her testimony went back and forth on this issue. Tr. 130. With respect to the services he was receiving while at the , she testified that as a result of his IEP he was receiving resource room five days a week and therapy one time per week for . Tr. 131-132.

Ms. stated that Dr. evaluated . two times. Tr. 127. She had him evaluated the second time because he wasn’t doing well at and she was concerned. Tr. 132. She also testified that her felt that he was suffering from a lot‖. Tr. 132.

When she decided to have . leave the and move him to the , she spoke to someone at regarding a placement in the city and was told that ―the type of education that I wanted, they provided for . That my kid had to go to the larger school and he would take only the classes that he was having problems in, in a small environment.‖ Tr. 132, 134. Ms. testified that in October or November of .’s junior year, while at the School, she spoke with Ms. from the District. Tr. 135. Ms. testified that she had her son’s file transferred to the city and was told that the CSE received the file. Tr. 136.

The Parent testified that the CSE met December 16, 2010 at and that the meeting took an hour and a half. Tr. 137. She testified that it seemed to her that they had not read the documents prior to the meeting. Tr. 137. She stated that they decided at the meeting that they needed to do a further evaluation on her son (tr. 137) and had her sign a consent at that time as well as the Social History. Tr. 140; 156. Ms. testified that she passed around her documents at the meeting. Tr. 138. She testified that she had no contact with the District between her letter of December 16th (P-B) and her letter of February 1st (P-C ) and that her son was evaluated on February 5th , 2011. Tr. 140. She testified that she had also sent a letter on December 16th after the first CSE meeting. P-A.

Ms. testified that the CSE held another meeting after the District conducted a evaluation on February 5th. Tr. 140. The meeting took place on March 25, 2011. The Parent testified that she attended and participated in the meeting. Tr. 142. She also indicated that they sent her a copy of the evaluation prior to the meeting. Tr. 142. The Parent testified that the CSE had the documents from and they also had Dr. ’s evaluation, since they mentioned it at the meeting. Tr. 153. In addition, . had been observed by a named on November 12, 2010 (Tr. 155; D- ) and the document was also before the committee. She testified that although she doesn’t remember receiving it, she knew that Ms. had mentioned it. Tr. 157. The Parent testified that , the who had evaluated (D-2) spoke at the meeting. She stated that Ms. indicated that . was a confident boy, who knew what he wanted and didn’t have problems. Tr. 143. Ms. said that the evaluator was impressed with her son’s vocabulary and his reading. The Parent testified that she told the committee that her son still had problems and that he needed a small school in order to function. Tr. 143-144.

Ms. testified that she thought her son was doing well at the because ―he found people like him‖ and ―the teachers knew how to teach.‖ Tr. 144. Ms. stated that the committee did not recommend special education services at the March 25th 2011 meeting. Tr. 145. She testified that the committee said that her son . She testified that she was not in agreement with the decision and sent a letter to the CSE on March 30th expressing her disagreement with their decision and asking for another CSE meeting. Tr. 145-146. The Parent testified that her son was doing so well at that he was taken off his because he didn’t feel he needed it. She stated that ―He said he felt that he could do it because his classes were small and the teachers knew how to teach him.‖ Tr. 146. District Case The District called one witness, and placed six documents into evidence. D1—D-6.

is a certified school psychologist. Tr. 28. She has been certified for close to twenty years and has worked for the Department of Education for nineteen years. Tr. 28. She testified that ―her responsibilities are to provide testing and make recommendations about whether a particular student would need special education services from the DOE.‖ Tr. 29. She stated that she knew . because she evaluated him in February 2011. Tr. 30. She indicated that did the IQ testing and educational testing. Tr. 31. She testified that she gave him a , which is the Test. Tr.

31. She stated that ―the test is to see whether a student will have the common sense abilities to learn the materials in the classroom.‖ Tr. 31. She also testified that she gave the to the Student to see what his particular skills were. Tr. 32. Ms. also testified that she did an informal assessment which she referred to as a procedure ―to understand his feelings about school, and whether there are any other factors that might affect his learning in the school.‖ Tr. 33. The testified that it is done to understand ―his .‖ Tr. 34. She stated that she uses the two standardize tests because they are reputable and she needed to understand ―whether cognitively he would be able to understand what’s being taught in the classroom and then whether he’s able to learn whether he is able to conform educationally.‖ Tr. 33. When asked about the results of the testing, Ms. testified that , therefore she stated that he is able to learn the material according to his age expectancy. Tr. 34. She testified that his verbal IQ is which is in the range, his performance , which is and his overall and is in the . Tr. 34. The psychologist testified that she did not see any deficit in this particular area. Tr. 35. With respect to the projective testing she stated that there were times he which might imply some signs of Tr. 35. She testified that he likes his current school and wants to go to college. He stated that he accepts his ’ but is concerned about his . Tr. 35. He stated that he and . Tr. 36.

Ms. testified that she attended the March 25, 2011 CSE meeting. Tr. 37. She stated that the recommendation of the committee was that he should not be classified. Tr.

38. She testified that ―Based on my report, the observation, teachers report, and also from the Parent’s input‖, the decision to recommend general education was unanimously agreed upon. The only one that disagreed with the recommendation was the mother. Tr.

38. Ms. testified that the mother objected to the fact that the Committee did not classify him for special services, and she stated that she wanted the DOE to pay for the tuition at the . Tr. 39. Ms. stated that the whole team tried to explain to the mother that based on the test findings, all the input from the teacher, and the mother, his functioning and his well-being that he cannot be classified. Tr. 39.

On cross examination, the stated that she did not test his organizational skills. Tr.

46. She also said that she did not test his spelling skills because she did not feel it was a concern for this case. Tr. 57. She also reviewed a writing sample with him.. Tr. 52. Ms. testified that with respect to numerical problems, he . Tr. 47; D-2. She testified that this could be because he and made . Tr. 48. For numerical operations . was in the percentile (tr. 47) and for reading comprehension he was in the percentile. Tr. 49. Ms. testified that for these areas and all subtests he was in the except that for word reading and pseudo decoding he was in the above average range. Tr. 60.

FINDINGS

Two purposes of the IDEA (20 U.S.C. § § 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual 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. 1499[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]

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee Of the Town of Burlington v. Dep’t of Educ.of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.(Rowley, 458 U.S. at 206-07 Cerra , 427 F.3d at 192.) A school district offers 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. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F,3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, 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). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement' (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211). 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 recommended program must also be provided in the least restrictive environment. (34 C.F.R. §300.550[b]; 8 NYCRR § 200.6[a][1].)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parent alleges that the District did not comply with the procedural requirements of the IDEA. The District provided evidence that it conducted a evaluation of the child (D-3), that it observed the child in his setting at the School (D-4), that it conducted a Social History of ., and that it convened a two CSE meetings, one on December 16 , 2010 and one on March 25th , th 2011, to determine whether . should continue to be classified and whether it is necessary to develop an individualized education program for this student to enable him to receive a free and appropriate education in the least restrictive environment.^[1] The District further provided evidence through its IEP document dated March 25, 2011 (D-5) and CSE Minutes also March 25, 2011 that the mandated members of the CSE were present at the meeting and the committee reviewed the appropriate documentation in making its recommendation. In this regard the March 25, 2011 IEP minutes clearly set forth that the following documents were reviewed (D-5): Report dated February 7, 2011(D-2); Physical 2011; Private Report from the Parent’s psychologist, Dr. dated November 5, 2009 (P-F); the Teacher Reports from the School from the Student’s English, Social Studies, Math and Science teachers from 2010-11 (PE). In addition Ms. testified that the CSE had the documents form (tr. 153) and the Social History (tr. 140, 156)It is also clear form Ms. ’s testimony and from the CSE minutes (D-6) that the Parent participated at the meeting.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its March 25th CSE meeting, was correct in determining that the student was not eligible for special education services as a student with a disability.

The IDEA defines a ―child with a disability‖ as a child with a specific physical, mental or emotional condition, ―who, by reason thereof, needs special education and related services (20 U.S.C. § 1401[3][A]; Educ. Law §4401[1], [2][k]). In order to be classified, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student’s educational performance to the extent that he or she requires special services and programs.(34

C.F.R. § 300.8[a],[c], 8 NYCRR 200.1[zz]. Although the child was diagnosed with at age ( D-3 ), it does not appear that ―the condition adversely impacts upon .’s to the extent that he requires special services and programs.‖ There is no evidence as to what his classification was through since the IEP from was not placed in evidence by either party, however, Dr. ’s Report indicates that his classification should be ( ). The definition of has two components: a such as and an adverse effect on the child’s educational performance. 8 NYCRR§ 200.1 [zz][10]. It is the causal connection between the health impairment and educational difficulties that mandates recommendation of classification and of special education and related services. A.J. v. Board of Education, 679 F. Supp. 2d 299 (EDNY 2010).Based upon and test results (D-2 ) and his performance in school, as evidenced by his report card and the oral and written reports of his teachers at School, I find educational performance was not adversely affected by . (see Application of a Student with a Disability, Appeal No. 11-115; A.J., 679 F. Supp. 2d. at 308-11)^[2]

All of the teachers at indicate that the child was doing well. In the minutes to the CSE meeting, it states that ―The science teacher indicated that [ .] is able to work and make inferences that are grade level. His scores are always above

-teacher feels he needs no remediation and works his potential, Teacher also indicated that his writing paragraphs are and well any student in the class. The Director-Ms. indicated that [ .] is academically performing grade level and is extremely well versed and mature. He has done at . and far beyond other students in the class…‖ D-6. The District’s school psychologist, Ms. testified that the student’s academic achievement was in the and range, as indicated by the student’s testing results. D-2. Even Dr. ’s

Report shows that he performed or in all academic areas except math fluency, which was attributed in part to carelessness. P- F. The report card submitted by the Parent was Exhibit K showed final grades all above including a in English, a in Geometry, a in American History and a in both Chemistry and Spanish. P-K. There is no question that he has , however, he has learned to be aware of his (tr. 85) and is responsive to redirection (D-6). With respect to , his English teacher, Ms. testified that he was never a behavior problem. Tr. 89. His Parent indicated that he was seeing a situation. Tr. 132; Tr. 125. Ms. ’s evaluation indicates that he ― …‖ D-2. It should be noted that there is an indication that there were in play when the Student was attending the , during the time when Dr. s evaluation was conducted. In the Social History, Ms. stated that the Student was also diagnosed with . D-3.

In order to be classified, the final criterion for eligibility involves whether the child needs special education as a result of his alleged disability. This inquiry must be made by a CSE ―even though ―the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.‖ (34 C.F.R. §300.10[c][1]; 8NYCRR 200.4[c][5]. Even assuming . met the criteria for because his educational performance was adversely affected by his , which it does not, there is no indication that ―by reason thereof‖ he needed special education and related services. (20 U.S.C. § 1401 [3][A]; see Educ. Law § 4401[1], [2] [K]; A.J., 679 F. Supp.2d at 306. At the time of the March 25, 2011 CSE meeting achieved scores on standardized testing in the average and above average range for academic functioning and demonstrated the ability to utilize strategies to improve his academic success. It is true that he could benefit from a smaller setting; all students can, but that doesn’t mean that he requires it to receive educational benefit.

For all of the foregoing reasons, I find that the District appropriately determined that was ineligible for classification as a special education student. Hence it is not necessary to consider Prongs 2 and 3. See Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record. Issue 2-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parent bears the burden of proving the appropriateness of the services he seeks for . In order to meet that burden, the Parent must show that the provided by the Parent offered an educational program designed to meet ’s special education needs . Burlington, 471 U.S.at 370; M.S. v. Board of Education of the City of Yonkers, 231 F. 3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that ―Subject to certain limited exception, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…‖( Frank G. v. Bd. Of Educ., 459 F3d at 364 (2d Cir 2006)(quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on ―whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F3d at 112. ―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 services as are necessary to permit the child to benefit from instruction.‖ Gagliardo, 489 F. 3d at 112, See Frank G., 459 F3d. at 364-65) See also A.D. and M.D. v. Bd. Of Educ., 690 F. Supp. 2d 193 (2d Cir 2010).

The Parent has not met its burden in showing that the was an appropriate placement for . If the Parent is suggesting that is a state approved special education school; it is not. It is an independent school that addresses the needs of reluctant learners, students with learning disabilities, students that have or , or . Tr. 105. In addition, it is not state approved. There was no testimony indicating that the Student was receiving special education services of any kind. According to his schedule ( P-I ), is not receiving resource room. In addition, his teacher, Ms. did not indicate that she used special education techniques in her English class; outlining and story planning are done in most general education classrooms. I n fact, she testified that she was a general education teacher and was not certified in special education. Tr. 82 . In addition, she indicated that .’s biggest is attention and she would . that is used in most classrooms in public and private schools to help children with . The fact that there are no regents exams only RCTs indicates that the program is not that challenging. For a student as successful as . a more challenging curriculum should be offered. In addition, although students in a classroom, many of whom have educational issues, may provide for more opportunities for individualized instruction, it is very limiting and would not be considered the least restrictive environment for a student like .

For all the foregoing, I find the Parent has not met her burden in proving the appropriateness of the . Issue 3-Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never 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 USC 1412 (a)(10)(C) (ii). I find that the Parent placed months before notifying the District that it had done so in accordance with the Enrollment Contract dated July 12, 2010. P-G.

Therefore, I find that the Parent did not cooperate with the District and according to the Burlington criteria, could require a ruling against her, and a denial of tuition reimbursement in this matter .It is not necessary to reach Prong 3, however, since the District correctly determined that the Student was ineligible for classification as a special education student, hence I need not reach the issue of whether equitable considerations support the Parent’s claim for tuition reimbursement. (see Burlington, 471 U.S. 359, Gagliardo, 489 F. 3d at 115; M.C. v. Volutown Bd. Of Educ., 226 F. 3d 60, 66 [2d Cir. 2000])

Accordingly, I found that the District appropriately determined that was ineligible for classification as a special education student under Prong 1, School would not be appropriate and the equities would not favor the Parent in granting reimbursement.

IT IS HEREBY DECREED that the Student does not meet the requirements for classification as a child with a disability and that therefore the District did not deprive the Student of FAPE for the 2010-11 school year and is not entitled to tuition reimbursement, transportation or related services. Dated: February 9, 2012

_____________________________

Impartial Hearing Officer

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

District Exhibits

No. Date Document Pages

1 6/27/2011 Request for Impartial Hearing

1

2 2/07/2011 Evaluation 3

3 11/19/2010 Social History 2

4. 11/12/2010 Observation 1

5 3/25/2011 IEP 5

6 3/25/2011 CSE – Minutes 3 Parents Exhibits No. Date Document Pages A 12/16/2010 Letter from Parent to CSE 2 B 2/01/2011 Letter from Parent to CSE 2 C 11/09/2010 Letter from Parent to CSE 2 D 3/30/2011 Letter from Parent to CSE 2 E 2010-11 Classroom Teachers Reports 4 F 11/05/2009 Confidential & 22

Update

Evaluation Report G 7/12/2010 Enrollment Contract 1 H 2010-11 Attendance Records 1 I 2010-11 School Schedule 1 J 8/16/11 Affidavit 1 K 2010-11 Report Card 1 Impartial Hearing Officers Exhibits No. Date Document Pages A 1/11/2011 Closing Brief and Memorandum of

Law for Department of Education 5

B. 1/10/2011 Closing Statement in Support of

Petitioner’s Claim 9

Footnotes

[1] I note for the record that the Parent sent a letter to the District dated November 9, 2010 requesting that a CSE meeting be convened so that an IEP could be developed. The Parent did not request that the IEP that was developed by the District be implemented in this District pending the CSE meeting. The Parent had already placed her child at the and was looking to see what the DIstrict’s CSE had to offer in regard to special education programs and placements. P-C Infact, the IEP developed by was never introduced by the Parent into evidence and it is unclear whether one was developed for the 2010-11 school year at all since none of the Parent’s witnesses made mention of the IEP. To facilitate s transition, the District received a copy of the record from , set up the December 19th CSE meeting to review the documentation, then obtained a Consent to evaluate so that it could conduct a CSE meeting with all necessary documentation.

[2] I note that the Student took for from grade through grade The Student was not taking at the time of the CSE meeting nor was he taking it while at . Therefore, .’s grades were not adversely affected by the . TO the contrary all of his grades have improved since he left the and cased the