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: November 7, 2011

January 30, 2012

March 20, 2012

Actual Record Closed Date: April 4, 2012

Hearing Officer: Lynne Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2011

Advocate for — Parents

District Representative — DOE

IEP Team (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2012

Advocate for — Parents

Parents

CSE- Representative, Social Worker — DOE

Social Worker (via telephone) — DOE

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

Advocate for — Parents

Parents

Assistant Director, (via telephone) — Student

Ph.D., Chairperson Designee — DOE

JURISDICTIONAL STATEMENT

By letter dated June 28, 2011 I was appointed to hear the Matter of . pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 US Code Section 1415 (f)(l). On November 11, 2011, January 30, 2012 and March 20, 2012 the matter was heard. At this time, the proceedings were closed and no further testimony taken. As a result thereof, the compliance date was duly extended to April 4, 2012. It is noted that this is a Parental request for tuition reimbursement at the Special Education Academy (hereinafter “ ”) for the 2010-2011 school year. In furtherance of this, the Parent asserts that the proposed Department of Education placement is neither suitable nor appropriate for her child, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

testified as lead witness on behalf of the Department of Education. Mr. is assigned as a special educator to CSE- and, in this capacity, participates in the preparation of Individualized Education Programs (IEP) in his District. The witness had no independent recollection of .’s IEP meeting and basically read off of the IEP and the Committee on Special Education (CSE) minutes. November 7, 2011 Tr. at 17, 28. On June 10, 2010, the CSE met for the purpose of developing an IEP for . Other than the Parent and a representative from , no one from the Department of Education had any knowledge of the child. The team did not include a parent advocate and there was no waiver in the record. The witness had no recollection of the circumstances surrounding the waiver. Ibid. at 23-24, 28, 30.

In preparing the child’s IEP, Mr. testified that the CSE team had relied upon several documents including a social history, therapy records as well as an unsigned observation. The witness initially testified that he believed , an administrator from , had performed this observation although the IEP indicates that Ms. signed into the meeting as the Assistant Director of C-368. November 7, 2011 Tr. at 24. Exh. 6 at 2. The witness later changed his testimony, indicating that had conducted the observation, a fact he based upon his knowledge of Ms. ’ handwriting. Ibid. at 40. The document itself does not provide any basis for determining its authorship.

Mr. noted that he “believed” the CSE had based its recommendations upon the evaluations presented and discussed his custom and practice when conducting CSE meetings. He could not recall the nature of the CSE’s discussion or whether there were any specific objections to the recommendations generated at that time. Similarly, he did not initially recall the basis for determining .’s classification. On cross-examination, however, the witness reviewed a Evaluation dated June 11, 2009 and recalled that a diagnosis of ), referenced within the report, had been the basis for .’s classification. Nevertheless, he testified that he did not know if the CSE possessed any medical documentation confirming a diagnosis of .

Although the child had been assigned to general education classes, Mr. could not recall the basis for changing the child’s program to a paradigm and did not know the program from which the child had been switched. Mr. had little knowledge of how the child’s goals had been determined nor had an participated in the proceedings. Rather, the witness testified vaguely about meeting the “child’s needs.” November 7, 2011 Tr. at 34-37. Mr. additionally did not know who had developed the IEP goals or how they had been formulated. Ibid. at 36. He opined, however, that given the child’s average intelligence, it would not be unreasonable for . to achieve one year’s growth on his IEP goals. Ibid. at 39. Mr. concluded his direct testimony by noting that he has no involvement with the placement component of a student’s education, but testified nevertheless that the placement offered to . was appropriate. Ibid. at 28.

additionally testified on behalf of the Department of Education. Ms. is a social worker assigned to . She described the various programs available at her school and opined that . would be appropriately placed at this school, an opinion she based solely upon the IEP. In furtherance thereof, Ms. testified that she had visited the two third grade classes in which . might have been placed and, based upon her observations, the student academic and profiles correlated well with that of D.S. January 10, 2012 Tr. at 53-55. She testified that the students were reading at the level, an opinion derived from her experience participating in Educational Planning Conferences, performing social histories and speaking with both personnel and parents. January 30, 2012 Tr. at 62-63. Nevertheless, she did not know which class . would have been assigned to nor could she identify his teacher for the 2010-2011 school year. She further acknowledged that she did not provide social work services to anyone in the third grade 12:1:1 classes during the 2010-2011 school year, but may have entered the classroom to provide crisis counseling. Ibid. at 64.

Nevertheless, Ms. was familiar with the and indicated that that the children receive two periods each of math and English. During these times, differentiated instruction is provided in small groups. Students are offered on site related services and have lunch with mainstream students.

THE PARENTS’ CASE

testified as lead witness on behalf of the Parents. Ms. is the Principal of The witness holds a Master’s degree in reading. In her capacity as Principal, Ms. is responsible for supervising curriculum, interfacing with parents and supervising instructional staff. As such, Ms. was familiar with . and his classes. During the 20102011 school year, there were eight classes, grades one through eight at . The witness testified that each class was staffed with a certified special education teacher as well as a teaching assistant. Moreover, each child is assigned to a social worker and receives counseling whether or not this is part of the student’s IEP mandate. Tr. at 106-108. During small group instruction, an additional instructor is assigned to the class. She noted that state standards and curriculum are utilized at .

During the 2010-2011 school year, . was assigned to a classroom of nine third graders with one teacher and a teaching assistant. As the year progressed, however, three fourth graders and their teacher shared the room in addition to various therapists and observers pushing into the class. Nevertheless the witness did not view this as a particularly distracting environment and indicated that the students were largely oblivious to this activity. Tr. at 81, 101. Finally, the witness described the child’s daily schedule which is a dual Hebrew-English program including religious instruction. During the 20102011 school year, the related services of (OT) could not be provided on site.

The witness noted that was ” and . Tr. at 80. This included into his assignments. Tr. at 113. Beyond this, . Tr. at 79-80. In response and as part of his educational programming, the was implemented. As the year progressed and guidance of specialized experts in reading and writing. Tr. at 83-84.

The witness indicated that were similarly mirrored in his Hebrew language classes. During these times, “the reading was very difficult for him and he had one to one instruction. And we were very careful with . to really not push further than what we felt he could handle. . . a lot of it was conversational, not really a lot of reading – when it came to writing, which was difficult for him also. We really just tread very carefully with . on story content, conversation.” As a result, .’s spelling and writing assignments were . Tr. at 97, 130.

With regard to math, the witness testified that this was an area of relative strength for . as long as . The child’s computation skills were addressed through the .

Mrs. ., the child’s mother, additionally testified. She provided a brief history of her son’s educational experiences, noting that .’s issues became apparent as . By first grade, the child’s grades had begun to decline and, as a result, she sought out a private evaluation for . Thereafter, . was diagnosed with a reading disability.

On June 10, 2010 Mrs. . participated in a CSE convene for her son. Tr. at 146147; Exh. C. At this time, a recommendation was made for the student. Exh. C at 2. Thereafter, a Final Notice of Recommendation dated July 14, 2010 was sent to her with a recommendation for . Exh. D. On or about October 7, 2010, the Parent testified that she visited this placement for approximately 45 minutes and was disturbed by the ostensible lack of small group instruction. Tr. at 148. During the course of her tour, Mrs. . additionally testified that she was uncomfortable with the limited information she was receiving about parent-teacher communications. Tr. at 160. Although the Parent’s first tuition payment was made to on April 20, 2011 and a second payment made on August 13, 2010, a subsequent ten day notice was forwarded to the Department of Education on August 18, 2010. Exh. J. The Parent testified that, had . attended public school, this payment and others could have been credited to her other children’s tuition obligations at . Tr. at 152.

THE DEPARTMENT OF EDUCATION’S POSITION

The School District maintains that the June 10, 2010 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the Department of Education asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Although not specifically articulated, its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

The District further maintains that is an inappropriate placement for the student. As an ancillary argument, the School District further contends that the Parents’ actions militate against their equitable entitlement to relief.

THE PARENT’S POSITION

The Parent, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985 maintains that the educational program at is appropriate for her child. Consistent with her position, the Parent maintains that there are no equitable factors which militate against her recovery in this matter.

DISCUSSION

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the Individuals with Disabilities Education Act (IDEA) (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

I. Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the June 10, 2010 IEP reasonably calculated to confer an educational benefit upon D.S. during the 2010-2011 school year? Procedural infirmities

At the outset, I will first address the Parent’s procedural claim that the CSE was not durly constituted and, as such, any IEP prepared in the absence of required members must be deemed a nullity. On July 20, 1999, section 4402(b)(1)(a)(viii) of the Education Law was amended to provide that a student’s parents could request that the additional parent member of the CSE not attend the CSE meeting for that student. On January 6, 2000, the Regulations of the Commissioner of Education were amended to provide that notice given to parents of a prospective CSE meeting must inform them of their right to decline, in writing, the participation of the additional parent member of the CSE in the meeting (8 NYCRR 200.5[c][2][v]); Educ. Law §4402 [1][b][1][a][viii]).

On June 10, 2010 the CSE convened for the purpose of formulating an IEP for . and to make educational recommendations to be implemented as of September 1, 2011. Although the lack of a parent advocate does not establish a per se procedural infirmity which would compel nullification of the IEP, it is a consideration which, in aggregate with more substantive violations, places the Department of Education in abrogation of its IDEIA mandate. In this matter, I find that the lack of a parent advocate was a de minimus infirmity as the Parent’s advocate was present by telephone for the proceedings. Substantive Defects

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

I find, ab initio, that the Department of Education has not met its burden of establishing FAPE. In particular, Mr. Seidenstein, the CSE representative, based his testimony upon little more than speculation and conjecture. The CSE representative had no recall regarding the manner in which the IEP had been drafted or how its goals had been prepared. Although the child demonstrates “significant delays” in reading, the two reading goals in the IEP are generically stated and do not address any specific decoding skills although this is a primary area of the child’s needs. Exh. 8 at 10.

In fact, the Report indicates that . demonstrates specific weaknesses in his ability to “match words with pictures, read sentences and paragraphs and answer questions.” Ibid. While it is clear that the and level, the IEP’s goals do not address any of this. Clearly, one does not know which phonetic rules . will be expected to learn, if any. It is, moreover, noted that there are no short-term objectives and little more than referring to “teacher report,” as a means of assessment.

Assuming that the reading goals address comprehension, however, the goals do not reference how this will be achieved in terms of developing specific comprehension tools (i.e. inferencing, predicting, sequencing, learning to identify key words, clues, and cause/effect relationships) to access this material. The mere identification of characters and settings in a book connotes little in terms of developing the underlying comprehension skills which will eventually support more complex materials.

Similarly, the lone writing goal is broadly articulated and does not reference any of the child’s individual needs. There are no spelling goals or goals directed at ’s inability to generate sentences or words spontaneously. As with all of .’s goals, there are no short-term objectives or benchmarks specifically relating to .’s progress. Likewise, there are no mastery criteria and no baseline from which to work. The absence of this specificity leaves no accountability for measurable improvement.

Notwithstanding the repeated and subjective provision for “teacher observation,” it is unclear how progress will be quantified objectively. The goals are simply not individualized and they fail to meaningfully address ’s decoding, retrieval and comprehension deficits. Ironically, the only goals which are specifically described and quantifiable are the occupational therapy goals, a service not provided by the School during the 2010-2011 school year.

Finally, Mr. ’s remarks regarding the appropriateness of a placement of which he admittedly knew nothing did little more than compromise the integrity of testimony already on shaky ground. November 11, 2011 Tr. at 28. The witness offered further inconsistent testimony regarding the authorship of the Department of Education’s observation. He could not recall the circumstances associated with the lack of a parent advocate and testified that various documents had been utilized by the Department of Education although they are nowhere referenced in the IEP itself.

Although social worker Berkun maintained that would have been appropriately placed in classroom, she has no educational credentials nor has she ever met the child. Her determination that . would have been appropriately placed was simply not credible. She based her opinion on general recollections of reading levels gleaned by participating in Educational Planning Conferences, conducting social histories and speaking with others. She acknowledged, however, that she did not provide direct service to any students in the classes other than to provide ad hoc crisis intervention. In sum, Ms. s lack of expertise, limited recollection and unfamiliarity with substantively limited the value of her testimony. Given all of the above, I find that the IEP is substantively defective.

II. Was an appropriate educational placement for . during the 2010-2011 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parent’s burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find, at the outset, that the academic program offered at is only marginally appropriate. The testimony indicated that during the 2010-2011 school year there were at least 12 children in ’s classroom along with three teachers and a revolving assortment of push-in related service providers and observers. Three of these students were fourth graders presumably following a different curriculum. I am simply not persuaded by Ms. ’ testimony that the children were unfazed and undistracted by the extraneous stimulation offered by this environment.

In furtherance thereof, it should be noted that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the heightened presence of occasioned by the enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. Significantly, once distracted, it does not address the difficulties associated with re-establishing focus and on-task performance, especially for a child who is medicated for .’s participation in a classroom with , extra teachers and a rotating series of related service providers is simply inconsistent with the smaller, structured non-distracting environment recommended by Ms. . Exh. 8.

I find, in addition, that it is inappropriate at this time to expose the child to a second language when he is struggling for mastery of his first. Indeed, Ms. indicated that many of .’s decoding issues which manifest themselves in reading and writing English are generalized to Hebrew. Under these circumstances, I see no reason to expose a child to this self-defeating exercise, especially an emotionally fragile child who is described as “at risk,” insecure and anxious in relation to school. Exhs. 8 at 9.

Additional areas of concern with the program revolve around the amount of time . is removed from the classroom for 1:1 instruction. Ms. testified that a great deal of individualized instruction and curricular modification must be incorporated into the child’s program. Specifically, . receives one to one instruction for three periods a day. This includes spelling, reading and Hebrew. Tr. at 82-83, 88, 93. As the child is cognitively intact, he is more than well aware of his academic short-comings. At some point, the “hand-holding” and “treading softly” serve to .” Exh. 8 at 8.

The record indicates that the child is and ” . Exh. 8, passim. While these accommodations may be productive, I am concerned that they may well reinforce .’s sense of insecurity as his assignments and class participation become more and more “different.” Finally, the lack of on-site during the 2010-2011 school year must be considered in an assessment of the School’s appropriateness.

Having said this, the Parent must 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 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). Given this slim standard, I find that the child has benefitted from Chehebar’s use of the Orton Gillingham, Aussie and Sadlier Oxford math programs. As such, Chehebar narrowly meets the Gagliardo standard. Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2010-2011 school year?

I find, ab initio, that the Parent did not meet her equitable burden in several ways. The Parent testified that she received a Final Notice of Recommendation dated July 14, 2010. Thereafter, the Parent visited the Department of Education’s placement and by letter dated October 7, 2010 indicated that she objected to the placement and would not be sending her child. The basis for this decision was a determination that the classroom was “too large to meet his [ ’s] educational needs.” Tr. at 160-161; Exh. 2 at 1. Although school was closed for the summer, I find that the Parent made no effort to visit the Department of Education’s proposed site in an expeditious and fair-minded manner. While there are many religious holidays during this time which would prevent the Parent from conducting secular matters, these holidays do not fill the entire month. Parental collaboration and cooperation with the Department of Education (i.e. participating in a timely school observation) must be prioritized for any parent seeking public reimbursement. Had the Parent seriously contemplated a public school placement, she would not have deferred her visit until October 2010, eliminating the opportunity to expeditiously resolve any genuine issues and concerns.

In fact, it is more likely that Mrs. . had no intention of sending her child to and viewed her perfunctory observation of the placement as an obligatory nuisance. While the Parent objected to the lack of group instruction she observed, she did not make any bona fide inquiries as to the use of group and/or differentiated instruction. The testimony is silent regarding any conversations with the classroom teacher. Although Mrs. . indicated that the tour guide possessed insufficient knowledge about the program, she did not attempt to secure additional information from other personnel. Tr. at 160. In fact, there are far more children and adults in .’s , a scenario in which the child is segregated several times a day for one to one instruction. Her further concern about parent-teacher communications is de minimis and could have easily been addressed.

The record indicates that none of Mrs. .’s children have attended public school and, prior to June 2010, . had attended the mainstream division at for . Although the Parent testified that tuition payments made to well before the 2010-2011 school could have been credited to another one of her children, I do not believe this was ever the Parent’s intention.

Finally, I note that during the 2010-2011 school year, the child did not receive his mandated occupational therapy services. Although was unable to furnish this related service on site, the Parent made a unilateral decision to altogether, in direct contravention to the that, “It is highly recommended that . continue receiving occupational therapy services during the school year to maximize therapeutic gains . . .” Exh. 5 at 1. The Parent’s actions are blind to the issue of regression and neglect the considerable investment personnel have made in addressing .’s needs. In view of all of the above, I am compelled to find that the Parent has not met her equitable burden. Dated: April 5, 2012

LYNNE BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer DS: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, 6/27/11, 4 pages B Program, 2 pages C Board of Education IEP, 6/10/10, 12 pages D Final Notice of Recommendation, 7/14/10, 2 pages E Ten Day Notice, 8/18/10, 1 page F Class Profile, 10/11, 1 page G Class Schedule, 10/11, 1 page H Progress Report, 10/11, 1 page I Enrollment Contract, 10/11, 1 page J Affidavit of Payment, 10/11, 1 page K Parent Proof of Payment, 10/11, 10 pages

DEPARTMENT OF EDUCATION

1 Final Notice of Recommendation, 7/14/10, 1 page 2 Final Notice of Recommendation, 10/7/10, 1 page 3 Classroom Observation, 6/9/10, 2 pages 4 Progress Report, 2/12/10, 1 page 5 Progress Report, 4/12/10, 1 page 6 Ed Eval from NYC DOE, 1/9/09, 7 pages 7 Social History, 1/9/09, 2 pages 8 Ed. Eval., 6/11/09, 13 pages 9 Evaluation, 3/19/09, 5 pages