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: September 7, 2011

October 11, 2011

November 2, 2011

November 4, 2011

January 6, 2012

January 24, 2012

Record Close Date: February 27, 2012

Hearing Officer: .

Corrected

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

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2011

Attorney — Student

Parents

Attorney — DOE

CSE School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2011

Attorney — Student

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4, 2011

Attorney — Student

Parent (phonetic) — Student

Program Director, (via telephone) — Student

Therapist (via telephone) — Student

(via telephone) — Student

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2012

Attorney — Student

Parents

Head Teacher (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012

Attorney — Student

Parents

Therapist (via telephone) — Student

Attorney — DOE

Assistant Principal (via telephone) — DOE

On June 29, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of . (“hereinafter the Student”). The hearing was convened at the request of the parent through her attorney that was received on June 29, 2011. Hearings were held on September 7, 2011, October 11, 2011, November 2, 2011, November 4, 2011, January 6, 2012 and January 24, 2011. The compliance date was extended as a result of the request for post-hearing closing statements and submission of case law received on February 27, 2012. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any detrimental delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is February 27, 2012 and the compliance date for issuing a decision is March 16, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

The hearing was requested by the parent to challenge the April 11, 2011 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for the ”), a private entity lacking New York State Education Department approval. The parent brought the hearing seeking tuition reimbursement/prospective payment for the program at the for the 2011-2012 school year.

BACKGROUND

The Student is a . She currently attends . She has a long-standing diagnosis of ) (Exh. 16 at 1). The CSE met and drafted and Individualized Education Program (“IEP”) on April 11, 2011 that recommended that the Student be placed in a special class in a specialized school, for a 12-month school year, with a staffing ratio of , special education transportation, (Exh. C at 1) and related services of an individual ”) twice per week for 40 minutes per session, once per week for 40 minutes in group no larger than 3; (“ ) twice per week for 40 minutes per session in a group no larger than 2 once a week for 40 minutes; once a week 40 minutes and once a week for 40 minutes in a group no larger than 3 (Exh. C at 16, 17). On June 10, 2011, a placement for the Student was formally offered to the parent at , (Exh. 4) located in a neighboring community to the .

Dr. conducted a on various dates in March 2010 and used when the Student was years old. Dr. noted the family had moved from to New York City in March 2010, and that Student was since age (Exh. 16 at 1). He used

Edition (“ - and noted that Student had IQ of , in the ; her IQ , in the and her , in the (Exh. 16 at 17). He assessed her academic achievement by administering subtests from the Tests of

-Third Edition ( ”) and found her overall academic skills as measured by the I in (Exh. 16 at 10). He noted that in addition to her , the Student had , ” (Exh. 16 at 13) Dr. found the Student met the and recommended a small class size in a 12-month curriculum with intensive to ensure ongoing development of language (Exh. 16 at 14).

Dr. conducted an updated on the Student on March 22, 2011 and use the ( to obtain an index of her general cognitive functioning. Testing results indicated her Full Scale IQ was in the range, her Verbal IQ score was and Non-Verbal IQ score was . He noted that to compare his results with a previous assessment conducted in March 2010, “revealed improvements in both general and specific aspects of ; however, such enhancements may be at least partially attributable to differences in instrumentation (i.e., -V vs. (Exh. G at 3). He noted that shortly after his initial evaluation, on March 2010, the Student entered the in (Exh G at 2). He further noted that despite the , she increased her grade equivalent scores in all areas measured (Exh. G at 6). He further noted that the Student’s classroom teacher and parent reported the Student was (Id.).

THE POSITION OF THE PARTIES

The Dept. of Education has recommended that the Student, a who is classified as , in a specialized school, for a 12-month school year, with a staffing ratio of , and receive related services of a full-time transitional paraprofessional as well as and . The parent disagreed with the Dept. of Education’s placement and request tuition reimbursement/direct funding for for the 2011-2012 school year as she maintains that the Student’s IEP was not prepared in accordance with the procedural and substantive requirements of Federal and State Regulations and is appropriate.

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , the classroom teacher of the proposed class during the summer of 2011, and the Assistant Principal of . Ms. , certified school employed by the Department of Education since January 1997, testified that she had a Master’s degree in educational (Tr. at 60). She noted that she participated in the April 11, 2011 IEP and noted that she and her partner, , a New York State-certified special education conducted the review. She further noted that Ms. participated as both the special education teacher and the district representative (Tr. at 63). She noted that the Student’s then current classroom teacher, the parent and parent representative and parent member also participated. She stated that Ms. drafted the goals prior to the April 11, 2011 IEP meeting based on the report from December 2010 (Tr. at 64-65). She further stated that the team reviewed the Multidisciplinary Evaluation, dated December 2010 (Exh. H), her Classroom Observation dated January 18, 2011 (Exh. 10), the Social History dated June 1, 2010 (Exh. 15) and the Evaluations dated April 24, 2010 (Exh. 16) and April 1, 2011 (Exh. G). She testified that the Student’s teacher for the 2010-2011 school year at the appeared (Tr. at 70).

Ms. maintained that the Student’s teacher seemed upset because the majority of the scores decreased between the April 26, 2010 and the April 1, 2011

(Exhs. G at 4 & 16 at 17-17;Tr. at 81). She could not explain why Dr. stated that the Student demonstrated improvement relative to her previous evaluation and why he used grades and not standard scores (Tr. at 87). She stated that she emailed her concerns to Dr. (Exhs. 8, 9), but he requested she obtain the parent’s release prior to communicating with her (Tr. at 90).

Ms. stated that the academic goals and objectives originated from the December 2010 report (Exh. H at 10) and no one disagreed with the goals (Tr. at 94). She noted that the Student’s then current teacher did not feel that her with instruction so no (Tr. at 96-97). She noted that the Student’s were met by the April 11, 2011 IEP management goals (Tr. at 98). She stated that the related service goals were based on the Student’s related service providers’ reports and the related services recommended on the April 11, 2011 IEP of a paraprofessional, addressed the Student’s , (Tr. at 93-103). She further stated that her Student’s then current teacher and parent did not object to any goals and objective developed (Tr. at 106). She recalled that she did not consider a private school placement at because it was not a New York State approved private school. She stated she observed the Student for 30 minutes and did not observe any academic instruction (Tr. at 109;111). She acknowledged that the parent voiced her concern that the proposed class with a staffing ratio of and the training of the individual transition paraprofessional. She further acknowledged that the parent opined the April 11, 2011 IEP program was not appropriate for her daughter (Tr. at 112). Ms. maintained that a transitional plan was not required because the Student was not yet 14 (Tr. at 114).

On cross Ms. acknowledged that the April 11, 2011 did not address mainstreaming for the Student except in terms of programmatic mainstreaming (Tr. at 119). She could not answer why the April 11, 2011 IEP relied on the report dated December 2010 and not the May 2011 report and the goals on the April 11, 2011 IEP were goals (Tr. at 120-124). She further maintained that there was no discussion of a program with a staffing ratio of or a discussion of the as it was not a NYS approved school (Tr. at122). She acknowledged that she had no opinion of the child with an IQ of who was tested at age and then tested at age and made no based solely on IQ scores (Tr. at 132). She further could not explain the margin of error on the (Tr. at 134) She stated that expectations vary based on age or grade on the so there was an expectation that a child aged would (Tr. at 140). She further stated that a child who had a raw number correct when that child was , if that child received the same raw number correct at the age of , the child’s (Id.). She maintained that her email to Dr. was not misleading because Dr. (Tr. at 143). She acknowledged that the had subtest of direct correlations of raw scores, grade equivalent and standard scores and so if the grade equivalent increased, then the raw score would also increase (Tr. at 157). She maintained that the goals in the April 11, 2011 IEP did not require as a methodology to be employed (Tr. at 162). She further maintained that neither the parent nor then current teacher raise concerns that the December 2010 report was not updated (Tr. at 168).

The certified special education teacher, a holder of a Master’s degree in special education employed by the Department of Education for 2 years, testified that she taught the at proposed class during the summer (July and August) of 2011 (Tr. at 185). She testified that the proposed class had including herself, a classroom paraprofessional and a paraprofessional. She noted that she used with varying levels (Tr. at 191). She recalled that the summer class had and graders who functioned at a and grade level (Id.). She further recalled that there were providers during the summer of 2011 and her class receive all their mandated related services (Tr. at 195). She noted that a communication book was used to contact the parents for her class (Tr. at 196). She further noted her summer class was located at (Tr. at 198) She could not answer how a parent would know to go to (Id.) She stated that she had no training in in her educational background, but she learned about during her graduate work and her 2 years experience teaching (Tr. at 200). She noted that the , (Tr. at 209). She described the (Tr. at 210). She noted that social studies and science were taught based on New York Standard (Tr. at 212). She described the mainstreaming activities included community walks and opined that she would be able to meet the Student’s academic goals and listed on the April 11, 2011 IEP and that the Student would have been appropriately placed in her class based on age and grade level(Tr. at 216-226). She opined that she could have addressed the fact her summer class was located on the floor and the Student’s tired easily on stairs by frequent breaks (Tr. at 222).

On cross the classroom teacher of the proposed class for the summer of 2011 explained that was a special education school located within during the summer of (Tr. at 228). She acknowledged that was closed during the summer (Tr. at 229). She further acknowledged that there were out of children in her class were and the class went down to the floor for lunch (Tr. at 232).

The assistant principal at testified that she had a Master’s degree in Education Leadership. She stated that the paraprofessionals had professional developments (Tr. at

387) She noted that the offered parent training sessions for parents (Tr. at 388). She could not recall the number of parent trainings during the 2011-2012 school year for 5 sites including (Tr. at 389). She maintained that parents who had children recommended for a class during the summer of 2011 for were notified by letters sent to the parents in June 2011 that the summer class was located at , a block away from (Tr. at 391).

On cross the assistant principal acknowledged the parent training differed from 5 sites including based on (Tr. at 195). She further acknowledged that a parent coordinator organized the parent training for the 5 sites (Tr. at 196). She stated that the parent coordinator was the staff for the parent training and there was a monthly meeting for parent training and if a certain number of people signed up for the training, than a parent committee would be set up the agenda for the parent training and the parent coordinator would facilitate it (Tr. at 400-401). She could not recall the date the letter informing the parents of the change in address for (Tr. at 401).

THE PARENT’S CASE

The Ms. ., the parent, Dr. , the Program Director of and the , testified in support of the parent’s claim for tuition reimbursement at for the 2011-2012 school year. The parent argued that the district failed to offer the Student a free and appropriate public education (“FAPE”) on both procedural and substantial grounds. The parent maintained that the recommendation was contrary to the opinions of professionals who had direct knowledge of the Student. The parent asserted that special education teacher was not someone who could have implemented the IEP and only had general knowledge of the recommended program. The parent maintained the size of the proposed class was inappropriate as was the program. The parent asserted the goals and objective on the April 11, 2011 did not reflect the Student’s (Exh. A at 3) The parent asserted the IEP, the program, the placement for the 2011-2012 school year was not appropriate (Exh. A at 5). The parent seeks reimbursement of $ for tuition for a 12 month program at and submitted proof of payment in the form of cancelled check in the amount of $ (Exh. F), and the parent seeks prospective payment of $ They applied to the school and executed the contract on or about May 13, 2011 (Exh. E at 4).

Ms. . testified that she moved with her family to in March 2010 and applied to CSE for a placement and when no public school placement was available, she placed her daughter in in April 2010 (Tr. at 363). She stated that she cooperated with the CSE at the March 2010 and provided the March 2010 CSE with all evaluations and reports (Tr. at 364). She further stated that she placed the Student at the for the 2011-2012 because there was no appropriate public school placement (Id.). She stated that she received the FNR dated June 10, 2011 (Exh. 4) and attempted to telephone on the FNR to visit the proposed placement and left messages on a few occasions and wrote a letter (Exh. D) dated July 18, 2011, expressing her desire to arrange a visit to the proposed placement. She stated in September 2011, she was able to contact the proposed placement when the school was in session (Tr. at 365). She opined that no one at the proposed school returned her telephone calls made in June 2011 until September 2011 because proposed school was not in session over the summer (Tr. at 366). She stated that she was able to visit the proposed placement in September 2011, but she was concerned that the proposed classroom was in the floor and she was concerned about the training of the paraprofessional (Tr. at 367).

On cross Ms. . acknowledged that she understood at the April 11, 2011 IEP meeting that the recommended placement was a special class in a specialized school in a class size with a staffing ratio of (Tr. at 372). She maintained that she did not disagree with the recommendation until she was able to view the placement (Tr. at 373). She further maintained that she accepted CSE’s decision to defer a placement, but then she received the FNR (Tr. at 374). She maintained that despite the fact that her lawyer sent the due process request dated June 22, 2011 stamped received on June 29, 2011, she wanted to visit the proposed placement to determine if the proposed placement was appropriate (Tr. at 379). She stated that her daughter attended a public school in with various class sizes and that her daughter progressed in public school in (Tr. at 384-385). She further stated that she understood that she could be released from responsibility under the contract even if her daughter attended over the summer and then attended a public program on September 7, 2011 (Tr. at 387).

The Program Director at the , testified that the was an ungraded program for student aged (Tr. at 241). She stated the student to staffing ration in each class size was 2:1 and the class had students (Tr. at 241). She maintained that peer review journals have researched the Model (“ in November 2010 (Exh. I) and described the 6 stages of development (Tr. at 244). She noted that were in the areas of relating and communicating with other needs, such as (Tr. at 245). She stated that attempted to get into the child’s development to fill the hole in core deficits (Tr. at 246). She described the differences of vs. or and noted that and used a behavior plan to impose a response (Id.). She described the model and explained the developmental level was determined and was assessed for each child at . She described that ways used for the child to make learning intrinsically motivating (Tr. at 246). She stated that the staff was trained in the model (Tr. at 248). She further stated that was an intervention to target the individual developmental holes (Id.). She noted that the used “Reading from ”, ” ”, “ ” and some of the standard curriculum (Tr. at 249). She noted each family was assigned a social worker who provided concrete services in family counseling, individual counseling, parent support groups and parent training (Tr. at 254). She further noted that the refunded all money from a deposit except for $2,500 by September 7, 2011 to allow the parent to explore any public school placement (Tr. at 257). She stated that with the Student was placed in in April 2010 to date in a class with (Tr. at 250), and that the lead teacher had a Master’s degree in special education and the assistants were enrolled in Master’s degree special education programs (Tr. at 252). She further stated that goals were reassessed every 6 months after the progress reports were completed and everyone on the Student’s team discussed the Student’s goals to determine if the goals needed to be modified (Tr. at 253).

On cross the program director acknowledged no staff at was certified in (Tr. at 257). She further acknowledged that she was not certified to perform assessments (Tr. at 263). She maintained that the Student did over the summer in art therapy (Tr. at 264). She maintained that could be provided by a talk therapist, a music therapist, a

-analyst or an art therapist (Tr. at 265). She maintained that the Student required art therapy in the summer, but moved up developmentally to require the use of in September 2011 (Tr. at 266). She stated that the Student could read fluently on a grade level and decoding was not a skill that the Student required instruction, but rather fluency and comprehension was the Student’s goal (Tr. at 276-281).

The , a holder of a Master’s Degree in Pathology employed by the , testified that she worked with the Student 3 times a week once in a dyad and twice in groups of 3 or 4 (Tr. at 357). She stated that the Student had and opined that the Student progressed in her as she became more responsive and independent with her peers (Tr. at 360). She described the Student’s progressed from not listening to a peer to independently recognizing a peer and responding appropriately to a peer (Tr. at 361). She further opined that the Student progressed in expressing her feelings and progressed in answering “why” questions and following multi-step directions (Tr. at 363). She noted the Student progressed in her ability to describe a past event with greater detail (Tr. at 365). She maintained the Student progressed in all areas including and (Tr. at 366).

On cross the explained a different provider was used for the Student during the summer of 2011 and she based her goals for the Student on the provider’s goals from May 2011 (Tr. at 372).

The certified and licensed employed by the , testified that the Student received twice a week during the summer of 2011 and in September 2011, the Student received 3 times per week from various certified and licensed and her current had a Master’s degree in (Tr. at 303). She stated that it was common for different from the summer to the fall (Tr. at 304). She noted that the Student had and participated in a movement group to help her (Tr. at 305). She further noted that the Student participated in a yoga group with the sessions in a group and in individual and the Student used the . She opined that the Student improved her (Tr. at 306). She stated that the Student had gross motor issues and her was designed to meet her (Tr. at 307) She opined that the Student improved in her ability to hold positions longer. She stated that the Student liked to be a leader in the group and demonstrate the moves to the peers in the group (Tr. at 308). She opined that the Student improved in her and used the equipment in the sensory gym such as a swing or stairs to understand where her body is in space (Tr. at 310).

On cross the stated that she was never the Student’s , but was the supervisor of the for the Student since January 2011 (Tr. at 312). She stated that the on the April 11, 2011 IEP came from the from May 2011 (Tr. at 321). She explained the statement “tires easily” on the April 11, 2011 IEP was because the Student had and opined that the Student would have (Tr. at 322). She further explained that the Student traveled from the classroom to the (Tr. at 323).

The Head Teacher, a certified and licensed special education teacher with Master’s Degree in special education, testified she was the Student’s current Head Teacher and her class had assistants (Tr. at 390).). She explained children were classified as (Id.). She stated that the Student was able to . Her sight word reading and reading comprehension was the (Tr. d 391). She explained the members of Student’s reading group were reading in late level to early (Tr. at 392). She opined it was not appropriate for the Student to be placed a small reading group with children who were reading on a (Id.) She stated that the Student functioned on a in math and was placed in a small group of 2 in math (Tr. at 393). She explained that the Student had and would . She opined the Student progressed in her ability to by giving her strategies and used drawings as a method to encourage the Student to retreat (Tr. at 396). She further opined that the Student progressed in her ability to communicate her feelings with a partner from July 2011 (Tr. at 397). She explained that because she worked with the Student in small groups that the Student received a large amount of individual attention. She further explained the accommodations and modifications for the Student included math activities in modified “ : program and highly kinesthetic components (Tr. at 399). She noted that the Student used an ELA Jeopardy game for comprehension and the Student acted out fairy tales to improve fluency (Tr. at 402). She opined the Student’s improved since July 2011 (Tr. at 403-406). She explained that play interactions and role playing occurred throughout the day with peers and adults to help the Student interact with peers (Tr. at 408). She noted that the Student went on community outings to the playground or the local library or the pizza shop (Tr. at 410). She opined that the Student progressed in her ability to interact with . She further opined that the Student progressed in her understanding of transactions involving money and the improved from just (Tr. at 412). She explained that the Student participated incorporated into every activity throughout the day (Tr. at 418). She maintained that in that the Student’s developmental level was targeted and she was able to move the Student and that the staff including the Student’s teachers and related service providers met once a week to discuss the Student to ensure the Student was receive all the support she required (Tr. at 420-421). She stated that she incorporated the into her class by the (Tr. at 422). She opined that the Student progressed in her ability to complete more circles of communication with a peer (Tr. at 421). She explained that the goals on the April 11, 2011 IEP were taken from the goals from the May 2011 (Tr. at 430). She further explained that the received 5 days of training in and were able to address the goals using methodology (Tr. at 432) She stated that the Student received twice a week for 30 minutes per session and 3 times a week for 30 minutes per session (Id.).

Dr. , Director of Educational Outreach at the , testified that he received his Ph.D. in and that he conducted an evaluation of the Student in April 2010 to provide an update as to the Student’s (Tr. at 327). He stated that he had administered the and that he was qualified to administer the (Tr. at 328). He defined the differences between “raw score” and “grade equivalent scaled score” and “standard score” and noted that a “standard score” was different than a “scaled score” (Tr. at 330). He stated that he conducted another evaluation of the Student in April 2011 and reported the “grade equivalent score” and “standard score” but did not report the Student’s “raw score” (Tr. at 331). He explained that if the Student received a standard score of in passage comprehension in 2010 and received a standard score of in passage comprehension in 2011, then the decrease was actually evidence of progress because for the scores to remain constant a year later meant the Student “had to hold on to what she had and add something to it” (Tr. at 336). He maintained that the Student’s scores on the 2 evaluations did not evidence of a lack of progress considering the Student had an IQ of (Tr. at 337).

On cross Dr. stated that he recalled receiving an email from and would have been happy to talk to her had she obtained the parent’s release (Tr. at 341).

FINDINGS OF FACT AND CONCLUSIONs OF LAW

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The parent asserted that she was entitled to a tuition reimbursement/prospective payment of $ for tuition for a 12-month program at because the April 11, 2011 IEP was procedurally invalid and the procedural deficiencies seriously infringed on infringed on the parent participation in the IEP and resulted in a denial of FAPE. The parent’s attorney asserted in his closing brief that the DOE did not offered a FAPE because the DOE did not provide notice of the actual location of the Student’s placement during the summer of 2011 (IHO Exh. III at 2). On April 11, 2011, a deferral placement letter was sent to parent indicating more time was needed to locate an appropriate placement (Exh. 5). The DOE’s own Standard Operating Procedures Manual makes clear that whether the parent agreed with the placement or not the CSE was required to reconvene to indicate its recommendation on the IEP and a FNR was required to be issued indicating the school. On June 10, 2011, a FNR for the Student was formally offered to the parent at , located at (Exh. 4). The placement letter contained contact information to arrange a visit. I find the DOE has failed to establish that it actually offered any other placement than . I find credible testimony of classroom teacher of the proposed class for the summer of 2011, who explained that was a special education school located within during the summer of 2011 and that within (Tr. at 228) and that was closed during the summer (Tr. at 229). I find credible the testimony of the assistant principal that she believed that parents who had children recommended for a class during the summer of 2011 for were notified by letters sent to the parents in June 2011 that the summer class was located at (Tr. at 391). However, I find the belief the assistant principal that letters were sent to the parents notifying the parents of the change in placement for the summer of 2011 was not supported by any evidence. The assistant principal’s claim that letters notifying the parents of the change were actually sent was contradicted by the parent’s testimony. I find credible the testimony of the parent that no one at the proposed school returned her telephone calls made in June 2011 until September 2011 because proposed school was not in session over the summer (Tr. at 366). I further find credible the letter dated July 18, 2011, (Exh. D) that the parent wrote to the contact person listed on the FNR and I find the letter supported her testimony that she left numerous messages to arrange a visit and no one returned her telephone calls.

The parent’s attorney asserted that the parent had no way to know that the proposed classroom was located at during the summer of 2011 until the testimony of the proposed classroom teacher for the proposed class during the summer of 2011 and therefore, could not plead this defect in the due process complaint (IHO Exh. III at 5). I note the due process complaint indicated that CSE failed to recommend an appropriate placement for the Student in a timely fashion (Exh. A at 3). The parent’s attorney argued that federal regulations required that a written note be provided when a district proposed to change the educational placement of the child (34 CFR § 300.532)(Id.). The parent’s attorney further argued that New York law required the parent be provided with written notice of the child’s proposed placement 8 NYCRR § 200.5(a)(1)(IHO Exh. III at 6). I find the April 11, 2011 IEP recommended at 12-month school year. I find the Student was not offered an educational placement prior to the July 1, 2011 beginning of the summer program. See also, Application of a Child with a Disability, Appeal No. 06-025.

Accordingly, I find that the DOE has failed to establish that it offered an educational placement for the 2011-2012 school year and therefore has failed to establish that it provided a FAPE. In view of this finding, I need not address the other claims made regarding the provision of a FAPE. However, I note the district’s attorney asserted that CSE had timely assessed the Student’s present levels of performance and had adequate and appropriate evaluative material to make an appropriate educational program. The parents’ attorney argued that there was no transitional plan. The district’s attorney maintained that contrary to the parents’ contention that there was no requirement to provide a transition plan from a private school that is not approved by New York State into a DOE school (IHO Exh. II at 3) I agree. The district’s attorney further argued that the district made provisions for parent training and counseling for the parents of students with autism (IHO Exh. II at 10-11). In Application of the New York City Dept. of Educ., Appeal 10-036, the SRO held that the lack of parent training and counseling listed on the IEP did not amount to a deprivation of FAPE.

I note the parent alleged the following deficits of the April 11, 2011 IEP: (1) the IEP was developed without considering the parent’s concerns and denied her meaningful participation; (2) the goals and objective did not reflect all the educational, social and emotional needs; (3) the goals and objectives were not developed at the meeting and lacked the parent’s input; (4) there was no transition plan to for the Student who was

(5) the April 11, 2011 team was not duly constituted (Exh. A at 3).

In order to be procedurally correct the CSE which met on April 11, 2011 would have to have been constituted in full accord with the provisions of the Education Law Section 4402, as well as the provisions of the regulations of the Commissioner of Education of the State of New York Part 200.3(a). The evidence shows that that the review team included a school psychologist a district representative, the Student’s then current classroom teacher, a parent member and the parent representative and the student’s parent. The parent asserted that the lack of a special education teacher at the IEP meeting rendered the April 11, 2011 IEP invalid. Pursuant to 8 NYCRR 200.3(a)(1)(ii) a special education teacher must participate in the CSE meeting when the student is or may be participating in the special education environment. The parent alleged that the special education teacher was not someone who was or could have been responsible for implementing the IEP. This claim was not rebutted. However, I find that there was no evidence that the lack of a special education teacher who could have been responsible to implementing the IEP team caused a deprivation of educational benefits or denied the parent meaningful participation. Therefore, I find that the April 11, 2011 IEP was not procedurally flawed because all the required members were present.

The parent’s attorney asserted that the parent was not provided with a clear legible copy of the goals listed April 11, 2011 IEP until October 11, 2011 (IHO Exh. III at 7). This assertion was not contested. The parent’s attorney asserted the IEP did not meet the Student’s individual needs and challenged the appropriateness of the student’s IEP annual goals and short-term instructional objectives as the goals listed were taken from the report intended to be completed within 6 months and therefore were not annual goals. The parent’s attorney noted that the Student had achieved the goals within 6 months by January 2012. (IHO Exh. III at 8) This assertion was not contested. Testimony adduced at the hearing established the goals listed on the April 11, 2011 IEP were intended to be . I credit the testimony of the parent who she was concerned with the qualifications of the paraprofessional who was not trained in The parent challenged proposed class size and I credit the testimony of the parent who maintained that there was no discussion of a class size except which did not provide sufficient support. The parent’s attorney asserted that the children in the proposed summer class were not appropriate. Pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to four criteria: academics, social development, physical development and management needs. (8 NYCRR 200.6(a)[3]) Testimony adduced at the hearing failed to establish that the Student would have been grouped appropriately in her class as children in the proposed class were not and the class functioned on the in all areas and the Student functioned on the grade level in reading. Moreover, I find lack of an elevator did not meet the Student’s physical management needs. I further credit the testimony of the related service supervisor that a break between flights of stairs would not allow the Student .

Based on the foregoing, I find that the district failed to demonstrate the Student’s IEP and program were appropriate.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2011-2012 school year. In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs (Burlington, 471 U.S. at 370 [1985]. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). 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. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007])

The parent’s attorney argued in his closing brief the “private school show that a private placement furnishes every special service necessary to maximize their child’s potential” (Frank G. v. Bd. of Educ., 459 F.3d 364 (2d Cir. 2006)(IHO III at 23). The issue of the private school's appropriateness depends on whether the was ‘reasonably calculated to enable the child to receive educational benefits’ (Frank G., 459 F. 3d at 364). Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement (Frank G., 459 F. 3d at 365)(Id.). The district’s attorney argued that the Student received art therapy and not over the summer (IHO Exh. II at 16) The parent’s attorney argued in his brief that the lack of a recommended related service did not render a school inappropriate. “In M.H. v. New York City Dept. of Educ., 712 F.Supp. 2d 125, 166 (S.D.N.Y. 2010)” (IHO Exh. III at 23) I find that the Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student’s private placement inappropriate. G.R. v. New York City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009); Gabel v. Bd. of Educ., 368 F.Supp. 2d

313, 32 (S.D.N.Y. 2005)

The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115.

Testimony by the parent and the staff at and evidence submitted by the parent established that the parent has met her burden regarding the unilateral placement of the Student at the The testimony of the Program Director, the Head Teacher of the and the indicated that the Student benefited from the methodology at the and the program met her . Testimony adduced at the hearing established that the model assessed the Student in terms of her developmental level and determined how she took information from her environment and motivated her to work within her environment to progress. I find the weekly sessions with the staff to assess the Student’s progress ensured that the related service providers and the Head teacher work collaboratively to ensure that the Student progressed. I find her academic needs and regulations needs were met by the Head Teacher. I find the met the Student’s in the sensory gym and in movement and yoga session. I find the increased the and by the methodology. I find the Student increased her ability to respond appropriately with her peers and the typically developed peers. I find the Student increased her socialization with the community outings. I find provided the staff 5 days of training in the methodology and daily communication with the Head teacher and related service providers. I find the provided a social worker for the parent for parent training. I find the Program Director’s description of the model was beneficial for the Student’s sensory processing issues, her regulation needs and her propiroceptive needs. I find the model , . I find the evidence presented demonstrated that the Student’s current class at the is appropriate to meet her educational needs

The third prong of the test for tuition reimbursement is whether the equities favor the parent’s position. I find that the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district and made the Student available for evaluations. The district’s attorney argued that parent failed notify the district that she intended to enroll the Student at within the 10-day notice requirement of a unilateral placement (IHO Exh. II at 21). I find the parent never received the notice of the educational placement for the summer of 2011 and timely notified the CSE on June 29, 2011. The district’s attorney argued that parent did not consider a public school placement (IHO Exh. II at 20). I credit the parent’s testimony that she would have considered a public school placement. The district’s attorney argued that the parent demonstrate she lacked the financial resources to pay the tuition (IHO Exh. II at 20). I find that the parent provided detailed and uncontradicted information (Exh. J) as to her lack of income and financial resources. The parent’s attorney asserted that cost of the school exceeded the parent’s income and argued under Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011) (IHO Exh. III at 25), the court has broad discretion to "grant such relief as . . . is appropriate" including direct payment of private school tuition. Mr. and Mrs. A v. New York City Dep't of Educ., 769

F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). A court may require a school district to pay a private school directly and prospectively for special education. 20 U.S.C. 1415[i][2][C][iii].

ORDER

Therefore, it is hereby ordered that the Department of Education shall reimburse the parent in the amount of $ for the for the 2011-2012 school year upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). The Dept. of Education is directed to fund the cost of the Student’s attendance at the for the 2011-2012 school year at the contract rate $ minus the $ parent already paid. Dated: March 6, 2012 Corrected Date: April 3, 2012 (Correction made to Evidence List on page 26)

__________________________________

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 ON SEPTEMBER 7, 2011

PARENT

A Impartial Hearing Request, dated 6/29/2011, 5 pages B Findings of Fact and Decision, dated 12/6/10, 13 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 11, 2011

PARENT

C IEP, 4/11/11, 17 Pages D Parent Correspondence to CSE, 7/18/11, 2 Pages E School Contract, 5/2011, 6 Pages F Proof of Payment/Check Payable to the , 5/22/11, 1 Page G Consultation Report, 4/1/11, 7 Pages H The Interdisciplinary Report of Progress and January Addendum, 12/2010, 17

Pages I Interdisciplinary Council Disorders: and

Overview and Summary of Scientific and Public Support, 11/2010, 10 Pages J Letter from and Attachments, W-2 and 1099, 9/16/11, 2 Pages K Interdisciplinary Report of Progress, 5/2011, 16 Pages

DEPARTMENT OF EDUCATION

1 Subpoena to the Parents, 9/27/11, 1 Page 2 Subpoena to the , 8/19/11, 2 Page 3 Due Process Response, 8/4/11, 4 Pages 4 Final Notice of Recommendation, 6/10/11, 1 Page 5 Notice of Recommended Deferred Placement, 4/11/11, 1 Page 6 12-Month School Year Consent Form, 4/11/11, 1 Page 7 Minutes of IEP Meeting, 4/11/11, 2 Pages 8 Email from Ms. to Dr. , 4/8/11, 2 Pages 9 Email from Ms. to Dr. , 4/8/11, 1 Page 10 CSE 9 Classroom Observation, 1/18/11, 3 Pages 11 IEP, 2010/2011 School Year, 8/26/10, 15 Pages 12 The Report, 7/22/10, 4 Pages 13 Evaluation, 6/2/10, 6 Pages 14 Level Interview, 6/1/11, 1 Page 15 Social History, 6/1/10, 3 Pages 16 Consultation Report, 4/24/10, 19 Pages 17 Evaluation, 1/27/10,

18 The Application, 1/7/10

IMPARTIAL HEARING OFFICER

I Letter Brief, 9/26/11, 3 Pages

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 6, 2012

PARENT

L Letter from Re: 11/7/11, 2 pages M Special Education Service Delivery Report, Undated, 3 pages

DEPARTMENT OF EDUCATION

None

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

II Closing Brief, 2/27/12, 22 pages III Closing Brief, 2/27/12, 25 pages