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 22, 2011

October 21, 2011

November 4, 2011

December 19, 2011

Record Close Date: March 2, 2012

Hearing Officer: Linda S. Agoston, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2011

Attorney — Student

Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

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

Attorney — Student

Parents

Attorney — DOE

(via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011

Attorney — Student

Parents

Program Director, School — Student

Teacher, School (via telephone) — Student

Attorney — DOE

On July 7, 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 his attorney that was received on July 7, 2011. Hearings were held on September 22, 2011, October 21, 2011, November 4, 2011 and December 19, 2011. The compliance date was extended as a result of the request for post-hearing closing statements and reply briefs and submission of case law received on March 2, 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 March 2, 20012 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 29, 2011 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for the School (“RS”), 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 RS for the 2011-2012 school year.

BACKGROUND

The Student is a year old boy who is (Exh. 4 at 4). He currently attends . The CSE developed an Individualized Education Program (“IEP”) on April 29, 2011 that recommended that the Student be placed in a special class in a specialized school, for a month school year, with a staffing ratio of or children and special education teacher and paraprofessional, special education transportation, education, (Exh. 4 at 2) and related services of an individual transitional paraprofessional and and (“ ”) times per week for minutes per session, individual (“ ”) times per week for minutes per session; individual (“ ”) times per week for minutes per session; individual counseling a week (Exh. 4 at 20). On June 4, 2011, a placement for the Student was formally offered to the parent at , (Exh. B) located in a neighboring community to the Student’s family.

Dr. conducted a valuation on March 29, 2009, when the Student was years old. Dr. noted that the Student had a , and , , and and these testing (Exh. 11 at 3) She noted that the Student was not on the - Edition, but was able to place pieces of a together and (Id.). She further assessed the Student’s skills using the of and Language Skills Test and found that the Student was able to point to a picture of a , a and an (Id.). She used the Behavior Scales and found the Student’s skills were in the ; the were in the ; the were in (Exh. 11 at 4). She noted in the area that the Student was able to himself with , but put on . She noted the Student skills necessary to play or start (Exh. 11 at 4). She summarized that the Student and skills associated with and recommended placement in a setting with a lot of (Exh. 11 at 6). On December 13, 2010, the Student was observed in his classroom at the just before movement group started (Exh. 9 at 1). The observer, , School , noted that the Student was and to of and when questioned about the next period in the class schedule, the Student pointed to “ ” and approximated the words “ ” (Exh. 9 at 3).

THE POSITION OF THE PARTIES

The Dept. of Education (“DOE”) has recommended that the Student, a -old boy who is as , be placed in a specialized class for children, in a specialized school, for a month school year, with a staffing ratio of , and receive related services of a full-time transitional paraprofessional as well as , , and counseling at . The parent disagreed with the DOE’s placement and request tuition reimbursement/direct funding for for the 2011-2012 school year as he 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 parent disagreed with the size of the proposed school, the lack of security in the proposed school, the staffing ratio of the proposed class (Exh. A at 2).

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , the Special Education Teacher assigned to CSE , the and the classroom teacher of the proposed class during the summer of 2011. Ms. , a holder of a Master’s degree in special education and a New York State-certified special education teacher employed by the NYC DOE for years and assigned to CSE for years, testified that she participated as special education teacher and district representative in the April 29, 2012 IEP review with , the school (Tr. at 3640). She noted that the Student’s then current classroom teacher at the , the social worker from the , the parent and parent member also participated. She further stated that the team reviewed the teacher reports (Exh 10), the Classroom Observation dated December 13, 2010 (Exh. 9), the Evaluation (Exh. 11) and noted the team determined the Student’s levels based on the current teacher reports and (Tr. at 41-42). She stated that the team continued the classification of and noted the team discussed the Student’s and with his then current teacher for the 2010-2011 school year at the (Tr. at 45). She noted that despite the fact that the Student was his was his to use his to the when so his and were at the to grade (Tr. at 46). She maintained that the Student’s father contributed to the development of the goals and the team was able to determine the Student’s and levels by the participation of all the members of the team (Tr. at 49). She further noted that the Student required a month program in a class with a ratio of and his own paraprofessional with , , and counseling due to the nature of his , his and his (Tr. at 50). She explained that the Student required a class size in a structured classroom. She further explained that the Student had a . She noted the staff to student ratio at the was and the team kept ratio with a staffing size of as well as an individual paraprofessional to from the school to the school (Tr. 51). She maintained the would address his tone and counseling would and with others (Tr. at 53). She further maintained the needs of , , and assisted him as he was and helped to teach a (Tr. at 54). She noted that was included as an need because the Student required at times a to make him more available for activities (Tr. at 55). She further noted that the team recommended an or a and a and the use of a tube as needs because his then current teacher stated the Student was using them in her classroom for input (Tr. at 56). The special education teacher stated that the academic goals and objectives (Exh. 4 at 8) used and a to help the Student concepts and a number because the Student was and were an effective tool to (Tr. at 58). She noted that she developed the skills goal and the parent and this then current teacher at the agreed with the goal (Tr. at 60). She further noted that the goals originated from the December 2010 Interdisciplinary Report (Exh. 10) and the goals helped the Student regulate and make him more available for learning (Tr. at 62). She explained that all the goals were drafted from the Interdisciplinary Report and were discussed with the parent, the Student’s then current teacher from the and the social worker from the and no one disagreed with the goals (Tr. at 63;67). She further explained that the Student’s were changed slightly from the Interdisciplinary Report because the use of the as well as , expressive and receptive language goals (Tr. at 64). She recalled there was no discussion of a non-public school placement and opined that the public school program was appropriate (Tr. at 66; 71). She further recalled that that she told the parent that District would provide parent training and parent counseling as it was (Tr. at 68; 79). She explained that standardized testing could not provide information for a nonverbal child (Tr. at 71).

On cross Ms. acknowledged that she never observed the Student; however, she agreed that the Student required a lot of (Tr. at 76). She further acknowledged that she could not recall if the parent had access to the evaluation or the classroom observation, nor did she recall if the staff who participated by telephone had access to those documents (Tr. at 77). She stated that she never taught in a District school and when she taught in a self-contained class the age range was (Tr. at 78). She maintained that there was no need to develop a plan in addition to the paraprofessional, and noted that the goals were developed for the paraprofessional (Tr. at 83; Exh. 4 at 17). She acknowledged that the qualifications for a paraprofessional included a high school diploma with college credits in education (Tr. at 84). She further acknowledged that despite the fact that the parent was concerned with the staffing ratio he inform that team that he would be open to viewing the proposed class (Id).

The for , a holder of a Master’s degree in with (“ ”) an equivalent to special education and employed by the DOE for 27 years, testified that she was responsible for giving parents a tour of the building (Tr. at 95). She stated that she had taught in classroom settings as well as and classes (Tr. at 96). She recalled that there were children was and explained the mainstreaming opportunities included the . She explained that was a agency to partner with for (Tr. at 97). She further explained that was in the building as well as another school program, (Tr. at 98). She noted that was an inclusion program. She explained that space with in the building as both used the , the auditorium, the on the floor as well as the floor (Tr. at 99). She further explained that and shared as well as the , (Tr. at 100). She related that serviced classes with staffing ratio of and and that was a general education program with inclusion classes (Tr. at 102). She further related that in the summer the off-site program, came into the building because there was (Tr. at 104). She maintained that had providers for , , and (Tr. at 105) She recalled that the father visited her in June 2011 and she toured the building with him (Tr. at 106). She explained that groups of children have lunch periods ages to years old at the main site in the cafeteria with adults and children per lunch period (Tr. at 111). She recalled that the parent told her the school was , but it did not suit his son because the level in the building was and she suggested he visit the off-site building at (Tr. at 114). She further recalled that the building with had a , and the equipment in the room included a , a , , and . She noted that each class was equipped with a and and every teacher had an and there was a room with (Tr. at 116). She explained that the Student would be placed in the building, for the summer and the off-site building at for the fall of 2011(Tr. at 117). She further explained that he would be able to transition from summer to fall as the staff would remain the same (Tr. at 118). She stated that parent training was available at the school every and a different topic is covered each week (Id.).

On cross the maintained that students recommended for placement at did not attend the off-site building at during July and August 2011, but attended the main building at (Tr. at 121). She could not state the number of children who attended during the school year, but stated that children aged to attended in the summer (Tr. at 122). She recalled there were classes during the summer of 2011 with a staffing ratio of but could not recall the number of classes (Tr. at 123). She stated that approximately children would have eaten lunch with the Student during the lunch period (Tr. at 125). She further stated that the was in the building (Tr. at 126).

The certified special education teacher, a holder of a Master’s degree in reading, school administration and supervision employed by the Department of Education for years, testified that he taught the program at for years and that he taught the proposed class during the summer (July and August) of 2011 (Tr. at 129). He testified that during the summer of 2011 the main building contained only (Tr. at 133). He stated that the proposed class had adults including himself and classroom paraprofessionals (Tr. at 134). He noted that on the first day children were in his class aged and all the children functioned on a (Tr. at 137). He further stated that children were and and child could (Tr. at 139). He recalled the children in his class could and all children received their related services (Tr. at 140). He explained that the staff could assist in the children from and (Tr. at 141). He opined that he could have addressed the Student’s academic, and as he children his (Tr. at 142). He further opined that the Student’s could have been addressed as well as his (Tr. at 143). He noted that he interacted with the related service providers and the related service providers collaborated with him to plan lessons (Tr. at 145). He maintained that he would have been able to implement the Student’s goals with , and to and he would have by (Tr. at 149). He noted that the goals were worked on with the and that the and could have worked on the Student’s goals related to (Tr. at 151). He further noted that was during to the or (Tr. at 152). He maintained that the guidance counselor could have the goal to and as well as the goal to his and (Tr. at 153). He further maintained that he would to address of the of the . He admitted there were no in his class (Tr. at 154).

On cross the classroom teacher of the proposed class for the summer of 2011 explained that was located at in and shared the building with which was a general education program with children (Tr. at 160). He further stated that only children were enrolled in the (Tr. at 161). He noted that was located on the and and the was shared with the (Tr. at 162). He acknowledged that out of children in his class were and at a and child functioned at the (Tr. at 165). He further acknowledged that during September 2011 the Student would not have received his mandated for sessions per per related service at (Tr. at 168) He stated that no member of his staff had training in (Tr. at 170) and that related service authorizations (“RSA”) would have been given for missed related service sessions (Tr. at 171).

THE PARENT’S CASE

The Mr. the parent, the Program Director of , and the Head Teacher, 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 the CSE did not listen to him or to the Student’s then current classroom teacher. The parent maintained the size of the proposed class was inappropriate and the staffing of the proposed class and the proposed program was inappropriate. The parent asserted the goals and objective on the April 29, 2011 did not reflect the Student’s educational, or . The parent asserted the IEP, the program, the placement for the 2011-2012 school year was not appropriate. The parent seeks reimbursement of $4,000 for tuition for a month program at and submitted proof of payment of $4,000 (Exh. J), and the parent seeks prospective payment of $90,750 as the tuition for the 12-month program at the is $94,750 (Tr. at 223). The parent applied to the and executed the contract on or about May 11, 2011 (Exh. I at 6).

The Program Director at the , testified that she had a Master’s degrees in Social Work and Education and was a licensed social worker and had certificates in School Administration Supervisory and School District Administration (Tr. at 185). She stated that the was for children with in and which included on the (Tr. at 187). She further stated that the offered , , and provided by a , a or a (Id.). She stated the student to staff ratio in each class size was (Tr. at 190). She described the (“ ”) was the overriding way the looked at the child. She described the stages of that all children move through (Tr. at 193). She explained the “ stood for “ ” and noted that the of an child were in the areas of relating and communicating so the child at the as a typical child (Id.). She further explained that the “ ” stood for “ ” and noted that each child took information through their differently. She further explained that the “ ” stood for “ ” and that the attempted to build on the relationships (Id.). She maintained that model was based on years of research from the and peer review articles (Tr. at 196).

The Program Director described the model and explained how the was determined for each child and how the was assessed for each child at . She listed the curriculum for reading included “ ,” “ ,” “Reading from ,” “ ” and “ ” (Exh. M; Tr. at 215). She further noted that the program used “ ” and “ .” She stated that the program used “ ” as the curriculum (Tr. at 196). She stated that the issued a report written by everyone on the team who worked with the child (Tr. at 199). She further stated that the goals developed in the report were individualized for each child (Tr. at 200). She described the equipment in the included , , , (Tr. at 201).

The Program Director recalled that the Student attended the on July 2009. She noted that there was a list of the members of Student’s team (Exh. L) with the educational degrees, licenses and certifications (Tr. at 207). She stated that the Student was a and he used an device called the “ ” and the Student was able to using a modified version of the (Tr. at 208). She noted that the Student had with and had making and (Tr. at 209). She further stated that the Student had and had his . She opined that the Student was able to and could “ ” by to the choice (Tr. at 209). She described the Student’s team including his Head teacher, his assistance teacher, his providers for , a and and maintained that his team addressed the Student’s (Tr. at 210). She further described the Student’s developed by his providers included at different intervals all day long and “ ”, a program involving the Student’s use of with different give input to the (Tr. at 211). She opined without the the Student would not or in (Tr. at 212). She further opined that the and the programs addressed the Student’s (Tr. at 218). She maintained that the Student in the 2011-2012 school year by his and with the (Tr. at 219). She further maintained that the Student in his to and was more and (Id.). She stated that the Student in his of more (Tr. at 220). She opined that based on personal knowledge of the Student and her contact with the Student’s team that the Student was appropriately placed that the for the 20112012 school year (Tr. at 225).

On cross the Program Director stated that the Student’s team met a week to discuss the Student (Tr. at 232). She acknowledged she had no background in or and that the staff at developed a plan, the Report, every months (Tr. at 234). She maintained that the parent had met with the team on December 2011 (Tr. at 257). She stated that there were for the staff each in the method and the use of as an , , the use of a in the and training in , , (Tr. at 236-237).

The Head Teacher, a certified and licensed special education teacher with Master’s Degrees in special education and general education employed by the for years, testified she was the Student’s current Head Teacher and her class had children and adults including herself and teaching assistants (Tr. at 241). She explained children had a and were or and were (Tr. at 243). She further explained that her children between and grade for and (Tr. at 244). She stated that the children were based on levels (Id.). She stated that she was the Student’s teacher since July 2009 and noted his area was his need for (Tr. at 246).

The Head Teacher recalled that she participated on the April 29, 2011 IEP meeting for the Student by telephone and recalled that she voiced her concern that the staffing ratio of the proposed class of was (Tr. at 248) She stated that the Student in the level in her class and because he was - , he was to , but opined the Student’s reading and math skills were on a grade level and he was grouped with children in similar academic levels (Tr. at 248-249). She noted that she and her engaged the Student to with his (Tr. at 250). She opined that the model was appropriate for the Student and that she was sufficiently trained in the model for the last year each Friday afternoon from pm to pm (Tr. at 252). She described the Student’s day (Exh. K) included , and , morning and , , , , sessions with related service providers, , individual or group and (Tr. at 255). She further described that was a to learning (Tr. at 257). She opined that the staffing ratio of was important as the Student required to (Tr. at 258).

The Head Teacher noted that the class had lunch in the classroom and the Student was to and during (Tr. at 260). She explained that the Student required to remind him to and to his (Id.). She noted that when the Student became by he would point to the and or over a (Tr. at 261). She further noted that the Student required input all day and each classroom was equipped with including , a “ ” , and a and a (Tr. at 262). She recalled that the Student used the every day with his , and providers (Id.).

The Head Teacher opined that the Student in his to and for periods of and his ability to by more . She further opined that the Student was able to his to and his . She noted that he was able to his by (Tr. at 265).

On cross the Head Teacher acknowledged that of the children in her class who were only could a (Tr. at 267). She stated that the Student and another peer used an (Tr. at 269). She allowed that all the children in her class and were (Tr. at 270). She related that the Student was to in sessions for minutes and that he liked , , (Tr. at 273). She based her opinion that the Student could on the he followed the on the and when she out a word he would put his on the (Tr. at 274). She stated that the Student and knew and was for and could do sessions with a (Tr. at 281).

The Parent testified that his son was with or an to his (Tr. at 285). He stated that his to be (Tr. at 286). The parent stated that his son was also with support to be for (Tr. at 287). He further stated that his son used the and to (Tr. at 288). He explained that his son could “ ” when he son what he wanted to (Id.). He further explained that he with his son by the (Tr. at 289). He recalled that he attended the April 29, 2011 IEP meeting with the Head teacher and social worker (Tr. at 290). He did not recall if a was conducted or a evaluation was conducted prior to the meeting (Tr. at 291).

The Parent opined his son required more support than he would receive in a class with a ratio (Tr. at 292). He stated he was familiar with the proposed placement at as he was employed by the DOE at across the street (Tr. at 293). He recalled that he arranged for a visit on or about June 15, 2011 at the main building and was told his son would have to move to a different site in September 2011 (Tr. at 298). He stated that his son had with and required (Tr. at 299). He further stated that the at the main building did not have on the in the and the was (Tr. at 300). He stated that he was concerned with the in that he into the without by the (Tr. at 301). He recalled that he received a the class and asked questions regarding the qualifications of the persons who provided adaptive and was told there was no provider of who had experience with (Tr. at 303).

The Parent stated that the District program children were dispersed throughout the building and there was no wing specifically designated for District children. He further stated that he was worried for his son’s safety as his son would be placed with general education children from through grade (Tr. 304). He further stated he was told that his son’s mandated related services could not be met so he would be given a RSA for missed sessions (Tr. at 305). He recalled there was no and without the of the , the , the his son would not (Tr. at 306). He further recalled that was served in a standard DOE and he to general education children and District children during the lunch period (Tr. at 307). He stated that his would become of the (Tr. at 308). He further stated that he was told there was no specific and opined that the proposed placement was not appropriate and notified CSE (Exh. G) by letter dated June 15, 2010 outlining his concerns (Tr. at 309). He noted that he with the Head teacher times a day by and and opined that his in the during the 2011-2012 school year by his , and in his with his (Tr. at 313). He stated that he was obligated to pay the tuition (Exh. I at 5) and that he had paid $4,000 (Tr. at 316). He stated that the tax return from 2010 accurately reflected his family’s income (Tr. at 318)

On cross the Parent stated his son obtained the at the (Tr. at 319) and that he was concerned as a Dean who worked for the DOE for years that the proposed school could lead to by and (Tr. at 326). He further stated that he was familiar with the process of a RSA as a payment voucher for service provided to his son outside of school (Tr. at 331). He maintained he was willing to view proposed sites to see if they were appropriate (Tr. at 332).

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 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 he was entitled to a tuition reimbursement/prospective payment of $94,750 for tuition for a -month program at because the April 29, 2011 IEP was procedurally and the seriously on on the parent participation in the IEP and resulted in a denial of FAPE. The parent’s attorney asserted in her closing brief that the DOE did not offered a FAPE because the CSE’s failed to adequately evaluate the Student the Student was of and / benefit (IHO Exh. II at 5). The parent’s attorney further asserted the CSE’s failure to recommend parent training and counseling on the IEP was a violation of FAPE (IHO Exh. II at 6). She argued that CSE failed to address the Student’s and this failure compromised the Student’s and him of a FAPE (IHO Exh. II at 5). The parent’s attorney argued that the CSE impeded the parent’s opportunity to participate in the decision-making process (Id.). The parent’s attorney further asserted that the CSE failed to properly gauge the Student’s current skill levels (IHO Exh. II at 7,8). The parent’s attorney asserted that the recommended program failed because the paraprofessional did not provide educational services (IHO Exh. II at 13).

The district’s attorney asserted that CSE was validly constituted and relied on sufficient and adequate evaluative information to develop the April 29, 2011 IEP (IHO Exh. I at 5). The district’s attorney further asserted that there was “no evidence in the hearing record to suggest that the Student’s educational or related service needs warranted reevaluation” (Id.). I find the record was devoid of any evaluations with recommendations concerning the nature, frequency and amount of related services to be provided to the child. I find the April 29, 2011 IEP recommended an increase in related services of . The record was devoid of specific evaluations from related service providers to support the increase in the sessions recommended on the April 29, 2011 IEP. The parent’s attorney asserted that the CSE did not evaluate the Student’s ability to receive an educational benefit (IHO Exh. II at 9. The parent’s attorney further asserted that the “SRO has found a gross procedural error in the CSE’s failure to specify the extent to which evaluative data are used, and superficial reference to an evaluation is not evidence of its utility. (See SRO Appeal No. 11-126)” (IHO Exh. II at 11). The district’s own witness acknowledged that CSE reviewed the teacher reports (Exh 10), the Classroom Observation (Exh. 9), the Evaluation (Exh. 11) and the team determined the Student’s levels based on the current teacher reports and (Tr. at 41-42). The parent’s attorney argued that the Student “made significant and academic gains since his first and only evaluation, warranting a re-evaluation before the 2011-2012 school year recommendation. (8 NYCRR § 200.4(b)(4).” (IHO Exh. II at 12) Testimony adduced at the hearing established the Student made gain and these gains were not reflected in the Evaluation dated March 31, 2009. Testimony adduced at the hearing established that the CSE utilized the report (Exh. 10) and the parent’s attorney argued that the CSE failed to “ensure that no single measure or assessment was used as the sole criterion for determining an appropriate educational program … in violation of state regulations. (8 NYCRR § 200.4(b)(6)(v).” (IHO Exh. II at 12).

The district’s attorney asserted that the CSE had information of Student’s present levels of performance and CSE had adequate and appropriate evaluative material in the classroom observation, the March 31, 2009 evaluation, the December 20, 2010 RS report and the information provided by the Student’s then current classroom teacher to make an appropriate educational program (IHO Exh. I at 6). The district’s attorney further argued that the parent was permitted meaningful participation (Id.).

I find the district failed to establish that the April 29, 2011 IEP was developed with the adequate and appropriate evaluative material and this failure deprived the Student of a loss of educational opportunity.

The district’s attorney asserted that the goals were appropriate and the program provided provisions for parent training and counseling for the parents of students with (IHO Exh. I at 9-10). In Application of the New York City Dept. of Educ., Appeal 10036, the SRO held that the lack of parent training and counseling listed on the IEP did not amount to a deprivation of FAPE. The district’s attorney further asserted that the proposed program was in the least restrictive environment (“LRE”) for the Student to make meaningful progress (IHO Exh. I at 10). I find the parent is not held as strictly as the district with regard to LRE requirements. Moreover, in this case the persuasive evidence shows that and are necessary for this Student or else he will in . The parent’s attorney argued that the Student required instruction from a qualified teacher not a aide (IHO Exh. II at 11). The district’s attorney argued in her reply brief that there was no evidence that the Student required special education instructor support (Exh III at 2). I find the Student requires individual instruction to ; however, I find that the need not solely be provided by a special education instructor.

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 and that the CSE did not listen to him when he stated that class size 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 shall be grouped by similarity of the individual needs according to criteria: , , and . (8 NYCRR 200.6(a)[3]) Testimony adduced at the hearing failed to establish that the Student would have been grouped appropriately in his proposed summer class as there were only children in the proposed class and were and were with , and could not . Testimony adduced at the hearing established that the Student at the level in and and I find the Student could not have been appropriately grouped for academics in the proposed class during the summer of 2011. Further, testimony adduced at the hearing established the Student was to and the record was of any support service to address the Student’s for in the . I credit the testimony of the parent regarding the size of the and the and his concern that the mix of general education children and District children in a provided too much for the Student. Moreover, I credit the testimony of the parent who stated there were on the . I further credit the testimony of the parent and find the proposed could not have provided the the Student required. The district’s attorney asserted the IEP contained sufficient supports to address the Student’s and and included to address the Student’s tendency to place items into his and included a description of the and due to concerns and rigidity and contained goals (Exh. 4 at 7) to his of (IHO Exh. I at 9). I find the IEP did not address the fact that the Student could on and stimulus and I find the IEP did not specify how the could be implemented in a with to children. The parent’s attorney argued in her reply brief that the April 29, 2011 IEP did not address the Student’s need for for his and (IHO Exh. IV at 4). I find there was no mention of the Student’s need for for his and on the April 29, 2011 IEP.

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 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 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 program for the Student was not tailored to the Student’s unique needs (IHO Exh. I at 15). She asserted that the CSE recommended that the Student receive more related services than he received at the . I note the record is devoid of evaluations to support the frequency of the recommended related services. I find testimony adduced at the hearing established that the Student required frequent to keep him and regulated. I find the had equipped with , , , , , and . I find the at the provided the Student with throughout the day. I find the , and the Student’s as did the in the Student’s classroom so he was able to and .

Testimony by the parent and the staff at and evidence submitted by the parent established that the parent has met his burden regarding the unilateral placement of the Student at the . The testimony of the Program Director and the indicated that the Student benefited from the DIR methodology at the and the program met his , , / and . Testimony adduced at the hearing established that the DIR model assessed the Student in terms of his and determined how he took information from his and him to within his to . I find his and were met by the . I find the Student’s needs were met in the and in . I find the Program Director’s description of the DIR model was beneficial for the Student’s and his . I find the DIR model met his . I find the evidence presented demonstrated that the Student’s current class at the is to meet his

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 did not consider a public school placement (IHO Exh. I at 16). I credit the parent’s testimony that he would have considered a public school placement. The district’s attorney argued that the parent demonstrate he lacked the financial resources to pay the tuition (IHO Exh. I at 17). I find that the parent provided detailed and uncontradicted information (Exh. N) as to his income and financial resources. I find the cost of the exceeded the parent’s income and 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 the amount of $4,000 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. The contract rate is $94,750 and the parent paid $4,000 so the Department of Education is directed to fund the for the 2011-2012 school year the amount of $90,750. Dated: March 14, 2012 Corrected Dated: March 19, 2012 (Correction to the ORDER on page 23)

_________________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LA:dl

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 22, 2011

PARENT

A Notice of Placement, 6/17/11, 5 pages B Final Notice of Recommendation, 6/4/11, 1 page C Impartial Hearing Request, 7/7/11, 5 pages D Omitted E Omitted F Omitted G Notes of School Visit to , 6/15/11, 2 pages H Treating Physician Form, 4/15/11, 1 page I School Enrollment Contract, 5/13/11, 6 pages

DEPARTMENT OF EDUCATION

1 Due Process Compliance, 7/7/11, 4 pages 2 Due Process Response, 9/7/11, 4 pages 3 Impartial Hearing Due Process, 7/15/11, 1 page 4 IEP, 4/28/11, 20 pages 5 Waiver of IEP Meeting of Amended IEP, 6/22/11, 1 page 6 Minutes of CSE Meeting, 4/21/11, 2 pages 7 Notice of Deferred Placement, 4/29/11, l page 8 Notice of IEP Meeting Reevaluation, 4/4/11, 1 page 9 Classroom Observation, 12/13/10, 3 pages 10 School Interdisciplinary Report, 12/20/10, 15 pages 11 Report, 3/31/09, 6 pages

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 19, 2011

PARENT

J Affidavit of Tuition Payment, 11/8/11, 1 page K Class Schedule, 2011-2012 School Year, 1 page L List of Teachers/ School Curriculum, Undated, 3 pages M School Curriculum, Undated, 3 pp. N Tax Return, 4/7/11, 15 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Closing Brief, 2/17/12, 18 pages II Closing Brief, 2/17/12, 30 pages III Reply Brief, 3/2/12, 3 pages IV Closing Brief, 3/2/12, 5 pages