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

December 5, 2011

January 19, 2012

April 23, 2012

May 24, 2012

Actual Record Closed Date: June 8, 2012

Hearing Officer: Leah Almeleh, Esq.

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

Advocate, Educational Advocacy Services — Student

DR, School Psychologist, Chairperson Designee, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2011

Advocate — Student

CSE Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2012

Advocate — Student

Parents

District Representative — DOE

School Psychologist (Via Telephone) — DOE

Guidance Counselor (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2012

Advocate — Student

Parents

(Via Telephone) Assistant Head of School at — Student

Chair Designee CSE- — DOE

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

Advocate — Student

Parents

Friend — Student

CSE Chairperson — DOE

PROCEDURAL CONTEXT

On July 18, 2011 I was appointed to hear the matter of versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On September 7, 2011 a pendency hearing was held and an Interim Order of Pendency issued on September 13, 2011. Thereafter, hearings on the substantive merits were held on December 5, 2011, January 19, 2012, April 23, 2012 and May 24, 2012. As a result thereof, the timeline duly extended to June 8, 2012.

Specifically, the Parents assert that the Department of Education’s (hereinafter the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) of March 16, 2011, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Exhs. A, 1. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], the Parent is seeking tuition reimbursement, related services and transportation services for the 2011-2012 school year in furtherance of a unilateral transfer to (hereinafter “ ”), a non-public school setting. . is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified with “ ” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.

THE SCHOOL DISTRICT’S CASE

testified as lead witness. Mr. certified by New York State as a school psychologist and is employed in this capacity by the Department of Education. As such, he participated in an IEP meeting for . on March 16, 2011, but testified that he had no independent recollection of the events. Tr. at 31. In addition to Department personnel, he noted that the Committee on Special Education (CSE) convene was attended by the Parent and Assistant Director of Adelphi, the only individuals present with direct knowledge of the student. As a result of the CSE’s discussions, a class in a community school was recommended along with the related services of and therapy. School health services were terminated and a full-time health paraprofessional substituted. The Parent noted that her son now utilized a service dog and relevant accommodations were incorporated into A.T.’s IEP. Exhs. 1,5. On cross-examination, the witness acknowledged that the CSE had based its understanding of .’s medical issues from an earlier Social History rather than an actual observation. Tr. at 40-41. Additionally, Mr. could not specifically recall what evaluative material was presented by the School via telephone. Although counseling, occupational therapy and goals were articulated within the IEP, Mr. did not know how they had been developed, nor were related service reports available. Rather, the witness believed this information had been supplied by Adelphi’s representative. He testified, “Whatever information we got on the child – the psycho-ed, which had some informal – you know, look at how his speech is, and the fact that he had speech and were continuing it. If you go to page nine, my understanding is he already had speech, and we were just continuing it.” Tr. at 44-45. Mr. further testified that school health services had now been superseded by the assignment of a health paraprofessional, a more intense and direct manner of supervising the student’s medical status. Finally, he did not know why provisions for a diploma had not been referenced within the .’s transition plan.

is a guidance counselor assigned to (hereinafter “Sheepshead”).1 His duties include reviewing IEPs to ensure that programmatic needs can be met within this site. Tr. at 52. The witness testified that Sheepshead is a full access school which could meet the mandates of .’s IEP. As such, would be assigned to self-contained classes in all core content areas with students similarly profiled. Although the student’s present levels of performance in both math and English fell within nearly four to six years below grade level, he opined that a paradigm could successfully meet .’s needs. While Mr. noted that is a “full access” school, the witness nevertheless acknowledged that there were no students at his school who depended on a service dog. Finally, on crossexamination, Mr. testified that he did not know if more than one senior class had been formed for core subjects during the 2011-2012 school year. He opined, however, that whatever the existing class profile, it would be appropriate for School is alternatively known as “ ”. With respect to non-core subjects required for diploma graduation, the student would be assigned to art and music classes whose enrollment reflected a pupil/personnel ratio. In some cases, music is offered within a paradigm. As art and music are required for receipt of a high school diploma, . would be expected to participate in these classes. Tr. at 69. Although the witness noted that .’s IEP mandates that all classes reflect a ratio, there are no such art or music classes at Sheepshead. Nevertheless, Mr. did not view this as problematic, testifying that he would place the student in such a class although one did not currently exist. Tr. at 65. Beyond non-core, but diploma mandated courses in art and music, Mr. further added that totally elective courses are additionally available in classrooms. Similarly, he testified that any administrative issues related to the student’s receipt of a diploma could be easily resolved. Tr. at 57-58. Lastly, the witness described the physical plant at Sheepshead, a school in which nearly two thousand students are enrolled. He noted that .’s classes would be located throughout the school’s four floors and . would be expected to transition in crowded hallways with mainstream students. Tr. at 67-68. The cafeteria is accessible via elevator and students with mobility issues are segregated in “their own section.” Tr. at 69.

THE PARENT’S CASE

Iphigenia Romanos is currently the Assistant Head of School at , an independent college preparatory school. The School includes a sub-division known as Project Succeed, a program which adheres to New York State standards, for college bound students with learning disabilities. During the 2011-2012 school year, approximately 120 students were enrolled at of whom were students. The School employs three certified special education instructors. It is exempt and does not offer standardized testing for its upper level students, although the ELAs and math exams are administered for grades three to eight.

Ms. as a small, nurturing environment in which a great deal of individual attention, academic and emotional, is offered to its students in the form of educational tutorials, resource room, related services, testing modifications and accommodations. Although . is assigned to a classroom with fourteen other students, he receives daily tutorial supports within the classroom as well as small group, resource room pull-outs on a daily basis. The student additionally receives a modified curriculum which is supported by the provision of weekly outlines in every subject area, testing accommodations, and class schedules which require minimal travel transitions but offer extra time between classes. This is particularly important during lunch as the student eats slowly and is vulnerable to choking hazards. Tr. at 98, 134. Consistent with .’s limited mobility, Ms. testified that the student receives related services on site. Beyond this, the witness testified that school trips are modified so that . may participate as a regular member of his class. Finally, an individualized safety plan has been developed for A.T. in the event of a school emergency. Tr. at 85-88. The witness testified that the student has demonstrated a considerable amount of progress. Based upon a review of .’s progress notes and weekly conferences with his teachers, Ms. testified that the student has exhibited positive growth in his academic subjects. On an emotional level, he is much more likely to attempt new challenges and is able to cope with increased levels of frustration without sacrificing self-esteem. Socially, the student has learned to initiate conversations and engage in social dialogue, a particular area of difficulty for . Tr. at 94-96,106; Exh. F.

Finally, Ms. . testified. She provided a brief educational history of her son. was a bright child who attended public schools , at which time he sustained a significant . At this time, . was hospitalized for and then transported where he remained for more than one year. Exh. 3. She testified that . had to , that we all do. He had to .” Tr. at 146. Following his discharge where he was placed . The Parent testified that the school was excessively crowded, large and distracting. As a result, she did not believe was learning anything within this environment and removed him unilaterally.

On March 16, 2011 Ms. . attended a CSE meeting to discuss her son’s placement for the upcoming year. Thereafter, a Final Notice of Recommendation for was issued on May 20, 2011. Ms. testified that she visited the school and had many concerns, including her belief that personnel was unfamiliar with . In August, the Parent filed a Ten day Notice indicating her rejection of the Department’s placement and her further intent to place her son at Adelphi unilaterally. Exh. E. In September, she made her first payment to , although she continues to for tuition.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department maintains that the March 16, 2011 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the School District asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the Department of Education maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

THE PARENT’S POSITION

The Parent asserts that the Department of Education stands in abrogation of its duty to provide A.T. with a free and appropriate public education for the 2010-2011 school year in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, the Parent maintains that the IEP generated March 16, 2011 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. In furtherance thereof, the Parent asserts that the Department’s IEP broadly neglected the , such that the Parent was compelled to unilaterally enroll her child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that the constituted an appropriate placement for her son during the 2011-2012 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

DISCUSSION

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the Individuals with Disabilities Education Act (IDEA) (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]. In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 16, 2011 IEP reasonably calculated to confer an educational benefit upon A.T. during the 2011-2012 school year?

Were the student’s present levels of performance appropriately incorporated into the March 16, 2011 IEP?

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

Clearly, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n.21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside" as the IEP (Rowley at 192). Indeed, "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act" (Kerkham v. McKenzie, 862 F.2d at 886). Similarly, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). And, even if the record revealed a lack of progress under a particular IEP this too does not automatically render that IEP inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]). Turning to the question of A.T.’s IEP, I believe that the CSE generated its recommendations in the absence of several key assessments, including several related service progress reports. Although a current psycho-educational evaluation and social update were presented, there were no counseling, speech or occupational therapy assessments available, although goals in these related services were developed. Mr. testimony regarding the manner in which these goals were formulated was less than compelling. While he could not recall how the student’s goals had been formulated, his suggestion that continuing goals did not require current assessments is merely an end-run around the Department’s responsibility to furnish this information at CSE convenes. Tr. at 44-45. Combined with the absence of a current observation, I find that the IEP simply did not accurately reflect the student’s current levels of performance. As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private evaluations, and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]). Are the IEP’s short-term goals and objectives appropriate?

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

I find, a priori, that the goals articulated in the March 16, 2011 IEP are inadequate. There are no short-term objectives or benchmarks specifically relating to .’s progress toward any of these goals. Likewise, there are no mastery criteria and no baseline from which to measure progress. All goals refer to boiler-plate 80% achievement criteria with no articulated method of quantification. The absence of this specificity leaves no accountability for quantifiable improvement, a situation exacerbated by A.T.’s participation in a variety of de-compartmentalized classes and the lack of consistency between different instructors. Many of the math and reading goals are stated generically and vaguely. Indeed, in some instances, Mr. could not even recall how the goals had been developed. Tr. at 42-45. Given this scenario, it is unclear how progress would be quantified objectively and the lack of accountability is clear. See 34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]).

In sum, while individually, many of the procedural infirmities articulated by the Parents do not place the District in abrogation of its IDEIA mandate, in aggregate, this constellation of deficiencies compromises the integrity of the CSE process. Do the recommendations articulated in the student’s IEP provide FAPE?

The District’s Report, dated February 16, 2011 reflects measures of both cognitive ability and achievement. Exh. 2 at 5. In furtherance thereof, cognitive testing referenced by the Department’s report indicates that functions within the borderline and low average range of intelligence. Exh. 2 at 3. Notwithstanding this, when testing minimizes the impact of ’s , the student’s score are significantly higher. Ibid. Thus, scores yielded on the Test of Non-Verbal Intelligence indicate that .’s actual .2 While scoring on some sub-tests yielded a range of , the manner in which testing was performed is significant. Simply stated, when testing occurs in modified fashion, eliminating verbal demands, ’s do not readily eclipse measures ’s actual abilities. Given within a structured setting applying test accommodations, relaxed timing and nonverbal demands, the student’s actual abilities are more clearly demonstrated. Nevertheless, these artificial testing accommodations are inconsistent with the manner in which materials are presented to students within the classroom; the standardized scores essentially present a cognitive and achievement profile reflective of an alternate test reality rather than one based upon actual classroom performance and protocol. As such, they must be viewed within context. It is beyond cavil that a student whose full-scale intellectual scores fall at the borderline range cannot be appropriately served by a selfcontained classroom. This is particularly so where the student’s working memory, his ability to retain and manipulate short-term information, falls within the deficient range. Exh. 2, passim.

It should be noted, moreover, that pupil/personnel ratio is not the only factor which may determine the level of performance within a class. It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented. Clearly, the delayed feedback, inherent within a larger class, would impact negatively on a child whose working memory and processing speed is described as “deficient.” Exh.^[2] at 2. Although Mr glibly testified that the one senior class which presently exists was appropriate for ., the testimony and evidence does not support his allegation. Assignment to required classes in which up to fifty children are enrolled is, without question, inappropriate.

Finally, it is clear that the physical plant at would be for a child whose mobility is . would be required to negotiate hallways filled to capacity with active teen-agers, a daunting task for anyone, and especially an unstable and . The risk of injury is significant aside from the likelihood that . Although presently utilizes a service dog to facilitate and stabilize his , the student was previously dependent upon .

The student requires on a daily basis and has had eight operations since is and it is unclear how . Under these circumstances, I do not believe the Department has met its prong one burden pursuant to Burlington, supra.

Ultimately, the IEP’s "basic floor of opportunity” must reflect an individualized program likely to provide progress, not regression. Grim v. Rhinebeck Cent. Sch. Dist., supra. Considering , notwithstanding his , I am not persuaded that the Department has met its IDEIA mandate.

Point II: Was Adelphi an appropriate educational placement for A.T. during the 2011-2012 school year?

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

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

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

I find, at the outset, that the academic program offered at correlates well with the student’s academic needs, as identified in the IEP. Clearly, the School offers a small, structured program in which can participate with similarly profiled students. Ms. testified that students receive a great deal of individualized attention in the form of educational tutorials, resource room, related services, testing modifications and accommodations. The student additionally receives a modified curriculum which is supported by the provision of weekly outlines in every subject area, testing accommodations, and class schedules which require minimal travel transitions but offer extra time between classes.

Consistent with , Ms. testified that the student receives related services on site. Beyond this, the witness testified that school trips are modified so that may participate as a regular member of his class. Finally, an individualized safety plan has been developed for . in the event of a school emergency. Tr. at 85-88. In this manner, has been able to develop, support and integrate the academic, social and life skills necessary to function appropriately within the mainstream environment. Ultimately, I find that the student made significant and meaningful improvement at an opinion expressed by school personnel, in the absence of any controverting Department of Education testimony. Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2011-2012 school years?

The undisputed testimony indicates that the Parent participated cooperatively in CSE meetings and duly placed the CSE on notice that she wished to seek reimbursement. When asked to visit the recommended placement, she did so. She has participated willingly in social histories, shared independent medical assessments when available and placed her child in Department programs when recommended. Under these circumstances, I do not believe there are any equitable considerations which militate against supporting the Parent’s claim to reimbursement.

Finally, a review of the Parent’s income tax returns and social security benefit statements for 2010 clearly establish the level of financial need contemplated by Connors v. Mills, 34 F.Supp 2d 795, (N.D. N.Y. 1998), supra, and the Parent is entitled to this remedy.

CONCLUSION

The Parents’ request for relief is granted in full for the 2011-2012 school year.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the Department of Education shall make a payment of $36,700.00 to the for tuition expenses incurred by during the 20112012 school year. In addition, payment of $600.00 shall be made directly to the Parent, , representing payments previously made by the Parent for tuition expenses during the 20112012 school year at Adelphi.

The Department of Education shall continue to provide related services to . for the remainder of the 2011-2012 school year. This shall additionally include special education bus transportation to and from , along with access for the student’s service dog. Dated: June 12, 2012

LEAH ALMELEH, ESQ.

Impartial Hearing Officer

LA:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 7/15/11, 4 pages B Board of Education IEP, 6/7/10, 19 pages C Board of Education IEP, 3/16/11, 18 pages D Final Notice of Recommendation, 5/20/11, 2 pages E Ten Day Notice, 8/18/11, 1 page F Progress Report, 2011/2012, 2 pages G Enrollment Contract, 2011/2012, 1 page H School Affidavit, 2011/12, 1 page I Attendance Record, 2011/12, 1 page J Parents Tax Return, 2 pages K Program Description, 1 page L Class Schedule, 2011/2012, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 3/16/11, 19 pages 2 Evaluation, 2/16/11, 8 pages 3 Social History Update, 2/16/11, 3 pages 4 Waiver to Update IEP, 6/30/11, 1 page 5 CSE Minutes, 3/16/11, 4 pages 6 Final Notice of Recommendation, 5/2/11, 1 page

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Footnotes

[2] The record indicates that scores derived by the Department of Education psychologist are consistent with those obtained at Hofstra University in 2010. Ibid.