New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 28, 2011

December 1, 2011

December 28, 2011

Record Close Date: January 13, 2012

Hearing Officer: Lana S. Flame, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2011

Advocate — Student

Parents

Principal, (via telephone) — Student

Social Worker (via telephone) — Student

CSE 6 District Representative — DOE

Assistant Principal, P009 (via telephone) — DOE

Special Ed Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2011

Advocate — Student

Parents

Principal (via telephone) — Student

School Social Worker (via telephone) — Student

CSE, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 28, 2011

Advocate — Student

Parents

Social Worker (via telephone) — Student

CSE- District Representative — DOE

The parent of .”) requested an impartial hearing on July 1, 2011, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. Sec. 1415 (f)(1). I was appointed to hear the matter on July 5, 2011. The hearing was held on November 28, December 1, and December 28, 2011.1 The parents were represented by an advocate, Ms. , and the New York City Department of Education (“DOE”) was represented by a district representative, Dr. . Lists of the individuals who appeared and the documents entered into evidence are included in this decision. Extensions of the time line

On October 3, 2011, the parent requested an extension of the time line due to the availability of the witnesses. I granted the extension from October 3, 2011, to November 2, 2011. The parties requested and I granted an extension on October 17, 2011, due to the availability of the witnesses. The time line was extended to December 2, 2011. On November 28, 2011, the parties requested an extension of the time lines due to the parent's advocate having a family medical emergency and the district's availability. After ascertaining that the student would suffer no educational or other harm by a delay and that allowing the extension would permit the parties to fully exercise their due process rights, the extension was granted to January 1, 2012. (Tr. 107-109). The date automatically was rolled over to January2, 2012, by the NYSED IHRS. On December 28, 2011, the parties jointly requested an extension of the compliance date due to extensive testimony which required scheduling close to the compliance date. The parties requested additional time to allow for the record to be closed, receive the transcript and allow time for the hearing officer to write the decision. I granted the request on that date due to the need to reschedule witnesses because of the parent representative's illness and the time needed as per the request after making a determination that the impact on the child's educational interest and well-being and financial or other consequences to either party would permit the additional delay. The time line was extended for thirty days to January 27, 2012. (IHO Ex. I, Tr. 301-306).

1Witness availability for both parties required beginning the hearing in November. An effort was made to complete the hearing on the second day, December 1, 2011, but the parent's advocate had an emergency medical need during the hearing and we were unable to proceed. (Tr. 171-173, ).

Decision

By due process complaint notice dated July 18, 2011, the parent alleged that the DOE failed to provide her son with a free appropriate public education (“FAPE”) for the 2010-2011 school year. For the 2010-2011 school year, the parents unilaterally placed their son, ”), a non public school which has not been approved by the New York State Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7), and are seeking tuition reimbursement for the school year in question. The DOE failed to provide the student with a FAPE for the 2010-2011 school year and the parents are entitled to reimbursement of a portion of the tuition for the 2010-2011 school year.

old student who has been diagnosed with ”), . (Ex. A). On June 21, 2010, . was classified by the Committee on Special Education (“CSE”) as . The classification is not in dispute. (Ex. A, Tr. 6). At the time of the hearing at class and receiving counseling as a related service twice a week for thirty minutes per session.

Background

A May 15, 2009, psycho-educational report indicates that the student had been referred for an initial evaluation “ ”. (Ex. K-1). He was in the fourth grade, general education, attending a religious school. “Reportedly he and is currently day. His mother reported that the student was on . (Ex. K-1). The school who conducted the evaluation noted that the student first resisted going with the and surreptitiously , then refused to attempt any tasks and just sat there once he was with her. The psychologist let him take a break and resumed a while later. The student was more cooperative, but “did not answer basic questions or engage in any spontaneous conversation.” He rolled his eyes and made noises appearing to growl with disgust and told the psychologist that she and the test were “stupid”.

percentile, which is in the Average Range. His performance IQ score was or percentile, within the . His Full Scale IQ Score was percentile, within Range. The examiner noted that, in general, fall most consistently within the , but that he has a higher potential.

The examiner was able to conduct a limited number of tests because of the student's lack of cooperation. On the reading subtest the student was able to read many words without difficulty and achieved a score of percentile. This correlated with an age equivalent of and grade equivalent of . On the reading comprehension subtest . was able to answer both informational and inferential questions. He received a standard score of percentile, correlated to an age equivalent of and grade equivalent of . was given a Numerical Operations Subtest to assess his ability to calculate using basic arithmetic operations. He had some with division. His Standard Score percentile correlating to an age equivalent of and grade equivalent . Regarding the student's functioning, the psychologist noted:

“Data suggests . He is . It appears that he has with others. He situations and then becomes . He appears to be most content when he is by himself.” (Ex. K-3).

For her recommendation, the psychologist deferred to the Individualized Education Program (“IEP”) meeting (for the 2009-2010 school year) so that all reports and information could be considered. (Ex. K-3).

On June 21, 2010, the CSE convened to develop the student's IEP for the 2010- 2011 school year. The IEP sign in sheet indicates that the participants included the mother, by telephone, a district representative, a special education teacher, a school psychologist, a parent member and the student's then current teacher as well as the principal from Beacon. (Ex. H-2). The CSE recommended a special class in a specialized school initiated a full-time and recommended individual counseling twice a week for thirty minutes per session. The CSE recommended that . attend a twelve month program. (Ex. H).

On the Academic Performance and Learning Characteristics section of the IEP, based on .'s teacher's observation he was functioning approximately on an upper fourth grade level for math computation. In reading he was reported to be at ) for decoding and comprehension. If he is motivated he has the ability to write on grade level. (Ex. H-3).

His teacher reported that he has “ and completing what is asked of him. He has taking and social awareness which creates a lack of accurate comprehension.” (Ex. H)

The Academic Management Needs included:

“INCREASE THE AMOUNT OF MODELING, DEMONSTRATION AND

GUIDED PRACTICE; PREFERENTIAL SEATING UP FRONT, CLOSE TO THE

TEACHER, AWAY FROM DISTRACTIONS SUCH AS THE DOOR, HIGH TRAFFIC

AREAS, NOISY DEVICE, ETC.; UTILIZE CHECKLISTS AND SCHEDULES IN

ORDER TO PROVIDE VISUAL STRUCTURE AND MOTIVATION NEEDED TO

COMPLETE ASSIGNMENTS AND REMAIN ON TASK BY CHECKING OFF

ASSIGNMENTS AND ACTIVITIES UPON THEIR COMPLETION; POSITIVE

REINFORCEMENT, PRAISE AND ENCOURAGEMENT.” (Ex. H-3).

The Present Performance for Social/Emotional stated:

“[ . IT WAS REPORTED THAT [ WITH APPROPRIATELY TOWARDS

OTHERS 's] TEACHER REPORTED THAT .] DEMONSTRATES [ CAN

BEHAVE TOWARDS OTHERS, [ ] TEACHER REPORTED THAT [ .] HAS

DIFFICULTY IN AN

The IEP indicates that the student's with instruction and requires additional adult support. and a management needs were identical to those for his academic needs with the addition of a full-time crisis paraprofessional “to assist [ .] on staying focused on task.” (Ex. H-4).

The IEP indicates that a behavior plan is required. (Ex. H-5).

The IEP includes five goals related to the student's academic needs, two each in reading and math, and one for writing. (Ex. H-7, H-8).

Included in his IEP are three goals labelled as S.M.A.R.T. Goals. These are: 1) “Within one year, [ will become more open and involved with teachers and authority figures. He will increase the expression of feelings and thought, for 1 repetitions with 50% accuracy with max assistance. 2) “Within one year, [Y.P.] will improve in age appropriate 50% accuracy with max assistance. He will comply with classroom rules and regulations for 3 repetitions with 50% accuracy with max assistance.” 3) “Within one year, [Y.P.] will improve in decision-making skills. He will demonstrate ability to discuss and understand benefit of applying a responsible decision-making process to situations for repetitions with 50% accuracy max assistance.” (Ex. H-9, H-10).

The IEP includes one additional goal related to behavior: “[ .] will improve ability to remain on task and complete classroom tasks and academic activities as well as improve ability to participate in school related activities by following teachers instructions 8 out of 10 times with the assistance of a behavior management paraprofessional by 1 year from now.” (Ex. H-11).

The IEP includes a ”). The listed behaviors that interfere with the student's learning include: difficulty remaining focused ; difficulty interacting appropriately with adults and peers; and difficulty complying with adult authority requests. The behavior changes that are expected include: remaining on task and completing assignments; interacting appropriately with adults and peers; and complying with adult authority requests. The strategies that are going to be tried to include: “1. CUES, TO ,

APPROPRIATE ADULTS AND PEER INTERACTION AND REFOCUS TO REMAIN

ON TASK. 2. UTILIZE CHECKLISTS AND SCHEDULES IN ORDER TO PROVIDE

VISUAL STRUCTURE AND MOTIVATION NEEDED TO COMPLETE

ASSIGNMENTS AND REMAIN ON TASK BY CHECKING OFF ASSIGNMENTS

AND ACTIVITIES UPON THEIR COMPLETION. 3. PROVIDE POSITIVE

REINFORCEMENT FOR ON-TASK BEHAVIOR, I.E., TOKEN ECONOMY

SYSTEM, DAILY BEHAVIOR CHECKLIST. ALLOW FOR [ ] TO BE INVOLVED

TO HELP HIM .” (Ex. H-15). The supports that will be employed to help the student change the behavior are his teacher, counselor and school staff. (Ex. H-15).

The parents received a Final Notice of Recommendation (“FNR”) dated June 21, 2010, offering the student a placement in P009q, class V64. The parents visited the recommended placement, determined that it was not appropriate for their son and informed the CSE. (Ex. A-2). Due Process Complaint

By due process complaint notice dated July 18, 2011, the parent alleged that the DOE failed to provide her son with a free appropriate public education (FAPE) for the 2010-2011 school year. The CSE recommended placement for the student in a class in a specialized school with related services of individual counseling, twice a week for thirty minutes per session, and a full time crisis paraprofessional. (Ex. H).

The parents assert that the IEP goals and ) that were developed at the June 21, 2010, IEP meeting are overly vague and simplistic and do not fully address the students . The parents maintain that without appropriate goals and a , their son will not be able to make meaningful progress in school and therefore he was denied a FAPE. Additionally, the parents assert that the placement offered was inappropriate because it did not offer the “intensive level of behavioral support” that the student “requires to safely remaining in school.” (Ex. A-2). They found that the class of twelve students was too large and there were too many distractions in the classroom. (Ex. A-2).

The parents unilaterally placed their son in and claim that provided the student with an appropriate special education for the 2010-2011 school year and that they are entitled to tuition reimbursement.^[2]

The parents signed a 2010-2011 Letter of Agreement with Beacon on September 1, 2010, for $35,000. (Ex. I) An addendum, dated October 15, 2010, was signed by the parents for an additional $4,000.00 for . Based on the agreements, the total amount due for tuition for the 2010-2011 school year is $39,000.00. (Ex. J).

The parent submitted copies of cancelled checks, made payable to in the amount of $ 25,250.00. (Ex. F).

A June 2011 end of year report from indicates that . independently read many more books and completed monthly book reports. In math, he was able to divide two digits into three and four digit numbers with and without remainders, completed decimals through the thousandth place including numerical operations with them and learned fractions. The school reported what he learned in science and social studies. He was stated to write narratives and edits his own writing. (Ex. G-2). Regarding his behavior, the report says:

“[ .] has improved his ability to follow directions without a He has improved his peer interaction by maintaining personal space. 's attitude has improved, as he does not withdraw from social situations. He has also used his words to instead of withdrawing [sic] as a result of social encounters.” (Ex. G-3). The Department of Education Case testified that she is a “teacher assigned to the CSE whose job it is to compile information and create IEPs on CSE teams for private school students. (Tr. 73). She testified that the purpose of the August 18, 2010, meeting was to add a bus paraprofessional to the student's IEP. (Tr. 84-85). No changes were made to the student's academic goals because the principal of said that the school had been closed over the summer, nothing had been worked on, and the June 21, 2011 goals still were applicable. (Tr. 74).

The CSE recommended the special class in a specialized school because they felt that the student's academic and behavioral needs could be appropriately addressed in a class of that size with the level of adult support in addition to his own paraprofessional and the counseling. She viewed a program as “a highly structured therapeutic program in which everything is regulated and/or mapped out. [T]ransitions are taken into consideration, academics is taken into consideration...” (Tr. 76-77). All of the supporting mental health and medical staff are on site. (Tr. 77-78). A twelve month program was recommended because the student seemed to need continuous services to “best address his needs.” (Tr. 75). The CSE had concerns that he might otherwise regress. (Tr. 75).

Ms. testified that the CSE conducted a classroom observation prior to the June 21, 2010 meeting, on February 16, 2011.^[3] (Tr. 78-79). For the June 21, 2010, IEP the CSE considered teacher reports and the classroom observation. No other evaluations were done. (Tr. 103). The CSE did not rely on the last evaluation done, the of 2009, and Ms. did not recall whether they consulted it. (Tr. 105). Ms. was uncertain who wrote the student's BIP in the IEP. (Tr. 81-82). She was not present at the June 21, 2010 meeting. Ms. stated that the teacher scores dated June 11, 2010, on the Academic Levels section of the IEP came from a teacher report of that date. Ms. testified that the CSE spoke to the teacher and had those reports at the June meeting. (Tr. 78)

The bus paraprofessional was added at the August meeting because “certain warranted it . And ...so a would be necessary to help the child...be safe and the other children on the bus be safe...” (Tr. 84-85). Ms. agreed that . would need a high degree of management to warrant the recommendation of . (Tr. 88).

Ms. attempted to explain what the student’s goals meant, and ultimately testified that the counselor had written the goals so “she should really explain what she was trying to say.” (Tr. 93-94, 96). The principal, during the meeting, “certified” that these goals were being worked on by the counselor. (Tr. 94-95 101). Ms. recalled “reviewing” the goals at the meeting. (Tr. 95).

Mr. testified that he is the Assistant Principal at , the school where the class recommended to is located, where there were 120 special education students enrolled for the 2010-2011 school year. (Tr. 24). There are six classes of or students in the school which is housed on the first floor of the school building it shares with other schools. (Tr. 25).

In September 2010, there were twelve students in the recommended class. They were children with who “became very, when they .” (Tr. 27). The school manages the students' program titled “The Power of Choice”. The program uses a token economy; the children earn points which they bank and use at the end of each week in a school store. The students also earn the ability to go on school-wide trips based on the number of points they have earned and their behaviors. (Tr. 28-29). Mr. believes that the program works “quite effectively”. (Tr. 28-29)

Mr. testified that . would have been able to receive his crisis management paraprofessional, bus paraprofessional and at the school had he attended. (Tr. 30). The crisis paraprofessionals receive professional development twice a year and are sent for , “a nonphysical theory of and working through them.” (Tr. 31-32 42-44).

In the recommended class, at least two other children had crisis management paraprofessionals and one had a health paraprofessional. (Tr. 35, 51-52). Both students with the paras were very and waned to leave the room whenever they became .Mr. testified that the description of the student's characteristics as stated in the IEP is “a description of basically all of the children in the classroom.” (Tr. 37). Mr. stated that the math program used is the New York City mandated curriculum, Impact Math. He described it as a “scaffolding math program and it is used .” (Tr. 38). He answered affirmatively to the question of whether the learning in the classroom is in any way individualized. (Tr. 38). He believed that during the 2010-2011 school year the students in the class made progress . (Tr. 40). Five of the students are in the inclusion program for the 2011-2012 school year. (Tr. 60).

Mr. did not know the ages of the students in the class. The students were in the sixth and seventh grades, but he was unaware of whether any had been held back. (Tr. 50-51). There were 8 boys and four girls. (Tr. 56). At the beginning of the school year, the grade levels for reading ranged grade. (Tr. 57-58). In math the grade levels ranged from 3rd to 7th. (Tr. 58). Mr. did not recollect how the students were grouped for their differentiated instruction last year. The classroom teacher leads all of the groups by rotating in the classroom with the paras attending each group. He described the class as “maladjusted”, “wanting to leave the classroom. Wanting to fight. Wanting to defy authority.” (Tr. 59, 64-65).

Mr. testified that if a student were “having a rough day” he could go to a separate room, the Planning center, and would be accompanied by his crisis paraprofessional and a teacher specifically designated for crises. (Tr. 53-54). The children in the school all eat lunch together. (tr. 62). The Parent's Case

Mrs. testified that she is the principal of the . (Tr. 126). For the 2010-2011 school year there were 50 students in the school, with eight classes. (Tr. 127). The mission of the is “to educate each child up to his potential, academically and socially and behaviorally, to be able to integrate them eventually into mainstream environments.” (Tr. 127).A typical child will be a child with with some minor learning issues. The school uses behavior principals under the guidance of the . (Tr. 128).

At the time of her testimony . She described him his first year, 2009-2010. When he started, “he was completely in terms of his . ...He did not want to do any work. He shut down and would literally just sit in the classroom with and He was extremely and would be that they asked. He was very . He did not want . He wasn't able to even be able to follow classroom rules, be able to with anybody. He wasn't even able to learn at all.” (Tr. 130).

The school follows a token economy set up by NYU Child Study Center, where the children earn and lose points based on their behavior. (Tr. 131-132). The children earn prizes or trips based on the number of points they have earned. The children receive continuous feedback about their behavior. . had additional interventions in order to be able to get him to work at all. He was given an individualized schedule of work with breaks and incentives to build for longer periods of time. (Tr. 132). The plan was implemented by his teacher and created by Mrs. the teachers and the social worker. (Tr. 133).

Mrs. recalled participating in the June 2010 IEP meeting. She did not recall getting any information prior to the meeting, and generally she only receives a notice that the meeting is scheduled. The CSE requested reports from the school and she provided them. (Tr. 148). She recalled discussing the student's progress in general and his need for a bus para because he was very difficult behaviorally on the bus. He would have outbursts, was very physical and aggressive and “they weren't able to detain [sic]him on the bus.” (Tr. 134).

similarly in school. Mrs. testified: “So with the behavior system and the different consequences from the , we would try to have him regroup himself and redirect himself and calm down. In addition to the behavior system we have our social worker, who is always ready at any given moment, to be able to intervene, and that's something that was very helpful, specifically for [ .], to be able to address his .” (Tr. 135). Mrs. stated that the bus para did not get added on until another meeting had been held.

In June of 2010, the student was “not doing well at all.” He was violent and physically aggressive. He was not a functional student. (Tr. 135-136). At the time of the IEP meeting had the , the social worker, and the mother who gave a lot of additional support in the classroom. (Tr. 136). Mrs. testified that she told the CSE that she did not think that . would be able to function in a class of 12 students, and he needed a smaller environment. (Tr. 136). She never was asked to help create a for the student. (Tr. 137). Ms. , the student's then current teacher also participated in the June 2010 meeting. (Tr. 137).

Mrs. testified that Ms. did not participate in the August 2010 CSE meeting. She did not recall if anyone else from participated.

Mrs described a typical day at for (Tr. 139-14). The day ran from 9:00 am to 4:00 pm and on Friday it ended at 1pm. (Tr. 139). The student had one teacher in the morning for Hebrew studies and a second teacher in the afternoon for secular studies. (Tr. 141). The afternoon teacher was a New York State certified special education teacher, Ms. . was in a class of seven students with one teacher and one assistant. At times additional teachers participated in the classroom. (Tr. 141-142). . made progress in . In terms of his he started the year as a child with and . He was a who got in the classroom, or just, in general, , he wasn't able to He wasn't v and say what was . He also had some . (Tr. 142-143). Through the year, his to the point of happening very . The main thing that he learned was “how to express himself and how to utilize the skills that we taught him.” (Tr. 143-144). He became more able to seek out one of the adults to work out what . He learned ” and was able to where he did not something. (Tr. 144). He also made some improvements socially with his classmates. (Tr. 144).

Academically he made improvements as well. He was able to read at the start of the year, but his behaviors caused him to read at a lower level. Over the course of the year he began to do more of the work asked of him, increased his writing, and increased his independent reading. (Tr. 145). His writing became and he improved his use of punctuation. (Tr. 146). In math he started the and did not want to do the work. Through the year he was able to accomplish more and acquired important math skills.

Mrs. , the social worker in the school, provided the student with counseling twice a week. Mrs. testified that she was in touch with the parent on a weekly basis. She was very involved in his daily functioning. The school always was in touch with her if they wanted to implement a behavior system. (Tr. 147). By June of 2011, Mrs did not think that . still required a bus para. (Tr. 147). He made a lot of over the year. (Tr. 147).

Mrs. did not think that the IEP completely described .'s . (Tr. 149-150). She would have added “his and his , his .” (Tr. 150). She also testified that those behaviors are not specified in his BIP that is included in the IEP. (Tr. 154). She testified that the is inadequate because it does not address the that the student . This was not discussed at the CSE meeting. She did not receive a copy of the IEP from the CSE. (Tr. 155). Mrs. considers therapeutic since it is teaching the students skills for life mandate, but he did not receive a because they felt that he had enough support in the classroom.

testified that she is a social worker and has been providing for since he started at Beacon. (Tr. 177). She described him consistent with Mrs. 's description, and stated that he was to teachers and students. When he he might throw something, hit or kick. (Tr. 177-178, 240-241). She described how the student had to be coaxed to participate in counseling. (Tr. 178). She described how she worked “behind the scenes” to talk with his teachers and come up with different ideas and strategies to help . with the transition of coming to opening up and participating. (Tr. 239). M. thought that the behaviors to be addressed on the were adequate.

During the 2010-2011 school year, in addition to his two scheduled counseling sessions, would seek out Ms. about twice a week for an unofficial visit to talk about things upsetting to him. (Tr. 251). She did not think that he would do well in a class of twelve because there were more variables that could set him off and he needs a lot of attention, more that she thought he would get in a class. Ms. testified that there were times that . would be physically aggressive during the 2010-2011 school year. At those times he was separated from the group. (Tr. 262-263).

The mother testified that she first noticed her son's issues when he was about four, but his difficulties progressed significantly after first or second grade. (Tr. 188). The parents got him medication, for . They tried to work with his school. In the the school asked that . be put on a truncated schedule and the parents began to look for another school for him. (Tr. 189-190). He began in the 2009-2010 school year. The parent testified that the April 2009 evaluation was the last one conducted for her son and it was an accurate reflection of her son's issues at that time. (Tr. 191).

The parent testified that the 2009-2010 school year at was “not great”. (Tr. 191192). He was , had a lot of and did not participate much. (Tr. 192). The parent recalled participating in both the June and August 2011 IEP meetings. The conversation about a bus para began at the June meeting. (Tr. 193). She recalled that they discussed generally that . still was and . (Tr. 193). On the bus , . (Tr. 194). Those were typical behaviors then. (Tr. 194). The parent did not specifically recall discussing placement recommendations at the CSE meetings. She did recall having concerns that a class of 12 was too big. “He needs really a very small group.” (Tr. 195). The parent visited the class before the start of the 20102011 school year. She felt that the class size was too big and that there were too many people in total in the classroom because of all of the adults present as well. (Tr. 197). The parent explained that it is hard for and stay directed, especially if his moods are fluctuating. The smaller the group is the better able he is to moderate himself and not be distracted. (Tr. 223-224). If the CSE had offered a smaller class the parent testified that she definitely would have considered it, as she attended public school and has no problem with public school. (Tr. 225). The parent also did not think that academically, most of the students in the proposed class were working close to or at grade level and was. (Tr. 196199, 220). The parent further explained that to the extent that is behind, it is because of all of the school he has missed, not because he has learning issues. (Tr. 230). The parent did think that the token economy at the proposed placement could work for depending on how it was implemented. (Tr. 216).

The parent testified that for the 2010-2011 school year there were seven students in the class and at most three adults for a total of ten individuals in the room compared to the seventeen individuals that could have been at the proposed placement. Also, she thought that it was psychologically significant that the room itself was physically small while the public school placement was in a large room that he would have found overwhelming. (Tr. 227).

The parent stated that she informed the district that she did not think that the proposed school was appropriate and reenrolled her son at . The parent believes that was appropriate for her son for the 2010-2011 school year because “He made tremendous progress over the last year. He participates in class. He talks to friends. When he has a problem with other kids or with staff, he can speak it out with the teachers or he can go to the principal if it's necessary. He participates like a regular student, which is something very novel for him, actually.” (Tr. 200-201). She has contact with the school every week or two. The parent testified that since 2007, but it was changed the summer of 2010. (Tr. 201-202). He responded very well to . The parent testified that the definitely had an impact on ). The school had a very . (Tr. 215 relationships with his siblings has improved as well. (Tr. 203). . did not have the for the 2010-2011 school year. At the beginning of the year, the parent thought that he was going to need it, but as the year progressed, she did not think that he did. (Tr. 217-218). The parent did think that her son required additional intervention during the summer of 2010 and he went to a summer camp. (222-223, 233-234).

The parent testified that she signed the tuition contract on September 1, 2010. (Ex. I). Subsequently on October 15, 2011, she signed an addendum to cover the cost of counseling. (Ex. J). The total was $39,000.00. The parent testified that . received a $10,000.00 scholarship that was applied against that total. (Tr. 231). Findings of Fact and Conclusions of Law Legal Framework

The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (“FAPE”). 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be “tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'” E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).

A board of education may be required to pay for education services obtained for a child by the child's parents. The prevailing standard used to determine whether the local school district must reimburse parents for private school tuition or other education services is the three-prong “Burlington-Carter” test. Reimbursement can be awarded if the services offered by the board of education were “inadequate or inappropriate”, the services selected by the parent were appropriate, and equitable considerations warrant it. School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93 94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). Thus, Prong I of the Burlington-Carter test entails both procedural and substantive considerations. Prong I: The DOE did not offer the student a FAPE for the 2010-2011 school year because the IEP did not include measurable annual goals related to meeting the student's needs arising from his 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 his disability.

A FAPE consists of specialized education and related services embodied in an IEP. 34 C.F.R. § 300.13. “Special education” is defined as “specially designed individualized or group instruction or special services or programs… provided at no cost to the parent, to meet the unique needs of students with disabilities.” 34 CFR §300.39; 8 NYCRR § 200.1 (ww). It “includes but is not limited to instruction conducted in classrooms, homes, hospitals, institutions and in other settings.” Id. Specially designed instruction “means adapting, as appropriate to the needs of an eligible child”, the “content, methodology, or delivery of instruction.” 34 CFR §300.39. For purposes of special education planning, the child’s needs in the following areas must be considered: (a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. 8 NYCRR §200.1(ww)(3)(i)(a)-(d).

The IDEA mandates that prior to the development of an IEP and to determine eligibility, a "full and individual" evaluation must be conducted and children must be assessed in all areas related to the suspected disability. 20 U.S.C. § 1414(a)(1)(A) & §1414(b)(3)(B); 8 NYCRR § 200.4(b)(6)(vii). The evaluation must be sufficiently comprehensive to identify all of the child's special education needs, whether or not commonly linked to the disability category in which the child has been identified. 8 NYCRR §200.4(b)(6)(ix). The evaluation must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. § 1414(b); 34 CFR §300.304. Such tools and strategies must “provide relevant information that directly assists persons in determining the educational needs of the child are provided.” Id. Tests must be “selected and administered so as not to be discriminatory on a racial or cultural basis” and the district is to use “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” Id. The evaluations are supposed to be “used for the purposes for which the assessments or measures are valid and reliable.” Id.

Thus, an appropriate educational program begins with an IEP that accurately reflects the results of appropriate 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. The IEP must contain an accurate 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 CFR § 300.347(a)(1). An IEP must include measurable annual goals 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 CFR § 300.347(a)(2). The IEP team’s recommendations should include “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child.” 34 CFR § 300.320(a)(4).

The requirements for appropriately developed goals are set forth in the State regulations. 8 NYCRR § 200.4(d)(2)(iii) explains that “The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals must relate to: (1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and (2)

meeting each of the student’s other educational needs that result from the student's disability. (b) Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. (c) The IEP shall identify when periodic reports on the progress the student is making toward the annual goals. For a student who takes a New York State alternate assessment and for each preschool student with a disability, the IEP shall include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal.”

The DOE failed to meet its burden to prove that the goals developed to address the student's needs were appropriate. Here, despite the absence of adequate evaluations or observations, the record is abundantly clear and undisputed that the student had for the CSE to address in the creation of his 2010-2011 IEP. It could be said, that the student's overwhelming special education needs were in these realms. Not only does the IEP fail to explicitly describe the students extreme behaviors, the CSE failed to develop clear and measurable goals for Y.P. to address his needs. The goals related to the student's social, emotional and behavioral deficits are incomprehensible or at best, vague. (Ex. H-8, 9, 10). Ms. , the one witness from the CSE who testified about the IEP, made three attempts to explain them and ultimately testified that she could not say what they meant. She deferred to the who, she said, wrote them. (Tr. 93-94, 96). It is the responsibility of the DOE, through its CSE, to develop appropriate goals, so that the student, his parents and his teachers and providers all can know what the work is to be done for the student to make progress. Without adequate goals, the IEP does not afford the student a FAPE, and is a nullity.^[4]

Additionally, while the in the offered placement could be appropriate to address the student's needs, the DOE did not provide sufficient evidence to meet its burden with respect to the placement offered because the assistant principal did not state how academic needs would be met, if he would be suitably grouped for instructional purposes, or how his individual needs would be addressed in addition to the school-wide plan. Prong II: Ha'or Beacon School was an Appropriate Unilateral Placement.

The parent bears the burden of proving that is an appropriate program for Y.P. See Schaffer ex rel. v. Weast, 546 U.S.49, 58, 126 S.Ct. 528, 163 L. Ed. 2D 387 (2005); N.Y. Educ. L. 4404(1)(c). To meet this burden, the parent must demonstrate that the educational services provided by were appropriate to meet their son's individual special education needs.

The standards for determining whether a private school placement is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Carter, 510 U.S. at 14; Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” id. at 364 (citing Rowley, 458 U.S. at 207). “No one factor is ...dispositive” of this issue. Instead, courts must consider “the totality of the circumstances....” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112(quoting Frank G., 459 F.3d at 364-365). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115.

The parents proved that was appropriate to meet their son's unique special education needs. The testimony of the principal, social worker, and parent establish that the school mission as carried out, the size of the school itself, the class size and ratio, the counseling provided, the staff support, and the all meet social, .(Tr. 132-133, 135, 227, 239, 262-263). The witnesses described a program where not only did the schoolwide behavioral program address the student's needs, but he also was given an individually tailored plan to address his specific deficits. The record also establishes that has made progress in several areas. Academically he continues to progress in reading reflected by increased decoding, comprehension and independence. He is a more willing writer and has improved in punctuation use. His progress in both of these areas is proof of his progress in his ability to participate in his academic program. Moreover, . has by being able to talk about issues that upset him rather than resorting to his previous aggressive and violent behaviors. (Tr. 143-146, 200-201). Under the totality of the circumstances, the parents have shown that . with an opportunity for meaningful progress. Prong III: Equitable Considerations

Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).

The record establishes that the parents cooperated with the DOE and in no way impeded the CSE's opportunity to develop an appropriate IEP. In fact, the CSE met after the parent filed the due process complaint and in no way addressed the concerns raised by the parent in the new IEP it created. (Ex. B). Under the facts presented, the equities favor the parents.

The total tuition for for the 2010-2011 school year was $35, 000.00, inclusive of the religious and secular components of the program. The parent made clear that she only was requesting that portion for the secular component.(Tr. 291). Additionally, the student received a scholarship reducing the parent's total expense to $25, 250.00, as reflected in the checks in evidence. The parents calculated that out of the 32 hours of school per week, 19.2 are spent on secular studies, which is sixty percent. (Tr. 310, see Ex. D). Therefore, the parents are entitled to reimbursement in the amount of $15,150.00.

ORDER

1. The New York City Department of Education failed to provide the student with a FAPE for the 2010-2011 school year.

2. The was an appropriate placement for the student.

3. The equities support an award of tuition reimbursement to the parents for the tuition in the amount of $15,150.00 Dated: January 27, 2012

____________________________

LANA S. FLAME, ESQ.

Impartial Hearing Officer

LF: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 NOVEMBER 28, 2011

PARENT

A Impartial Hearing Request, 7/18/11, 2 pages B IEP, 8/18/10, 16 pages C Description, 2010/2011 School Year, 1 page D Class Schedule, 2010/2011 School Year, 1 page E Student's Attendance, 2010/2011 School Year, 1 page F Canceled Checks, 9/1/2010 to 6/30/11, 11 pages G Student's End of Year Report, June 2011, 3 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 1, 2011

PARENT

H IEP, 6/21/10, 15 pages I Letter of Agreement, 9/1/10, 1 page J Addendum to Letter of Agreement, 10/15/10, 1 page K Report, 5/19/09, 6 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 28, 2011

PARENT

I Letter of Agreement, 9/1/10, 1 page J Addendum to Letter of Agreement, 10/15/10, 1 page

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Decision on Request for Extension of Time, 12/28/11, 1 page II Email Correspondence, 12/28/11

---

Footnotes

[2] In their closing statement, on the record, the parents asked for only the tuition for the secular portion of the student's program.

[3] The DOE was asked to produce a copy of the observation. Dr. reported that no observation had been done for the 2010-2011 IEP meeting. The CSE did not conduct an FBA. (Tr. 115-116).

[4] Nor does the inadequate BIP, developed without an FBA or any sign of a plan to conduct one, correct the inappropriate goals since it bears little relation to the student's reported . (see Application of the Review of a Determination, Appeal No. 11-051). While the parents challenged the June 21, 2010, IEP, it must be noted that the August 18, 2010, IEP also would be rendered void and a nullity since the record established that the only change to that IEP is the addition of a and one goal for that individual, an amendment which in no way ameliorates the sorely deficient goals stated identically on both IEPs.