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 21, 2011

January 9, 2012

January 11, 2012

February 1, 2012

Actual Record Closed Date: March 20, 2012

Hearing Officer: .

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

ESQ., Attorney — Student

ESQ., Attorney — Student

Parent (Via Telephone) — Student

ESQ., Attorney — DOE

Social Worker (Via Telephone) — DOE

Assistant Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2012

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Admissions Director (Via telephone) — Student

School Principal (Via telephone) — Student

ESQ., Attorney — DOE

Special Education Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2012

Attorney — Student

Attorney — Student

Parents

School (Via Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

Attorney — DOE

Attorney — DOE

Attorney — DOE

Pathologist (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBERUARY 1, 2012

Attorney — Student

Parents

Head of — Student

Pathologist — Student

ELA Teacher at — Student

Attorney — DOE

This is New York City. On November 21, 2011, January 9, 2012, January 11, 2012, and February 1, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3) regarding the special education of. at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , Esq. represented the New York City Department of Education and , Esq. represented the Parents. When Ms. was unable to be at the hearing, the Department of Education was represented by , Esq. and , Esq. Ms. was assisted by , Esq. A list of witnesses who testified and the documents received into evidence is attached to this decision. This is a case of first impression.

ISSUE

The sole issue in this impartial hearing is whether the Parents are entitled to reimbursement for their unilateral placement of . in the , an approved private special education school, for the 2010 – 2011 school year.

THE PARENT’S POSITION

The Parents believe that the Department of Education failed to offer a “free and appropriate public education” (FAPE) to . for the 2010 - 2011 school year. They contend that the Committee on Special Education (CSE) was not properly constituted, the Individualized Education Program (IEP) was inappropriate, and the offered school placement was not appropriate for . The Parents believe that the was an appropriate placement for him, and that equity favors their request for reimbursement.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education contends that it did offer . a “free and appropriate public education” (FAPE) for the 2010 - 2011 school year. The Department of Education claims that the School was an inappropriate placement for because it was not the “least restrictive environment” (LRE) for him, and it did not provide him with sufficient or any . The Department of Education contends that equity does not favor the Parents’ claim for reimbursement.

FINDINGS OF FACT

In the 2010 – 2011 school year, . was an student. He had been diagnosed with “ ) when he was years old. (Tr. 477, 496, 534, Ex. O at 2) Dr. , Ph.D., conducted a “comprehensive evaluation” on . over two days in August 2011. (Ex. O) She diagnosed ” ( ), . (Ex O at 4; Tr. 493-5) As Dr. did not include the in her final list of diagnoses, it was unclear whether these diagnoses are in addition to the diagnosis of . Upon being asked about the difference between and the list of diagnoses she had given to suggested that these diagnoses are in addition to the diagnosis:

DR. : Because there are--I mean

the or the--you know the --you

know the more has to do with the expressive language. So the diagnosis of his thing. So this would be something in addition to that. Not all children with have the , not all of them have--I mean they very often have difficulties, but I think it's important to highlight that as well because that's a big piece of the difficulty that experiences.

Some of the children are you know

. So I think it's

important to specify each of these because they each need their own in terms of his needs.

(Tr. 537-8) (emphasis added)

This is contrary to the testimony of Ms. , a private and family friend who has evaluated . over a period of years. She opined that difficulty is subsumed under the diagnosis:

MS. : is an

, and a is

a . They are separate

diagnostic categories. A child can have--when you receive a diagnosis of difficulty is subsumed under the diagnostic category, so one wouldn't receive both of those diagnoses, it doesn't mean that the child doesn't have , but one is subsumed under the other. However, when a child ages, if they no longer meet criteria for an , they might still meet criteria for a , because they continue to have language deficits.

(Tr. 707) (emphasis added)

It is unclear whether . still has a current diagnosis of .

on the – 4th edition ( -IV) administered to him on October 16, 2007 establishes on all sub-tests. (Ex. 17 at 2) On a more recent administration of the , again obtained in the on all sub-tests. (Ex. O at 18)

Academically, “ .” (Ex. 8 at 1; Tr. 553-5) In reading and writing, was working on a . (Ex. 3 at 3, 5) He was an active participant in reading class although “his internal distractions can affect his work.” (Ex. 8 at 2) His are strong. (Tr. 719-20) In writing, . . . Evaluating his own work and identifying errors is also challenging for .” (Ex. 8 at 3) In math, curriculum in grade. (Ex 3 at 3) “ is motivated to learn math but has and .” (Ex. 8 at 2) “ . . . (A)ttention was a big piece for .” (Tr. 553)

Socially, Dr. wrote that:

“Individuals with this ) do not accurately , they experience and might not have a , getting into the . . . . They can be and do not get other children “which would e consistent with ’s ). Combined with his , this is a formula for social difficulties, which is consistent with his teachers’ and Parents’ reports.” (Ex. O at 9)

(See also Ex. P at 8; Tr. 399, 491-2, 495, 608) , and he tends to be rigid when he is working in a group or playing games. (Tr. 552, 586) does not understand that peers may find him silly or not understand his off-topic questions and comments. (Tr. 651-2, 657-8)

“He also has

. In terms of his pragmatic

language, I did notice during our conversations that at times, he had difficulty following the conversation and staying on topic, and he was often or at times include irrelevant or off-topic details or comments.” (Tr. 610)

, a , evaluated a number of times over a period of years. (Tr. 683, 668-9) “Overall, ’s language skills range from to .” (Ex. P at 10) These recent findings were similar to her findings in previous years. (Tr. 672) Ms. noted that her recommendations generally depend upon the school in which the child is placed as in some schools, such as the and “language goals are infused into the curriculum” so she only recommends “a level of intensity.” (Tr. 687) She was not aware of the at the nor the quantity of on the proposed Department of IEP. (Tr. 691-2) She gave no opinion on the appropriate quantity of . during the 2010 – 2011 school year. (Tr. 694-5)

has never attended public school. From , . attended the , which is a private special education school. (Ex. 6 at 1; Tr. 735) Although the Parents were satisfied with the academic program at the , they were concerned about the social environment there.

Many of the students at the or . (Tr. 814) The Parents wanted to have attend the . (Tr. 775) The Parents applied to the twice before 2010, and their applications were rejected both times. (Tr. 811, 830)

The Department of Education “Committee on Special Education” (CSE)

reconvened on February 12, 2010 to develop an “individualized education program” (IEP) for for the 2010 – 2011 school year. The CSE reviewed teacher, therapy, and therapy progress reports from the , and a new Department of . (Tr. 41) The parties agree that there were no new at the CSE meeting.

The February 12, 2010 CSE classified .’s impaired” (SI), and that classification is not an issue in this impartial hearing. The February 12, 2010 IEP for . recommended a placement in a special education class for ( ) with related services of individual therapy one time per week, in a group of three twice per week, individual once per week, and in a group of three twice per week. (Ex. 3) All related services sessions were to be for thirty minutes.

In September 2010, was going to “ ” of the at the end of grade. The Parents applied to the again. This time, was accepted and the Parents signed a contract and paid a deposit on February 28, 2010. (Ex. DD) They also applied to seven public schools through the Department of . (Ex. I) Of these seven public schools, only two schools responded to the Parents. One did not have a seat for , and the other had an entrance examination. (Tr. 736-7, 779) The Father wrote to the Department of Education Office of Student Enrollment seeking a placement for on May 29, 2010. (Ex. H)

The Parents received a “final notice of placement” (FNR) dated June 22, 2010 providing a placement for at . and 56 is housed in a large building with two other public schools: the for Children, and the . All three schools share an auditorium, two gyms, and a cafeteria although they use them at different times. (Tr. 207-8) There are thirteen to sixteen entrances to the building, but the students are supposed to use separate stairs to get to the various schools. (Tr. 226-7)

The school day was divided into forty-five minute periods for all subjects except for “English Language Arts,” (ELA) which was for a ninety-minute period. The School provides life skills classes and an “advisory” class that serve as on selected subjects and transitional support for in-coming . (Tr. 171-2) meets related services on its students’ IEP’s with Department of Education staff and “related services authorizations” (RSA’s). (Tr. 188, 193)

The special education students at have opportunities to socialize with non-disabled peers. They have recess and supervised lunch with non-disabled peers. (Tr. 374) Class has a supervised lunch together in the cafeteria with to general education students. (Tr. 196-9) There are classes although most of the time they have a small selfcontained physical education class. (Tr. 202)

. was assigned to class , Ms. for the 2010 – 2011 school year. (Tr. 163) Ms. was then in her first year teaching, and she was working on her masters degree in special education in the 2010 – 2011 school year. (Tr. 164, 300-1) She was a teaching fellow with a transitional license. (Id.; Ex. BBB at 49) She had just begun her master’s degree in July or August 2010. (Tr. 337)

Despite her inexperience, Ms. instruction using reading materials of different levels. (Tr. 309) She uses established special education techniques, including visual and verbal cues, scaffolding, graphic organizers and checklists, repetition, reminders, small group instruction, and refocusing. (Tr. 313-4) Ms. conducts formal assessments at the end of each unit at least biweekly to monitor her students’ progress. (Tr. 310) Ms. carefully reviewed the goals on the February 12, 2010 IEP for ., and she testified that she could have implemented all of them in her class. (Tr. 317-334) Despite her lack of certification and experience, I found that Ms. was a knowledgeable teacher and a credible witness.

was on the New York State list of “Persistently Dangerous Schools” under No Child Left Behind (NCLB) for the 2009 - 2010 and 2010 - 2011 school years. (Ex. UU at 1, VV at 2, Ex. VV; Tr. 280, 749-50, 754, 796) The Father made phone calls attempting to visit this recommended school, but it was closed for the summer and he was told to call back in September. (Tr. 775) He sent a letter to the CSE requesting information about but he got no reply. (Ex. G; Tr. 746) The Parents sent a second letter informing the Department of Education that they would send until they were able to visit the recommended school. (Ex. F)

The Father testified that the Parents wanted in a public school in the neighborhood, or closer to the neighborhood, than the so that could make some friends in the neighborhood, they could have easier access to school personnel, and they wanted to relieve themselves of the financial burden of paying for private school. (Tr. 816) is located around the corner from where ’s family lives. (Tr. 834)

The Father visited on September 21, 2010. While there, the Father observed a student reporting that he had just . (Tr. 748) The Father was not permitted to see the actual proposed class, and he was not provided information he requested about the recommended class. (Tr. 749) The Parents rejected this proposed public placement at , and they notified the CSE of their continued unilateral placement of at the . (Ex. E; Tr. 751-2)

The is an approved private special education day school for students with impairments or . In the 2010 – 2011 school year, the had grade students in three classes of each. All students had lunch together, and they were in physical education class together with in one gym. (Tr. 547-9, 646) All six physical education teachers have either an undergraduate degree or a master’s degree in physical education. (Tr. 646) needed more support than most of the other students in this physical education environment. (Tr. 656-60)

During the 2010 – 2011 school year, . attended a class with , , and ( ). The class was divided into two groups for math and “English language arts” (ELA) so these classes had a ratio of or students to one teacher or assistant teacher. None of the other students in his class ever had a . (Tr. 588) The provides students with an advisory period that functions as a twice per week to address social issues, such as bullying and conflict resolution. (Tr. 575-6, 589-90) The uses the IEP’s developed by the Department of Education. (Tr. 582)

On Mach 25, 2011, the Parents wrote to the CSE requesting an “independent evaluation” (IEE) because “ is classified as and the CSE evaluations did not address in any detail these . . . “ and other reasons. (Ex. C at 2) The Parents filed an impartial hearing complaint requesting reimbursement of tuition at the for the 2010 – 2011 school year dated August 9, 2011. (Ex. A) The issue of an IEE was not a proposed resolution in the impartial hearing complaint, and it is not before me in this impartial hearing. (Ex. A at 7)

I find certain arguments made by both parties to be inconsistent, unreasonable, and disingenuous as a matter of fact and credibility. First, the Parents claimed that there was no therapist at the February 12, 2010 CSE meeting and that the IEP developed on that date did not address ’s sufficiently. (Ex. C at 2; Tr. 100-1) The public and private therapy evaluations recommend the continuation of for . (Ex. P at 11; Ex. Q; Ex. HH at 5) The February 12, 2010 IEP provides one individual therapy session and two group per week in a group of The only provided with one weekly therapy session in a group of and a push-in once or twice a month which is substantially less than the level offered on the challenged IEP. (Tr. 604) Ms. at the , testified at this impartial hearing and she recanted her original written recommendation of twice weekly in a group of to match the provided to by the during the 2010 – 2011 school year. (Ex. Q; Tr. 606-7)

“MS. : Sure. When I wrote that recommendation, I was thinking of the service in terms of 30-minute blocks to about an hour of service per week. I thought he needed one hour of service. But given the -school schedule, their schedule is in 45-minute blocks.

So in order not to disrupt his daily schedule, and it was easier and more beneficial to him to work on these goals in 45-minute blocks, we were able to make more progress that work.” (Tr. 610)

She was employed by the , and therefore, she was aware of its schedule when she wrote her original recommendation. I find Ms. ’s testimony about the nature of ’s issues to be credible, but I find her revised determination of the appropriate amount of therapy for him to lack credibility. I find this argument that the offered was not appropriate to be without merit.

Second, the Parents contend that there was no therapist at the February 12, 2010 CSE meeting and that has only one one day per week for students. The proposed February 12, 2010 IEP provides one individual therapy session and two group sessions per week. The Parents placed at the where he does not receive any therapy. The Parents did not obtain therapy for during the 2010 – 2011 school year even though the progress report suggested “that continue to receive that targets his areas of and further promotes his .” (Ex. GG at 3). I find that the parent’s argument concerning a lack of an at the February 12, 2010 CSE meeting and the limited available at to be disingenuous and without merit.

Lastly, the Department of Education claimed that the is not the LRE for , but the CSE recommended his placement in a New York State approved non-public day school for the 2011 – 2012 school year at a CSE meeting on August 16, 2011. (Ex. J at 1) I find the Department of Education’s argument concerning LRE on the second criterion to be without merit.

CONCLUSIONS OF LAW

The Department of Education may be required to pay for educational services obtained for a student by his or her Parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the Parent were appropriate, and equitable considerations support the Parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the private school selected by the Parents to provide special education services to the child is not State approved as a school for children with is not dispositive of the Parents' claim for reimbursement of tuition. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

FIRST CRITERION

The first criterion of a Burlington/Carter analysis is whether the school district offered a “free and appropriate public education” (FAPE). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. 34 C.F.R. §300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), and establishes annual goals related to those needs. 34 C.F.R. §300.320(a)(2); 8 NYCRR 200.4(d)(3)(iii) An IEP should provide for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v) see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046.

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd. Of Educe. v Rowley, 458 U.S. 178, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). A school district must provide "an IEP that is likely to produce progress, not regression, and . . . affords the student with an opportunity greater than mere trivial advancement.'" Cerra, 427 F.3d at 195 (citations omitted). The IEP must be "reasonably calculated to provide some meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

In the instant matter, the Parents contend that the CSE was not properly constituted on February 12, 2010 as there was no general education teacher, no school no therapist, and no there. (Ex. 3 at 2) The February 12, 2010 CSE included the Parents, a parent member, a social worker who had observed , and , ’s special education teacher at the , who participated by telephone. (Id.) At the time of the CSE meeting, had attended a private special education school for five years. There is conflicting testimony as to whether the CSE considered a collaborative co-teaching class for . The Father testified that the CSE did consider a “collaborative team teaching” class, but that the Committee concluded that a collaborative class would not provide with adequate support. (Tr. 805) Ms. , a Department of Education social worker, testified that the CSE did not consider the general education environment for as he needs more support. She testified that she wrote the IEP and that its reference to consideration of a collaborative class was her own typographical error. (Tr. 51-2, 123-4)

Based upon the evidence that is before me, I find that I cannot discern whether a class was considered for at the February 12, 2010 CSE meeting. As the CSE recommended a special education class for and his Father agreed to that level of placement, I find that the omission of a general education teacher at the February 12, 2010 CSE meeting was either not necessary, or if it was necessary, the omission did not rise to the level of a substantive violation as it did not impact ’s education and it did not impede the Parents’ participation in the special education process.

were not present at the February 12, 2010 CSE meeting for him. They are not generally necessary members of the CSE, so the Department of Education does not invite them to CSE meetings. (Tr. 53) The head of the testified that:

“While the procedure doesn't allow

for to be initially called because during the times that most of the CSEs are in session, our are providing services for children here. And to have every therapist attend every CSE meeting would mean that children at the school would not be getting their designated services. And we feel that would not be ethical to do that. So while the teacher is the primary person, if a Board of Ed person called me or called my assistant director and said--and we've done this in the past--"I really need to reschedule the meeting and include a we would try to work at a time in which that would be feasible or, if they gave us the information that they really needed . . . We'd get that information and we'd relay it to the CSE.

(Tr. 597-8, 599)

The parties agree that the February 12, 2010 CSE did not include a school The Committee did not consider any new evaluations so the parties could have agreed to the . (Tr. 50-1) I find that the February 12, 2010 CSE for . was properly constituted. Any possibly omitted members did not rise to a substantive violation of the IDEA.

The Parents contend that the February 12, 2010 CSE did not have appropriate evaluations. The last full triennial evaluation of . was in 2008. (Tr. 148; Ex. 7, 17) The witnesses agree that there were no new evaluations of at the CSE meeting. The CSE reviewed therapy reports dated October 2009 and used them to draft related service goals that were to be initiated in September 2010. That is eleven months after they were suggested. (Ex. 10, 12; Tr. 139-41) I find that these related service evaluations were dated, but they were still valid.

The Father agreed that a “collaborative team teaching” class would not provide with an adequate support. (Tr. 805) He did not object to the level of related services the CSE recommended and he did not communicate any concerns regarding the related services to the CSE after the meeting. (Tr. 789-791) The Father confirmed that the goals were discussed at the February 12, 2012 CSE meeting, and that he voiced no objections to any of them. (Tr. 781-3, 820) He and his wife voiced no opinion on the goals at the CSE meeting or following it. I find that the Parents have no substantive objections to the IEP.

The Department of Education contends that it is not required to establish that an offered school could have implemented the recommended IEP because the Parent failed to accept the CSE’s recommendations. The Department of Education cites State Review Office decisions in support of their allegation. Special education services must be administered according to an IEP, "which school districts must implement each year for each student with a disability." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.2003). I find that on the first criterion, the Department of Education has the burden to establish the appropriateness of its proposed IEP and the appropriateness of its offered placement.

The Department of Education offered a small special education class with students, one teacher, and one paraprofessional for 2010 – 2011, and there was a seat in such a class available at . The IEP also provided with related services of , and could have provided those services in school or with RSA’s. ’s levels of performance and individual needs were similar to those of the other students in Ms. , although would have been in the highest academic groups. (Tr. 175-176; 305) As Ms. differentiates instruction to meet the individual needs of her students, ’s higher decoding and other academic skills could have been addressed in her class. (Tr. 179-180) His and attention needs match those of Ms. ’s other students. I find that the offered class could have implemented the goals in the proposed February 12, 2010 IEP for . I note that the Parents wanted a school in their own neighborhood, and is around the corner from their home.

The Department of Education offered the Parents a placement for and . The Parents have alleged that the presence of on the New York State list of “Persistently Dangerous” schools under the ( ) for the 2009 – 2010 and 2010-2011 school years constitutes a deprivation of FAPE. School are designated as “Persistently Dangerous” if they experience two successive years of serious incidents that include: “homicide, forcible and other sexual offenses, robbery, assault resulting in physical injury, arson kidnapping, reckless endangerment, and possession, use or threatened use of a weapons” (Ex. UU, VV) Schools found to be "Persistently Dangerous" must allow its students to transfer to a safer school within thirty days, and it must provide them with school choices.

20 USC § 7912 - Unsafe school choice option

(a) Unsafe school choice policy

Each State receiving funds under this chapter shall establish and implement a statewide policy requiring that a student attending a persistently dangerous public elementary school or secondary school, as determined by the State in consultation with a representative sample of local educational agencies, or who becomes a victim of a violent criminal offense, as determined by State law, while in or on the grounds of a public elementary school or secondary school that the student attends, be allowed to attend a safe public elementary school or secondary school within the local educational agency, including a public charter school.

(b) Certification

As a condition of receiving funds under this chapter, a State shall certify in writing to the Secretary that the State is in compliance with this section. The comments to the federal regulations that interpret NCLB recognize that children with disabilities who receive special education under the IDEA will be subject to transfer from “Persistently Dangerous” schools:

“In order to provide public school choice, some school districts may need to make specialized services for special populations of students, such as limited English proficient students and students with disabilities, available in other schools in order to provide those students with the opportunity to attend an eligible school, namely, a school that has not been identified for school improvement, corrective action or for structuring and that has not been identified by the State as persistently dangerous.” Federal Register, vol. 67, No. 231 Dec. 2, 2002 Rules and Regulations

The New York State Review Office has considered whether a school district denies a student FAPE when it places the student in a school building in which one of the other schools housed there is designated as “Persistently Dangerous.” Application of a Student with a Disability, Appeal No. 09-141, Footnote 4:

“According to district witnesses, the placement offered to the student for the 2009-

10 school year occupied a "little wing" of a building that housed five schools. A school that had been deemed persistently dangerous and that was in the process of being "phased out" was housed in the same building as the school offered to the student. According to the principal of the recommended school, the recommended school had not been designated as persistently dangerous. The principal reported that students in her school arrive on different busses and use a separate entrance.

The principal further testified that she had no concerns about safety at the school and she was not aware of any safety incidents at the other schools in the building.

The assistant principal testified that she was not aware of any dangerous activities occurring in the building, that monthly safety meetings took place, and that video cameras were being installed throughout the building.” (cites to the transcript omitted) The instant case is distinguished from SRO Appeal No. 09 – 141, and it is a case of first impression. In SRO Appeal No. 09 - 141, the student had been placed in a school within the same community school building as the school designated as a “Persistently Dangerous” school. The student had no right to a transfer under NCLB. In the instant case, the Department of Education placed , and that is a “ ” school. Under NCLB, . would have had the right to a transfer to a safer school had his Parents accepted that placement. In addition, the special education students at mix with their non-disabled peers at recess, daily lunch, and occasional physical education classes. Ms. How testified that students from the other two schools do come through the area of the building housing the assigned class, although they are not supposed to do so.

Furthermore, decisions of impartial hearing officers and state review officers are afforded deference on their findings of fact. Grim v. Rhinebeck Central School District, 346 F.3d 377 (2d Cir. 2003); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir.2005) A finding that placing a child with a disability in a school deemed “Persistently Dangerous” under NCLB may constitute a denial of FAPE is a matter of law. There is no deference to an impartial hearing officer or state review officer on matters of law.

The Department of Education argues that Ms. How testified that had reduced the number of incidents that led to the designation of the school as “Persistently Dangerous” so that it was removed from the New York State “Persistently Dangerous” list by the following school year. (Ex. 20 at 11; Tr. 280, 285) Ms. How also testified about discipline matters, but she did not address the very serious nature of a designation as a “Persistently Dangerous” school nor the serious infractions that lead to such a designation. In the entire State of New York, there are only a few school so designated each year.

There are two possible approaches to assessing the appropriateness of a placement. One is a prospective “snapshot” review that focuses on the child’s levels of performance, individual needs, and placement when the placement decision was made, and the other is a retrospective hindsight review that takes into account what happened after the placement decision. In adopting the prospective snapshot approach, the U.S. District Court for the Southern District of New York referred to a hindsight retrospective review as “Monday-morning quarter backing guided by . . . knowledge of (the child’s) subsequent progress . . . “ J.R. v. Board of Educ. of Rye Sch. Dist., 345 F.Supp.2d 386, 395, (S.D.N.Y. 2004) The Court recently reviewed the standard of review:

“. . . the Court finds persuasive the line of cases that have ‘held that inquiry into whether an IEP is valid is a necessarily prospective analysis’ and notes the Second Circuit's suggestion that ‘an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” M.H. and S.R on behalf of H.H., v. New York City Department of Education, 56 IDELR 69, 111 LRP 13642 (S.D.N.Y., 2011)

footnote 6

In the instant matter, was on the New York State “Persistently ” list when the Department of Education placed in a special education class there. It is not relevant that may have been taken off the list the following year, as argued by the Department of Education. (Ex. 20 at 9) What is relevant is the “snapshot” of what was true when the Department of Education offered the placement and when the Parents rejected it. I note that if the Parents had placed in September 2010, they would have had the right to transfer to another public school him within thirty days. The Parents have established that the seven other public schools to which they applied did not offer admission for September 2010. If they had accepted the placement at , the Parents would have had to locate another school for the transfer once the school year started.

Furthermore, the New York Courts have recognized that a denial of FAPE under the IDEA may be based upon a school district’s failure to comply with other statutes that protect the rights of a student with a disability. The Southern District Court of New York recently held that a student with a disability was denied a “free and appropriate public education” (FAPE) because of disability harassment. "When a school fails to take reasonable steps to prevent such objectionable harassment of a student, it has denied her an educational benefit protected by statute." T.K. v. New York City Department of Education, Index No. 10-CV-00752 (E.D.N.Y. April 28, 2011)

Lastly, the facts in this case support a finding that was not an appropriate school for . due to the kinds of incidents that lead to the designation as “Persistently

Dangerous.” has been diagnosed as having a disability on the . He is unable to read social cues, and he tends to get into the personal space of other people. He is unable to follow conversations. The created a work group of accepting peers to accommodate him socially. does not have the social skills to be in a dangerous school environment.

I find that the Department of Education developed an IEP for . at the February 12, 2010 CSE meeting that offered FAPE in the LRE to . for the 2010 - 2011 school year. I find that the specific school placement of . was in a “ ” under NCLB subject to his transfer to another safer school, and that constitutes a denial of FAPE in the implementation of the proposed IEP. I find that the Department of Education denied a FAPE for W. for the 2010 – 2011 school year.

SECOND CRITERION

With respect to the second criterion for an award of tuition reimbursement, the Parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the Parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85 The private school need not be approved by the state educational agency to provide instruction to children with disabilities Florence County School District Four et al. v. Carter by Carter, 510 U.S.7 (1993), nor must it employ certified special education teachers, or have its own IEP for the student. Application of a Child with a Disability, Appeal No. 94-20 To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”)

The provided a special education program to . that was similar to the one described in the February 12, 2010 IEP and offered by the Department of Education at The public program placed class with a newly licensed special education teaching fellow as the teacher and a highly qualified paraprofessional. Although New York State paraprofessionals do not have to have undergraduate degrees, the paraprofessional in the assigned class had her undergraduate degree and she was working on her master’s degree in therapy. (Tr. 303-4) The provided with a class with a certified special education teacher and a teaching assistant.

Both placements have an advisory program that serves as a group counseling session to address common issues. Both placements provide a double period of ELA or reading to address reading deficits. Both classes were divided into two groups for academics. The public program was ability grouped and would have been in the higher functioning group. The class was divided according to ’s social need to be with accepting peers, and he was the socially needy student:

MS. : “I think it was just students who were very accepting of . He was a new student, and he had a lot of , and we specifically paired him with students who would be really patient with him and accepting of him.” (Tr. 731-3)

would have been one of the academically in the public placement, but he was one of the children . This is evident in his participation in physical education class, the division of his class for academics, and the fact that none of the other children there ever had a . Children in both and the come from multiple boroughs of New York City. (Tr. 792) The follows the Department of Education’s IEP’s so the programs work on the same individual goals for .

There are some differences between the and the offered pubic placement. First, the provided with less than the Department of Education offered and no . Second, the public placement offers adaptive physical education in the class of while the provided with a special education class of students and six teachers in one gym. Finally, the is a small private special education school while is a large public middle school that was on the New York State “ list at the beginning of the 2010 – 2011 school year.

Upon the record before me, I find that the placement of is similar to the program offered by the Department of Education. It did not address all of .’s educational needs in that it provided less therapy than the public program, no therapy, and an unreasonably large physical education class in which needed a great deal of support.

“To qualify for reimbursement under the IDEA, 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) See also M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”) I find that the program at the School was so similar to the offered public program that it is also appropriate under the Act.

The Parents have carried their burden on the second criterion.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the Parent's claim.

On the surface, the Parents cooperated with the Department of Education. They participated in the . They attended the February 12, 2010 CSE meeting, wrote appropriate letters to the Department of Education requesting a public placement, and they gave repeated proper notice of their unilateral placement of at the for the 2010 – 2011 school year. The Father made efforts to visit in a timely manner, and he visited it when he was permitted to do so.

I note that the quality of the Parents participation in the February 12, 2010 CSE meeting was passive, and then they made disingenuous arguments about the meeting in this impartial hearing. The Parents claimed that:

“. . . CSE did not offer the participation of a general education teacher or school did not explain its reasononing for not having these team members present, and did not advise the Parents that participation of these team members coud be requested.” (Ex. 1 at 2)

I note that the Father has a master’s degree in special education and learning disabilities. (Tr. 766, 773) The Parents complained that ’s special education teacher from the School only participated in the February 12, 2010 CSE meeting by telephone for a short time, but the Father did not ask her to remain on the phone and participate longer. (Tr. 780)

As the legal standard for finding equity relates to the facts of parental participation rather than the quality of their participation, I find that equity favors the reimbursement of the Parents.

SUMMARY

The Department of Education developed an IEP that offered . a “free and appropriate public education” to . for the 2010 – 2011 school year, but the school provided for was on the New York State “ . This would have given the right to transfer schools under had his Parents accepted this school placement. The Parents provided a similar appropriate program for at the . Equitable considerations do favor the Parents’ request. I find that the Parents are the prevailing party.

ORDER

The Department of Education is hereby ordered to reimburse the Parents $ for for the 2010 – 2011 school year. Dated: March 22, 2012

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 8/9/11, 7 pages 2 Due Process Response and Amended Response, 8/15/11 and 8/30/11, 6 pages 3 IEP, 2/12/10, 16 pages 4 CSE Meeting Notes, dated 2/12/10, 1 page 5 CSE Contact Sheets, various dates, 2 pages 6 Fall Report, dated 11/09, 7 pages 7 Consultation, dated 9/3/08, 4 pages 8 Mid-Year Report, dated 2/10, 9 pages 9 / Report, 5/09, 4 pages 10 , Plan, 10/09, 1 page 11 Progress Report, 5/09, 4 pages 12 Progress Report, dated 10/09, 1 page 13 Notice of Recommended Deferred Placement, 2/12/10, 1 page 14 Classroom Observation, 11/17/09, 2 pages 15 Removed 16 Evaluation, 8/20/07, 5 pages 17 Evaluation, 9/04/08, 4 pages 18 Physical Examination, 6/17/09 2 pages 19 Final Notice of Recommendation, 5/22/10, 1 page 20 Closing Brief of the Department of Education, 15 pages

PARENTS

A Impartial Hearing Request, 8/9/11, 7 pages B Withdrawn C Letter to , dated 3/25/11, 3 pages D Fax to with Fax Transmission Report, 12/03/10, 2 pages E Letters , and the District Representative, dated 10/4/10, 12 pages F Letter to with Return Receipt, 8/6/10, 2 pages G Letters to , 7/6/10, 6 pages H Letter , dated 5/29/10, 1 page I Letter to , 12/8/10, 5 pages J IEP, dated 8/16/11, 2 pages K IEP, dated 3/15/11, 16 pages L CSE Meeting Minutes, 3/15/11, 9 pages M Withdrawn N IEP, 1/27/09, 16 pages O Educational, dated 4/11, 23 pages P Evaluation, dated 4/6/11, 11 pages Q School Screening, 9/14/10, 2 pages R Withdrawn S Withdrawn T Withdrawn U Progress Report, undated, 2pages V Year-End Report Card, 6/11, 13 pages W Third Quarter Report card, 4/11, 7 pages X Teacher Report, dated 1/31/11, 3 pages Y Report from the , dated 12/10, 1 page Z First Quarter Report Card, 11/10, 19 pages AA Class Schedule, undated, 1 page BB Mission Statement, Undated, 1 page CC Affidavit of , 9/23/11; 1 page DD Enrollment Contract 2010/2011, 4/23/10, 2 pages EE Attendance Record, 2010/2011, 1page FF Cancelled Checks and Proof of Payment, miscellaneous dates, 5 pages GG School Report, HH / Progress Report, 5/10, 5 pages II Withdrawn JJ Withdrawn KK Withdrawn LL Final Notice of Recommendation, 8/16/11, 1 page MM Notice of IEP Meeting, 5/11/11, 1 page NN Notice of Recommended Deferred Placement, 3/15/11, 1 page OO Consent for Reevaluation, 12/28/10, 1 page PP CA-1 Form, 12/9/11, 1 page QQ Consent for Reevaluation With Fax Transmission Report, dated s11/10/10, 3 pages RR Consent for Reevaluation With Fax Transmission Report, dated 10/13/10, 2 pages SS Placement Offer, 5/10, 1 page TT , Special Education Service Delivery Report, dated 5/20/11, 1 page UU Press Release: State Education Department Identifies 16 Schools as Persistently

Dangerous, 8/27/10, 8 pages VV Press Release: 13 Schools Named Under MCLP, 8/27/09, 4 pages WW progress report overview for 2010-2011, 2 pages XX progress report for 2010-2011, 8 pages YY New York Department of Education teaching assistant paraprofessional certification, dated 2011, 2 pages ZZ New York City qualification requirement for employment as a full-time educational paraprofessional, dated May 2007, 2 pages AAA New York State Office of Teaching Initiatives, teaching assistants pursuing certification, undated, 4 pages BBB Academic comprehensive educational plan for 2010-2011, dated May 2010, 77

pages DDD Memorandum of Law, , 30 pages

JUDICIAL NOTICE (not admitted into evidence) CCC Excerpt from , 6 pages