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 22, 2011

January 10, 2012

February 14, 2012

March 14, 2012

April 17, 2012

Actual Record Close Date: September 8, 2012

Hearing Officer: Martin J. Kehoe, III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED: NOVEMBER 22, 2011

Attorney — Student

Attorney — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: JANUARY 10, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Special Education Teacher (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: FEBRUARY 14, 2012

Attorney — Student

Parents

For the Board of Education: — Student

(via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: MARCH 14, 2012

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: APRIL 17, 2012

Attorney — Student

Principal (via telephone) — Student

Director-Early Childhood (via telephone) — Student

Director-Learning Services (via telephone) — Student

Parents

For the Board of Education — Student

Attorney — Student

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case.

The Parents’ Position

In the complaint notice dated August 23, 2011(Ex. 1 & A) the Parents gave their reasons for requesting an impartial hearing: 1. The Committee on Special Education (CSE) review team was improperly constituted; 2. The CSE created an invalid Individual Education Program (IEP) for the Student; 3. The CSE did not adequately consider the appropriate evaluations and documents when making its recommendation and goals; and,

4. The CSE did not allow the Parent to have full participation in the decision process (Ex. A-1).

The Parents further assert that 5. The recommended placement would not provide enough support, and that 6. The Student needed a full time special education program (Ex. A-2). The Parents also allege that 7. The IEP does not accurately reflect the Student’s current level of performance and need, and 8. The IEP does not provide special education and related services to meet the Student’s needs. (Ex. A-2) 9. The IEP does not address the amount of intervention needed to help the Student with his in tasks and 10. The IEP goals are too few and generic, and the goals do not address the Student’s . 11. The Parents contend that the programs and supports in the IEP are insufficient for enabling the Student to achieve the goals and the promotional criterion; and, 12. The IEP lacks transitional support (Ex. A-3).

As a result of the above, the Parents assert that the District failed to offer the Student a Free Appropriate Public Education (FAPE) for the 2010-2011 school year. They are seeking funding or tuition reimbursement for the Private School where they enrolled the Student, funding/reimbursement for related services including counseling and , funding/reimbursement of costs and fees, and provision/funding/reimbursement for transportation.

The District’s Position

The District’s position is that the Student was offered a FAPE for the 2010-2011 school year; although they did not prove the attendance of a “Parent Member” at the relevant CSE meeting, the error was not specifically pleaded by the Parent and, in any case, constituted at best a de minimus violation since the absence of this member did not impact the Parents’ right or the outcome of the meeting.

The CSE team consulted the appropriate evaluations and documents in making the recommendations, and that the IEP included all the necessary information. The evaluations included: the educational evaluation, the evaluation, the OT evaluation, the social history, the evaluation, the letter from the Private School, the classroom observation, documents from the Private School, a hospital report, and a teacher report. (Exs. 4-14, Tr. pp. 58 and 64) The Parents did not request additional evaluations. The goals were appropriate and made with the help of the participants at the meeting. (Tr. pp. 77-85)

The District further contends that the unilateral placement chosen by the Parents is not an appropriate placement and that the record lacks evidence demonstrating that the Student made meaningful progress while in attendance at the Private School during the 2010-2011 school year. At the start of the 2010-2011 school year, the Student was already functioning on grade level and the progress reported by the Student’s teacher was not “meaningful” as contemplated by the relevant case law.

On another front, the District points to the equities and argues that the Parent was going to place the Student in the Private School regardless of the outcome of the CSE meeting. This they suggest is a basis to reduce any tuition reimbursement.

Student History

The Student’s current age is years old. According to a evaluation, conducted on February 3, 2010 (Ex. D), the Student exhibits . On the Weschler and Primary Scale of Intelligence-Third Edition (WPPSI-III), he achieved a full scale Intelligence Quotient (IQ) in the . His verbal and performance IQ scores were also in the . His scores on most of the were or than other students his age. His memory was normal but which the attributed to his “ .” The noted that the Student became during testing, and often (Ex. D).

The student was in a mainstream class for (2009 -2010) at the Private School without related services. (Tr. p. 367) The special education program at the Private School begins with grade so it was not offered to him at the time. (Tr. p. 333) The Principal from the Private School testified that during the Student was , didn’t , which is why he was recommended for special education. (Tr. p. 334)

During the 2010-2011 school year, the student was unilaterally placed in the Private School in a class for special education students; the class had students, head teacher, assistant teacher, and “roaming teachers”. (Tr. p. 284)

Background of the Case

The District held a CSE review meeting on July 22, 2010 and developed an IEP. The recommended placement was in a general education class with Special Education Teacher Support Services (SETSS) times a week ( hour (Tr. p. 139)) and related services in ( time per week for minutes in a group of ) and . ( )( a week for minute sessions individually) (Ex. 3 p. 17) The Special Education Director of the Private School testified that the staff advised the Parent that the Student would not be ready for a mainstream program and that he needed a special education class. (Tr. pp. 289-290) In the summer of 2010, he was attending a summer school program run by the Private School and was tutored by one of the teachers who informed the Associate Principal at the Private School of the Student’s problems. (Tr. p. 291) In August 2010, the Private School teachers held a meeting with the Parent to inform her that the Student needed to be placed in a special education program (Tr. pp. 420-421, Ex. A). This advice was consistent with the recommendation of the privately obtained evaluation (Ex. 8) obtained earlier that year by the Parents.

On August 24, 2010, the Parent sent a letter to the CSE chair asking to meet with the CSE to discuss a full-time special education placement, and that she would be enrolling the Student in the Private School and seeking tuition reimbursement if the CSE did not reconvene and offer an appropriate placement (Ex. C). The CSE did not reconvene (Ex. A). The Parent testified that she also visited the recommended placement in the fall and winter to see if there would be an appropriate special education program for the Student; the woman she met with looked at the Student’s materials. (Tr. pp. 423-

426) But the Parent said, it seemed “that the Collaborative Team Teaching would be too… for him, and the special ed program would probably be for him.” (Tr. p.

426) When asked if she contacted the CSE about the school visits, she said, “ No, I didn’t know that was something to do. I thought they were going to tell me what’s right, but in the interim I’m going to try to figure this thing out while they—you know.” (Tr. p. 429)

The Student’s difficulties included , and developing his and grade skills (Tr. p. 291). When he was assessed at the beginning of the school year, the Special Education Director said he presented the same difficulties. In addition, he had and with (Tr. p. 292).

During the hearing on January 10, 2012, the CSE special education teacher testified that, during the CSE review meeting, the team reviewed the Student’s evaluation, the , and the documents from the school (Tr. p. 58; Ex. 4-10 & 13; Tr. pp. 65-69). When questioned, she did not remember if Ex. 11, the evaluation, was reviewed at the CSE meeting (Tr. p. 96). The Student was classified as “ ” based on his diagnosis of ( ) (Tr. 72).

The Special Education Teacher (CSE ) did not recall whether or not the Parents were given copies of the reports during the CSE meeting and did not know if they were provided with the reports prior to the meeting (Tr. p. 110). She testified, when asked, that some of the sections of the IEP were prepared before the CSE meeting—academic performance and learning characteristics, performance, and development, report (Tr. pp. 113-115). The Special Education Teacher testified, when asked, that she did not know what reports and evaluations the person had access to who wrote the performance page (Tr. p. 134).

She admitted there were no goals in , , and , and (Tr. pp. 143-144). The only reading goals were to recognize the letters of the list” (Tr. p. 147).

A teacher from the Student’s Private School testified at the hearing on February 14, 2011. She had been the assistant teacher in the Student’s class last year and was the head teacher of his class this year; her testimony pertained to the 2010-2011 school year in question. She described the Student’s . “[The Student] had issues and . He also had …He also had ” (Tr. p. 212). He was at in every subject (Tr. p. 212).

When asked if one period a day of support (which is what SETSS provides) would have been enough to help the student, the Teacher answered, “I don’t think so” ? “ the day, and I don’t think that one period a day would have been enough support that he needed” (Tr. p. 228).

The Early Childhood Director testified during the hearing on April 17, 2012 that the Student’s teacher told her that “he was ” at the beginning of the 2009-2010 school year (Tr. p. 350). She was asked about the last paragraph of her letter to the District (Ex. 9), in which she asked that the Student receive . She said, “I was not hoping that he would continue on in the mainstream. I was hoping that he would be approved for related services” (Tr. p. 352). She did not receive a response and was not asked to participate at the CSE meeting (Tr. pp. 352-353). She participated in another meeting in August at the Private School with the Student’s parents, the Private School’s principal, an associate principal, and teacher to discuss a special education placement (Tr. pp. 353-354).

The Early Childhood Director testified that the mainstream class with SETSS would not have been an appropriate placement for the 2010-2011 school year because “I don’t think it would have helped him all the other hours of his school week to learn and show progress” (Tr. p. 366).

When asked why she didn’t ask for a small class in her letter, she said it was because “it was hard for me to believe that we could go from no services to a special education recommendation…we wanted to try as much as we could to give him the least restrictive environment and that’s why I had to recommend something smaller…” (Tr. p. 368). However, she thought the student was enrolled at the Private School for the first grade, but in a mainstream class (Tr. pp. 368-369).

The Director of Student Services at the Private School testified about the Student’s issues during the 2009-2010 school year. She said he found , had (Tr. pp. 382-383).

The Director was asked about the CSE meeting of July 22, 2010, which she participated in by phone (Tr. p. 384). She did not remember being provided with any documents before the meeting or having any with her to review (Tr. pp. 384-385). But she did recall discussing the teacher’s report from 2010 (Ex. 13) with the Committee, which she said was accurate (Tr. pp. 385-386).

The Director said she did not agree with the placement recommendation. She said, “I don’t think it would have met his needs. I don’t think it would be enough for him…” (Tr. p. 387). She said she told her concerns to the CSE, who listened, but chose to stay with the placement (Tr. p. 388).

She was asked why, in her recommendation (to change the program), on the teacher’s report, she did not mention a small class setting. She said she was trained in the idea of a least restrictive environment, and had hope the Student would improve by September and be able to be in a mainstream class (Tr. p. 393). At the meeting, she said she recommended placement (Tr. 394).

The Parent testified that she first learned of the Student’s while he was in , when his teacher told her that he wasn’t with the class (Tr. p. 410). She said that members of the school staff contacted her several more times about the Student’s problems (Tr. pp. 416-417). As to the CSE recommendation, she said, “I didn’t agree or disagree. I just went along because that seemed like that’s what kind of had to be done” (Tr. p. 417). She said that the Committee explained, “that they always start with the least restricted, that even if he needs more than that that’s the way they have to start” (Tr. p. 418).

At the Private School meeting in August 2010, the Parent was told the Student needed a special education class and that there was a place available, but because of financial difficulties, she decided to write to the District about a new placement (Tr. p. 422). The CSE did not reconvene (Tr. p. 423). She said she would have accepted an appropriate public school placement and went to see the recommended school (Tr. p. 424). She spoke to a woman in charge and showed her the Student’s packet of information, but was told Collaborative Team teaching would be too difficult and the special education program would be for the Student (Tr. 426). She did not tell the CSE about her visit (Tr. 429) because she didn’t know to do that. The Parent thinks the Private School is an appropriate placement because the Student has made progress in reading (Tr. 432). The Student is taking for his , but it (Tr. 436). The Parent said she realized the Student needed extra help during the August meeting at the Private School (Tr. 446).

A review of the documents indicates that the Student has difficulties in several areas which are with his . In the educational evaluation, dated February 28, 2010 (Ex. 4), the District wrote, “He is , and is …It appears that as long as [the Student] is with the requirements of a task, he will , if he feels that he is not the task” (Ex. 4-3). His academic skills (as measured on the Woodcock Johnson III Tests of Achievement) are within the level (Ex. 4-4). On the Student’s evaluation, dated February 28, 2010, (Ex. 5), he was evaluated with the Language Scale 4th Edition and his scores were within the (Ex. 5-7). was not recommended (Ex. 5-7).

The Student’s evaluation, dated April 14, 2010 (Ex. 6); in the summary, the wrote the Student had , delays , lack of , and (Ex. 6-6). was recommended (Ex. 6-7).

The Social History, which is undated, (Ex. 7), gave his as being and helpful and , , and skills, (Ex. 7-2). In the evaluation, dated February 3, 2010, (Ex. 8), the recommended for , , , and wrote “[the Student] needs a small class with and teaching in skills” (Ex. 8-7). She also said the Student should be re-tested with a and (Ex. 8-7). In the letter by the early childhood director, date July 20, 2010, (Ex. 9), the director spoke of the Student’s difficulties with and , and asked that he be considered for and SETSS. In the classroom observation, dated March 4, 2010, (Ex. 10), the District social worker wrote, “He is . He is only able to follow one step commands. He t. He does constant teacher ” (Ex. 10-1). In the report by the , dated July 21, 2010 (Ex. 11), he gave an assessment of , and wrote “[the Student] needs and help with following tasks in school. He should have a paraprofessional (SEIT) in the classroom to assist him with these tasks” (Ex. 11-2). (It is unclear if the meant to write SETSS instead of SIET). In the Student’s report, dated June 1, 2010, (Ex. 12), areas of concern included following independently, (Ex. 12-4). In the teacher report, dated March 5, 2010, (Ex. 13), the teacher wrote that the Student “has improvement in a group or even one on one setting”, and recommended , , and SETSS (Ex. 13-3).

There are two IEP’s from the Private School. In Ex. H, dated November, 2010, under academic performance and , then it is noted that the Student required teacher support. He received a score of “ ” for all areas , short , and , (Ex. H-3), he received mostly needs , and “ ” in math, (Ex. H-5), and in , (Ex. H-6).

In the IEP dated June 2011, (Ex. I), under academic performance, “[the Student] has made this year”, in (Ex. I-2). Under development , he is seen (Ex. I-2). Although he hasn’t mastered any of the goals, he received an evaluation of “progressing,” in every subject. He was given related services of (Ex. I-9).

In the Student’s 2010-2011 general studies second grade report, he received a grade of “needs improvement in most subjects, “satisfactory” in computers, art, physical education, “shows effort” ( ), and in development (Ex. J-1). In the comments, “[the Student] taught” (Ex. J-2). In the teacher report, dated February 22, 2010, the teacher described the Student’s strengths and weaknesses (Ex. O). In reading, he can ; in , he can form rules in , , , and to come up with ideas, his were , he had ; his skills were but he had with , he couldn’t or , he had trouble with changes in schedule and with his .

LEGAL BACKGROUND

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

ANALYSIS

Prong I

The central issue in this litigation is whether the District provided the Student with a FAPE for the 2010-2011 school year. The Parents have raised both procedural and substantive violations.

Below I identify the significant issues and divide them according to their nature as either procedural or substantive while recognizing that there are often features from either category in any given issue. Primary Procedural Issues:

That the CSE review team was improperly composed because there was no Parent Member in attendance; the CSE did not allow the Parent to have full participation in the decision process; the CSE did not adequately consider the appropriate evaluations and documents when making its recommendation and goals. The primary substantive issues are:

That the proposed placement and program did not meet the Student’s needs and were not appropriate. The recommended placement would not provide enough support; The Student needed a full time special education program; The IEP does not address the amount of intervention needed to help the Student with his and .

Procedural Violations

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007

Was the CSE improperly composed?

Although not required by IDEA (see 34 C.F.R. § 300.344), New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see Bd. of Educ. v. R.R., 2006 WL 1441375 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765 [S.D.N.Y. July 11, 2005]; Application of the Dep't of Educ., Appeal No. 09-024; Application of the Dep't of Educ., Appeal No. 08-105; Application of the Dep't of Educ., Appeal No. 07-120; Application of a Child with a Disability, Appeal No. 07060; Application of the Bd. of Educ., Appeal No. 05-058). New York State law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]). Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (8 NYCRR 200.5[c][2][v]). New York State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member (Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][2]-[5]; see Application of the Dep't of Educ., Appeal No. 09-078).

In this case, the CSE was meeting for an initial determination of eligibility. (Tr. p.

58) It is undisputed that an additional parent member did not attend the July 22, 2010 CSE meeting (Tr. p.63) Furthermore, there is no parental waiver of the additional parent member in the hearing record.

I find that here, the lack of an additional parent member, absent a proper waiver, is a procedural error and contrary to State law and regulations. I further find that such error actually, significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a FAPE. First, the Special Education Teacher who chaired the meeting understood the reason for the participation of the additional parent member. She testified “The parent member is there basically to assist the parents to see if there rights are being protected and to give them any advice. (Tr. pp. 62-63)

Second, I find that the Parent was in need of assistance, protection of her rights and advice. During the testimony of the Parent it is revealed that she believed that she was the additional parent member. (Tr. p. 458) Thus, the position of the CSE Chair, that generally, if someone complains about the lack of the additional parent member the meeting would be adjourned, (Tr. p. 63) did not apply. The Parent would not have known to object.

During testimony when she was asked if she agreed with the recommendation of the CSE at the CSE meeting she said: “I didn’t know. I didn’t know enough about kind of options. I didn’t agree or disagree. I just went along because that seemed like that’s what kind of had to be done.” (Tr. p. 417) When asked if the CSE advised her of placement options, she testified that she “ . . . was not aware of any other options.” (Tr. p. 418) An odd exchange occurred during her testimony when she was asked about the CSE remarks concerning the - ’s recommendation for a small class with one-on-one attention. The Parent recalled that it was suggested “That they always start with the least restrictive, that even if he needs more that’s the way they have to start.” (Tr. p. 418) Based upon the demeanor of the Parent and her testimony in general I conclude that she never objected to this clearly erroneous approach to placement. I am not willing to find that her acquiescence to the CSE chair’s faulty rationale for the less restrictive environment was an attempt to bait the District into a mistaken program recommendation. Instead, I believe that the Parent lacked the aptitude/insight to advocate at the CSE meeting and/or knowledge of her right to do so. (See also Tr. p. 457 where the Parent was equivocal concerning her of due process rights.)

Another example of the Parent’s inability to advocate for the Student at the CSE meeting is found in her testimony when she was asked if she thought that the resource room would be appropriate. She answered, “I felt more in a position that I was being led than that I was kind of leading anybody so I felt like they were telling me this is kind of the way that it works. If I go back and think about it, the fact that I remember thinking that I didn’t express that the classes only get bigger, and how is he going to be during all of those other periods, but I didn’t express that because it kept being explained to me that kind of this is the way it’s done, we always go least—restrictive first, and then, you know, that’s what we are going to do here.” (Tr. pp. 439-440)

Another factor worthy of consideration, I do not believe the Parent had faced the gravity of the need for a full-time special education program. The recognition of the Student’s educational needs began during the year of school. The Student, who all agree had , began exhibiting early on but, the Parent did not understand the until August 2010. A referral was made for special education services in December 2009 and the educators at the private school were aware of the issues. (Tr. pp 354, 356, 368, 371, 393) They informed the Parent and the Parent obtained needed evaluative materials supporting the need for Special Education services. The CSE did not convene until July 2010 and at that time the Parent had not yet fully comprehended the Student’s educational needs or the options available. (Tr. pp. 411, 436, 439) At the CSE meeting the Parent accepted the recommendation without advocacy for more intervention, even though staff from the Private School argued that the recommendation of the CSE was “not enough support” (Tr. p387) and that a program was required. (Tr. p. 394) It was only weeks later when confronted by the staff at the Private School of the fact that a full time special education program was required that the Parent fully faced her child’s situation.(Tr. pp. 290) At that point she did request further CSE review. (Tr. p. 427) This review did not happen.

I believe that a result of the Parent’s reticence to take a more aggressive position, the two most important evaluations of the Student were overlooked. (Ex.s 4 & 8) While the Parent recalls providing information to the CSE, (Tr. p. 417) neither the CSE Chair or the Private School participant at the meeting could remember the critical evaluative information being discussed (Tr. pp. 96, 389, 397)

In deciding that the absence of an additional parent member was a procedural error that significantly impeded the Parent's opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, I note that this was an initial meeting and that in the future the Parent should be better prepared in her role as a CSE team member. In enacting the IDEA, Congress intended to ensure that parents of children with disabilities have meaningful opportunities to participate in the educational planning process. 20 U.S.C. §1400(c)(5)(B).

Substantive Claims

The substantive inquiry is whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. "[F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression." D.F. ex rel. N.F. v. Ramapo Central School Dist., 430 F.3d 595, 598 (2d Cir. 2005).

In this case the CSE met for an initial evaluation and considered an array of documents that suggested a placement in a mainstream class with related services. At the meeting there was no significant objection to this proposal from the Parent and there was a letter of apparent support from the Student’s current teacher at the Private School where he was then attending classes. (Ex 13) There is some question as to the thoroughness of the CSE deliberations but on the surface, at the meeting, it appears there was only a single dissenting voice: That of the Director from the Private School. (Tr. p. 394) But even here, from that Director, there was an understanding of the District obligation of a placement in the Least Restrictive Environment. (Tr. p. 393)

However, in review of the record it appears that the CSE missed significant documents. Among which is the evaluation, dated February 3, 2010, (Ex. 8), the recommended for attention and hyperactivity, behavior modification, , and wrote “[the Student] needs a small class with one on one attention and ” (Ex. 8-7). She also said the Student should be re-tested with a computerized test for and (Ex. 8-7). In conclusion the evaluator recommends a “small class setting”. The report appears to be thoughtful and worthy of consideration.

It is well known that the CSE team is responsible for the annual development of the student’s IEP. 20 U.S.C. §1414(d)(4)(A)(i). Among other things, the team must consider: the concerns of the parents; the results of evaluations; and the academic, developmental, and functional needs of the child. 20 U.S.C. §1414(d)(3). While Parents are afforded the role of participants at CSE meetings, not merely attendees, 8 NYCRR §200.4(c)(3); 34 C.F.R. §300.345(a) in this case, as stated above, the Parent did not fully participate at the CSE meeting. But the Parent did belatedly object to the placement, and she wrote a letter to the District explaining that she did so. (Ex. 15) In that letter she informed the District that she objected to the program recommendation and invited the CSE to reconvene to discuss a full-time special education program. Based upon the testimony and the documentary record I believe a full-time special education was warranted and, upon proper consideration, would have been recommended. Accordingly, I believe the District failed in offering a FAPE first by not assessing the information available but , more importantly, in not reconvening when the Parent made it clear that the recommendation was not appropriate.

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700

F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents 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 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren

G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Here, the Private School in which the Student was unilaterally placed by the Parents is appropriate. The Teacher said that the school addressed the Student’s difficulties effectively. She said, “For , [the Student] benefitted from small group instruction. He would sit next to the teacher and require constant teacher . For processing, he would benefit from and teachers. He also benefitted from preteaching and review of all subjects, and from a …” (Tr. p. 213). The Student took a skills class a week and was also taught the (Tr. p. 213). To help the Student academically, he was given - , , and small group instruction (Tr. p. 213). His class was taught in small groups, which were based on the Student’s needs and skill levels (Tr. p. 214). The Teacher said the Student received counseling “ for his and his , and to help him with his ” (Tr. p. 217). She said his services were for his and (Tr. p. 217). The school offered mainstreaming for science (with the support of the special education teacher), lunch, and recess (Tr. p. 221).

The Teacher said that the Student made progress in the 2010-2011 school year . She said, “Towards the end of the year he when things were , and he—when he —was able a lot more quickly. Academically, at the beginning of the year, [the Student] required in all areas…By the end of the year, he was learning how to use his ” (Tr. p. 225). His skill level improved to end of -beginning of grade level (Tr. p. 226). His skills to , to , better, and “ ” (Tr. pp. 225-226).

The Teacher said the school was an appropriate placement because “he was given the he needed. He was provided the support he needed” (Tr. p. 226). When asked if she thought the Student required a full-time special education program during the 20102011 school year, the Teacher said yes, “Because it helped him with his and his processing. He received the attention that he needed during the lessons, and, for . He was provided the individualized support and the small group lessons” (Tr. p. 227).

The Teacher said the school addressed the Student’s deficits in the following ways: “He would be asked to . He was pre-taught in many of the subjects so that he would come with a . Everything that he learned was reviewed. We taught him in a issues.” (Tr. p. 268) When asked later if these issues were addressed in The Special Education Director of the Private School said the Student received counseling to address his (Tr. p. 288). When asked how the school helped the student with his , the Special Education Director said, “they would have a teacher next to him to help him acclimate to the schedule, help him work with small group lessons. He would be ” (Tr. p. 293). She added that he was taught in a method, given , taught to develop his skills, and given a behavior chart (Tr. p. 293).

The Special Education Director said that the school was an appropriate placement “Because of all the support that he needed and got. Everything was broken up and individualized…As the year progressed, he showed . He was able to handle change in routine in a routine a little bit better, and he was able to show …” (Tr. p. 294)

The Parent testified that the Student has made progress in the Private School. “In he couldn’t and in the beginning of the year they what his needs were and he started progressing, which we were all see. He could start reading…”(Tr. p. 431)

On the other hand there is cautionary evidence which indicates the Student is not flourishing (Parent’s Ex. I; Tr. p. 239) (this refers to a teacher from the Private School saying she didn’t think the Student achieved “mastered” any of the IEP goals. Although the Student had not yet mastered the goals on the November IEP, the Teacher said that he made progress in those goals. (Tr. p. 272)) Even though the Student has made progress, the Teacher testified that he still was not up to grade level academically at the end of the school year in question. When asked what caused this, she replied, “Well, he had deficits in ” (Tr. p. 267). His observation (Tr. p. 267).

There is also a slight discrepancy between the Student’s instructional level on his evaluation of February 28, 2010, based on running records and teacher made assessments, which put him at below level and that on the Woodcock Johnson test, which gave him a level (Tr. pp. 231-235). However, regarding this inconsistency I adopt the explanation offered by the CSE Chair who explained: “As a teacher I can speak to this. Depending on the instrument you use, there might be slight variations in their scores, especially with a child that young, depending upon their mood.” (Tr. P. 158)

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. . . . Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank

G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006]

Based upon the totality of the record, I find that the Private School placement was appropriate and, I move to the Prong III analysis.

Prong III

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a Private School at public expense."^[20] U.S.C. § 612[a][10][C][iii][I] 2; see 34 C.F.R. § 300.148[d] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) In this case the requisite notice was proffered to the District on August 24, 2010. (Ex. 15) More than ten days before the removal.

It is also true that to prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C. v. Voluntown, 226 F.3d 60 @ 68(2nd Cir. 2000); Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III). In this case I find equitable considerations warrant a reduction in tuition reimbursement.

When asked if she had intended to keep the Student at the Private School before the August meeting, the Parent said that she did. (Tr. p. 442) She was later asked if the Private School’s special education program was more expensive than the regular education program, and she said it was. (Tr. p. 444) She said yes, when asked if she would have paid for the Student’s tuition in the regular program at the Private School. (Tr. p. 444) On the other hand she indicated that she did not object to the Student attending a public school, and that she and her husband had gone to public school. (Tr. p. 430)

The District contends that the full amount of the regular education tuition should be deducted from the full tuition based upon the Parents stated intention: “$17,000 a year for regular, for the mainstream…and then it was $35,000 for the special ed.” (Tr. p. 444) The Parent testified, “had [she] decided not to put [the Student] in the special education program [she was] planning then to fund the $17,000 for the general ed private program.” Tr. p. 444:18-22. The argument goes: Since the parent always intended to place the Student at the Private School for general education/religious instruction for the 20102011 school year at a cost of $17,000, then the District should not be obligated to pay for that $17,000 portion of the overall tuition paid by the parent for 2010-2011 school year. On its face this argument has appeal. But as explained above, it is my finding that the Parent came to a realization that her son required special education in a full-time program on or around August 24, 2010. At that point the District could have reconvened and made an appropriate recommendation. Given the record in its entirety, I conclude that it would be equitable for the District to fund seventy percent of the tuition at the private school for the 2010-20112 school year

It is, therefore, ORDERED that the District reimburse the Parents for seventy percent of the tuition at the Private School upon the presentation of properly receipted invoices for the payment of such tuition.

Dated: September 18, 2012

_________________________________

MARTIN J. KEHOE, III, ESQ.

Impartial Hearing Officer

MJK:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 8/23/11, 4 pp. B Due Process Response, 8/29/11, 3 pp. C Letter from Parents to CSE Chairperson w/Receipt, 8/24/10, 2 pp. D Evaluation, 2/3/10, 16 pp. E Progress Report from Yitzchak Frank, M.D., 7/21/10, 1 p. F Omitted G Omitted H Day School IEP, 11/2010, 11 pp. I Day School IEP, 6/2011, 9 pp. J Day School Grade Report, 2010-2011, 2 pp. K Day School Program Description, Undated, 1 p. L Affidavit of with Attachments, 6/6/11, 3 pp. M 2010-2011 Class Schedule, Undated, 1 p. N Cancelled Checks Evidencing Tuition Payments, Various Dates, 12 pp. O Teacher Report, 2/22/10, 3 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 8/23/11, 4 pp. 2 Due Process Response, 8/29/11, 3 pp. 4 IEP, 7/22/10, 17 pp. 5 Evaluation, 2/28/10, 2 pp. 6 Evaluation, 4/14/10, 7 pp. 7 Social History, Undated, 3 pp. 8 Evaluation, 2/3/10, 16 pp. 9 Day School Letter, 7/20/10,1 p. 10 Classroom Observation, 3.4.10, 2 pp. 11 Report, 7/20/10, 3 pp. 12 Day School Documents, 6/1./10, 4 pp. 13 Teacher Report, 3/5/10, 3 pp. 14 Final Notice of Recommendation, 7/30/10, 1 p. 15 Parents Ten-Day Notice, 8/24/10, 1 p. 16 Unsigned Subpoena to Day, Undated, 2 pp.

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Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[20] U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- `` (I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . . (iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement— (I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and (II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.