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

December 20, 2011

December 23, 2011

January 18, 2012 Actual Record Close Date: March 2, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 21, 2011

Parents

Advocate — Student

District Representative-CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2011

Parents

Advocate — Student

District Representative-CSE — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 23, 2011

Parents

Advocate — Student

(via telephone) — Student

Executive Director- (via telephone) — Student

District Representative-CSE — DOE

Teacher- (via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 18, 2012

Advocate — Student

District Representative-CSE — DOE

Introduction

This case was brought before me upon my designation by the Department of Education (―

District‖) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (―

IDEA‖), 29 USC §1400[f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by and , the Parents (―

Parents‖) on behalf of ., the student (―

Student‖), through their advocate,

, by filing a Due Process Complaint dated August 26, 2011 with the District. The District was represented by Dr. , CSE District Representative.

The Parents are alleging that their son, was denied a free and appropriate public education (―

FAPE‖) for the 2010-11 school year and is seeking tuition and transportation for his unilateral placement at the for said year. D-1.

There were four days of hearings in this matter. Hearings were conducted on November 21, 2011, December 20, 2011, December 23, 2011 and January 18, 2012. Extensions were granted in this case making the final compliance date March 5, 2012. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

Background

This case involved a . During the 2010-11 school year, attended the (―‖) where the Student was unilaterally placed by the Parents.

With respect to the 2010-11 school year, an Individualized Education Program IEP‖) was developed on April 15, 2010. D-3. Pursuant to the April 15th IEP, the (― following recommendations were made:

1. Special class in a staffing ratio. 2.

3. 1 times per week, 30 minutes each time,

4. , 2 times per week for 30 minutes each time,

5. , 2 times per week for 30 minutes each time, .

The District issued a Notice of Recommendation dated July 13, 2010. P-D. It stated that the offered school shall be . The Parents sent back the Notice of Recommendation to the District and stated ―

Please be advised that is currently closed. I will observe the program in September and notify you concerning my decision. 7/19/10.‖ P-D. A letter dated August 18, 2010 was then sent to the District from Ms. ’s office stating that the Parents could not observe the recommended placeement because the school was not in session and that they will make every effort to observe the program in September 2010. The letter also stated that it will serve as a 10 day notice letter that the Parents will enroll their child in ― . P-C. The Parent then sent back the Notice of Recommendation again with another notation dated October 5, 2010 stating that ―

I visited the recommended placement but they did not have room in the class for ]. He will be attending the program in and an impartial hearing will be requested for tuition for the 2010-2011 school year.‖ P-D. At the hearing, on cross examination, the mother testified that she did not in fact visit the program, nor did her husband. Tr. 172.-174.

The Parent entered into an Enrollment Contract with dated May 13, 2010. P-F.

The Due Process Complaint dated August 26, 2011 was received by the District at that time. P-A. I was appointed as an impartial hearing officer on August 30, 2011. Position of the Parties Parent’s Case The Parent called three witnesses, Dr. , , and and placed eleven (11) documents in evidence. P-A – P-K.

The first witness was Dr. who has been employed by in their for six years. Tr. 91-92. She stated that the is a dedicated special education program located in a mainstream . Tr. 91. For the 2010-11 school year, she was a teacher and taught English, Writing, and Math. Tr. 92. Prior to that, she worked for the NYC Board of Education for 20 years in District . She also worked for other school districts setting up special programs for and . Tr. 91-92.

She is familiar with . and described him as a young year old who was ― relationships with other students, not sometimes, but had a .‖ Tr. 93. She stated that academically he was in terms of . His , not because he didn’t have the ideas but he was not able to .‖ Tr. 93. With respect to writing, Dr. testified that he has serious issues and has Tr. 94. She also stated that he had major and is only able to and needs to stay on with the mechanics of writing. Tr. 94. In order to help him refocus, Dr. testified that she tried to teach him and his . Tr. 125.

Dr. . had been in , first in the program and then in the in the Tr. 93. Dr. testified that there are approximately students in the and that they have no contact with the Tr. 119. In the there are students from . Tr. 119-120. In all of .’s classes, he was placed with graders and there are only , except in he was placed with graders and . Tr. 120.

Dr. testified that a class size is critical for . and that ’s classes range in size from to She testified that at . spent most of his day with the other graders. Tr. 120. She testified that she believed a class size would not be appropriate for . due to his . Tr. 97-98. Dr. said it was possible to differentiate instruction in a class but Tr. 122. On cross examination, she testified that when she taught in a class with the NYC Board of Education, she was able to differentiate instruction. Tr. 123.

She testified that she was the for classes a day, English and Writing Strategies. Tr. 97. In English, Dr. testified that displayed relative success with her modifications, She would modify presentation, pace and the pieces of literature that were used. Tr. 100. She stated that she attempted to follow the core curriculum so he read To Kill a Mockingbird, Three Cups of Tea, Lord of the Flies, and excerpts from works of Shakespeare. Tr. 102. She said that after the students read the novels she would have discussions with them. She tried not to have them write essays since it was frustrating for them. Tr. 102. She said that the Student was right on target with the material in class, though he had . Tr. 103.

Dr. testified that socially he was new to the school so he was attempting to develop relationships with mainstream kids as well as other youngsters in the program. Tr. 100. She testified that his relationships were and although he ventured out at lunchtime, etc., he had . Tr. 101. She testified that he gets . Tr. 101; 117. She also stated that he can attend any trips that are taken by the mainstream students school-wide. Tr. 101.

In Writing, she was not following a particular curriculum. Tr. 103. She taught them that there is a formula in writing and gave them a template to use to organize their writing, fill in the details and expand their details from one sentence into paragraphs. Tr.

104. She stated that in World History, Mr. tried to do a majority of work in class with minimal homework in order to accommodate ’s difficulty completing homework. Tr.

105. She also testified that had a difficult time in Biology, (tr. 105) and she was not sure whether this was because of personality issues with the teacher and/or difficulties controlling his during lab time. Tr. 105. With respect to Math, she stated that the Student was doing an ―, beginning-of- -grade curriculum trying to prepare him for algebra this year.‖ Tr. 106. Dr. indicated that most of ’s classes are modified. She used biology as an example to explain how the content area is modified and stated that they don’t go into the kind of detail found in a typical biology class because ― our youngsters are not able to handle and sort of incorporate into their intellectual framework all those details.‖ Tr. 108. She stated that ―…it’s like taking a five-inch paintbrush instead of a two-inch paintbrush. We use the five-inch to---a general understanding of that particular content area, but they don’t have the depth of information that would be expected in a mainstream biology class.‖ Tr. 108.

Dr. testified that . . Tr. 10. In explaining what passing means, she stated ― clearly attendance is one of the issues, participation in class is probably the second major issue, and third is covering a certain amount of content.‖ Tr.

107. On cross examination, Dr. stated that he was not successful in completing computer class and and had to drop them. Dr. further testified that if passes all of his classes in he will receive a Tr. 127. The does not participate in though the students take teacher made assessments. Tr. 127. Since he is in a special education setting, the accommodations are built into the testing for all students. In terms of accommodations, Dr. testified that ―For example, instead of assuming that a 40-minute test that a mainstream youngster could finish may be 25 multiple choice questions, tests are cut down to 15 questions or they’re given over a period of two days so that the multiple choice is given one day and any short response answers are given the next day.‖ Tr. 128.

When asked whether the Student made progress, Dr. testified that ― he made some progress and think that’s in evidence this year…It wasn’t in evidence at the end of last year, but when he approached this particular school year, he has been consciously more organized and able to do material management. Some of that has been helped by some of the systems we put in place here.‖ Tr. 108-109. In clarifying this she said that ― the progress became part of his in school this year more than last year.‖ Tr. 113. She stated that in Reading and English she saw to think critically about what he was reading. Tr. 115. In Writing, he was able to write an essay where he head to structure the whole thing. In Math, he was able to finish and show confidence in percent of the prealgebra curriculum, however, he did not make much progress in terms of content knowledge in Biology. In World History, he was ― able to retain much of the information he was taught.‖ Tr. 116.

Dr. testified that received but did not receive Therapy. Tr. 125. She said that the school did not provide it. Tr. 125.

The next witness was . He is managing director of and is in charge of tuition. Tr.

133. In fact, he is in charge of all non-educational aspects of . Tr. 135. He testified that he is familiar with the tuition payments made by the Parents for their son, . for the 2010-11 school year. Tr. 135. Mr. testified that the Parents signed a standard Contract under which they are obligated for $ to He further stated that he entered into a Payment Schedule with them in which they were allowed to pay a total of $ in monthly installments of $ during the school year with the balance due upon the resolution of this case. Tr. 135. Mr. testified that if the Parents did not prevail in this proceeding, they have a legal obligation for the full amount of the tuition under the contract. Tr. 136. He stated that if the Parents did not pay, they would then look at their remedies. Tr. 136.

On cross examination, Mr. testified that is in . He also testified that when a parent enrolls a student in the school, the school is made aware of the Parent’s income or their reported yearly income. Tr. 137. He said that when ’s parents registered him, they had a discussion about their financial situation and their ability to pay. Tr. 137.

The last witness was , the Student’s mother. Tr. 140. She stated that they discovered that . required special education services when he was in grade. Tr. 142. She also indicated that he received early intervention. Tr. 142. She stated that she took him for a private evaluation and (tr. 143) and that he was given that diagnosis in grade. Tr. 159. She first testified that the District was aware of this diagnosis and had received the paperwork and then said she wasn’t sure that they had. Tr. 160. When asked on cross examination why the IEP didn’t mention the diagnosis, she said the District didn’t accept it. Tr. 160. She testified that with respect his .

Ms. testified that her husband attended the April 15, 2010 CSE meeting. Tr. 147. She stated that she didn’t think that could learn in a class of students and one teacher. Tr. 148. She said ―I know that . cannot even follow an instruction if I’m not talking to him. So I don’t think he’s capable of learning or following anything if the person is not really talking to him right here right now.‖ Tr. 148 .When asked whether the crisis paraprofessional would make a difference, she stated that it was only for half a day if school and she wasn’t sure of the s duties. She did testify that ―If the para can redirect what the teacher said, so I guess yes. But if the is just sitting next to him and … pointing to the page…I don’t think so.‖ Tr. 149. Ms. said she had reservations about the time when the para would not be present . Tr. 149. She testified that he does not have a para at but there are cameras in the building and an intercom system to keep track of the students. Tr. 150.

She also testified that is an appropriate placement for her son. Tr. 153. She stated that he made progress. When asked to discuss what she saw, she stated that there is someone to talk to in the school to follow up with her if he forgets his , etc. She testified that Dr. had taken it upon herself to keep him organized. Tr, 154. She also stated that they would see a by the end of the year like bringing home a , his . Tr. 155.

With respect to visiting the placement recommendation, Ms. testified that she called the contact person at the school to make an appointment to come and see the school and she said there was no room in the program for him. Tr. 153. She testified that the school year had already begun. Tr. 153. On cross examination, she stated that the person she called was , the assistant chairperson of the CSE and that she did not in fact call the school. Tr. 163. Later on, however, she testified that she did call the school but didn’t remember who she spoke with. Tr. 179. Even though she indicated that the Notice of Recommendation was sent back with a notation dated October 5, 2010 indicating that she visited the recommended placement, on cross examination, the mother testified that she did not in fact visit the program, nor did her husband. Tr. 165.

She testified that her income for 2010 was $ as per the tax return. P-K. She further stated that she was the person that signed the May13th Tuition Contract. P-F. On cross examination she stated that she signed the contract without reading it and was not aware that she would have to pay the tuition whether or not he stayed there for the whole year. Tr. 161-162. District Case The District called three witnesses, and placed five (5) documents into evidence. D-1—D-5.

The first witness for the District was ,. a school She has worked for the CSE for over 5 years and prior to that time worked for the NYC Public Schools. Tr.

19. Ms. testified that she participated in the April 15, 2010 IEP meeting for . as the school Tr. 19; P-A. She stated that all mandated members of the CSE were present. Tr. 21. She stated that in addition to herself, the special education teacher form CSE was present, the general education teacher, the parent, the parent member, a teacher from and the Parents’ advocate. Tr. 21. She stated that related service providers are not mandated participants. Tr. .21. She testified that when they schedule a meeting, they request the private teacher’s participation and related service providers but it is up to the private school’s director to make the decision who is going to participate. Tr. 21.

were terminated at the April 15th CSE meeting as a result of an evaluation from the dated February 1, 2010. Tr. 23; D-3; D-4. Ms. read from the IEP which stated that based on the findings of both formal and informal assessments, it was determined that speech and language services were no longer warranted since . was performing at or above the in D-4; Tr. 23-24. Ms. also testified that she had written on the contact sheet (D-5) that the Parent and the advocate did not agree on Tr. 24. She testified that she did not, however, remember this discussion. Tr. 25.

Ms. testified that she believed that based upon the Student’s Math computation level of and Math reasoning level of that the Math goals listed on the Student’s April 15th IEP were appropriate. Tr. 27. She further testified that ― if the teacher would like to make goals more complicated, more advanced based on [ ] achievements and skills, the teacher can always that, but [the goals listed] are basics that he would have to achieve, and after that, he would move further.‖ Tr. 28. Ms. testified that the goals for listed on D-3-11 were prepared by an and the goals for listed on D-3-12 were prepared by a . Tr. 29; D-3.

Ms. testified that the goals on D-3-14 of the April 15th IEP were developed by the CSE team and dealt with what the team had heard during the meeting regarding the Student’s . Tr. 30. In this regard, the goal was for the Student to assistance of a . Tr. 30; D-3. Specifically, stated that ―

The objective would be that he would be able to , that he will initiate academic tasks on time, and he will complete his assignments on time…‖ Tr. 30-31.

Ms. testified that they considered other programs and services for the Student at the time of the April 15th IEP meeting, She stated that they considered general education with related services and rejected it as insufficient. They also considered a special class in a special education school and found it too restrictive and they considered a program, as requested by the Parents and rejected it as inappropriate for ’s academic needs. Tr. 40. On cross examination, Ms. testified that in a special school there is also a ratio but in a community school it is and that . was not recommended for the class in a specialized school. Tr. 45. Ms. testified that she believed that the District provided the Student with an appropriate IEP , Tr. 43. She stated that they provided a recommendation for a special self-contained class with a ratio of related services and a . Tr. 43.

The second witness was , who is currently a for the special education department at . Tr. 55. He has worked at the NYC Department of Education for 12 years, six years as a teacher for the general education population and six as a . Tr, 55.

Mr. testified that there are different levels of services for special education students at . Tr.56. He stated that they have integrated co-teaching classes with a ratio of special education students and general education students with teachers; classes with students and teacher with standard assessments and classes with alternate assessments. Tr. 56. He stated that there are approximately special education students and approximately students all together, Tr. 57.

Mr. testified that the Student would be able to receive all of the related services listed on his IEP. He also stated that he was not aware of students who did not receive related services, however, if they were unable to receive their related services within the building, they would have been issued an and would have gotten the services outside of school. Tr. 57.

Mr. is not familiar with the Student. Tr. 57. He testified that on the first day of school there was space in the class. Tr. 58. He further stated that if the placement office sent the student to , then there was room in the class and in the building. Tr. 58. When asked whether a student with .’s academic levels would be appropriately placed academically in a class, Mr. testified that students with those levels are commonly found in a class. Tr. 59. He also testified that in a class some students have ) and ( ) to support or modify . Tr. 61. He said that this was determined by need. Tr. 61. Mr. . Tr. 69.

On cross examination, Mr. testified that if a student came to the school without any credits they would be placed in a standard grade program. Tr. 63. He also stated that if a parent came to observe a program they would meet with the assistant principal of special education and they would observe classes that the Assistant Principal believed the student would be attending. Tr. 65. He testified that there are classes in all core contents, English, Math, Social Studies and Science (tr. 66) and the student would be required to take these as well as Physical Education and an Art or Music class. Tr. 67. He also stated that in grade the students are also given support classes in Math and English, Tr. 67. Art and Music are not grouped by grade and are not usually in a ratio. Tr. 68. If the student was stipulated to only be in a classes throughout the day, then the school would have to make an accommodation for that student. Tr. 69.

The last witness was who has worked for the Department of Education for seven years as a special education teacher in a self-contained classrooms in a setting and also in collaborative teaching classes. Tr. 77. During the 2010-11 school year, he taught classes at . Tr. 78. He testified that the program is a self contained classroom for children with varying degrees of disabilities and it’s a classroom setting designed to give more and instruction. Tr. 78. He stated that they differentiate and modify instructional material for the class itself and for individual students who present with varying degrees of reading levels or levels of performance. Tr. 78.

Mr. testified that he teaches grade Social Studies and if he had a student who presented with a reading level, depending on the individual need, he might modify the reading material, altering the vocabulary, the font size or the length of the reading or he might provide the student with definitions for difficult vocabulary words and/or read aloud with the student. Tr. 80.

Mr. also testified that if a paraprofessional were recommended for fifty percent of the day, depending on the student’s disability, it would either be used to manage or keep a student on task. Tr. 82. He testified that he believed that paras received training for their licensure and also that they received training during school on professional development days. Tr. 82.

Mr. also testified that .’s accommodations including double time, separate test location, directions read and reread aloud and answers recorded in any manner would be something that the school could provide. Tr. 82. He testified that the students in the program do sit for the regents and if they fail, they can take the Tr. 83.

Findings

Two purposes of the IDEA (20 U.S.C. § § 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee Of the Town of Burlington v. Dep’t of Educ.of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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.(Rowley, 458 U.S. at 206-07; Cerra , 427 F.3d at 192.) A school district offers FAPE by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. (Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F,3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, 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, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211). 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). The recommended program must also be provided in the least restrictive environment. (34 C.F.R. §300.550[b]; 8 NYCRR § 200.6[a][1].)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents allege that the District did not comply with the procedural requirements of the IDEA. The District provided evidence in its April 15th IEP (D-3) and the testimony of Ms. the school , who was present at the CSE meeting that the mandated members of the CSE were present. The related service members are not mandated members of the CSE. In this regard, Ms. testified that when the CSE schedules a meeting, they request the related service providers attendance at the meeting, however it is at the private school director’s discretion. Tr. 21. With respect to the termination of , an evaluation dated February 10, 2010 (D-4) was presented at the meeting indicating that were no longer warranted. With respect to goals for , Ms. testified that they were prepared by a related service provider and reviewed at the meeting. Tr. 29.The testimony further indicated that the Math goals were appropriately determined to meet educational needs at the time. With respect to his and , the goals were developed by the CSE team at the meeting in response to the Student’s needs as presented at that time and the placement included a to help facilitate these goals. Tr. 30; D-3.

.As of the first day of school, the District provided testimony that there was room for Tr. 58. Although the Parent testified that she called the school in September and was told that there was no room for ., I have determined that her testimony was not credible in this regard.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its April 15th meeting provided with FAPE and that the placement at . The District’s witnesses provided testimony that the program for . was comprehensive and targeted at his disabilities. It is clear from his April 15, 2010 IEP (D-3) that . was classified and it clearly indicates that he takes for . There is no indication on the Due Process Complaint, at the CSE meeting, on the IEP or otherwise that this classification was being challenged.

It was clear that a special class in a with a ratio and a would meet his needs in the environment and allow him to make progress and receive educational benefit. There was no indication that the class size would not serve the educational or . He will have the opportunity to benefit from the other students in the class and the teacher, yet have the personalized attention of the para when . He will be grouped with students with similar . Tr. 69.It is also clear from the testimony that academic learning could be differentiated in a classroom to accommodate each student’s needs. The will help him and provide guidance for completing tasks in a timely fashion. Tr. 30. Even Ms. indicated that if the para was used appropriately, he/she could be beneficial. Tr. 149. In addition, he will have mainstreaming opportunities through his gym, art or music classes, lunch period and afterschool clubs and activities. Furthermore, the related services of and are necessary to meet his needs at this time and would be provided. The , in particular, will help him with any .In addition, the additional accommodations of extended time, separate test location, directions read and reread aloud and answers recorded in any manner are appropriate to meet his individualized needs and will be a beneficial in addressing his .

For all of the foregoing reasons, I find that the District provided FAPE for Hence it is not necessary to consider Prongs 2 and 3. See Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record. Issue 2-Appropriateness of Parental Placement

Under the second prong of Burlington , the Parents bear the burden of proving the appropriateness of the services they seek for In order to meet that burden, the Parents must show that the provided by the Parents offered an educational program designed to meet special education needs . Burlington, 471 U.S.at 370; M.S. v. Board of Education of the City of Yonkers, 231 F. 3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that ―

Subject to certain limited exception, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…‖( Frank G. v. Bd. Of Educ., 459 F3d at 364 (2d Cir 2006)(quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on ― whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F3d at 112. ―

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 fro m instruction.‖ Gagliardo, 489 F. 3d at 112, See Frank G., 459 F3d. at 364-65) See also A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir 2010).

The Parents have not met their burden in showing that the was an appropriate placement for There is no testimony indicating that is a state approved special education school. It is a special education program in a in with only other graders in the program .Tr. 120; Tr. 137. Although having other students in the classroom may provide opportunities for individualized instruction, it is very limiting and would not be considered the least restrictive environment for a student like . Testimony was presented by Dr. that any progress he made during the 2010-11 school year was not in evidence during that year, but was only visible during the 2011-12 school year. Even his mother indicated that his progress was Tr. 154-155.

Both Dr. ’s mother indicated that his biggest issue was his yet it appear that he made any in this area even when there were only students in his classroom during the 2010-11 school year. The fact that the curriculum is substantially modified (tr. 108), that there are or other and the fact that the criteria for ndicates that the program is not appropriately challenging for . and will not provide him with opportunities for educational benefit. In addition, the testing accommodations appear to be for all students and are not personalized to meet .’s individualized needs. Even though Dr, indicated that . has and (tr. 93), he was not receiving nor was he receiving , both mandated services on his IEP.

For all the foregoing, I find the Parenst have not met their burden in proving the appropriateness of Issue 3-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii). I find that the Parent placed before notifying the District that it had done so in accordance with the Enrollment Contract dated May 13, 2010. P-F. Upon receiving the Notice of Recommendation from the District in July, 2010, the Parents responded and advised the District that it they would visit the program at the start of school and make a determination of its appropriateness. P-D. The record is clear that they did not visit the program. However, the Parent then sent back the Notice of Recommendation in October indicating that they had and advising the District that there was no room in this program for the Student. P-D; Tr. 172.-174. The Parents did, however, send a letter to the District on August 18th indicating that they were not able to observe the program over the summer and would make an effort to do so in September and advising the District that they were enrolling their child in ―.‖ P-C.

Therefore, I find that based on the balancing of equitable considerations, the Parents did not fully cooperate with the District and according to the Burlington criteria, could require a ruling against them, and a denial of tuition reimbursement in this matter. It is not necessary to reach Prong 3, however, since the District provided the Student with FAPE, hence I need not reach the issue of whether equitable considerations support the Parents’ claim for tuition reimbursement. (see Burlington, 471 U.S. 359, Gagliardo, 489 F. 3d at 115; M.C. v. Volutown Bd. Of Educ., 226 F. 3d 60, 66 [2d Cir. 2000])

Accordingly, I found that the District provided the Student with FAPE under Prong 1, would not be an appropriate placement for .under Prong 2, and the equities would not favor the Parents in granting reimbursement or paying tuition to on their behalf under Prong 3.

Order

IT IS HEREBY DECREED that the Student is not entitled to tuition reimbursement or payment of tuition directly , transportation or related services. Dated: March 5, 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

PARENT

A Impartial Hearing Request, 8/26/2011, 5 pp. B School Description, 2010/2011, 4 pp. C Ten-Day Notice Letter, 8/18/2010, 2 pp. D Placement Letter, 7/13/2010, 2 pp. E Daily Class Schedule, 2010-2011, 1 p. F Enrollment Contract, 2010-2011, 1 p. G School Affidavit, 11/9/11, 1 p. H Attendance Records, 2010-2011, 1 p. I Scholastic Report, 2010-2011, 1 p. J Proof of Payment, 2010/2011, 8 pp. K Income Tax Return, 2010, 3 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 8/26/2011, 4 pp. 2 Final Notice of Recommendation, 10/5/10, 1 p. 3 IEP, 4/15/10, 22 pp. 4 Evaluation, 2/1/2010, 2 pp. 5 Contact Sheet, 5/15/2010, 1 p.

IMPARTIAL HEARING OFFICER

I Email from , 1/12/2012, 1 p.