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: March 21, 2012

March 22, 2012

May 3, 2012

May 7, 2012

Actual Record Closed Date: June 28, 2012

Hearing Officer: Leah Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012

ESQ., Attorney, Law Offices of — Student

Parent/Father — Student

ESQ., Attorney, — DOE

Special Education Teacher (Via Telephone) — DOE

Director, Placement (Did not Testify) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2012

ESQ., Attorney, Law Offices of — Student

Parent/Father — Student

Special Education Teacher, (Via Telephone) — Student

ESQ., Attorney, — DOE

Director of Special Education — DOE

Enrollment for the Borough of the Bronx (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2012

Attorney — Student

Father — Student

Counselor (Via Telephone) — Student

Teacher at (Via Telephone) — Student

Director of Summer Academy (Via Telephone) — Student

Attorney — DOE

Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2012

Attorney — Student

Parents

Head of (Via Telephone) — Student

Attorney — DOE

Director of Placement (Via Telephone) — DOE

Placement Officer, CSE (Via Telephone) — DOE

PROCEDURAL CONTEXT

On August 30, 2011 I was appointed to hear the matter of . versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, on November 11, 2011 an Amended Due Process request was interposed and accepted. On March 21, 2012, March 22, 2012, May 3, 2012 and May 7, 2012 hearings on the substantive merits were held. On the final day of hearing, the parties were offered an opportunity to submit Memoranda of Law and, as a result thereof, the timeline was duly extended. Specifically, the Parent asserts that the Department of Education’s (alternatively the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) of March 19, 2010, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for his child. Exhs. A, B. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], the Parent is seeking tuition reimbursement for the 2010-2011 school year in furtherance of a unilateral transfer to the (hereinafter “ ”), a non-public school setting. . is “a child with a disability” as that term is defined under the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C. § 1400 et seq., and is classified with a “ ” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

is recently retired from the Department of Education where she worked for 27 years in a variety of special education positions. She is certified by New York State to teach special education. On March 19, 2010 Ms. participated in a Committee on Special Education (CSE) convene on behalf of . as the special education teacher. As a result of these proceedings, the Committee developed an IEP in which a ten month educational program with related services was recommended. Tr. at 46. The child was additionally mandated to receive a summer program of related services, notwithstanding the absence of extended educational services. Consistent with its SOPM, Ms. testified that related services would be provided at a District program where the child would be assigned to a class, regardless of whether the child actually attended the designated class. Tr. at 47-49, 74-76. The witness specifically opined, however, that a District program was inappropriate for . and, for this reason, a ten month program had been offered. Tr. at 49-50. Nevertheless, . would only be able to access her related services by participating in the District program, reflecting the underlying premise that students who attend a community placement do not require extended year services. Thus, Ms. testified that all twelve month programs, by definition, require District placement. Similarly, a child assigned to a ten month program would be unable to participate locally in extended year services as these schools are closed during the summer. Tr. at 67-72.

The witness generally described the CSE proceedings and the manner in which they were conducted. At the outset, she noted that the child’s present levels of performance were provided by personnel and their assessments. Although progress reports were reviewed, neither the child’s evaluation nor social history had been addressed, nor were they available at the proceedings. Tr. at 82-84. Similarly, the CSE generated its related service recommendations in the absence of provider evaluations, relying upon progress reports instead. Nevertheless, she noted that, as a custom and practice, the child’s related service providers are invited to participate. Ms. Giurato acknowledged that no general education teacher had been present and did not believe the telephone participants had been furnished with all of the relevant documentation. Tr. at 85-86.

.’s IEP, including the development of goals, accommodations and programmatic recommendations, were then developed with the collaboration and guidance of the child’s teacher. Exh. 5; Tr. at 57. Notwithstanding this, the witness acknowledged that many of the child’s academic goals were identical to those in the previous IEP. Exhs. 2, 5. Moreover, although ’s progress report indicated that . required a behavior plan, the witness opined that a class-wide plan would be adequate to meet the child’s needs. Tr. at

124. Although the 2009-2010 IEP had been reviewed during the CSE meeting, it had not been furnished to the Committee’s members. Tr. at 117.

Ultimately, the CSE determined that . would benefit from a classroom in a community school as the child would not receive adequate educational support within a paradigm, nor was it appropriate for this child to attend a specialized non-community placement. Although the child demonstrated clear educational and attentional deficits, Ms. believed .’s cognitive strengths were inconsistent with a District profile. Tr. at 62.

Ultimately, the witness acknowledged that the March 19, 2010 IEP did not include a provision for an extended year educational program and accepted responsibility for this error. Finally, Ms. testified that she had no recollection, one way or another, of discussions relating to extended year services, but did remember sharing the Minutes with Mr. . Tr. at 77-80, 311.

additionally testified on behalf of the Department of Education as the Director of Special Education Enrollment for the Bronx. The witness described the internal administrative process by which “official class lists” are developed, noting that the .’s original offer was generated on August 3, 2010. In furtherance thereof, she noted that, as a matter of custom and practice, the use of dated handwritten entries would facilitate the placement office’s ability to accurately assess the actual number of students assigned. An updated class list would subsequently be developed at the beginning of the school year in order to avoid overbooking of classes which might occur over the summer months. Tr. at 166-171; Exh. 8 at 1-2.

Ms. Tirado additionally described the process by which a Final Notice of Recommendation would be generated, adding that an official placement might emanate from the child’s local CSE or by the Office of Student Enrollment, depending on the particular needs of the student. The witness testified, “I don’t know, in this case - I believe that the placement officer at the time did go ahead and generate the Final Notice of Recommendation . . .” Tr. at 172-173. Thereafter, the seat is held until there is a specific notification from the Parent as to whether the services will be accepted.

On cross-examination, the witness could not explain why an undated entry for . had been entered on both the August 3, 2010 and August 30, 2010 class rosters. Although other students had been added to the enrollment lists with specific dates, Ms. acknowledged that the failure to include this information alongside L.G.’s name was a “deviation from normal business practice.” Tr. at 175-179. Similarly, she could not explain why .’s Final Notice of Recommendation (hereinafter “FNR”) did not refer to a specific class assignment as the child had presumably already been assigned to E-32. Tr. at 185-186. Although the witness affirmed that it is not uncommon to generate a placement in the absence of the child’s IEP, placement personnel would routinely communicate with the CSE in order to ascertain the child’s specific educational needs. In this manner, .’s needs would have been appropriately served by the class E-32 class described in the official class list. Tr. at 197; Exh. 8 at 3. Nevertheless, Ms. Tirado could not affirm whether placement personnel possessed the child’s IEP or had contacted the CSE for further information. Tr. at 199. She did indicate, however, that in 2010 much information could be extracted from an automated “CAP” system which codified the child’s “related service needs and all exigent circumstances, including language of instruction.” Ibid. Ultimately, an FNR might be issued by mail, fax or personal delivery from the local CSE placement office or Ms. ’s Special Education Enrollment Office. There is no standard protocol, nor does the office maintain records for returned mail. Tr. at 223-225. Finally, the witness was unaware of Mr. ’s August 17, 2010 letter indicating he had not received a placement.

is a Special Education Evaluation Placement and Program Officer and additionally testified on behalf of the Department. When a CSE IEP “leads to a proposed placement in the Ms. contacts the home district placement officer who identifies a seat for the child. Thereafter, the placement officer would contact her office with the site information and she would sent out a Final Notice of Recommendation (hereinafter “FNR”). In the instant matter, , the District placement officer, sent out his own FNR for ., an unusual circumstance occurring less than 2 percent of the time. Nevertheless, the witness testified that such a placement was valid, stating that the two FNRs received by the family were most probably forms generated “by two different clericals. It was the same information and they generated it on the same day with the same information, but in a different way.” Tr. at 411-413.

On cross-examination, the witness acknowledged that she could not recall the specifics surrounding the placement of and based her response upon “standard operating procedure” although the protocol followed by Mr. occurred less than one per cent of the time. Tr. at 413-414. Although the Department asserted that it had sent out two FNRs on the August 3, 2010, she could not explain how two different Chancellors were referenced for the same date. More significantly, she could not explain how one FNR had identified as the Department’s Chancellor although he had yet to be appointed. Tr. at 418-421.

THE PARENTS’ CASE

is a certified special educator who has been employed by for the past six years.

During the 2010-2011 school year, Ms. was ’s Head Teacher in a classroom although she had previously known the child for two years. Tr. at 251. She described a class profile which included several classifications within a three year age range. Tr. at 235-236.

On March 19, 2010 she participated in an IEP meeting via telephone for L.G., a meeting in which she was not provided with the child’s report, classroom observation or prior IEP. Nevertheless, Ms. testified that the Committee discussed some but not all of the child’s goals and the progress she had made from the previous year. Tr. at 288. Nevertheless, in contrast to Ms. ’s testimony, the witness noted that she had not provided the speech, counseling or occupational therapy goals as she does not have expertise in these areas. Tr. at 282. She similarly observed that the 2010-2011 and 20092010 goals were frequently identical, a scenario she believed inappropriate as the child had either achieved or approached mastery in many of these areas. Tr. at 282-288.

The witness noted that . was a sweet child who nevertheless was frequently off task, demonstrated inappropriate and struggled with social interactions. additionally demonstrated difficulty regulating sensory input and additionally utilized a weighted vest and other sensory interventions to calm and relax her body. Tr. at 254-256. This was particularly evident during the 2010-2011 school year when it had been difficult to manage the child’s medications and their side-effects. In addition, . exhibited academic delays in math and English language arts, demonstrating processing and language comprehension issues.

As a result, the child required frequent attention, repetition and reminders. Ms. noted that she had utilized a range of multi-sensory interventions for . to address these deficits, including the use of a smart-board and other technology, picture cues, graphic organizers, highlighters, timers, sensory breaks with fidget tools, and an individualized behavior plan. Tr. at 238-240. Much of her instruction was provided within the context of individual or small group instruction. .’s were additionally addressed by push-in in which the entire class would practice social scenarios, key language and sequencing to predict and refine appropriate behavior. Tr. at 244. During the 2010-2011 school year, additionally received her mandated related services.

Ms. reported that the child had made significant progress during the school year and was ultimately placed successfully in a mainstream first grade math class, albeit one grade below the age appropriate level. Tr. at 247. By February 2011, . was additionally mainstreamed within the same class for English language arts. Tr. at 260. Although the child continued to require educational supports, she remained in these classes until the end of the school year. Beyond this, was mainstreamed for special classes, lunch, recess and student assemblies. Regularly scheduled progress reports are generated for ’s students and standardized testing administered. In sum, the witness opined that . an appropriate placement during the 2010-2011 school year, adding that although had functioned within a mainstream classroom, she had been able to do so only within the context of a 30 minute lesson and adult support. Tr. at 272-275. Similarly, Ms. believed the child would be overwhelmed by a large public school in which 600 children were enrolled. Addressing the issue of educational regression during school breaks and summer, the witness noted that . exhibited “minimal regression where she might need two to three weeks” to review materials previously learned. She noted, moreover, that attending summer school during the previous summer had apparently prevented skills regression in reading, an opinion based upon standardized testing. Tr. at 276-276; Exh. J at 3.

additionally testified on behalf of the Parent. Ms. is a school psychologist at who has provided related service counseling with . for the past four years. She described a child whose contexts. Tr. at 316-317. She observed that . would She additionally observed that . struggled with appropriate reciprocal conversational skills such as remaining on topic. As a result, . was seen individually and as part of a in order to develop effectively and minimize many of the with which she presented. The witness indicated that the child’s through the use of games, modeling, puppetry, computer applications and dolls. Story-boarding and desktop cues were additionally incorporated into the child’s program as was the use .

In addition, . participated in a classroom-wide social skills session twice weekly. Exh. J at 18. During this time, a multi-sensory, multi-media crafts approach was utilized to address such issues as . Tr. at 324.

The witness testified that she had not participated in the CSE convene of March 19, 2010 and opined that the description of was incomplete in that it did not address the child’s ability to follow . Similarly, she did not believe the two counseling goals articulated within the IEP were adequate, adding that had been a key area of intervention during the year and a primary source of difficulty within the classroom. Tr. at 326-327; Exhs. 2, J. Beyond this, Ms. had furnished . with her own behavior plan^[1] as the class-wide plan alone had proven inadequate to meet her needs. Although Ms. acknowledged that the IEP had incorporated some accommodations to meet her management needs, she believed they were inadequate. Similar, she opined that the goals had been inadequately stated. As such, Ms. testified that the IEP, with respect to her own counseling goals, would not serve the child appropriately. Tr. at 342, 345.

The witness opined, in sum, that the had been appropriate for . during the 2010-2011 school year as it afforded the child an opportunity to receive both mainstream and special education services. In this manner, had strong peer models and was able to access the considerable support she required to participate within a mainstream class. Tr. at 331-334. Nevertheless, notwithstanding the child’s areas of strength and progress, Ms. maintained that required an extended year program beyond the mere provision of related services. She testified, “. . . because related services just in isolation over the summer wouldn’t be enough. She really needs to be in an educational type of program in addition to that so she could kind of work on and practice those skills and generalize them to a much larger environment. Just to be with other children especially for her socialization skills. Having the opportunity to be around other kids and continue to be around those positive role models is crucial. She also would need that academic support and continued structure over the summer, otherwise . . . you would see regression if she didn’t have that opportunity.” Tr. at 335.

is the Director of , a position she held during the summer of 2010. She is additionally employed at as a teacher and chairperson of the language arts and social studies department at during the school year. She testified on behalf of the Parent.

The witness described the summer school at , a program including a half day of academic instruction and a half day of and . Related services are integrated throughout the day in both push-in and pull-out models. Ms. testified that she observed several times a day during as she was responsible for leading the morning and afternoon community meeting or closing circle. Tr. at 368. was assigned to a classroom whose students, aged seven through nine, were classified as or . Other than the classroom teacher, a student teacher, assistant teacher and paraprofessional were assigned to a classroom in which twelve children were enrolled. Ms. testified that she had developed the literacy curriculum for the summer and within the framework of various curriculum themes, received Preventing Academic Failure instruction in decoding. This was supplemented by vocabulary instruction and interventions aimed at developing comprehension strategies. The child’s progress towards her goals was assessed during interdisciplinary meetings on a weekly basis. While . continued to receive her related services, Ms. acknowledged that pull-outs would occur during the child’s academic blocks. Tr. at 397. Nevertheless, the IEP does not specify the context in which related services must be furnished. Exh. 2 at 12. Although the child continued to demonstrate significant off-task behaviors, Ms. testified that the School had worked very intensely with the Parent and his medical providers in order to and ( ).

Nevertheless, through the use of a weighted vest, 2 frequent re-direction, 1:1 support, multi-sensory instruction, extended time accommodations, intense daily structure and a communication log, Ms. testified . was able to practice and integrate the she had learned throughout the year. In furtherance thereof, she opined that required the routine of an extended school year in order to prepare her for the beginning of the upcoming school year and to support her generalization from school to community. Similarly, she believed the child would regress with a ten month IEP. Tr. at 380, 392. Nevertheless, the witness acknowledged she had never known . in the absence of a recommended by the occupational therapist to facilitate .’s sensory regulation summer program, nor had she observed the child following school breaks during the year. As a result, she based her conclusions about regression on her own observations and discussions with the child’s teacher. Tr. at 393-394.

is the lower school and additionally testified on behalf of the Parent. As such, she has conferenced with .’s teacher and related service providers on a daily and weekly basis. There are 20 students at .’s site and during the 2010-2011 school year, Ms. Surdi was present three days per week. Tr. at 462. On March 19, 2010 she participated in an IEP meeting for . Ms. testified that, on this occasion as was the CSE’s custom, the child’s teacher was dismissed from the CSE proceedings following her report. Thereafter, Ms. testified that she was not offered a copy of the child’s classroom observation, psycho-educational evaluation, medical report or related service evaluations. Tr. at 440-441. Similarly, the child’s prior IEP was not addressed.

Addressing the IEP itself, Ms. testified that the lack of baseline information precluded a reasonable assessment of ’s instructional grade level. Similarly, she was confused by the rubric utilized by the Department’s IEP. Exh. 2. This was particularly confusing as the child’s promotional standards in math and ELA were inconsistent with the child’s current levels of performance, requiring the student to achieve more than one grade level in the period of one year. Tr. at 446. She similarly noted that the IEP did not indicate the child’s need for an individualized behavior plan although one had been utilized by during the school year. Tr. at 448. Finally, Ms. noted that the child’s academic management needs did not accurately reflect .’s need for sensory accommodations (i.e. weighted and compression vests, seat cushions) although these had been recommended. Tr. at 447.

Most importantly, the witness testified that everyone at the CSE agreed that . required an extended year program. Nevertheless, this was administratively precluded as the child’s recommended program mandated a community school placement. Tr. at 450-451; 460-461. As community schools are closed during the summer months, . was offered a program of related services to be delivered at a District school where the Parents additionally had the option of selecting a six week instructional classroom. The witness testified that the CSE agreed that a District classroom was inappropriate for . as her cognitive levels significantly exceeded the District population. Given the inability to stabilize .’s during the year and the regression exhibited during vacation breaks and week-ends, Ms. testified that the child would regress significantly if she did not have the opportunity to reinforce and retain her classroom management skills during the summer. Tr. at 451-454.

In sum, Ms. testified that the child had made meaningful progress at particularly in her ability to participate in mainstream education, notwithstanding the considerable instructional support offered during these times. Tr. at 458. She additionally noted that the student’s on-task behavior had increased.

Mr ’s father. He provided a brief history of his daughter’ academic and . was initially diagnosed on the , a professional opinion which ultimately changed to with . Since , the child has participated consistently in special education programs. The child is

On March 19, 2010 Mr. participated in a CSE meeting for his daughter. At this time, he confirmed that no general education teacher had participated, nor had he executed a waiver for the same. Tr. at 491. His testimony was largely consistent with that of Cindy Surdi in terms of the lack of documents, evaluations and materials provided during these proceedings. Similarly, he noted that mainstreaming was not discussed. Tr. at 494. Rather, there was considerable discussion about the lack of a summer program for the child. Tr. at 496-497.

Thereafter, the Parent received a copy of the IEP with which he immediately registered his disagreement with Ms. and the Department of Education. Exh. E. In response, he was advised that, due to policy changes, his daughter was no longer eligible for an extended year program. Tr. at 499. Although the Parent provided supplemental materials in which professional opined that . required an extended school year, he received no response. Exhs. F, G.

The Parent noted that, notwithstanding a summer recommendation for related service authorizations, he did not receive them. Rather, he was compelled to seek these services through a District 75 school which the CSE had determined was inappropriate for L.G. By the end of June 2010, the Parent testified that he had received neither a 2010 summer placement nor a 2010-2011 school year placement. Concerned that he would not have a school his daughter, Mr. re-enrolled in s summer and ten month school year programs. Tr. at 503-504; Exhs. O, P.

THE DEPARTMENT OF EDUCATION’S POSITION

The School District maintains that the March 19, 2010 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the School District asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

As an ancillary argument, the School District further contends that the Parent’s actions militate against his equitable entitlement to relief. The Parent’s Position

The Parents assert that the Department of Education stands in abrogation of its duty to provide L.G. with a free and appropriate public education for the 2011-2012 school year in violation of the IDEIA. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEP generated March 19, 2010 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. In furtherance thereof, counsel maintains that the School District’s IEP broadly neglected the student’s educational needs such that the Parent was compelled to unilaterally place his child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with this argument, the Parent contends that constituted an appropriate placement for his daughter during the 2010-2011 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

DISCUSSION

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the Individuals with Disabilities Education Act (IDEA). Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability. 20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

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

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

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

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

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990); see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a threepronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy (Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 19, 2010 IEP reasonably calculated to confer an educational benefit upon L.G. during the 2010-2011 school year?

A. Do procedural defects warrant nullification of the child’s IEP?

Absence of General Education Teacher: At the outset, the Parent asserts that the CSE was not duly composed and, as such, any IEP prepared in the absence of required members must be deemed a nullity. While the special education teacher participating on behalf of Cooke at the March 19, 2010 CSE convene testified that she is dually certified in general and special education, it is unclear whether she has ever worked professionally with a mainstream population. This is particularly so given the specialized nature of Cooke and Ms. Shah’s limited experience, if any, elsewhere. Tr. at 233. Moreover, although the child is mainstreamed during the day, the record is unclear as to what role Ms. Shah plays during these times. In fact, both Chairperson and Ms. testified that mainstreaming was not even discussed during the CSE convene although the child was participating in an integrated program from day one of the 2010-2011 school year. Tr. at 87, 262.

While Education Law §4402(1)(b)(1)(b)3 permits certain members of the CSE to serve in two capacities, the statute does not authorize a special education administrator or a student’s special education teacher to additionally serve as the student’s regular education teacher member of the CSE, particularly one who is, or may be, responsible for implementing a portion of the IEP (Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-080; see Arlington Cent. Sch. Dist., supra; Application of the Board of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03038; Application of a Child with a Disability, Appeal No. 02-080). (Application of a Child with a Disability, Appeal No. 01-083). In the matter at bar, the CSE convened in the absence of any regular education teacher, although individuals with direct instructional knowledge of the child were present. This omission, while significant, does not alone constitute a substantive procedural violation. Nevertheless, it must be considered in aggregate in order to determine whether procedural defects have compromised the integrity of the March 2010 IEP and undermined the child’s right to FAPE.

Failure to provide Parent with a Final Notice of Recommendation: I find additionally that the Department of Education has not met its burden of establishing that a placement recommendation was made. Placement administrator s testimony was The facts at bar preceded the 2012 amendments. largely based upon supposition and assumption. She was unable to explain the absence of a date next to ’s name on any one of the official class lists, although similar student entries included this information. Tr. at 177-178. In fact, the witness described this as a mere “oversight” and acknowledged that the failure to include this information alongside .’s name was a “deviation from normal business practice.” Tr. at 175-179. Similarly, Ms. could not explain ’s Final Notice of Recommendation (hereinafter “FNR”) did not refer to a specific class assignment as the child had presumably already been assigned to E-32. Tr. at 185-186. The Department of Education provided no communication logs or administrative entries indicating that an FNR had ever been sent and, given the multiple ways in which two distinct placement divisions might effectuate a placement offer, the record is startlingly silent as to whether this was done in actuality.

Ms. ’s testimony regarding the issuance of two FNRs is, indeed, incredible. In furtherance thereof, Mr. ’s unusual issuance of an FNR, a one per cent occurrence per Ms. s own testimony, compels the conclusion that placement was, at best, associated with atypical and odd circumstances. Most disturbingly, I find the FNR in which is referenced as the Department’s Chancellor utterly unbelievable and questionably fraudulent. In fact, the document is dated August 3, 2010, long before Chancellor assumed this position and clearly impossibility. Exh. 7. Although Ms. testified that the issuance of two FNRs occurs frequently and may simply reflect a “computer glitch,” she could not explain the apparent “clairvoyance” of the Department. Tr. at 420-421. She testified that the FNRs may have different headers, but had no explanation for the inconsistencies in the Department’s documents. Ultimately, Ms. ’s and Ms. ’s testimony regarding two different class lists and FNRs, document dates which suggest back-dating, record keeping which does not internally reconcile with computer and hard copy files as well as Ms. ’s lack of an ATS roster although one was eventually produced, thoroughly compromises the integrity of the Department’s assertion that a proper placement was, in fact, offered to the Parent. Tr. at 431-435. While the Department has suggested that its responsibility is circumscribed to that of offering a program, independent of any particular site, this position is inconsistent with the tenets of Jose P. et al. v. Gordon Ambach et al., 669 F.2d 865. While the Department cites decisions from non-controlling jurisdictions, the lone case from this Circuit is easily distinguishable and barely on point. In M.R. v. Irvington Union Free Sch. Dist., 719 F. Supp. 2d 302 (S.D.N.Y. 2010), the issue concerned related services in which: (1) the recommendation to enroll . in the developmental reading class was made at a properly convened CSE meeting, (2) the Parent was not merely given an oral offer, rather, .'s class schedule for 2006-07 constituted a clear written record of enrollment in the developmental reading class, (3) the developmental reading class was not merely something the District could have provided, it was in fact provided to in grade, and (4) the District has a reasonable explanation for omitting the developmental reading class from the March IEP: mainstream classes are open to all students, not just those with learning disabilities. Ibid. at 311.

In contrast, in the matter of Bar, the Parent’s letters, fax confirmations and testimony credibly memorialize the Parent’s concern than an appropriate placement had yet been secured. Exhs. D, E. As such, I do not find the Department of Education’s testimony credible nor have they met their burden of providing the Parent with a placement for A mere representation of an available program does not compel a finding of its actual existence, nor does it recognize the fact that a program may be rendered inappropriate by virtue of the actual characteristics of a proposed site, when one is ultimately identified.

2. Were the child’s present levels of performance appropriately incorporated into the March 19, 2010 IEP?

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

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private evaluations, and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]).

I note, at the outset, that the IEP does not reflect consideration of any current standardized cognitive and achievement scores; its content was based exclusively upon Cooke’s subjective progress reports and the participation of ’s special education teacher. There is no indication that current psycho-educational material was reviewed or considered, although an evaluation had been performed in 2008. Exh. I. In conducting an evaluation, the public agency must . . . [u]se a variety of assessment tools . . . including information provided by the parent, that may assist in determining . . . [t]he content of the child’s IEP (W.H. ex rel. B.H. v. Clovis Unified Sch. Dist., No. CV F08-0374, 2009 WL 2959849 (E.D. Cal Sept. 10 2009; 34 C.F.R. § 300.304 (b)(1)(ii)) Exh. i. at 7. Although a “”holistic perspective of the child’s needs” must be considered, the “evaluating agency . . . is compelled to use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (internal quotations omitted).” Specifically, teacher assessments are not included within the accepted methods of evaluation where current functional levels are reported. 34 C.F.R. 300, Appendix A. In the instant matter, this was clearly not done. In fact, neither the child’s current psycho-educational assessment nor social history was addressed by the CSE, nor were they available. Rather, Ms. testified that these documents were “in the file.” Tr. at 82-84.

3. Were the student’s goals substantively appropriate?

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

I find, a priori, that the goals articulated in the March 19, 2010 IEP are inadequate. There are no short-term objectives or benchmarks specifically relating to .’s progress toward any of these goals. Likewise, there are no mastery criteria and no baseline from which to work. All goals refer to boiler-plate 80% achievement criteria based upon universal “teacher observations and class activities.” The absence of this specificity, combined with the failure to include objective estimates of the child’s current levels of performance, leaves no accountability for measurable improvement. Notwithstanding the repeated and subjective provision for “teacher observation and class activities” it is unclear how progress will be quantified objectively or at what grade level . will be assessed.

Ms. ’s testimony indicated that the goals were not discussed in full at the March 19, 2010 CSE meeting, nor was there even a draft for the Parent or ’s personnel to consider. This is consistent with Ms. s testimony acknowledging the failure to provide all telephone participants with relevant documentation. Tr. at 85-86. Rather, Ms. credibly testified that many goals were prepared after the meeting and were duplicative of those articulated in the child’s 2009-2010 IEP, underscoring Ms. s testimony that she had transferred many of the child’s 2010-2011 goals directly from the 2009-2010 IEP. This is particularly evident with the child’s related service goals, goals which were essentially copied onto the IEP without any thought as to the child’s rate of progress. Nevertheless, Ms. testified that the child had substantially achieved many of these academic goals and they were no longer meaningful for the upcoming school year. Tr. at

283. As there was no discussion of these goals during the meeting, Ms. was unable to collaborate on their formulation, a particularly significant deficiency, as she was the only professional present with personal familiarity with the child. Similarly, the IEP’s related service goals, derived directly from s progress notes, are essentially generic statements, absent any sensitivity to the child’s rate of progress.

4. Was an extended school year warranted?

Finally, I find that the testimony and evidence regarding .’s need for an extended school year are uncontroverted. There is no question that the CSE was stymied by the administrative difficulties associated with providing . with an extended school year, notwithstanding the fact that her recommendation calls for a community placement. The regulations provide the following: Eligibility for such program or service is determined by the CSE in accordance with the criteria set forth in 8 NYCRR 200.6(j)(1). The relevant portion of that regulation reads as follows:

(j) Twelve-month special service and/or program. (1) Eligibility of students for 12month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their needs to prevent substantial regression, if they are:

(v) Students…who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

The term "substantial regression" is defined by the Regulations of the Commissioner of Education to mean:

a student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.

Individuals most familiar with the child uniformly testified that required a twelve month program. In fact, both School personnel and the Parent’s neurodevelopmental pediatrician, a neutral and disinterested party, have recommended a twelve month program, citing the likelihood of substantial regression. The Department presented several witnesses, none of whom had any direct familiarity with the child. In compelling testimony, Ms. acknowledged that the IEP’s recommendation of a ten month program, supplemented by an extended year of related services, may have been an error. She testified, “. . . And it really should have said, you know the - the special class . . . . you know that I don’t know why that box is changed, and it should have been written in a special class, for the summer.” Tr. at 77-79; Exh. 2. Ms. was unable to clearly and convincingly defend the Department’s recommendation of a 12 month related services in the absence of a concurrent educational program, basing her determination upon administrative requirements of the SOPM rather than a substantive consideration of the child’s needs. Tr. at 46-47. In contrast, the child’s providers noted that, absent a context for the application, practice and reinforcement of related service skills developed in an isolated fashion outside the classroom, . would be unable to maintain these skills over the summer. It is the Department’s burden to defend the validity of a ten month program; it did not do so. Rather, the testimony of Ms. suggests that this recommendation was erroneous.

Finally, the acknowledged failure to discuss mainstreaming, although the child was already participating in integrated academic classrooms, is a substantive breach of the Department’s duty to the child. Although the child’s participation in these classes was quite limited and entailed a great deal of academic support, the failure to consider mainstreaming opportunities neglected any consideration of the educational continuum and the Department’s obligation to consider the least restrictive environment. Under these circumstances, the integrity of the IEP is substantively compromised by virtue of the CSE’s failure to discuss mainstreaming opportunities and its unsupported recommendation of a ten month school year.

At a minimum, along with (1) the absence of a general education teacher on the IEP team, (2) the failure to appropriately consider the child’s current levels of performance utilizing standardized measures, (3) the failure to develop the child’s goals collaboratively, resulting in inappropriate goals which had essentially already been met at the time of the CSE, (4) the enumeration of goals, in the absence of short term objectives and baseline criteria, (5) the failure to provide the CSE members with relevant evaluative documentation, including the current and , (5) the failure to establish an educational justification for a ten month program, (5) the failure to discuss mainstreaming opportunities and (6) the failure to provide the Parent with a timely placement, there is little doubt that the IEP of March 19, 2010 was defective. More substantively, given all of the above, I must find that the Department of Education stands in abrogation of its duty to provide L.G. with FAPE. Point II: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], an Appropriate School for . during the 2010-2011 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

I find, at the outset, that the academic program offered at Cooke correlates well with the student’s academic needs, as identified in the IEP. Clearly, the School offers a small, structured program in which . can participate with similarly profiled students. Ms. testified that she utilized a multi-modality instructional methodology which included the use of technology to repeat and review, as well as manipulatives and handson materials. Personnel are sensitive to the emotional needs of . and provide a highly supportive environment which enables . to avail herself of sensory breaks as needed.

Moreover, the small group instruction and specialized reading program by instructors trained in Orton Gillingham methodology is entirely appropriate for The student is assessed frequently on both standardized and informal measures. This includes data taken through the Preventing Academic Failure programs as well as DIR measures. The child is additionally provided with a dynamic and ongoing individual behavior plan which can be easily modified to meet her changing needs. Consistent with this, the staff has developed a clear relationship with the child’s developmental pediatrician in an effort to provide behavioral feedback in terms of regulating .’s medications, maintaining sensory regulation and nurturing functional behavior within the classroom. In this manner, has been able to develop, support and integrate the academic, social and life skills necessary to function appropriately within a mainstream classroom. In furtherance thereof, the partnering relationship between and its mainstream host, has provided the mainstream experiences from which can clearly benefit. Ultimately, I find that the child made significant and meaningful improvement at , an opinion expressed by school personnel, in the absence of any controverting Department of Education testimony.

Although the District maintains that is not an appropriate placement, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2010-2011 school year?

It is clear that the Parent’s concerns about ’s program and the need for an extended year program were articulated during the March 19, 2010 CSE meeting. Similarly, the Parent’s credibly testimony indicates that he was concerned about a placement for the upcoming summer and school year. In furtherance thereof, the Parent continued to work with the Department, sharing private medical evaluations, and writing letters requesting placement. Exhs. D,E,F,G. Despite Mr. ’s overtures and efforts to work collaboratively, he received no response from the Department of Education. Indeed, the Parent did not rely upon the District to meet all of his expectations and independently sought outside developmental advice. Exh. G. Beyond this, I note that as a procedural matter the Department is not a party to the contract executed between the Parent and , nor does it have standing to objection to its provisions. Beyond this, this tribunal does not have subject matter jurisdiction over alleged policies and procedures of third party schools procured through unilateral transfers. The Department has failed to establish any basis for its allegation of systematic wrong-doing inherent in the program itself and not directed at any individual child.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3rd 107, 112-114. Under these circumstances, I find no factors which militate against the Parent’s right to equitable relief.

CONCLUSION

The Parents’ request for relief is granted for the 2010-2011 school year. Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, the Department of Education shall make a payment of $48,850.00 to the for tuition expenses incurred by . during the summer of 2010-2011 as well as the ten month 2010-2011school year. This amount shall represent the Department of Education’s total liability pursuant to the Parents’ Due Process Complaint. Dated: June 29, 2012

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, Amended, dated November 11/11/11, 5pages B Impartial Hearing Request, dated 8/29/11, 4 pages C Due Process Response, dated 8/31/11, 3 pages D Letter to with Fax Transmission, dated 8/17/10,

2 pages E Letter to with Fax Transmission, dated 6/21/10, 3 pages F Letter to CSE, undated, 1 page G Letter to NYC DOE, 6/22/10, 2 pages H IEP dated 3/26/09, 20 pages I Evaluation dated 2/11/08, 6 pages J Progress Report, dated 6/2011, 24 pages K Program Description, dated 01/2009,

4 pages L Attendance Detail, 2010-2011, 20 pages M Classroom Schedule, undated, 1 page N Affidavit, dated 4/28/2011, 1 page O Enrollment Contract for the Summer, dated 5/28/2010, 2 pages P Enrollment Contract, 4/26/10, 2 pages Q Form 1040, dated 10/5/11, 2 pages R Progress Report Overview - P.S. 134, 2010 to 2011, 2 pages S Special Education Special Delivery Report, April 30th, 2011, 1 page T Due Process Response- Amended, dated 01/23/12, three pages U Description, undated, 2 pages V Welcome Letter and Curriculum, dated June 2010, 3 pages W Schedule, 2010,^[1] page

DEPARTMENT OF EDUCATION

2 IEP, dated March 19, 2010, 12 pages 3 Department Meeting Minutes, dated March 19, 2010, two pages 4 Department Contact Sheet 5 Skills Based Progress Report 2009 to 2010, November 2009,

16 pages 6 Department Classroom Observation dated December 7th, 2009, one page 7 Department Final Notice of Recommendation dated August 3rd,

2010, one page 8 Class Lists dated August 3, 2010 and August 30, 2010, four pages 9 Class Roster 9/21/10, 1 page 10 Placement Screen 4/27/12, 1 page

IMPARTIAL HEARING OFFICER

i Closing Arguments, 6/18/12, 39 pages ii Memorandum of Law in Closing Argument, undated, 26 pages

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Footnotes

[1] The behavior plan was an informal intervention in which “reminder” or picture cue cards were attached to the child’s desk.

[1] Withdrawn 3/21/12