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: December 8, 2011

January 19, 2012

January 25, 2012

February 15, 2012

Record Close Date: March 9, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2011

Attorney — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2012

Attorney — Student

Parents

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2012

Attorney — Student

Parents

Parents

(via telephone) — Student

Student

CSE- District Representative — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2012

Attorney — Student

Parents

Parents

CSE District Representative — DOE

Administrator Assistant Principal, School (via telephone) — DOE

INTRODUCTION

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(f)(1), concerning the special education of . (“ ”) for the 2011-12 school year. The hearing was held on December 8th 1followed by a per-conference hearing on December 16, 2011. The hearing continued on January 19, 2January 25, and concluded on February 15, 2112. The parties moved to extend the compliance date on various occasions in light of anticipated, testimony, availability of witnesses and for the submission and consideration of closing memorandum. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint request for extension of the compliance dates were granted. The parents were represented by their attorney . The district was represented by . Ms. represented the district at the pre-hearing conference. Attached to the decision are the names and titles of persons who appeared at the hearing and of documents submitted into evidence. The parents brought this hearing to request tuition funding for the at the School for the 2011-12 school year.

BACKGROUND

is a year old student classified with a . He had attended during the 2006-07, 2007-08, and 2008-09 school years. The parents had been informed that did not have an appropriate place for in its school program. He was transferred to the School during the 2009-10 school year and remained there through the 2010-11 school year. A Committee on Special Education (“CSE”) review meeting was held on May 19, 2011 for the 2011-12 school year. They recommended placement in a special education class with staffing ratio with related services of group in the community school. The parent disagreed with the recommendation. A final notice of Recommendation was

1 This date was set aside for pendency but the Parent's Attorney had no evidence to support the “last agreed upon placement” and the hearing was adjourned

2 This was the second date for pendency and again the Parents' Attorney had no evidence. Mr. claimed that the District has the information that he requires. I determined that it would be more practical to proceed with the hearing on the next day. issued on June 14, 2011 and recommended School. (Tr. 35) The parents visited the proposed placement at School and determined that it would not be appropriate. The parents unilaterally placed in the at the School where he was enrolled in the grade. They are requesting funding for the tuition for the 2011-12 school year.

DISTRICT'S CASE

The District was represented by Dr. . It is their position that the Individualized Education Program (“IEP”) dated May 19, 2011 is appropriate and can address 's needs. (Tr. 5) They argue that they offered a free and appropriate public education (“FAPE“) to . In summary the maintain that tuition funding should be denied in its entirety. They presented two witnesses and did not submit any closing statement.

MS. is a nationally certified school who is employed by the Department of Education. She conducts and reviews testing and creates IEPs with the team. She has some “vague memory” of the student . She participated in the meeting held on May 19, 2011. She described the other participants at the meeting to include a parent, a district representative, a general education teacher, and a who runs the , who is also a special education teacher. (Exhibit 1) A parent member was waived. The projected date of initiation of the services would be September 7, 2011 and the student would be in the grade. (Tr. 44-45)

Mr. who works at program, wrote a report on dated May 18, 2011, which was available and discussed at the meeting. It talks about some of 's issues with during class and his need for . (Tr.51) They recommended in a group of and she could not recall any disagreement. (Tr. 47-48)

They recommended extended to double time for testing. The test would be administered in a , questions would be to , would be in any ,a was permitted, and would be read and - . This was based on the consensus of the team. (Tr. 48)

The team reviewed an observation of that was conducted during class at during geometry class on March 4th by a . (Tr. 55 Exhibit 8)

They had a school report card available at the time of the meeting which was reviewed and discussed. (Exhibit 6) (Tr. 58-59) There was a teacher school report which includes a teacher estimate of where the child is, their grade equivalent and the estimated grade . (Exhibit 5) The grade levels are based on the teacher report. (Tr. 61)

She opined that they had sufficient information available to them in order to construct an IEP.

They recommended a special class in a community school with related services with a class ratio of for a month program. (Tr. 62)

She went through the goals on the IEP. Mr. also provided goals which were incorporated into the IEP. (Tr. 52) There was a math calculation computation goal which indicates . The reading goal would address . His should be grade level as well as comprehension skills. The level he was on was determined by his teacher based on reports. She could not recall any objection in terms of a program recommendation of a class. (Tr. 67)

On cross-examination she stated that at the time of the CSE review meeting was attending in the Program which she described as a special class in their school for children with academic delays. (Tr. 69) She could not recall if the parents had brought up any medical conditions. (Tr. 74) She had no knowledge about other than what was in the file. (Tr. 76) She could not remember if at the time of the meeting Mr. was teaching any special education subjects. (Tr. 79) She understood that the was a special class.

She explained that aside from teachers estimates regarding his functional levels, they rated for several areas in reading, writing and math, in categories of , , and so forth. She opined that the criteria they use is their own opinions. (Tr. 83) They developed the goals at the meeting based on the levels of the student. She could not remember the specifics of the development of his goals. (Tr. 84) She did not agree that the goals were overly broad. She explained that there is a State guideline of what a child should know on a given grade. They were asking that he a level. They used the teachers estimates to determine what level was on in various subjects. (Tr. 89-91) At the time of the meeting he was grades based on the teacher estimates. She described his reading as . She was not sure about specifics such as , or doing , or - questions. (Tr. 90-92)

She was unable to compare what was recommended with what was receiving at the time of the CSE review. (Tr. 97)

They considered other programs at the time of the review. They considered a program of integrated co-team teaching but they did not think it was sufficient to meet his needs. They considered a more restrictive setting as well.

She described this meeting as an annual. (Tr. 100)

is an assistant principal in Special Education and has been employed at School for years. It is a comprehensive school with about students. Approximately hundred students have IEPs. They have several programs for students with disabilities. They have related services including , , , , and and . They are provided within the school building during the day. In some cases, students who are in general education with a lot of services, take them outside of school. All of the providers are licensed and or certified in their respective areas. They were able to meet the mandate for the 2011-12 school of all the students. (Tr. 271-274) They have a Special Education Teacher Support Services (“SETSS”) program with a maximum number of students which is taught by a licensed certified Special Education teacher. They have a School Assessment Team on the staff composed of , paras that assist them, a school ,a ,a and herself. She described the as someone who works with every student with an IEP upon their arrival at school. They work with them for years, on career interests and what would be best for them when they leave school such as or job training. She works with the Special Education teachers yearly and the students participate in this process as well. The parents are invited to meetings during the year. They do have a program. There are never more than students, there is no classroom para, but some of the students have their own paras in the room. They are taught by licensed teachers. They have teachers in every subject for the Special Department of education. (Tr. 275-278)

If a student transferred in grade, they determine the particular class by looking at the IEP to determine the program and services they require. They also do a transcript review and they would be placed with all graders. The classes would be based upon the classes that the student had already taken in conjunction with the IEP to meet graduation requirements.

They have students come into the school all year long. They meet with the and who works with students with who works with their compliance . They make sure they have the program with related services and course and devise a program. In the the students go to different teachers for each subject.

She compared the information on 's IEP to that of other students. Other students have a classification of . They would have been able to meet his mandate of

They would have been able to provide the accommodations on her IEP for all classroom exams and and as well. There are other students in the class with similar test accommodations.

There are other students in her class reading on the same level as . She would have been able to place him in class with students reading on grade level. In terms of mathematics she would have been able to place him with student who were similarly functioning as .

She described the class. They are organized into different at . They have for students with disabilities. The diploma bound is the where the fall into history. There are hours of the school day. The school assessment team gets involved in reviewing the students performance. They evaluate students with IEP's every year or when a child shows risk tendencies to see if they are getting enough support.

Mainstreaming for a student in a environment is done throughout the year. They make program changes whenever necessary with approval from the parent. She testified that she has other students who are working on similar areas as indicated by 's goals. She opined that the school could address the goals in 's IEP. The students may participate in many different in the school. There are also and . In summary, she opined that the school could implement 's IEP and they could provide a FAPE. (Tr. 278-309)

On cross-examination she acknowledged that there was another assistant principal in June 2011 in Special Education. Other than a reference to in school there was nothing else about mainstreaming in the IEP. She explained that they are bound to follow an IEP of a student but if the parents thought based on the transcript from the school that the student would benefit from mainstreaming she would revise the annual review. When they receive IEPs they also typically receive transcripts.

They have anywhere from three classes in the grade for all of the core subjects. She is familiar with all three classes for math and reading on the grade level, but she did not have the class roster. The classification of the majority of the students are but some are other . There may be one of more students who have behavior intervention plans.

She went through the goals and opined that they could be implemented but they always assess every child that is coming into the classroom in every area with a diagnostic test.

They send home progress reports from the IEP either through email, phone or letter. There are also daily progress on their online grade book. There are report cards as well as progress reports. The report cards indicates grades and comments about how the grade was determined. They also address the student's . The IEP progress report directly aligns with the goals of the IEP which can be measured through a variety of tests.

PARENT'S CASE

The parents were represented by their attorney Mr. . It is their position that the IEP dated May 19, 2011 was substantially and procedurally inappropriate. They claim that the IEP team was not duly constituted and the team did not develop appropriate academic goals and objectives. They further claim that the recommended program is substantively inappropriate because it does not meet's needs.

It is their position that the student's placement in the School is appropriate and has resulted in 's making progress during the 2011-12 school year. (Tr. 7-8) In summary it is their position that tuition funding should be granted in its entirety.

MR. is a school employed at School and is also the coordinator at the Program. He all students. He described the program as a program, students, teacher and paraprofessional. The students have and the goal for all students is to go to . The program, the program and the program are programs housed within the School. It is a mainstream school and is an School. (Tr.112-115)

has been in the program since School. He had been in the program for a or and they determined that it was for him. He was put into the program where he has remained. He is a in the grade. He described the program as a program and they use the same material that the mainstream teachers are teaching. Resource room reading and math are on his schedule. The resource room is given on a daily basis and is a regular period through the day for minutes. (Exhibit D) It is given in addition to the regular reading class and the regular math class. is in the same classroom with the same students. They go from class to class together except he is mainstreamed for class where he does not have a special education teacher. This is his mainstream class. (Tr. 114-122)

has with and . He was told by 's father that he was with . He has trying to . He has to down by . He has with his , and . He does not but he is if he down. He is a reader but he that is . His teachers use different strategies, they tell him to and questions. The resource room classes goes into more depth with study skills. Word retrieval is a for and the reading and math class they go over vocabulary words. He explained that the reading and math class teaches him skills that they can use for all their classes. There is a lot of skills, , skills. Math is a for . In English he is doing . He is going to go this quarter because of the and more material to study. He is the class. He has taken which he has . He has a with other students.(Tr. 126-134)

He participated in the annual review of May 19, 2011. He gave them a teacher report that had a check-off list with and for and with teacher estimates. He sent a report and initiated group because would be attending his mainstream class. The CSE asked them for a report on how he was doing with the estimated academic functioning levels. They do not do evaluations of their students with formalized educational testings. They developed goals. He testified that he talked about 's and but did not see the goals until he had the IEP. They were not discussed at the meeting. (Tr. 135-141)

He opined that needs to be in a setting of . The department can only offer a . In addition their students have academic needs and not needs. He talked to the team about 's . He talked about how the reading and math class helps learn skills and strategies that he can put into other classes. They review work and show the students how to use the strategies. (Tr. 148) They talked about the extra person in the room who is the teacher's assistant. (T141-148)

On cross-examination he stated that he is the coordinator of the Program which is a program. The school provided the as well as the test modifications that were indicated on the IEP. He supplied a teacher report and a report. He agreed that 's with , skills, and are under pretty much the same term. (Tr 162) He did not teach classes in the 2010-2011 school year. There are about to students in the program. He participates in all the students IEP meetings. He is the . He was not asked to produce the classroom teacher. He could not recall if he received a specific letter reference for a review. He explained to me that the parents get a letter for the CSE meeting and the Board of Education sends him a copy. (Tr. 174)

They have a policy with to . There are but usually . All the students are subject to the same rules but they take the disability into account and involve the counselor with the discipline office. All the students in the program are receiving

He recalled the father bringing up an issue with respect to testing and years.

On he stated that the teachers use tests and assignments in order to provide the teachers estimates. (Tr. 182)

On re-cross-examination he explained that in order to determine if a student is qualified for the program they look at testing and teaching recommendations, and report cards. He acknowledged that he is not really the person who would decide if a person is accepted into the program. The students could be , or or other and fit in the program. (Tr. 188-192)

is an expert in the areas of school . (Tr. 194) He did not attend 's CSE meeting. He explained that the assumption is that the page on an IEP that discusses academic performance and learning characteristics is what is the basis in significant part for the program recommendation. He opined that 's IEP does not have any information regarding his cognitive abilities. He opined that the CSE could not make a program recommendation without that information because his level of cognitive ability is an important factor to be considered in a program recommendation. He explained that in general, scores from cognitive measures would be reported in the IEP. He did not see any indication of 's scores in his IEP. He opined that the CSE cannot develop appropriate goals and objectives without apparent information regarding the child's cognitive abilities. He explained that this would be important in order to decide instructional modifications. (Tr.200-204)

He described the goals as “vague” and he opined that they were not sufficiently measurable. He explained that there is nothing specifically defined to be measured. He explained that the reference of improving “ level” is an approximation because the grade level was determined based on teacher estimates. He explained that there is no clear starting point. He explained that typically an IEP defines the goals in very specific terms. An appropriate baseline would be determined through standardized testing. The two most common instruments would be the edition and the . He opined that based on the IEP, the team did not have sufficient information to make a program recommendation for . He did not think that the evaluation is an appropriate assessment of 's cognitive and academic functioning skills. He explained that they should have used age-based scores. (Tr. 209-215)

On cross-examination he acknowledged that he did not evaluate and has never met . He acknowledged a review of skills in the area of reading, writing and math and grades and a teacher report and classroom observation were reviewed, in order to make a determination regarding present performance in the IEP. He acknowledged that the tests he uses are not used by every . He agreed that he clinician has a certain latitude in terms of what they use. The last time he constructed an IEP was probably during the 2003-04 school year. (Tr. 219-221)

He opined that teacher estimates should be considered is terms of the student's actual reading and math abilities but that there should also be an objective quantitative assessment method used. (Tr. 226) He acknowledged that if a teacher is doing his or her job properly they assess the students when they come into the program

He explained that generally are done every years. (Tr. 237) He explained that if a evaluation was conducted in 2008 then the next would be 2011. He testified that the evaluation does not indicate that this was for a . He opined that is not included in the test and it would have been appropriate to assess those areas. (Tr. 215)

On re-cross he stated that the evaluation was done in 2009 and the one prior was conducted in 2006. He agreed that the educational evaluation is consistent with the of .

He acknowledged that he would like more information than the IEP and the to make a determination of whether the student needs a special class. (Tr.

251) He acknowledged that he did not have enough information to determine if required

Based on the information he had the thought the accommodations are consistent with the data. He explained that he would prefer more information.

On re-direct he stated that he would want more information to determine if the accommodations were appropriate.

MR. is 's father. was referred for special education services in 2004. He attended a special education program in a public school during grade and . He was still having in that class setting and lost a lot of . At the end of that year he was reading at a level. They took him to a who stated he had a problem with and meaning he . He was advised that had a and he gave him a of . A evaluation was done in 2006. The Board recommended transferring him to which is a New York State approved school with a ratio of . He grade and attended the school for years. In 's grade the school told them that they could not accommodate him in the school program. They were told to look for a school that specialized with kids with . They continued to meet with the CSE who continued to recommend the for the and grade. They explored different options and they chose . The Department had recommended a special class. had told them that had and was not ready to be in a regular school. He required a specialized school and and gets . He completed and at School.

He participated in the annual IEP meeting on May 19th. There was a District representative, a general education teacher, school , and a special education teacher from who was 's They discussed the results from teachers reports. They discussed his and they recommended his to be to help him deal with the of school. There were no evaluations performed prior to the review. They recommended a public school with the ratio of . There had been a report done in 2009 but it was not mentioned at the meeting. The only report discussed was the report from school. There was no discussion of academic goals at the meeting. He did not see the goals until he received the IEP in the mail. They had recommended a special education class in a community school but they did not say a specific ratio. However, he basically said there would be no change to the previous IEPs. He did not agree with the recommendation because at the time attended a school with a ratio of and is showing progress. In the class he attends all the kids have and there are no .

He attends a resource room which helps him with and . He goes to it every day. He is doing much better in class. He expressed his concerns at the meeting. He expressed that is not ready to go into a regular class because he does not the sufficient skills. He had requested that they keep him in a similar program to the one he was attending with the same ratio of kids in the classroom. They advised him that they were unable to recommend a program in the public school with that ratio and they could not recommend a school.

He went to visit the recommended school of and spoke with the assistant principal. After he reviewed his IEP and asked him questions he told him that the school would not be able to accommodate him at the same level.

They signed a tuition agreement with School for the 2011-11 school year for the amount of $ He has not made any payments toward the tuition. He receives monthly bills. His income is around $ His wife is home with . He acknowledged that he did not look at any public schools. (Tr. 381-382)

On Cross examination he explained that after the let him know that would not fit in he visited and . He was looking for schools that had programs specifically for students with .

was in grade at the time of the evaluation on September 10, 2009. He had brought for the evaluation and met with a and participated in a history assessment as well. (Exhibit 7) He provided the information. There was no particular or issues indicated. There was no mention of .

He was unaware of the classifications of the students at .

He did not have a clear recollection of the review meeting that took place in May 2011. They recommended the initiation of group because of 's . They had also conducted a classroom observation and they observed him being in the classroom. He agreed that would be a good idea. The team discussed how acts and his behavior. The meeting lasted about or minutes. He did not indicate to the team that had been attending for a number of years already. He could not recall if he told the team that he was interested in 's attending for the 2011-12 school year. He could not recall if Mr. had any disagreements with the IEP.

He received the IEP and final notice of recommendation for the School some time in June. He was not a hundred per cent sure of who he spoke with but it was a man. He did not visit any classrooms. He gave him the history of . He did not discuss any goals with him. He estimated that he spent about an hour with the gentleman. He asked if they had the same kind of services as provides and if he could speak with the teacher who would be in the classroom. (Tr. 400-401) He did not ask if services were available. He was told that there were special education teachers. He did not ask him about any of the goals. There were no classes available because it was summer time and he did not visit the school again in September. He did not show the gentleman any other documents other than the IEP. (Tr. 403)

He reiterated that he had not paid any tuition and has not thrown him out. He did not pay a registration fee. He stated that this is his debt. He had paid a $ security deposit for 2009.

In response to my question he stated that he signed a contract without a date. He acknowledged that the gentleman indicated that he could accommodate the IEP that was written by the Department of Education, but he could not give him the level of services he was presently receiving.

On re-direct he elaborated about what he spoke to the gentleman about. He told him about the ratio in the class. They have two teachers in the classroom with students. There is a resource room to help deal with the rest of the class. He was told that they do not have a resource room to specifically work with the students in that manner. (Tr. 156)

He explained that when was leaving he did look at the public school recommended by the Department which was a .

On re-cross he agreed that school did have a resource room where kids can go and ask for help but they do not have it as a classroom.

FINDINGS OF FACT AND DECISION

It is well-established that a district may be required to pay for educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA also represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted)

The DOE is required to provide a FAPE in the least restrictive environment (“LRE”). 20 U.S.C. §1412(a)(1) and (a)(5).

The DOE must show that students recommended for placement in special classes must be suitably grouped for instructional purposes, with other students having similar individual needs (8 NYCRR 200.6[a][3], 200.1[ww][3][1], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 06-035. The similarity of abilities and needs may be demonstrated with a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class. (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 02-045).

General and nonspecific assertions that the student would be appropriately grouped in the recommended program is insufficient to meet the school district's burden. (See Application of a Child with a Disability, Appeal No. 02-045)

In this case the CSE meeting met on May 19, 2011. They recommended a special class in a community school with related services with a class ratio of 15:1 for a ten month program. (Tr. 62)The District put on one witness who was at the meeting but had never met . They had a report on dated May 18, 2011, a classroom observation, a report card, and a school report including teacher estimates of 's functioning levels. There had been a report performed on September 10, 2009 which was not discussed at the meeting. The parent testified that the meeting had only lasted about twenty minutes and that none of the goals had been discussed during the meeting. He testified that the first time he had seen the goals was upon receipt of the IEP. The coordinator of the Program, Mr. also testified that the IEP goals were not discussed at the meeting and did not see the goals until he received the IEP. Ms. testified that the goals were discussed at the meeting but could not recall any specifics. I find that even if the goals may have been brought up at the meeting, in such a short meeting, I find that they were not given proper consideration. There was testimony from 's father that he was told at the meeting that the IEP would provide the same services as prior years. The team had to have been aware that in prior years the IEP program and placement had been rejected. I find that there is a lack of evidence that the team considered what parts of the IEP had been inappropriate in the past and what could be implemented to be appropriate for the coming year. I find that the District did not give serious consideration to what was receiving in his present setting, what he still may require and what changes they could make. The District's witness could not recall any disagreement with the recommendation but the parent testified that at the meeting he expressed concerns about being in a class with students who have behavioral issues. The testimony at the hearing was not that specific with respect to the other children in the recommended class. Upon request of the parent's attorney, I instructed the DOE to provide a class profile with the student's genders, ages and functional performance in math and writing. This was never provided and I find there is a lack of information about the other students. 's father also expressed his desire to have receive the same level of support from the resources room which had helped him in reading and writing. It is true that the District is not required to provide the same level of services, however, it is unclear whether the team considered what services he had been receiving at the school he had attended. 's father testified that when he visited the school he was told that they could not provide the same level of services he had been receiving at the school.

There is no evidence that any mainstream opportunities were considered for at the time of the meeting. Nothing points out more clearly that could have been partially mainstreamed than the fact that he does attend a mainstream history class at the school he is attending. I find that a self contained class without any specific mainstream opportunities is not appropriate.

The IEP contained current estimates of instructional levels for in his various subject areas but did not include any formal test scores indicating his cognitive levels. The progress reports contained such conclusions as “good”. There was testimony from an expert that goals and objectives could not be properly written without a more appropriate description of 's level of functioning.

Although a DOE does not have to maximize a child's potential I find that in this case the DOE has failed to provide a meaningful education. I find that the lack of current functioning levels and adequate goals, lack of mainstreaming opportunities resulted in an appropriate IEP. In addition I find that there is a lack of information regarding the students in the proposed class. I find that the DOE failed to meet their burden under Prong one both on procedural and substantive grounds.

With respect to prong 2, the parents must show that the educational program met 's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that the program was properly designed for to progress and is not required to show that in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

With respect to the appropriateness of a school placement, “[u]ultimately, 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).

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).

The Program is a program designed for school students with or intelligence. attends a special education class which provides a teacher and a para for support. had already been successful for and grade in this environment. He is taught the same classes as in mainstream school classes but at a with more individual attention. The resource room is used daily and provides with strategies that he can use in all of his classes. is attending a mainstream class for history. The evidence is undisputed that has made progress during his years at the Program. During the 2011-12 school year he has not only improved academically but there was testimony as to his improvement in his self-esteem. I find that the program unilaterally selected by his parents is appropriate for . I find that the parent met their burden under prong two.

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

The mere fact that parents may enroll their child in a school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a school prior to the date of the relevant CSE meeting).

In this case the parents attended the CSE meeting and visited the recommended program. They expressed their concerns at the CSE meeting and notified the District of their disagreement in writing. It is true that the 's father acknowledged that he did not look at other public schools for the 2011-12 school year, however, when he had initially been told that the could not accommodate he had looked at public schools. I find that in this instance the parent already had a history with the School where had made progress and it was not their obligation to find another public school that perhaps could be appropriate. Had the District offered another public school the parents would have had to consider that setting. The fact that the parents may have preferred sending back to the program does not remove the District's obligation to provide him with a FAPE. I find there is nothing that would bar the parents from relief.

The parents submitted evidence with respect to their financing. I find that based on the testimony and tax returns (Exhibit H) they were not able and are not able to pay the tuition. I find that the evidence is undisputed that they are responsible for the debt. I find that any tuition owed should be directly funded to the school.

In summary I find that the District failed to offer a a FAPE for the 2011-12 school year, the program at is an appropriate placement and the equities favor the parent. I find that the parent is entitled to direct funding for the 2011-12 school year at the program at .

ORDER

The District shall pay directly to the school tuition owed for for the 2011-12 school year at the Program at School in the amount of $ upon proof of contract and attendance. Dated: March 21, 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 ON JANUARY 25, 2012

PARENT

A Hearing Request, 8/25, 3 pages B Program Description, undated, 2 pages C Report, undated, 1 page D Class Schedule, undated, 2 pages E Past School Year Grade Reports, undated, 1 page F Tuition Agreement, 11/17/11, 2 pages G . of Dr. , undated, 3 pages H Tax Return 2010, 9 pages I Post Hearing Brief, 3/9/12, 27 pages

DEPARTMENT OF EDUCATION

1 IEP, 5/19/11, 17 pages 2 Social History, 9/10/09, 2 pages 3 Evaluation, 9/10/09, 6 pages 4 School Update, 5/18/11, 1 page 5 School Teacher Report, Undated; fax dated 5/11/11, 1 page 6 School Report Card, 2/10 - 2/11, 1 page 7 Declination of Parent Member, 5/19/11, 1 page 8 Observation, 3/4/11, 2 pages 9 CSE Minutes, 5/19/11, 1 page 10 Final Notice of Recommendation, 6/14/11, 1 page