New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 7, 2011

November 14, 2011

January 6, 2012

February 7, 2012

March 12, 2012

March 13, 2012

Actual Record Closed Date: April 12, 2012

Hearing Officer: Lorraine M. Ferrigno, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2011

ESQ., Attorney for Parents — Student

Chairperson's Designee, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011

Attorney — Student

Father — Student

District Representative — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2012

Attorney — Student

Father — Student

Chairperson’s Designee — DOE

Assistant Principal — DOE

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

ESQ., Attorney — Student

Parents

Chairperson Designee — DOE

Assistant Principal (Via Telephone) — DOE

CTT Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2012

Attorney — Student

Parents

RONALD STEWART, York Prep Headmaster (Via telephone) — Student

DOE Chairperson's Designee — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2012

Attorney — Student

Teacher (Via Telephone) — Student

Parents

Chairperson's Designee — DOE

INTRODUCTION

This hearing was requested on September 8, 2011, by , Educational Advocate for Parent of Student . The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA) §§ 1415(f) & 1412 (a) (10)(C), to obtain reimbursement for the placement of the Student by Parent in a non-approved private school during the 2011-2012 school year and special education transportation. I was appointed to hear the matter by the Department of Education of the City of New York [Hereinafter referred to as “the District”.] on September 9, 2011, and a hearing was scheduled for November 7, 2011.

The hearing commenced on Monday November 7, 2011, at 11:30 in the a.m. pursuant to the IDEIA 20 U.S.C. §1415 (f). The Hearing continued on November 7, 2011, November 14, 2011, January 6, 2012, February 7, 2012, March 12, 2012, and March 13, 2012. Appended to the record are lists of the persons in attendance at the hearing and the Documents received into evidence, including Hearing Officer Exhibits.

BACKGROUND

Student is . Student is classified as , and this classification is not in dispute. The District developed an Individualized Education Program (IEP) for the 2011-2012 school year on May 18, 2011. Parents both participated in the meeting. Student has deficits including ), . A Final Notice of Recommendation (FNR) dated July 11, 2011, recommending University Neighborhood High School was sent to Parents the IEP recommended co-teaching, with a Special Education Teacher, for all of Student’s core subjects. Services of counseling and occupational therapy were also recommended on the IEP. Student did not attend the public placement. Parents bring their Request for an Impartial Hearing based on the May 18, 2011 IEP and July 11, 2011 FNR. The District issued a second IEP on October 6, 2011 and a subsequent FNR.

HEARING TESTIMONY

Appearing for the Student were: , Esq. Attorney for Parent, , Parent, Headmaster (via telephone) and , Teacher at (via telephone).

Appearing for the District were , Chairperson’s Designee, , District Representative, , School Social Worker (via telephone), (In person and continued via telephone), , CTT 1Teacher (Via Telephone), was duly sworn, stated that she was alone in a room and testified via telephone. (Tr. at p. 44). Ms. is employed by the District as a school , and works at CSE . The witness has a master's degree in education and advanced certificate in school psychology, and is a New York State certified school psychologist.

Ms. testified that she headed the Committee on Special Education (CSE) review and wrote the May 18, 2011 IEP for Student. (Tr. I p. 47, D's Ex. 4). This particular IEP was generated for the school year 2011 – 2012. The witness testified that present at the IEP meeting were Student's father (in person), mother (via telephone), Voe (phonetic), Dr. the director of the (via telephone) , special education teacher and a parent advocate with Associates. (Tr. pp. 52 – 53, D's Ex. 4). Ms. , the special education teacher forgot to sign on the line that indicates special education teacher. (Tr. p. 53). Ms. testified that she has conducted approximately 100 IEP meetings with . (Id.).

Ms. testified that in developing the IEP she used evaluation, the evaluation, Student’s report card, his evaluation, a social history, a vocational assessment, and also reviewed Student's clinical file. (Tr. p. 55). She stated that she had all the information she needed when she convened the meeting. (Tr. p. 65). The witness identified Student's weaknesses as , , history of in terms of and that he tends to work slowly. Additionally, she noted that Student's and he had skills. (Tr. p. 57). Ms. Amber testified that in order to address these areas of deficits in the IEP, the IEP recommended the following: to address executive skills the IEP gave him organizational goals in terms of organizing his materials, planning his time, using his planner, and consistently taking notes, for the attention deficit the IEP gave him goals to learn to monitor when he's off task,

1 CTT and ICT both mean co-teaching and are used interchangeably by the witnesses through their testimony. management needs in terms of preferential seating with directions, repetitions, sensory visual presentations, checking for errors in his work, to address his slow work pace the IEP gave him a calculator, extended time to complete tasks, testing recommendations to address decoding issues, decoding goals for multi-– syllabic words and for increasing fluency, goals for writing was set forth and management needs also addressed in terms of graphic organizer, word banks, editing checklists and pre-writing conferences. (Tr. p. 58). Ms. testified that that Parents participated in the IEP meeting and asked that counseling for Student be maintained because they were concerned about transition with another school. (Tr. p. 59).

The IEP recommended integrated co-teaching so Student would have a special education teacher, a second teacher in the classroom to help him to modify the curriculum and to address the management needs in the classroom. The witness did not recall that the Parents took a position on this recommendation but did recall that the advocate stated she was concerned about the possible class-size. (Tr. pp. 60 – 61).

Ms. testified that at the time of the IEP review meeting she had, and used, a speech and language evaluation from 2010. That evaluation did not recommend speech services (Tr. pp. 61 – 62, P's Ex. 10). The witness further testified that because there were concerns with vocabulary development, the team requested another , which was performed and the outcome was that was not recommended. (Tr. p. 62). Ms. Amber testified that she believed that she had an up-to-date reports at the May 2011 CSE meeting but, because the school ( ) mentioned issues with vocabulary, she decided to get "clarifying information". (Tr. p. 66).

was duly sworn and testified in person on January 6, 2012, for the limited purpose of the production of the subpoenaed class profile, and her full testimony was continued via telephone on February 7, 2012. Tr. pp. 116 – 117).^[2] Ms. is currently the Assistant Principal at where she supervises math, science, special education and teaches one class. As part of her duties in overseeing the special education department, the witness deals with all of the students IEPs and is involved in the programming for those students, calculating how many CTT classes the school would need on a particular grade level. (Tr. p. 143). Ms. has worked for the District for 19 years. She was a teacher for 13 years, a coach for three years an assistant principal in the middle school for two years and for the last three years worked for a network and became the assistant principal of (Tr. pp. 117 – 119 is a mainstream school that contains a special education program which the witness supervises. (Tr. P. 120).

The witness testified that the high school has a full-time counselor and a full-time speech therapist, and that if a Student entered the school in of September 2011 the school would have been able to provide . Furthermore if the Student entered the school in September 2011 the school would have been able to provide services. (Tr. pp. 150154). Ms. testified that the average class-size in the school is 25 students and that in the current school year, 2011–2012 there are CTT classes in English, math and social studies. The witness further testified that there would not be more than 12 students with an IEP in any classroom at any time. (Tr. p. 164).

was duly sworn stated that she was alone in a room, and testified via telephone (Tr. p. 175). The witness is a special education teacher at School who is currently obtaining a Master’s degree at and holds a transitional B license. (Tr. p. 178).

Ms. explained that she would have been Student's ICT teacher for the 2011 – 2012 school year because in the 10th grade there are two co-teaching classes in Global Studies and to co-teaching classes in English and she was the special education teacher in all four of those classes. (Tr. p. 181). She testified that if Student was in her class she would have reviewed his IEP at the beginning of the year to see if there any special recommendations or accommodations needed. She would meet with him, as she did her other students to determine if there were preferential settings or anything that he needed to do his best in her class. (Tr. p. 182). Ms. testified that the present levels of achievement were important because she would want to know where her student was starting especially if she met student before, to get a range of levels that you're going to be handling and how to approach the class, and that review of a student’s goals was important because, they were written for reason and a teacher wants to make sure that a student achieves their goals, because they are an important thing to the student, their Parents and previous educators. (Tr. pp. 222 – 223).^[3] The witness identified Student's academic strengths and weaknesses, and provided examples of how she would have implemented the IEP. (Tr. pp. 183 – 184).

In terms of Student's academic needs she would have provided preferential seating, if the Student needed it, provided multi-step directions, repeated information and given steps to break information down into smaller chunks. In her classroom information is always provided in multiple ways, information up on the board is also explain verbally and as work is being done information is repeated as necessary, graphic organizers are also used in all of her classes. (Tr. PP. 184 – 185). In addition, the witness testified that Student could be given extra time to complete tasks, and given even more time after school or at lunch. Many students need refocus and redirection which would be provided to Student as well. (Id.). Ms. testified as to how she would have implemented Student's annual goals in reading, decoding, vocabulary and writing ( Tr. pp.187 – 192).

Ms. testified that in September of 2011 she had approximately 25 to 30 students in each of her English (ELA) classes with approximately 10 students IEP's in one class in approximately 9 students with IEP’s in the other class, and that the majority of the students that are special education in those classrooms are classified as learning disabled. (Tr. pp. 195 – 196). The witness testified that the majority of students in her classes for this academic school year have similar goals on their IEPs and that Student, based on his present levels of performance would fall within the average range academically of the class, including the general education students. (Tr. p. 197). Compared socially with the rest of the students in the class, Student was on par with the majority of other students . The high school has a program called , and Internet-based program use of schoolwide level whereby students and parents can check online for notifications, assignments, grades and comments. (Tr. pp. 198 – 199). The witness testified that she has opportunities to collaborate with Student's regular education teachers and related service providers. (Tr.pp. 200 – 201).

Ms. stated that her program and her expertise as a teacher would be appropriate to addressed the needs of this Student as they were described on the IEP, and further that they would be "a nice fit". (Tr.pp. 204 – 205).

, father was duly sworn (Tr. p. 226). Mr. testified that his son was first classified during the as . (Tr. p. 230). Parent testified that Student first entered Preparatory during the , and that he chose this school for a number of reasons, including the fact that 30% of the students there have an IEP, they have a program that supports his son and he gets assistance during the day. Also is a small, structured, inclusion type of school which groups together with other students that have the same skill sets. He testified that his son is very , and it is an amazing learning environment for him. (Tr. p. 233). The Parent also feels that does an amazing job in terms of communicating with parents that he is constantly in communication with Student's teacher and that the school has a program called Edline. Edline is an Internet-based program whereby teachers students and parents can communicate, get homework assignments and keep track of information. (Tr.pp. 234 – 235).

Mr. testified that in general, the classroom teachers at have addressed his son’s specific educational needs, based on the fact that Student has done progressively well, and is now self-advocating for himself has more confidence and that the school has a live techniques whereby they employ more than once skill in one class. (Tr. pp. 236237). Student is currently taking , Concerta 45. Student sees a private psychiatrist, Dr. for the past three years. (Tr. p. 238). Parent testified that has a counselor who comes in and that Student has seen the counselor before.

Parent testified that he participated in the May 18, 2011, IEP meeting. (Tr. p. 242). He stated that the majority of the time at the meeting was spent on the speech reports that were performed earlier by the board and that they were to reconvene in order to make additional assessments. Parent testified that the CSE committee stated that the speech and language report was not accurate. Student had a history of language issues and the speech and language report stated that he had superior communication skills therefore everybody at the table agreed it could not be correct. (Tr. p. 243). Mr. Velez testified that a speech and language evaluation was performed for Student in early June of 2011, an assessment was performed for Student approximately mid-August of 2011. (Tr. p. 244). Mr. testified that he received the FNR in July of 2011, that recommended (P's exhibit G). Mr. stated that he made efforts to visit the University Neighborhood High School placement by calling constantly whereby he never received a response. In addition, Mr. wrote a letter to the CSE indicating that he could not reach the school and was unable to see the school or even talk to an administrator. (P's exhibit H) this letter was sent on July 18, 2011 (Tr. p. 248). The witness testified that he also sent another letter on August 18, 2011 to the CSE regarding his inability to visit University neighborhood high school. (Tr.pp.247-249, P's exhibit J). Mr. was able to visit the on or about September 20, 2011. Parent was not able to enter any of the CTT classrooms but that these classrooms looked larger than 25 students (Tr. p. 289).

Over the objections of the District, Parent testified that he participated in a second CSE meeting on September 22, 2011, and that he received a second and at FNR dated November 4, 2011 and received in December 2011, with the recommend placement for the (Tr. pp.254 – 255). Mr. testified that he made numerous calls in an attempt to visit the and that he was always transferred into another voicemail. (Tr. P. 257).

Mr. testified that there was a second evaluation performed on Student on June 8, 2011 and were not recommended according to that second evaluation. (Tr. p. 265, P's exhibit “O”). At the IEP meeting in September of 2011 a recommendation for speech and language services was made on the IEP, even though the services were not recommended by the evaluation on June 8, 2011. (Tr. p. to 97).

Mr. reviewed each of the goals on the May 18, 2011 IEP (T's Exhibit 4), and testified that he felt that the goals, except one, reflected his son's unique educational, social and emotional needs. (Tr.pp. 272 – 284). Mr. testified that short-term goal objectives for writing contained on page 4 – 11, which contained in accuracy goal of 80%, that he would like to see a 90% accuracy there, but that overall, these short term objectives do reflect the needs of his son. Although the witness believed that math level was an accurate level for his son, the IEP under short-term objectives for math discusses reading in terms of algebraic problems and specifically his son is currently in geometry. (Tr. pp. 281-282). Mr. also testified that he recalled participating in the part of the meeting where an appropriate transition plan for Student was discussed. (Tr. p. 287).

was duly sworn, stated that he was alone in a room, and testified via telephone (Tr. p. 308). Mr. has three degrees in law including undergraduate and graduate studies. He has been the or 43 years. (Tr. p. 309). Mr stated that the original mission of the school was to provide a fairly traditional, structured college preparatory school. (Tr. p. 309). In 1997, the was formalized at the school in order to provide an inclusion environment for students who had learning disabilities to function in a mainstream school. program have an extended school day they meet both before and after school in a group with a . Twice a week the Jumpstart students are pulled out of the nonacademic class for double period to meet with their jumpstart teacher on a one-to-one basis. (Tr.pp. 309 – 311). Mr. testified that there are 351 students at and roughly 1/3 of the students are in the program. (Tr. p. 312). Mr. testified that roughly class sizes vary from 14 to 17 or 18 students. (Tr. p. 314).

Mr. testified that he could not give specific testimony about this Student. He testified to general techniques that are discussed in faculty meetings and the general techniques that have been adopted for students. The witness testified that the general techniques of special educational techniques at the school has learned more and more over the last 20 or 30 years including chunking materials into smaller amounts, scaffolding on previously built knowledge and ensuring that students know the material before moving on. "Organizational methodologies that have made organization one of the key patents for special education students". (Tr. p. 319). Mr. testified that "the inclusion model is a child not being segregated to special ed school, but being mainstream, but being given the support that they need, and that's inclusion". The witness believes that this inclusion approach has been successful for many students with learning disabilities. (Tr. p. 321).

was duly sworn, stated that she was alone in a room and testified via telephone. (Tr. p. 379). Ms. has been employed by for eight years as the American Sign Language teacher. She also runs the peer tutoring program and the community service club. She has an undergraduate degree in elementary education and a Master’s degree for teaching American sign. Ms. is New York State certified in American Sign Language for kindergarten through 12th grade.(Tr. pp. 380 – 382).

Ms. testified that she is Student's teacher of American Sign Language [hereinafter referred to as ASL] for the current 2011 – 2012 school year, and was his ASL teacher last year. (Tr. p. 383) Ms. testified that there are seven students currently in her class and that four of the students are enrolled in the jumpstart program. Ms. testified that student's deficits included executive functioning, some language – based difficulties in his English and ADHD, based on documentation she received about students in the beginning of the school year. (Tr. p. 384). The witness testified that ASL addresses the needs of children with language–based difficulties because it works with different pathways in the brain. It comes as a visual mode that works with some students’ strengths, especially those that have language-based disabilities because the students are processing in a different way. (Tr. p. 393).

Ms. testified that, as his ASL teacher she addressed Student's attention deficits because the classes, having only seven students is very small so every student is constantly actively participating. The students sit in a circle because they must be able to see all of the questions and answers. As a strategy for refocusing Student she uses a wave, or might tap him when he's in her range and repeat the question. (Tr.pp. 396 – 397). The witness testified that to address Student's she stresses the organizational aspect. The class has a routine with the students place their homework and a homework basket, the assignments are written on the board, and they are also posted on the class webpage on Edline, the school website and browser. (Tr.pp. 397 – 398) Ms. testified that to address Student's language– based disabilities she might have Student re–do an assignment. (Tr. p. 400). Ms. testified that although Student is a "vocabulary star", Student’s grades have dropped throughout the year due to what she believes might possibly be the homework assignments and possibly some personal issues going on. (I d.). The witness agreed that Student would benefit from multi – step directions broken down into small steps, repetition of information concepts, graphic organizers, refocusing and redirecting Student to a specific task. (Tr.pp. 411 – 412).

Ms. Brown testified that she placed Student with a peer tutor for English and for Science. The peer tutoring program is initiated when the teacher informs Ms. that a student needs extra help and Ms. finds and upper school Student to help. (Tr. p. 405). Student is currently placed with an 11th grader as a peer tutor for English and Science. The students meet after school one day a week as a pullout from the . (Tr.pp. 414 – 416).

POSITION OF THE PARTIES

Parent’s Position

That the Parents meet all three prongs of the Burlington Carter test in this matter. (Tr. p. 425). The IEP developed at the CSE meeting held on May 18, 2011 for an IEP for Student for the 2011–2012 school year is inappropriate because:

a) the goals and objectives on the IEP do not reflect all of Student's unique educational and social and emotional needs.

b) the goals and objectives were not developed at the meeting, therefore denying the Parent input into development of the IEP.

c) the IEP goals do not all contain no [sic.]evaluative criteria, procedures, or schedules to measure progress.

The CSE failed to develop an appropriate transition plan for the Student.

The CSE team was not duly constituted because the individual listed on the IEP as the CSE special education teacher/provider did not meet the necessary criteria as defined by applicable federal and state education law, and despite a general education recommendation, and a consideration of another general education program, no general education teacher attended this meeting.

The program recommendation is inappropriate , and not timely, because besides the proposed classroom is inappropriate for Student, the student to teacher ratio is inappropriate for Student, the level of services mandated on the IEP is inappropriate for Student, the Parent was concerned at the meeting at the proposed program is inappropriate for Gabriel and these concerns were ignored by the team thereby depriving Parent of the meaningful participation in the review, and the team could not answer questions about the recommended program.

The CSE failed to offer an appropriate placement for Student because the CSE sent a final notice of recommendation dated July 11, 2011, four University Neighborhood High School, in spite of numerous attempts Parents were unable to reach a school administrator who could arrange a visit or provide them with information about the program, Parent wrote to the CSE that they could not send their child to a program that they could not visit and determine if it were appropriate, Parent wrote that they disagreed with the program recommendation and that they had voiced this at the CSE meeting Parents notified the CSE via letter dated July 18, 2011 that they were unilaterally placing Student at for the 2011 – 2012 school year and would be seeking tuition reimbursement if an appropriate program/placement was not found for him in a timely manner. The CSE failed to ensure that there was a valid IEP and appropriate placement for Student prior to the start of the school year in accordance with New York State education Law, and this failure denied Student FAPE.

Parents request that this impartial hearing officer find:

The CSE failed to offer the Student a Free and Appropriate Public Education on both the procedural and substantive basis

The CSE review was substantially procedurally flawed;

The Parents were deprived of the opportunity to meaningfully participate in the development of the IEP for the 2011–2012 school year;

The CSE failed to offer an appropriate program for the 2011–2012 school year, The CSE failed to offer an appropriate placement for Student for the 2011-2012 school year in a timely fashion,

The placement selected by Parents is appropriate for Student, and Student made progress in this placement.

Parents contend that clearly, the first IEP did not generate an appropriate placement for the Student by virtue of the fact that based on the subsequent IEP (September of 2011) added speech and language goals and a second FNR in the very same school year which recommended a different school, also that the second FNR was clearly untimely having been issued after the school year began. (Parent’s Closing Tr. p. 428). Parents believe that testimony regarding Student’s recommended placement in is not relevant because, Student would have attended University Neighborhood High School for a only short period of time, based on the second FNR, recommending an entirely different school. (Tr. p.141, pp. 179-180). Parents contend that a reasonable inference can be drawn that both the initial IEP and initial FNR were inadequate based on the District’s subsequent changes to the IEP and school placement. (Parent’s Post hearing Brief, IHO Ex. V p.2). That the Parents are entitled to:

a) Pendency placement at and the ;

b) Tuition reimbursement for the together with the from September 2011 through June 30, 2012;

c) Cost of transportation

d) Special education bus transportation for Student to your preparatory school

e) Costs and fees, and any additional relief as the IHO determines is appropriate. District’s Position

The District has provided a Free and Appropriate Public Education for the 2011– 2012 school year. The IEP that was developed at the annual review meeting on May 18, 2011, was reasonably calculated to confer educational benefit and that procedural errors, if any, occurred did not rise to the level of a deprivation of FAPE. Student’s classification of is not in dispute. The CSE team closely analyzed all of the valuable factual information which included Parents' input in crafting Student's IEP. The IEP is rich with educational and clinical data that was used to develop goals. The recommended services on the IEP would have been available to Student from the beginning of the school year and the school would have been able to implement the IEP and appropriately service Student at this placement. (Tr. p. 438). The District has met its burden under prong one of the Burlington–Carter test and Parents’ request for tuition reimbursement should be denied (Tr. p. 39).

The Parent's unilateral placement at is inappropriate. There is no concrete information as to Student making any progress, in fact Student seems to be regressing because has provided Student with a peer tutor to assist him in areas where he continues to struggle. (Tr. p. 439) Student is not receiving the recommended services of counseling and occupational therapy at the universal placement. Tuition reimbursement should be denied.

The District believes that because the issue of the second IEP and recommended placement were not raised in the initial request for hearing, which was withdrawn, nor in the second request for hearing, that these issues are outside the scope of this hearing and furthermore, Parents never specifically raised the issue of a lack of evaluation nor a lack of services in their request for hearing. (Tr. p. 443). The District argues that Parent should not be permitted to raise any issues that are not specified in the Due Process Complaint. Additionally, the issue of how the second IEP would have impacted on the first IEP is speculative because the Student in question was never educated under the first IEP and therefore how these issues would have been addressed is highly speculative, considering that neither evaluation conclusively recommended speech services, and the Student never availed himself of a public school placement. (District’s Post Hearing Brief IHO Ex. VI p.4).

APPLICABLE STANDARDS

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

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];

FINDINGS OF FACT AND LAW

In this decision, this Hearing officer did not consider Parent’s Exhibit “A”, a previous hearing decision dated January 24, 2011. Parents Exhibits “P” the “second” IEP dated October 6, 2011 and Parent’s Exhibit “Q the “second” FNR were reviewed, and I find them to have very little evidently weight, if any, because:

1) They are outside the scope of Parent’s request for a hearing, dated September 8, 2011. Parent’s had the opportunity to amend the hearing request, with my permission, and raise the issue of a second IEP as evidence of the inadequacy of the first IEP, before the start of the hearing by November 2, 2011 (or even, it could be argued, until November 9, 2011 as November 7, 2011 was a pendency hearing) and they did not. “It is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20

U.S.C.§1415 [f] [3] [B], or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing. Application of a child with a disability, Appeal No. 10-105. Additionally, even if the time had passed for amending, if Parents felt so strongly that this matter was key to their case, the request could have been withdrawn, and re-filed; and,

2) because Student did not attend the public school placement, any information or conclusions based on the second IEP and FNR are speculative, at best. Point One of Provision of FAPE: the District Complies with the Procedural Requirements Set Forth in the IDEA Parents contend that the CSE team was not duly constituted because the CSE Special Education teacher/ provider did not meet necessary criteria as defined by applicable federal and state education law. (P’s Exhibit B at p. 3.) Testimony showed that the Special Education Teacher present at the meeting, , forgot to sign on the line that indicates special education teacher. (Tr. p. 53). There was no testimony or questions regarding and therefore I cannot conclude that she did not meet the necessary criteria as defined by applicable federal and state education law.

Parents contend that despite the general education recommendation and consideration of another general education program, no general education teacher attended this meeting. (P's exhibit B at p. 3). Indeed, page two of the May 18, 2011 IEP does not have a signature next to the space for the general education teacher. However, Student’s recommended program was not a general education program but rather integrated co-– teaching with related services. Testimony showed that a special education teacher would work with Student in the various ICT classes at . Ms. Mindich explained that she would have been Student's ICT teacher for the 2011 – 2012 school year because in the 10th grade there are two co-teaching classes in Global Studies and to co-teaching classes in English and she was the Special Education teacher in all four of those classes. (Tr. p. 181, supra).

Even if the non-attendance of the regular education teacher, in this circumstance, did not comport with the requirements of Federal and State regulations (8 NYCRR 200.3[a][1][ii-iii]; see 34 C.F.R § 300.321 [a] [2-3]; I am constrained by Federal and State regulations from finding that a procedural violation rose to the level of a denial of a FAPE unless the procedural inadequacy impeded the Student's right to a FAPE, significantly impeded the Parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

I find that the evidence does not demonstrate that the procedural inadequacy impeded the Student's right to a FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. Therefore, I find insufficient evidence to conclude that the failure to include a regular education teacher at the May 18, 2011 CSE meeting rose to the level of a denial of a FAPE (see 20 U.S.C. § 1415[fJ[3][E][ii]; 34 C.F.R. § 300.513[a] [2]; 8 NYCRR 200.5[j] [4] [ii]; see also Application of the Dep't of Educ., Appeal No. 10-073; Application of the Bd. of Educ., Appeal No. 10-022; Application of a Student with a Disability, Appeal No. 09-137.

Parents did not allege in its hearing request that the CSE team failed to consider a sufficient amount of current evaluative date when making the program recommendation, more specifically the evaluation. However, to the extent that this claim could perhaps be gleaned from the hearing request I will address the speech and language evaluation.

Ms. testified that at the time of the IEP review meeting she had and used a speech and language evaluation from May 8, 2010. That evaluation did not recommend speech services (Tr. pp. 61 – 62, P's Ex. 10). The witness further testified that because there were concerns with vocabulary development, the team requested another speech evaluation, which was performed for Student and the outcome was that was not recommended. (Tr. p. 62). Ms. testified that she believed that she had an up-to-date speech and language reports at the May 2011 CSE meeting but because the school (York) mentioned issues with vocabulary, she decided to get "clarifying information". (Tr. p. 66). On cross-examination by Parents’ Counsel, Ms. repeatedly maintained that she had a sufficient evaluation related to speech and language for this Student. (Tr.pp. 64-65, 9293). I find the testimony of this witness credible, and conclude that the CSE team considered a sufficient amount of current evaluative date when making the program recommendation.

Student’s classification is not in dispute, and there being no other procedural deficits alleged, I find that the District has complied with the procedural requirements set forth in the IDEA. Point Two of the Provision of FAPE: The IEP Developed is Reasonably Calculated to Enable Student to Receive Educational Benefits

As noted above, an appropriate educational program begins with an IEP that 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 (34 C.F.R. § 300.320[a][1], [a][2], [a][4]; 8 NYCRR 200.4[d][2][i], [2][iii], [2][v]; Tarlowe, 2008 WL 2736027, at *6 ).

The CSE is required to develop an IEP that accurately reflects the student's special education needs (34 C.F.R. § 300.306[c][2]; 8 NYCRR 200.4[d][2]). Incumbent with that duty is the mandate that the IEP "shall report the present levels of academic achievement and the functional performance and indicate the individual needs of the student." (8 NYCRR 200.4[d][2]; see 20 U.S.C. § 1414[d][1][A][i][I]; 34 C.F.R. § 300.320 [a][1]). Moreover, a CSE is required to "consider" information about the student provided to, or by, the Parents (8 NYCRR 200.4[f][2][ii]; Application of a Student with a Disability, Appeal No. 10-095; Application of a Child with a Disability, Appeal No. 07139).

Present Levels of Performance

With respect to the Student's present levels of performance, the May 18, 2011 IEP clearly articulated Student’s strengths and weaknesses. (P’s Ex F p. 3-6). Testimony shows that in developing the IEP, the District used the neuropsych evaluation, the psychoeducational evaluation, Student’s report card, his speech and language evaluation, a social history, a vocational assessment, and also reviewed Student's clinical file. (Tr. p. 55). There is no testimony that there were any objections to the present performance levels that were developed at the CSE meeting. Parent testified that he agreed with the present level of performance in reading as a , although he stated that the level would vary depending on the complexity in the subject matter. (Tr. p. 279).

In conclusion, I determine that the evidence demonstrates that the May 18, 2011 IEP accurately reflected the Student's present levels of performance and areas of deficit as described in the supporting documents previously mentioned (see O'Toole v. Olathe Dist. Sch. Unified Sch. Dist. 144 F.3d 692, 703-04 [10th Cir. 1998]; Application of the Dep't of Educ., Appeal No. 07-120; Application of the Bd. of Educ., Appeal No. 04-031). Annual Goals

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability and to enable the student to be involved in and make progress in the general education curriculum (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3]).

Parent, it its Hearing Request, alleges that the goals and objectives on the IEP do not reflect all of Student’s unique , that the goals were not developed at the meeting thereby depriving Parents of meaningful input and that the goals do not all contain evaluative criteria, procedures or schedules to measure progress. (P’s exhibit B pp. 2-3).

Interestingly, there was absolutely no testimony, nor any questions asked of any witness, by either party, as to depriving Parents of meaningful input into the goals and a failure of the goals to all contain evaluative criteria, procedures or schedules to measure progress. Upon review of the Goals of the IEP, I find that the IEP does substantially provide evaluative criteria for the goals. For example: Decoding on page 7 of p’s exhibit F states:

Within one year, Student will improve his decoding skills by learning and applying from independently phonetic rules to segment and blend multi – syllabic words at the ninth grade level with 85% accuracy as recorded by his teacher, using classroom reading assignments.

Parent did testify that some of the goals objectives were “carried over” from last year with the “ crossed out and “ inserted by hand. (Tr. p. 278). There was no testimony that Parent was deprived of participation. That, coupled with the fact that Parent testified that he agreed that the goals and objectives on the IEP did reflect his son's unique educational social and emotional needs, leads me to the conclusion that the IEP developed in this particular area is appropriate. Transition Plan

Parents assert that the CSE failed to develop an appropriate transition plan for the Student. (P's exhibit B p. 3). Parent testified that he recalled participating in the transition plan for Student. (Tr. p. 287). Parent recalled having input in the workforce aspirations that he wanted for Student. The witness stated that he did not request that his son participate in the part of the meeting where transition services were discussed and that at this level he did not want his son to participate in the discussion. (Tr. p. 288). There was no further testimony regarding any particular strengths, weaknesses or failures of the CSE regarding the transition plan.

The transition plan developed for Student was appropriate. Appropriateness of the District's Recommended Program and Placement The District recommended Integrated Co-Teaching with related services of counseling, one session per week in a group size of 3 for a duration of 40 minutes, and occupational therapy, one session a week in a group size of 3 for a duration of 40 minutes. Special Education Teachers (as co-teachers) were recommended for all major subjects. (P’s exhibit F p.14) Student is to participate in state and local assessments with the accommodations of 100% extra time, separate location, questions read and reread, directions read and reread, answers recorded in any manner and use of a calculator. (P’s exhibit F p. 14). The testing accommodations of the District are even more expansive than the accommodations recommended by Dr. , who performed the Neuropsychological evaluation for Student. (P’s exhibit C p.7).

Parents did not agree with the class size and student teacher ratio. (see Hearing Request, P’s exhibit B p.3) However, nowhere in Dr. , September and October 2008, Summary and Treatment plan does she recommend a small class, the Evaluation, done May 8, 2010, does not make a recommendation for a small class size, (D’s exhibit 6), in an update letter, dated July 20, 2010 Dr, does recommend a “inclusion based school with a small class size: (D’s exhibit 5 p.2). Ms. testified that the average class-size in the school is 25 students and that in the current school year, 2011–2012 there are CTT classes in English, Math and Social Studies. The witness further testified that there would not be more than 12 students with an IEP in any classroom at any time. (Tr. p. 164). Ms. , whose job it is to calculate how many ICT classes are needed in a given year, (Tr.p. 143), stated that in the 2011-2012 school year, in the 10th grade English ICT classes there was defiantly less that 12 ICT students in the class because she programs the classes that way, to have about 20 students in the class because the numbers can fluctuate if a student comes in or leaves. (Tr. p. 163). Ms. testified that there were “no more than 12" students with IEP's in either of her two 10th grade English class. And that she believed that in September of 2011 there were ten students in one class and nine students in the other. (Tr. p. 195 – 196).

During the Hearing, Parent attempted to flesh out the number of students in all the classes at . In fact, Parents subpoenaed numerous documents related to class size, class profile, the number of students in each of the CTT\ICT classes in the 10th grade at with IEP's at the beginning of the 2011-2012 school year. Objections by the District were addressed by an interim decision dated January 31, 2012 (the IHO exhibit III), wherein I ruled that because the testimony of the witness showed that there were 2, 10th grade ICT classes in math and 2, 10th grade ICT classes in English at the for the 2011 – 2012 school year, the District was to produce documents showing the class-size for these four classes, if they existed. This hearing officer notes that the District did not provide the subpoenaed documents showing the class-size in the two ICT math classes and the two ICT English classes as ordered on January 21, 2012. From this, I may draw a negative inference, and in fact I do. However, this inference is outweighed by the testimony of Ms. and Ms. . This negative inference is further outweighed by the fact that there is no testimony nor documentary evidence of a particular class-size, or student ratio that Student would benefit from, or was necessary for Student to have. Even if the witnesses testimony was incorrect, and this Hearing Officer is not stating that the testimony was incorrect, and the subpoenaed class documents showed a class size of 35 students, there is nothing in the testimony nor documentary evidence to show that Student was promised, required, or was in need of, any specific student/teacher ratio. This, taken together the information testimony contained in the previous paragraph constrains me to conclude that the recommended program is not inappropriate for Student.

In this matter, any further analysis of the Parents' claim that the District failed to offer an appropriate program and an appropriate placement for Student would require me to determine what might have happened had the District been required to implement Student's IEP. Parent suggests that one can draw a reasonable inference that both the initial IEP and FNR were inadequate based on the District’s subsequent changes to the IEP. I decline to make that inference because the second evaluation did not conclude that was needed for Student, and to speculate as to why the IEP was changed to include , would be irresponsible. Was it an accommodation to the Parents? Was it done in error? We simply do not know. Moreover, this claim is outside the scope of the Hearing Request.

The sufficiency of the District's offer of program is to be determined on the basis of the IEP itself (see R.E., 2011 WL 924895, at*10 [S.D.N.Y. Mar. 14, 2011]). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it (id.; see also, Grim, 346 F3d at 381 – 82 [holding that the district was not liable for denial of FAPE with the challenged IEP was determined appropriate but the Parents chose not to avail themselves of the public school program]). Even if Student had attended the proposed school, the evidence, infra would not support Parents' claims.

CONCLUSION

Based upon the foregoing, I conclude that the District has met its burden as the evidence established that the District's recommended educational program was reasonably calculated to enable the Student to receive educational benefits for the 20112012 school year. Furthermore, the evidence shows that there was a valid IEP and inappropriate placement for Student prior to the start of the school year in accordance with New York State Education Law.

The District offered the student a FAPE for the 2011-2012 school year.

Having reached this determination, it is not necessary to reach the issue of whether York Prep was an appropriate placement for the student and the necessary inquiry is at an end. (Walczak, 142 F.3d at 134; Application of the Dep't of Educ., Appeal No. 10-094; Application of a Student with Disability, Appeal No. 08158; Application of a Child with a Disability, Appeal No. 05-038).

ORDER

WHEREFORE, for the above stated reasons, Parent’s request for tuition reimbursement for the 2011-2012 school year is denied. Pendency, from September 8, 2011 continues to be granted to the date of this Decision, and Parent’s Impartial Hearing Request is otherwise, denied and dismissed. Dated: April 18, 2012

LORRAINE M. FERRIGNO, ESQ.

Impartial Hearing Officer

LMF: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 DESCRIPTION DATE PAGES

A Hearing Officers Decision 1/24/11 7 pages

B Impartial Hearing Request 8/15/11 6 pages C Report 9/12/08, 9/19/08,

9/22/08, 10/13/08 13 pages D Program Contract for 4/26/11 5 pages E Letter from Parent to CSE 4/27/10 1 page F IEP 5/18/11 17 pages G Final Notice of Recommendation 7/11/11 1 page H Letter from Parent to CSE 7/18/11 1 page I Final Notice of Recommendation 8/9/11 1 page J Parent Letter to CSE 8/19/11 1 page K Letter 8/19/11 1 page L Letter 9/20/11 2 pages M Charge Auth, Transaction Details,

Copy of Check Various 4 pages N Letter from , PhD 7/20/10 2 pages O Evaluation 6/8/11 5 pages P IEP 10/6/11 15 pages Q FNR 11/4/11 1page R Attendance Form 9/5/11, 9/12/11 2 pages

DISTRICT DESCRIPTION DATE PAGES

1 Hearing Request 9/8/11 7 pages 2 Hearing Request 134377 8/11/11 7 pages 3 Withdrawal of Hearing Request 8/12/11 4 IEP 5/18/11 17 pages 5 Assessment 7/20/10 2 pages 6 Evaluation 5/8/10 5 pages 7 Assessment 9/12/08- 10/13/08 13 pages 8 Academic Report Third Quarter 4/7/11 1 page 9 Observation Report 4/14/11 1 page 10 Evaluation 5/8/10 3 pages 11 Social History Update 5/8/10 4 pages 12 Vocational Assessment 4/6/09 2 pages 13 Health and Physical Exam undated 3 pages 14 Notice of Recommendation of Program 8/9/11 1 page

HEARING OFFICER DESCRIPTION DATE PAGES

I Parent subpoena 11/1/11 pages II Pendency decision 2/7/12 pages

III Ruling and order 1/31/12 5 pages IV Parent subpoena 2/24/12 1 page V P’s Post-hearing Brief 3/23/12 2 pages VI D’s Post-hearing Brief 3/23/12 5 pages

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Footnotes

[2] Because this Hearing Officer rendered an interim decision, the witness’s January 6, 2012 testimony is not included here (except for her background and credentials), but rather is contained in the interim decision, dated January 21, 2012, see IHO Exhibit III.

[3] The transcript, page 223 line 8, states that Mr. asked "and why isn't review of the goals important?" However, it is clear from the answer of the witness that the transcription is incorrect and was in fact “why is review of the goals important?”

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).