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 9, 2011

February 6, 2012

February 10, 2012 Actual Record Close Date: March 19, 2012 Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2011

Attorney — Student

Parents

Chairperson’s Designee — DOE

District Representative — DOE

School (via telephone) — DOE

Assistant Principal (via telephone) — DOE

Teacher (via telephone) — DOE

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

Attorney — Student

Parents

Parents

Teacher Prep (via telephone) — Student

Advocate (via telephone) — Student

Teacher Prep (via telephone) — Student

(via telephone) — Student

Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2012

Attorney — Student

Parents

Head Master (via telephone) — Student

(via telephone) — Student

Director (via telephone) — Student

Teacher (via telephone) — Student

Chairperson’s Designee — DOE

INTRODUCTION

On September 23, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of (“the student”).

BACKGROUND

The student is years old and has a classification of (the classification is not disputed). The student attends School (“ ”) and participates in the Program. The IEP dated June 6, 2012 (District Ex. ), recommended General Education with Special Education Teacher Support Services (SETTS).

A Final Notice of Recommendation: Annual Review or Reevaluation (District Ex. 13), dated July 6, 2011, was received by the Parents. The final recommendation for the 2011-2012 school year was located at , NYC, NY. The Parents made attempts set up a visit to the school. They were informed by the Parent Coordinator that they could not view the program until September. On July 21, 2011, the Parent sent a letter to , CSE regarding the inability to view the program and that without a visit or having the Parents questions and concerns addressed they could neither accept or reject the placement (Parent Ex. C). On August 16, 2011, the Parents sent a letter to , CSE 10 Chairperson stating, among other things, that they had not received a response to the letter of July 21, 2011 and notifying him of the unilateral placement at Prep. (Parent Ex. D) On September 21, 2011, , educational advocates for the students parents’ requested an impartial hearing seeking reimbursement for the 2011-2012 school year tuition at , special education transportation and the cost of related services.

At the hearing, the Department of Education (“DOE”) asserted that the program recommendation offered the student a free and appropriate public education (“FAPE”) for the 2011-2012 school year.

THE DOE’S CASE

The DOE argues that it provided the student with FAPE for the 2011-2012 school year by providing him with an appropriate program recommendation and that the IEP was developed so as to be reasonably calculated to confer an educational benefit to the student. As to Prong 2, the DOE argues that the placement at is inappropriate as it is not specifically designed to meet the special education needs of the student. As to Prong 3, it is asserted that the equities strongly favor the DOE.

The DOE called three witnesses to testify on its behalf and submitted a number of documents into evidence.

The first witness was , CSE . Ms. testified that she was present at the IEP meeting held on 6/16/12 in the role of and district representative. (t. 31) This was an initial IEP and they used a number of documents in its development as well as the input of the teachers present and the Parent. (t. 34) Ms. testified that based on the review of the documents it was apparent that the student was a child with a lot of and being described as a , and . The student wants to , and in fact does . It is her opinion that he was . In addition, the evaluation (District Ex. 11) noted that he had . (t. 42) She further testified that the student is skills on the . (t. 46) As to the students Ms. noted that he had some with , and the come up with and of . (t. 48) The academic management needs in the IEP (District Ex.

12) were developed from a review of the Evaluation (District Ex. 10) as well as the input of the teachers and the parents. (t. 49-51) The goals noted in the IEP were developed as a result of the they saw in his academic performance as they wrote the IEP. (t. 54) After reading the Comprehensive Evaluation, Ms. determined that the evaluator was recommending teaching strategies to help the student during the school day, but did not recommend . (t. 57) Everyone was in agreement that the student did not . (t. 190)

Ms. testified that the student was , that there were no or of any in the or in the that he needs to . (t. 189) As to the students educational style, Ms. noted that it was particular to the student and that it was addressed in the IEP under educational strategies. (t. 190) Ms. testified that they came up with the recommendation of general education with after reviewing and discussing the clinical data and hearing from the teachers. The recommendation is based on the student’s such as his , very and . These strengths point to a child who is . (t. 192-193) Ms. testified that they felt that the student needed to be in a education environment because he would then be with and while this may it was that he has the . It would also his and keep him from on a teacher or getting . However, in view of his those would be addressed with the help of a teacher one period a day. (t. 193-194)

On cross-examination, Ms. testified that she gave the the same weight as the other clinical evaluations and that she agreed it was valid. (t. 197) Ms. stated that the school explained that the student has with and anything concrete. (t. 203) She testified that the school did not request, or state, that the student of to . (t.

205) Ms. recalled that the school stated that the student was having . (t. 211-212) She noted that the Parents cooperated and stated that they were placement. (t. 213)

Ms. testified that they discussed the possibility of a Collaborative Team Teaching (CTT) program or integrated co-teaching program, and that it was raised by the representative from . She states it was discussed but that the recommendation was for general education with SETTS. The DOE’s position was explained to the Parents. (t.

214) Ms. concedes that the discussion of the CTT/integrated co-teaching was not noted in the IEP and that was an oversight but states it was noted in her summary (District Ex. 22) where it states that the programs were not recommended based on the students “ …and because his for and other educational requirements can be met by the SETTS teacher and by teacher following the educational strategies…”

The DOE’s second witness was , Assistant Principal . Ms. How testified that the school has approximately students and is of schools in the building. occupies the floors. The school is open months a year, for the regular school year (September to June) and for summer school in July and August, though in summer 2011 the summer school was held off campus. (t. 72-78) The school offers services ( ) in the form of small group tutoring. It is open to all students but is primarily offered to students that have demonstrated a need for . The tutoring is done in small groups not to exceed students. Ms. testified that she was not contacted by the parent prior to some messages left in mid-November. She generally does tours of the school in September or October (t. 80-81) Ms. described the reading, math and writing programs offered at the school as well as the related services. (t. 84-87) Ms. testified that the student would have been placed in class because there are other students with SETTS mandates in their IEP’s. (t. 89-90). In addition, the school uses an on line grading system and reporting system which gives parents access to teachers via email and the parent can see the student’s progress on a daily basis. (t. 95)

On cross examination, Ms. testified that the class size at students per class. (t. 99) The student would not be pulled out of major academic classes for SETTS. The student has a SETTS mandate for sessions per week. The student would most likely be pulled out of classes such as life skills or advisory for SETTS. The schedule is customized to meet the mandates, but also to work around the schedule of the SETTS teacher, Ms. . (t. 101-102) There are a maximum of students in a SETTS class. (t. 113) Ms. testified that received a or the 2010-2011 school year. (t. 109-110) She stated that she was not aware that the Parent had called the school in July and was told that the school was closed and that the soonest he could visit was the first day of school. (t. 108) Ms. testified that she gets information about prospective students mainly when the parent comes in with a placement letter. At that point, she and the Principal will look at the records to see if the placement is appropriate for the school. If they do not feel it is appropriate, they contact the placement office with their concerns. There was one instance in the 2011-2012 school year where they had a situation like that. (t. 119-120)

The DOE’s third witness was , special education teacher at . Ms. testified that she would have been the students SETTS teacher and that the thing that she would do with a new student would be to get in touch with the Parents and create a good relationship with the Parents and student. She would also make a connection between the Parents, student and his general education teachers. (t.128) She would do some informal observations and testing as well as reading the IEP. (t.131) There are other students in that have SETTS and he would be grouped with them but the program is fluid so changes could be made if warranted. (t.132) She further testified that the student would be grouped appropriately as most of her SETTS students with and . Her grade SETTS group is age appropriate with issues. Many come in for small group tutoring, get homework help after school and some work with her at lunch. She would recommend the student for because, after a review of his IEP, a lot of his accommodations require the , might require some , of and . (t. 136-138)

Ms. testified at length as to how she would address the student’s annual goals as well as his academic management needs. As to his annual goals, she would try to get as much support to him in his content area classes; track his progress through the year; use an program for ; use everything in her “ ” for math; and chunking the material. (t. 140-145) As to the academic management needs, she would use such as and ; , ; previewing information; pair the student with another student so they can do a peer review of information; ; and paraphrasing to aid in and . (t. 146-150) She further testified that she collaborates with the general education teachers (t. 152-153) In addition, she keeps the parents informed of the students progress by phone, email, grades and parent-teacher conferences. (t. 155-156) Ms. believes at that would be an appropriate placement for the student. (t. 160)

On cross examination, Ms. testified that she teaches SETTS classes as well as a art class, a social studies class and a social studies class. She teaches each class times per week and has or SETTS groups per day for period. (t. 160-161) There are students in each SETTS group and that not everyone has the same mandates. (t. 163) She does not determine who is in and testified that SETTS is not tutoring. (t. 173-174) The students in the grade SETTS, as far as state wide exams are concerned, are either standards or standards. (t. 168) The students in the grade SETTS are classified as or and . (t. 176) Most of the SETTS students are or years below grade level in and . (t. 181)

THE PARENT’S CASE

The Parent argues that the DOE has failed to provide the student with FAPE. They argue that the IEP contained both procedural and substantive flaws that invalidated it and that the CSE team was improperly constituted, and the goals generalized and inadequate. In addition, the parents were not provided with a written notice of placement prior to the end of the school year. That the program offered was not reasonably calculated to provide the student with meaningful educational benefits as the program does. As such, they seek tuition reimbursement for the 2011-2012 school year.

The first witness for the Parent is , the student’s mother. Mrs. testified that the student has been with since and by school it had become and to . (t. 260-261) The student received ( ) when he was years old. The student went to from through the grade. They had looked at a variety of schools and the school, , prior to . Mrs. testified that the at had children and only teacher and she felt that would be . The schools had much classes. was the only school that accepted the student. (t. 262-264) She stated that they did not know that they could get services from the DOE. (t. 289) The student left because he could not keep up with the curriculum. (t. 290) In the grade, they had the student evaluated at the suggestion of the school in order to get a of the his learning. As a result of the evaluation recommendations were made such as a and for tests. tried to accommodate the recommendations but weren’t equipped to provide special education services. The family provided a for the student. (t. 290-292) The director of learning services at suggested with the program as a good school for the student. (t.

293) She likes because it is an school, has small classes, and an educational reporting system. (t. 295-296) Mrs. believes that the classroom teachers at are addressing his special education needs.

On cross examination, Mrs. testified that the student was evaluated by the DOE at the suggestion of his teacher. As a result, he was provided with services. (t.

299) They applied to in November of 2010. (t. 303) suggested that an updated evaluation be done. (t. 306) expressed concern that the original evaluation and the student’s test scores did not add up. (t. 343) The student was accepted to in February

2011. (t. 340)

On redirect, Mrs. testified that the student received from age until when he . The family felt that he still needed it so they paid for privately for another year and a half. (t. 345)

The second witness is , English teacher at . She testified that is an school and about percent of the students at the school are with and are part of the program. has approximately students, grades through . The average class size in the school is about students. The classes are broken down on a track system, in the school there are for , , , and . In the grade, they are broken down as ( ) ( ) and ( ). Students are placed according to their individual abilities in and if they are doing , or during the school year they can be moved from one track to another. (t. 268-269) The school also uses an online program called Edline. Parents, students and teachers all have access. At the end of each week the teachers are required to write reports about each student which can be accessed by the student, parents, teacher and other teachers. In addition, posted on the site are the students homework assignments and test schedules among other things. (t. 270-271) The English class meets times per week and it is a class in which she can . (t. 276) Ms. interacts with the students teacher on a daily basis and has seen improvements in the students writing skills. (t. 278) It is her opinion the is an appropriate placement for the student. (t. 281)

The third witness called was an educational advocate employed by . She testified that her role is to assist families in navigating the special education maze. (t.

310) Ms. attended that IEP meeting with the Parent which was held on 6/16/11 and the first thing that happened was the Parent was handed the social history and observation to review for the first time. (t. 313) Discussion was had regarding the evaluation and the fact that many of the scores were average. The school and the special education teacher stressed the fact that the scores were average. Ms. testified that is a wide range and the school representative gave a detailed picture of the that the student was and how much on he . In addition, the Parent detailed the help the student was getting at home. (t. 314-315) She stated that the school and the special education teacher were to the student. They finally did because the school people were that there is real that the student presents with. Ms. further testified that she raised the question of Collaborative Team Teaching (CTT) but it was dismissed by the CSE representative and did not get reflected in the IEP. Ms. testified that her concern with SETTS was that it would not provide the student with adequate support and structure throughout the day. (t. 316-317) On November 22. 2011, Ms. accompanied the Parent to the recommended program at . She testified that it was a experience. The only person who could discuss special education was Ms. , the Assistant Principal, who was and could not see them. They were unable to get any information at that time. It is the opinion of Ms. that a general education program with SETTS is not an appropriate recommendation for the student. (t. 317-318)

On cross examination, Ms. testified that she reviewed the present levels of performance in the IEP and agrees with them. She does not believe that goals were discussed at the IEP meeting. (t. 322) but agrees that the goals in the IEP align with the students . (t. 324-327) Ms. testified that she wanted to have a discussion about CTT because that would allow the special education teacher to be in the classroom 100 percent of the time at least for core areas. She stated that her position is that the student requires more support than the SETTS model would allow for. (t. 332-333)

The fourth witness called was , the student’s father. The Parent testified that he sent a letter to the DOE on March 9, 2011 (District Ex. 3) requesting that the student be evaluated for special education services. He alerted them that he had signed a contract with in order to reserve a seat for his son. He testified that he was always concerned about class size in a public school but wanted to see if he could be offered an appropriate placement in a public school. On June 16, 2011, he attended the CSE meeting for the student. He states that he was considering placing the student at but was open to an appropriate public school placement. The highlighted the fact that many of the students scores were . The Parent pointed out that there was a the and the in and the child at the end does not have the same needs as a child at the high end. It was the Parents opinion that the did not agree or dismissed his assertion. The Parent explained that he spent amount of time working with the student on his homework and had a tutor a week for an each time for him. The and special education teacher seemed the student. They also dismissed CTT out of hand. (t. 351-353) He does not believe that a general education program with SETTS is an appropriate program. He believes that the student needs a class environment based on his experience with the student’s school. (t. 354) He testified that he received the placement recommendation in July 2011. He called and left a number of messages. He was assured that they were given to the Assistant Principal. He called and spoke to the Parent Coordinator and was told that he could not see the school until he dropped the student off on the first day of school. He then called Mr. , the contact person on the recommendation letter and told him that it was unacceptable that he was unable to see the program. He testified that Mr. agreed with him and stated he would try and get in touch with the Assistant Principal. The Parent never heard back from him. (t. 355-356) On July 21, 2011 the Parent sent a letter (Parent’s Ex. C) to Mr. following up the conversation of July 18, 2011. In the course of the letter, he stated that if he was unable to visit the school he would not be able to accept or reject the offer of placement and would have no option but to place the student unilaterally in and seek tuition reimbursement. On August 16, 2011, the Parent sent a letter (Parent’s Exhibit D) to , CSE Chairperson in which he detailed the efforts he had made to visit the recommended placement. He alerted Mr. that if he was not offered an appropriate placement he would enroll the student to and seek tuition reimbursement. (t. 358-359) The Parent again tried to visit the recommended placement in November, 2011 but was not able to view the school or speak to anyone about the program. (t. 356-357) The Parent believes that the student is doing well at and attributes it to program, Edline and the school as a whole. (t. 359-260)

On cross examination, the Parent testified that he attended a CPSE meeting which resulted in the student receiving . (t. 376) He did not go to the CSE when the student was at because he was that it existed. When the student the services, no one ever told them about the CSE. (t. 377-378) He found out about the CSE from friends that also had a child at . (t. 379-381) On February 28, 2011, the Parent paid a deposit of $5,000 to and then on May 3, 2011, he made 3 payments to totaling $38,000. The Parent testified that he did not participate in the tuition refund plan offered by the school but did not believe that the money paid was non refundable. (t. 382-384) The Parent testified that it was his impression that if an appropriate placement was offered that the school would be lenient. (t. 384-386)

The fifth witness called was , teacher at . She testified that the program is designed to help students with individual learning differences. Ms. meets with individual student a week ( minutes per session) and also in morning for check-in ( days per week) and afternoons for study hall ( days per week). Morning is focused on and issues and afternoon is solely for and seeing if they . Ms. has students in and is available throughout the day and always available via email. (t. 364-365) She also uses Edline to keep on top of the students work and communicate with teachers, parents and students. (t. 366) Ms. detailed the students and listed different ways that she addresses those issues such as , , , and . (t. 367-369) She interacts with the students teachers via email and meetings. It is her opinion that the student is making academic progress and that is an appropriate program. (t. 370-371)

On cross examination, Ms. testified that she believes that the majority of her student’s in have IEP’s. (t. 372)

The sixth witness called was , . The witness was declared an expert in the area of and special education. (t. 400) Dr. did an evaluation of the student in January 2011 (District Ex. 11) She testified that the purpose of the evaluation was diagnostic, to find out whether the student had a , of what and what his were and to for his education. (t. 402-403) In addition to testing, she used the students complete school record and did an extensive family and and found that there was a of . (t. 406) Dr. detailed the students and and noted that while his are he he feels and and has a tasks for the same reasons. The student is with a , not otherwise specified. Dr. testified that is a when a person’s don’t exactly fit a . She noted that there is for . In addition, she testified that the student has but in other he is within so he doesn’t fall in to a . (t.

409) In order to make meaningful educational progress, Dr. testified that the student would need small classes to attention, as well as attention in the classroom among other things. (t. 410) Dr. does not believe that a general education placement with SETTS would be an appropriate placement based on the size of the class and the lack of individualized instructional support. Dr. believes that the program at is an appropriate setting for the student. (t. 412)

The seventh witness called was , Head Master of . Mr. does not know the student personally but knows him because he was on the admissions group and also because the student is on the Head Master’s list which means that the student would have an or . The Head Master’s list comprises less than of the school. He stated that he was and that the student was on the list. When the student sought to be admitted to the school, it was recommended that he be a new evaluation be due as the prior one indicated that did not think they could address and as it was over years old it was technically out of date. Mr. believes that they recommended Dr. for the evaluation. (t. 433-435) The school is inclusive, they try to present a mainstream school which would individually help children with to and in a school. (t. 437) A third of the students in the school are in the program. The goal is to graduate from the program. (t. 439) The program started in 1997. The teachers can move in to teaching regular classes. The teachers need to be state certified in special education. (t. 444-446) The faculty as a whole is taught special education techniques such as . (t. 448)

On cross examination, Mr. testified that the teachers are reimbursed for testifying (t. 469)

The eighth witness called was Dr. , and . Dr. was declared a witness in the area of and special education. She did an evaluation of the student at the request of the parents. (t. 479) Dr. noted that the student was a bit and that when dealing with a child who has , that is also it makes the much more . Dr. testified that reflects which are skills that become more and more as children go . (t. 480-481) The student was and when the scores are reviewed they are not , she testified, but if a closer look is taken you see a child who seems to have but when the skills are put for . She further stated that the student is in but when asked to recall the information and apply it he has . In addition, she testified that the student absolutely when it comes to and . (t. 482-484) It is her opinion that the student needs an educational setting with a smaller student to teacher ratio. (t. 485) She does not believe that general education with SETTS is intensive enough and believes that is an appropriate setting for the student (t. 487-488)

On cross examinationk Dr. testified that the student’s is the type that becomes more evident in school. (t. 497)

The ninth witness called was , Director of Support Services at . Ms. testified that teachers came to her with concerns about the students learning in the second grade. (t. 502) At some pointk the school suggested that the Parents have a evaluation done. In the summer prior to the gradek the student was enrolled in the at the school and continued in it during his time at the school. (t. 505-506) Ms. testified that the student needed a lot of one on one support. (t. 508) Ms. participated in the IEP meeting of 6/16/12 and that there was a lot of talk about the student scoring in the but she tried to that he was . (t. 510) She does not believe that a general education class would be appropriate. She testified that the student should be in an environment with a small student-teacher ratio with one to one support. (t. 511-512)

On cross examinationk she testified that she works with the CSE on behalf of students at . (t. 516) The school did not make a specific recommendation to the parents about contacting the CSE. (t. 520)

The tenth witness called was , teacher at . Ms. testified that the student is in her class, in the and there are students in the class. (t. 530) She has opportunities to work with the student one on one all the time. (t. 534) She interacts with the students teacher mostly through email. The student has made academic progress in her class and she believes that is an appropriate placement. (t. 535-537)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). There is a three prong test that is the legal standard applicable a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony adduced at the hearing and the evidence submitted that the DOE provided the student with FAPE for the 2011-2012 school year. The Parents argue that the IEP failed to provide FAPE on a number of procedural and substantive issues. The Parent argues that the CSE meeting was not duly constituted, lacking a social worker and that the general education teacher and special education teacher present did not meet the statutory requirements for that position. In addition, it is argued that the meeting did not comport with the recommendations and suggestions of the family and professionals that actually know the student.

The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). The SRO noted in Application of the New City Dept. of Edu., Appeal No. 11-112 that the statute assures an appropriate education not the best education possible which may be considered optimum by the student’s parents. Ms. , an educational advocate for the Parent attended the IEP meeting and testified that the Parent participated in the IEP meeting. Ms reviewed the present levels of performance in the IEP and is in agreement with them. In addition, while she believes that the goals were not discussed she agrees that they align with the student areas. She also noted that the School and the Special Education Teacher present were reluctant to the student but finally did so because of the input of the other members present. The reluctance sprang from the students test scores which placed him as and the Parent took issue with that as there is a range between . The Parent placed his son at the of the scale and noted that a child at the has different needs. I credit that the Parents took a great deal of time and effort to assist the student at home and that he was afforded additional help at and it appears to have paid off with his grades at the school. In his official transcript for the 2009-2010 school year, he had nothing less than a with a number of (District Ex. 25) In the 2010-2011 while his grade in math and science his final grades were again all . (District Ex. 26) On the teacher recommendation form for , the student’s math teacher describes him as an math student. The teacher notes that he applies himself and that his math facts are solid. Under and she states that when the student and “.I review concepts, both during class and in meetings, it is that he has an of the basic concepts (and solid number sense). It is for him to his on tests/quizzes…” She further describes the student as one who is “… a student who .” (District Ex. 27) The recommendation of the students English teacher at describes him as “…a , and . Though at times, he proves that he is not only with the delivery of his , but also with this and during class discussions.” The teacher also notes that the student is a reader and . The teacher goes on to say that “At times ,it is for to make his way into the , but with and simple questions that as everyday people..” the students “insight comes through.” (District Ex. 29)

In the evaluation, (District Ex. 11) it is noted that the student took group achievement tests at in grades through . The student never scored the . “Initially, all scores were for the nation, hence for independent schools. However, recently some scores were for the independent schools.” The evaluation also notes that the student has . Dr. , and testified that the student’s scores, when tested, were not but cautioned that there are other factors to consider.

I find that when developing the IEP the CSE took in to account the documentation and evaluations submitted by the school and the Parents. In addition, the views and concerns of the Parents and the schools were taken in to account as evidenced by the of which testimony reveals the and Special Education Teacher were to assess. Ms. described the student as and that they took into the student’s educational style and addressed it under educational strategies. The recommendations of general education with SETTS is based on the student’s such as his , and . The student’s would be addressed with the help of the SETTS teacher. I find the testimony of the SETTS teacher to be credible. In her testimony, she delineated the ways that she would assist the student and interact with Parents. Many of those were similar to way that assisted the student with interaction of his teacher with his general education teachers, parents and the use of a computerized program.

I credit the Parent when he testified regarding the difficulties that he had in trying to view the final recommended placement and that ultimately he was unable to view the placement. However, that in and of itself is not a fatal defect. As noted by the SRO in Appeal No. 11-112 while the IDEA and State regulations afford the parents have the opportunity to participate in the development of the IEP “. they do not permit parents to direct through veto a districts implementation of the IEP by, for instance personally viewing and approving the classroom or classmates...”

Though I found that the DOE prevailed on Prong 1 and provided the student with FAPE I will address Prong 2 and Prong 3.

If the District had not prevailed on Prong 1 and Prong 2 was at issue, I would find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find the testimony, and evidence submitted by the parent support this finding. The testimony adduced at hearing indicated that the student is doing well in . The testimony of the Head Master revealed that the student is on the Head Masters list, which is comprised by less than the school. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs.

If the District had not prevailed on Prong 1 and Prong 3 was at issue, I would find that the Parents cooperated with the IEP process. The Parent testified that they attended the CSE meeting, provided documentation and made efforts to visit the approved placement.

ORDER

Therefore, it is hereby ordered that Parents Due Process Complaint is dismissed. Dated: March 29, 2012

__________________________________

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

JMK:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New City Department of Education has a right to appeal the decision to the State Review Officer of the New 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 DECEMBER 9, 2011

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, 9/21/11, 6 pp. 2 Due Process Response, 10/3/11, 5 pp. 3 Parent Letter to CSE Region 10, 3/9/11, 1 p. 4 Parent Consent for Initial Evaluation, 3/23/11, 1 p. 5 Social History, 3/23/11, 5 pp. 6 Home Language Survey, 3/23/11, 2 pp. 7 Request for Physical Examination, 4/8/11, 2 pp. 8 Observation Report, 4/5/11, 1 p. 9 Vocational Interest Inventory, 4/5/11, 1 p. 10 Comprehensive Evaluation, 3/15/11, 5 pp. 11 Evaluation, 2/4/11, 13 pp. 12 IEP, 6/16/11, 16 pp. 13 Final Notice of Recommendation, 7/6/11, 1 p. 14 Parent Communication to CSE, 4/13/11, 2 pp. 15 Notice of CSE IEP Meeting, 5/23/11, 1 p. 16 Letter from , 3/25/11, 1 p. 17 Evaluation, 6/16/08, 22 pp. 18 Academic and Athletic, Various , 12/1/11, 13 pp. 19 NYS Learning Standards MATHEMATICS, Undated, 12 pp. 20 Learning Standards for ELA, 3/1996, 25 pp. 21 Common Core Learning Standards for ELA, Undated, 45 pp. 22 CSE Summary, Undated, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 6, 2012

PARENT

A Parent Letter with Proof of Mailing, 5/4/11, 2 pp. B Emails from Parent to CSE, Undated, 2 pp. C Parent Letter with Proof of Mailing, 7/21/11, 2 pp. D Parent Letter with Proof of Mailing, 8/16/11, 2 pp. E Academic Report, 1/6/12, 1 p. F Authorization for Independent SETSS, 1/20/12, 1 p. G Contract with Proof of Payment, 2/15/11, 14 pp. H Progress Reports, 2010/2011, 13 pp. I Letter from School, 3/25/11, 1 p. J Dr. Resume, Undated, 3 pp. K Dr. CV, Undated, 12 pp.

DEPARTMENT OF EDUCATION

23 Tuition Payments, Undated, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 10, 2012

DEPARTMENT OF EDUCATION

24 Fax Cover Sheet, 2/7/11, 1 p. 25 Grade Transcript, Undated, 1 p. 26 Grade Transcript, Undated, 1 p. 27 Teacher Recommendation Math , 11/24/10, 3 pp. 28 Fax Cover Sheet, 2/9/12, 1 p. 29 Teacher Recommendation English , Undated, 1 p. 30 Conference Notes, Undated, 1 p. 31 NYCDOE Subpoenas, 12/27/11, 12/5/11, 5 pp.

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I Statement of Adjournments and Extensions, Undated, 1 p.