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: January 25, 2012

April 3, 2012

April 4, 2012

April 20, 2012

April 25, 2012

Actual Record Closed Date: October 5, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney Parent 01/25/12 04/03/12 04/04/12 04/20/12 04/25/12 Parent Parent 01/25/12 04/03/12 04/20/12 04/25/12

Teacher (T) Parent 04/20/12

Teacher (T) Parent 04/20/12

Principal (T) Parent 04/20/12

Psychologist (T) Parent 04/25/12

Teacher (T) Parent 04/25/12

Chairperson Designee DOE 01/25/12 04/03/12 04/04/12 04/20/12 04/25/12

School Psychologist (T) DOE 01/25/12 Parent 04/04/12

Principal (T) DOE 04/03/12 Special Ed. Teacher (T) DOE 04/04/12 Placement Officer (T) DOE 04/20/12 Special Ed. Teacher (T) DOE 04/25/12

On December 9, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a ( ) year old student attending a private school and the New York City Department of Education (“DOE”) - District , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO.

After the “resolution period” and adjournments granted for cause or on consent, the matter was set down for a hearing on January 25, 2012, April 3, 2012, April 20, 2012 and April 25, 2012. The parties opted to submit written closing statements which were due on May 24, 2012 (T-668) and which were duly received. A list of the persons attending the hearing and the exhibits entered into evidence is annexed hereto.

BACKGROUND

This case involves a ( ) year old student classified as having a “language based learning disorder” at a Committee on Special Education (“CSE”) meeting held on June 13, 2011. (See Parents’ Due Process Complaint - “DPC”) The DOE recommended a general education placement with Special Education Teacher Support Services

(“SETSS.”) (Id.)

The Parent is challenging the student’s June 13, 2011 Individualized Education Program (“IEP”) and the student’s May 13, 2008 IEP on both procedural and substantive grounds. (Id.) The Parents also allege that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2011-2012 school year. (Id.) Accordingly, the Parents request the following relief:

(a) Reimbursement of tuition for the student’s attendance at the private school from September 2011 through June 30, 2012; and

(b) Door-to-door special education transportation/suitable transportation to chosen school; and

(c) Costs and fees; and

(d) All other relief that the hearing officer deems appropriate.

THE DOE’S CASE

The DOE opposes the Parent’s requests because the agency offered the student a “free and appropriate public education” (“FAPE”) for the 2011-2012 school year. (T-32) The student’s classification of “ ” is not in dispute and the student’s June 13, 2011 IEP was appropriately created. (T-31-2) Accordingly, the DOE has met its burden under “prong one” of the Burlington/Carter test for tuition reimbursement. (T-32) What’s more, the Parent’s unilateral placement of the student at the private school which consists of a general education portion and the “ ” program is inappropriate for the student. (T-33) The equitable considerations also favor the DOE. (Id.)

The DOE called (4) witnesses to testify on its behalf and submitted (19) documents into evidence. The sum, substance and relevant part of the evidence presented by the DOE is incorporated in the decision below.

THE PARENT’S CASE

The Parent argues that the student is diagnosed with , a . (T-290) He attended another private school for two years prior to his current private school. (Id.) On February 28, 2011, the Parent sent a letter to the DOE requesting a FAPE. (Id.) She provided the agency with a private evaluation at the end of April, had a social history evaluation conducted by the DOE on May 9th and an IEP meeting on June 13th. (Id.) The student was classified as “ ” and was recommended by the DOE for a general education class with SETSS services. (T-290-1)

The Parent further argues that the student’s IEP goals are not individualized and were not prepared at the meeting. (T-291) The “special education teacher” at the IEP meeting did not meet the necessary criteria and there was no “general education teacher.” (Id.) The student’s evaluation says the student needs a small class with greater structure. (T-292) The student was recommended for an “inclusion-based” school that provides individualized and small group support. (Id.) His current private school class size is between (15) and (16) students, but even with the small class size, the student needed the extra support of the program. (T-292-3)

The Parent also argues that she did not receive a school recommendation until July 6th and the recommended DOE school was no longer in session at the time. (T-293) She was unable to reach anyone at the school and sent a letter to the DOE requesting assistance. (Id.) She was ignorant of any “public assistance” that may have been available to the student until speaking with other parents last year. (T-294-5) The student’s current private school is an inclusion school that is an appropriate educational placement for him. (T-295) The “ ” program at the private school assists the student with specific learning disabilities and he has made progress there. (Id.)

The Parent called (6) witnesses to testify on her behalf and submitted (7) documents into evidence. The sum, substance and relevant part of the evidence presented by the Parent is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and 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. (See 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] and 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. (See 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] and 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. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; 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] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

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]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

As stated above, a FAPE is offered to a student when (a) the DOE 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. (See Rowley and Cerra, supra)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the student’s CSE meeting on June 13, 2011 was attended by the Parent, the district representative, the school psychologist, the district special education teacher, a Parent Member and a representative from the student’s private school. (D-14) The Parent argues that there was no social worker, general education teacher or teacher from the student’s private school present which renders the CSE team invalid. However, there is no specific requirement that a social worker attends the meeting and the private school will not allow its teachers to participate in CSE meetings. (T-62-3) Accordingly, the Parent’s argument in this regard is not persuasive. What’s more, the private school participation at the CSE was extensive concerning how the student was doing at the private school, his needs, his progress and his learning issues and how they were addressed. (T-311) The Parent agreed with the information the private school representative provided to the CSE. (T-327)

The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)." (See 20 U.S.C. § 1414[d][1][B][ii], 34 C.F.R. § 300.344[a][2] and 8 NYCRR 200.3[c][2][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel." (See 20 U.S.C. § 1414[d][3][C], 34 C.F.R. § 300.346[d] and 8 NYCRR 200.3[d]). The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP. (See 20 U.S.C. § 1414[d][4][B], 34 C.F.R. § 300.346[d] and 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child." (See 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). The child's regular education teacher's membership in the CSE is particularly important to meeting the statutory requirement that the IEP explain how the child's needs will be met so that the child can be involved in and progress in the general curriculum. (See 64 Fed. Reg. 48, p. 12583). In addition, it is critical that at least one regular education teacher of the child be a member of the CSE and provide input on appropriate supplementary aids and services, including program modifications and supports for school personnel given the IDEA's emphasis on, to the maximum extent appropriate, educating children with disabilities in regular classes with non-disabled children with appropriate supplementary aids and services. (See 64 Fed. Reg. 48, p. 12591)

Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a special education administrator or a student’s special education teacher to serve also as the student’s regular education teacher member of the CSE. (SRO No. 01-083). The regular education teacher participating in the CSE should not only be appropriately certified to teach the student, but should also be a teacher who is, or may be, responsible for implementing a portion of the IEP. (SRO No. 03-015 and 02-080)

Although the DOE cannot always be expected to know who the student’s regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student. (See SRO No. 02-080, 01-105 & 01-083)

Under the circumstances, I find that the absence of a general education teacher from the June 13, 2011 CSE meeting did not compromise the development of an appropriate IEP, and therefore, did not deny the student a FAPE. (See Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002], SRO No. 02-056, 01105 & 01-083) The Parent concedes that the private school representative fully participated in the IEP meeting and she agreed with what he said. (T-311) Thus the absence of a general education teacher, as a result of the private school’s failure to allow his or her participation, did not seriously infringe on the Parent’s participation in the creation or formulation of the IEP because she could discuss supports for the student’s participation in regular education with the private school representative. Consequently, I find that the student’s CSE was properly constituted under law.

As stated above, 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]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). In this case, the relevant evaluation reviewed by the CSE team are the student’s neuropsychological evaluation dated April, 2011 (D-5), his social history evaluation dated May 9, 2011 (D-7), his classroom observation dated May 27, 2011 (D-10) and his vocational assessment dated May 27, 2011 (T-46, D-11 & D-14)

The student’s evaluation is dated April ,2011 and states that the evaluation “…continued to highlight that paralleled [student’s name] …commonly associated with .” (D-5) The evaluation reports that neither the student’s mother nor his teachers reported a range of that would indicate . (Id.) His academic skills were in the range with solid math skills overall. (Id.) His academic skills are said to be within , but it is noted that “…the increased demands of high school will require skills that will be more challenging for [student name].” (Id.) The evaluation states that the student needs a where he can receive and recommends an school that provides individualized and small group support for students who have . (Id.) The evaluation also recommends testing accommodations, graphic illustrations, repetition, demonstrations as needed with review and reinforcement and certain computer software programs that “may prove” helpful. (Id.) The evaluation concludes with a summary of test results which are ” and/or “average.” (Id.)

The student’s social history evaluation is dated May 9, 2011 and notes the student’s and that he is reported to be doing well at his current private school. (D-7) His mother is said to want the student to continue in his current private school where he is receiving support and individualized attention. (Id.)

The student’s classroom observation is dated May 27, 2011. (D-10) It notes that the student is in a class with (17) students (11 boys and 6 girls). (Id.) The observation further states that the student sat in the middle part of the front row, gave offered and was in the math lesson. (Id.) The student’s vocational assessment dated May 27, 2011 states that the student learns best when he is . (D-11)

The student’s test scores and evaluations show that he is qualified candidate for general education, as further evidenced by his second semester report card grades (Math = , French = , English History and Science ), as cited in the “CSE Review Rationale.” (D-15) The law requires that the student's recommended program be provided in the least restrictive environment (“LRE”). (See 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]; 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] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

Here, the student’s June 13, 2011 accurately classifies the student as a student with a which encompasses his . (See 8 NYCRR § 200.zz(6) & D-14) The IEP recommends placement in a general education class with an “ ” staffing ratio (smaller than his current (17) student class at the private school) with SETSS “direct” services, (50 periods per week in a separate location in a public community school.) (D-14) Specifically citing the student’s evaluation, the IEP notes that his academic performance is overall in the and calls for the student to be instructed to grade level. (D-14 & D-5) The IEP provides the student with all of the testing accommodations recommended in the evaluation. (Id.) It also indicates that his academic management needs require individualized instruction by a master-level special education teacher. (D-

14) The IEP appropriately notes that the is age appropriate and calls for fading teacher assistance through the use of a methodology and scaffolding, explicit instruction and multisensory strategies. (Id.) General education without SETSS was considered for the student, but was rejected because the student “requires additional support to meet his academic needs.” (Id.)

As stated above, the DOE is not required to “maximize” the student’s potential. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) The agency must only provide “an IEP that is 'likely to produce progress, not regression,’ and . . . afford the student with an opportunity greater than mere ‘trivial advancement.’”, while being “reasonably calculated to provide some ‘meaningful’ benefit.” (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) For all of the reasons stated above, I find that the student’s June 13, 2011 IEP comports with the requirements of the law. There is also evidence in the record that the IEP could have been be properly implemented by the DOE. (T-443-4, 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The recommended DOE school has only (350) students and was open during the summer of 2011 when the FNR was issued. (T-171-2 & D-16) The record indicates that the Parent sent a letter to the DOE requesting a FAPE on February 28, 2011 and provided the agency with the evaluation at the end of April; that the DOE conducted a social history evaluation on May 9th and held an IEP meeting on June 13th; that the DOE sent the Parent an FNR on July 6th and that the Parent sent the DOE a letter on July 20th stating that she was informed that there were no tours of the recommended DOE school during the summer and advising the DOE that she would enroll the student in an appropriate program/placement if the DOE did not do the same for the 2011-2012 school year; and that the Parent also sent a letter on August 16th giving the DOE notice of the student’s unilateral placement at his current private school. T-290-3, D-17 & P-A)

The DOE school is located about a half-hour from the student’s residence, but the Parent did not take the opportunity to walk over to the school before notifying the DOE of the student’s unilateral placement at the private school. (T-351) The student previous attended another private school for two years. (T-329) In fact, the student has never attended a public school. (T-296-301) When the DOE hired an evaluator to evaluate the student, they were informed on March 18, 2011 by that evaluator that the Parent was having the student “privately” evaluated even before the DOE evaluation was conducted. (D-3) The Parent also stated as early as May 9, 2011 that she wanted the student to remain in his current private school. (D-7)

The above facts and circumstances evidence the DOE’s efforts to expeditiously produce an IEP for the student and offer the student a placement before the beginning of the 2011-2012 school year in September. They also indicate that there may have been no real intention to place the student in a public school for the 2011-2012 school year.

For all of the reason stated herein, I find that the DOE offered the student a FAPE for the 2011-2012 school year. Having so found, the necessary inquiry is at an end and I need not determine whether the student’s private school placement in appropriate, or whether equitable consideration bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief in the form of tuition reimbursement, transportation, costs and fees and any and other appropriate relief is DENIED. Dated: October 23, 2012

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer ED: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 RECORD

# of

Number/Letter Title Dated For Pages

1 Due Process Complaint 09/26/11 DOE 4

2 Parent Letter 02/28/11 DOE 1

3 E-mail to CSE 03/18/11 DOE 1

4 Letter from Mrs. Undated DOE 1

5 Evaluation 04/2011 DOE 18

6 Consent for Initial Evaluation 05/09/11 DOE 1 7 Social History Evaluation 05/09/11 DOE 5

8 Home Language Survey 05/09/11 DOE 2

9 Observation 03/24/11 DOE 4

10 Observation 05/27/11 DOE 2

11 Vocational Assessment 05/27/11 DOE 1

12 Notice of CSE Review Meeting 05/26/11 DOE 1 13 Letter for CSE to Parent 05/26/11 DOE 1

14 IEP 06/13/11 DOE 1

15 CSE Review 06/10/11 DOE 3

16 Final Notice Recommendation 07/06/11 DOE 1

17 Letter from Parent to CSE 07/20/11 DOE 1

18 Curriculum Undated DOE 30

19 Licenses of DOE Personnel Undated DOE 18

A Parent Letter 08/16/11 Parent 2

B Academic Rpt. 2010-2011 Parent 1

C Contract 02/16/11 Parent 16

D Subpoena for Documents 01/25/12 Parent 1

E Subpoena foe 02/10/12 Parent 1

F Academic Report 01/06/12 Parent 1

G Resume of Undated Parent 7