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: May 19, 2011

June 3, 2011

June 6, 2011

June 15, 2011

July 28, 2011

Actual Record Closed Date: December 16, 2011

Hearing Officer: Edgar DeLeon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 05/19/11 06/03/11 06/06/11 06/15/11 07/28/11

( ) SETSS Teacher DOE 05/19/11

( ) Speech Therapist DOE 06/03/11

( ) SETSS Teacher DOE 06/03/11 ( ) School DOE 06/06/11 Attorney PARENT 05/19/11 06/03/11 06/06/11 06/15/11 07/28/11

Mother PARENT 05/19/11 06/03/11 06/06/11 06/15/11 07/28/11

Father PARENT 05/19/11 06/03/11 06/06/11 06/15/11 07/28/11

_______ Intern PARENT 07/28/11 Intern PARENT 07/28/11

( ) Teacher PARENT 06/15/11

Dr. ( ) School PARENT 06/15/11

On February 24, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute between the Parents of a ( ) year old student attending a private school and the New York City Department of Education (“DOE”), Home District: , Service District: concerning the student‟s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on May 19, 2011, June 3, 2011, June 6, 2011, June 15, 2011 and July 28, 2011.

The case was adjourned on July 28, 2011 to August 9, 2011, to allow the student‟s private school teacher to review her testimony and swear or affirm the same. (T-524-5) Her testimony was sworn to on August 17, 2011. (See Parent‟s Closing Statement) The Parent‟s written closing statement was received on August 31, 2011. The DOE‟s written closing statement was received on September 1, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The Parents allege that the student‟s Individualized Education Program (“IEP”) dated November 9, 2010 is procedurally and substantively flawed. (See Parent‟s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student a private school for the 2010-2011 school year. (Id.) The Parent seeks reimbursement for the student‟s tuition, provision of transportation and related services for the 2010-2011 school year. (Id.)

THE DOE‟S CASE

The DOE argues that it provide the student with a “free and appropriate public education” (“FAPE”) for the 2010-2011 school year. (T-17) The student‟s “SETSS” teacher knew her strengths and weakness. (Id.) The student‟s classification of disability is impaired which is uncontested at this hearing. (Id.) She is recommended for general education with “special education teacher support services” (“SETSS”), five times per week with related services of . (T-17-8) Any missed speech sessions were offered during a time that was convenient for the student. (T-18) In October, the DOE started a “brief” Committee on Special Education (“CSE”) meeting. (Id.) The CSE met again in November of 2010. (T-18-9) There was no objection at that time by either of the student‟s Parents or any of her service providers. (T-19)

The DOE also argues that the student‟s private school is overly restrictive. (T-19) The Parents did not object to the program recommendation or the goals created at the CSE review. (T-20) The Parents did not exhaust their administrative remedies with regard to the Individualized Education Program (“IEP”). (Id.) They pulled the student out of the public school in December without notice to the DOE. (Id.) The student‟s mother signed the “final notice of recommendation” (“FNR”) indicating her agreement with the public school and its program. (Id.) She had indicated to members of the public school that she wanted to place the student in a private school and refused to permit the DOE to evaluate the student. (T-20-1)

The DOE called (4) witnesses to testify on its behalf and submitted (16) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE‟s first witness was the student‟s SETSS provider last year in the grade. (T-30) He has worked for the DOE for (27) years. (T-32) He has been at the student‟s former private school for (17) years. (T-33) He is licensed as a special educator for the DOE. (T-35) He was the student‟s SETSS provider for 2009-2010. (T-37) He met the student once a day, five times per week for (45) minutes per session. (T38)

The witness stated that the student‟s strengths are that she is hard working with good decoding skills for the program, strong math skills and good writing skills except for her . (T-39) Her weaknesses are essays. (T-39-40) The student really did not services. (T-40)

The witness stated that there were many meetings with the student‟s father and a lot of meetings with her mother. (T-41) He believes that they were very accommodating and at the Parents‟ request they only took the student out for services when there was silent reading going on in the room. (T-42) There was also a lot of communication between the student‟s teacher and him. (Id.) The IEP allowed him to have up to (8) students when he provided services to the student, but he would try to keep it between (4) and (8), sometimes (6). (T-44) The witness stated that he was present at the CSE meeting on October 29, 2009. (Id.) He tends to send the IEP home ahead of time so that the Parents can review it before they come in for the IEP meeting and can be prepared to provide input. (T-48) They wanted to reduce the services to (3) times per week, but the Parents objected and they kept it at (5) times per week. (T-48-9) The Parents expressed concerns about the student‟s and wanted to know if he was taking the student and if she was missing anything. (T-49-50) They accommodated the Parents by only taking the student out of class during independent reading. (T-50) The Parents thought that the student‟s homework was a for the student. (Id.) He and the student‟s general education teacher could modify some of the . (Id.) He believes that the teacher also had the student reiterate the assignments. (Id.) The general opinion from the other professionals was that she was progressing and that she . (T-52) Her “testing modification” on her IEP. (Id. & D-4)

The witness stated that the student is high functioning. (T-54) She was really beginning to outgrow his SETSS program. (Id.) It was his opinion that they should have reduced the student‟s SETSS program to at least three times a week. (T-59-60) The student was really ready to move on. (T-60) She was ready to receive less SETSS. (Id.)

On cross examination, the witness testified that he is certified in special education from grade. (T-61) He does things with a program. (Id.) The student‟s and were done magnificently. (T-62) The student was able to . (Id.) That finding was based on his teacher assessment and the other assessments which were the Teacher College running records and the program. (Id.) The student was in the grade and was able to . (T-63) The citywide test showed she was in the grade when she was in the grade. (Id.)

The witness stated that he communicated with the student‟s father via e-mails. (T-66) The student was class once in a while. (Id.) He doesn‟t think that it had to do with school work, but instead it was more . (T-67) He believes that the student was because she felt that she . (T-68) The student benefited from being in his small group setting. (T-69) The SETSS class was not held at the same time every day. (T-70) The student was pulled out of class during independent reading or non-academic critical time as per the Parents‟ request. (T-70) The student was in SETSS with other graders. (T71)

The witness stated that the student‟s family was going and those things affect children. (T-73) The student had about . (Id.) Their understanding was that the Parents were . (Id.) The student had , but no more than other graders. (T-75) He was never contracted about an IEP meeting subsequent to June of 2010. (T-76)

The witness stated that both Parents were caring. (T-77) He thinks that the student‟s was pointing in the direction of private education and the father‟s idea was more that the student was tutoring. (Id.) He was headed more towards the student receiving some private tutoring after school. (T-77-8) He “ an evaluation having been conducted by the Parents last year. (T-78) The student‟s general education teacher was provided with a copy of her IEP. (T-79) During the 2009-2010 school year, the student‟s mother felt the student needed a different academic setting, but her father did not. (T-81-2) The student was functioning at a higher level than the other students he was working with in class. (T-82)

On re-direct examination, the witness testified that he thought the being around the general population. (T-84) He did not think that the student needed a class. (Id.) The student is so high functioning that the student is going to go to a better college than he could ever get into. (T-85) The student did not require private tutoring to make academic progress. (T-85-6) He believes the student felt that she could do more than what the were providing. (T-87)

On re-cross examination, the witness testified that he was aware the student is . (T-89) The student scored a (649) on her ELA results that was the highest you can get on a Level Two. (Id.)

The DOE‟s second witness is a . (T-99) She was the pathologist. (T-108) She has been employed by the DOE for (8) years. (T-110) She has a New York State license in . (T-111) She has been in the public school for (7) years. (T-112) She has worked with , and students. (T-113) She was the for approximately a year and a half, for all of the grade and the grade from September until January. (T-114) She saw the student twice a week, for (30) minutes in a group of three students. (T-114-5) The witness stated that the student had trouble with organizing and expanding ideas, generating and initiating topics, maintaining topics, asking questions and making comments that are unrelated to the topic at hand, word finding issues and frequently rushes through her work. (T-115) She determined this through informal assessments and by looking through the student‟s old IEPs. (Id.)

The witness stated that she communicated frequently with the student‟s teachers. (T-116) She also had contact with the student‟s Parents. (T-117) Sequencing different steps in a direction helps the student to follow oral direction. (T-119) Increasing vocabulary categorization skills helps with word finding. (Id.) Increasing the student‟s vocabulary skills and formulating definitions will help her expand her ideas and increase her vocabulary. (T-120)

On cross examination, the witness testified that she stopped working with the student in January of 2010. (T-123) She went on maternity leave. (T-124) Her two “successors” sought an understanding of the students from her. (T-124-5) She acknowledged that she saw the student in a group of three, but that the student‟s IEP calls for her to be in a group of two. (T-126-7) She attended the student‟s IEP meeting in October of 2009. (T-129 & D-3) She was not the “ ” at the IEP meeting. (T-130) She does not know who signed in as the “ .” (Id.) Neither does she know why there was no school at the October 29, 2009 meeting. (T-131) Sometimes the student would become during with her. (T-135)

On re-direct examination, the witness testified that DOE Exhibit “4” states that the student‟s group size is stated as “ .” (T-137-8) She believes that was an appropriate group size for the student. (T-139) Working in a group is more social and the students learn from one another. (T-140) On re-cross examination, the witness testified that her colleague who wrote the IEP in November did not feel that a group of was appropriate by recommending one session of individual and one session of . (T-143)

The DOE‟s third witness was the student‟s teacher. (T-145) She is a special education teacher. (T-147) This is her with the DOE. (T-148) She has taught and graders, typically (11) to (13) year olds. (T-149) The students were , and other . (T-

150) She taught the student from September until December of 2010. (T-152) The student was in the grade at the time. (Id.) She had the student‟s 2009 IEP and her evaluation. (Id.) The evaluation identified the student as having deficits in and . (T154 & D-12) The student also had but was stated to be friendly and a motivated. (T155)

The witness stated that she gave the student a Gates Reading test, Math Benchmark test and program in September of 2010. (T-156-7) The student‟s math calculations were level but she still needed help with and she was reading on a grade level. (T-157) In October, she gave the student the Fountas and Pinnell assessment for decoding. (Id.) The student was reading most words fluently and had skills. (T-158) The student did fine in , but she needed some help with longer problems, multi-digit multiplication and multi-digit division problems. (T-158)

The witness stated that SETSS was not on the student‟s class schedule. (T-159) The student received SETSS every day for (40) to (45) minutes in a group of (4). (Id.) The student‟s reading and math were on a grade level. (T-160) For reading, the students would read independently allowing her to give them individual instruction. (T-

161) She was in with the student‟s other teachers. (T-162) The student benefits from repeated instruction and practice. (T-164) She did a combination of “ ” and “ ” sessions. (T-170) She would mostly pull the student out of humanities or math. (Id.) The student was quite visual. (T-172)

The witness stated that the student benefited from the use of manipulatives. (Id.) Her father did not bring up too many concerns, but the mother said they were addressing the student‟s dyslexia. (T-173) She gave the student‟s mother strategies to use at home like color-coding, listening to books on tape, having the text in the front of her, helping her organize her writing and ensuring that she was reading books that she could read independently. (T-173-4) She was aware of the from her evaluation. (T-174)

The witness stated that the student‟s mother wanted her to improve her grammar. (T-177) Prior to the November IEP meeting, the student‟s mother gave them another psycho-educational evaluation and said that the student‟s math teacher was not teaching to the student‟s difficulty with math. (T-178 & D-13) The student‟s teacher generally thought that she was at grade level in math. (T-179) They talked about coming up with a for the student. (T-181) The student‟s mother sent her an e-mail saying that the planner was not working. (T-182) She did state that they thought the student might need . (Id.)

She got a mixed response from the Parents who did not want the student in school. (T-

183) It was unclear if the student had received or if she presently. When the Parents realized that the student would be moving classes if “ ” was recommended, they did not want that to happen. (T-183-4)

The witness stated that it was clear that the student had academic needs that warranted special education services. (T-184) Everyone was in agreement about general education and a SETSS placement at the meeting. (T-184) They changed the student‟s from “2 x 30”, to “1 x 40 x 1” and “1 x 40 x 2.” (Id.) They did not draft an IEP at the end of the October 2010 IEP meeting because they knew that the student was coming up for a triennial in two weeks on November 9, 2010. (T-185) She based the IEP‟s academic page on both evaluations and teacher reports. (T-186) Before she left the school, the student seemed to get more , but she did not get to do a post assessment. (T-190) There were (24) students in the student‟s general education class and (12) students in her music class. (T-194)

The witness stated that the only documentation reviewed for the meeting was the two psycho-educational evaluations provided by the Parents. (T-194-5) One was useful; the other did not have a recommendations page and seemed slightly biased. (T-195) The student does really well in a small group setting. (T-199)

On cross examination, the witness testified that the student received 1:1 instruction with a special education teacher with her for one period every day. (T-203) The student‟s speech therapist was terminated. (T-204) There was a period of time when the student did not have speech and language therapy. (T-205) The student received two periods of speech and language therapy per week. (Id.) She received five periods a week of SETSS. (Id.)

The witness agreed that at any given time, seven groups of three are not under the direct egis or supervision of any teacher, because the teacher is dealing with one group of three. (T-208) One Parent said that the student was seeing a of school and the other Parent said no. (T-209) No one at the IEP meeting spoke with either of the two psychoeducational evaluators. (T-210) She either pushed in or pulled the student out of her humanities or math class five times per week. (T-213) She met on a regular basis with the student‟s teachers, but not her speech teacher. (T-214) Consistent input by the speech and language therapist did not exist. (Id.)

The witness stated that the student‟s mother consistently expressed concern about the propriety of the student‟s program. (T-215) Sometimes her concerns were specific, other times they were not. (Id.) The student‟s goals came as a result of the mother‟s concern. (T-216) She agrees that the mother‟s concerns were valid. (T-217) One of the evaluator‟s requests for a special school was discussed at the IEP meeting, but does not appear on the IEP. (T-218-9) Neither is their discussion about a CTT for the student mentioned on the IEP, although it should have been. (T-221) The student‟s mother objected to a CTT placement because the student would have to make new friends. (T221-2)

The witness stated that the student‟s mother requested that the student not be tested by the school . (T-224) She is not sure if a evaluation was done for the student. (Id.)

On re-direct examination, the witness stated that the student left their school at the December break. (T-228) The student‟s mother was never happy with their school since day one. (T-228-9) She did not think the student needed another class because she was making progress with SETSS and . (T-230) The Parents approved of the student having make-up sessions after school. (T-231-2) The Parents did not ask her to call either of the psycho-educational evaluators. (T-232-3)

On re-cross examination, the witness testified that the telephone numbers for the two psycho-educational evaluators appear on their reports. (T-236) The witness acknowledged that less than 50% of the week there was no SETSS being given to the student. (T-238)

The DOE‟s fourth witness is the school . (T-244-5) She met with the student once and observed her in the classroom. (T-245) She holds a provisional school license, monolingual and bilingual. (T-247) She has worked with , , , , orthopedically , and students. (T-248) She started working at the school in October of 2010. (Id.)

The meeting in November of 2010 was to update the student‟s IEP as well as the student‟s mandated three year evaluation. (T-249) She had a conversation with the mother, observed the student in the classroom, met with the student, asked a social worker to conduct an updated social history and reviewed the private evaluations that the Parents had submitted to the school. (Id.) The student‟s mother asked her not to evaluate the student because she felt that the student has had extensive testing. (T-249-50) The Parents submitted two private evaluations. (T-250 & D-12, D-13) The school conducted a social history. (T-251 & P-N)

The witness stated that they talked more about how the student‟s needs were currently being addressed. (T-252) The evaluations really were not discussed. (Id.) There was a meeting conducted a couple of weeks before the November, 2010 meeting. (Id.) The private evaluations were definitely useful because a lot of the testing that was conducted by the . (T-255) She uses similar tools and the testing was quite recent. (Id.) She also spoke with the student‟s humanities teacher. (Id.) At the meeting they discussed the student‟s needs, difficulty with and her difficulty with writing. (T-256)

The witness stated that the student‟s teachers and providers drafted the student‟s goals. (T-257) The recommendation was for the student to remain with the same services of SETSS and therapy. (Id.) There was no objection to the recommendation. (T-258) She received an FNR a few weeks later wherein the student‟s mother agreed to the services. (Id.) The student‟s mother objected to placing the student in a class, which is general education and the “least restrictive environment” (“LRE”) for the student. (T-259) She feels that the testing that was conducted was appropriate. (Id.) One of the private psycho-educational evaluations recommended time limited placement in a special school which they did not agree with. (T-260) The student‟s academic performance page on her IEP is based upon her observation and the private evaluations. (T-262)

The witness stated that she brought up because the student had some issues because of her academic struggles. (T-263) The student‟s mother said that she did not want the student to receive in school and that it was being addressed privately. (Id.) The student said that the school was okay, but that there were a lot of kids who were not from her background. (T-264) Basically, the student said that there were not many white kids in the school. (Id.) It sounded like something that was mentioned at the student‟s home, but she can‟t be sure. (T-265) When she saw the student in the classroom, she seemed comfortable. (Id.) All of the student‟s teachers were saying that she was functioning . (T-266)

On cross examination, the witness testified that her observation was approximately (40) minutes long. (T-269-70) She did not report the student‟s statement about not having many white kids at school to her Parents or the CSE. (T-271-2) She felt that the testing done by the was sufficient. (T-274) There were no new reports from the related service providers but new goals were completed by the . (Id.) The student‟s mother did not want any new testing done. (T-275) She does not recall going into details about the student‟s social history report. (T-276) Through the social history, the student‟s mother indicated that she had concerns about the student‟s program. (Id.)

The witness stated that at the time of the IEP meeting, the student‟s were increased to (40) minutes. (T-278) It was a that happens in all schools when the student‟s leave elementary school. (Id.) There was no parent member at the IEP meeting. (Id.) The Parents did not waive the participation of a parent member. (T-279) She cannot remember discussing the fact that the student learns best in small groups or that she needed concepts explained multiple times. (T-280-1) She remembers discussing her observations and how the student‟s needs would be addressed. (T-282) The student‟s mother did not want to discuss . (Id.) was not listed as an option considered on the student‟s IEP. (Id.)

The witness stated that school based is typically recommended when it is affecting a student‟s academic performance. (T-283) She cannot say whether the student would benefit from it. (Id.) The two evaluations were not reviewed at the meeting, but each goal and objective was discussed in detail. (T-284) The student‟s mother was not told that the student‟s services would be cut if she did not sign the FNR. (T-285)

On re-direct examination, the witness testified that the Parents did not request a speech and language evaluation. (T-286) She felt that the student would benefit from SETSS. (T-288) There was no substantive testimony developed during the witness‟ recross examination. (T-289-90)

THE PARENT‟S CASE

The Parents argues that the student is currently attending a New York State approved private school for children classified as being or . (T-22) They do not dispute the student‟s classification of . (Id.) The student is also . (Id.) The student‟s November 9, 2010 IEP is procedurally and substantively flawed. (T-23-5) The class sizes were too big, she was not receiving enough SETSS and the student was having difficulty making progress. (T-25) The student needed a small class setting. (T-26) She has really done well since being at the private school. (Id.) They had communicated with the public school via e-mails. (T-26-7)

The Parents called (3) witnesses to testify on their behalf and submitted (12) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parents‟ first witness was the student‟s private school homeroom teacher. (T-

300) She is certified is special education in New York State for grades (10 through (6). (T-302) She has been a six grade head teacher for two years. (T-304) The private school is a New York State approved independent school for grades (“K”) to (12), for students with learning disabilities. (T-305) The is a separate program with its own principal. (T-306) There are (108) students in the school and (36) students in each grade. (T-307) The school is co-ed. (Id.) The student are classified as either or diagnosed with a . (Id.) All of the students in the middle school have an IEP. (T-308) There are

(12) students in her homeroom, six boys and six girls. (T-308-9) She has an assistant teacher. (T-309)

The witness stated that the student has been in her class since January 3, 2011. (T-310) The staff has some formal meetings and many informal or impromptu meetings. (Id.) The student‟s weaknesses are her , having a , her and she is . (T-311-2) One of her strengths is . (T-313) The student‟s in many ways. (Id.) They are often working on the student‟s , and help her out . (T-314) The student meets in a small group once a week with their and when she requests an individual session. (T-315) The student‟s has reduced. (T-315-6) They also make great use of their as is a big part of the student‟s in her academics. (T-317)

The witness stated that they also use and the “ ” feature. (Id.) They record text into a program called “ ” so that the students can access it at their own pace. (T-318) They try to use a in all of their classes. (Id.) The student receives therapy at the private school as a combination of a “ ” service. (T-319-20) When she‟s pulled out, it is in a group of (5). (T-321) They work on a lot of organization of . (Id.) Every teacher in every class incorporates language instruction into their curriculum. (T-323) The student has issues which she is able to address. (T-323-4)

The witness stated that they have “ ” for a half hour every morning, for (15) minutes at the end of the day and for one period of the day on Thursdays. (T-326) The student always hands her homework in on time and it is always complete. (T-331) Parent conferences are held three times a year and they also communicate with the parents by phone and e-mail. (T-331-2) They split their groups mostly based upon their decoding needs. (T-335) They use “QAR Reading Comprehension” strategy, which is “Question Answer Relationship.” (T-336) They also do “literature circles.” (T-337) The student has a . (Id.) When she without having the , the student seems able to . (T-338) The student is clearly comfortable in a group of (5). (T-339)

The witness stated that a small group is comprehension, as well as for her writing. (T-340) In writing, the focus is on being very explicit and direct and they use a lot of . (Id.) They also provide a strategy for . (Id.) The student has some difficulties with spelling that are related to her . (T-342) She has noticed progress in the student‟s reading, writing and spelling skills. (T-342-3) As a methodology for math they use a lot of teacher made work based on the New York State standards. (T-345) Math is one of the student‟s strengths although she still needs and repeated practice. (T-346) The student does well in her math class. (Id.)

The witness stated that the student gets her work in with extra help. (T-347) Science is the where she needs a lot of attention. (T-348-9) In , the student participates often, does her homework to the best of her ability and has made a lot of progress. (T-350) The student‟s transition to the private school was . (T-352) Socially, it was clear that she . (Id.)

The witness stated that every classroom at the private school has a . (T-353) Sometimes the science teacher will use .” (T-353) Multi-step direction is “almost” built into their curriculum. (T-353) Other than for “PE” and “lunch”, the student is typically with a group of ( ) . (T-356) The student needs a small group throughout the entire day. (T-359) The student‟s progress is monitored through teacher observation and ongoing informal assessments. (T-360) The student is passing all of her classes. (T-361) The student has made the most progress in the area. (Id.)

On cross examination, the witness testified that there are no classes larger than

(12) at the private school. (T-364) She could see how the student‟s transition to a new school in the middle of the school year could contribute to . (T-368) However, her wasn‟t due as much to her transition, as just the content of her classes, the homework expectations and the student doing the right thing in class. (T-368-9) She cannot say that she has ever discussed the student‟s or with her. (T-370) She has not talked with any of the student‟s prior teachers. (T-371) The student‟s Parents gave her some second hand information and she read the student‟s evaluations. (Id.) She is familiar with student‟s evaluation marked as “D-12”, but not the one marked “D-13.” (T-372)

The witness stated that for English comprehension decoding, the student is at about a grade level, for math, she‟s at a grade level, in English Language Arts, she‟s at approximately a grade range and in writing at a grade level. (T-373-4) They have done informal screening of the student, teacher made assessments and/or informal observations. (T-374) In math, the student‟s class is at approximately the grade level. (T-376) She cannot say what the individual students‟ grade levels are. In the student‟s group, decoding and comprehension are at approximately to maybe grade level. (T380)

The witness stated that “ ” used to be called “ .” (T-384) When the student is pulled out for , she is pulled out from . (T-385) She has reviewed the student‟s IEP and works on the goals therein. (T-387) There was no re-direct examination of the witness. (Id.)

The Parents‟ second witness is the school at the private school. (T-388) He has treated and counseled the student. (T-389) He is a New York State licensed psychologist since 2004. (T-392) The student came in for an interview in the fall of 2010. (T-393) The student is a child that wants to and has some . (T-394) She has significant and issues. (Id.) She also has difficulties with reading, , social difficulties and . (Id.) He has evaluated the student informally and observed her in the classroom. (T-394) He also reviewed the student‟s evaluations. (T-395) The witness stated that all of the students at the private school are in group counseling called “Health and Human Relations” for (45) minutes. (Id.) She is in a group of (6) students for that class. (Id.) The student is also in a larger group called “ ” for kids that live with one parent. (Id.) She is also in a and receives individual support as needed. (Id.) In the beginning, the student was hesitant to talk. (T-397) Now she is better able to tolerate hearing other students‟ experiences. (T-398) Before, if a classmate was . (Id.) That caused the student a lot of social conflicts. (Id.) She has made a lot of progress with that. (T-399) The student did not want to make a mistake which was interfering with her . (Id.) The student has made since she started at the private school. (T-406)

On cross examination, the witness testified that he does not have a background in speech pathology. (T-408-9) As part of his evaluations, he utilizes language measures and he worked in a department. (T-409) He is the one who interviewed the student and her Parents for admission to the private school. (T-410) He did not speak to anyone at the student‟s prior public school to see how she acted at that school. (T-412) He has only seen the student‟s records, but does not recall what was in her file. (T-412-

3) His individual meetings with the student vary from (15) minutes to a half hour. (T-

416) There was no re-direct examination of the witness. (T-417)

The Parents‟ third and final witness is the student‟s mother. (T-429) She said that the student is ( ) years old and has completed the grade. (T-430) The student attends a private school for children that have and are taught in a small environment. (Id.) The student started at the private school on January 3rd. (T-431) The student attended a public middle school from September through December of 2010. (Id.)

The witness stated that the student is an outgoing girl, filled with energy, lots of joy, personal, . (T-433) She is also an . (T-434) The student struggles to because of her . (Id.) The student could not . (Id.) She agrees with the student‟s classification as speech and language impaired. (T-435) The student has had an IEP since kindergarten. (Id.) The student‟s was seeing a that she could not finish. (T-436) The student received years back, once a week for three years, that the Parents paid for. (T-

437) She was constantly doing the with her. (Id.) Sometimes they would work for (3) or (4) hours on homework and would . (T-438)

The witness stated that she e-mailed the student‟s teachers every day with information concern what the . (Id.) The student had a SETSS program and was pulled out for five times a week for reading and twice a week for . (T-439) She considered two other private schools that are focused on children with . (T-440-1) Then they decided to give the public school system another chance. (T-441) On August 10th, she wrote a letter to the DOE letting them know that they were seeking placement for the student and requesting another CSE meeting. (T-442 & P-E) She did not receive a response. (T-443) The student never received her services consistently. (Id.) She notified the principal by e-mail. (T-444)

The witness stated that during the student‟s first semester at her last public school, she struggled, did not fit in, did not have any friends, and was not doing well in science, math, social studies and English. (T-445-6) The October 22nd IEP meeting was reconvened on November 9th because they did not have the right amount or proper people at the first meeting. (T-447) The student was not tested by the school but she was tested privately. (T-448) The public school had all of the student‟s reports and any kind of private testing that they did for the student. (T-449) She did not sign a consent form to have the student re-evaluated because there were enough evaluations and the student could not go through anymore testing. (T-451 & D-7) The public school did not think that one of the evaluations was accurate. (T-452) She told the social worker that she had concerns over the student‟s program and services. (T-452 & D-10) The public school did not cite any specific objection to the student‟s private evaluation. (T-454)

The witness stated that the student needs to be in a small group environment and have learning attention. (T-456) The public school offered to give the student the services that she was missing after school. (T-457) The student was formally diagnosed as having when she was in the grade. (T-458) She does not remember if there was a new evaluation for the student. (Id.) She did not discuss the private school at the meeting because it was not a thought in her mind until she had walked out of the meeting. (T-459-60) She applied to the private school at the end of November. (T-460)

The witness stated that they agreed to let the public school do what they were saying they were supposed to do, but they did not feel that the recommended program was providing the student with small group and individual support. (Id.) She signed the FNR because she was told that if she did not sign it the student would not get her services. (T-461 & D-5) She notified the public school of the private school placement when she asked them to fill out a student teacher evaluation. (T-462) The public school principal did not let them fill out the form. (T-463 & P-F-27, 28 & 29) The student was admitted into the private school on December 18th or 19th. (Id.)

The witness stated that she notified the public school that she was going to seek tuition reimbursement and did not receive a response. (T-466 & P-F-54) The student told her that it was at the public school because the kids she tried to be friends with all . (T-467) It had nothing to do . (T-467-8) The student eventually became friends with these students. (T-468)

The witness stated that the student travelled back and forth to the private school via public school transportation provided by the DOE. (T-474) The private school really focused on the specific small group environment and learning the student needs. (T-

475) She has paid the $24,600 private school tuition in full without receiving any scholarships or financial aid. (T-476 & P-D)

On cross examination, the witness testified that she plans to have the student attend the private school for the 2011-2012 school year. (T-478) The student understands her private school homework and she has not had to help her do it. (Id.) Her understanding after the IEP meeting was that the student was going to stay in general education class and was going to be pulled out for SETSS. (T-484) The private school only has special education classes. (T-485) At the IEP meetings they discussed other class settings other than just general education. (T-486) They thought that it was best for the student to stay in the environment that she was in and be pulled out for services. (Id.) The student had been previously accepted to a private school, but they decided they would give the public school environment another chance. (T-488)

The witness stated that the public indicated that she wanted the student reevaluated. (T-490) The student is a 10-month student. (T-491) The private evaluation was done in August of 2010. (T-491-2) She did not want the student re-evaluated and does not have a formal background in education. (T-492) When the student was pulled out for services at the public school it was always out of a substantive class. (T-494) She never observed the student in one of her public school classes but she spoke to her teachers about how they might have used . (T-495) Students at the public school were grouped in tables of three students. (T-496) She was told that the students were grouped according to their abilities. (T-497) English was the primary language that classes were taught in. (T-498) She was in agreement with the program on November 9, 2010 and on the FNR. (T-500 & D-5) It was her understanding that if she did not sign the FNR, the student would not receive SETSS. (T-502) The teacher never showed up after school. (T-503)

On re-direct examination, the witness testified that the student was never recommended by the DOE for a summer special education program. (T-514) At the public school there was one teacher in the class with (29) students. (T-515-6) That was very challenging for the student who could not absorb that. (T-516) She wrote an e-mail to the DOE asking for a tally of all the services that were given to the student from the start of school. (T-518 & P-F-42) She advised the public school that they were not providing the student‟s services as required by her IEP. (T519 & P-F-36) From approximately November 13-14 to December 21st, the and . (T-520-1 & P-F-46) There was no re-cross examination of the witness. (T-523)

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).

I first turn to the issue of whether the DOE created a proper IEP for the student on October 29, 2009 and/or November 9, 2010. (D-3 & D-4) 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 speech therapist, testifying for the DOE stated that she attended the student‟s IEP meeting in October of 2009. (T-129 & D-3) She was not the “speech pathologist” at the IEP meeting and she does not know who signed in as the “speech pathologist.” (T-130) Neither does she know why there was no school psychologist at the October 29, 2009 meeting. (T-131) The public school psychologist, also testifying for the DOE, conceded that there was no “parent member” at the November 9, 2010 IEP meeting and that the Parents had not waived the participation of a “parent member.” (T278-9) The student‟s mother testified that the October 22nd IEP meeting was reconvened on November 9th because they did not have the right amount or proper people at the first meeting. (T-447)

It is the duty and responsibility of the CSE to ensure that a Parent can effectively participate at the CSE review. The importance of a “parent member” is underscored by SRO Decision 02-013, which provides the following relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner‟s attorney inquired of respondent‟s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student‟s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the parent member was filled by the parent‟s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district‟s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

I also find that the student‟s IEP in this case is a nullity because it was not properly constituted under law. Accordingly, I also find that the DOE failed to offer the student a FAPE for the 2010-2011 school year. Notwithstanding the same, I further note for the record that the DOE had the student‟s two private psycho-educational evaluations prior to the November IEP meeting (T-178 & D-13) and that those evaluations were reviewed prior to the November IEP meeting. (T-194-5 & 249) Nevertheless, the school psychologist testifying for the DOE stated that the evaluations were not really discussed. (T-252) Later she stated that the two psycho-educational evaluations were not reviewed at the meeting, but that each goal was discussed in detail. (T-284) The special education teacher, also testifying for the DOE, stated that there was no consistent input by the therapist and that no-one at the IEP meeting spoke with either of the two private psycho-educational evaluators. (T-210 & 214) She conceded that the discussion over one of the private evaluations requests for a special school and their discussion about a placement for the student does not appear on the IEP. (T-218-9 & 221)

While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).

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) It is self-evident that because the only evaluations available to the CSE were not reviewed or discussed at the IEP meeting, the resulting document cannot reflect their results. Accordingly, I must conclude that in the case at bar, the IEP‟s failures cited above also render the document substantively flawed.

I turn now to the question of whether the Parents‟ unilateral placement of the student in a private school is appropriate under law. Here the Parents 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 student‟s evaluation dated December of 2009 to January of 2010 states that the student would benefit from weekly and outside homework help to reduce conflict and stress at home. (D-12) The evaluation dated August 9, 2010 identified the student as having a reading disorder, developmental dyslexia, disorder of written expression, mixed anxiety, depressed mood and academic struggles. (D-13) The DOE SETSS provider also stated that the student shows some test anxiety. (T-52) He also testified that the student benefited from being in his small group setting. (T-69) The SETSS teacher thought the student might need counseling and stated that it was clear that the student had academic needs that warranted special education services. (T-182 & 184) The student is also said to do well in a small group setting. (T-199) The school psychologist, testifying for the DOE, said that one of the student‟s private psycho-educational evaluations recommended time limited placement in a special school, which the DOE did not agree with. (T-260) She also felt the student needed counseling because she had some low self-esteem issues because of her academic struggles. (T-263)

The student „s private school is a special education school where all of the students are classified as either or diagnosed with a impairment. (T-307) There are

(12) students in the student‟s class, (6) boys and (6) girls, as opposed to the (24) students in her public school general education class. (T-308-9, 364 & 194) The student receives in a small group once a week and in individual sessions when she requests it. (T-315 & 395) The student‟s at the private school. (T-315-6)

The student received services at the private school as required, as either a “pullout” in a group of (5), or a “push-in” service. (T-319-21) The student also receives extra help at the private school. (T-347) Multi-step direction is said to be almost “built into” the private school curriculum. (T-353) At the private school, the student is passing all of her classes and has made the most progress in the social emotional area. (T-361 & 406) The student is better able to tolerate hearing other students‟ experiences. (T-398) The student understands her private school homework and her mother no longer has to help her do it. (T-478, 49-50 & 437-8) For all of these reasons, I find that the student‟s private school placement is appropriate.

I now decide whether equitable considerations bar an award on behalf of the Parents. As stated above, in the absence of evidence demonstrating that the Parents 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).

Here the DOE alleges that the Parents refused to allow the student to be evaluated by the agency. (T-20-1) However, the testifying on behalf of the DOE, stated that the testing done by the private was sufficient. (T-274) The student‟s mother stated that she did not sign the consent to have the student re-evaluated by the DOE because there were already enough evaluations and the student could not go through anymore testing. (T-275, 451 & D-

7) She stated that the public school was provided with all of the student‟s reports and any kind of private testing that they did for the student. (T-449) The DOE acknowledged receiving the student‟s two private psycho-educational evaluations. (T-178-9, 194-5, 260, 274 & D-12, D-13)

There is also evidence in the record that the Parents provided the DOE with sufficient notice under law of their intention to place the student in a private school. (T-442 & P-E, T452 & D-10, T-466 & P-F-54) Even after having the student admitted to a previous private school, the Parents decided to give the DOE another chance and placed the student in a public school for approximately (3) months, before and placing the student in her current private school. (T-431 & 440-1)

There is nothing in the record that sustains a finding that the Parents have not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parents. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parents and that they have met their burden under Schaffer to prevail in their request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that the Parents requests for reimbursement for the cost of the student‟s tuition at the private school for the 2010-2011 school year, totaling $24,600 (T-476 & P-D) is GRANTED and that the DOE shall immediately reimburse the Parents for the same; and it is further

ORDERED that as the student was provided with public school transportation to the private school during the 2010-2011 school year which has since expired (T-474), the Parents‟ requests for the same in their DPC is now moot and accordingly DENIED; and it is further

ORDERED that as the student received her mandated related services at the private school during the 2010-2011 school year which has since expired, the Parents request for the same in their DPC is now moot and accordingly DENIED. Dated: January 23, 2012

_________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

EDL: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

Number/Letter Title Dated For # of Pages

01 Due Process Complaint 02/22/11 DOE 01

02 Due Process Response 04/13/10 DOE 04

03 IEP 11/09/10 DOE 14

04 IEP 10/29/09 DOE 12

05 Final Notice of Recommendation 11/18/10 DOE 03

12/03/10

06 Notice of IEP Meeting 10/13/10 DOE 01

07 Consent for Re-Evaluation 10/14/10 DOE 02

08 Notice of IEP Meeting 10/26/10 DOE 01

09 Class 602 Schedule undated DOE 01

10 Update 10/19/10 DOE 02

11 Classroom Observation 10/21/10 DOE 02

12 Report from 12/16/10 DOE 06

13 Report from 08/26/10 DOE 04

14 Related Services Reports 12/06/10 DOE 01

15 Related Services Report 12/06/10 DOE 01

16 Related Services Report 12/08/10 DOE 01

A Affidavit of Payment 03/07/11 PARENT 01

B Attendance Records 2010-2011 PARENT 01

C Daily Schedule 2010-2011 PARENT 01

D Tuition Contract 12/22/10 PARENT 02

E Letter from Parent 08/10/10 PARENT 01

F E-Mails Various PARENT 55

G DPC - Amended 05/18/11 PARENT 02

H Parent Affidavit 05/19/11 PARENT 01

I Attendance Records 2010-2011 PARENT 01

J 3rd Qtr. Report Card 04/11 PARENT 05

K Final Report Card 06/28/11 PARENT 12

L Application 11/17/10 PARENT 08