Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: April 30, 2012

June 6, 2012 Actual Record Close Date: July 10, 2012 Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2012

Attorney — Student

Parents

Psychiatrist (via telephone) — Student

Teacher (via telephone) — Student

For the Board of Education: — Student

CSE District Representative — Student

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

Attorney — Student

Therapist (via telephone) — Student

Co-Director, (via telephone) — Student

For the Board of Education: — Student

CSE District Representative — Student

Introduction: — Student

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400[f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by . and ., the Parents (“Parents”) on behalf of ., the student (“Student”), through their attorney, , Esq. of the , by filing a Due Process Complaint dated October 11, 2011 with the District. P-

A. An Amended Due Process Complaint was then filed on February 8, 2012. P-B. The impartial hearing officer that was originally handling this matter as of February 9, 2012 and I was appointed at that time.

The Parents are alleging that their son, ., was denied a free and appropriate public education (“FAPE”) for the 2011-2012 school year and are seeking reimbursement for tuition of the 2011-2012 school year, for evaluations, and door to door special education transportation.

There were two days of hearings in this matter. The hearings were held on April 30th, 2012 and June 6th, 2012. The District and the Parents submitted Closing Statements on June 27, 2012. Extensions were granted in this case making the final compliance date July 20, 2012. A list of Exhibits is attached as Exhibit A.

Background

This case involved a twelve (12) year old student. During the 2011-2012 school year, . attended (“ ”) where the Student was unilaterally placed by the Parents.

With respect to the 2011-2012 school year, an Individualized Education Program (“IEP”) was developed on May 19, 2011. D-3. Pursuant to the May 19thIEP, E.W. was placed in an integrating co-teaching class for ELA, science, and math, and was provided with the following related services: counseling, one time per week, 40 minutes each time, , , two times per week, 40 minutes each time, . He was also provided with a computer and software. P-C. Another IEP was developed on November 14th, 2011 and . was provided with the same placement and services he had received on his May 19th 2011

IEP. P-C; P-D.

Position of the Parties

The first witness was ., the student’s mother. E.W. was evaluated at around one year of age and received Early Intervention for Speech and Language and Occupational therapy at home and in his preschool. Tr. 41-42. He continued to receive services throughout preschool and was decertified before he began kindergarten. Tr. 42. The mother testified that . attended for and was in a number of different types of classrooms. For Tr. 43.

The mother testified that he was evaluated by the District in and provided with and at the end of and recommended to be placed in . Tr. 44. He also received . Tr. 44. In addition, the mother testified that they sought an outside tutor beginning in second grade for additional support since he was not reading, writing, or decoding and he had difficulty staying on task. Tr. 45-46. She testified that he progressed “a little with the tutor”, “more than he did in school.” Tr. 46. As . continued through , he kept falling further and further behind his peers. Tr. 48. The Parent testified that they continually spoke to .’s teachers about this and they were told that he was bright and that he was distractible and needed to focus more on his work. Tr. 48-49. By this point, the mother testified that . hated school and would do everything he could not to go to school. Tr. 49. She stated that the teachers kept telling him he was bright, and yet he couldn’t do the work and it made him feel worse about himself. Tr. 50.

The mother testified that an IEP was developed in , his first continuing him in a CTT class with . Tr.

49. The mother testified that he wasn’t able to function in school because he wasn’t able to read. Tr. 51. His midyear report indicated that he was at risk of being held back. Tr.

51. The mother stated that . hated school and told her that he wasn’t learning and often gave her a difficult time about going to school. Tr. 52. She said that “ it was incredibly painful for him to be in school.” Tr. 52.

In May of 2011, the Parents attended a CSE meeting for EW. The recommendations for . were that he remain in the . Tr. 52. He was also offered the same services as he had before. Tr. 52. The mother stated that “there were no changes in the IEP.” Tr. 55. was departmentalized so the mother said he wouldn’t be getting classes for all his subjects and the class size would be close to 30 with two teachers for some classes. Tr. 53. His mother stated that “the bulk of the conversations [with .’s sixth grade teachers] were that [ .] needed to learn how to do the work on his own, that he was very distracted, that they couldn’t…spend the time they needed with him to get him back on point, because there were so many other kids in the room and each of the children needed their attention, and if he would only do the work, he would be progressing.” Tr. 53-54. The mother also spoke with the frequently since she was on the School Leadership Team. She testified that everyone loved . because he was kind and lovable, but no one offered a solution as to what would help him make progress. Tr. 54.

The mother testified that the only District evaluation that . had was in June of 2006 and that “the consensus among his teachers and other school personnel was that they knew him and he didn’t need another evaluation.” Tr. 56. She stated that they were the experts and she depended on what they said. Tr. 56. Despite this, the Parents sought an evaluation from Dr. in the spring of year since he was not making any progress and something needed to be done Tr. 57. The mother testified that Dr. found that Tr. 58. The mother testified that E.W. was in the 99th percentile for some things and the 8th percentile in others. Tr. 59.

The mother testified that following Dr. evaluation, they brought . for additional evaluations since it was clear that they did not have a full picture of him and did not fully understand what he needed. Tr. 60. Accordingly, they brought him to Dr. for a evaluation (P-H), Dr. (P-E), and Dr. for an (P-G) . Tr. 60. After reviewing the evaluations, the Parents determined that . had a number of and began investigating schools that would be appropriate for . and eventually enrolled him in for the seventh grade. Tr. 60-61. The mother stated that she sent a letter to the District informing them that she was placing . in and withdrawing him from . P-I; Tr. 61. She also forwarded the evaluation reports to the District. Tr. 61.

The mother testified that another CSE meeting was convened on November 17th,

2011. Tr. 62. The evaluations were discussed at that time. Tr. 62. At the meeting they determined that . continued to need a special education placement, related services and computer assisted technology. Tr. 62. The mother let the committee know that .’s computer was at this time. The mother testified that the recommendation that was made was for him to stay in the same co-teaching environment he had been in. Tr. 64. She stated that she voiced her disagreement since he had already been in that environment and it did not work. Tr. 64.

At , . is in a class of between 10-12 students and he acclimated well to his new environment. Tr. 65. .’s mother testified that transportation was provided by a school bus provided by the District. Tr. 65. She stated that “He is doing really well. He’s …not caught up, but he’s certainly making progress in a way that he’s not before. He comes home and says “I don’t know about these teachers, but they really know how to teach me” and so… he’s been making great strides academically.” Tr. 65. He joined the basketball team and is also participating in extracurricular activities. Tr. 66. She characterized his reading progress as “massive”. Tr. 66. She stated that he’s completing his assignments without me sitting on him… or monitoring every single activity…he’s…working independently…” Tr. 67.

The Parent testified that she paid for the tuition for the 2011-2012 school year and that it was $45,900. Tr. 67. They are also seeking special education transportation. Tr. 69. She stated that presently the District arranged to pick him up and drop him off in front of their house by bus. Tr. 69.

The mother testified that . is on . Tr. 69. The mother indicated that his at home is much better. Tr. 70.

On cross examination, the Parent testified that got more than one ‘Promotion in Doubt’ letter over the years. Tr. 73. She also stated that he passed the ELA “by the skin of his teeth” with modified testing and a modified passing requirement. Tr. 77. She also indicated that the only time there was a discussion about triennial evaluations was at the May 2011 meeting. Tr. 77. She told them she was having . evaluated even though they said that for placement they did not need any additional information. Tr. 78. She did not tell them that she was pursuing a because she only decided to pursue it after receiving the results of Dr. ’s evaluation. Tr. 78. In the mother’s letter informing the District that she was sending , rejecting the placement and requesting a new IEP meeting, she stated that she was going to seek further outside evaluations at the District’s expense. Tr. 80. She testified that she knew she could have her child evaluated at the District since she had done so when , however the school kept telling her that . did not need another evaluation. Tr. 80.

On cross examination, the Parent also testified that in her letter dated August 29th, she included Dr. ’s evaluation and stated that she was “respectfully reserving the right to seek reimbursement for this evaluation and any subsequent evaluations at the [District’s] expense.” P-I; Tr. 82. She testified that prior to obtaining Dr. ’s evaluation, she did not contact the District to conduct a because the school kept telling her that he did not need any evaluations. Tr. 83.

The Parent also indicated that she entered into a contract with on August 11, 2011. P-O. When the contract was executed, she gave them her first payment of $8,000. Tr. 87. She testified that she knew the deposit was not refundable but that she would have sent him to public school if they offered him an appropriate placement. Tr. 89

The next witness was Dr. . He is currently in private practice as a psychiatrist specializing in . Tr. 90. He testified that is currently a patient and he was first evaluated by him in October 2011. Tr. 91. He obtained a history from .’s mother. Tr. 92. He testified that she told him that . had a lot was . Tr. 93. Dr testified that . was compared to what could be expected of someone with his IQ. Tr. 93. He also testified that he was at home, had and unless it was of particular interest to him. Tr. 93. He also stated that he could be argumentative with respect to homework and he would often get agitated and frustrated. Tr. 93-97. Dr. testified that he thought he was enrolled at when he performed his evaluation. Tr. 94.

Dr. testified that his consists of a clinical interview, meeting with the child, meeting with the family, and reviewing any other prior evaluations that had been done. Tr. 94. In this case he only reviewed Dr. ’s . P-F. After evaluating ., he determined that . presented with a discrepancy between his . Tr. 95. Dr. Cooperman testified that or . Tr. 95. He also had , . Tr. 95. Dr. said he was able to confirm a lot of these issues and add the possibility of some . Tr. 95.

With respect to attention, Dr. testified that . . has to be in a very, very small school structured setting with a lot of one to one attention and a lot of redirection. Tr. 96. He stated that “really couldn’t be in a classroom with more than ….12 or 13 students.” Tr. 96-97. With respect to his put him on . Tr. 97. Dr. continues to see . as a patient on a monthly basis. Tr. 97

On cross examination, he indicated that he did not rule out since he stated “he has a lot of traits that are very spectrum like or certainly in that category --- not to satisfy an entire diagnosis. Tr. 99. He also testified on cross that on the medication his attention did improve, however the medication doesn’t specifically direct or target some of the underlying issues which process information. Tr. 102. Although his attention is improved, it is not improved 100%. He stated that it is not possible for him to sustain his attention throughout the day. Tr. 101.

Dr. testified that his “final diagnoses were or a with a rule out of .” Tr. 102. Dr. stated that is a much better environment for . and he has certainly made a lot of progress there. Tr. 102.

The next witness was . She is a head teacher at and has been there since 2006. Tr. 105. She has a Bachelor of Science degree in civil engineering and a Master’s Degree and PhD in science education. Tr. 105. is in Ms. s homeroom class and her science class. Tr. 106.Homeroom is each student’s base. Ms. is the point person for parent contact. Tr. 107.

In science class, there are two teachers, herself and Ms. . Tr. 107. All students are either 12 or 13 years of age and there are 13 students in the class. The range of disabilities in the class are issues, and any combination of those. Tr. 108. Ms testified that the students remain within the particular homeroom class in all subjects except math and literacy. Tr. 108. This includes current events, science, history, Spanish, woodworking, and study hall. Tr. 108. Math and literacy are taught to in small groups. Tr. 109. Literacy is done first half of the day and then there is a short break and then math. Tr. 109. Ms. testified that . is in a group of four students for literacy and a group of seven students for math. Tr. 109. Ms. stated that they break the students up into very small groups so that students have a lot more direct instruction and individualized attention. Tr. 109. They try to put students in groups with students with similar strengths and struggles. Tr. 109.

Ms. testified that the key areas that his literacy group they used information from his prior placement and after placing him, gave him the test to get more information about his ability level and what group he should be in. Tr. 111.With respect to math, an informal assessment was done during the first few weeks of school. Tr. 111. Ms. testified that one time per week in a group of three. Ms. stated that “they focus on comprehension and sort of sophisticated word usage. Looking at root words and looking at prefixes, suffices, the changes of words, understanding connotation and denotation of words. They’re looking at incorporating new vocabulary into verbal and written responses….” Tr. 112. With respect to Occupational therapy, they do informal strategies throughout the day depending on the need, but there is no formal Occupational therapy. Tr. 113.

Ms. testified that . adapted well to . Tr. 114. She stated that he made friends and became part of the community. Tr. 114. Ms. described . in her class as animated and engaged, who has a lot of interest in everything and wants to share, however, he can be and needs a . Tr. 114. His . Tr. 115. Ms. stated that he needs a reminder to stay focused every 5 or 10 minutes during class .Tr. 115. Sometimes her reminder is a word or a tap and sometimes she needs to call his name. If it’s writing, he needs more reminders to get started, while if it is a conversation it’s easier to keep him engaged. Tr. 115-116.

Ms. testified that ’s decoding deficits are addressed in ’s literary group since they are working on decoding all the time and through the . In this regard, they spend time learning and reviewing Wilson rules and then they read a text round robin using their rules and helping each other. Tr. 117-118. Specifically, Ms. testified that is “a program for learning, decoding, and encoding, and students learn a series of rules that are designed to help break down words in order to read them and they learn rules in a sequence way, and then ideally incorporate them as they’re reading and coming across unfamiliar words.” Tr 121. In his content classes, the reading is close to his level, and if it’s not they read aloud or support the reading in other ways. Tr. 116. Ms. Ortiz said that .’s comprehension is much more advanced than his decoding. Tr. 118.

Ms. testified that ’s literacy teacher is also his . Tr. 119. For literacy there is one teacher and 4 students so they get a lot of one to one attention. Tr. 120. Ms. testified that in math he is but he . Tr. 122. The strategies that . is being taught are to selfcheck as he is working through a problem, , use graph paper to line everything up properly and transfer everything appropriately, and to keep him . Tr. 12-123.

Ms. testified that is doing well in history. Tr. 124. He enjoys the material and is able to incorporate information he knows from outside of school. Tr. 124. He still has issue in writing because although he has very sophisticated thoughts, it’s hard for him to get his writing to reflect this. Tr. 124. In order to help him, he needs scaffolded questions to keep him directed. Tr. 124. Ms. stated that he is doing well in Spanish. It is mostly a conversation class so decoding issues don’t usually come up. Tr. 125.

Ms. testified that . does not but that there is he could talk to, but at the present time, he is not receiving individual counseling. Tr. 126.

Ms. feels that the ratio of students to teachers in her science class is appropriate . since it is small enough for him to get and get , yet it’s large enough for him to benefit from the ideas of the other students. Tr. 126. She also testified that the smaller class in literacy is definitely appropriate for him are both areas of struggle for him and the small group allows him to get the direct instruction he needs. Tr. 127. In math, the small group is also good since although he is conceptually strong, there are many places he can have and he needs . Tr. 127.

With respect to his fidgeting behavior, Ms. testified that they have a number of tools to help him like physical objects, or the use of a standing desk, etc. Tr. 128.

On cross examination, Ms. testified that in terms of mainstreaming, all of the students at have disabilities, however the sports teams play games against students from mainstream settings. Ms. also testified that she is not certified in special education and she doesn’t know the credentials of the other teachers that . has. Tr. 134-136. She testified that there is a discrepancy between .’s decoding skills and his comprehension skills. She would put his decoding skills at a third or fourth grade level and his comprehension much close to grade level. Tr. 127. Ms. also testified that in his literacy group he is making progress and behaviorally he needs less reminders from the teachers at this point than he did at the beginning. Tr. 141. He has learned to self-monitor. Tr. 142.

The next witness was Dr. . She has a Master’s Degree and a PhD in speech and hearing sciences. Tr. 150. She has a full time appointment at Hunter College at CUNY where she is an associate professor in the program for Communications Disorders and she has a private practice for children who present with a range of language and communication disorders. Tr. 150-151. She has been in private practice since 1990. Tr.

151. She is familiar with . since she evaluated him in March of 2011. Tr. 152. Dr. stated that the Parents brought him there because they were concerned about his struggles in reading and writing. She testified that the Parents knew there was a history of and that he was not progressing in school, so the Parents were interested in finding out whether there is a speech and language basis for his disability. Tr. 153. Ms. reviewed his early history though an academic and social history provided by .’s mother. Tr. 153. She also reviewed the report prepared by Dr. . P-F. She noted the huge discrepancy between .’s and his and particularly in terms of his processing speed. Tr. 155. Ms. testified that it appears that reading has always been an issue. He was receiving remedial assistance in first grade. He was formally assessed at the end of second grade. He received SETTS to support his academic program. She stated that at the end of his elementary school career at , he was still . Tr. 156.

Ms. determined that he presented with adequate listening and comprehension skills and verbal expression, however, he with reading a . He read so slowly that he lost the meaning. Tr. 159. He also suffers tremendously with expressive writing. After 20 minutes he wrote 14 words on a page. Tr. 159. In addition, his are very immature. Tr.

159. There was no spacing between words. Tr. 160. There was letter reversal, no punctuation, and he . In addition, most of the spelling was wrong. Tr. 160. Dr. determined that . has a difficult time listening to a word and assigning letters to the words. He also has and . She testified that when you have a child with these issues, they will struggle in reading and writing. Tr. 161.

Dr. testified that he needs a very supportive school environment where the school prescribes to some methodology like which will help the child with decoding, analyzing written language, reading, writing, and spelling so that the child receives intensive reading instruction. Dr. testified that she is familiar with the teaching methodology, academic environment and class size at and she believes it is appropriate for . Tr. 163. She stated that “it is a small, student –teacher ratio, they provide very individualized instruction which is what [ .] needs given the discrepancy in his academic profile and the fact that they are employing …” Tr. 163.

On cross examination, Dr. testified that she is recommending services but not in the traditional mode. Tr. 15. She testified that he does not need auditory or verbal support. Tr. 165. He needs training in reading and writing. Tr. 166.

The next witness was Leah Wasserman. She is a pathologist at and has been there for three years. Tr. 168. Before that she was a at a Board of Ed CPSE Program. Tr. 169. She is familiar with E.W. because he is in her literacy group and she also provides him with . Tr. 169.

The literacy group meets every day for 75 minutes except on Fridays it meets for 45 minutes. Tr. 170. Ms. testified that the administration makes up the groupings and does so according to levels of comprehension and decoding. Tr. 150. She testified that the other students in the group have similar comprehension and decoding skills. Tr. 150. The age of the students is between 11 and 12. Tr. 170. She teaches the students in the office which is a full size classroom with a smart board and tables. The students sit at a round table or she splits them up to work independently at desks. Tr. 171. She uses an FM unit which separates the speaker’s voice from all the background noise. She testified that this is useful for EW. Tr. 171

Ms. ’s comprehension at this point is higher than his peers. Tr. 172. She stated that when he started it was much closer in level to the other students but he has made significant progress. Tr. 172. She teaches based on the which is a very structured decoding program specifically designed for students and other . Tr. 173. They do 30 to 40 minutes of Wilson per day before moving into more of a traditional reading group where they are doing reading comprehension and analyzing texts. Tr. 177. Wilson is a multisensory approach to reading. Tr. 175.

Ms. testified that when . first came he was around late third grade decoding based on and they also use to assess and now he is at the mid to late fifth grade with decoding skills. Tr. 176. Accordingly he has made two grade levels of progress in decoding this year. Tr. 178. With respect to . is assessed at the end of each week in spelling and usually scores between eight and ten on a ten word test. Tr. 179. Ms. stated that once he has practiced a pattern, he’s really internalized it especially for reading purposes. It doesn’t always carry over to the spelling pattern as much out of context…but its still significantly improved to where it was in the fall.” Tr. 179. In terms of selecting texts to read Ms. testified that she takes a lot of factors into consideration including the decoding levels of the students. She tries to give them something a little harder than they would be able to do independently so that they will still get comprehension of the story. Tr. 181.

Ms. testified that she gives in class writing activities. Tr. 182. When asked if . struggles with them, she stated that “ part of my job is to structure these activities so that he does not struggle with them, so I scaffold everything I make really clear. I use a lot of graphic organizing, I do a lot of modeling…” Tr. 183. She testified that they did a five paragraph essay over a three week period in a structured format. First they took notes together in a structured format. Then they wrote outlines using a specialized form they use in all their classes. Then they self-edit. Tr. 183. She testified that they don’t want to put . in a situation where he , but rather we want to provide the support he needs to feel successful. Tr. 183.

Ms. testified that . makes use of a laptop in school. Tr. 184. She testified that his typing is very important because . Tr. 184. When he’s allowed to type, he gives much more expansive and age appropriate answers and can avail himself of spell check. Tr. 187. He also uses a text-to-speech software which helps him edit his work. Tr. 184. Hearing Officer’s Findings of Fact and Decision

Ms. stated that since . is fidgety there are a number of specific fidgets in a basket he can use during class. Tr. 185. He likes to do origami and fold paper but the rule is he can do it as long as he is focusing and paying attention. As soon as it becomes a distraction instead of a support he has to put it away. Tr. 189. He has learned to selfmonitor this. Tr. 186.

Ms. testified that . loves to participate in class and he is enthusiastic though he doesn’t always raise his hand. Tr. 186. He is learning to give specific answers to questions and leave out the extraneous information. Tr. 186. Ms. stated that whether . employs age is although it has been improving over the course of the year. Tr. 187. She sate that “He has been working on making his language more concise and he’s using more sophisticated vocabulary. Tr. 187. Ms. stated that his overall vocabulary and has improved over the course of the year. Tr. 187.

Ms. also testified that . has shown progress in decoding and writing. He went up two full grades in decoding (Tr. 187) and his writing has become more organized and he’s able to write more complex sentences. Tr. 180. She also has gotten him to the point where he will redo things in a better manner than it was previously. Tr. 188. Ms. gets literacy homework almost every night and completes it 90% of the time. He has only had a handful of home works that were not done. Tr. 189. If it is not satisfactory, he is given back his homework with specific instructions as to what to redo. Tr. 189.

Ms. . receives therapy one morning a week for 30 minutes each time with two other seventh graders. Tr. 189. They are working on the and trying to really hone in on the most relevant information, both verbally and when he is writing, and also to focus on more sophisticated vocabulary. Tr. 190.

Ms. . benefits from the group since it addresses is more therapeutic. Tr. 191.

Since September, Ms. has had the opportunity to observed . once a week in his history class since she pushes in. Tr. 194. Ms. testified that . is great at using his auditory comprehension and his memory to understand information and then rely on that background information to complete an assignment. Tr. 197. She is trying to work with him to not just rely on his memory, but go back to the text and find the information. Tr.

195. Ms. testified that hardest thing . is that he wants to share all the time and has to learn to wait his turn. Tr. 197.

On cross examination, Ms. testified that she finds .’s listening comprehension to be at an early level and for reading comprehension it is late sixth, early seventh grade. Tr. 198. For decoding, it is mid to high fifth grade and for encoding skills it is late fourth, early fifth. Tr. 199. His spelling skills without the laptop are late fourth, early fifth. Tr. 199.

Ms. testified on cross examination that she uses the Fountas and Pinnell Reading Assessment program and also the . She stated that the NYC public schools use and but the is more specialized and is used for children with . Tr. 201.At this point, with the laptop, is able to produce essays at a . Tr. 201. Ms. agrees that . has and that he has worked with the at though he not receiving at the school on a regular basis. Tr. 202.

The last witness was Courtney Jimenez. She has her Master’s degree in elementary and secondary education. She is the co-director of the middle school and has been there for seven years. Tr. 209. Before that she was a teacher at 5 years and before she worked in after school education programs. Tr. 216. She testified that as a codirector of the middle school, she “oversee[s] the teachers and the work with students in a supervisory capacity and she supports students in their work if they need extra interaction…and I work with parents.” Tr. 210. There are 110 middle school students at and they are in their own buildings. Tr. 211.

Ms. testified that she is familiar with She testified that he in the and there are three classes in the grade. Tr. 212. There are Tr. 212. She testified that the core content area classes are history, science, current events, math and literacy ( reading and writing). Tr. 212. They also take woodworking, PE, healthy choices, Spanish and study hall. Tr. 212. In literacy and math there are between four and seven students in each class. Tr. 213. There are seven students in his math class, four in his literacy class and 13 in all other classes. Tr. 213; Tr. 215. The 13 students constitute a heterogeneous grouping, however it is an aged and graded group. Tr. 214. The students are all between 12 and 13 years of age. Tr. 214.

Ms testified that was placed in a math group based on information that was provided prior to starting school. Tr. 215. Once he started he was assessed and group was actually changed. Tr. 215. Ms. testified that he was moved to a more challenging group so that he could be pushed further along in his math. Tr. 215.

Ms. also testified that he was placed in a literacy group as a result of prior assessments, reports and evaluations. Tr. 216. Ms. stated that in literacy they use the Wilson program and the to assess his levels. Tr. 216. She also stated that he was formally assessed in October and was assessed again in the past week or two. Tr. 217. Ms. believes that he began on level Tr. 217. She testified that level and grade. Tr. 217.

Ms. testified that math and literacy are reduced in class size to allow for specific and specialized instruction. Tr. 218. She indicated that this is also present with classes with 13 students and two teachers. Tr. 218. Ms. stated that at , the idea is to create as individualized program as is necessary to support the students. Tr. 219. She said they strive to push the students to their next step and differentiate each child’s program Tr. 219.

Ms. testified that the program has been tailored to meet ’s needs by using Ms. as a resource in all his classes. She stated that “his programs are as individualized as possible to help with his decoding, comprehension and language needs in his classes. “ Tr. 220. She also indicated that he receives additional technology support and the use of FM systems to meet his needs. Tr. 220.

Ms. indicated are predominantly in reading and language. Tr. 220. His decoding issues were addressed through his placement in a small group and the use of the Wilson teaching methodology which is multisensory and can support his needs. Tr. 221. Ms. stated that has made progress with these programs. Tr. 221. She stated that progress reports are issued three times a year and there are parent-teacher conferences twice a year. Tr. 222. Ms. indicated that there is ongoing communication between the teachers and the Parents because it is important to work as a team to best support each student’s needs. Tr. 222.

Ms. testified that the tuition for the 2011-2012 school year at is $45, 960 and that the Parents entered into an Enrollment Contract with the District for that year.. Tr. 223.

As administrator, Ms. stated that she meets with ’s teachers on a regular basis and they meet with each other as well. Tr. 227. His assistant teacher is completing her master’s degree at this time. Tr. 228. Ms. is the science teacher and she has a PhD. In science education but does not have certification in special education. Ms. stated that current events is a special class which has a special skill set for understanding and interpreting information from a variety of sources and teaching an understanding of the world. Tr. 229.The feedback that Ms. has received about . is that he has settled in and has made a good transition to . Tr. 225.

On cross examination, Ms. stated that she has a master’s degree in elementary and secondary special education but is not state certified. Tr. 226. For history, the teacher is Mr. and he has a dual degree in history and middle school education and a special education certification. Tr. 228. She stated that . does well in this class because he has a strong verbal ability to discuss information. Tr. 230. She stated that “he struggles where he’s processing specific or comprehending on his own information without scaffolding but his ability to discuss information is pretty rich.” Tr. 230. The teacher, Ms. has a master’s degree and is not state certified in special education. Tr. 231. Her assistant is completing her master’s degree in special education. Tr. 231. In Spanish, there is only one teacher and she has a master’s degree in special education but is not certified. Tr. 231.

Although . does not see a counselor individually at school, he is in a class called healthy choices which the psychologist on staff teaches in a group of six. Tr. 232-233. Ms. Jimenez stated that he is doing well in his math group and has been successful in his pre-algebra curriculum. He is on a level in that class and was given the Terra Nova recently but the scores are not yet available. Tr. 233-234. District’s Position

The District did not call any witnesses and did put any documents in evidence. The District conceded Prong 1 of the Burlington-Carter analysis.

Findings

Two purposes of the 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 individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program

In this case, the District conceded Prong 1. Issue 2- Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the services they seek for In order ot meet that burden, the Parents msut show that , provided by the Parents, offered an educational program designed to meet E.W.’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 36465). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”]

The Parents have met their burden in showing that was an appropriate placement for . for the 2011-2012 school year. The educational program at offered an educational program designed to meet .’s special education needs and to enable him to receive educational benefit. The testimony indicated that is a small structured environment with as few as 4 students in a class and as many as 13 with two teachers. Ms. testified that they strive to push each child to the next step and differentiate instruction, Tr. 219. Dr. testified that she is familiar with and the small student to teacher ratio, the individualized attention and the use of the Wilson program would be a benefit for . Tr. 163.

Due to .’s struggles with decoding, reading, writing and expressive language, he is in a literacy class where they spend five hours per week working on these areas. His class has only four students and the teacher is also his . The that is being used has had a tremendous impact on his decoding abilities and he has gone up two grade levels since he started. The type of he is receiving is exactly what was recommended by Dr. which provides him with . Tr. 166. The use of scaffolding, modeling, graphic organizers and other techniques has enabled . to be able to complete writing assignments satisfactorily including a five paragraph essay. Tr. 183. When it was determined that .’s math skills were at a higher level than his group, he was moved to a more challenging group, though they are careful in all areas to challenge . without making Tr. 215.Since is great at using and his memory to understand information, they are working with him to encourage him to not just rely on his memory, but to go back to the text and find the information

Due to , the use of and is useful for . He is also provided with specific fidgets, in case he needs them. In Ms. ’s class, he does origami but as soon as he , he must put it way. He has learned to self monitor and is making progress in this realm. Tr. 186.

Although he doesn’t have as a related service, it is incorporated into his classes and he is given informal strategies throughout the day and has worked with the . Tr. 113; Tr. 202. In terms of counseling, he is in a class called Healthy Choices with five other students and has access to the if he needs him/her. Tr. 233-234. The teachers and administrators at and his mother stated that he is adjusting well to the new school, has made friends, joined clubs and sports teams and has become part of the school community

His mother indicated that he has made great strides academically and that his progress in reading is “ ”. She also stated that he is now able to work independently on his homework assignments and he has a lower frustration threshold. His Dr. , who sees . on a monthly basis testified that is a much better place for and that he has made progress there. His first and second trimester Progress reports at clearly indicate that he is receiving educational benefit. During the winter of 2012, Ms. and Ms. wrote “[ is thriving in the …[He] is a very dedicated student with a strong desire to learn.” The reports indicated that he is making progress in all areas although he still has deficits that need to be addressed and is working diligently towards meeting his goals .P-M; P-N.

Based upon the foregoing, I find that the Parents have met their burden in demonstrating the appropriatenesss of .

With respect to the reimbursement of the Parents’ private evaluations, state regulations require the CSE to “arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related service needs, including improved academic achievement and functional performance of the student warrant a reevaluation or if the student’s parent or teacher requests a reevaluation. “ (8 NYCRR 200.4[b][4]; see 20 U.S.C. 1414[a][2][A]; 34 C.F.R. § 300.303[a]) Additionally a reevaluation must be conducted at least every three years, unless the parents and the district “agree in writing that such a reevaluation is unnecessary” (8 NYCRR 200.4[b][4]; see 20 U.S.C. § 1414[a][2][B], 34 C.F.R. § 300.303 [b][2]) . In addition to the parent’s ability to request a reevaluation by the district, “[I]f the parents disagree with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation[IEE] at public expense” ( 8 NYCRR 200.5 [g][1]; see 20 U.S.C. § 1415 [b][1]; 34 C.F.R. § 300.502[b]). Furthermore, both federal and State regulations provide that “[a} parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees” (34 C.F.R. § 300.502[b][5]; see 8 NYCRR 200.5 [g][1].)

In the instant case, the hearing record indicates that a triennial was never conducted after an evaluation was done in 2006. Tr. 56. The mother testified that the consensus among the teachers and other school personnel was that . did not need an evaluation since they “knew him”. Tr. 56; Tr. 83. Tr. 83.At the IEP meeting dated May 15th, 2011, she advised the CSE that she was in the process of having a evaluation done due . Tr. 56. The District did not suggest that they would do their own evaluation. . They proceeded with the meeting and developed an IEP for The Parents sent a letter to the District in August , 2011and attached a copy of Dr. ’s evaluation. P-I; P-F; Tr. 61. Another IEP meeting took place on November 17, 2011 and Dr. ’s evaluation and the other evaluations from Dr. (P-H); Dr. (P-E) and Dr. (P-G) were also reviewed. Tr. 64. No changes in .’s placement were made as a result of these evaluations.

In accordance with federal and State regulations, it would have been impossible for the Parents to disagree with an evaluation and request their own since the District had not done one even though they were required to do so. Therefore, the Parent should have the right to obtain their own evaluation so that . can be appropriately reevaluated. In Application of a Student with a Disability, Appeal No. 11-049, the State Review Officer found that the District was not under an obligation to fund the Parent’s private evaluation absent the Parent’s disagreement with the District’s evaluation. This case can be differentiated from that case because under the present fact pattern no evaluation would have been done had the Parents not initiated it, while in that case, an District evaluation was in process. Based on the foregoing, the District is required to reimburse the Parents for the that was conducted by Dr. . P-F. With respect to the other evaluations that were initiated by the Parents including Dr. ’s dated October 15, 2011 (P-E), Dr. Auditory Processing Evaluation dated September 3, 2011 (P-G) and Dr. ’s Comprehensive Evaluation dated August 22, 2011 (P-H), the District was not under an obligation to fund these evaluations at this time.

With respect to special education transportation, the Parent testified that . was provided with a bus that took him to school and dropped him off in front of the building every day during the 2011-2012 school year. Since the school year is now over, and the District provided appropriate transportation, this issue is moot. Issue 3-Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412 (a)(10)(C) (ii).

In find that the Parents participated in the May and November 17 Th CSE meetings and provided the District with all necessary evaluations and reports. The Parents notified the District of their concerns regarding .’s placement recommendation at the May 19th, 2011 meeting and advised the CSE that they were having their son evaluated. Tr. 78. The Parents then contacted the District on August 29, 2011 and attached a copy of Dr. (P-F) and requested that the CSE reevaluate .’s placement. The letter also served as notice to the District that the Parents were placing for the 2011-2012 school year and would seek reimbursement for tuition. P-I. The Parents then sent letters on November 1st and 11th, 2011, enclosing the other evaluations and asking that the CSE consider another placement for . P-J. The Parents then attended the CSE meeting on November 17th, 2011 and advised the CSE of their disagreement with the placement and their decision to keep at that time. Tr. 62

Based upon their actions, in terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them. Based upon the foregoing, it is hereby

ORDERED, that:

1) The District shall reimburse the Parents for the tuition at for the 2011-2012 school year in the amount of $45,960.00 upon proof of payment and proof of .’s attendance at for the 2011-2012 school year.

2) The District shall reimburse the Parents for the amount of Dr. ’s

Neuropsychological Consultation Report upon receiving a paid bill from Dr.

including proof of payment for said bill.

3) The District shall repair or replace the assistive technology equipment that was provided by the District to including the computer and software, provided it has not already been repaired or replaced. Dated: July 20, 2012

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 10/11/12, 6 pp. B Amended Impartial Hearing, 2/8/12, 6 pp. C Individualized Education Program , 5/19/11, 16 pp. D Individualized Education Program, 11/17/11, 14 pp. E Dr. ’s Evaluation, 10/15/12, 4 pp. F Dr. ’s Evaluation, 4/11, 5/11, 8/11, 19pp.

G. Dr. ’s Evaluation, 9/3/11, 9 pp.

H. Dr. ’s Comprehensive Evaluation, 8/22/11, 8 pp. I Letter from , 8/29/11, 2 pp. J Letters from , 11/1/11, 11/8/11, 2 pp. K FNR, 5/19/11, 3 pp. L Notice of IEP Meeting, 10/28/11, 4 pp. M First Trimester Progress Report From , 9/11-11/11, 26 pp. N Second Trimester Progress Report From , 9/11-6/12, 7 pp.

O. School 2011-2012 Enrollment Contract, 8/11/11, 2 pp.

P. Mission Statement for , Undated, 3 pp.

Q. Schedule, 11/2012, 1 p. R Affidavit of Tuition Payment, 1/23/12, 1 p. S Attendance Report, 12/2011-2/2012, 1 p. T Cancelled Checks for , Misc. Dates, and Proof of Payment, 6 pp. U Invoices and Insurance Submissions, Misc. Dates, 11 pages

IMPARTIAL HEARING OFFICER

I Closing Statement for the Department of Education, 6/27/12, 8 pp. II Closing Statement for Parents, 6/27/12, 15 pp.