New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 23, 2012

January 24, 2012

March 6, 2012

April 25, 2012

Actual Record Closed Date: June 15, 2012

Hearing Officer: Ellen Cutler-Igoe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2012

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012

Attorney — Student

Mother — Student

Attorney — DOE

Social Worker (telephonically) — DOE

Placement Officer (telephonically) — DOE

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

Attorney — Student

Parents

-Royster, DOE Placement Officer (telephonically- subpoena) — Student

Teacher (telephonically) — Student

For Department of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2012

Attorney — Student

Parents

(telephonically – subpoena) — Student

Speech Therapist (telephonically) — Student

Attorney — DOE

Parents of brought forth this due process complaint against the New York City — DOE

Department of Education (the “DOE”) under the Individuals with Disabilities Education — DOE

Act, 20 U.S.C. §1400 et seq. (2006) (the “IDEA”) and Article 89 of the New York State — DOE

Education Law challenging the DOE’s placement of their son as both procedurally and substantively inappropriate and seeking reimbursement of his private-school tuition. , on the date the due process complaint was filed, attended the . The initial hearing on this matter was held on January 24, 2012 and continued on March 6, 2012 and April 25, 2012. Pendency was ordered on January 22, 2012. Extension requests were granted without objection from either party due to subpoenaed witness availability and religious observance.

LEGAL FRAMEWORK

It is well settled, under the IDEA, states receiving federal funds are required to provide “all children with disabilities” a free and appropriate public education [(FAPE)]. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) quoting 20 U.S.C. section 1412 (a) (1) (A); Bd. of Educ. v. Rowley, 458 U.S. 176 207 (1982). To meet these requirements, a school district’s program must provide special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]. The aforesaid services must be administered according to an Individual Education Plan (the “IEP”) which school districts must implement annually. “The IEP is the centerpiece of the IDEA’s education delivery system.” D.D. ex rel. V.D. V. N.Y. City Bd. Of Ed., 465 F.3d 503, 507 (2d Cir. 2006). The IEP, “is a written statement that sets out the child’s present education performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id. at 508 (quoting Honing v. Doe, 484 U.S. 305, 311 (1998). When developing a particular IEP, a Committee of Special Education (the “CSE”) is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs. See, N.Y. Comp. Codes R. & regs. (N.Y.C.R.R.) tt. 8, § 200.1 (ww)(3)(i). Moreover, the “CSE must also be mindful of the IDEA’s strong preference for mainstreaming, or educating children with disabilities to the maximum extent appropriate alongside their non-disabled peers.” 20 U.S.C. section 1412(a)(5); see Walczak, 142 F.3d at 132.

FACTUAL BACKGROUND

Pursuant to a Report ( the “NCR”) administered on February 6, 2009, February 27, 2009, March 6, 2009, March 9, 2009 and March 27, 2009, MG is a boy with an extensively chronicled history of developmental disabilities and remedial interventions. (Exhibit 6-1) It was reported that although had made discernible gains, he continued to ) and had to . Information for the assessment, which was conducted to quantify his progress , and chart a course for continued assistance. Information for the report was provided by parents, the acquisition of parent and teacher behavioral rating scales, a review of prior cognitive and scholastic records, consultation with a psychiatrist and a comprehensive neuropsychological assessment. (Exhibit 6-1)

The recommendations based on the NCR is lengthy but of significance to this Hearing Officer. The evaluator stressed that specific emphasis be placed on obtaining a placement which would be sufficiently challenging to capitalize on ’s verbal strengths while providing him with exposure to appropriate models, continuing services, providing extra time for ” and render such information more digestible and explicit instruction in note-taking skills. (Exhibit 6-19) Further, the examiner noted that would benefit from continued participation in a program and treatment, individual tutoring in math, implementation of coordinated parent and teacher strategies and breaks during learning sessions. (Exhibit 6-20)

An Education Evaluation dated March 4, 2008 prepared by examiners , a Learning Disabilities Specialist and , Ph.D. was entered into evidence as Exhibit 5. The evaluation was generated at the request of ’s Parents to document his then current academic needs. In summary, the examiners found statistically noteworthy discrepancies between ’s average verbal reasoning capacities and his reasoning, working memory, processing speed capacities, visual discrimination and , some capacities in the lower end of the average range and weakness with sound blending and sound sequencing. ’s performance on memory tests indicated that he more easily remembered information that had a broader context and meaning, he struggled to combine a visual memory test with writing, average reading skills were a strength and some gaps in his phonetic skills. Mathematics deficits were pronounced. (Exhibit 5, 19-20) Recommendations as a result of the testing for a school application included a small class size, testing modifications, enlarged material, SMART Board technology, a typing class for laptop usage, continuation of occupational therapy, posted homework assignments, math aids and manipulatives similar to a number line on his desk. Parents were encouraged to provide math remediation outside of school and enhancement of everyday living activities such as wearing of a watch and allocation of allowance. For the school, it was suggested that they provide strategies to increase visual discrimination, memory skills, spelling, visualspatial relationships, math computation, time concepts and word solving problems.

Progress reports from ’s current school, the , dated December 2010 provided the following communication summary, “ goals are being addressed within the curriculum of the class through a collaboration in s Writing class, and through weekly individual pull-out session to address filler words and vocalizations that disrupt his fluency, .’s main challenge in class is his attention to task and demonstrating expected non-verbal communication (e.g. maintaining . He currently require[d] a high-level of support in optimizing each of these areas and in learning the value of the editing process.” (Exhibit 7-19) Motor training comments included, “ had success in a variety of games this fall. Cueing during play has helped remain more appropriately involved during play. Continued discussion about being a teammate and his play in larger group games should help move toward independence in [motor training].” (Exhibit 7-1) The report lists a litany of mastered, mastered in isolation but not in context, direct instruction required and not yet instructed goals.

A December 2011 letter from a , Educational Advisor from the School, reported ’s and use his environment to his advantage, cueing was an important role in s educational process, improvement in his ability to follow through with routines and general organization, executive function difficulties were affecting more than routines and keeping track of his belongings, math strategies to relate concepts to his own life and personal experiences had proven successful. Language processing, comprehension and attention continued to be a struggle for but, in general, there was a positive durable change to ’s level of functioning in all areas. (Exhibit D-3)

On March 3, 2011, the Committee on Special Education (the “CSE”) convened for an annual review. Notably, special class ratio was changed from in a community school in order to provide with more support since “it was reported that he learns well in small group environment”, increased speech and language services to 1 x 30, 1:1, 2 x 30, 3:1 and testing accommodations were modified to double time, special location, questions read aloud, answers recorded in any manner, use of calculator and directions read aloud. (Exhibit 3-14) Reported discussion with the Parent denoted an understanding that she was informed of the due process rights and notified that if attended a public school for the following year and the school was beyond a one half mile radius from his home that bussing would be available.(Exhibit 4-2) was classified as “ .” A deferred placement was recommended based on the best interest of MG. (Exhibit 13-1)

It is undisputed that on July 12, 2011, the CSE recommended a special class at J167, , as the final recommendation for . Upon receipt of such, Parent documented several attempts to contact the school personnel from , to schedule a site visit. In a letter written to Ms. , the CSE contact, Parent advised the CSE that without being able to see the actual program/placement, or at least have her questions and concerns addressed, she can neither accept nor decline the school placement. Parent’s letter lists her intent to unilaterally place her son at the for 2011-2012 school year and seek tuition reimbursement for the placement at public expense. (Exhibit 14) A follow-up letter was forwarded to Mr. , CSE Chairperson, received by the CSE Region 9 on September 28, 2011. Parent reiterated her inability to set up a tour School, explained that two e-mails were forwarded directly to Ms. , school employee responsible for tour guides, and that will remain at the . (Exhibit 15) However, Parent did visit around the first week of December 2011. (Tr. 366-367)

POSITION OF DEPARTMENT OF EDUCATION

The DOE contends that its procedural and substantive obligations to provide with a FAPE were met and the record reflects that no procedural violations resulted in a deprivation of FAPE. The DOE asserts that a hearing officer, in evaluating whether the DOE had complied with the procedural requirements of the IDEA, must consider whether the alleged procedural violation either: (1) impeded a student’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE; or (3) caused a deprivation of education benefits. 20 U.S.C. section 1415(f)(3)E(ii).

The DOE proffers that the scope of this decision is limited to the four corners of the due process complaint in that only Parents’ specific issues raised in the due process complaint should be reviewed; a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. section 1415 [f][3][B]; 34 CFR 300.508[d][3][i]. 300.5 11[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. 1415 [c][2][E][i][U]; 34 CFR 300.508 [d][3][ii]; 8 NYCRR 200.5 [i][7](b); see M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *12*13 (S.D.N.Y. Dec. 16, 2011); C.D. v. Bedford Cent Sch. Dist., 2011 WL 4914722, at (S.D.N.Y. Sept. 22, 2011); R.B. v. Dept. of Educ., 2011 WL1044269, at *8 (S.D.N.Y. Mar. 20, 2011; M.P.G. WL 3398256, at *8. (Exhibit BB) The DOE maintains that the following Parents’ assertions are without merit: (1) the IEP team was not duly constituted; (2) no new evaluations or classroom observations were used to considered by the CSE; (3) the IEP meeting was held in March so it was not reflective of any progress the student made thereafter; (4) the goals do not reflect the student’s individual needs and were not created at the IEP meeting; (5) no special education transportation was provided in the IEP; and (6) the IEP program recommendations were inappropriate. (Exhibit 1) The DOE ardently claims that Parents’ allegation about the appropriateness of the designated class placement at is speculative and a ruling for such not within this Hearing Officer’s realm of analysis.

The DOE opines that Parent’s challenges to the IEP are without merit. The DOE states, the CSE team must include all the legally members as required under the IDEA and New York State regulations. 20 USCS §1415 9(d)(1)(B); 8 NYCRR §200.3(a). Policy consideration of incorporating a full team to ensure that the CSE team and the parent(s) are provided with all of the appropriate people and expertise necessary to make an informed decision about the course of services which would benefit the student in question, as well as ensure that the parent’s due process rights are protected. Although a general education teacher was not in attendance at the herein CSE meeting, a general education was not a required member since MG was not being considered for general education at the time of the meeting. 8 NYCRR §200.3(a)(1)(ii), (Exhibit 3-13, Tr. 5052)

The DOE avers that the convened IEP team considered all appropriate and relevant evaluative materials in determining its recommendation. In support of the aforesaid, the DOE listed all the exhibits entered into evidence which were considered and, of significance, notes that the parent did not request any additional evaluations be done. (Exhibit BB)

Contrary to Parent’s allegation that the March IEP meeting did not reflect ’s progress, the DOE claims it is a non-issue since the review was timely held. (Exhibit BB) Similarly, the DOE contends that Parent’s allegation that the IEP does not provide for special education transportation and thus a denial of FAPE is without merit. The DOE directs this Hearing Officer to Ms. s testimony that special education transportation is a specialized bus for a student who is attending a special school, which would be a District school or a state funded program, or the student has certain physical/mobility limitations which would make it necessary for him to be transported even if he attends a general education program using specialized bussing. (Tr. 87-88) Special education transportation was not recommended for in his IEP because the IEP team recommended a community school program so there would be no need for special education transportation (Tr. 88)

The DOE opines that the IEP program recommendations were appropriate for Opposing Parent’s claim, the DOE references that the recommended small class size of 12 students would model the type of program has had success in and a teaching assistant or paraprofessional would allow, even within an already small class, for the class to be broken into small groups. (Exhibit BB-12)

Continuing its legal arguments, the DOE asserts that any allegation and/or testimony regarding the appropriateness of the recommended placement are speculative and thus, a ruling for such not within this Hearing Officer’s realm of analysis. Furthermore, the DOE submits that the DOE is not required to prove implementation. See, Application of a child with a Disability, Appeal Nos. 11-098, 11-115, 11-123 and 11-137. DOE claims that the Parents had no intention of accepting any public school placement offered by the DOE as evidenced by the Parent’s 10-day rejection letter. (Exhibit 14)

The DOE postures that the Parents’ challenge to the recommended placement because [they] were unable to view the school is without legal support and not a denial of FAPE. DOE cites to Application of a Child with a Disability, Appeal No. 11-112 for the proposition, “the IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct, through a veto, a district’s efforts to implement each student’s IEP by, for instance, personally viewing and approving the classroom or classmates of their own choosing.”

In conclusion, the DOE contends that the is not an appropriate placement in that it does not meet ’s needs and that the equities do not support the Parent’s claim. The DOE claims that is inappropriate because is not being educated in the least restrictive environment and the does not provide with much needed related services. The DOE presented contract information between the and Parent to establish that Parent was not acting reasonably or in good faith when she informed the DOE that she was interested in being provided a FAPE. (Exhibit BB-18) The DOE proposes that the Parent was only interested in getting reimbursed for private outlays for the student’s education, as she is only entitled to such remuneration if she acts as if she wants a public school program.

POSITION OF PARENT

As stated in the due process complaint and reiterated throughout the hearings, Parents contend that: (1) the DOE’s program placement was not reasonably calculated to provide with a meaningful educational benefit; (2) the delay in making a placement recommendation and the lack of response to the mother’s e-mails, phone calls and letters was a denial of FAPE; (3) the is an appropriate educational placement; and, (4) equities favor the parent. (Exhibit AA) Specific to the IEP, the Parents contend that the goals and objectives on the IEP do not reflect all of ’s unique educational, social and emotional needs, the goals and objectives were not developed at the meeting (denying the parent input into the development of the IEP, as the annual review was held for the student in early March to make recommendations for the next school year), the CSE was unable to consider the child’s needs as reflected by his progress or lack thereof in the second half of the school year, no evaluations were administered to support the recommendation which included a recommendation for a more restrictive setting, no classroom observation was conducted and the team denied the Parent’s request to place special education transportation on the IEP. Moreover, Parent contends that her expressed concerns about the program recommendation were ignored. (Exhibit 1-3) Witness Testimony Sonia Miller-Royster

Ms. , Placement Office for District 2, testified to the procedures utilized for placing . On direct, she acknowledged that she ultimately recommends placement for students based on information forwarded to her from , the special education evaluation and placement officer for CSE Region 9. In sum, Ms. testified that during the course of her duties, she would be provided a list of students along with their relevant academic information but in this case, she was not provided with MG’s necessary information and as a result, had to employ the assistance of the Child Assistant Placement (CAP) system to obtain the information. She testified that was possibly unable to provide the necessary information because there were too many cases to process that year. She noted that she is able to place students within a three year grade level for reading and math. (Tr. 217) Ms commented that it would not necessarily be inappropriate for her to place a child in a class with more than a differing three year span in reading and math depending upon if the “child fits in age wise at all.” (Tr. 217)

Significantly, when she was asked about her thoughts on parents being able to visit a site placement prior to committing to the placement she said, “… I tell all the parents, I mean, we know it’s summer time…we know class is not in session…but the principals are at the school and they’re willing and ready to talk to parents…so I tell… let parents know that they can go to the school, and the principals are willing and ready to talk to the parents about the program.” (Tr.224) Ms. explained that parents do not have a right to visit the placement prior to accepting a placement but that it is a privilege. (Tr. 231)

is a dual certified teacher with a master degree from Bank Street. She testified on direct about her familiarity with ; she was his teacher at the during the 2009 school year. She concluded that the is an appropriate educational setting for in that he has made consistent progress and would regress in a setting whereby other students displayed . (Tr. 264) On cross-examination, the DOE raised the issue of ’s reading comprehension levels as compared to Ms. s stated levels for 2011. – appearing pursuant to Parent subpoena

, Special Education Evaluation Placement and Program Officer, supervises clericals and assists the Chairperson Region 9 on an as needed basis. She was, during the relevant time period, responsible for opening up initial cases for non-public and charter schools and to offer public school placements when students have been recommended for such from non-public and charter schools. (Tr. 158) Ms. stated that parents have a right to visit [a] program once the program is available or they can make an appointment with the principal to discuss the kind of placement that it would be. (Tr.161) Only in exceptional situations would she ever offer a different placement than what was initially recommended in the FNR. On cross-examination, Ms. indicated that she had no personal knowledge of the procedural aspects relating to ’s case but only generalized knowledge of how her office processes recommendations. Elicited from Ms. is that the CSE had until August 15, 2010 to offer a placement for the student. (Tr. 170)

Ms. is a social worker with the New York City Department of Education. She holds a license in special education and school social work in New York State. Ms. participated in the herein CSE meeting (Tr. 37) She recalled that no one at the meeting objected to the evaluations or reports being reviewed, there were no new reports necessary to move forward with the CSE meeting and no known concerns regarding the stated recommendations. At length, Ms. restated ’s goals. During cross-examination, Ms. indicated that the goals for the 2011-2012 school year were drafted based on the previous year’s goals. In sum and substance, Ms presented a summary of events leading to, during and subsequent to the IEP meeting of March 3, 2011 in relation to what she believes to be CSE’s obligations in interpreting and formulating goals for a student and in those instances she had direct knowledge and memory, provided her rendition of ’s CSE meeting. George Donagan – Appearing pursuant to Parent subpoena

At all times relevant to this complaint, Mr. was the Chariperson for CSE Region 9. Mr. testified on direct that cases, similar to the herein fact pattern, are usually deferred placement cases which are processed differently than those cases where a placement is immediate. Mr. was questioned regarding Parent’s letters to Ms. and her inability to contact anyone at the recommended placement, . He indicated that there is no procedure or protocol in place at CSE Region on how district employees would respond to letters from “Carter” parents who desire to visit a placement prior to the first day of school. (Tr. 322)

Ms. was hired by the Parents in February of 2008 to perform a assessment for . Ms. has her New York certification as a Speech and Language Pathologist and Teacher of the Speech and Hearing Handicapped. She has a master’s degree in speech and hearing sciences from Queens College. (Tr. 325) She is familiar with not only from administering testing but she had the opportunity to observe twice at the School. Ms. testified that is a child with poor organizational skills, dependent on external supports, exhibited deficits in memory skills, displayed a good vocabulary pool and reiterated most of the factual data from the stated objective testing. Ms. s testimony was directed towards MG’s educational gains at the . She indicated that his teachers reported progress and confirmed ’s need to be provided a constant small group learning environment. She opined that the was an appropriate for ; “a wonderful fit.” (Tr.342)

Ms. , ’s mother, provided general testimony about the procedural aspects of the CSE meeting, her willingness to place in a public school setting for the 2010-2011 school year but for the inability to visit the recommended placement prior to the first day of school, her description of the placement school from a visit several months into the school year in issue and a summary of ’s progress at the with noted skills which need improvement. Specifically, Ms. testified that ’s profile is highly unusual because he had a borderline IQ in the math area and average verbally. He which means in reality

Ms. told the representative of Ms. , her greatest concern for her child is that he has a profile that is extremely unusual in the population at large. He is consistently is in , for reading. He has a processing speed and he is is currently on a level in reading and a . He also has a which, if you give him a stimulant, “he has terrible ”, if you give him a stimulant, it makes the . (Tr. 363) It was therefore, more than necessary that she at least talk to somebody and explain this strength in the verbal area, “cause you certainly want to capitalize on a strength…but also the he has, and the very real .” (Tr. 363) Ms. denoted that “special education classes follow the same curriculum as general education with a three year span of grades in the class, and that when [she] saw a math class, they were working on pre-algebra, a topic that is far, far above [her] son’s grade ability in math. [She] was told that students are put all together n the special ed classes with a three year span ability, no splitting up by ability.” (Tr. 374) While observing a gym class consisting of 90 students, Ms. called it “ .” When asked how they would teach someone who was functioning on in a class doing algebra, Ms. testified that Ms. indicated, “they would talk to them for a few minutes and try to answer their questions” but that there was no additional support for a child who is what a teacher is teaching. Ms. did not opine that would be able to learn in the environment she witnessed. (Tr.

374) Nevertheless, Ms. indicated that although was already studying at the School, she would prefer that he attend a school with an appropriate placement closer to home as he travels over several hours to and from the located in Connecticut. Ms. explained and described the on-going close relationship she has with s advisors and teachers throughout the school year and the process for which receives physical therapy and services through the .

On cross-examination, Ms. was questioned about her contractual obligations to the . It was elicited that at the time she was able to visit the sometime in either November or December of 2011, ’s tuition for the 2011-2012 school year was at least 50% paid and her obligation was for the total tuition regardless of whether or not completed the school year at the . Legal Analysis

Claims for tuition reimbursement are subject to a three-step analysis. Cerra v. Pawling Cent. Scho. Dist., 427 F.3d 186, 192 (2d cir. 2005). The Court emphasized the importance of the record at the hearing to determine whether the school district complied with the procedural and substantive requirements of the law. A procedural violation rises to the level of a denial of FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits 20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513 [a][2]; 8NYCRR 200.5 [j][4][ii]; Winkelman, 550 U.S. at 525-26; A.H. 2010 WL 324234m at *2; E.H., 2008 WL 3930028 at *7. As noted in the position papers, if this Hearing Officer determines that the DOE failed to comply with the procedures set forth in the IDEA then a determination regarding the appropriateness of the Eagle Hill School and consideration of the equities is warranted.

To begin, based on a thorough review of the evidence, testimony, relevant case law and regulations, the DOE failed to provide a FAPE to . First, I note that inherent in the IEP process is the decision to place a child in the DOE’s recommended placement. In this regard and specific to the facts of the herein case, it was unreasonable for the CSE to wait almost four months to notify the Parent of its recommended placement and then not have a representative from the placement school available to the Parent in order for the Parent to schedule a visit prior to the first day of school. The placement procedures as testified to by Nancy Funke, Gerard Donagen and Sonia Miller did not provide Parent a meaningful opportunity to participate in the IEP process for nor the “privilege” to visit the school as described by Ms. Miller-Royster. Of significance, is the e-mail sent from Sonia-Miller Royster to Nancy Funke indicating, “it’s that time of year, here is the list so far, 98% of the cases are Carter.” The e-mail and testimony relating to its origin, to this Hearing Officer, signifies that during the time period for which the decision to place MG at , “Carter” students were placed with the belief that most of the students would not be attending the recommended placement. It does not appear as if the DOE considered ’s individual educational plan to enable Parent the time necessary to, at least, view the site. Although s needs fell within the deferred placement guidelines, it was incumbent upon the District to openly avail itself of providing this Parent with an opportunity to at least walk through the school building prior to the first day of school. Parent’s concern about , such as, developmental coordination disorder necessitated such visit. Second, contrary to DOE’s position regarding the CSE’s appropriate goals and recommended program placement for this Hearing Officer does not opine that that the stated goals were specific to s updated educational needs. It is clear that goals were determined based on the previous year’s goals without due regard or, at a minimal, updated information from the . Although representatives from the were participants of the March 2011 annual review meeting, the minutes are void of such interaction (Exhibit 4, 1-2). Ms. Garafalo’s testimony was not specific to any meaningful conversations amongst MG’s present educators and the team. She was only able to provide that information from which she read to prepare for the hearing and could not decisively characterize any other rendition of how the goals were formulated. In fact, it was unclear if the most recent levels of performance were reviewed from the dated December 2011. I am not persuaded by the DOE’s witnesses that a program placement of was reasonably calculated to provide a meaningful educational benefit. Nonetheless, Parents’ allegations regarding the behavior of students assigned and placed to what purportedly would have been assigned class was not of probative value.

Accordingly, the evidence and testimony overwhelmingly supports the conclusion that the was an appropriate placement for during the 2010-2011 school year. His progress is overwhelmingly evident. Finally, there is no credible evidence for this Hearing Officer to find that the Parent’s actions prevented the DOE from fulfilling its obligation to MG. see in general, Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70, 370-71 (1985)

Therefore, it is ordered that the DOE failed to provide a FAPE, the was an appropriate placement and equities favor the Parents. However, the record does not support Parent’s claim to special transportation.

Accordingly, it is SO ORDERED that Parent be reimbursed for ’s tuition at the for the 2011-2012 school year. Dated: June 28, 2012

ELLEN CUTLER-IGOE, ESQ.

Impartial Hearing Officer ECI: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 ON MARCH 6, 2012

Parent Date Pages

A Letter from Parent to Ms. 11/30/11 1

B Letter from Parent to 12/8/11 2

C E-mail from to Ms. 7/20/11 1

D Progress Report – 12/2011 24

E IEP – unnamed student 1/5/12 9

F IEP - unnamed student 11/2/11 9

G IEP – unnamed student 5/23/11 10

H Disciplinary Records for recommended various 9

Class at

I Class Schedule – Fall 2011 1

J Website Parent Information 7/22/2011 2

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 25, 2012

Parent

A-2 Exhibit page change

K School contract 2/11/11 1

Department of Education

1 Due Process Complaint 10/13/11 7

2 Due Process Response 10/19/11 3

3 IEP 3/3/11 15

4 IEP Minutes 3/3/11 2 5 Educational Evaluation various 2008 23 6 Report various 2009 23 7 2010 Report December 2010 20 8 College Report 4/27/2009 9 9 Parent Correspondence 2/19/11 2 10 Notice of Annual Review 2/4/11 1 11 Notice of IEP Meeting 2/16/11 1

12 FNR 7/12/11 1

13 Notice of Recommended Deferred 3/29/11 1

Placement 14 Parent Correspondence 7/22/11 1 15 Parent Correspondence 9/28/11 1

DOCUMENTATION ENTERED INTO THE RECORD ON . 25, 2012

AA Parent Closing Argument

BB Department of Education Closing Memorandum