New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 2-6-12

4-4-12

5-14-12 Record Close: 6-19-12 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 6, 2012

DOE Attorney — DOE

Social worker — DOE

Special education teacher, (Via Telephone) — DOE

Attorney — Parents

Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2012

DOE Attorney — DOE

Attorney — Parents

Parents

Parents

Parents

Head, (Via Telephone) — Parents

Head teacher, School (Via Telephone) — Parents

Teacher, School (Via Telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 14, 2012

DOE Attorney — DOE

Attorney — Parents

Parents

Parents

— Parents

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is a -year-old student classified as and recommended for a program in a school with related services of . Her parents, , parents or parent) contested the program as not providing with a free appropriate education (FAPE) and placed her at the School ( ). They requested tuition reimbursement for the 20112012 school year. Ex. B The request was filed October 13, 2011; I was appointed on November 28, 2011, following the recusal of another hearing officer. The hearing was held on February 6, April 4, and May 14, 2012. Extensions were requested and entered in the record as IHO Exhibit II. The record closed upon receipt of transcripts and post-hearing briefs and accompanying materials on June 19, 2012.^[1]

DISTRICT CASE

, a social worker for the DOE, testified that she is the CSE point person for School. She knows and observed her last year, for the 2011-2012 IEP. She also sat in or IEP meetings. Tr. 32-35 She attended the February 11, 2011 IEP meeting, and testified about who was present, including a DOE , a special education teacher, ’s teacher at the School, both parents and a parent member. She did not remember how long the meeting lasted. She stated that the parent had sent full reports from , as well as an plan, plan; the CSE also looked at the prior year’s IEP and the observation she had conducted. They had an older evaluation, which she stated the had looked at but she didn’t recall if he talked about it. She testified that the said he would need an updated for the 2011-2012 school year, the following school year,” then changed her testimony to say that he wanted it for the 2012-2013 school year. Tr. 35-40; Ex. C On cross examination, Ms. conceded that she had no teaching duties and discussed the teacher at IEP meeting. She testified that was assigned to the committee as a special education teacher for reviews concerning the School, but she did not know if Ms. taught at all that 2010-2011 school year; she worked as an administrator for the CPSE. Tr. 62-65 She did not recall if the parent member arrived late at the meeting. Tr. 69-70

Ms. stated that they discussed ’s issues with as well as academic needs. She recalled that the parents were concerned about her , which she had also seen during her observation. Tr. 40; Ex. H Ms. testified that during her observation of , the child was not and needed to “ .” She was very on a in her , but needed the teacher to . She is , but she had academic needs to . Tr. 40-41; Exs. C, H Ms. stated that she observed in October or November 2010, and had also observed her the year before. At the time of her testimony, she had observed in the 20112012 school year. Tr. 66-67 She said the parents provided the School reports from the Fall of 2010, but she did not think they provided a February 2011 report, explaining that they had not come out yet. Tr. 68 The academic performance on the IEP was based on the teacher report and report; at the time in February 2011 they were working on the IEP for her following grade year, and was working at a late grade, beginning grade level. Asked how the team sought to address , Ms. stated that they felt “ , a lot of management needs, and we … felt very strongly that she would benefit from an .” She explained that by , she meant “like in a ,” with a to help “ .” Tr. 41- 43; Ex. C

Ms. testified that the CSE did not review the goals on the child’s previous IEP to determine whether she had made progress on those goals. She had participated in the prior May 20, 2010 IEP meeting, and when asked about changes in from the prior IEP to her observation in November 2011, she stated that in the class at all. She had ” in some academic areas, and was closer to functioning in some areas at the grade level. Tr.

70-73 Academic goals were created in conjunction with her teacher, and management goals were drafted by the DOE special education teacher, with additions from the School teacher. Asked about needs, she explained that the goals came from the full report from no one mentioned anything new to add on. Tr. 43-47; Exs. 5, 6, C The ultimate recommendation was for a small class, a class with teacher and and related services in school. She explained the reasoning that ’s and needs and academic needs require a , which is something she had from the year before “and because she needs to be brought into the situation in order to fulfill her academic goals,” a in the class was necessary. She clarified that her reference to what had the year before was not to ’s attendance at , but to the DOE’s IEP from the previous year, dated May 20, 2010. Tr. 4748; Ex. 1 Ms. testified that a school is with typically developing peers, the children have lunch as a group and go out at recess, and they interact with the rest of the school, in contrast to a special education school where all children had some kind of needs and which would be “way too restrictive.” She said that SETSS and CTT were not even programs to be considered for , who would be in a class and which would be way for her; she needed a class to gain academic progress. Tr. 48-50 was also recommended for related services of , and for for her and for her . There was no discussion at all of education nor was it recommended. was not receiving at . Ms. stated that was recommended to help her with , because she was “ as much with .” Tr. 52-54. The parents were concerned that she was still , which Ms. said she hoped were addressed through the recommendations, although she did not recall a discussion of their concerns. Tr. 54-55 There was one goal on the IEP for . Tr. 56 The team discussed the recommendation for the class due to the need for to provide more support for her to class. There was also discussion about ’s , and concern about regarding her performance, which was addressed through support in the class, and by the academic goals to provide her with strategies and tools she needed to lessen . There was “absolutely no” discussion during the meeting that needed support.

Ms. stated that she didn’t believe needed that. She explained that the notation on the IEP which stated under academic management needs support” was written as the teacher was telling the CSE what needed, it meant that “when there is an issue that she is not understanding the teacher will do briefly support.” Ms. said it was very common in those classes and it was hoped she would have that support in the recommended program. Tr. 56-59; Ex. C

Ms. testified that she has done years of observations at the School, and that it was not the least restrictive environment (LRE) for . She testified that is a school and has academic strategies, but it is a special school where all the children have special needs and is too restrictive for . She could benefit from being surrounded by typically developing peers “who live in the world” to help her negotiate the world. Ms. stated that that was why a school is the “appropriate thing to do when a child can tolerate and we believe can.” Tr. 59-60

Asked on cross examination why an IEP for the grade, with goals to be implemented in the Fall of 2011 was reviewed in February 2011, Ms. testified that thousands of IEPs need to be done by June, so all cases start as of February 1. There was nothing about that would necessitate an IEP meeting in February 2011. Tr. 73-74 She stated that the parents did not voice concern about the change to a from the prior year’s IEP. They had previously expressed concern about ’s academic needs and being able to in a setting. She did not recall any concerns about peer grouping raised at the February 11, 2011 meeting. Tr. 74-75

When asked how much access the team anticipated would have with typically developing peers in a school, Ms. described coming to the school, waiting in line, waiting at recess until the bell rings, outside in the year, as you’re walking up, at recess and in the lunch time. Tr. 80-81 Asked about ’s , she stated that she had in performance and speaking up, and wasn’t sure if she had interacting with peers. Asked if she needed support interacting with a mainstream population, Ms. stated that she had goals that would address that. She conceded that would be provided with other students with IEPs, but argued that could be with students from different classes. Tr. 81-82 She denied that the team recommended because School has skills or that the team recommended a class because it is the ratio she has at the School. Tr. 82-83

She agreed that the school was working on the goals provided by the reports at the time of IEP meeting, and did not recall whether she ever was aware at a later date whether made progress. Tr. 85-87 She did not recall the May 31, 2011 email from providing an updated progress report on those goals. Tr. 86-87; Ex. S She conceded that placement did not occur until July, and that she was never contacted by anyone from the DOE placement. She received an updated evaluation from , sent in August 2011, when she came back form vacation after Labor Day. She never saw the parents’ notice and was never contacted by the CSE chair about the concerns raised by the parent. Tr. 87-90; Ex. A She reviewed the evaluation in September 2011 and didn’t think any changes were needed, as there was the issue and the need for a class with , but it didn’t specify the number of . Tr. 93-94 testified that she was a special education teacher certified in New York State, and teaching a class in a to grade class. She is still working under an internship certificate. She stated that in September 2011, she had students, and now has students. She reviewed ’s IEP and stated that would have been in her class and that based on her review of the IEP, would have fit in the class. The classifications in the class included student with , classified as , and as . They were all between and years old. Of the students in the class on the first day of school, students had reading levels at early grade level, and one was on a grade level. In math, two students were on the grade level, and on a grade level. All were , able to use . Tr. 102-105, 123-124 She described instructional grouping in the class, and use of the Teachers College curriculum for reading and writing, and Everyday Math for math. She stated that related services were available. Tr. 105-106 She conceded that there was and was done in a hallway used exclusively for that purpose. There was no adaptive physical education (APE) in the school. Tr. 123-133

Ms. described a typical day. She testified that at recess and lunch, the child would be with other students. At lunch, the class sat at their own table. She was not with the class at lunch or recess, but the para stays with them. Asked whether arrangements could be made for a child who feels lunchroom or recess to have lunch or recess in another area if needed, she stated that it was possible and had occurred on occasion, when a student having difficulty has had lunch with her or the principal or somewhere quiet in the school with an adult, but there is no one who does it on a regular basis. Tr. 106-110

She described use of multisensory materials in the classroom, including the smart board’s sound and visuals, magnetic letters, and Play-doh. Ms. testified that she reads with different students in content areas, for about minutes a day. Tr. 111-113 Asked how she facilitates skills, Ms. explained that she uses prompts throughout the day, as well as a skills every morning. Asked how she would help transition into the class, she explained that when new students join, the core group of students is used to help acclimate the new student. Tr. 115-117 She stated that she remembered the parent visit, stating that no student , but there is one female who and . Tr. 118, 127-128 She also arranges opportunity for students to interact with typically developing children in games or activities and field trips with other classes, conceding on cross examination that these activities are with other self-contained classes. Tr. 120-121, 137

PARENT CASE 2

Dr. ,a , testified that his is the Director of Pediatric Psychology and Neuropsychology at NYU Medical Center and a clinical instructor at NYU School of Medicine. He explained that neuropsychology focuses in areas of brain development. Tr.I 166-167 He also has a private practice, conducting evaluations and developing plans and making educational

2

A few corrections of errors in the transcript to note: The transcript says “It’s not a dogma,” when the words said were “It’s not a dialogue.” Tr.II 218 The transcript says “I think he meant to shrug outwardly” when the words said were “I think he meant to shrug eloquently.” Tr.II 250 The transcript says is working on “… ,” when the words said were “… a .” Tr.I 313 recommendations for children. Tr.I 168

He testified that he first saw three to four years before for an initial evaluation, when she was transitioning from CPSE to CSE, with SEIT supports and related services. She demonstrated then, as she does still, what he characterized as a “very and presentation.” She has significant and , mostly in , with using she . She also has a with , how she is to be a and to be available in as well as classes or testing situations. She is “ ,” with a , and over the years has developed a host of in response. Tr.I 168170

He described the evaluation he conducted in 2008. He gave a evaluation, which consisted of an IQ test, preacademic measures, measures. He testified that demonstrated variability in scores ranging from the percentile to , some above average. Tr.I 170-172; Ex. 2 Her issues were pervasive and global. As example, she can have conversation, but performs at the percentile in comprehension. He cited areas in , in her comfort and , in her skills, and in skills. Tr.I 172-173 At that time, she was in a mainstream environment, but with a lot of support, 15 hours of SEIT plus related services, and she was . He thought she needed a much more environment, a small special education environment to immerse her in special education. She couldn’t benefit from some therapies or special education here or there, but needed a program with curriculum, support, and class fit to be therapeutic in order for her to make progress. Tr.I 174-175 Her struggles in the environment included . Tr.I 175-186 The 2008 recommendation, in his report, was for a small special education class and small special education school, which he termed a crucial part of the recommendation because of her complex and idiosyncratic presentation. She needed appropriate therapeutic supports in the classroom and throughout the school, and integrated with and , and considered how she would be throughout the day in more situations like lunch or recess or school assemblies, all for her to negotiate and the basis to recommend a small therapeutic school as opposed to just a small special education class. Tr.I 177-178

Since his evaluation in 2008, he has visited her school and every year, usually every semester, and he conducted a more formal evaluation in the beginning of 2011. Tr.I 179180 He explained his knowledge of the School, based on his belief that it is his job to know such schools, his visits two to three times a year, and involvement with their curriculum development and classroom observations. Tr.I 181-182 He testified that was appropriate for for the 2011-2012 school year based on his assessments and observations and speaking to her parents and teachers. He cited her with , , , and all areas of skills, as well as her learning needs, and her need for adult direction, , and . He stated that provides her with the class size ratio she needs, including the teacher she needs, not just paras, and a curriculum integrated closely with therapists to take care of her needs. There is no lost opportunity for intervention by people who understand her needs in a small environment that allows for . Tr.I 182-184

He also reported on his evaluated conducted over the first few months of 2011, testifying that he confirmed that although her symptoms skills and with can mimic certain of a child with , her is not consistent with . The IQ test again showed variability, with performance at the percentile for anything requiring her to look at and put together anything in an way, which goes along with how she presents in everyday life. Her ability to see the and and is . If a task is structured for her, she can show a percentile performance, but with more , she drops to the percentile. The can for , but that’s only on part; it’s more her general way of and which shows in her . The stars have to align in terms of her , , and supports for her to . Tr.I 184-186; Ex. J

He discussed the variability of her , which is dependent on format, and stated that she is . Although she is , she should be at a grade level based on her , but she is . Her is an issue, but she does not have ; due to her and , she is to her and at the expense of . Her academic levels are well level, with the exception of math calculations, which were (although when presented with math problems with words, she to percentile). She was , but with , and was at a grade level. Writing was very , at a percentile or grade level. Tr.I 188191, 221; Ex. J The ratings and skills showed that she does not or - , and displays , with her skills. Tr.I 192 His recommendations were that she be maintained at the School with as much direction, intervention, and coordination as could be provided. She needs a class with than children, with at least bare minimum of teachers. He specified the teacher should not be an aide, but at least someone with training or working toward being a teacher. Tr.I 193, 247 He also recommended an role for a school , to work on her ; again he specified the position be a and not a . He testified that all of this was present at the School; he visited during this current school year, and saw during the year. On cross examination, he conceded that he knew the School had a assigned to each class and he confirmed that he thought a school should be integral to the program. He stated that he did not think she would benefit from having but that she would benefit from having it as part of her program in a group, as a . He also recommended an afterschool social skills group for generalization. Tr.I 194-195, 228-231, 247248

Dr. also testified at some length about a program in the New York City schools, outlining his reasons for concluding that the program was not appropriate for . He stated that classrooms have mixed grades, as well as students with a wide range of classifications and presentation, and they were often slotted for children with emotional disturbance, which would not be productive for . He also said the classes were not determined by anyone grouping them as to the profile. Finally, he cited the school itself, which he agreed can help some children, arguing that was so disregulated that she and when she is , as she is in most large places with large groups of children at a her. He said the opportunity for being in a lunchroom with 100 typically developing peers was , and would lead to in some of the areas in which she has . Tr.I 197-206 He conceded that he could not testify as to the composition of the class placement for in the 2011-2012 school year, but insisted that the makeup of the class in terms of presentation would be a huge issue for because of . Tr.I 233-235 Asked to support his testimony that the school environment would be inappropriate, he stated that whenever she is in an overwhelming environment, she needs greater support and adult redirection. Tr.I 235-236 He stated that restrictions on assembly or recess time were not included in his written recommendation, explaining that his testimony reflected the recommendation of a small therapeutic school, which offers those restrictions, rather than a school. Tr.I 213

On cross examination, he described some of the difference in testing between the 2008 and 2011 evaluations. For example, on the fluid reasoning test, a IQ measure, she was at the percentile in 2008, and at the percentile in 2011; applied problems in math, using word problems, was at the percentile in 2008, and percentile in 2011. Her was more , her went , and her and all areas of skills went down. Her was at the percentile in 2008, and at the percentile in 2011. When asked by the hearing officer, he stated that he didn’t think she had but the needs were more and she that. Tr.I 221-226

, head of the School, testified that the School is a school for children who are cognitively average or better but need a multisensory and structured approach to learning to benefit from academic environment. The school takes children with challenges in speech and language, auditory and learning disabilities, attention deficits, and social awareness issues, what she termed soft neurological issues. There are students enrolled in grades . Most grade levels have classes; in the current 2011-2012 school year, grades and had class only. The school employs or teachers, all state certified and with a Master’s degree in special education. There is an assistant teacher in each classroom, plus floaters, all required to have either a Bachelor’s degree in a relevant field and special education experience or to be enrolled in a Master’s program in special education. In grades , there are students in a class. The school also has specialist teachers in art, music, physical education, and library skills, and providers in speech and language, occupational therapy, and counseling, as well as social workers and psychologists on staff. Tr.I 261-266

She described the process for determining a seat for the next year, including team discussions to assess whether a child is appropriate placed and making progress to warrant an offer for the following year. Tr.I 266-270 Students are grouped by social and functional fit, so they can have social peers, and then grouping is broken down for math and reading into skillbased smaller groups that are schoolwide. The age range usually does not exceed 15 months. Tr.I 271 She explained that the multisensory material is presented in different modalities, such as auditory and; every class has an FM system and Smart board. The curriculum is based on state standards, and modified for the needs of students in various ways. Tr.I 274-276 The team looks at the child to determine the services needed on a weekly schedule of five sessions; in addition, everyone gets social skills in the school. Most therapies are pull-out thru the or grade. Every classroom has a speech therapist, a counselor, social worker or psychologist, and an occupational therapist as part of the team for the classroom; they go in and assist in the educational program of the classroom and meet every other week to discuss how the students are doing. Tr.I 276-278 On cross examination, she clarified that social skills was included in the calculation of five sessions, and children only get up to four sessions of related services. Available services include speech and language, OT, and counseling. Tr.I 288-290There is an OT sensory gym for OT services. Tr.I 279-280 She described mainstreaming opportunities, including visits to the park and trips. There is a schoolwide behavioral program, called “ ”; if needed, a more individualized will be tailored for a child. Tr.I 281

The parent signed the contract with the school on January 28, 2011. Asked about the contract, she described the provisions whereby a parent could get percent refund of payment for the upcoming school year if the child was withdrawn prior to August 15. Refund would not include the $ deposit. Tr.I 283-286, 292-294; Ex. L testified that she was the head teacher of a grade class class at the School. She has a Master’s degree from Columbia University in applied behavior analysis, and is state certified in special and regular education grades 1 to 6. Tr.I 302-303 The class has 11 students and two teachers, herself and an assistant teacher, . The students are years old Ms. has nine years of classroom experience, and a post graduate degree in special education. Tr.I 304-305, 324 Ms. described a typical day for homeroom class, moving to reading, then varied subjects, then specials, followed by lunch at 11.30. Lunch is in the assembly room, at three long tables seating about students, in a separate wing of school There are a total of students when has lunch. Ms. is there days a week; on the other days there is either another teacher or supervisor present. The same subjects continue through the end of the day. They go to the a week. Reading and math are divided into small skill groups. Tr.I 305-306, 314-315 Students in the class function academically from a to grade level. ’s functional level is now at the - grade level for math, the same for reading. In social and emotional functioning, they have different needs, but all have difficulty maintaining conversations and difficulty with attention, needing work on pragmatic language and help to engage appropriately. Tr.I 308-309, 324

She is ’s classroom teacher. is her teacher for reading and math; Ms. provides teaching on other subjects, and they talk every day about the students. Ms. developed goals from previous reports and did her own assessment in September 2011. Academically is working on a lot of , on the at , a , and . In writing she was working on or on topic, using and forming ; in language arts, she is working on different in the and the difference between and ; in science, different concepts of , , and and . All these are presented in fashion. has a time, and needs a great deal of ; she is working a lot on when reading and listening comprehension to be able to retell and understand the context. Tr.I 312-314 gets related services of and and , and Ms. speaks with the providers on a regular basis as part of her team. Also part of the team is Dr. , the school psychologist who teaches social skills, seeing on a weekly basis. Tr.I 316-319

She stated that has made with the modifications provided her. She has learned to for of time, and shown in her desire to in lessons. She has also in , and with can ideas and ; she has made with between her . She has also displayed , using and . has been , for review and as it is carried over in the cross curricular program. is hand, was doing to look and is now ; she wants to demonstrate and what she has with the class. Tr.I 320-322 testified that she is a heard teacher at the School. She has a Master’s degree and is state-certified in general and special education, grades 1-6. is in her skill-based literacy and math group, and was in her math group the previous year. There were students in the literacy group, all functioning in September 2011 at the end of the / . She used a curriculum-based assessment, from the Wilson Fundations curriculum. Tr.I 337-340 She described the work as split between phonics and comprehension. Tr.I 341-342

She testified that met the 2010-2011 goals by October 2011, with support and modification, and was in her 2011-2012 goals. Many of her goals in the fall report were still at the emerging level, and since then she has been . Tr.I 344-347; Ex. K She has her of , reading and writing more words, and using context clues. Her fluency in , and she has become using strategies, although still requiring prompts and for skills. Tr.I 348-349 Ms. described her work with , dependent on the specific lesson. Tr.I 352-353 The math group, in this and the last year, had students, all starting in the middle of / level and taught a grade curriculum and displaying a grade functional level. In September, ’s computation skills were , but with other abstract concepts she was on the as the rest of the group. Tr.I 353-355 She has made with the supports, including breaking down lessons, providing very structured activities and very clear expectations, modified pacing, visual support, and manipulatives, graphic organizers, practice activities, and continued repetition. Tr.I 356-358

, ’s mother, testified that received early intervention services of , , and services, after which she was enrolled in preschool at . She was with other children or the class, and through the CPSE, she continued to receive services, including SEIT services. When she turned she was told couldn’t return to as her need were too great and she being taught by the SEIT if someone wasn’t prompting her. Tr.II 160-165 When she first went to the CSE, she was told needed a self-contained class. She was first placed in the School in 2008. Tr.II 166, 168 She has never attended a school. Tr.II 201

Asked why attended the School in 2011-2012, she stated that they got a placement recommendation in August for 198, and it was totally inappropriate for her. She explained that it had always been a recommendation in the past, as they were told those classes tended to have less emotionally disturbed children, but at the February 2011 meeting, the recommendation was changed to a . The parents were told needed more support. Tr.II 177-178

She stated that at in the previous school year 2010-2011, citing issues and that allowed her to have ; and carried over into academic areas. She was able to and do and . Tr.II 179-183

She testified about the CSE meeting in February 2011, stating that they discussed her progress, characterized as . Her needs were still great, needing “ ” support and scaffolding. She still had and . Tr.II 186-187 testified that the recommendation was changed from to a program, because needed too much extra support. The parents stated their concerns, based on their understanding that classes had significantly emotionally disturbed students. stressed that the CSE was trying to model what has provided, citing their seeming agreements with what was doing, although she conceded they never said that. She conceded that no one at the February meeting said would be placed with children. Tr.II 188-191, 200-201, 203-204 She stated that could not handle the environment of a school, explaining that she is and doesn’t have the tools or skills to in a lunchroom or playground setting. She gave a long description of her daughter’s at with typically developing children at a local playground. Tr.II 193-195

She said that her progress during the 2011-2012 school year showed progress. She has internalized more strategies and is to more , showing and able to periods of time and to be when doing her homework. Her and her academics have . Tr.II 192193

, ’s father, testified that he is actively involved, going to parent teacher conferences and all school placements, while, his wife handles the day-to-day communication with teachers. He participated in the February 2011 meeting, and took copious notes. Tr.II 206207 He stated that the parent member walked in 20 minutes late, and he made a note and immediately noted his attorneys. He also thought it “bizarre” that there was no general education teacher at the IEP meeting. Tr.II 249 said the team went through the “math and literary” goals and spent time on ’s management needs. They centered around the periodic , verbal prompts, , and she needed. Tr.II 210 There was also a discussion of related services, and agreement to continue the group in case she was in a school, without the class she had at . The team thought the was something she absolutely needed. Tr.II 211-212 He also stressed the parents’ belief that a program has many students with problems, and given ’s and to she would be better off in a class with children with similar classifications. There was no discussion of the specific group would be placed with. Tr.II 213-215 testified that he signed the contract with the School for the 2011-2012 school year on January 28, 2011, explaining that the school had a February deadline for holding the spot of . He paid a deposit of $8,000. The parents told the IEP team that they had signed a contract and would be attending ; they were open to placement but barring an appropriate one, that was where they would likely send her. They received a notice of placement on July 16, 2011, and made calls to the CSE and school, leaving messages that went unanswered. He did get a call back and was told by an official to visit the school in September, and in response to questions about the class or class profile, was told to get the information from the school. He researched the school on a website, and visited on the second day of class. Tr.II 216220; Exs. D, E, F, I A notice was sent to the DOE stating their intention to send to the School to which they received no response. Tr.II 238-239; Ex. A confirmed the payment schedule and deadlines in the School contract, including that if the school was not notified by August 15, 2011, he could get percent of a first payment back (although not the deposit). He continued to work with the DOE following the meeting, sending materials and updated school reports. Told at the February 2011 meeting that the evaluation was nearly three years old, the parents immediately contacted Dr. for a new evaluation; the report was received August 9, 2011 and immediately sent to . stated that he assumed when deferring placement from February to an future summer date that the materials would be relevant for determining a placement for for the following year. Tr.II 233-238; Ex. U He conceded that at the point he visited the school, he had already paid almost all of the $ tuition, and would not have gotten any money back had been placed in a school, but stated that he would have pulled her from the School if the placement had been an appropriate placement for her. Tr.II 252-253 He stressed that if the DOE had recommended a program he thought appropriate he would have accepted it. He explained that every year he goes through a process of writing checks and showing up at multiple IEP meetings and preparing for hearings, when his goal is to find a place that can learn and progress. If there is any hope that she can lead an independent life, they hope to find an appropriate placement. He stated he hadn’t seen that at any of the places he had visited. Tr.II 243 He said that one year of tuition is not conclusive for him on whether to pull her or not from the school. Tr.II 260

He described the visit to at length, including meeting with , the principal, who told them the school had students, often with multiple grades having lunch and recess at the same time. They were told there were two self-contained classes at the school, one a - grade class that would be the one would be in. There were students in the class, with paras. He described observing instruction that struck them as being at a , covering subjects had covered years before and with a class library years below her level. He brought the IEP with him and asked about the classification of the children; one was or , one was and , and the other four were . The , , and grade went to lunch and recess together; an estimated students were at recess and at lunch. The parents were told related services could be provided, but was provided in the hallway as the school’s gym had been . Leaving the school, they saw a “very loud big space” with children around. Tr.II 226-230 He echoed his wife’s testimony that was not able to keep up with children her own age and despite a desire to do so, has no idea how to behave with general education children. Tr.II 231232 He conceded that he asked about functional levels and was told the reading and math were between and grade, and the ages were through years old. was then operating at a grade reading level. Tr.II 257-258

He testified that the School is therapeutic for . At , all the work is supported and reinforced and repeated. Tr.II 241-242 He said she is with appropriate peers and learning. She is getting the and she needs from the specialists at the school. Tr.II 260

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

It must be stated at the outset that analysis requires separate review of the school district program and the program chosen by the parents. As far as the law is concerned, the two programs are not in competition. Each program stands or falls on its own merits, depending on the underlying facts and in accordance with the standards applicable thereto.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate education (FAPE).

20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden. I note at the outset the parents’ claims regarding the meeting in February 2011. By itself a meeting in February to determine a program for the following school year is not a denial of FAPE. I also note their claims concerning the late arrival of the parent member and the absence of a general education teacher. The district’s characterization of the meeting as a subcommittee meeting was unsupported in the record, making the presence of a parent member a requirement. Appeal of a Child With a Disability, Appeal No. 11-154. I note also the district’s emphasis on the child’s participation in a school precisely because it is a general education environment, and find that a general education teacher was therefore necessary for the meeting. B.P. v. New York City Dept. of Educ., 2012 WL 33984 (EDNY 2012). Given the parents’ actual participation in the meeting and the substance of the concerns they raised, I find that these procedural inadequacies do not amount to violations that caused a deprivation of educational benefit or impeded the parents’ opportunity to participate in the decision-making process so as to render the meeting invalid or to constitute a denial of FAPE. 20 U.S.C. 1415(f)(3)(E)(ii); Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415 (SDNY 2007)..

The absence of updated evaluations would also not generally constitute a denial of FAPE. However, in this case, the CSE sought to change the child’s program, without ordering any new evaluations. The at the meeting expressly told the parents that new evaluations would be needed, and Ms. conceded that her observation in November she saw changes in from the previous May 20, 2010 IEP, specifically citing the extent to which was not involved in the class at all. Certainly, this provided notice of the need to inquire further prior to making a program change. I find that an evaluation was needed to ascertain whether the program change adequately addressed the changes that had been noted in the child. Moreover, the CSE did not review goals during the meeting, nor was there any explanation offered for the omission. An IEP is not written solely for the people at the CSE meeting, but for the teachers and service providers of a child who will be charged with implementing its provisions. I note in particular a single broad goal for counseling, scarcely sufficient to address the child’s several issues. According to Ms. , this was intended to address her need for support for interacting with a mainstream population, even though it would be with other non-mainstream children.

Absent evaluations, I find the recommendation of a class to be inappropriate and inadequate to address ’s needs in the classroom. In her testimony Ms. repeated several times that needed support to “bring her into the classroom.” I discount her statement that there was “absolutely no” discussion that needed support and its inclusion on the IEP meant something less than one-on-one support. As to the placement itself, I reject the district argument that I need not analyze it because the parents objected to the recommendation. I discount as speculation the parents’ and Dr. ’s testimony about hypothetical class profiles with hypothetical students who would not be appropriate classmates for . The makeup of the class is an important issue for determining the appropriateness of the program for , and I credit the teacher’s description of the class, and note appropriate classifications and academic levels of the students. While I am not persuaded that needed two special educators, as urged by the parents, I agree that she needs additional support not provided by the recommended program or placement.

In this case, the school was a critical part of the recommendation for this child. I note Ms. ’s testimony stressing the possible benefit of a school so could benefit from typically developing peers to negotiate the world, and her statement that a school could be the appropriate thing when a child can tolerate it, and I credit her sincerity in thinking that could. Yet there was no basis for her belief provided. To the contrary, the parents expressed concern at the CSE meeting and both gave extended testimony about the child’s to deal with , and concerns about her to in the environment of a school, with of mainstream children at lunch and recess with the child. Dr. also testified that it would be for her to school and , which is why she needed a special education class and school.^[3] Had the necessary evaluations been conducted, the relevant assessment would have been before the CSE.

No evidence was presented as to the parents’ claims regarding the CSE’s alleged failure to consider adaptive physical education, assistive technology, and parent training on the child’s IEP, and I dismiss those claims.

For all the foregoing, I find that the district failed to provide a FAPE for .

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the School offered an educational program designed to meet ’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the School for for the 2011-2012 school year.

Ms. described a school staffed by special education trained and in each classroom. I discount the district argument that the child does not have needed related service of counseling, and note skills included in a required weekly session as well as a social worker or assigned as part of the classroom Tr.I 276-278 I cite the testimony of the child’s teachers. Ms. noted ’s with the modifications provided her, including of information, desire to in lessons, actually to and what she has with the class. She has , both manual and . Ms. also spoke of the and review which has facilitated carryover in the cross curricular program. In reading, she has learned and her , using strategies and . Tr.I 320-322, 344-349 Ms. also described , through breaking down lessons, structured activities, modified pacing, and various supports. Tr.I 353-358 Finally, I note description of ’s , that she has more and is more , , and in and academics. Tr.II 192-193

I note also that Ms. , the DOE’s witness who described years of observations at the School, testified that is good school with has good academic strategies, and that her disagreement with the School for was solely on the grounds that it was not the least restrictive environment for her. Federal law requires that an appropriate education be in the mainstream to the extent possible, and it remains a consideration that bears upon a parent's choice of an alternative placement which is appropriate consideration in determining whether the placement was appropriate. As noted above, however, in this case I find the placement in a school to be inappropriate, in part because of the mainstreaming. I note again Dr. and the parents’ testimony that the restrictiveness was precisely the environment needed to learn and to progress.

For all the foregoing, I find the placement of at the School to be appropriate.

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a school at expense at the most recent CSE meeting prior to their removal of the child from 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)(iii).

The parents in this case informed the CSE of their intent as early as the February 2011 meeting, and then again in August 2011. I note also the DOE’s failure to respond to those entreaties. I discount the DOE’s argument that the child has only attended school and note the misstatement of the child’s age as “currently ” rather than the year old child she was at the beginning of the school year. IHO Ex. III I credit testimony about his desire to find the right place for his child to learn and progress and his willingness to place the child in a school were an appropriate placement found.

Accordingly, I find that equitable considerations do not operate to deny or reduce an award of reimbursement to the parents for tuition.

ORDER

1. The DOE shall pay or reimburse the parents for ’s tuition at the School in the 2011-2012 school year, upon proof of attendance and payment, at a cost not to exceed $47,950. IT IS SO ORDERED. Dated: June 28-`, 2012

_____________________________

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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 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 - or 35-day period. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and forms can be found in the Office of State Review website: www.sro.nysed.gov//appeals.htm.

EXHIBITS

DOE Exhibits

1 IEP, 5/20/10, 18 pages

2 , 6/17/08, 11 pages

3 Evaluation, 7/29/10, 9 pages

4 School Fall Report, 11/10, 6 pages

5 Literacy Goals, 2010/2011, 2 pages

6 Math Goals, 2010/2011, 2 pages

7 Mid-Year Report, 2/2011, 8 pages

8 and Therapy Plan, 10/2010, 2 pages

9 therapy Plan, 10/2010, 2 pages

10 Due Process Response, 10/21/11, 4 pages

11 Subpoena and fax cover, 1/24/12, 4 pages

Parent Exhibits

A Notice Academic Year 2011/2012, 8/24/11, 2 pages

B Request for Impartial Hearing, 10/13/11, 8 pages

C IEP, 2/11/11, 23 pages

D FNR, 7/11/11, 1 page

E Letter, 7/19/11, 2 pages

F Fax Confirmation, 7/19/11, 2 pages

G E-mail, 7/19/11, 3 pages

H Meeting Minutes, 2 pages, 2/11/11

I Notice of Recommendation Deferred Placement, 2/11/11, 1 page

J Evaluation, 2/9-8/1/11, 12 pages

K Fall report, 11/2011, 14 pages

L Re-enrollment Contract, 2011/2012, 2 pages, 1/28 and 1/31/11

M Parent Proof of Payment, 1/20/12, 2/1/11, 12/1/11, 5 pages

N Attendance Report, 1/20/12, 1 page

O Observation, 11/15/10, 2 pages

P E-mail, 8/9/11, 1 page

Q Letter, Ms. , 9/8/11, 3 pages

R Mid-year report, School, 2/2012, 12 pages

S E-mail, , 5/31/11, 3 pages

T School Spring Report, 5/11, 22 pages

U E-mails, , 8/9-8/10/11, 3 pages

IHO Exhibits

I Subpoenas, 1/24/12, 1/25/12, 5 pages

II Extension Decisions, 12/23/11 to 5/16/12, 6 pages

III DOE Closing Brief and Memorandum of Law, 6/14/12, 18 pages

IV Parent Brief and Memorandum of Law, 6/19/12, 30 pages

Footnotes

[1] Transcripts for the last two days of hearing were issued with the same page numbers. Thus, the transcript for April 4 is noted in this decision as Tr.I; transcript for May 14 as Tr.II.

[3] Dr. August 2011 evaluation was not before the CSE and not considered by me in determining the appropriateness of the recommendation.