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 26, 2012

March 13, 2012

April 18, 2012

May 8 ,2012

Actual Record Closed Date: November 20, 2012

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED: JANUARY 26, 2012

Attorney — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: MARCH 13, 2012

Attorney — Student

For the Board of Education: — Student

Attorney — Student

Special Education Teacher (Via Telephone) — Student

Psychologist (Via Telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: APRIL 18, 2012

Attorney — Student

Parents

Preschool Teacher (Via Telephone) — Student

Principal — Student

Head Teacher, Kindergarten (Via Telephone) — Student

For the Board of Education: — Student

Attorney — Student

Teacher (Via Telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED: MAY 8, 2012

Attorney — Student

Parents

Parents

For the Board of Education: — Student

Attorney — Student

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. The first issue is whether or not the District offered the Student a Free Appropriate Public Education (FAPE). The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B)

THE PARENTS’ POSITION

In the complaint notice dated October 21, 2011 the Parents assert that the District denied the Student a free appropriate public education (FAPE) for the 2011-2012 school year, that the Individualized Education Program (IEP) has many errors, it did not utilize all the documents that were provided to the Committee, and the goals and objectives do not address the Student’s special education needs. The Parents claim that the Committee on Special Education (CSE) was invalidly composed and did not follow the correct procedures during the meeting. In addition, the Parents do not feel the proposed placement would meet the Student’s needs for the following reasons: the school and class size are too large and the Student has a which is made environments; the proposed class was a and the students were on a than the Student; the school does not have an elevator and the Student has ; and the Student would not receive enough support for his academic and social needs. The Parents are requesting tuition reimbursement, transportation, and related services. (Ex. 1)

THE DISTRICT’S POSITION

The District’s position is that they offered the Student a FAPE for the 2011-2012 school year, that the CSE team was duly constituted, that the evaluations were consulted, that the IEP was valid, and that the placement was appropriate.

STUDENT HISTORY

At the time the hearings began, the Student was The Student is classified as having . (Tr. p. 91) The Student had a grade . (Ex. 5) The Student has had disabilities since having had a old. (Tr. p. 347) As a , the Parent said: “He has , which means his , from was that he has . . . he has processing issues, , et cetera.” (Tr. p. 347) The Student was ( ) at three months and has . (Ex. 4) He has had a , with from September 2010 through January 2011, and is . (Ex. 4) The Student attended a collaborative team teaching program for . (Tr. p. 79) He is currently class of seven students in a private school. (Ex. E) He is a . (Ex.s 4, 5, 6 & 7)

BACKGROUND OF THE CASE

The CSE met on April 29, 2011 for a turning five meeting to develop an IEP for the Student. The recommended placement was a program in with a health paraprofessional and related services. But the Parent disagreed.

The Parent recalled most of the time at the CSE meeting was spent discussing whether a class would be best for the Student. (Tr. p. 350) The Parent said that while the would have been the better class size, he was told that the students had severe emotional or . (Tr. p. 350)

The Parent explained in his testimony that the would have been too large as the Student’s teachers and pediatrician and others who work with the Student said he needed a small class size. (Tr. p. 352) The Parent said: “He will , he will just not function well, he’ll stare off, he will , and we are told that when he does that, it could , so that is clearly not the right number of kids for him to be in a class with.” (Tr. p. 352)

On October 21, 2011 the Parents filed a due process complaint itemizing the above issues. (Ex 1) The District’s due process response was filed on November 1, 2011 placing the Parents’ concerns in issue. (Ex. 2)

ANALYSIS

Prong I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This relatively straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]).

The primary issue in this litigation is whether the District provided the Student with a FAPE for the 2011-2012 school year. The Parents have raised both procedural and substantive violations. Below, I identify the main issues and segregate them according to their nature as either procedural or substantive while recognizing that there are often features from either category in any given issue.

PROCEDURAL ISSUES

The goals and objectives were not properly developed;

The CSE was invalidly composed; and,

The CSE did not follow the correct procedures during the meeting.

SUBSTANTIVE ISSUES

The proposed placement does not meet the Student’s needs;

The goals and objectives do not address the Student’s special education needs;

The school and class size are too large; The Student has a which is in large, ;

The school does not have an elevator and the Student has ;

My decision considers both procedural and substantive grounds. In making this decision I conducted an exhaustive review of the record and incorporated arguments of counsel.

PROCEDURAL VIOLATIONS

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]), Application of a Child with a Disability, Appeal No. 07-007

ANALYSIS OF PROCEDURAL ISSUSES

The goals and objectives were not properly formulated.

I find that the goals and objectives were developed in advance of the meeting without the benefit of discussion and review among the CSE. The District School Psychologist testified that the goals were prepared before the meeting by the Student’s service providers and his Pre-school Teachers. (Tr. p. 123) When questioned again about who wrote the goals, the District School Psychologist said it was the Pre-school Teachers and not the District members of the CSE. (Tr. p. 140) A review of the record indicates the goals were choosen in a haphazzard mannner and the Parent testified that no goals were even discussed at the meeting. (Tr. 351 & 352). I conclude that they were not developed in any meaningful way at the CSE meeeting but, rather they were pieced together from teacher reports, prior year goal statements and from input from preschool teachers who were not familiar with the proposed elementary program. (Tr. p.96-107 & 111-112 &

140) See, SRO # 04-023 which sets a standard of “appropriate and logical goals and objectives”. In this case I cannot ascertain the logic of the goals and the appropriateness is therefore suspect. Some sections of the IEP were not filled in. For example, there was nothing written or checked off regarding the duties of the paraprofessional; the section on special transportation also lacked details. (Tr. pp. 143-144) The District Teacher testified that she was concerned about the lack of information about the paraprofessional. She said: “I need to know that, and so does the administration, because they can’t put in for a “para” for health when they don’t know what the health “para” is going to be doing and their responsibilities.” (Tr. p. 211) While the procedure employed was incorrect, the issue of whether a FAPE was denied falls upon a secondary analysis: did the procedure either

1) impede the student’s right to a FAPE, 2) significantly impede the Parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) cause a deprivation of educational benefits? Because the answer to these questions is significantly intertwined with the substantive portion of the Parents’ claim against the goals, I defer this analysis to below.

WAS THE CSE WAS INVALIDLY COMPOSED?

The Parents assert that the CSE was not properly composed because it did not include a general education teacher. (Tr. pp. 33, 80, 120) The Parents also assert that the special education teacher on the committee was not qualified. (Tr. p. 17.) In addition, the pre-school teachers at the meeting did not have knowledge of the District programs. (Tr. pp. 147, 167) The District School Psychologist did not know if these pre-school teachers were familiar with the program. (Tr. p.142) When asked if there was anyone at the meeting who had taught in the program and could explain it to the Parents, she said no. (Tr. p. 147) Despite the above mentioned inadequacies I do not find that the hearing record supports a result that the failure to include a regular education teacher or a special education teacher who would implement the student's 2011-12 IEP rose to the level of a denial of a FAPE (see 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; A.C., 553 F.3d at 172; E.H., 2008 WL 3930028; Matrejek, 471 F. Supp. 2d at 419); see also Application of a Student with a Disability, Appeal No. 09-137; Application of the Dep't of Educ., Appeal No. 08-122; Application of the Dep't of Educ., Appeal No. 08-105; Application of a Student with a Disability, Appeal No. 08-064; Application of the Bd. of Educ., Appeal No. 07120; Application of a Child with a Disability, Appeal No. 07-107; Application of a Child with a Disability, Appeal No. 07060; and, Application of the Bd. of Educ., Appeal No. 05-058).

Concerning the lack of a General Education teacher, there was not a real concern that the Student would be considered for a general education placement at the time of the meeting. (Tr. p. 80) Further, the District School Psychologist has the historical credentials of a General Education Teacher. (Tr. p. 73)

Regarding the claim that the Special Education Teacher was not qualified, I note that two qualified special education teachers attended the CSE meeting. The fact that they were both from the Student’s preschool and not from the District (Tr. p.236) is troubling and it is difficult to condone the difficulties in CSE composition, but I cannot say that these infirmities, standing alone, amount to a denial of FAPE.

DID THE CSE FOLLOW THE CORRECT PROCEDURES DURING THE

MEETING?

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; and, Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Due Process Response listed the social history, classroom observation, and related service progress reports as the documents consulted in making the IEP recommendation. (Ex. 2) The CSE also had available for their consideration Exhibits 4-

13 When asked what else was discussed at the meeting, the District’s School Psychologist confirmed they used the , , , and student progress reports, the preschool evaluation scale, the classroom observation, the paraprofessional rationale and the progress reports from a private center. (Tr. p. 76 & 84-85) When the was asked what else was discussed at the meeting, she said: “We talked about his , we talked about his , we talked about he needed a lot of one-on-one and repetition in our class.” (Tr. p. 237)

Against this I consider the perception of the Parent who testified that no one explained what their options were. “Like, I thought we were being helped here, and the choices were a little—I mean, neither choice fit. It was never explained that the services we’re agreeing to had to take place during the school day at that particular location, and she never even said—gave the option to disagree, so it was like, okay, here, sign, and it was just us not having the ramifications for what we’re doing, so it wasn’t like, okay, you’re signing this away, that means you’re agreeing to all this that is acceptable for your son. Well, you didn’t really explain to us what we’re signing, other than you gave us two choices, this is the better of the two choices.” (Tr. p. 359)

A FAPE consists of full evaluations, an informed review where the parent is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation and a timely and appropriate site offer. 34 C.F.R. §§300.111, 300.116, 300.301.

The CSE met on April 29, 2011 to develop an IEP for the Student. The recommended placement was a program in a community school with a health paraprofessional and related services. On June 15, 2011, a final notice of recommendation was issued identifying a placement and recommendation. On balance, I find that the District did not deny the Student a FAPE for failure to follow procedures at the CSE meeting. Evaluations were available and a program recommendation was made. The Parent who belatedly complained that he did not understand his options, was accompanied by educators from the preschool who knew the Student and actively participated in the meeting. While I appreciate the Parent’s assertion that his role was marginalized by the lack of options presented, I do not find that the process of convening the meeting has caused a procedural violation of the Student’s right to a FAPE.

In conclusion I summarize by restating that there were several procedural violations in this case. However, I find that those violations are de minimis and do not rise to the level of a FAPE denial. In support of this position, Application of a Child with a Disability, Appeal No. 07-046 states: “While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.” Accordingly, I continue with an analysis of the Parents’ substantive claims.

SUBSTANTIVE CLAIMS

The substantive inquiry is whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. "[F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression." D.F. ex rel. N.F. v. Ramapo Central School Dist., 430 F.3d 595, 598 (2d Cir. 2005). THE PROPOSED PLACEMENT DOES NOT MEET THE STUDENT’S NEEDS.

The District asserts that any claims and/or testimony by the parent with respect to the recommended public school placement are speculative and, thus, the District is not required to prove that it could implement the April 29, 2011 IEP. They cite several case decisions to support their assertion. See, Application of a Child with a Disability, Appeal Nos. 11-098, 11-115, 11-123 and 11-137. I agree with this reasoning and because the Parents did not accept the recommendations of the CSE or the programs offered by the District, the District was not required to prove that it could implement the IEP in issue. Rather, the sufficiency of the District's offered program is to be determined on the basis of the IEP itself. (see R.E. v. New York City Dept. of Educ., 2011 WL 924895, at 10 [S.D.N.Y. Mar. 15, 2011]) Accordingly, I dismiss the retroactive testimony as to how the program would have been implemented.

THE GOALS AND OBJECTIVES DO NOT ADDRESS THE STUDENT’S

SPECIAL EDUCATION NEEDS.

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Here, there is no description of the paraprofessional’s role on the IEP. The Student does not have one, or according to the Parent need one, in his current school. (Tr. p. 361) The Parent was not told what type of paraprofessional the Student would have; he thought it would be someone to keep the Student on task as in the Preschool, but said that he doesn’t need one in his current small class. (Tr. p. 374) Likewise, the teacher at the Public School placement was also unsure about the role of the paraprofessional. (pp. 21014)

There were no reading goals. (Tr. p. 153)The Psychologist testified that usually the reading goal for , but the Student already knew it. The math goal was inadequate: that the Student would count to ; he already could count to (Tr. p. 153) The Special Education Director said that the goals were not the same goals from the CPSE IEP (Tr. p.

240) She said the first three goals seemed appropriate but not the last one (“will match like objects”) which she called “unrealistic.” (Tr. p. 243) Another unrealistic goal was the second one on page 7 about catching a ball using both hands, as he is only able to use one hand. (Tr. p. 246) She later said, “Some of the goals appear to be too broad, in my opinion, to be met in a year.” (Tr. p. 256) The Student’s current teacher testified about the goals. She said that she and the other teachers try to help the Student remain on task (which is one of the goals), but one difference is that “instead of using minimal verbal prompting we try to use more visuals and less verbal,” she explained. (Tr. p. 286) The goal did not give the length of time the Student should stay on task. (Tr. p. 286) When asked if the IEP indicates how success would be measured with that goal, she said no. (Tr. p. 289) When asked if the IEP shows how success will be measured or what length of time the six sessions for the goals of , responding to questions about pictures and stories, she said no. (Tr. pp. 289-290) Other goals are not specific in terms of measurement and period of time. (Tr. pp. 291-293) See, 34 CFR 300.320 as support for my conclusion that the goals were not appropriate for this student. In the school progress report, dated 2/1/11, (Ex. 7) the Pre-school Special Education professionals wrote: “[The Student’s] ability to attend and remain on task has become increasingly difficult over the past two months. During activities and at other times throughout the day, [The Student] has been noted to ‘tune out’; his and he does not respond to verbal prompts. These episodes can last from approximately ten to forty seconds.” This severe issue was not addressed in the IEP, which leads me to the remaining issue.

THE SCHOOL AND CLASS SIZE ARE TOO LARGE AND THERE IS NO

ELEVATOR.

The District School Psychologist said that the size of the school was discussed, but not in terms of the size of groups for lunch, gym, etc. (Tr. p. 119) She said a small classroom seemed most appropriate, but she felt even 12 students would be too large a number because when he was in pre-school he was , had , and because of the . (Tr. pp. 234-235)

The Student has a seizure disorder which is made worse in large, environments. There are 300 students in the school, and the Parent estimated that the Student would have lunch and recess with about 150 students (Tr. p. 366) or 70 students (Ex. 18)

The Parent said: “If he’s around that many kids, he . Like, I don’t know the medical term for it, but when there’s too much going around, it’s too much for his brain to process. He kind of zones out, and when that happens, that could lead to . It could be .” (Tr. p. 366)

The school does not have an elevator and the Student has ; and, “[The Student] requires assistance when going up and down stairs for safety reasons.” (Ex. 6) In the physical therapy evaluation, dated February 7, 2011, (Ex. 5) the : “[The Student] has challenges safely navigating the classroom and outdoor playground. His problems include: in his , and , and . (Ex. 5) .The Student would have to walk up a flight of 25 stairs, which would be too tiring for him, and he would have to go to other floors for the related services. (Tr. p. 367)

Over the course of the hearing I determined that the Student’s mobility and fine motor issues are a significant part of his individual profile. The District Psychologist testified that when she observed the Student, she noticed he seemed , and needed support in . (Tr. pp. 87-88) While he is (even) stairs these acts are an effort which define him in many ways.

The Student’s disabilities can affect his work. For example, in reading, “he often and needs to be redirected by the instructor.” (Ex. E) In math: “[The Student] , however, to ....He often needs individual attention in order to and provide constant positive reinforcement….On some days [The Student] appears tired, which can impact his ability to focus and participate.” (Ex. E) In handwriting, “he needs .” (Ex. E) In language arts, “…his ability to respond us sometimes hindered by and stamina.” (Ex. E) In science, “during presentations of information, discussions, and concluding lesson times, it is sometimes difficult for [The Student] to remain engaged or to stay on topic. At these times, [The Student] benefits from , teacher redirection, and preferential seating so that he is in close proximity to a teacher.” (Ex. E) In social studies, he has to take “frequent sensory breaks”, is given time to rest, and is reminded to listen. (Ex. E) In the dated February 7, 2011 (Ex. 5) it is revealed that the and , of his body in . “[The Student] has had episodes in which he appears or verbalization. This can last from several seconds up to a minute. It is unclear at this time whether this is related to his ….It is difficult for him to follow simple one step directions without . [The Student] is very and it is hard for him to attend to an activity for more than a few minutes at a time.” (Ex. 5) In the progress note, dated February 1, 2011, (Ex. 6), the Therapist wrote: “[The Student’s] level of alertness can vary from day to day and even throughout a session.” (Ex. 6) The Therapist wrote that he “ balance reactions and body awareness.” (Ex. 6) He often falls on uneven surfaces. (Ex. 6) At the time of the report, the , but had the fine . (Ex. 6)

While the Student’s teacher at the , reiterated that the student is capable of walking up stairs with assistance and holding the handrail, this concern impacts on the rest of the Student’s activities in the School. The Parent agreed the Student needed the recommended services. The Student receives ( ), in the private school on both a pullout, push in basis. (Tr. p. 308) The problem with the eleven sessions of related services that were recommended for the new placement was that the Parents did not understand that the Student would have to receive them all at school. The Parent explained that would be too difficult for the Student. “[The Student] does not have the to handle these types of services and the way we were explained is his . Even when he’s sleeping, it’s like he’s awake, and he doesn’t get real rest, so he gets tired very quickly, so even now at his current school where he gets four services over the course of a week, you can notice by 1:30, 2:00 in the afternoon he is and if he were able to get any (PT) during school, he would completely not be able to be functional in terms of learning, playing. He would be completely wiped out.” (Tr. pp. 353-354) The Student receives services after school that are funded by the Parent’s health insurance, not the District, and the Parents are not seeking reimbursement. (Tr. p. 355) The Student is getting 45 minutes of PT four times a week, 45 minutes of twice a week, speech and language for 45 minutes, twice a week, and aqua therapy once a week for 60 minutes. (Tr. p. 355)

When asked if he told anyone at the CSE meeting that the Student was receiving services outside of school, he said he didn’t remember. (Tr. pp. 376-377) “Our assumption was it was happening after school, so it was a complete, you know, call it miscommunication or just lack of information.” (Tr. p. 377) He said he didn’t realize when the services would be provided until his second visit to the placement. (Tr. p. 378)

A review of the IEP demonstrates a failure to properly program for these complex concerns. (Ex. 3) The Physical Development and Management sections of the IEP pay lip service to the and but in the balance of the document there are simply two goals for climbing and descending stairs. In my view this is an inadequate presentation of his challenges and the IEP fails to address a course of action to address the impact of his disability on the balance of the demands of the school day. In coming to this conclusion I note that the related services of Occupational Therapy and Physical Therapy in the IEP, while available, are deficient for lack of specificity in goals. For the above reasons I find that the District failed to offer a FAPE to the Student.

PRONG II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700

F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Here, the Private School in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported by the testimony of the Parent and the Student’s teachers. The Student has been making progress in the school; it is addressing his special needs, and providing a safe environment.

The Parent testified that the current placement is helping the Student in important ways. “He’s learning to be independent. He now plays with kids his own age, and you know, at the same time, he is getting an education. He’s .” (Tr. p. 357) He added, “It’s more important for us for him to learn to be independent, to be able to socialize with his peers, to be able to learn…” (Tr. p. 356) In his previous school, the Student was not independent and never played with other children. Now he plays with children in and out of school, has academic skills and can recognize words and do some math. (Tr. p. 362) The Parent said: “…we’re getting exactly what we wanted. His sense of confidence, independence while still learning, and just keep progressing as opposed to not moving forward, socially as well as learning-wise.” (Tr. p. 362)

The testified about how the school deals with the Student’s . She said the school is on one level, except for the therapy rooms, and the therapists bring the Student to therapy; in addition, the adults in the classroom watch him. (Tr. p. 269)

When asked how she addresses the Student’s issues, and issues, the Teacher said: “I use a lot of visual cues and prompts. my so that [the Student] can comprehend what I’m saying and take it in. A lot of our lessons are hands-on, and a lot of modified instruction to help [the Student]”. (Tr. p. 295)

The Teacher said the helps the Student with by teaching social skills and problem solving. (Tr. p. 296)

In the Student’s Private School, the students are taught as a class and also in two small groups; the Student is placed in a group of three (Tr. pp. 297-298). The Student is never in a group larger than seven students (including lunch and gym). (Tr. p. 289) According to the Teacher, this is much better for the Student. She said: “I feel that within large groups he and loses very quickly. It’s hard for him to maintain attention.” (Tr. p. 299)

The Teacher said the Student has made progress in the following ways: “He follows more directions. He stays with the group more. He sees that within the classroom he needs to be part of the group. He’s learned that. Then also academically he’s doing quite well but very step-by-step.” (Tr. pp. 301-302) Some of the goals he has mastered are putting things away, identifying letters and sounds. (Tr. p. 321)

In consideration of the forgoing, I find that the Parents satisfied their burden under the Prong II analysis.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. . . . Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank

G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006] Accordingly, I move to the Prong III analysis.

PRONG III

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] 1; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

In this case, the Parents provided notice. On June 15, 2011, the District sent the Parents a Final Notice of Placement (FNP). The Parents visited the school on June 22, 2011 and found it to be unsuitable for the Student; they wrote a note on the FNP, rejecting the placement and stating they would be unilaterally placing the Student in a private school and would seek tuition reimbursement, but would visit the school in its new location in the fall. (Ex. 17) They FAXED the note on June 23, 2011 to the CSE team. The District School Psychologist testified that if the Parents had contacted the District sooner, the CSE would have reconvened. (Tr. p. 93) When questioned later, she said that although the District received the note at the end of June, “there was no time for another meeting to be held…” (Tr. p.156) But she admitted that CSE meetings are held

1 20 U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- ``

(I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . .

(iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement—

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child. during the summer and the CSE could have held another meeting for the Student. (Tr. p.157) The Parent observed the school again on September 8, 2012 (Ex. 1) (in the new location). The Parent sent another letter to the CSE chair on September 14, 2012, rejecting the placement, based on his second observation. (Ex. 18)In the letter, the Parent reminded the Chair that the District did not respond to the Parents’ previous letter about the problems with the IEP. He said that the Student would attend the Private School and the Parents would seek reimbursement. (Ex. 18) Accordingly, I find no basis under prong III to deny tuition reimbursement. It is therefore ORDERED That the District reimburse the Parents for one hundred percent of the tuition at the Private School upon the presentation of properly receipted invoices for the payment of such tuition. Dated: November 26, 2012 ______________________

MARTIN KEHOE, III, ESQ. MK;mv Impartial Hearing Officer

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. Parent letter with fax confirmation, 8/24/2011, 3 pages

B. Contract, 5/15/2011, 4 pages

C. Affidavit of Payment, 12/ 6/2011, 1 page

D. Attendance record, 2011-2012, 1 page

E. Additional Disclosure Mid-Year Report 2011-12 , 02/2012

F. Reading Letter from to Parent, 02/2012

G. Fall Report 2011-2012 , 11/2011

H. Plan from , 10/2011

I. Speech/ Language Therapy Plan from , 10/2011

J. ’s Class Schedule from 2011-2012 School Year, Undated

K. ’s Related Service Providers Schedule, Undated

L. 5 Cancelled Checks made payable to for tuition for 2011-2012, various dates

M. Description of , undated

DOE

1. Due Process Complaint, 10/21/11, 2 pages

2. Due Process Response, 11/1/11, 4 pages

3. IEP, 4/29/2011, 18 pages

3a. Notice of IEP meetings, 4/13/2011, 18 pages

4. Progress Note, 1/26/2011, 2 pages

5. Physical Therapy Evaluation, 2/7/2011, 4 pages

6. Progress Note, 2/1/2011, 4 pages

7. School Progress Report, 2/1/2011, 3 pages

8. Structured Observation, 4/4/2011, 2 pages

9. School Version Rating Form, April 2011, 1 page

10. Paraprofessional Rationale, 1/4/2011, 1 page

11. BSM Pediatrics Correspondence, 1/4/2011, 1 page

12. Progress Report, 3/12/10, 6 pages

13. Progress Report, 4, 19, 2010, 5 pages

14. PT Progress Report, 4/17/2009, 3 pages

15. Related Service Student Progress Report, 4/13/2010, 4 pages

16. PT Evaluation, 4/16/2010, 3 pages

17. FNR and parent rejection, 6/15/2011 and 6/22/2011, 2 pages

18. Correspondence from Parent- 2nd Rejection, 9/12/2011, 2 pages

19. DOE Subpoena For Student Records, Undated, 3 pages