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: April 3, 2012

April 30, 2012

May 15, 2012

June 15, 2012 Actual Record Close Date: July 25, 2012 Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2012

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

Special Education Evaluation, Placement, Program Officer — DOE

(via telephone) — DOE

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

Attorney — Student

Parents

Parents

Teacher (via telephone) — Student

/Language Pathologist (via telephone) — Student

Social Worker (via telephone) — Student

CFO (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSON WHO APPEARED ON MAY 15, 2012

Attorney — Student

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSON WHO APPEARED ON JUNE 15, 2012

Attorney — Student

Attorney — DOE

I. INTRODUCTION - ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated November 9, 2011. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s unilateral private placement at the for the 2011/12 school year (Exs.

SD-1, SD-16 at 1).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on June 26, 2012, following the recusal of IHO John Farago. Hearings in this matter were held before IHO on: April 3, 2012; April 30, 2012; May 15, 2012; and June 15, 2012.^[2] During the course of the hearing before IHO Farago, the DOE moved for summary judgment. The DOE argued that the parents lacked standing to bring the proceeding as they have incurred no financial obligation for the student’s private school tuition for the 2011/12 school year

(R. 552-556; Ex. SD-16). The parents opposed the DOE’s motion (Ex. P-L). IHO denied the DOE’s motion (R. 36-37).^[3] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the November 7, 2011 hearing request, the student was ( ) years old and educationally classified as having a (Exs. SD-1, SD-2 at 1, SD-3).^[4] For the 2011/12 school year, the student attended the second grade at the (“ ”) (Exs. SD-6). The Commissioner of Education has not approved ’s elementary school as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, SD-2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).

The student had previously received including therapy. Upon reaching age three (3), he transitioned to the jurisdiction of the Committee on (“CPSE”) where he continued with (Ex. SD-12 at 1).

Results from a evaluation of the student from June of 2008, when the student was four (4) years old, revealed high average potential. Specifically, the student demonstrated high , with relative deficits noted in expression and complex language processing. The student’s also fell in the high , though he in his . The student’s pre-academic skills were developing at that time, with strengths noted in his letter identification skills. His , however, interfered with his ability to demonstrate his knowledge and capabilities on tasks of spelling and language-based word problems. , the student presented as a and ; however, his interfered with his socialization and his ability to maintain appropriate, reciprocal interactions (Ex. P-A at 1).

On or about March 3, 2009, the student was accepted into School for the 2009/10 school year (Ex. SD-21).

The student underwent an updated evaluation with Dr. , a licensed psychologist, in December 2009 (when the student was approximately years old and in ). Results from Dr. s evaluation revealed average , with his above somewhat stronger than his . The student demonstrated average-to-above average academic skills with deficits noted in his oral comprehension. In addition, revealed significant difficulties with impulsivity and distractibility that required frequent and consistent support and structure from the examiner (Ex. P-A at 1-2).

Two months later (February/March 2010), the student was referred by his parents to , Ph.D., a staff psychologist at New York University, “for an updated evaluation in order to assess [the student’s] progress and to assist in ongoing educational and treatment planning.” As to the student’s behavior during testing, Dr. observed that:

In terms of language expression, [the student] was able to respond to direct questions, though in general, he continued to exhibit persistent difficulties in complex language processing and expression. Expressively, he struggled with fluent expression and word finding, and continued to have trouble with more open-ended and complex “wh” questions. He often needed orally-presented information and instructions repeated, rephrased, and broken down into smaller components in order to aid in his understanding (Ex. P-A at 2).

In order to further clarify and update the student’s language skills, Dr. first administered three (3) selected subtests from the Wechsler Intelligence Scales for Children - Fourth Edition (“WISC-IV”). From the test results, Dr. determined that the student is better able to demonstrate his knowledge when there are less language demands imposed on him (Ex. P-A at 2, 7).

Dr. also administered the Clinical Evaluation of Language Fundamental-Fourth Edition (“CELF-4") to the student. The student’s scores on the CELF-4 indicated that although his language skills had progressed, he continued to have persistent weaknesses in areas of more complex language skills. The student’s overall Core Language Score was assessed at the percentile (standard score ), suggesting (to Dr. ) that the student’s overall general language skills were below his cognitive abilities and potential (Ex. P-A at 3, 7).

The student’s Receptive Language Index on the CELF-4 was assessed at the 53rd percentile (standard score 100). The student demonstrated average processing and comprehension of increasingly, complex oral instructions when paired with visual aides, ability to interpret referential meaning of sentences of increasing complexity, and receptive, verbally- based reasoning skills (Ex. P-A at 3, 7).

The student’s Expressive Language Index score on the CELF-4 was assessed at the 19th percentile (standard score 87), somewhat than his other . The student demonstrated average complex language expression and the formulation of semantically and grammatically correct sentences. His ability to apply word structure rules and use appropriate pronouns was slightly weaker. On these latter two (2) tasks, the student benefitted from the use of paired visual aids that aided in his comprehension, as well as his ability to maintain attention. Although his , they were below his (Ex. P-A at 3, 7).

The student’s Language Context Index was assessed at the (standard score 100), suggesting average semantic development. Specifically, his ability to interpret and follow increasingly complex oral instructions, his verbal reasoning and expressive sightword vocabulary skills all fell within the average range. The student’s performance improved when he had the benefit of visual aids. Dr. characterized the student’s average performance on this index as a “weakness” given that his scores fell below his overall cognitive abilities (Ex. P-A at 3, 7).

The student performed at the (standard score ) on the Language Structure Index of the CELF-4, which assesses receptive and expressive components of interpreting and producing sentence structure. The student to of increasing with his ability to apply word structure rules and use . His abilities to formulate correct sentences and interpret and illustrate referential meaning of sentences of increasing complexity were average (Ex. P-A at 3-4, 7).

The student’s attention and recall of symbol sequences (Working Memory Index) was assessed at the (standard score 120), though Dr. noted “significant variability” amongst the student’s scores. The student’s ability to repeat numbers both forward and backward was assessed at the percentile overall. Consistent with his strengths in learning and knowledge, his ability to manipulate and sequence familiar auditory/verbal information (e.g., number sequences, alphabet) quickly was assessed at the 98th percentile (Ex. P-A at 4, 7).

With respect to the student’s level of attention, Dr. observed the student to have difficulties with distraction and impulsivity, particularly when faced with his language deficits, or when having to sustain attention for long periods of time. On Continuous Performance Test, the student’s profile matched a sample of same-aged peers with confidence, suggesting his attention was a significant area of difficulty (Ex. P-A at 4, 78).

The student’s academic progress was assessed using selected subtests from the Wechsler Individual Achievement Test - 3rd Edition (“WIAT-III”). The student scored in the average range on all of the subtests selected by Dr. . The student displayed a relative strength in mathematics and a relative weakness in graphomotor and language skills (Ex. P-A at 4, 8).

The student’s adaptive skills were measured using parental ratings on the , Second Edition (“BASC-2"). The student’s parents indicated that the student displayed significant difficulties with atypicality (e.g., seems unaware of others) and functional communication. Dr. also opined that the student’s difficulties would hinder his interactions and overall communication skills. Dr. also felt that the student’s difficulties in maintaining necessary levels of attention and focus would disrupt his performance and functioning in many areas (Ex. P-A at 5, 8-9).

Given the student’s demonstration of “significant difficulties with efficient and appropriate expression, language processing, complex language abilities, and attention,” and the student’s reported progress in language and graphomotor skills at , Dr. “strongly recommended that [the student] continue . . . at ” (Ex. P-A at 6).

On or about March 10, 2010, the student was accepted into ’s for the 2010/11 school year (Ex. SD-19). In addition to his instruction at the student received therapy from , Ph.D., one session per week, in a group of three (Ex. SD-12 at 1).

In a January 2011 occupational therapy progress report, Ms. , the student’s occupational therapist at , noted that the student had demonstrated improvement with his graphomotor and cutting skills, but still exhibited poor-to-fair gross motor skills (Ex. SD18).

In a January 2011 counseling update, Ms. , LCSW, noted that the student was an active participant in group counseling sessions held at Churchill. Ms. described the student’s profile as “rigid and limited in his content and has difficulty in socializing and playing with other children. [The student] with other children and has or . He tens to be very rigid with his play and often perseverates on certain topics such as trains.” Ms. recommended that the student continue to develop his social skills through group counseling (Ex. SD-8).

In a January 2011 progress report, Ms. , the student’s pathologist at , noted that in the area of receptive language, the student continued to need moderate support when responding to auditory information. His listening skills improved when he used supportive strategies such as requesting repetition and visualizing what he hears. Though the student reportedly made progress, fluctuating attention and impulsivity impacted his listening comprehension (Ex. SD-7).

The student’s showed “measurable progress.” While easily understood when using simple sentences, in extended discourse, the student with imprecise articulation and an increased . The student also continued to have difficulty with language skills and needed clinical reminders to when others are when they are speaking. Continued services to address those issues was recommended (Ex. SD-7).

As part of a January 25, 2011 conducted by the DOE, the student was administered the Stanford Binet Intelligence Scales - Fifth Edition (“SB5") to measure his cognitive functioning. According to the results of the jSB5, the student was functioning at the average range of intelligence, receiving a Full-Scale IQ score of . His Nonverbal IQ score (a measure of solving abstract, picture oriented problems; recalling fact and figures; solving quantitative problems shown in picture form; assembling designs; and recalling tapping sequences) fell within the average range (67th percentile). His Verbal IQ score (a measure of general ability to reason, solve problems, visualize, and recall important information presented in words and sentences) also fell within the average range (50th percentile).

His Fluid Reasoning score of (ability to solve using inductive or deductive reasoning) fell within the and was the student’s poorest area of performance. His Knowledge score of (measuring his accumulated fund of general information acquired at home, school or work) also fell within the . His Quantitative Reasoning score of (a measure of an individual’s facility with numbers and numerical problem solving) fell within the average range. His Visual Spatial score of (a measure of an individual’s ability to see patters, relationships, spatial orientation, or the gestalt whole among diverse pieces of a visual display) fell within the average range. Lastly, his Working Memory score of (measuring memory processes in which diverse information stored in short term memory is inspected, sorted or transformed) fell within the superior range (Ex. SD-9 at 12).

On the Bender Gestalt Visual Motor Test, the student scored seven errors when drawing geometric shapes and patterns with a pencil and paper. These errors indicated disordered visual-to-motor integration abilities, which warranted remediation (Ex. SD-9 at 2-3).

The student’s academic skills, as measured by the Woodcock Johnson III - Tests of Achievement, fell within the average range. His standard scores (compared to same aged peers) in basic reading skills (ss ), brief reading (ss ) and brief writing (ss ). The student’s standard score in brief mathematics (ss ), however, fell within the very superior range (Ex. SD-9 at 3).

The evaluator’s clinical interview and projective testing indicated that the student was able to interact appropriately with peers and adults and display age appropriate social skills. There was no evidence of significant feelings of (Ex. SD-9 at 4-5).

At a meeting held on May 31, 2011, the CSE developed an IEP for the student for the 2011/12 school year. The CSE recommended for the student’s second grade that he receive the majority of his instruction in a special class. The CSE also recommended that the student receive related services of group therapy, , and specialized transportation (Ex. SD-2 at 1, 14, 16).

In a letter dated June 1, 2011, the parents informed the CSE of their disagreement with the CSE’s recommendation of a special class for the student and of their intent to pursue a private evaluation (Ex. SD-14).

On June 21, 2011, the student was seen by Dr. for a evaluation to determine his then-current levels of language functioning. As part of his evaluation, Dr. administered selected subtests of the CELF-4. The student’s receptive and functioning, as measured on those subtests administered in both 2010 (by Dr. ) and 2011 (by Dr. ), was relatively consistent:

CELF-4 2010 2011

Recalling Sentences ss / percentile ss / percentile

Word Classes - Receptive ss / percentile ss / percentile

Word Structure ss / percentile ss / percentile Formulated Sentences ss / percentile ss percentile

Word Classes - Total ss / percentile ss percentile

Expressive Vocabulary ss / percentile ss percentile

Dr. recommended that the student continue in a small, structured language-based school setting with a low student-to-teacher ratio that will recognize his and difficulty and provide appropriate supports as needed (Ex. SD-7 at 2-5, 7).

In a letter to the CSE dated July 18, 2011, the parent requested “an immediate new IEP meeting” and asked “the CSE to consider approving his funding for the Churchill School, where he is currently a student” (Ex. SD-15).

In a Final Notice of Recommendation (“FNR”) dated August 8, 2011, the DOE identified the in as the student’s placement for the 2011/12 school year (Ex. SD-3).

In a letter to the CSE dated August 22, 2011, the parent acknowledged her receipt of the August 8th FNR, reiterated her disagreement with the CSE’s special class recommendation, requested a class profile, and informed the CSE of her intent to unilaterally place the student at at public expense for the 2011/12 school year (Ex. SD10).

In a letter dated September 6, 2011, the parents provided the CSE with a copy of Dr. ’s evaluation and reiterated their intent to unilaterally place the student at at public expense (Ex. SD-11).

In a letter dated September 14, 2011, the parent informed the CSE that she had visited the proposed special class at and concluded that it was inappropriate and would not meet the student’s educational needs. The parent stated that the student would remain at and that she would seek reimbursement for this unilateral private placement from the DOE (Ex. SD-13).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parents’ claim for tuition reimbursement and/or direct payment to should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2011/12 school year. The CSE which developed the student’s IEP was duly constituted. The CSE relied on sufficient and adequate evaluative information to develop its IEP for the student. The parents were permitted meaningful participation in the CSE meeting. The IEP goals and objectives are reasonably related to the student’s educational needs. The proposed program was reasonably calculated to confer meaningful educational benefit to the student. The parents have not established the requisite financial need to qualify for direct payments to was an inappropriate placement for the student which failed to meet his special education needs. The relevant equities also do not support the parents’ claim. The parents never seriously considered the student’s enrollment in the proposed public program (R. 550-551, 556-579).

B. The Parents

The DOE should be ordered to reimburse the parent and/or directly pay for the student’s tuition to for the 2011/12 school year. The DOE failed to offer the student a free appropriate public education. The IEP developed by the DOE was procedurally and substantively inadequate. appropriately addressed the student’s . The relevant equities also support direct public funding of the student’s tuition to (R. 249-252, 526-550).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, ; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.^[5] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Procedural Compliance

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192.

1. CSE Membership - Regular Education Teacher

The parent alleges that the May 31, 2011 CSE was not properly constituted because it lacked a special education teacher of the child and a regular education teacher of the child (Ex. SD-1 at 2).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).

The hearing record reflects that Ms. , one of the student’s special education teachers at during the 2010/11 school year, participated in the May 3, 2011 CSE meeting by telephone (Exs. SD-2 at 2, SD-4 at 1, SD-17 at 1). When conducting a CSE meeting, the parent and district representative may agree to use alternative means of meeting participation, such as video conferences and conference calls. See 34 C.F.R. § 300.328; 8 NYCRR § 200.4(d)(4)(i)(d). There is no indication in the hearing record that the parent objected to any CSE member's telephonic participation at the time of the meeting (Exs. SD-1, SD-2 at 2, SD-4). I also note that the CSE relied on, in part, a classroom observation of the student while at when it developed the May 2011 IEP (Exs. SD-2, SD-5).

Federal and State law also provides that the regular education teacher of the child “shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate and supports and other strategies and supplemental aids and services, program modification, and support for school personnel.” 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).

I find that a regular education teacher of the student was not required at the May 31, 2011 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher. See 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716

F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010). From my review of the minutes to the May 31st meeting, I find that a general education environment was not considered for the student given his unique special education needs and deficits (Ex. SD-4). The student has been privately educated at for the last three school years (i.e., 2009/10, 2010/11, 2011/12) (Exs. SD-6, SD-19, SD-21). The hearing record demonstrates that the CSE recommended a 12:1 placement in a community school and that the parents’ unilateral placement at Churchill admits only students with special education needs (Exs. SD-2 at 1, P-C, P-D). Neither party in this case argues that the CSE should have offered the student additional opportunities for mainstreaming or that he should have been placed in a general education setting for the 2011/12 school year (Exs. SD-1, SD-2).

Alternatively, while the May 2011 IEP makes reference to the CSE’s consideration of a collaborative team teaching (“CTT”) program for the student, which would require the presence of a regular education teacher of the child, the of any reference to a CTT class from the meeting minutes suggests that the CSE’s “consideration” of a CTT class was limited to noting that a CTT class has been recommended for the student in a prior IEP (Ex. SD-2 at 2, 15).^[6]

2. Adequate Consideration of Student’s Issues

The parent alleges that the May 2011 IEP does not accurately reflect this child’s (Ex. SD-2 at 2).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2011/12 school year (Exs. SD-2, SD-4 at 1, SD-5, SD-7, SD-8, SD-9, SD17, SD-18). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). I further find that the written statements of the student's then-present levels of performance were accurately reflected in the student's May 2011 IEP (Ex. SD-2 at 3-7). See Application of a Student with a Disability, Appeal No. 11-002 at 16 (SRO March 24, 2011). The student's present levels of performance reflected a description of the student's academic abilities and learning characteristics that were consistent with information provided in a classroom observation dated December 6, 2010; progress reports from , and a evaluation, conducted on January 25, 2011 (R. 51-53; Exs. SD-5, SD-7, SD-8, SD-9, SD-17, SD-18). The testimony of Dr. established that the student’s then-current teacher and therapist presented information at the CSE meeting about the student’s then-current academic and functioning, addressing any potential discrepancies between his standardized testing and actual classroom performance (R. 47-49; Exs. SD-2 at 2, SD-7, SD-17).

3. Adequacy of IEP Goals

The parents allege that the annual goals developed by the CSE for the student did not adequately address his particular needs (Ex. SD-2 at 2).

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), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

I find that the CSE’s IEP for the student for the 2011/12 school year established annual educational goals which were reasonably related to his educational deficits. The student’s IEP for the 2011/12 school year included annual goals in reading comprehension, mathematics, written expression, listening, transitions, social skills, , graphomotor skills, coordination, and receptive, and which were consistent with those educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a ten month period (R. 58-61, 69-88; Exs. SD-2 at 8-13, SD-5, SD-7, SD-8, SD-9, SD-17, SD-18). The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-2 at 8-13). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

4. Functional Grouping of Proposed Class/Size of Assigned School The parents allege that the other students enrolled in the proposed class would have not constituted an appropriate functional group given their (Ex. SD-2 at 2).

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. See 8 NYCRR §§ 200.1(ww)(3)(i)(a)-(d), 200.6(h)(2). The levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. See 8 NYCRR §§ 200.6(a)(3)(ii), (iii). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class. See 8 NYCRR § 200.6(a)(3)(iv). State regulations also require that a “district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall . . . provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics . . . in the class, by November 1st of each year.” See 8 NYCRR 200.6(g)(7). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three (3) years. See Application of the New York City Dep’t of Educ., Appeal No. 08-018 at 13-14 (SRO May 19, 2008); Application of the Bd. of Educ. of the Granville Cent. Sch. Dist., Appeal No. 06-010 (SRO April 7, 2006).

In this case, a meaningful analysis of the parents’ claims with regard to the functional grouping of the proposed class would require me to determine what might have happened had the DOE been required to implement the student’s IEP. While parents are not required to first try out the school district’s proposed program before seeking tuition reimbursement, see Forest Grove, 129 S. Ct. at 2496, I note that neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate, see Application of the Dep’t of Educ. of the City of New York, Appeal No. 11-040 at 22 (SRO June 8, 2011). The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct through veto a school district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL336627 (2d Cir. Oct. 16, 2009). The sufficiency of the DOE’s offered program in this case is determined on the basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10 (S.D.N.Y. Mar. 15, 2011). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it. See id.

In light of the legal analysis set forth above, the issue of the functional levels of the students in the proposed class is speculative because the parents did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. SD-2, SD-6). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).

5. Methodology

The parents allege that the proposed program used a methodology called Investigations for math instruction and a methodology called Teachers College Reading Workshop for reading instruction. The parents claim that these instructional methodologies were inappropriate for the student’s needs (Ex. SD-1 at 2).

Although an IEP must provide for specialized instruction in a student's areas of need, the IDEA does not explicitly require a CSE to specify methodology on an IEP and, in many cases, the precise teaching methodology to be used by a student's teacher is generally a matter best left to the teacher. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 07-054 at 9 (SRO July 11, 2007); Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 07052 at 6 (SRO July 11, 2007).

In this case, the appropriateness of the instructional methodologies that the proposed classroom teacher might have used with the student is speculative because the parents did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. SD-2, SD-6). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).

B. Substantive Appropriateness of Proposed Program

As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

I find that the DOE’s recommended program would have provided the student with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. In the February/March 2010 psycho-education update, it was noted that the student required individualized instruction and instruction in small groups in order to learn. The same report also noted that the student had difficulty sustaining attention for longer periods of time and displayed improved performance through the use of visual aids (Ex. P-A at 3-4, 6). The CSE’s May 2011 IEP recognized these academic management needs and stated that:

[The student] requires a full-time special class setting with a small student-to-teacher ratio with clear expectations in order to meet IEP goals.

He benefits from guided practices and review, instruction (especially ).

He requires teacher support to work through changes in routines. He benefits from teacher modeling and extra time to process a response before sharing with the class. He needs verbal reminders and visuals

(especially when sequencing and in social situations). He needs to slow down so he doesn’t make errors. [The student] benefits from brainstorming before beginning a writing task. He benefits from orally practicing his sentences before beginning a writing task (Ex. SD-2 at 3-4).

The CSE also recommended sufficient support services for the student. To address the student’s difficulty with , the CSE recommended that the student receive speech/language therapy, two times per week (Exs. SD-1 at 13, 16). Likewise, to address the student’s visual-motor integration difficulties, the CSE recommended occupational therapy for the student, three times per week (Exs. SD-1 at 12, 16, SD-9 at 3).

Alternatively, while Drs. recommended that the student continue at , I find that the data yielded in the DOE’s January 2011 psychological evaluation (indicating that the student was functioning in the range in most areas), provides credible and persuasive evidence that the student would have made appropriate progress in the proposed fulltime special class (Ex. SD-12 at 7, P-A at 6-9). I also note that although a CSE must consider parents' suggestions or input offered from privately retained experts, the CSE is not required to adopt such recommendations for different programming. See e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004); E.S. v. KatonahLewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 (S.D.N.Y. 2010).

Having determined that the DOE offered the student a FAPE for the 2011/12 school year, it is not necessary to reach the issues of whether the student’s private placement at was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.

C. Reimbursement, or Compensatory Education, for Related Service

As no evidence was provided by the parents of having secured private related services for the student during the 2011/12 school year (other than those included in the cost of Churchill’s tuition), or that the student was denied related services by the DOE prior to the 2011/12 school year, the parents’ claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. SD-1 at 3).

D. Transportation

The parents’ request for reimbursement for transportation costs to and from during the 2011/12 school year is also denied (Ex. SD-1 at 3). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. § 300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).

The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law § 4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).

Here, as there were no bills or other evidence of the actual transportation costs incurred by the parents, I must dismiss that aspect of the parents’ claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01012 (SRO Dec. 19, 2001).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2011/12 school year is DENIED;

(2) the parent’s claim for reimbursement of transportation for the student to and from the for the 2011/12 is DENIED; and

(3) the parent’s claim for reimbursement of the cost of related services from September 2011 through June 30, 2012 is DENIED; Dated: July 31, 2012

________________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JJS:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 3, 2012

DEPARTMENT OF EDUCATION

1 Due Process Complaint Notice/Impartial Hearing Request, 11/9/11, 3 pp. 2 Individualized Education Program (IEP), 5/31/11, 16 pp. 3 Final Notice of Recommendation (FNR), 8/8/11, 1 p. 4 Meeting Minutes, 5/31/11, 6 pp. 5 Classroom Observation, 12/6/10, 2 pp. 6 Enrollment Contract, 3/2/11, 4 pp. 7 , Elementary Report, 1/11, 1 p. 8 , Counseling Update, 1/11, 1 p. 9 Evaluation, 1/25/11, 5 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 30, 2012

PARENT

A Update, 2/24/10, 3/2/10, 9 pp. B , Elementary School Mid-Year Report Card, 1/12, 15 pp. C Mission Statement, undated, 1 p. D , Elementary School Curriculum, undated, 4 pp. E , Student Attendance, 2011/12, 1 p. F , Classroom Schedule, 2011/12, 1 p. G Loan Agreement, 12/19/11, 1 p. H Checks to , 2011/12, 4 pp. I Loan Agreement, 2/17/11, 1 p. J Loan Agreement, 4/9/10, 1 p.

DEPARTMENT OF EDUCATION

10 Letter to from parent, 8/22/11, 1 p. 11 Letter to from parent, 9/6/11, 1 p. 12 Evaluation, 6/21/11, 7 pp. 13 Letter to from parent, 9/14/11, 2 pp. 14 Letter ot from parent, 6/1/11, 1 p. 15 Letter to from parent, 7/18/11 1 p. 16 NYC DOE Motion for Summary Judgment, 4/3/12, 7 pp. 17 Teacher Report, undated, 3 pp. 18 Therapy Progress Report, 1/11, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 15, 2012

PARENT

K , Classroom Schedule (Revised), 2011/12, 1 p. L Parents’ Memorandum of Law in Opposition to DOE’s Motion for Summary

Judgment, 5/14/12, 4 pp.

DEPARTMENT OF EDUCATION

19 , Enrollment Contract 2010/11, 2/24/10, 2 pp. 20 , Affidavit of CFO, 1/21/11, 1 p. 21 , Enrollment Contract 2009/10, 2/9/09, 2 pp.

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

IMPARTIAL HEARING OFFICER

I Confirmation of Extension, 6/28/12, 1 p. II Confirmation of Extension, 7/18/12, 1 p.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to allow for adequate time for my review of the hearing record developed before IHO Farago. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing for adequate time for my review of the record developed before IHO on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (Exs. IHO-I, IHO-II).

[3] IHO Farago’s ruling on the DOE’s motion represents the law of the case in this matter and will not be revisited here. See Application of the New York City Dep’t of Educ., Appeal No. 10-058 at 4 (SRO September 10, 2010). The doctrine of law of the case is intended to avoid retrial of issues that have already been determined within the same proceeding. See People v. Evans, 94 N.Y.2d 499, 502-504 (2000). Once an issue is decided within a proceeding, a party is generally precluded from reopening a matter which has been decided and must adhere to the decision for the duration of the proceeding. See id.

[4] means a communication disorder, such as , , a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).

[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[6] While the chairperson of the May 31, 2011 meeting, Ms. , was reportedly certified as a regular education teacher, the record is unclear as to whether her certification would have permitted her instruction of this elementary school-aged student (R. 46; Ex. SD-2 at 2).