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: December 29, 2011

February 2, 2012

February 7, 2012

Record Close Date: February 14, 2012

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 29, 2011

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2012

Attorney — Student

Parents

Parents

CSE District Representative — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012

Attorney — Student

Parents

Parents

Director via telephone) — Student

Teacher (via telephone) — Student

CSE District Representative — DOE

Assistant Principal at (via telephone) — DOE

Parent Coordinator — DOE

On November 21, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of ”) The parents requested the hearing on November 21: (1) to challenge the alleged failure of the Committee on Special Education (the “CSE”) for District to provide with a free appropriate public education (“FAPE”) for the 2011-2012 school year and (2) to seek reimbursement for their unilateral placement of (“ ), a nonapproved non-public school in Brooklyn, for the 2011-2012 school year.

A pre-hearing conference was conducted on December 29. The hearing on the merits was scheduled for January 24 and February 2. The parent requested an adjournment of the first date due to unanticipated business travel that was a condition of her employment (trans. 69-70). The hearing commenced on February 2 and was completed on February 7. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

On the record on February 2, the parent and the Department of Education (“the Department”) requested an extension of the compliance date due to the delay caused by the parent’s business travel, the illness of one of the Department’s witnesses, and the inability of the other Department witness, a school administrator, to leave her school due to a quality review being conducted at her school (trans. 68-69). This extension was granted, and the compliance date was extended to March 7 (see IHO Ex. I [notice to parties re: factors considered and reasons for extension]). The record closed on February 14 upon the receipt by the hearing officer of the transcript of the final day of hearing.

Background

. He was referred by his parents to the CSE on May 1, 2011 for an initial evaluation to determine his eligibility for special education services (District Ex. 3). The CSE found him eligible on June 29, 2011, and recommended that his disability be classified as . This classification is not in dispute. for grade. He experienced , and the parents enrolled him at . has attended from September 2009 to the present time. The School District’s Case

When the parents requested the CSE to consider ’s eligibility for special education, they provided the CSE with a evaluation, letters from his therapist and , and his mid-year evaluations (District Ex. 3).

CSE personnel conducted an evaluation of in June (Department Exs. 4, 5, 6; trans. 37-38). The social history notes that as an infant (District Ex. 4 at p. 1). was taking ”) prescribed by a . The parents submitted a completed medical evaluation form (Department Ex. 4 at p. 3). A 30 minute classroom observation conducted at revealed that participated in class, listened to the teacher’s directions, and worked independently on a project (Department Ex. 5).

, a certified school psychologist and school counselor, testified that she was employed by the Department as a (trans. 30). Ms. conducted a evaluation of (Department Ex. 6; trans. 31). During testing, required some breaks in order to complete the testing tasks. On the Wechsler Abbreviated Scale of Intelligence, attained the following standard scores: verbal IQ, 130 (very superior range); performance IQ, (average range), and full scale IQ, (high average range) (Department Ex. 6 at p. 3). On the processing speed index of the Wechsler Intelligence Scale for Children (4th ed.), attained a standard score of 100 (in the average range). On the Wechsler Individual Achievement Test III, scored as follows: word reading, percentile, g.e.; pseudoword decoding, percentile, g.e.; reading comprehension percentile, g.e.; numerical operations, th percentile, .e.; math problem solving, g.e.; spelling percentile, g.e.; sentence composition, d percentile, g.e.; and essay composition, percentile, g.e. (Department Ex. 6 at p. 5). He also demonstrated . Ms. was functioning at grade level “in most areas,” with level functioning in reading and level functioning in math calculation (trans. 34).

With respect to functioning, Ms. observed that “has a significant early history of conduct difficulties in school as well as problems with attention. School reports indicate a history of insubordination as well as verbal altercations with school staff and students” (Department Ex. 6 at p. 6). During the past year at , he had made “some meaningful gains” in this area during the school year (Department Ex. 6 at pp. 6-7). In addition, had made improvements in the area of (Department Ex. 6 at p. 7). However, he continued to have difficulties with control his skills (trans. 35-36). Ms. concluded that that can at times negatively impact his learning. He is learning to better modulate his emotional reactions and to articulate his feelings” (Department Ex. 6 at p. 8).

The CSE convened on June 29 and recommended that attend an integrated coteaching (“ICT”) class and receive the related service of (one 40 minute period per week in a group of three students) (Department Ex. 7; trans. 40). Personnel from did not attend the CSE meeting. CSE personnel contacted about participating in ’s CSE meeting, but informed the CSE that its personnel would not participate in CSE meetings held after mid-June, when was closed for the summer (trans. 41-42). The Individualized Education Program (“IEP”) notes and lists the following academic management needs: phonemic cueing and visualization; opportunities for creativity and “divergent thinking;” encourage to “justify his thinking” and “evaluate ideas and information;” teach problem-solving approaches such as pattern recognition, strategy selection and selfmonitoring; checklists for solving math problems; and breaking directions into simple steps with repetition as needed (District Ex. 7 at pp. 3-5). With respect to socialemotional functioning at school, “ and to his teachers,” “is frequently observed ,” and “ in his response when he wished to be called on and often resorts to blurting out the answers” (Department Ex. 7 at p. 6). His management needs in this area call for encouragement, refocusing and redirection, strategies to avoid emotional outbursts, permission to take “time outs,” graphic organizers, a daily planner and outlines (Department Ex. 7 at p. 7). The IEP includes goals in the areas of reading, math computation, math concepts and word problems, social/emotional, receptive and expressive language, organization and keyboarding.

Ms. testified that the CSE recommended the ICT class for because “we just felt that he would benefit . . . at this time from having an extra adult in the classroom” due to his attentional difficulties (trans. 48-49). She described the ICT class as a class of 24 to 26 student, 40 percent of whom have special education needs, taught by both a general education teacher and a special education teacher (trans. 48-49). The CSE did not recommend a self-contained special education class for because “his IQ level is pretty high” and he was performing at or above grade level academically (trans. 50). Students in self-contained classes, according to Ms. , were “usually functioning at least . . . two or three grade levels behind” academically and functioning cognitively “nowhere near” ’s “level” (trans. 50). Ms. explained that the CSE recommended counseling for because he had “some difficulties with” development (trans. 45).

’s year-end reports, which were considered by the CSE, state that he made improvements in language skills, handwriting and typing (Department Ex. 8; trans. 46). He made improvements in his behavior through “consistent, structured feedback from his teachers,” communication between his parents and school personnel, and medication (Department Ex. 9 at p. 3). also improved the quality of his written work. He benefitted from verbal and visual reminders to “slow down and produce work more reflective of his verbal strengths and capacity for critical thinking,” and “scheduled teacher check-ins were needed to help ensure” the quality of his work. His teacher noted that he had and needed small group instruction (no more than 6 students) when taught new material, the ability to move out of his seat during instruction, scaffolded questions from the teacher, and encouragement to participate (Department Ex. 9 at pp. 3-4). improved in reading decoding and comprehension and math computation (Department Ex. 9 at pp. 8, 13-14). He continued to struggle to remain on task and benefited from “consistent” one-to-one support, teacher prompting, and checking in with the teacher (Department Ex. 9 at pp. 14, 18).

By a final notice of recommendation dated August 15, the CSE informed the parents that was placed in an ICT class at the ”) (Department Ex. 10).

Anthony Chianese, the assistant principal of , testified that the school enrolls 120 students (trans. 84). The school has after-school sports and clubs as well as a morning math program and after school academic support (trans. 85). There is a weekly schoolwide assembly on (trans. 86). A range of services are available at the school (trans. 86-87).

There are three other schools sharing the building which houses (trans. 87). The schools do not share space at the same time nor do they share instruction. When students have gym, there are 50 students in the gym with one teacher (trans. 91).

During the 2011-2012 school year, there is a sixth grade ICT class at the school, and there was a seat available for in that class (trans. 95). Mr. described the ICT class: it has two certified teachers collaboration to teach both general education students and special education students (trans. 95-96, 99). The students travel from classroom to classroom for different subject matter classes. Mr. assesses some of the students in the class and teaches a “book club” in which he works with ICT students on fluency and reading comprehension (trans. 98). There are 21 students in the class, six of whom are special education students with disabilities classified as (trans. 99-100). Two of the students are reading above grade level; four of the students entered the class at the beginning of the school year reading two years below grade level and have made progress. In math, all the students are “near grade level” with one student “slightly above” (trans. 101-103). None of the students works with a crisis management paraprofessional (trans. 103). Two students work with the counselor and have intervention plans (trans. 104). Their behavior is not disruptive to their classmates (trans. 105). The students in the class receive counseling, speech, occupational and physical therapies (trans. 105). None of the students in the class use sensory tools (trans. 126127).

The ICT teachers do small group work and individual instruction in the classroom (trans. 105-106). The curriculum is based on the New York State standards. Some of the focuses this year include writing for comprehension, understanding informational texts, numerical operations, fractions and decimals, and algebraic expressions (trans. 106-107). The teachers use multisensory techniques, differentiation and technology in instruction (trans. 110).

Mr. had reviewed ’s IEP and explained how the academic management needs described in the IEP would have been implemented at (trans. 115-117). He opined that ’s special educational needs would have been met and his IEP implemented (trans. 118).

, the parent coordinator at testified that the parent contacted her in September 2011 about visiting the school. She arranged a “special tour” for them on October 7 because they did not want to wait for the first scheduled tour, which was on October 18 (trans. 145-146). Ms. took the parents on a tour on October 7 (trans. 147). The Parents’ Case The parent testified that was a (trans. 196). He has problems and is prescribed (trans. 197). “had a in school,” and the parents were “in the ” (trans. 198). He attended and then went to a charter school near his home, the . He was able to manage kindergarten there, and when he the teacher intervened. His “ showing up” in (trans. 199). The parents enrolled at (trans. 201). They have observed that has made progress at and will now engage with adults and peers rather than isolating himself (trans. 204).

The parents obtained a of in April 2010, with updated testing in January 2011 (Parents’ Ex. F). The report notes that was to treat and engaged in weekly individual (Parents’ Ex. F at p. 1). During the evaluations, “presented as a child who has yet to develop all the requisite skills consistent with age-appropriate interaction” (Parents’ Ex. F at p. 2). During the 2010 testing, ’s demonstrated significant inattention and “in spite of encouragement to persevere and scaffolding during times of difficulty” with testing tasks, ’s “ and diminished motivation predominated” (Parents’ Ex. F at p. 3). When was retested in 2011, “he required less scaffolding and encouragement to complete” testing tasks (id.). On the Behavior Rating Inventory of Executive Function (“BRIEF”), results from 2010 show , information, setting goals and determining the steps to achieve those goals (Parents’ Ex. F at p. 4). In 2011, results showed declines in the ratings these areas and “an overall improvement in executive functioning” (id.). The evaluator noted that, while experienced some improvement in attention, this remained an area of weakness. Furthermore, was tested in a highly structured one-to-one setting; under other conditions, such as a “busy classroom setting, he may still have more significant difficulty sustain his focus” (id.).

On academic testing, had difficulties with math computation, spelling and written expression, with greatly hinder[ing] his efforts on an essay writing task” (Parents’ Ex. F at pp. 5-6, 10).

With respect to functioning, the evaluator stated that experienced about school performance, inability to and (Parents’ Ex. F at pp. 6-7). The evaluator recommended that “continue[d] to require a special educational environment that can offer the small student to teacher ratio, structure and support that will be critical to his ability to meet his very high level of potential” (Parents’ Ex. 8).

’s prepared a letter in May 2011 (Parents’ Ex. G). had a diagnosis of and was “receiving intensive treatment and management” (Parents’ Ex. G at p. 1). The doctor explained that medication resulted in a positive degree of improvement in his symptoms of . is definitely a stronger student on has helped, it cannot fully remediate or cure his issues. . . . His inefficient attention to detail and underdeveloped executive functioning skills continue to compromise this functioning .

. . . he has difficulty with concentration, distractibility and problems being able to stay on task (Parents’ Ex. G at p. 2).

The doctor recommended that continue to attend because he needed to attend a small, structured special education school with a small student/teacher ratio where he could receive remediation, small group instruction, and assistance with refocusing his attention and “coping” with his learning difficulties (Parents’ Ex. G at p. 2).

The parents requested a CSE evaluation of at the end of the 2010-2011 school year (trans. 200). They gave their permission for CSE personnel to evaluate and attended the CSE meeting (trans. 206). The parents provided the psychoeducational evaluation to the CSE (trans. 207; Parent’s Ex. F). At the meeting, Ms. did not agree with the recommendation that attend a special education school (trans. 207). The goals on the IEP were not discussed at the meeting, nor were the management needs (trans. 208). At the meeting, the parent expressed her disagreement with the ICT recommendation for (trans. 210).

The parent visited the proposed placement at (trans. 210-211). She toured the school with Ms. who was not sure in which class would be placed. The parent was concerned, based upon her observations of the classes she observed, that would not receive the structure and teacher attention he would need (trans. 212). ^[1]

testified that he had a master’s degree in special education from . He was not a certified special education teacher (trans. 156). He is the co-director of the (trans. 156157). is a school for children with learning disabilities with “very small class sizes and lots of experienced teachers that work to create an individualized program for student success” (trans. 157). The middle school includes 111 students in grades six, seven and eight, all with diagnoses of learning disabilities. Each class includes twelve or thirteen students with two teachers and small reading and math groups of three to six students (trans. 158-159). therapy (both pull out and push in) and (trans. 160). Students have access to a psychologist (trans. 165). The teachers engage in ongoing daily informal assessment of the students, and there is more formal testing at the beginning of each year (trans. 162). The school does not provide mainstreaming experiences (trans. 165).

is a sixth grade student at sees him every day and supervises his teachers (trans. 163). The parents have paid ’s tuition for the 2011-2012 in full (trans. 163). Mr. was an appropriate placement for because he requires “a lot of individualized planning” and has “significant executive functioning struggles that require on top of our basic level of homework support and structured lessons,” additional individualized support and lessons (trans. 164).

testified that she had a master’s degree in education and taught sixth grade at (trans. 169). is one of her students. She explained that has “issues with working memory , organization, related struggles” and needed “one on one support with adults and his peers.” : he has a “strong , other times it’s very passive; He is “very ” and can be “ to the learning environment or just text comments. He can . His and is about level (trans. 170-172). Ms. her noted that ’s work “has to very carefully scaffolded” due to his (trans. 172).

has made improvements in his behavior this year. However, as a result of his behavior, he can be asked to leave the classroom and then misses instructional time. His behaviors also “stop him from learning any new skills”—he refuses to do work and acts like he cannot do it, when, in fact, he can (trans. 172-173). In addition, “tunes out” and “will choose to disengage from the work” (trans. 174). Modifications to address these problems include scaffolding (both behavioral and academic), checklists, having his homework planner signed by all of his teachers and his parents every day, and all his work must be checked by an adult “who actually knows him well” to ensure that the “concrete expectations” laid out for him are met. Everything he needs to do must be concretely and specifically described (trans. 174, 185). In addition, his math work is modified to present problems and concepts to him “in small, discrete, spiraling steps.” Without this modification, he would attack the problem “as a whole” and not complete the required steps (trans. 174-175). All these techniques have been successful with but “only if [his teachers] keep up with them,” consistently and intensely (trans. 175). must check in with Ms. in the morning, in the middle of the day and at the end of the day to ensure that he is on track; his teachers confer daily at the end of each day to ensure that has done what he was supposed to do (trans. 175). This “management” program is individualized for (trans. 176).

Teachers also provide individualization for for projects and any large assignment. He needs so he can execute them (trans. 176). Furthermore, his reading and math instruction is differentiated; by, for example, providing monitoring to ensure that he is writing paragraphs with multiple and complex sentences, scaffolding work to ensure that he is looking up vocabulary words, monitoring to ensure that he is not work. He is also permitted to type his written work (trans. 177-178).

’s class includes thirteen students with two teachers (trans. 180). This ratio permits the degree of support needs. Ms. opined that in a class of 20 students “it would be incredibly hard . . . to give the kind of attention that he needs” even with two teachers in the room (trans. 180-181). needs one “trusted adult” to modify his work, to monitor him, and to supervise him consistently and “multiple time a day” during the school day in order for him to (trans. 181-183). Anything less, and his (trans. 182).

’s schedule at includes literacy and math daily, homeroom, science, history, speech, art, Spanish (one time per week), current events and physical education (Parents’ Ex. C).

receives therapy in a group of four students for one 40 minute period per week, and the speech therapist pushes in to the classroom for two periods per week. The focus of ’s therapy group is language pragmatics (trans. 184).

Ms. described ’s academic progress thus far this year. He participates more and produces more work, particularly written work (trans. 185). His spelling, grammar and willingness to proofread his work has improved. He has competed projects, participates in class discussions, reads aloud, and answers questions (trans. 186-187). His behavior is still “inconsistent,” but he does not “openly refuse” to comply with adult direction and is “more willing” to accept assistance and redirection (trans. 187). He has improved his ability to communicate with teachers and peers and has improved his interactions with his peers (trans. 187-188). However, he still can be with peers and has (trans. 188-189). Such incidents are addressed through conferencing with Ms. (trans. 189).

Ms. opined that was meeting ’s needs and academic needs through the “highly structured ” that staff has created for him, the “individualized assignments and consistency” at the school, and the adult monitoring and supervision he receives (trans. 190-191).

By letter dated August 24, the parents informed the CSE of their disagreements with the IEP and stated that they would place at if the CSE did not address their concerns (Parents’ Ex. A).

The parents signed the 2011-2012 enrollment contract in February 2011 (Parents’ Ex. D). Tuition for the 2011-2012 school year is $45,960.00. The contract states that if the parents notify prior to September 1 that they intend to accept a placement from the Department, all amounts are refundable except for the $8,000.00 deposit. As of the time of the hearing, the parents had paid the full amount of the tuition (Parents’ Ex. E).

Findings of Fact and Decision

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District’s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-

121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school District fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school District thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 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 School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189.

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for does not provide sufficient special education services to address his identified special educational needs. Specifically, the IEP sets forth a program that is inadequate to address ’s identified special educational needs in the areas of and .

The ICT program with is inadequate to address ’s unique and identified special educational needs. According to Ms. , the CSE recommended ICT for because he needs the support of an additional adult in the classroom to address his . However, ’s educational needs go far beyond his and are more extreme than can be managed by an adult in a general education setting such as the ICT class. manifests that impact his learning. has mastered and strategies. He manifests that and the . The evidence (the testimony of Ms reports as well as the evaluations obtained by the parents and made available by them to the CSE) demonstrated that needed intensive consistent and intense supervision, monitoring and structure throughout the school day to address his and to prevent him instruction for his classmates. All the witnesses who know clearly testified that requires this type of monitoring and supervision throughout the school day in order to learn and in order to minimize the of these^[2] behaviors on the class instruction. The impact of ’s on his classmates in a general education environment should not be minimized in considering the appropriateness of the ICT program for . See P. v. Newington Board of Education, 546 F.3d 111, 120 (2nd Cir. 2008) (in making LRE determinations, school districts must consider, inter alia, “the possible negative effects on the inclusion of the child on the education of the other students”) (citations omitted). Ms. clearly testified that, based upon her experience with , without intense supervision and monitoring, his increase. Furthermore, needs to have assignments and projects broken down and “scaffolded” for him—and then be supervised and monitored to ensure that he completes with the requirements of the assignments and projects. He requires a level of individualization and one-to-one support that could not be supplied in a general education setting—even one, such as an ICT class—with two teachers.

While Mr. opined that ’s special educational needs could have been met at , he did not explain how ’s work and would have been addressed in the ICT program nor how the school would have been able to provide the level of individualization, supervision and monitoring needed for him to learn and necessary for his presence not to of the entire class.

In sum, the IEP is inappropriate because it does not include sufficient one-to-one support to result in making meaningful educational progress. See Application of a Child with a Disability, Appeal No. 10-039 (District failed to offer FAPE because the recommended program did not “provide the level of individual support required to address the student’s needs”). The evidence presented at the hearing establishes that the District did not offer a free appropriate public education for the 2011-2012 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of

The parent bears the burden of proof concerning the appropriateness of for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459

F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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 . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).

requires and monitoring in order to learn and to (most specifically his work ) and attentional difficulties. provides with this level of support. personnel address ’s needs for one-to-one support in the areas of behavior and instruction. Ms. described in detail the school’s program and explained how she and the other teachers were able to provide with a supervised, individualized and monitored program of instruction and . The small and structured environment in which the supervision and monitoring could take place is conducive to his learning.

has made progress at His are kept in check by his teachers. He has improved , specifically in the area of writing. He is also and completed under the watchful eyes of his teachers. This level of support might be grader—but this is what needs in order to learn.

It is important to remember that the “special” in special education means precisely that—special. In other words, “specialized instruction . . . to meet the unique needs of a child with a disability.” 20 U.S.C. §1401(25). The evidence demonstrates that the program at met this definition. made progress consistent with his behavioral challenges while enrolled at as the result of the type of structured and consistent monitoring and supervision provided at the school staff.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at was appropriate for .

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parents’ claims, the evidence establishes that the parents cooperated with the CSE by providing the CSE with evaluations, cooperating in the evaluation process, attending the CSE meeting, communicating with School District personnel, and visiting the proposed placement at .

Therefore, for all the above reasons, it is ordered that:

The Department of Education shall reimburse the parents for the tuition they have paid to the for ’s enrollment for the period from September 1, 2011 through and including June 30, 2012. The amount of reimbursement shall not exceed $45,960.00 and shall be paid by the Department within fifteen business days of receipt from the parents of proof of payment. Dated: February 27, 2012

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer JMB:dl

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 FEBRUARY 2, 2012

PARENT

A Notice of Placement, dated 8/24/11, 3 pages B Attendance Report, September 2011-January 2012, 1/31/12, 1 p. C Class Schedule 2011-2012, Undated, 1 page D 2011-2012 Enrollment Contract, dated 2/28/11, 2 pages E Tuition Affidavit, dated 1/23/12, 1 page

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, dated 11/21/11, 3 pages 2 Due Process Response, dated 11/29/11, 4 pages 3 Parent Letter to CSE, dated 5/1/11, 1 page 4 Initial Social History, dated 6/13/11, 4 pages 5 Classroom Observation, dated 6/1/11, 1 page 6 Assessment, dated 6/13/11, 8 pages 7 IEP, dated 6/29/11, 14 pages 8 End of Year Report, Undated, 3 pages 9 End of Year Report, September 2010 to June 2011, 29 pages 10 Final Notice of Recommendation, dated 8/15/11, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 7, 2012

PARENT

F Summary, dated 1/25/11, 16 pages G Letter from the , dated 5/3/11, 3 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I E-mail to Ms. and Ms. re: Extension, dated 2/4/12, 1 page

Footnotes

[1] The parent’s comments with respect to the “diversity” at the proposed placement and the diversity at verged on the incoherent. I am unsure what I can infer from these comments, therefore, I will refrain from making any inferences.

[2] The parents did not allege that the CSE should have conducted a functional behavioral assessment or prepared an behavior intervention plan for .