Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: January 18, 2012

February 3, 2012

March 23, 2012

May 11, 2012 Actual Record Close Date: June 4, 2012 Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 18, 2012

Attorney — Student

For the Board of Education: — Student

CSE Chairperson’s Designee-Region — Student

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 3, 2012

Attorney — Student

Father — Student

For the Board of Education: — Student

CSE Chairperson’s Designee-Region — Student

CSE Region Psychologist, (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 23, 2012

Attorney — Student

Father — Student

For the Board of Education: — Student

CSE Chairperson’s Designee-Region — Student

CSE Region Psychologist (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 11, 2012

Attorney — Student

Father — Student

Head Teacher- (via telephone) — Student

For the Board of Education: — Student

CSE Chairperson’s Designee-Region — Student

Clerical Assistant (via telephone) — Student

Assistant Principal- — Student

(via telephone) — Student

On November 21, 2011, I was appointed impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York. The hearing was convened at the request of the parent that was received on November 22, 2012. On December 23, 2011, I scheduled a pre-hearing conference of January 9, 2012 and scheduled this case to commence on January 18, 2012. On January 18, 2012, the district’s attorney requested an adjournment on the record because of the unavailability of witnesses. With the consent of both parties, I granted the adjournment and scheduled this case to commence on February 3, 2012. Hearings were held on February 3, 2012, March 23, 2012 and May 11, 2012. The parties moved to extend the compliance dates during the course of the hearings. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is June 4, 2012 and the decision due date is June 18, 2012.

The hearing was requested by the parent through her attorney to challenge the May 12, 2010 review and the recommendation of the Committee on Special Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the ) for the 2010-2011 school year. The is private school lacking New York State Educational Department approval. The is a special education school for students with (Tr. at 67). It has small class sizes with a high teacher to student ratio of 12 students and 2 teachers (Tr. at 172). The parent brought the hearing seeking tuition reimbursement for the 2010-2011 for school year in the amount of $$43,155(Exh. A; Tr. at215).

BACKGROUND

. He attended the since grade and is classified as (OHI) on a CSE review conducted on May 12, 2010 (Exh. 3). classification is not in dispute. He has a diagnosis of ( and has a history (Exh. 6 at 1). The parent recalled that attended the from grades for the 2007-2008 through the 2010-2011 school years (Tr. at 227).

PH.D., conducted an evaluation of in December 2004 and January 2005 when was at the (Exh. 13). Dr. assessed ’s on the Wechsler Intelligence Scale for Children- 4th Education and noted that ’s full scale IQ was , in the high average range. He found a “significant disparity between superior performance on verballymediated tasks … and average performance on tasks predicated on demands and nonverbal reasoning abilities … consistent with a ) of moderate severity” (Exh. 13 at 12). He found presented with and motor movements in the NEPSY-II in the 11th to 25th percentile and coordination in the 05th percentile (Exh. 13 at 22). He assessed ’s speech and language and on the Clinical Evaluation of Language Fundamentals-4th Edition (CELF-4) and found that scored in the superior range in concepts and following directions and recalling sentences (Exh. 13 at 20). He found scored in the superior range to high average in and memory on the CELF-4 (Exh. 13 at 21). In terms of his academic ability was administered the Wechsler Individual Achievement Test, 2nd Edition and scored in the , writing and calculations, but he demonstrated (Exh.13 at 12; 20). He assessed ’s ,

On July 12, 2006, a physical examination indicated a diagnosis of and (Exh. 14).

On July 26, 2006, Dr. conducted an update and recalled he diagnosed with NVLD and his test findings revealed significant which impeded written expression and slow speed of processing (Exh. 12 at 1) He noted that ’s tests indicated and . He further noted was treated by a and was treated and . He indicated that receive individual tutoring twice a week to improve reading, writing and calculations and received extra help from a learning specialist and that his were addressed by providing him with an (Id.). He recommended that be placed in a small, self-contained special education class with peers consistent with his superior intellectual abilities (Exh. 12 at 2). He recommended a for the reinforcement and teaching strategies (Id.).

Classroom observation was conducted on on February 22, 2010 (Exh. 7) and the social worker who conducted the observation indicated that she observed during his social studies class. She noted that there were 11 students including and 2 teachers in the classroom. She observed that several children raised their hands to answer questions and was sitting at his (Exh. 7). She further observed that did participate and raised his hand to answer questions, but during a game titled “Jamestown Survivor Game” talked to a student (Id.).

was evaluated by , on April 7, 2010. Ms. noted that at the time of the evaluation, was in and had a history of and (Exh. 6). She noted he had difficulty with pronouncing the “th” sound (Id.). Ms. indicated in her Educational Update Evaluation that was in the Superior range of functioning (Id.). She used the Woodcock Johnson III (WJ- III) and found with a grade equivalence of in Passage Comprehension; with a grade equivalence of in Broad Math and grade equivalence of (Exh. 6 at 2). Ms. concluded that was classified with a learning disability and mandated to receive individual and group counseling. She administered the Connors-3 to assess his to both and his father and found had elevated scores in the areas of (Exh. 6 at 4)

On May 12, 2010, CSE met and considered and developed an Individualized Education Program (IEP) and classified with as OHI and recommended an Integrated Co-teaching (ICT) education placement with a staffing ration of education students and 1 special education teacher in a general education class with 1 regular education teacher and 15 regular education children in a community school and related services of individual counseling once a week for 30 minutes and counseling once a week for 30 minutes in a group no larger than 3 (Exh. 3 at 13).

THE POSITION OF THE PARTIES

The district’s representative maintained that District 15’s CSE met on May 12, 2010 with a duly constituted team and developed and an appropriate IEP for and classified as OHI and recommended a general education placement in an ICT class with counseling in a community school. She noted that ’s parent and ’s the current teacher at the participated, as did the district representative, the social worker, special education teacher and parent member. She noted that the Final Notice of Recommendation (FNR) dated May 25, 2010, indicated that the parent was offered the (Exh. 5:Tr. 17).

The parent challenged the May 12, 2010 IEP and disagreed with the recommended placement and program and maintained that failed to provide a free and appropriate public education (FAPE) and indicated that IEP team changed ’s classification without sufficient explanation and the program recommendation of ICT was too large and distracting. The parent challenged the goals developed for a child named Jack (Exh. 3 at 9). Notwithstanding the different name the parent asserted the goals were inaccurate and did not address ’s needs (Exh. 1). The parent asserted the FNR was not received until the start of the school year (Id.). The parent argued that because the CSE failed to provide an appropriate placement and program he placed at the for the 2010-2011 school year and requested tuition reimbursement for the 2010-2011 school year (Tr. at 22).

THE DISTRICTS CASE

The District’s case was presented in the testimony of the Clerical Assistant and the Assistant Principal for .

Ms. a NYS certified School Psychologist employed by the DOE for 7 years, testified that she assessed on April 7, 2010 and administered the W-J III and the Behavior Assessment System (BAS). She explained the W-J III was a standardized test of academic skills to measure reading, writing and math skills and the BAS measured the social and emotional functioning of the child (Tr. at 29-31;41). She further explained that she did not conduct a cognitive assessment of because there was a neuropsychological conducted in 2005 (Exh. 13) and a psychological evaluation conducted in 2006 (Exh.12) indicated that had high average IQ (Tr. at 39). She noted that scored in the average range in broad reading, letter word identification, reading fluency, reading comprehension, vocabulary and in the average range in math, calculation and math fluency (Tr. at 45). She recalled that was diagnosed with in 2010 and his social, (Tr. at 47). She further recalled that the scores on the W-J III were consistent with his cognitive functioning scores (Tr. at 70).

Ms. stated that she attended the CSE review as psychologist and there was the social worker who conducted the observation who served as both the district representative and social worker. She further stated that the social worker also conducted the observation (Exh. 7). She recalled that the parent and ’s then current teacher at participated. She did not recall if ’s then current teacher at who participated by telephone had access to the same materials as the CSE team or if the social worker or the then current teacher were certified by NYS (Tr. at 49;52). She explained that the team reviewed ’s academic functioning levels and functioning provided by his then current teacher and goals were developed (Tr. at 52). She explained a different name appeared on page 9 of the IEP goal because of a clerical error (Tr. at 54). She stated that she created the academic goals and that the parent had an opportunity to participate. She noted that the team considered the report dated September 2009 (Exh. 8), Classroom Observation (Exh. 7), her education evaluation (Exh. 6), the prior testing (Exhs. 12;13) and noted that the team recommended a ICT as the most appropriate placement (Tr. at 59). She noted that she changed the classification from because she considered ’s rather than (Tr. at 57). She maintained that the special education teacher in the ICT classroom could modify the curriculum so could access it and that a general education placement was the least restrictive environment (Tr. at 61). She further maintained that there was no need to conduct a plan after reviewing the evaluative material and observations and questioning ’s then current teacher (Tr. at 62). She maintained that the related service of counseling addressed the noted in the IEP (Exh. 3 at 6) of argumentative and non-cooperative (Tr. at 63). She further maintained that there were counseling goals to address his . She recalled a discussion of other programs such as a general education program with related services or a special class in a community school, but did not consider those programs appropriate (Tr. at 64). She stated that she had personal knowledge of the was not appropriate because it was too restrictive as only children with high intellectual potential and learning difficulties attended . She stated that required an opportunity to learn from typically developing peers (Tr. at 67). She noted that without the opportunity to learn from typically developing peers ’s potential could not be met (Tr. at 67).

On cross Ms. stated that there was a standard deviation of 15 to 30 IQ points based on a standard score of 100 (Tr. at 78). She further stated that at some point an IQ score became stable, but there were studies that show that environmental stimulus could affect a child’s IQ (Tr. at 80). She acknowledged that could learn from children with high intellectual potential and learning difficulties who attended and would benefit from that interaction (Tr. at 82-83). She recalled that there were psychologists on staff at the with whom the children could consult as needed (Tr. at 86). She allowed that was diagnosed with , a (Tr. at 87). She further allowed that she observed in a class of 12 at the and that he was easily distracted (Tr. at 89). She acknowledged that she had never observed in a large class and that a child with a diagnosis of would have difficulty , and , and (Tr. at 90). She recalled that when she observed in class, he had a tendency to talk nonstop (Tr. at 93). She acknowledged that could be distracted in a large class (Tr. at 94).

A clerical administrative assistant testified that she was employed by the DOE for 15 years as a clerical assistant for private schools (Tr. at 120). She stated that she was responsible for mailing the FNR to ’s parent on May 25, 2010 via certified mail with return receipt (Tr. at 123). She further stated that a copy of the envelope containing the FRN (Exh 4 at 1) indicated that on June 9, 2010 the FNR dated May 25, 2010 was mailed to the parent and was returned to sender in an envelope postmarked “ unclaimed” (Tr. at 124). She stated that she also mailed the IEP and FNR via regular mail and the envelope was not returned (Tr. at 128).

On cross, she stated that she did not personally mail the FNR to the parent (Tr. at 127). She further stated that once the post office returned the FNR as unclaimed she did not contact the parent or send out another IEP or FNR (Tr. at 128;130).

An assistant principal of the middle school for the for testified that she had a Master’s degree and was NYS certified as a reading specialist and was employed by the DOE for 24 years (Tr. at 131). She stated that she was NYS certified in supervision and administration (Tr. at 132). She further stated that she was the assistant principal for the for 7 years (Tr. at 133). She maintained that there were 2 ICT classroom for 8th graders at Brooklyn School for Collaborative Studies for the 2010-2011 school year (Tr. at 134). She recalled that there were 27 children registered for the ICT classes in each class and each ICT class had a NYS certified special education teacher and certified general education teacher (Tr. at 135). She explained that the were departmentalized with core teachers in each subject except art and gym (Tr. at 139). She further explained that the ICT classes had special education children classified as learning disabled or OHI aged 13 to 14 who read on a level to a high school level (Tr. at 140). She recalled that there was a student who was classified as and required a (Tr. at 141). She further explained that there were 4 guidance counselors for the (Tr. at 143). She noted that for Collaborative Studies had 700 students for grades 6 to 12 and during lunch there were 160 students per lunch period (Id.). She further noted that the teachers participated in professional development (PD) once a week (Tr. at 144). She explained that PD topics included differential curriculum, providing accommodations to students with IEPs (Tr. at 145). She further explained that progress was measured 4 times per year (Tr. at 147). She opined that the ICT class at the was appropriate because functioned academically within the average range and while his instructional level was lower than average the reading material was always differentiated (Tr. at 148).

On cross, the assistant principal stated that she considered the for Studies a small school, in a 4-story building with 350 students in the middle school that occupied 2 floors (Tr. at 149). She stated that there were 350 students in the high school that occupied 2 floors and 700 students in the building (Tr. at 152). She stated there were approximately 160 students for lunch period (Tr. at 145). She maintained that there was a space in the ICT classes in the beginning of the 2010-2011 school year (Tr. 150). She stated that there were 12 special education students for the 2 ICT classes for the 20102011 (Tr. at 156). She maintained that if ’s parent received the placement letter for her school, then there must have been a class with only 11 special education students (Tr. at 157).

THE PARENT’S CASE

Mr. the parent and the, Head Teacher at , testified in support of the parent's claim for tuition reimbursement for the unilateral placement of in the The parent contended that the May 12, 2010 recommendation of a ICT in a community school did not meet 's special education needs resulting from ’s demonstrated anger and difficulty maintaining self-control. The parent argued that CSE failed to offer FAPE on both procedural and substantial grounds and is seeking reimbursement for 's tuition of approximately $43,155 (Tr. at 215). The parent believed that the MMCL placement is appropriate and the equities favor him.

The parent argued that the IEP that resulted from the May 12, 2010 meeting was procedurally and substantively flawed because CSE was failed to have the mandated members and the goals were not developed for . The parent further argued that the IEP that resulted from the May 12, 2010 meeting changed the classification without sufficient explanation and the ICT placement was not substantively appropriate for . The parent alleged that he did not receive the IEP or FNR prior to the start of the 20102011 school year (Exh. 1)

Mr testified that was having educational difficulties at the beginning of the 2010-2011 school year (Tr. at 212). He stated that and avoided homework and had low regarding his school work (Id.) He opined that made great progress with these issues by the end of the 2010-2011 school year (Tr. at 214). He further opined that did not make friends, but by the end of the school year, had made tremendous social growth and had friends (Tr. at 215). He recalled that had problems in the beginning of the year with mathematics and doing homework. He noted that the MMCL allowed his son 45 minutes after school to ensure completed his homework (Tr. at 222). He stated that he paid $43,155 tuition for the 2010-2011 school year as indicated in the Financial Affidavit from the (Exh. A) and he signed the contract on September 23, 2010 because he had hoped for an appropriate free educational setting as the MMCL tuition was a financial burden (Tr. at 216). He stated that he did not receive a placement recommendation (Tr. at 217). He recalled that he requested both the IEP and placement letter on March 1, 2011 (Tr. at 218). He stated that he never received the FNR and he never visited the (Tr. at 221).

On cross Mr. stated that he separated from his wife, Ms. . on or about 2006, but both were responsible for making the payments to despite the fact that only his exwife’s name appeared on the Financial Affidavit (Tr. at 224). He explained that had attended a public school in (Tr. at 227). He further explained that was frustrated and had (Id.). He stated that he attended the May 12, 2010 IEP meeting and confirmed his address (Tr. at 229). He further stated that he brought for evaluations with Ms. , but had to reschedule once because he was late (Tr. at 230).

The Head Teacher at the testified that he was employed by the for the past 12 years (Tr. at 164). He stated that his teaching experience was within the realm of special education (Tr. at 165) He further stated that he knew as a student and as a student as was in his woodworking class. He explained that he was ’s homeroom teacher for 8th grade and also science (Id.). He explained was in a class of 11 students and he traveled with that class for his content area classes in history, current events, science, physical education, art and Spanish (Tr. at 166). He further explained that was grouped with students with similar strengths and struggles in both literacy and math. He related that ’s math group consisted of 2 students and his literacy group was 6 students. He further related that had 2 teachers for science, history, current events, art and Spanish (Tr. at 167). He could not describe the intake progress that determined the small groups, but noted that as ’s homeroom teacher and advisor in the 2010-2011 year he was responsible to address ’s organizational skills (Tr. at 169). He noted that he reviewed the organizational binder system to ensure that all home work was recorded and work was organized and prioritized (Id.). He further noted that he was in constant contact with ’s literacy, math, history and current events teachers (Id.). He stated that he created a space of 45 minutes after school to ensure that completed homework. (Id.) He opined that the addressed his learning needs as well as his adult support. He noted that the school psychologist and he and the other homeroom teacher were constantly available to (Tr. at 171). He explained that ’s misperceptions were linked to his and that progressed with these issues during the year (Tr. at 172).He stated that the had up to 120 students and he opined that required a small class of 11 students with 2 teachers in each class (Tr. at 174). He further opined that a school with 700 students would not be appropriate for (Tr. at 177). He further opined that a class of 27 to 30 students with 2 teachers would not be appropriate (Tr. at 178). He recalled that had problems in the lunchroom with 32 to 40 students so he did not feel that a lunchroom with 150 students would be appropriate (Tr. at 180).

On cross, he stated that had problems with organization and completing his work (Tr. at 195). He noted that while had access to the , there was no set schedule (Tr. at 196). He noted that misperceived situations and had anger management difficulties, but there was no need for a because removing privileges were sufficient to address negative behavior and the organizational plan addressed is organizing problems (Tr. at 197). was an independent for children with language based learning disabilities with different modality to impart information to students including visual, auditory, kinesthetic or whatever modality would (Tr. at 200). He further stated that while most teachers had a master’s degree in special education, he did not (Tr. at 206). He did not know if ’s teachers were NYS certified in special education (Tr. at 207). He further stated that did not have access to typically developing peers at the MMCL (Tr. at 210).

FINDINGS OF FACT AND CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parent asserted many procedural flaws in the May 12, 2010 IEP: there was no participating member who could have implemented the program; that Head Teacher who participated by telephone did not have access to the same material as the CSE team members; that the CSE did not consider the most recent evaluations and the goals developed were vague and generic and were for a child named and that the recommended placement was too large and would not be able to offer individualized attention.

In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies: (i) impeded the student’s right to FAPE; (ii) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (iii) caused a deprivation of educational benefit. 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).

In order to be procedurally correct the CSE which met on May 12, 2010 would have to have been constituted in full accord with the provisions of the Education Law Section 4402, as well as the provisions of the regulations of the Commissioner of Education of the State of New York Part 200.3(a). The Head Teacher who participated in the May 12, 2010 review was not a NYC certified regular education teacher or a NYS certified special education teacher. I further find there was no testimony as to the qualifications of the person who signed as the special education teacher and no testimony to establish that person was currently teaching special education students. The State Review Officer has stated that “a student’s special education teacher member of a CSE could be the student’s private school teacher, a special education teacher who was likely to implement the student’s IEP, or the student’s related service provider.” (Application of a Child with a Disability, Appeal No. 01-072, at 4). I find there was no testimony that the person who signed as special education teacher would have taught , or was likely to implement ’s program during the 2010-2011 school year and I find that loss of the special education teacher or a regular education teacher who could have implemented ’s program resulted in the loss of an educational opportunity.

Moreover, I find that the parent, and the teacher who participated in the May 12, 2010 IEP meeting by telephone, did not receive a copy of the classroom observation or the educational update and did not have access to them during the meeting. While telephone conferencing of participants is permitted, those individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. (Application of a Child with a Disability, Appeal No. 00-043). I find that the teacher participating by phone did not have access to the same material available to all others. I find the lack the same material as the other CSE team members on May 12, 2010 IEP team seriously infringed the parent’s opportunity to participate in the IEP formulation process.

The parent’s attorney asserted that the CSE changed the classification without considering the psychological evaluations or producing current psychological evaluations to support the change in classification. I find the change in classification was not discussed at the May 12, 2010 IEP. I find a reevaluation is required when the classification is changed. Testimony adduced at the hearing established that the school psychologist changed the classification as she felt was not a . There was no current conducted to support that a NVLD was not an appropriate or that did not have executive functioning issues. I find the parent must be included in the team-making eligibility determination and I credit the parent’s testimony that there was no discussion to changing the classification during the May 12, 2010 IEP meeting and I find the change in classification seriously infringed the parent’s opportunity to participate in the IEP formulation process.

The parent’s attorney asserted that the ICT placement in a community school was not appropriate. Testimony adduced at the hearing established that the CSE school psychologist who participated in the May 12, 2010 IEP meeting as the psychologist stated that the CSE reviewed and relied on the progress report that was issued prior to the meeting, as well as the information presented from who participated by telephone as well as the February 2010 classroom observation (Exh. 7), the Neuropsychological Evaluation conducted in January 2005 (Exh. 13), the Consultation Report in July 2006 Report (Exh. 12) and the Educational Update in April 2010 (Exh.6). I find that CSE was aware of these evaluations. I find the social worker who conducted the observation also participated in the May 12, 2010 IEP review noted ’s negative issues. I find CSE was aware that had anxiety issues, anger issues, self-control issues as well as and aggression with peer relations as the IEP noted these issues on the social /emotional performance (Exh. 3 at 7). I find CSE was aware that ’s problems in a small class as the IEP noted he did not , and his (Exh. 3 at 5). I find that CSE ignored these issues and I find an ICT placement is insufficient to address his special education needs. I find the May 12, 2010 IEP failed to recommend a special education program to address ’s well documented issues. Therefore, I find the IEP that was developed by the CSE was not reasonably calculated to provide meaningful educational benefit and the fact that CSE failed consider all the assessments caused a deprivation of educational benefits. Therefore, I find that the May 12, 2010 IEP was procedurally and substantively flawed because all not all the required members were present and as the CSE team did not consider all the evaluations.

The parent asserted that the goals were vague and generic. I find that the goals and objectives did not correspond to ’s needs and were not appropriate.

I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, social development, physical development and management needs. (8 NYCRR 200.6(a)[3]) I find testimony adduced at the hearing did not indicate the abilities of proposed students satisfied the similarity of academic needs, social development and management needs requirement.

The parent asserted he did not receive the IEP or the FNR until March 2011. I credit this testimony. Further, I credit the testimony of the clerical assistant who received the FNR in an envelopment postmarked “unclaimed” and did not contact the parent to enquire whether the parent received the FNR. The parent’s attorney argued that the failure to send the IEP or FNR to the parent resulted in a denial of FAPE ((Application of a Child with a Disability, Appeal No. 08-110)(IHO Exh I at 2).

Based on the foregoing, I find the district failed to establish that FAPE was provided during the 2010-2011 school year as I find CSE failed to offer an appropriate placement for the 2010-2011 school year.

The parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. Testimony adduced at the hearing clearly demonstrates that the is providing a small class size. However, there is nothing in the record other than the Head Teacher’s testimony and the class schedule (Exh. C) to further describe the program at for the 2010-2011 school year and no evidence that is receiving counseling from a certified provider. A unilateral placement is only appropriate if it provides “education instruction specifically designed to meet the unique needs of a handicapped child” (See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 [2d Cir. 2007]; at 115 [emphasis added] [quoting Frank G., 459 F.3d at 365]).

The parent asserted that the was appropriate because had made progress at the . It was noted that at the hearing that ’s impact on his classroom performance. I note the evidence presented was replete with descriptions of his issues with . The Head Teacher described as student who had issues. I credit that testimony. However, I find that there was insufficient evidence presented to establish that the program at the failed to address his counseling needs especially in light of the description of his emotional problems. The SRO ruled that the school must provide sufficient information about how the program and the related services of the private school meet the individual needs. (Application of the New York City Dept. of Educ., Appeal No. 09-020; Application of the New York City Dept. of Educ., Appeal No 07-137). I find there was insufficient information about the academic progress or the progress and insufficient information about the related services providers. I find the lack of counseling by someone certified to provide counseling in light of renders the parent’s unilateral placement for not an appropriate one.

The district’s representative also argued that the did not modification program for (IHO Exh. II at 6). I note the Head Teacher indicated there was no need for a behavior modification plan because were sufficient to and the organizational plan addressed his (Tr. at 197). I find there was no objective, measurable evidence regarding whether progressed at academically or socially. The SRO denied reimbursement where the record did not contain any documentary or objective evidence (Application of a Child with a Disability, Appeal No. 08-151). I find that there was not sufficient information about how the program at the met ’s individual needs. There was no testimony by any witness with personal knowledge that students in the literacy and math class described in the were comparable with ’s special education needs. There was no testimony about how was placed into small groups for literacy or math.

Moreover, the district’s representative argued that the placement at was not appropriate because it was not the least restrictive environment (“LRE”) and noted that at there was no opportunity to mainstream or interact with non-disabled peers. The district representative argued that should not be excluded from instruction with typically developing peers (IHO Exh. II at 5). I find the SRO denied reimbursement where the unilateral placement “did not provide the student with special education services in the LRE” (Application of a Child with a Disability, Appeal No. 08-130). I agree with the district’s representative that there were no mainstreaming opportunities at and the lack of mainstreaming opportunities renders the parent’s unilateral placement for not an appropriate one.

Based on the foregoing, I cannot find that the parent demonstrated the appropriateness of the program for the 2010-2011 school year. Because I do not find the parent’s placement appropriate, I do not need to consider the prong III of the Burlington/Carter analysis.

ORDER

I therefore deny the parent’s request for reimbursement for the for the 20102011 school year. Dated: June 13, 2012

______________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

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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 EVIDENCE ON FEBRUARY 3, 2012

PARENT

A School Financial Affidavit, 1/12/12, 1 p. B School Enrollment Contract, 9/23/10, 2 pp. C Class Schedule, Undated 1 p. D Attendance Report, Undated, 1 p.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 11/11/11, 2 pp. 2 Due Process Response, 11/29/11, 4 pp. 3 IEP, 5/12/10, 2 pp. 4 Certified Receipt, 6/9/10, 2 pp. 5 Final Notice of Recommendation, 5/25/10, 1 p. 6 Educational Update, 4/7/10, 7 pp. 7 Classroom Observation, 2/11/10, 1 p. 8 Progress Report, 9/09 to 6/10, 26 pp. 9 Appointment Letter, 3/1/10, 3/22/10, 2 pp. 10 CSE Review Minutes, 5/12/10, 2 pp. 11 Parent Letter, 8/20/10, 1 p. 12 Entitled Consultation Report, 7/19/06, 2 pp. 13 Rreport, 1/13/05, 22 pp. 14 Physical E\examination, 7/12/06, 2 pp.

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

I Closing Argument by , Esq., 6/04/12, 5 pp. II Closing Statement by , 6/04/12, 6 pp.