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: March 19, 2012

April 2, 2012

April 19, 2012

May 17, 2012

Actual Record Closed Date: May 17, 2012

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 19, 2012

Attorney — Student

Parents

Attorney — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 2, 2012

ESQ., Attorney — Student

Father — Student

Mother — Student

Program Director, — Student

ESQ., Attorney — DOE

School Psychologist, CSE Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 19, 2012

ESQ., Attorney — Student

Parent/Father — Student

Parent/Mother — Student

Head Classroom Teacher, (Via Telephone) — Student

Speech Language Pathologist, (Via Telephone) — Student

DR., Clinical Psychologist (Via Phone) — Student

ESQ., Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 17, 2012

ESQ., Attorney — Student

Parent/Mother — Student

Intern — Student

Intern — Student

Witness — Student

ESQ., Attorney, — DOE

This is New York City Case # . On March 19, 2012, April 2, 2012, April 19, 2012, and May 17, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3) regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , Esq. represented the Department of Education, and , Esq. represented the parents. A list of witnesses who testified and evidence that was admitted is attached. I note that two high schools student interns attended the last day of this impartial hearing at the invitation of the parent’s attorney with the consent of the Department of Education’s attorney. (Tr. 350-2)

In the course of this impartial hearing, the parents introduced Fredda Clark, a former Department of Education employee and a current employee of Susan Luger Associates. She was to testify as to how IEP’s should be developed. (Tr. 353-5) The Department of Education objected to the witness, and I sustained the objection as her testimony was not needed. (Id.)

ISSUE

The sole issue before me is whether the parents are entitled to reimbursement of payments they made for for the 2011 – 2012 school year and prospective payment of their outstanding balance there.

DEPARTMENT OF EDUCATION POSITION

The New York City Department of Education contends that it conducted a “Committee on Special Education” (CSE) meeting on May 11, 2011 where it developed an “individualized education program” (IEP) that offered a “free and appropriate education” (FAPE) to for the 2011 – 2012 school year. The Department of Education offered a placement at on June 15, 2011. The Department of Education alleges that the parents’ unilateral placement of in not appropriate, and that the equities in this matter do not favor the parents.

PARENT’S POSITION

The Parents believe that the Department of Education did not offer a FAPE for for the 2011 – 2012 school year. They believe that their unilateral placement of was appropriate, and that equities favor their reimbursement.

STATEMENT OF FACTS

The parties stipulated to the following facts: is . The CSE convened on May 11, 2011 for a “turning five” meeting. is a “child with a disability” as defined in the IDEA, and the CSE classified his There is no dispute with regard to this classification in this impartial hearing. (Tr. 8-9)

attended a for preschool during the 2009 – 2010 and 2010 – 2011 school years. (Ex. 13, 6, 7) In the spring of 2011, he was . (Ex. 13 at 2) The Department of Education attempted to conduct a evaluation of . on February 22, 2011, but did not understand the instructions on the “Wechsler Preschool and Primary Scale of Intelligence” (WPPSI). (Ex. 12 at 2) On the K-SEALS vocabulary subtest, ’s score was well below average, but he obtained a score within the average range in the expressive skills domain. (Ex. 12 at 2) In reading and math readiness:

“ was able to identify most letters presented. He was also able to identify single digit numbers. His ability to understand the qualitative concepts of biggest and smallest seemed inconsistent. counted with 1:1 correspondence. He obtained an age equivalent of 4-11 on the numbers, letters and work skills subtest.” (Ex. 12 at 3)

I note that this age equivalent score is above his chronological age of 4-5 at the time of the evaluation. (Ex. 12 at 1)

Steven Alter, Ph.D. conducted a neuropsychological evaluation . over four days in September, October, and November of 2011 in preparation for this impartial hearing. (Tr.

331) Again, was unable to complete full instruments. (Tr. 340-1) Even so, Dr. did obtain some results. Most importantly,

“ ’s ability to complete two to five piece(s) puzzles depicting everyday objects was in for his age group (Object Assembly, SS = 12) also demonstrated adequate level of focus and persistence in completing the puzzles. This strength, consistent with his father’s report about his puzzle skills on the IPAD suggests that is not simply globally impaired. He has pockets of intelligence which are hopefully indicators of other areas of strength which could not be presently assessed.” (Ex. C at 6)

The Department of Education CSE convened on May 11, 2011 for an initial

“turning five” meeting. Ms. , a Department of Education school , chaired the meeting.

(Tr. 112) She had three or four CSE meetings that day and each one had a pre-CSE meeting ie. a “pre-conference.” (Tr. 161-3) Ms. testified that there was a pre-conference . that was a meeting of the school members of the CSE with the parent member without ’s parents present or even invited. (Tr.134, 136) At this “pre-conference,” participants “read all the documents and discuss the findings.” (Tr. 136)

MS. : We pass along the documents to each other, and we comment on them, and say, you know, he can do this and he can do that, and this is where he was for preschool.

And so that when the parents come in we, you

know, I like to know a little bit about their student, about their child.

(Tr. 137)

I note that none of these CSE and “pre-conference” members ever met . At this “pre-conference,” they have a “discussion about the case.” (Tr. 136) They reviewed documents, discussed them, and there was discussion of potential placements for . Ms.

DeSisto admitted that during the “pre-conference,” the Department of Education staff discussed placement:

“ : We discussed whether could function in a special class or whether needed a nonpublic school. And then we wait for the parents to come in to talk.”

(Tr.161)

Then the official CSE convened with ’s parents, but the CSE did not address goals during the actual CSE meeting. (Tr. 358-9)

Ms. further admitted that after the May 11, 2011 CSE meeting for G. concluded, she and Mr. Rivera, a Department of Education general and special education teacher, drafted the goals and objectives for . although neither one of them had ever met him. (Tr. 102) In addition, they did not get input from the teachers or therapists who worked with at the Hawthorne School. (Tr. 115-6)

“MS. : How did you and Mr.

create the goals?

MS. : By trying to find gaps in 's performance.

MS. : And how did you identify

the gaps in 's performance?

MS. : By reviewing the record.

MS. : When were the goals

drafted?

MS. : Immediately after the meeting.“

(Tr. 103)

Ms. also admitted that ’s parents did not have an opportunity to suggest goals after the CSE meeting when she and Mr. developed the goals and objectives for . (Tr. 149-

50) Despite the fact that Ms. denied that she and Mr. developed generic goals and objectives for a rather than for , I find that that is exactly what they did as a matter of fact. (Tr. 129)

The Department of Education offered a placement for at , and issued a “Final Notice of Recommendation” dated June 15, 2011. (Ex. 4; Tr. 8-9) is part of District although it is housed at Community School 152. provides , , and , as well as education. There is a and an at the school twice per week so that students there have related services at school rather than provided through RSA’s. (Tr. 61) The parents receive once a month parent training through District that includes topics such as building social skills and working toward independence. The Department of Education provides professional training for teachers including training on (Exchange Communication System), and in the classroom.

Had attended , he would have been in Ms. class. This was Ms. ’s first year teaching for the Department of Education although she had taught special education in Westchester County for nine years. (Tr. 13) She holds two master’s degrees and she just completed a certificate program for BCBA from Penn State. (Tr. 25, 58) She has New York State certification as a preschool special education teacher, students with disabilities through second grade.

There were five students in the class in September 2011 so there was a place available for G. (Tr. 18) There is one class paraprofessional and one of the students has a one-to-one health paraprofessional so the class is actually a Despite Ms. , her class does not use it. (Tr. 47) Instead, the class uses and TEACCH. The morning routine is based on TEACCH that uses a system of picture schedules to help the children rotate from area to area, (Tr. 50) Each “rotation” lasts fifteen to eighteen minutes. The rotations covered are: fine motor with a teaching which is the verbal behavior component with the teacher, independent work area, and with the other paraprofessional. (Tr. 22, 45-7, 62-3)

The class has a 50-minute block in the afternoon for ELA that uses a “Foundations” curriculum. (Tr. 23, 49) During that period, the students work on letter correspondence, receptive identification of letters, and sounds of letters. They have ten minutes of large group instruction, and then they break into small groups for small group instruction based upon their levels. (Tr. 27, 63-4) The class uses manipulatives during the so the students may use sandpaper to trace letters, play dough, shaving cream, and different writing utensils. (Tr. 27) The Teacher uses prompts, but she tries to minimalize the prompts to gestures working down through the prompt hierarchy. (Id.)

The class also has a 40-minute afternoon block dedicated to a social snack in which the students work on social skills, such as taking turns. (Tr. 29) The children have instructional mealtime for breakfast and lunch in addition to the social snack. (Tr. 31) There are twenty-five general education students who eat at the same time as Ms. ’s class in the lunchroom, but they sit at separate assigned tables so there is no real interaction. Beyond that, there is no other exposure to the typically developing students in the . (Tr. 67-8) There are no mainstreaming opportunities in this public school program as it is offsite rather than at the main school. (Tr. 53)

In September 2011, the students in Ms. ’s class were all turning five. (Tr. 22) One student is non-verbal. (Tr. 50) Two students could use complete sentences, and request desirables as well as not desirable. The other two of the four verbal students are just learning to make two to three word utterances to request desirables only. (Id.) The four verbal students have mastered greetings and saying hello and goodbye to staff. (Id.)

Ms. testified at length that she could implement each of the goals and objectives on .’s challenged May 11, 2011 IEP, however, she does not know and she does not know whether those goals and objectives were appropriate for him. (Tr. 55-6) Early in the school year, Ms. assesses each student using the “Assessment of Basic Language and Learning Skills” (ABLLS) and the Foundations curriculum so she does not know their levels until the end of September when she does the assessment. (Tr. 18-9) The Foundations assessment determines which of three levels is appropriate for each student. (Tr. 70) She speculated in which group would be based upon the goals on his IEP. (Id.)

’s Mother visited although the exact date of the visit is unclear. (Tr. 364, 393-

4) She found the class to be “chaotic” and she saw an aide physically restrain a student in a chair. (Tr. 391, 408-9, 412-7) She wanted to receive more individualized instruction than she saw in this program. (Tr. 392) The Mother testified that she then went to the Department of Education in person where she spoke with “Mrs. ” and requested another placement option for . (Tr. 394-6)

The parents formally rejected this placement at , and they requested another public school option in writing dated July 1, 2011. (Ex. A; Tr. 365) They also requested a new CSE review, but the Department of Education did not reconvene it. When the Department of Education did not provide a second school placement option, did not start school in September 2011. Instead, he went to a babysitter from September 3 for the first month of the 2011 – 2012 school year. (Tr. 410-1) The Parents signed a contract with the on September 26, 2011. (Ex. H at 4) They placed at the in early October 2011. (Tr. 366-8)

The is an unapproved private special education school that currently has one hundred fifteen students. (Tr. 166, 213) The mission of the School is:

“to work with children ages 4 to 21 with neurodevelopmental delays in relating and communicating; understand their strengths and limitations in development; meet them where their developmental needs are; and move them up the developmental ladder to become thinking, creative, communicative members of their society.” (Tr. 169)

Approximately 80% of the students at the have a diagnosis on the . (Id.) The School uses a “ based model” (DIR) developed by Dr. . (Tr. 219) DIR is unlike “Applied Behavior Analysis” ( ) as is a behaviorally based methodology while DIR is a relationship-based methodology. (Tr. 174) DIR looks at three components. (Tr. 172) “D” is for development. There are six developmental levels that a child goes through by the age of five or six. in relating and communicating do not go through them the way typically developing children do. (Tr. 172-3)

“Level one is regulation; level two is shared attention; level three is back and forth communication; level four shared social problem solving; level five is symbolic thinking; level six is building logic or bridges between ideas.”

(Tr. 200)

The “I” is for individual differences in sensory processing that almost all of these students have. (Tr. 173) The “ ” is for relationships as these students have limited relatedness. (Id.) The uses Floor Time, which involves working with students at their own levels. (Tr. 238) This private school develops an “individual plan” for each student that is similar to an IEP. (Tr. 216)

There is staff oversight and training at the . The staff includes speech therapists, occupational therapists, music therapist, psychologists and social workers all of whom are supervised. (Tr. 239) There are two educational supervisors for the teachers and assistant teachers. (Tr. 176-7) Each year, the staff has four days of training before school starts in September, another three days of training during the school year, and they attend required conferences every week. (Tr. 175-6) There is also training for the parents. I note that the school day ends at 12:30 on Fridays. (Tr. 282)

’s class at the has nine students aged five to seven, a head teacher, three teacher assistants who have at least a bachelor’s degree, and one student has a licensed one-to-one paraprofessional so it is a 9:1:4 class.^[1] (Tr. 214, 239) Ms. , his head teacher, has a master’s degree in special education and certification in Maryland while her New York State certification is pending. (Tr. 205-6) In September 2011, she was a new teacher at the . (Tr. 237) receives related services at the .

has speech therapy three times per week for thirty minutes per session one of which is a dyad. (Tr. 207) The group speech session is a cooking group led by the therapist with one or two assistant teachers. (Tr. 300) The group works on receptive and expressive language as well as making requests, following directions, labeling ingredients, and other skills. (Id.) Ms. , the , testified that is motivated in this cooking group speech therapy program. (Tr. 301) He also receives occupational therapy three times per week for thirty minute sessions. (Tr. 207)

Ms. described ’s level of performance when he entered her class at the . In September 2011, could identify letters by pointing to them and reciting their name upon request. (Tr. 277) He could identify numbers one through ten by pointing to them upon request, and he could identify numbers one through ten by reciting them upon request. (Ibid.) could also point to colors when named, and he could verbalize colors when presented. (Tr. 277-8) In September 2011, could point to a circle, square and triangle when named. and verbalize those shapes when presented. (Tr. 278) He could sort and match by color, shape, and common objects. (Tr. 278) He could also label common objects in his class and school (Tr. 279) Although he was not asked to label common objects in the community, he did label the school bus. (Tr. 279-80) When he started at the , could point to five body parts without prompts. (Tr. 280) He could point to express his needs and he could shake his head to respond to yes and no questions. (Id.) He could follow one-step directions with only an initial request that he do it. (Tr. 281, 287) Now, he can follow two-step directions, and he is working on more complex directions. (Tr. 306) could also maintain eye contact for ten seconds with a prompt when he started at the . (Tr. 281) He could not string beads or write the letter “E” or copy a straight line. (Tr. 281) is working on these skills in therapy at school now.

^[2]

(Id.)

In school, struggles with his “regulation” to be available to attend to different activities. (Tr. 240-1) The School staff follows a sensory diet with that includes a brushing protocol three times per day. (Tr. 222) He is also taken to the school sensory gym where he uses the swings or jumps on a trampoline. also may sit on a yoga ball during group activities, snack, and lunch. (Tr. 241, 267-8)

There are six hours per week of class work on academic or pre-academic skills plus two hours of “morning meeting/social studies” per week. (Ex. F; Tr. 271, 284-6) Individual students work on learning sight words of interest to them, rather than working on decoding. (Tr. 274) Some of the students in this class are nonverbal, and they use a photographic version of PECS. (Tr. 274-5)

has made progress at the . In the beginning of the school year, could only attend for a few minutes. By the end of the school year, he can remain with the class and attend for the entire morning meeting that is thirty minutes long. (Tr. 242) He is able to follow classroom routine independently. (Tr. 244-5)

The full tuition for the 2011 – 2012 school year at the Rebecca School is $71,063. (Ex. H) To date, the parents have paid $7,500. leaving a balance of $63,563. unpaid as of May 17, 2012. (Ex. G; Tr. 370-1) Although the parents provided the Mother’s TurboTax printout documents in this impartial hearing, they did not provide the Father’s tax documents and the parents file their taxes separately. (Ex. D) The Father is a physician who takes as a dependent on his income taxes.

CONCLUSIONS OF LAW

The Department of Education may be required to pay for educational services obtained for a student by his or her Parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the Parent were appropriate, and equitable considerations support the Parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the private school selected by the Parents to provide special education services to the child is not State approved as a school for children with is not dispositive of the Parents' claim for reimbursement of tuition. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

FIRST CRITERION

The first criterion of a Burlington/Carter analysis is whether the school district offered a “free and appropriate public education” (FAPE). An appropriate special education program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives, when applicable, related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 93-12. “Subsequent to its development, an IEP must be properly implemented.” Application of a Child with a Disability, Appeal No. 10-103; New York State Commissioner of Education Regulation Section 200.4(e)(7)

The often quoted Rowley standard is that an “appropriate” education includes:

“. . . personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. . . and if the child is being educated in the regular classroom, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

Board of Education v. Rowley, 458 U.S. 176 (1982) (emphasis added)

Yet the Rowley standard should not be read out of context. The United States Supreme Court made it clear that it was the intent of the High Court to apply this standard only to the education of children who are in the regular education classroom and curriculum:

“The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.”

Rowley, 458 U.S. at 202 (emphasis added)

The Second Circuit has held that an “IEP must be reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997 “[T]his standard contemplates more than ‘mere trivial advancement.’” Id. at 1121.

In the instant matter, is a child who is not attending a general education class nor is he pursuing a general education curriculum. Furthermore, she did not attend a general education preschool class, nor did he pursue a general education curriculum in preschool.

MR. :. . . Are you familiar with the state requirements in terms of curriculum with regard to reading?

MR. : Okay. In your professional

opinion, would it be appropriate to put in a curriculum with regard to state standards for his age group?

MS. : No.

MR. : Okay. Are you familiar with state standards with regard to curriculum involving math--

MS. : (Interposing) Yes.

MR. : -for his age group?

MS. : Mm hmm.

MR. : Yes?

MS. : Yes.

MR. : Okay. In your professional

opinion, would it be appropriate to have utilizing the state's curriculum for math for his particular age group?

MS. : No.

MR. : Are you familiar with the state's curriculum for social studies?

MS. : Yes.

MR. : Okay. In your professional

opinion, would it be appropriate to have in a social studies curriculum based upon what the state has as their curriculum?

MS. : No.

MR. : Okay. And with regard to any of the English language curriculum set up by the state, would you think it is appropriate to have in that type of a curriculum?

MS. : No.”

(Tr. 290-1)

’s progress cannot be measured using passing marks or advancement from grade to grade. I find that the Rowley standard does not apply to .

There is no case law from the United States Supreme Court or from the Second Circuit that clearly establishes a standard of “appropriateness” for a child who is not pursuing the general education curriculum. The reasoning and analysis of the Sixth Circuit Court of Appeals in Deal v. Hamilton Board of Education is instructive in this matter. In that case, the Sixth Circuit reviewed the history of educational benefit standards and developed a standard for a young child with autism who was not in the general education classroom or pursuing the general education curriculum.

“IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue. . . the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.“

Deal v. Hamilton Board of Education, 392 F.3d 840, 862, 864 (6th Cir. 2004)

There is further support for the application of this “self-sufficiency” standard for a child who is not in general education classroom and not pursuing the general education curriculum in the language of the Congressional findings in the reauthorization of the IDEA 2004. Congress found that the education of children with disabilities can be made more effective by:

”having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and, to be prepared to lead productive and independent adult lives, to the maximum extent possible.”

20 U.S.C. Sec. 1400(c)(5)(A)(i) and (ii) (emphasis added) An impartial hearing officer applied this higher standard of a meaningful benefit toward independence and self-sufficiency in a case in the Southern District of New York. See A.D. and M.D. on behalf of E.D. v. the Board of Education of the City of New York, Case 1:08-cv-09424-DLC, footnote 7:

“In reaching this decision, the IHO concluded that the standard set forth in Board of Education v. Rowley, 458 U.S. 176, 207 (1982) -- that the IEP be “reasonably calculated to enable the child to receive educational benefits” -- did not apply because defendants recommended placing E.D. in a full-time special education classroom. The IHO relied instead on Deal v. Hamilton Board of Education, 392 F.3d 840 (6th Cir. 2004), which held that an IEP for a student who is not placed in a regular- education classroom should aim to “provid[e] a meaningful educational benefit towards the goal of self-sufficiency.” Id. at 864. “ The Court let the application of this legal standard stand without comment.

I find the reasoning of Deal to be persuasive. It is this standard of a meaningful educational benefit towards the goal of self-sufficiency and an independent adult life that I apply in this matter. . has some strong splinter skills in the average range, including a standard score of 12, in the 75th percentile, on the Object Assembly subtest on the WPPSI-III. He can identify most letters and single digit numbers. Furthermore, is independent in the bathroom, can follow simple directions, and he can initiate communication when he is hungry or thirsty. (Ex. B at 4; Tr. 272) I find that some level of self-sufficiency and an independent adult life are a reasonable goal for him.

I find that the IEP developed for G. on May 11, 2011 did not offer him a FAPE for the 2011 – 2012 school year as it did not offer a meaningful educational benefit towards the goal of self-sufficiency and an independent adult life.

Even applying the lower Rowley legal standard of “appropriateness” for students who pursue the general education curriculum, the May 11, 2011 IEP for G. was not appropriate. This lower standard only requires that the IEP be "reasonably calculated to provide some meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192. . A school district provides "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 (citations omitted).

In the instant matter, the May 11, 2011 IEP for G. was not reasonably calculated to produce progress. As almost all of the goals and objectives on this IEP were skills that already possessed when school started in September 2011, I find that the proposed IEP was calculated to produce stagnancy or regression. Had the parents placed in the offered placement in , the school staff would have spent time pursuing goals that had already mastered. The fact that Ms. assesses her students using an ABILS in the beginning of the school year does not negate the fact that she would have been guided by the goals and objectives on ’s IEP.

I find that the Department of Education substantively denied FAPE . for the 2011 – 2012 school year.

In addition, the Department of Education committed some serious procedural violations. Procedural violations do not always result in a finding that a child was deprived a FAPE. This principle is well established in statute, regulation, and case law. 20 USC §1415(f)(3)(E); M.S. ex rel. S.S. v. Board of Educ. of the City Sch. Dist. of the City of Yonkers, 33 IDELR 183 (2d Cir. 2000); Grim v. Rhinebeck Central School District, 346 F.3d 377 (2d Cir. 2003); Evans v. Bd. Of Educ., 930 F. Supp. 83, 93-4 (S.D.N.Y. 1996); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000), Grim II, 346 F.3d at 381; Matrejek v. Brewster Central School District, 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007). Under the IDEA, a hearing officer may find that a child was denied a FAPE based upon procedural violations only if the procedural flaws: (i) impeded the child’s right to a FAPE; (ii) significantly obstructed the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE; or (iii) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); M.M. ex rel. A.M. v. New York City Department of Education, 583 F. Supp. 2d 498, 505 (S.D.N.Y. 2008); Matrejek, 471 F. Supp. 2d at 419.

In the matter before me, ’s parents were only invited to participate in a small portion of the May 11, 2011 CSE meeting. All CSE members, except the parents, participated in a “pre-conference” in which they reviewed the findings in documents and discussed placement. Essentially, they started the CSE meeting without the parents.

After the May 11, 2011 CSE meeting concluded, two Department of Education employees who did not know , drafted the inappropriate goals and objectives for him. Essentially, they continued the meeting without the parents or any other members of the CSE.

The IDEA and the New York State statutes and regulations establish an IEP team that is supposed to be comprised of members who know the particular child. In the matter before me, the May 11, 2011 CSE was comprised of individuals who did not know the . The Department of Education should have had ’s teacher from the Hawthorne Country School participate in the meeting. I find that the “pre-conference” meeting and the “post-conference” meeting where goals and objectives were drafted by two individuals who never even met , are procedural violations of the IDEA that significantly obstructed the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE. Furthermore, these violations caused a deprivation of educational benefits to as his IEP and placement were inappropriate for him. I find that these procedural violations led to a further substantive denial of FAPE to . for the 2011 – 2012 school year.

I find that the Department of Education failed to offer a FAPE to . for the 2011 – 2012 school year.

SECOND CRITERION

With respect to the second criterion for an award of tuition reimbursement, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85 The private school need not be approved by the state educational agency to provide instruction to children with disabilities Florence County School District Four et al. v. Carter by Carter, 510 U.S.7 (1993), nor must it employ certified special education teachers, or have its own IEP for the student. Application of a Child with a Disability, Appeal No. 94-20. 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. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”) See also F. G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006)

In the matter before me, the parents unilaterally placed at the for the 2011 2012 school year. The provides . with a comprehensive methodology, related services on-site in a coordinated program, trained staff, and parent training. I find the small amount of time devoted to the acquisition of academic and pre-academic skills personally troubling. Although Ms. considers Floor Time to be academic in nature, I find that it is not. Yet 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. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”)

Upon the record that is before me, I find that the placement of G. at the Rebecca School for the 2011 – 2012 school year is appropriate and proper under the Act. Accordingly, I find that the parents have met their burden on the second criterion.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim.

In the instant case, ’s parents cooperated with the CSE process. They did not sign a contract with the Rebecca School until September 26, 2011 after the start of the 2011 – 2012 school year when the Department of Education did not offer a second placement option. did not begin attending the until October 4, 2011.

I find that equity favors the parents’ request for reimbursement.

Lastly, the parents request reimbursement of the amount they paid toward the tuition for the 2011 – 2012 school year and prospective payment of the remaining unpaid tuition. As of the last date of this impartial hearing, the parents had documented that they had made payments totaling $7,500. Although .’s parents are married to each other and live together, they file separate income tax documents. (Tr. 403-4) The parents have established the Mother’s income and her inability to pay tuition at the , but the parents have not established the Father’s income nor that he has an inability to pay the tuition at the for the 2011 – 2012 school year. Furthermore, the Mother’s tax document indicates that she takes a tax deduction for her nephew who is her dependent, but she does not take as a dependent. (Tr. 402-3) She testified that her husband, ’s Father, takes as a dependent and gets a tax deduction for him. (Tr. 403-4)

The instant matter is distinguished from Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). In that case, there was documentation that the parents could not afford the full tuition. In the instant case, there is documentation that ’s mother cannot afford the tuition, but there is no documentation that ’s father cannot afford the tuition.

I find that the Parents have not established that they are eligible for prospective payment of the 2011 – 2012 tuition at the . CONCLUSION:

The Department of Education did not offer a FAPE to . for the 2011 – 2012 school year. The is an appropriate program for him. Equity favors the Parents’ claim for reimbursement. The Parents have not established that they are entitled to prospective payment of the outstanding balance of tuition at the Rebecca School for the 2011 – 2012 school year.

ORDER:

I hereby order the Department of Education to reimburse the Parents $7,500. Immediately and reimburse the parents. I further order the Department of Education to reimburse the Parents up to an additional of $63,563.00 upon presentation of paid cancelled checks or other proper documentation of their payment of the for the 2011 – 2012 school year. Dated: May 31, 2012

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE:gc

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

Department of Education

1 Impartial Hearing Request, 12/7/11, 7 pages

2 Due Process Response, 12/14/11, 4 pages

3 IEP, 5/11/11, 16 pages

4 FNR, 6/15/11, 1 page

5 Case Conference Summary, 5/11/11, 1 page

6 School Ed. Prog. Report, 12/15/10, 3 pages

7 School Annual Report, 6/15/10, 2 pages

8 Child Outcome Summary Form, dated 5/11/11, 1 page

9 Related Services Progress Report , 3/26/10, 2 pages

10 Related Services Progress Report , dated 3/19/10, 1 page

11 Related Services Progress Report , 10/29/11, 1 page

12 , 2/22/11, 4 pages

13 Social History Update, dated 2/22/11, 2 pages

Parent

A Letter from the Parents to the Board of Ed, dated 9/15/11, 2 pages

B Interdisciplinary Report of Progress from the , dated December 2011, 11 pages

C Confidential Evaluation by Dr. , 12 pages, dated March 25th, 2012

D Parents' Tax Return from 2010, four pages

E Parents' Tax Return from 2011, dated 2011, four pages

F Undated, Class Schedule from the , one page

G Canceled Checks, various dates, 3 pages

H EnrollmentContract, dated 9/26/2011, 6 pages

Footnotes

[1] In March 2012, the para-professional left and the class got another assistant teacher so the ratio is still 9:1:4. (Tr. 273)

[2] I note that the skills described in this paragraph reflect the goals and objectives on the May 11, 2011 IEP for G. (Ex. 3)