Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 25, 2012

May 30, 2012

June 8, 2012

Actual Record Closed Date: August 7, 2012

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 6, 2012

Attorney — Parents

Dr. CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 25, 2012

Attorney Mother — Parents

Dr., CSE Representative — DOE

Special Education Teacher (via telephone) — DOE

Unit Coordinator (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 30, 2012

Attorney Mother — Parents

Speech Therapist (via telephone) — Parents

Clinical Director (via telephone) — Parents

Dr. CSE Representative — DOE

Legal Intern — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 8, 2012

Attorney Mother — Parents

Clinical Director (via telephone) — Parents

Principal (via telephone) — Parents

Dr. CSE Representative — DOE

The matter of . came for hearing before me on April 25, 2012, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(b)(2). On December 15, 2011, I was appointed as impartial hearing officer. On January 15, 2012, I scheduled a pre-hearing conference on February 6, 2012 and scheduled this hearing to commence on March 8, 2012. On March 5, 2012, the parent requested an adjournment due to religious observance of the witnesses and I granted the adjournment request with the consent of the district representative. On March 5, 2012, this hearing was scheduled to continue on April 2, 2012. On March 16, 2012, the Dept. of Education (“DOE”) representative requested an adjournment of this case for unavailability of witnesses and I granted the district’s request with the consent of the parent. The hearing commenced on April 25, 2012, continued on May 30, 2012 and concluded on June 8, 2012. The parties moved to extend the compliance dates during the course of the hearing. 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 last compliance date was extended as a result of the request for post-hearing submissions. The parent’s representative submitted her post hearing closing statement on August 3, 2012. While, the DOE representative dated her post hearing closing statement on August 3, 2012, she emailed the post hearing statement on August 6, 2012. The current record close date is August 7, 2012 and the compliance date for issuing a decision is August 21, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (“CSE”). The hearing was initiated by the parents of L. on December 14, 2011, who challenge the May 17, 2011, review and recommendation of the CSE.

The parents unilaterally placed their daughter in the (“ ”), a self-contained special education program is a private school located in . It is a private entity lacking State Education Department approval from September 2011 to June 2012. The parents seek tuition reimbursement and prospective funding tuition and related services for the 2011-2012 school year. The parents placed their daughter , Program, which was offered by the DOE for July and August 2011 (Exh. 3).

On June 4, 2011, a final notice of recommendation (“FNR”) was sent to the parent to offer at (Exh. D)

BACKGROUND

is an 8.3 year old girl. She is currently in her third year (trans 339). She has a (Exh. A at 1). On May 17, 2011, District 21’s CSE classified with multiple disabilities and recommended be placed in a special class in a specialized school with a staffing ratio of or 12 students and a special education teacher and 4 paraprofessionals for a 12-month program (Exh. B at 1). The IEP recommended receive related services of individual Educational Hearing Services (“EHS”) 3 times per week for 30 per session; individual Educational Vision Services (“EVS”) 3 times per week for 30 minutes per session; individual ”) 4 times per week for 60 minutes per session; individual (“ ”) 5 times per week for 30 minutes per session and individual Speech and Language Therapy (“SLT”) 5 times per week for 45 minutes per session and a full-time paraprofessional (Exh. B at 20). The parents challenged the May 17, 2011 IEP review and disagreed with CSE’s placement. They maintained that District 21 failed to provide a free and appropriate public education (“FAPE”) and they placed at EHTA. The parents’ submitted 2 cancelled money orders dated December 22, 2011, to EHTA in the amount of $1,000. (Exh. K at 1 and 2); a canceled money order dated December 22, 2011, to in the amount of $900 (Exh. K at 3) and a cancelled check dated December 22, 2001, to in the amount of $ 7,100 Exh. K at 4). The parents maintain the $10,000 (Exh.

K) was from various loans (trans. 350). The parents also request reimbursement/prospective payment to of $132,915.00 (Exh. U) for the 2011-2012 school year. The parent testified that she and her husband paid $10,000 towards EHTA tuition and she owes the balance of the tuition as a true debt (trans 301-304; 350). The parent further testified that she and her husband expect the same income in 2012 as her husband earned as a teacher in 2011 (Exh. M) and that there was no other source of income or scholarship (trans. 353).

On January 11, 2011, a classroom observation was conducted by , Ph.D., a School , who noted that was sitting in a (Exh. 4). “She was looking around the room and . She was helped ) which made prerecorded statement, and was helped to put hand in glue for an arts project.” (Id.). Dr. interviewed ’s teacher who reported that was responsive in a , but made and could push buttons on a pop-up toy (Exh. 4).

On May 12, 2011, a speech and language progress report was conducted and the SLT provider from presented with across all areas of (Exh. 5 at 1). The SLT provider noted that she ” and was more (Id.).

On May 12, 2011, an educational progress report was conducted and that ’s special education teacher noted with her peers (Exh. 6 at 1). Her teacher noted presented with , and dependent on the for self-care needs including (Id.). The teacher reported was able to engage in reciprocal vocalizations to create kissing or sucking sounds (Exh. 6 at 2). The teacher further reported that communicated by moving her right or left arm toward her Big Mac, an assistive augmentative communication device (Id.). The teacher summarized that progressed in becoming more responsive to her people and her environment (Exh. 6 at 4).

On May 11, 2011, a progress report was conducted that provider reported that required complete assistance for of fine and development (Exh. 7).

THE DEPT. OF EDUCATION’S CASE

The Department of Education (“DOE”)’s case was presented in the testimony of Dr. who presented the Unit Coordinator assigned to who described the proposed class for for the 2011-2012 school year and the , , who participated in the May 17, 2011 IEP meeting.

The Unit Coordinator testified that was a school with approximately 100 children from kindergarten to fifth grade. She described that school had various 5 special classes with staff to student ratios of and 2 special classes of and 5 special classes of (trans. 18). She stated that there were 4 students in the proposed class in September 2011, and in addition to the classroom paraprofessional there were and a bilingual paraprofessional in the class (trans. 46-47;51). She further stated that the children in the were classified with with the addition of feeding therapy (trans. 22;30). She explained that 2 children in the proposed class were verbal, but the other children not able to interact independently or verbally and paraprofessionals encouraged peer communication by passing a ball (trans. 44).

The Unit Coordinator recalled that all the children in the 12:1:4 class received SLT, OT, adaptive PT (trans. 31) She further stated that there were 3 nurses in the building; all the teachers were NYS certified in special education and related service providers for and (trans. 23-24). She noted that there were programs to use assistive devices and the assistive technology team evaluated the children to determine if assistive technology would assist the children (trans. 32). She further noted that a parent coordinator conducted monthly workshops for parents and guardians to assist the parents and provide additional help at home (trans. 27). She described the assistive augmentative communication device (“AAC”) used in the proposed class included a Big Mac, an iPad, a SMART board (trans. 41). She stated that the children in the proposed class were evaluated and the children were placed into groups of 3 children or 4 children with similar academic levels and coaches provided differentiated instruction for the children (trans. 36).

She further stated that the reading and writing was taught to the children who were non-testable in terms of academic and cognitive levels by making eye contact and pointing to a picture (trans. 40). Math was taught by using big and small balls, shapes and bottles to teach the concept of big and small (Id.). Music was taught by using dots and holding the hands of the students in the proposed class to help them sing (trans. 41).

On cross the Unit Coordinator stated that the proposed class had 9 children: 5 boys and 4 girls aged 6 to 8 (trans. 53). She further stated that the children in the proposed class had varying levels of academic abilities from 3 months to 3 years (trans. 54). She maintained that the ’s goals on the May 17, 2011 IEP were similar to a student in the class as both had a goal of and using and had (trans. 55). She maintained that special education teacher had experience teaching children (trans. 57). She maintained that 4 children in the proposed class had . She could not answer if the special education teacher of the proposed class had experience with a child who was both vision and hearing impaired (trans. 58). She stated that the proposed class was located on the second floor, but there was an elevator. She further stated that the second floor had 2 gyms and an adaptive gym (trans. 59).

Ms. , certified , testified that the parent and the EHTA staff participated by telephone at the May 17, 2011 IEP meeting. She recollected that she signed as district representative and Dr. , who conducted the observation also attended the May 17, 2011 IEP because required vision and hearing services and Dr s. 70). She recalled that ’s then current teacher participated as did ’s provider and ’s SLT provider (trans. 68). She further recalled that the from DOE also participated (trans.69). She recollected that the team discussed ’s academic levels, strengths and weaknesses were discussed and reviewed and her present levels of ability were determined (Id.). She noted that some to related services were modified and goals were updated and that SLT was increased based on the input from the SLT provider to add feeding therapy and develop her muscles to all her to chew correctly (trans. 70-71). She further noted that the parent requested that attend a camp approved by DOE during the summer of 2011 (trans. 73).

On cross Ms. Fuchs could not recall the last time she observed a special class. She stated that a special class was in a specialized school in a therapeutic program with the related service providers in the school (trans. 77-78). She stated that the May 17, 2011 team considered a community school, but ’s health needs required more support (trans.79).

THE PARENT’S CASE

Ms. ., 's mother, the Principal of the , the Clinical Director and Therapist for at the EHTA testified in support of the parents’ claim for tuition reimbursement for the unilateral placement of at EHTA. The parents are seeking approximately $149,715 (the contract price ) less $6,800 (adaptive equipment not used) for at total amount of 142,915 for tuition for the academic year 2011-2012 (Exh. U). Ms. . testified that was diagnosed at an , and and had a (trans. 332). At age 1, received (trans. 333). She explained that had a (“ ”) and had (trans. 338). She further explained that had a moderate to severe hearing loss (trans. 339). She described ’s greatest strength was her love of her related service therapies (trans. 340). She stated that was and was . She stated that required help with all aspects of daily living (trans. 341). She did not recall if parent training was offered to her by the DOE (trans. 342). She recalled that after she received the FNR, she visiting the proposed placement at in July (trans. 343). She recalled that that the children in the proposed class were as physically handicapped as , they were developed than (trans. 344). She stated that she was concerned that there would be no coordination between the and (trans. 345). She recalled that she wrote to CSE on August 23, 2011 (Exh. C) to express her dissatisfaction with the lack of coordination between the therapists at the proposed school (trans. 346). She stated that the staff to student ratio at camp was (trans. 347). She opined that improved in her posture during the school year at and and increased her (trans. 348). She stated that she and her husband paid $2,900 to and borrowed $7,100 from a free loan organization and maintained that the loan had to be repaid (trans. 350). She stated that she still owed $ 132,915 and considered that amount of money a debt to the school (trans. 351).

On cross the parent explained that each child had a at camp (trans. 355). She maintained that the person who toured the proposed school at could not explain how the therapies were coordinated (trans. 359). She did not recall if she provided with an evaluation of ’s (trans. 362). She did recall that was at the age of 3 or 4 and that there was no need for more additional evaluations after the (trans. 363). She explained that at the age of (trans. 366). She further explained that at the age of and provided (trans. 368). She maintained that the staff at coordinated her therapies (trans. 369). She further maintained that did not have any experience with children with a dual diagnosis of (trans. 371). She recalled that the DOE settled the tuition with for the 2009-2010 school year and she received a scholarship for the for the 2010-2011 school year (trans. 377). She opined that she felt that she would as legally obligated to pay the balance of the tuition for the 2011-2012 school year when she signed the contract (Exh. L; trans. 379).

The testified that she was a NYS licensed and certified pathologist with a Master’s degree in communication disorders and a bilingual extension in Yiddish and was certified (trans. 95). She explained that she was trained in basic auditory and in augmentative communication devices (trans. 96). She further explained that she was ’s SLT provider for 3 years and that was at a 6 to 12 month range (trans. 99;106). She stated that she worked with ’s teacher and paraprofessional to incorporate communication and feeding goals into her care (Id.). She recalled that she participated in the July 17, 2011 IEP meeting and opined that required a smaller class with fewer children because of her needs (trans.101). She stated that was able to vocalize a g-gg-g sound and make a (trans. 103). She further stated that had an AAC device, a Big Mac, which allowed her to touch a button and hear a sound (trans. 106). She opined that progressed in her ability to move her body and recognize and touch her Big Mac (trans. 110-111). She maintained that this progress was important because was very spastic. She further maintained that she had and she ensured that (trans. 116). She recalled that had and that she used color and movement to increase ’s attention (trans. 118). She further recalled that was not able to identify her paraprofessional because she did not know if was able to distinguish between people (trans. 119). She noted that therapy on Tuesday and Thursday from 9:15 am to 9:45 am (trans. 122). She described the both she and another work on with and the feeding therapy and augmentative skills (trans. 124-127). She explained that progress was tracked by notes and reports (Exh. H). She explained that because was profoundly delayed the ABBLS methodology was used to determine ’s skill level (trans. 130). She opined that progressed in her ability to move her (trans. 132). She described ’s teacher, who had a BA in special education, was trained in dealing with children with (trans. 134) (I note the parent’s attorney submitted as a post hearing exhibit the NYS registration certificate for special education for ’s teacher.) She stated that she was not sure of the experience of the assistant teacher in ’s class (trans. 135). She further stated that she worked on ’s and opined that improved in her ability (trans. 139). She opined that at first was (trans. 140) and now and that slowly improved in her ability in learning to eye track (trans. 143) and made “ ” (trans. 147).

On cross the recalled that SLT sessions increased as a result of the IEP meeting on the May 17, 2011 (trans. 150). She stated that during the she worked with to interact with her environment and increased her (trans. 152). She explained that she and the other speech pathologist worked with the augmentative assistive technology specialist who came to twice a month (trans. 153). She explained the additional training she required to work with on the Big Mac was to determine if ’s response was deliberate or reflexive (trans. 155). She stated that did not provide a teacher, (trans.

157) despite the fact that responded to color (trans. 158). She stated that had difficulty differentiating visually and difficulty tracking (trans. 159;162). She further stated that was able to request additional food by pressing her hand or elbow to touch the Big Mac, (trans. 169) and maintained that used the Big Mac to make a deliberate choice (trans. 175). She acknowledged that she was not sure if recognized the toy or the Big Mac representation of the toy (trans. 173). She further acknowledged that EHTA did not have any vision records for (trans. 184). She stated there were 2 students at ’s cognitive level in ’s class who were classified with multiple disabilities aged 15 to 16 (trans. 184). She further stated that another child with a similar cognitive level as aged 8 was in ’s class in the afternoon (trans. 185). She stated that there were opportunities for to interact with children aged 6 to 8 who were visually impaired and hearing impaired (trans. 198).

The Clinical Director, testified that he was a NYS certified licensed OT provider (trans. 214). He stated that he was certified in therapeutic listening and in DIR (trans. 217). He further stated he provided OT services to for 3 years (trans. 221). He recollected that he participated in the May 17, 2011 IEP meeting and recommended 1:1 instruction for (trans. 222). He described her greatest difficulty was her muscle spasms and her hypertonicity and her mobility (trans. 223). He further described the physical supports used and a “ ” (trans. 230). He defined the system like a basket that allowed to stand, and step forward (trans. 233). He stated that there was an room with colors and bright lights to work on vision tracking and multiple swings to facilitate relaxation (trans. 239). He explained that was (trans. 246). He opined that progressed in . He noted that he was beginning to work with to move the spoon to her (trans. 251). He further opined that progressed in her ability to disassociate or to move a limb and improved in her ability to track with her eyes (trans. 265;267).

On cross the acknowledged that he was not a certified hearing teacher and there was no teacher has a certification in vision therapy (trans. 271). He opined that was able to recognize food items (trans. 275).

The Principal of , a holder of Master’s degree in special education, testified that was a special education program in a medical building on fifth and sixth floors with small rooms so each child could receive individual attention (trans. 285). The Principal stated that was in operation for 3 years and there were 30 students in the aged classified with , (trans. 287). She described that the entire staff therapists and teachers and the was a 12-month school (trans. 388-389). She stated that first came to ago and she . The Principal opined that now had emerging skills and was learning to scan (trans. 293). She stated that had devices (trans. 297). She stated that a tuition addendum (Exh. L at 3) reflected the fact that a piece of equipment was not purchased for so her tuition was reduced.

On cross she stated that there were 3 students in ’s class including in the morning aged and in the afternoon another student , who joined ’s class (trans. 315). She stated that she believed ’s teacher was a NYS certified in special education and while there was , the instruction could be with (trans. 317). She stated that the paraprofessional assisted with all her activities (Id.). She further stated that while there was a licensed NY teacher in the room, the licensed teacher could be working with assistant teachers, who may or may not have Master’s degrees in special education (trans. 325).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: Prong (1) the services offered by the Board of Education are inadequate or inappropriate; Prong (2) the services selected by the parent are appropriate; and Prong (3) equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) The district bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. Therefore, the district must establish prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5)

To meet its burden, the district must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child. Further, the fact that the facilities selected by the parent to provide special education services to their child is not approved as a school for children with disabilities by the State Education, as is the case here, is not dispositive of the parent’s claim for tuition reimbursement. (Florence County School District Four et al. v. Carter, 510 U.S. 7 [1993])

The parents’ attorney asserted many procedural flaws in the May 17, 2011 IEP: the IEP was not on the proper form; the proposed 12:1:4 program did not provide with sufficient support; the proposed 12:1:4 was too small; the IEP team failed to identify a specific school program at the IEP meeting; the CSE team members did not consider the requests of the parent and the EHTA staff or team them as full members of the team; the CSE team members lacked sufficient familiarity with the “special class in a specialized school; the CSE did not conducted timely and proper assessments and relied on teacher assessments; the CSE failed to provide an individual to interpret the instructional implications of ’s evaluations; the health paraprofessional was not a proper instructor for ; the IEP management needs were insufficient and there was no Functional Behavior Assessment (“FBA”) or Behavior Intervention Plan (“BIP”) to address the “excessive crying” noted in the IEP; the IEP lacked parent training and counseling; the goals developed were vague and not measurable and inappropriate; the IEP failed to include transition that the recommended placement was insufficient to offer program was predetermined (Exh. A).

The SRO considered the type of procedural flaw which would result in a denial of FAPE in (Application of the New York City Dept. of Educ., Appeal No. 08-037). The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]) 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 17, 2011 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). I find the parent failed to establish that the team did not have sufficient familiarity with a “special class in a specialized school. I credit the testimony of Ms. who signed as the district representative, who described the program (trans. 77-78) and I find the parent failed to establish that either Dr. Wilbur, the , who signed as psychologist or the Brooklyn Vision Supervisor, who participated were not familiar with the program. I further find the parent’s attorney failed to establish that Dr. was not able to interpret the instructional implications of ’s evaluations.

Moreover, I find that the parent and the staff, who participated in the IEP meeting on May 17, 2011, provided input and were treated as full members. I credit the testimony of Ms. Fuchs, who was present and stated the was developed with input from the parent and EHTA staff (trans. 68). I find the parent and the staff were actively involved in the May 17, 2011 IEP meeting. I further find no evidence or testimony to establish the program was predetermined.

The parents’ attorney argued that the DOE failed to conduct any evaluations or assessments and the IEP failed to include transitional goals to the program I find that the CSE had timely assessed ’s present levels of performance and had adequate and appropriate evaluative material to make an appropriate educational program. The parent’s attorney asserted that the CSE did not consider current evaluations in recommending a program. Testimony adduced at the hearing established that the CSE reviewed and relied on the EHTA educational report, the and report and all reports were issued 6 days prior to the meeting, and a January 2011 classroom observation (Exhs. 4 to 7). I find CSE was aware that ’s multiple issues and vision and hearing impairments. I find that CSE addressed these issues with a vision specialist and a hearing specialist. I find the May 17, 2011 IEP recommended a special education program and related services of as well as hearing and addressed ’s well documented deficits. I find the IEP that was developed by the CSE was reasonably calculated to provide meaningful educational benefit and that in fact CSE consider all the assessments and there was no deprivation of educational benefits.

The parents’ attorney asserted that the goals were vague and generic. I find that the goals and objectives did correspond to ’s needs and were appropriate. I find that the annual goals in each area of the identified need must be set out in the IEP describing what the student has a reasonable chance of attaining in a year. I find that the May 17, 2011 IEP indicated that in 1 year that would make a choice between 2 items with high contrast background and improve awareness (Exh. 2 at 8). I find there were annual goals to encourage her to participate in sensory activities and eliminate excessive crying (Exh. 2 at 9). I find there was no need for a . I find an annual goal to increase her ability to communicate her needs by use of a toy or a Big Mac and increase her receptive skills by songs, shaking her foot/lift her hands and turning towards a person and identity a “Mayer Johnson” symbol (Exh. 2 at 10). I find the and corresponded with ’s needs and provided sufficient information to measure the student’s progress throughout the year (Exh. 2 at 11-14). I further find there was a socialization goal with measurable short-term objectives including the use of the AAC device and a description of how ’s progress toward meeting the annual goals will be measured.

The parents’ attorney asserted that the DOE was obligated to provide parents with parent counseling and training as a related service on ’s May 17, 2011 IEP. In Appeal 10-036, the SRO held that the lack of listed on the IEP did not amount to a deprivation of FAPE. I credit the testimony of the Unit Coordinator who described workshops which were offered to the parents to assist the parents at home (trans. 27). Accordingly, I find the failure to included parent counseling and training as a related service on ’s May 17, 2011 IEP was not a denial of a FAPE.

The parents’ attorney challenged the lack of developed for to deal with . I find the IEP addressed crying with the annual goals to encourage her to participate in sensory activities and eliminate excessive crying (Exh. 2 at 9). Further, I find even the complete absence of an FBA did not render the IEP procedurally invalid as long as the IEP itself considers . See. A.C. ex rel M.C. v Bd. of Education of the Chappaqua Sch. Dist., 553 F.3d 165, 172(2nd Cir. 2009)

The parents’ attorney argued that the proposed class was not appropriate as the parent testified that the children in the proposed class were more cognitively developed than (trans. 344). 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, . (8 NYCRR 200.6(a)[3]) I find that the testimony adduced at the hearing satisfied the 4 criteria. I find that would be grouped with children with similar . I find there were children with the as as described by the district’s witness.

Based on the foregoing, I find the district to establish that FAPE was provided during the 2011-2012 school year as I find CSE offered an appropriate placement for the 2011-2012 school year.

Having found the district representative offered FAPE, I could stop my inquiry; however, I note that 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 very small class size. However, the staff of the gave no evidence that how were provided .

The parent asserted that the was appropriate because had made progress at the I find only opinion testimony from the witnesses regarding progress. I further note the evidence presented was replete with descriptions of her issues . I note that even if made some progress with these issues in the private program chosen by her parent, this does not automatically entitle the parent to reimbursement because a district’s obligation is not to provide a maximum education but an appropriate one. See, Rowley, 458 U.S. 176 (1982).

The district’s representative argued that the placement at was not appropriate because was not placed with appropriate peers at (IHO Exh. VIII at 7). Testimony adduced at the hearing established that was grouped with a 15 year old and a 16 year old each morning. I find this group was not appropriate. In light of ’s with the students, I am not convinced that is grouped appropriately for social development. The district representative argued that received 11 hours and 45 minutes of related services and there was inconsistent testimony as to whether a certified special education teacher would provide educational instruction (Id.). Moreover, it was not clear how instruction by the special educational teachers was provided to . It was not clear how much education was provided by ’s paraprofessional nor was it clear how progressed using the Big Mac. There was no testimony or documentation as to how the paraprofessional managed ’s assisted in using the Big Mac.

The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). Tthe parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities (Carter, 510 U.S. at 10). The student need not be the least restrictive environment (Frank G, 459 F. 3d at 364). “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”(Frank G, 459 F. 3d at 130). Parents 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. (Id. at 364-365). (See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that there was no evidence presented by the parent to establish how EHTA met the unique needs of the . Further, parents must prove that the chosen placement provides educational instruction designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007). The parents have not met this burden in the instant matter, where they have placed their child at The testimony of the parents’ witnesses from did not establish that the student’s program was tailored to the student’s unique special education needs regarding the related services There was no specific testimony or documentary evidence to determine how the levels of related service provision were determined given the student’s deficit areas. There was no specific testimony or documentary evidence regarding the specific related services or current evaluations to support the related services sessions.

In Application of a Child With a Disability, Appeal No. 08-013 the SRO denied tuition reimbursement for where the hearing record failed to “…specifically indicate how the program and services provided are specially designed to meet the student’s unique needs…”. There was no documentation submitted as to any formal educational assessments. I find there was no documentation submitted as to the ABBLs assessment or the data collection. I find that there was not sufficient information about how the program at individually met her needs in terms of her .

Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at the School for the 2011-2012 school year.

Having found that the DOE provided FAPE and the parents’ placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parents’ position.

Based on the foregoing I deny the parents’ request for reimbursement/prospective payment of the tuition at School for the 2011-2012 school year Dated: August 22, 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 THE RECORD ON APRIL 25, 2012

1 Omitted

2 IEP, 5/17/11, 1 p. District

3 Camp Acceptance Letter, 5/17/11, 1 p. District

4 Classroom Observation, 1/11/11, 1 p. District

5 Report, 5/12/11, 2 pp. District

6 Educational Report, 5/8/11, 4 pp. District

7 Report, 5/11/11, 2 pp. District

8 Contact Sheet, 5/4/11 and 5/17/11, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 30, 2012

A Demand for Due Process, 12/14/11, 5 pp. Parents

B IEP, 5/17/11, 20 pp. Parents

C Letter, 8/23/11, 1 p. Parents

D FNR, 6/4/11, 1 p. Parents

E Daily Schedule, 2 pp. Parents

F Program Description, 1 p. Parents

G Speech Progress Notes, 9/11-01/12, 22 pp. Parents

H development sequence, undated, 1 p. Parents

I Educational Progress Report, 5/8/11, 4 pp. Parents

J Attendance sheets, 9/2011-2/2012, 1 p. Parents

K Proof of tuition payments, 2011/2012, 4 pp. Parents

L Tuition contract, 9/6/11, 4 pp. Parents

M 's tax return, 2010, 3 pp. Parents

N Attendance sheets, 9/11-4/12, 1 p. Parents

O Progress Notes, 2/2/12-4/30/12, 13 pp. Parents

P Attendance Sheets, 9/11-5/12, 1 p. Parents

Q Education Progress Report, 3/1/12, 4 pp. Parents

R Progress Report, 2/28/12, 3 pp. Parents

S Progress Report, 1/12/12, 2 pp. Parents

T Progress Report, 2/28/12, 2 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 8, 2012

U Tuition Affidavit, 6/1/12, 1p. Parent

I Extension of Compliance, 2/28/12, 1p. IHO

II Extension of Compliance, 3/16/12, 1 p. IHO

III Extension of Compliance, 3/16/12, 1 p. IHO

IV Extension of Compliance, 4/25/12, 1p. IHO

V Extension of Compliance, 6/8/12, 1 p. IHO

POST HEARING SUBMISSIONS

VI Extension of Compliance, 7/16/12, 1 p. IHO

VII ’s Closing Statement, 8/3/12, 22 pp. IHO

VIII Dr. ’s Closing Statement, 8/3/12, 17 pp. IHO

IX Cred entials of Ms. , undated, 2 pp. IHO