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 22, 2012

April 16, 2012

April 24, 2012 Actual Record Close Date: May 20, 2012 Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 22, 2012

Attorney — Student

CSE 8 Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 16, 2012

Attorney — Student

Father — Student

Mother — Student

CSE Chairperson Designee — DOE

CSE Representative (via telephone) — DOE

Special Education Coordinator (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 24, 2012

Attorney — Student

Mother — Student

Assistant Director- (via telephone) — Student

CSE Chairperson Designee — DOE

Introduction: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400[f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by (“ ”) and (“ ), the Parents (“Parents”) on behalf of , the student (“Student”), through their attorney, ,Esq., from the Law Offices of , by filing a Due Process Complaint dated January 11, 2012 with the District.

The Parents are alleging that their daughter, , was denied a free and appropriate public education (“FAPE”) for the 2011-12 school year and are seeking tuition for her unilateral placement at the ”) for said year.

There were three days of hearings in this matter. Hearings were conducted on March 22, April 16, and April 24, 2012. Extensions were granted in this case making the final compliance date May 25, 2012. A list of Exhibits is attached as Exhibit A. The Parents, the District, and the IHO submitted exhibits.

Background

This case involved a ) year old student. During the 2011-12 school year, attended ”) where the Student was unilaterally placed by the Parents.

With respect to the 2011-12 school year, an Individualized Education Program (“IEP”) was developed on May 2, 2011. D-3. Pursuant to the May 2nd IE9eP, was recommended for an , two times per week, thitry minutes each time in a 3 to 1 ratio.

The District issued a Notice of Recommendation dated August 8, 2011. D-4. It stated that the offered program shall be Collaborative Team Teaching at the School for Law, . D-4. The Parents sent the District a letter on August 17, 2011 indicating that they would visit the placement in September to see if it can meet ’s needs. The Parents reserved the right to put in if they did not find the placement to be appropriate. P-A. On September 20, 2011, the Parents sent a letter to the District rejecting the IEP placement and advising the District that they would keep at for the 2011-12 school year and would seek reimbursement for the cost of ’s tuition. P-B.

The Parents entered into a 2011-12 Enrollment Contract with on February 4, 2011. P-E. The Parents filed a Due Process Complaint on October 20, 2011 under case number 135860. D-1. It was then withdrawn without prejudice and re-filed on January 11, 2012 (IHO-I) and I was appointed as a hearing officer on January 13, 2012. Position of the Parties Parent’s Case The Parents called two witnesses, and , and placed seven (7) documents in evidence. P-A – P-G.

The Parents’ first witness was . She is the Assistant Director of and has been there since September 2011. She started to work with in 1998, left and went to Ethical Culture where she was the learning specialist and director of their Learning Center, and was invited back to to be part of the upper school this year. Tr. 110, Tr. 114, Tr. 118. She has a Master’s Degree from Columbia University Teachers College in learning disabilities and her undergraduate degree was also in education. Tr. 111. She never got her certification because she never was fingerprinted. Tr. 112.

Ms. testified that as assistant director she works with both students and teachers. Tr. 113. She works with teachers to help them understand the learning profiles of each student; to help develop curriculum; and to provide for professional development. Tr. 113. She also works with students to understand their learning profiles, where they struggle, where they need support, and where their strengths are. Tr. 113.

Ms. testified that there are three schools, an elementary school, middle school and upper school. Tr. 114. There are 54 students in the upper school. Tr. 114. The three schools are in separate buildings. Tr. 114. Right now in upper school there is a ninth and tenth grade, but each year they add a grade. Tr. 115. Ms. testified that the profile of the students at the school is that they often have language based learning disabilities and they include students with receptive and , , , auditory processing issues, issues, and other issues of a similar nature. Tr. 115. The average class size for a small group is and for a large group is about 13:2. Tr. 115.

Ms. testified that is a full-time special education program. Tr. 116. She testified that because it is a special education program, they use a variety of practices including a multi-sensory approach where appropriate. Tr. 116. There is professional development for the teachers. In addition they have small class sizes, individualized support and differentiation, modification and accommodations based on the individualized needs of the students. Tr. 116.

Ms. testified that she is familiar with because she serves as her adviser. She has known her since September. Tr. 117. She stated that an advisor is “the contact person that looks out for [that student’s] academic well being. Tr. 117. She has the overview of how she is doing in all her classes, and communicates with her teachers and parents about her both academically and within the social context of the school. Tr. 117. She meets with EW every morning and then three times a week for study hall with five other advisees. Tr. 118. She meets with the students in the morning to make sure they are prepared for the day. Tr. 119. When she meets with during study hall it is to see what she might be missing as far as homework and what she may be having difficulty with, and basically to organize and manage her. Tr. 119.Ms. also speaks with ’s classroom teachers on a regular basis to find out how to support her. Tr. 119.

Ms. described “as a very visual student … she’s very and when information is presented in that manner, in that language, she does well. She enjoys any opportunity to express her knowledge in that way, and gain knowledge through artistic expression… she’s also a good athlete, and a key member of the athletic team…” Tr. 120. Ms. testified that has difficulty with writing projects. She also stated that “she has weak memory and has difficulty remembering things over time. Tr. 121. She stated that she needs a great deal of one to one support in order to outline ideas, to express her ideas, to recall information, etc. Tr. 122. She also indicated that she has difficulty with executive functioning including being able to determine what is salient information and organizing it in a coherent way. Tr. 122. She has difficulty knowing how to organize long term projects and how to break things down. Tr. 122. Ms. testified that she is very good at masking her difficulties and appearing over confident when in fact she is not managing the material. Tr. 122.Ms. testified that ’s program is departmentalized. For English and writing, her teacher is Mr. . He has a Bachelor’s degree in English and a Master’s degree in Curriculum and Instruction. He is not certified. Tr. 123. For reading, is in a group with five students, she needs a great deal of support to retain information, to keep track of characters and events, to make sure that she’s reading words effectively and decoding properly. Tr. 123-124. She also needs this support in writing, to be able to recall the information so that she can write a piece and break it down into individual steps. Tr. 127.

Ms. testified that the writing program that is utilized is ’s Basic Writing Skills Program and it is helpful to because it breaks down the information into very small, manageable chunks. Tr. 128. Ms. stated that the class size of five students is important for because it provides her with the individualized support that she needs it in order to complete her assignments. Tr. 129. Ms. stated that is working on a midseventh grade level in reading and a sixth grade level in writing. Tr. 130.

Ms. testified that the goals that are being worked on for reading include being able to write a cohesive essay, a thesis statement, being able to analyze and understand figurative language, look at multi-syllable decoding and sight words, and self edit or self correct. Tr. 131. Ms. testified that is making progress and this progress is seen through informal assessments of her work, tests and homework. Tr. 131. She will have a formal assessment at the end of the year. Tr. 132.

For math, Ms. testified that is in Mr. class and he has a doctorate in Mathematics Education from Oxford but is not certified. Tr. 132-133. Ms. stated that math “is an area of relative strength for since it is visual.” Tr. 133. She stated that struggles with word problems because of the language component and needs to be reminded of procedure when time has elapsed after she is taught a concept. Tr. 134.

In math is in a class with three other students and one teacher. This is significant for because it provides her with individualized support and the continued reinforcement she needs to make progress. Tr. 135. In math, they use a multisensory approach and a lot of visual presentations, manipulatives, etc. Tr. 136. They even use the gymnasium to introduce and reinforce math concepts. Tr. 136. For EW, Ms. stated that the multisensory model is important because “the concepts are being introduced in multiple ways, going to various pathways in her brain, which means she is more likely to retain the information and conceptualize it in a way that she can retain it. Tr. 137. is in a high seventh grade, low eighth grade math level. Tr. 137. Ms. testified that she is making progress in math and this is seen with quizzes and tests. Tr. 138

Ms. testified that also takes American Sign Language, history, science, multimedia publications and gym. Tr. 138. In American Sign Language, she is in a class; in history it’s and in physics it is In history, she is making progress with a great deal of support. This is because it is difficult for her to recall information and it is necessary that the information be reinforced visually and auditorally. Tr. 140. She also needs help to express her ideas on paper. Tr. 142. In , Ms. stated that she “tends to shrink into the background and rely heavily on the work of her peers in order to get through.” Tr. 141. Ms. says she does this because she doesn’t want her peers and the teachers to know that she doesn’t understand the material. Tr. 142. Ms. states that they work with EW on a basis and individualize and work in small groups for lab work. Tr. 142. Ms. testified that she is making progress in physics with a lot of support. Tr. 143.

Ms. testified that the school is helpful with ’s organizational and time management needs in many ways. They put the assignments on google apps so she doesn’t have to write them down and the documents can be worked on by the teacher and student on-line. Tr. 144. They also break down long-term projects into manageable pieces and through google apps send reminders to students about upcoming projects. Tr.

144. Ms. testified that in some ways she has improved her organizational skills this year and in other ways she has not. Tr. 144. She stated that “It’s not an area of strength for her. It’s an area that she needs to develop.” Tr. 144.

In cross examination, Ms. stated that is a classroom leader and is confident with her peers but she doesn’t advocate for herself academically. Tr. 146. Ms. stated that this is an on-going issue with students in the upper school. works with the students so they understand their own learning profile and are able to self advocate. Tr. 147.

Ms. testified on cross that she believed that if is in a class with many students, that she will be highly aware of her inability or difficulty with content and is likely to attempt to remove herself and become “like wallpaper.” She stated that if she does this in a special education setting with thirteen students and two teachers, she would definitely do it in a class of twenty kids and one teacher. Tr. 148.

Ms. further testified that there are fifty-four students in the upper school. She stated that “… it’s a small environment and [ ] is not going to get lost within the community. It allows us to have teachers to have ongoing dialogue about , formally and informally ….” Tr. 15. Ms. testified that all the students in the school have special needs and this is significant for because she would be “horrified” if she were the only one that was identified as needing help. Tr. 151.

Ms. testified that does not receive by pull-out at however “the and language pathologist moves into classrooms and works with the students generally helping the students with reading and writing assignments. Tr. 152. The speech pathologist works on organizing the students’ thoughts and getting them down on paper. Tr. 152.

Ms. testified that she is familiar with ’s IEP for the 2011-12 school year and uses it as a framework. Tr. 152. Ms. testified that the teachers at are working on the same goals as are on ’s IEP. Tr. 155. Ms. testified that they are also working on executive functioning issues like time management skills, writing down assignments and self advocacy. Tr. 155-156. Ms. testified that overall she feels that is making slow but steady progress with a good deal of effort on the part of her teachers and on ’s part. Tr. 154.

On cross examination, Ms. testified that when graduates she will receive a school diploma and that does not follow the core requirements for New York State. Tr. 159.

Ms. stated that the bulk of ’s difficulties are time management, the saliency of information read and difficulties with memorization and reading. Tr. 167. She also testified that memory is an issue for her, any kind of term long term retention of information and global executive functioning issues. Tr. 167.

Ms. testified that based on the Psycho-educational Re-evaluation Report, ’s full scale IQ is in the average range. Tr. 16; D-5. However, Ms. stated that in her opinion, requires a full-time special education program due to her issues with time management, saliency and difficulties with memory. Tr. 179.

Ms. testified on cross examination that in May of 2011, Ms. indicated that reading comprehension was at the mid-seventh grade level and writing was at a 6.5. Tr.

173. In explaining why only experienced five months of progress in writing, Ms. testified that “ … it’s like two steps forward, one step back in some instances so it can happen in starts and stops…” Tr. 174. She also indicated that her progress may be slow because when moving from middle school to high school more demands are put on the Student. Tr. 174. Ms. stated that to really assess her progress, they would have to do a final assessment and they are only done once a year. Tr. 176.

Ms. also testified that she is in advisory and American Sign Language with students between the ages fourteen to sixteen, ninth and tenth graders, and for history and physics she is just with ninth graders. Tr. 181.

The next witness was mother. The mother described her daughter as creative, aware of her surroundings, athletic, very bright and loving. Tr. 187. She works a two jobs and her employer has told ’s mother that she is very responsible, never late and that the kids she works with love her. Tr. 185. The Parent testified that has difficulty organizing her thoughts, writing essays and spelling. Tr. 185. She also has a difficult time accepting that she doesn’t understand things and may need help. Tr. 185.

The Parent testified that was adopted when she was three and required special services in speech. She then went to until the end of third grade and has been at MMFS from fourth grade until now. Tr. 187. She has always had an IEP. The Parent testified that in the spring of 2011 she attended a CSE meeting with Ms. , Ms. , her husband and her daughter. Tr. 187. advised the CSE that she was accepted at Art and Design and the Parents expressed their concern about her transition to high school. Tr. 188. The mother testified that she informed the CSE at that time that they had not made a decision about whether would attend Art and Design. Tr. 189. The Parents were concerned that the classes were larger than at and that Art and Design might not be able to provide the services that needed. Tr. 189.

The Parent testified that when the placement recommendation was made at the CSE meeting she believed that was being placed in a class with twelve students and two teachers and that all the students were receiving special education. Tr. 190. She stated that “They mentioned …co-teaching program, which we took to mean the same as before.” Tr. 190. At the close of the meeting the Parent reiterated that they hadn’t made a decision and Ms. acknowledged that it was a difficult decision. Tr. 192. The Parent testified that close to the start of the 2011-12 school year they received a placement at John Jay. Tr. 192. She started that “We were stunned. We live in the neighborhood and we were familiar with the school and … a lot of parents don’t send their kids to that school…” Tr. 192. She testified that her concern was that it was a “tough school.” Tr.

192. They responded to John Jay by writing a letter advising them that the school was closed and they would visit when it reopened in September. Tr. 193; P-A. They stated in the letter that if they found that “John Jay didn’t provide the services that [EW] needs,…we would keep her at [ ].” Tr. 193. They had not rejected Art and Design at this point in the summer. Tr. 193.

The Parent testified that they visited John Jay soon after it opened in September. Tr. 195. ’s mother stated that “Upon entering we saw a huge guard which already indicated to [ ] might not feel comfortable in that environment.” T. 195. The Parent Coordinator showed them around. Tr. 197. They visited a classroom of general mainstream students and special needs students. Tr. 195. The Parent stated there were approximately twenty students in the class. Tr. 196. The Parent testified that there was an emphasis in pre-law in the program at John Jay and that she didn’t think it was appropriate for since she was shy and that law required a lot of reading and memorization. Tr. 196. The Parent Coordinator told them ’s basic subjects would be with supports and the rest of her classes would not have support. Tr. 197. The Parent testified that after leaving the school they wrote a letter to the CSE expressing their concerns about John Jay specifically that the classes were too large, the building had too many students and wouldn’t get the special attention she needed. Tr. 197.

The Parent testified that if the District has provided with an appropriate program, she would have considered it. Tr. 198. She testified that was in public school until fourth grade. She also stated that provided a lot of support for s organizational delays and time management needs and they school has helped her with self advocacy. Tr. 198-199.

The Parent testified that they signed a contract with because they wanted to keep their options open. Tr. 200. She testified that she believed that they would have gotten back their deposit if they sent to a public school and they would have been able to get out of the contract. Tr. 200. According to the contract and the Parent’s testimony, the tuition was $45,960 but they received an $8,000 scholarship. Therefore, they have paid $37,960 for the 2011-12 school year. Tr. 204; P-F. ’s mother testified that her daughter is doing fine at , she is still working on her and the small groups are beneficial to her. Tr. 200-201. The Parent testified that she has been very challenged and interested in the subjects she is being taught. Tr. 201. She feels that she has made progress because her current events knowledge is good, her vocabulary has increased, she participates in class discussions and in team sports. Tr. 202. The Parent stated that the fact that the homeworks are posted on the internet has helped her a great deal. Tr. 202.

On cross examination, the Parent testified that works for the parents of students from and teaches three students at the middle school for one hour each week. She stated that EW is punctual. Tr. 203. The Parent also testified that applied to Art and Design and several other schools. Tr. 214. When they visited , they stayed twenty to thirty minutes. Tr. 217.

The Parent also testified that she did not disagree with the statement that was a leader. Tr. 204. She stated that “ is very well liked and she is fashionable. People want to be her friend. She’s popular.” Tr. 224.

The District called two witnesses, and , and placed six (6) documents into evidence. D-1 – D-6.

The first witness that testified for the District was . She has worked for the Department of Education for eight years. Tr. 23. She has been working in the Special Education Department at Secondary School for Law and has been Department Coordinator for two years. Tr. 23. She has her license in Special Education, Social Studies, 6 through 12 and is licensed by New York State. Tr. 23-24.

Ms. testified that as Special Ed Coordinator, she is in charge of the IEP’s and writes many of them. She also holds the department meetings, checks with the Special Education students and monitors their progress and goals. Tr. 24. She also provides instruction for academic intervention for the grade self contained students. Tr. 24. She further testified that she taught in an integrated co-teaching (“ICT”) math class for graders, for the first semester for the 2011-12 school year. Tr. 25. She stated that in addition to writing IEP’s, she also attends IEP meetings as the district representative or the special education teacher. Tr. 29.

Ms. testified that in the middle school they have a 12-1-1 class as well as ICT classes and in the high school we have ICT, resource room and self contained classes. Tr. 24-25. Ms. also testified that there are two parent-teacher conferences a year and the Parents receive report cards. Tr. 28.

The Secondary School for Law has sports and extracurricular programs for its students. Tr. 26. Specifically they have a basketball team as well as afterschool programs through PRT and another outside organization, where they offer tutoring as well as cooking classes, dance classes, cheerleading and different sports or programs depending on who they get to come in and teach the kids. Tr. 26.

Ms stated that for students that need extra support at Secondary School for Law, there is tutoring, Regents and RCT prep and afterschool programs geared towards academics. Tr. 27. Also, the teachers make themselves available at lunch and during free periods to support students that need assistance. Tr. 27. In terms of students that need assistance with social development, Ms. stated that they have a number of social workers as well as a guidance counselor. Tr. 27-28. They also have other programs for students going through crisis situations as well as group counseling for select students. Tr. 28.

Ms. testified that there is currently a grade integrated co-teaching program at the Secondary School for Law and there was a seat available for at the start of the 2011-12 school year. Tr. 29. She testified that the ICT class is departmentalized which means that “the Special Education teachers as well as the general education teachers are assigned classes according to what their licenses and background is in and they work in their departments. So the science teacher has a science certificate and a special ed certificate as well…” Tr. 29-30. For the students, Ms. stated that this means “they receive quality education from teachers who have a background in the subject area.” Tr.

30. To provide mentorship and guidance to the grade ICT teachers, they have a number of department supports and the network comes in and supports the ICT teachers as well. Tr. 31. Ms. provides supervision and mentorship and observes each class once a month to make sure it is running smoothly. Tr. 37. In the school, there is just one 9th grade ICT class but four different special ed and general ed teams . Tr. 37. Basically she testified that the students in the ICT class travel together but since they have flexible programming, students that excel in math might have a different math class. Tr. 32.

Ms. testified that there are presently 15 students in the grade ICT class, but there were 20 last semester. Tr. 33. There are seven special education students in the class and their classifications include speech and language impairments and learning disabilities. Tr. 33. In addition one of the students is classified as . Tr. 33. That particular student had a traumatic experience growing up but does not present any significant behavior that interferes or disrupts the class in any way. Tr. 37. She does not have a crisis paraprofessional but she does have a . Tr. 39. She did, however, testify that there are students, both in general and special education in the ICT class and in all classes at the high school, that Ms. testified have “bad days, and they definitely act out, and we have deans and we have certain procedures that we follow.” Tr. 33. On cross, Ms. testified that it can happen as much as once a week or once every other week in the ICT class and in general for the whole school building. Tr. 60.

Ms. testified that the students who attend the ICT class may have counseling, speech and/or occupational therapy as a related service. Tr. 35. Ms. testified that if students are struggling in the ICT classes, or need academic support, they are put in resource room or in after school tutoring. Tr. 36. She also testified that the teachers in the ICT classes do small group instruction when necessary. Tr. 36. She stated they may take students who were absent or struggling and re-teach a lesson or they might have a stronger student helping a weaker one. Tr. 36

Ms. testified that they differentiate instruction, however, with the common core standard, they try to teach all students on grade level and then try to make accommodations using multi-sensory learning approaches and other methodology to get them to understand the grade level material. Tr. 37.

Ms. testified that for reading they don’t have a specific curriculum, it is developed by each department. Tr. 37. This is also the case in math and the curriculum is developed by the math department and is geared toward the common core standards. Tr. 37-38. The students in the ICT classes may have Regents classes including Integrated Algebra and Living Environment depending on what they took in middle school. Tr. 38. To help the students, Ms. testified that they have and on Saturdays. Tr. 38-39. Ms. testified that students in the school take law electives and are selected for the school based on their grades, ranking and interest in law. Tr. 41.

Ms. testified that she only knows because she reviewed her IEP, for this hearing. Tr. 39. Based on her professional opinion, she stated that the Secondary School of Law could meet ’s needs since the school has a speech and language therapist, an integrated co-teaching program and qualified special and regular education teachers. Tr. 39.

On cross examination, Ms. testified that she is in the grade ICT classes approximately once a week for 15-20 minutes each time. Tr. 43. She also testified that there are 500 students in the middle school and high school and that there are three other schools in the building, . Tr. 44. In addition to the core subjects, the students take a law class, gym and language or dance. Tr. 47. For the law and Spanish class there is only one general education teacher. Tr. 48; Tr. 49. For gym, there is a general education teacher and there are special education paraprofessionals assigned to the gym. Tr. 48.

Ms. testified that special education students have the option of getting a local, Regents or advanced Regents diploma. They all take Regents and depending upon their grades, they can get a Regents, local or IEP diploma. Tr. 47.

Ms. also testified on cross that ’s parents came to visit the School for in October 2011. She also testified that they are phasing out the middle school and that the Secondary School for Law is going to be changed to a more generalized program. Tr. 55.

The next witness was . She is a school psychologist with the CSE. Tr. 62. She has a Master’s Degree in Social Psychology and she is a certified school psychologist. Tr. 64. She is currently employed at CSE- and is in her fifth year, however, she has been an employee of the District for fourteen years. Tr. 64; Tr. 65. Her responsibilities include assessing students as well as holding IEP reviews for them, developing the IEP’s, speaking with schools and parents, and coordinating all other duties in connection with her role. Tr. 65. Before this she was a general educational teacher in high school. Tr. 65.

Ms. testified that she is familiar with because she attends and that is a school that is on her caseload and she is responsible for developing IEP’s for those students. Tr. 66. She testified that her and her team were responsible for developing ’s IEP for the 2011-12 school year. Tr. 66; D-3. The parties present at the annual review were Ms. , both parents, , a general education teacher and , ’s teacher from . Tr.

67. Ms. testified that although there is always a para invited to the meeting, none attended. Tr. 68. Ms. did not recall the Parents objected to the lack of the para during the meeting. Tr. 68. The general education teacher’s duties at the CSE review, according to Ms. were to participate in the meeting and take notes for the IEP summary notes. Tr. 68. The documents that were considered at the meeting were the progress reports, school reports and any previous psychological reports. Tr. 68. Ms. testified that she reviews these documents in preparation for the meeting. Tr. 69. She testified that she specifically reviewed the April 28, 2010 Report. D-5. The conclusions on this report with respect to ’s intellectual functioning according to Ms. were that “… she had significant strengths in her non-verbal reasoning skills. Everything else is average with regard to verbal, working memory. She did have noted difficulties with processing speed as well.” She stated that that overall she had average intellectual abilities which means “she had everything neurologically present to learn.” Tr. 70. Ms. indicated that no significant changes were made to s IEP between 2010-11 and 2011-12. Tr. 71. The placement recommendation that was made for 2010-11 was for an ICT class. Tr. 71.

Ms. testified that at the CSE meeting, ’s academic functioning was discussed. Tr. 71. She testified that they discussed her progress and her strengths and weaknesses. Tr. 72. Specifically, Ms. stated that “The reading, the reading comprehension, she was in a according to the teacher’s estimate. Her writing skills were in sixth grade. She was given an untimed test by the school, a standardized test… and she was about mid-seventh grade as well for reading. And for math, she was also about the same, . I’d say about mid-sixth grade.” Tr. 72. Ms. stated that since was in eighth grade at the time of the IEP meeting, she had a year to a year and a half delay. Tr. 73. She testified that it is not just typical for special education students to be below grade level but also for general ed students to be about a year behind. Tr. 70. She stated that its rare to find students who are at least on or above grade level. Tr. 73.

Ms. testified that it was her understanding at the meeting that EW would be placed in a public school for ninth grade. Tr. 74. The Parents stated that they had looked at Art and Design. Tr. 74. It was Ms. ’s understanding that the Parents were considering an ICT placement at Art and Design. Ms. testified that an ICT placement would be appropriate for EW for the 2011-12 school year because she had processing difficulties and two teachers in the classroom would be helpful. In addition, in terms of accessing the general education material the ICT teachers would be able to scaffold the material and it would also set up a model for a cooperative learning experience. Tr. 75. They also thought this would be a good transition as she moved from to a public school. Tr. 75.

Ms. testified that she is familiar with because she has worked with the school for three years and it is a specialized school where the majority of the students have special needs. They specifically work with students that are language impaired but bright. Tr. 76. She would basically not have access to general education students at

MMFS. Tr. 76.

On cross examination, Ms. testified that attended the meeting and her Parents expressed apprehension about transitioning into a different environment from

MMFS. Tr. 80. Ms. also testified that Ms. was not teaching in a classroom at the IEP meeting and that Ms. had not taught in a classroom since 2003 or 2004. Tr. 80-81. She also testified that in order to get into Art and Design you need to apply and provide them with a portfolio. Tr. 84. She stated that the Secondary School for Law did not have an application process. Tr. 84.

Ms. testified that usually goals are reviewed at the meeting ,the teacher gives us input and the team takes a look at the goals from the year before to see if they need to be kept or modified. Tr. 87. She testified that the goals were reviewed specifically with the teacher from . Tr. 87. She testified that there were goals that were developed for writing due to writing difficulties noted by the teacher. Tr. 87. She also noted difficulty with reading comprehension, word problems and how to approach them, and content area vocabulary words specifically in the areas of science and history so goals were created for these areas. Tr. 88. In addition, there are speech goals for therapy. Tr. 88. When questioned on cross about time management and organizational goals, Ms. indicated that she did not see any of these issues on page three, four or five of the IEP. Tr. 88-89. She stated that if the teacher didn’t “express it up to us as a noted difficulty”, it would not be addressed as a goal on the IEP. Tr. 89.

On redirect, Ms. testified that with respect to executive functioning issues, we asked the teachers about academic management needs when creating goals. She testified that there were academic management needs on ’s IEP that would address her exertive functioning including preferential seating, extra time on tests, time to process information presented, the use of graph papers, graphic organizers, etc. Tr. 96

Ms. testified that at the CSE meeting they discussed ’s transition plan and Ms. stated that the student should have been going for a Regents Diploma in terms of her academic abilities given all the supports in place. Tr. 91. Besides the ICT program, the team also discussed general education with supports but felt needed a more supportive environment. TR. 92. Ms. testified that the Parents were apprehensive about moving the student from and the team discussed it and felt hopeful that she would succeed. Tr. 93. Ms. stated there were no strong objections from MMFS and her teacher was apprehensive but felt that was moving on. Tr. 94. Ms. felt that the ICT program was the least restrictive environment for . She did not feel she needed anything more restrictive given her level of academics. She also stated that given that since she was a leader at , she would have self advocacy skills and confidence and would be able to ask for help if she needed it. Tr. 98.

Although Ms. thought was considering going to Art and Design since she was accepted, she testified that the team did not make a placement recommendation based on that school. Tr. 100. She stated that “when I work on the IEP, I work on the premise of the student’s abilities… But I can’t base it on one particular school. I just have to go by the program and the student’s abilities. Tr. 100.

She further testified that the CSE placement officer made the recommendation for the Secondary School of Law because they have to make an offer of a placement, however if were going to attend Art and Design, the records would indicate that or a chage would be made. Tr. 99.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents allege that the District did not comply with the procedural requirements of the IDEA. The Parents allege that the CSE was improperly constituted since the “appropriate teachers were not present.” IHO-I. In accordance with the May 2nd 2011 IEP, the following parties were present: the Parents, the Student, , the District representative and school psychologist, , a general education teacher (District), ,a special education teacher ( ). Tr. 66; D-3. Although not required, Ms. testified that there is always a paraprofessional invited to the meeting but none attended and the Parent did not object to the lack of the para. Tr. 68. In addition, no parent member signed in and no objection was made to the lack of a parent member. D-3. Accordingly, the CSE consisted of all legally mandated members as required by Federal and State regulations. (see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]. In addition, although allegations were made in the Due Process Complaint (IHO-I) indicating theat the CSE did not follow proper procedures in convening the meeting, there was no evidence indicating that this was the case.

The Parents also alleged in the Due Process Complaint (IHO-I) that the CSE did not review the appropriate documentation in making its recommendation, however, in the Due Process Response, the District indicates that the CSE reviewed the most recent evaluation, related service progress reports and evaluations, teacher progress reports and an audiological evaluation from June 28, 2010. D-2. In fact, Ms. confirmed that she specifically reviewed the April 28, 2010 Report, noting that had average intellectual abilities. Tr. 70. In addition, with respect to her academic functioning specifically, Ms. testified that “we discussed her progress with the teachers, who gave us teacher estimates and a more narrative description of how [ ] was progressing from the year before, and what her were.” Tr. 72. Therefore, the May 2nd2011 IEP that was developed, was designed to address ’s needs and was based upon the evaluative information and reports presented at the CSE meeting. D-3.

It is clear that the Parents and ’s teacher, Ms. were present and participated in ’s CSE meeting and the development of the IEP. In fact, Ms. testified that Ms. was an active participant at the meeting, as were the Parents and went through ’s strengths and weaknesses, as well as her academic, performance and learning characteristics, her social/emotional performance and was instrumental in helping to review and develop goals for the Student for the 2011-12 school year. Tr. 87; D-3.In fact, Ms. testified that at the CSE meeting, the teacher went through the goals from the 2010-11 and developed goals to address her writing difficulties, reading comprehension issues, difficulties with word problems and how to approach them, and content area vocabulary words difficulties. Tr. 87-88.

With respect to executive functioning issues relating to time management and homework completion, Ms. testified that if the teacher didn’t express it as a noted difficulty, it would not be addressed as a goal on the IEP. Tr. 89. Although it was indicated on the Psycho-Education Re-evaluation dated April 2010, where Dr. stated that the homeroom teacher noted that “one goal for [ ] is to take more responsibility for completing all of her homework assignments,” it may not have been a noted issue in May of 2011 when the IEP was developed. She also indicated that on the IEP, executive functioning issues were dealt with under academic management needs. In that section of the IEP, it indicated that would need preferential seating, extra time on tests, time to process information, the use of graph paper, graphic organizers, etc.

In addition, here was no testimony indicating that anyone objected to the appropriateness of the goals and that all parties had the opportunity to provide input into the development of the goals. There is also evidence that the teachers and related service providers are using the goals that were prepared in the May 2nd IEP (D-3) and have found them to be appropriate. Tr. 155.Therefore, based on the foregoing, I have carefully considered the annual goals contained in the May 2nd IEP (D-3) and conclude that the goals as written target the student’s identified needs.

The Parents also alleged in their Due Process Complaint (IHO-I) that “the CSE inappropriately changed this student’s recommendation from a 12:1:1 special class program to an integrated co-teaching program.” There is no IEP form the 2010-11 school year so that the placement recommendation can be verified, however, Ms. testified that no significant changes were made to ’s IEP between 2010-11 and 2011-12 and that the placement recommendation that was made for 2010-11 was for an ICT class. Tr. 71.

As of the first day of school, the District provided testimony that there was room for in the grade ICT program. Ms. testified that there were 20 students in the classroom at the beginning of the year and now there are only 15. Tr. 33.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its May 2nd CSE meeting provided EW with FAPE in the LRE and that a 10 month placement in an ICT program in a mainstream school together with was appropriate and was designed to address ’s needs. The District’s witnesses provided testimony that the teachers are certified in the subject they are teaching and in all core subjects, there are two teachers in the room including a special education teacher. Ms. provided testimony indicating that the school has extra support and tutoring for those that require it , including regents, RCT prep and afterschool academic programs. She also testified that there is small group instruction, the use of multisensory methodologies, and if students in the ICT classes need more support, they are put in resource room or afterschool tutoring. Tr. 36. Ms. also testified that in terms of accessing the general education material, the ICT teachers would be able to scaffold the material and set up a cooperative learning experience. Tr. 75. The school also has sports and extracurricular programs for its students so that could continue to be involved with sports. Although the school is large, would be traveling with 15-20 students and would have two teachers in her core classes who could differentiate and individualize instruction as needed. In addition, would be with general and special education students.

’s specific placement at the has the ICT program for ninth graders and offers Speech and Language Therapy. The fact that she does not have a specific interest in law is not significant since she is only required to take one elective in law and may find that she likes it, and, in any event, in the future, the law component will be phased out.

It is clear that the CSE considered several programs before deciding on an ICT program. They determined that a general education class with supports could not adequately address ’s academic and . D-3.With respect to her placement at the team did not think a special education private school with no opportunities for mainstreaming was appropriate or they would have considered it.. Even though the Parents were apprehensive, it appeared that their efforts in applying to Art and Design and other schools indicated their desire to transition to a mainstream environment. Tr. 214.

With respect to related services, the CSE provided with Therapy, 2 times per week, 30 minutes each time; 3:1. D-3. The Parents and the District agreed that these services were appropriate for EW.

For all of the foregoing reasons, I find that the District provided FAPE to EW for the 2011-2012 school year. Hence it is not necessary to consider Prongs 2 and 3. See, Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record. Issue 1I-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of . In order to meet that burden, the Parents must show that offered an educational program designed to meet EW’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have not met their burden in showing that was an appropriate placement for is a special education private school with 54 students in the high school and no opportunities for mainstreaming. Most of the teachers are not certified. In fact, many do not have special education degrees or certifications. Ms testified that the bulk of ’s difficulties are time management, the saliency of information, difficulties with memorization and executive functioning issues. Tr. 167. She also testified that ’s full scale IQ is in the average range. Based on this, she should not be in a special education private school.

Since has , she should be able to receive pull out services for , but the program does not provide for that. Ms. testified that the speech pathologist moves into the classrooms and generally works with the students on reading and writing assignments. Tr. 152

.In addition to the foregoing, it appears that the progress that has made is minimal and is difficult to measure due to the lack of more than one comprehensive assessment a year. Tr. 173. Even so, her reading , writing and math estimates on her IEP have not changed in a significant way despite the small class size, D-3; Tr. 173. The fact that she is having a difficult time in a class of in her physics class, could be for a variety of reasons including the subject matter, instead of the class size. Tr. 148.

Therefore, in the event the District had not met its burden under Prong one, the Parents did not meet their burden in proving the appropriateness of . Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parents participated in the May 2nd CSE meeting and provided the school with all reports, and other necessary evaluations and reports. They contacted the District as soon as they received the Final Notice of Recommendation. (D-4). In fact, they wrote to the school and advised them that they would visit when school reopened. P8.They then visited the program and following their visit in September, they sent another letter to the District rejecting the placement and requesting reimbursement for the tuition at . P-B. The fact that they had signed a contract for creates questions as to whether there was predetermination, however, the Parent made clear that they were just trying to keep his spot intact in case the District did not have an appropriate placement for EW. Tr. 200.

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District provided FAPE to EW for the 2011-12 school year. Accordingly, the Parents request for tuition reimbursement for MMFS is denied in its entirety.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the Parents application for reimbursement of tuition for for the 2011-

12 school year is hereby denied. Dated: May 25, 2012

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer EBK:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Parent Letter to Committee on Special Education, 8/17/2011, 1 p. B Parent Letter to Committee on Special Education, 9/21/2011, 1 p. C Class Schedule, 2012-05-23, 1 p. D Progress Report, 11/18/2011,3 pp. E Tuition Contract, 4/14/2011, 2 pp. F Statement of Payment, 3/19/2012, 1 p. G Proof of Payment, Miscellaneous Dates, 8 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 10/20/2011, 1 p. 2 Due Process Response, 10/26/2011, 4 pp. 3 Individualized Education Program, 5/2/2011, 15 pp. 4 FNR, 8/8/2011, 1 p. 5 Report, 4/28/2010, 22 pp. 6 Teacher Progress Report, 3/3/2011, 6 pp.

IMPARTIAL HEARING OFFICER

I Impartial Hearing Report, 1/11/2012, 1 p.