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: September 28, 2011

October 20, 2011

November 17, 2011

December 21, 2011

December 22, 2011

December 23, 2011

Actual Record Closed Date: January 17, 2012

Hearing Officer:

Corrected

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2011

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2011

Attorney — Student

Parents

Attorney — DOE

Special Ed Teacher (Via Telephone) — DOE

Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011

Attorney Representing the Family — Student

Parents

Asst. Via Telephone — Student

Attorney Representing the — DOE

School Psychologist, Via Telephone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23, 2011

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Attorney — DOE

By Complaint dated April 11, 2011, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

After waiver of the resolution period, this IHO asked the parties for dates for hearing within 14 days of the end of resolution. (IHO Exh. 2) Hearing dates were then scheduled for May 17, 2011. The District sought to adjourn this hearing date because of witness availability. This application was granted without opposition. The parents then sought to amend the Complaint. There was no objection from the District. The application to amend was granted.

The amended Complaint dated May 19, 2011 indicates that the Student is a old with . The parents allege that the May 13, 2010 IEP denied the Student a free appropriate public education (FAPE) because, inter alia, the IEP did not accurately reflect the Student’s present performance and special education needs; that the classroom in 2009-2010 was above his level and that he was not participating in class, suggesting that the same would happen in 2010-2011; did not provide a sufficient quantity of appropriate, measurable goals and objectives; and did not provide for an appropriate school location for the Student. The parents sought reimbursement for for 2010-2011. (Exh. 1)

After the expiration of the second resolution period, this Impartial Hearing Officer (IHO) asked the parties for hearing dates within 14 days. (IHO Exh. 2) The parents indicated that they were seeking a hearing date in mid-to-late July, 2011. (IHO Exh. 2) A hearing date was set for July 28, 2011. The parents then sought an adjournment of this hearing date because the parents were going to be out of the country on that date. (IHO Exh. 2) There was no opposition from the District. This application to adjourn was granted. The parents then sought to schedule the matter in early September, 2011. (IHO Exh. 2) On July 27, 2011, the parents sought to extend the timelines because of witness availability. (IHO Exh. 2) This extension was granted, and the timelines were extended to September 1, 2011. On August 30, 2011, the District sought to extend the timelines again because of witness availability. (IHO Exh. 2) This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to September 30, 2011. (IHO Exh. 2)

The matter proceeded to hearing on September 28, 2011. This IHO indicated that the parties should try to present as much testimony as possible on such date. (IHO Exh.

2) However, the September 28, 2011 hearing date was concerned with subpoena issues. The District also sought permission to defend the ( ) placement, a change from the District’s position in its Response. (9) This IHO allowed the District discretion on how to present its case. (12) The parties sought to extend the timelines because of witness availability, the extensive issues raised in the complaint, in regard to the subpoena issues, in regard to the District’s application to defend the placement, to allow the parent to respond to the District’s change of position to defend only the placement. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to October 31, 2011. (26) Additional hearing dates were set for October 20 and 27, 2011.

On October 19, 2011, the parents submitted a written motion seeking a decision on a motion in limine asking this IHO to preclude the District from defending the placement. (IHO Exh. 3) On the hearing date of October 20, 2011, the parties argued the parents’ motion in limine and went through evidence. The District submitted a correspondence dated October 27, 2011 responding to such contention. (IHO Exh. 3) This IHO allowed the District to present such evidence relating to by oral decision on November 17, 2011. It should be noted that there were various errors made in the transcript in this connection; for instance, this IHO’s references to were transcribed as “ ” and this IHO’s references to the Second Circuit are transcribed as the “Second District.” (72-74)

In a later correspondence, the District then indicated that it was seeking to adjourn the October 27, 2011 hearing date because it needed additional time to prepare. The District indicated that it received recent evidence that required reconsideration of the issues. (IHO Exh. 2) This application was granted. The District also moved to extend the timelines in such correspondence. The parents then confirmed that this was a joint request to extend the timelines to allow for witness testimony, to accommodate the hearing schedule, and to address the issues in the Complaint. (IHO Exh. 2) This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to November 30, 2011.

The matter proceeded to hearing on November 17, December 21, 22, 23. On November 17, 2011, the parties moved to extend the decision date because of witness availability. In particular, a witness had to have a procedure done. (71) This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to December 29, 2011. (IHO Exh. 2)

The District indicated that it wanted to present a rebuttal case. This IHO granted this request, and the matter was set for an additional hearing date on January 6, 2012. The District moved to extend the decision date because of the need to present a rebuttal case, the need for the parties to review the transcripts and brief the issues. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to January 28, 2012, which was recalculated by the IHRS system to be January 30, 2012. (IHO Exh. 2)

The District then opted not to present a rebuttal case. Briefs were received by the IHO on January 17, 2012, which is the record close date in this matter. (IHO Exh. 4)

Throughout the matter, the parties indicated that the matter involved the 20102011 school year and that there was no prejudice to the Student because of the extension of timelines. (70-72) Further, there was no prejudice to the District since the matter did not involve pendency rights.

FINDINGS OF FACT

The Student has and exhibits , . (169) Children with this presents in a similar manner to except that the children are more social. (409) The Student has in terms of communication. (316) There are deficits in terms of ; , - . (352-353) There are deficits in terms of adaptive skills. (316) He presents with , . (274, 316-

319) He pays .” (403) There are . (274, 316-319) There are . (275) He requires a . (169-170, 275) He is . (170) He needs . (332-334) He needs . (400)

For 2009-2010, the Student attended . The progress report indicated some progress in most areas, with some of the 37 goals achieved, four goals not progressing satisfactorily ( , ), one goal not started. (Exh. J)

The parents did not receive written notice of the CSE review. (429) The mother was called on the date of the review and asked if she was ready to participate. (430) The mother agreed to participate. (430) The mother thought about raising possible other placements during this meeting, but did not raise other placements. (431) She had applied to the previously and had been rejected. (423)

The IEP reflecting the 5/13/10 meeting date recommends a NYS approved nonpublic day school. (Exh. 3) The ratio is . Limited time travel is indicated on the IEP. The IEP indicates that the Student is . . . He has , . Formal testing is reflected from 12/23/09 with the showing levels in all domains. Testing is also reflected from the from 12/14/09, also showing very low levels. 42 goals are listed in the IEP in connection to , , , . In terms of , it is indicated that the Student , . 2x30 group of 5, is recommended 2x30 in a group of 1, is recommended 2x30 in a group of 1. A letter from indicated errors with the IEP. (Exh. BB)

The IEP team typically offers parents an opportunity to have a parent member at the CSE review. (196) There is an individual responsible for scheduling matters with the parent. (195-196) If parents do not come, they are given the opportunity to appear by phone. (196) If they choose not to participate by phone, the matter may be rescheduled.

(196) The mother indicated assent to the program and school at the review. (207, 209-210) The team typically reviews a teacher report and progress reports. (219-221)

The team recommended a program that did not send the Student from room to room, as he had been doing previously. (424) The mother was seeking a life skills program. (425)

The IEP’s academic management needs section should have reflected modified notes, graphic organizers, word banks, use of an Alpha Smart, manipulatives, review and frequent comprehension checks. (245-246) The goals were generated by the school.

(204) The school is conscientious about creating goals for its students. (204) There were no changes to this document at the meeting. (230)

The Student had been at since through grade. (414) This was an appropriate program for him during school. (414) The mother became concerned with in school, when the Student went from room to room. (415-420)

She obtained an evaluation from Dr. . (422-423) Dr. did a of the Student, including a wide battery of testing. (Exh. I) Dr. recommended that the Student continue his placement as , but that his curriculum must be modified to coincide with his ability level. His curriculum should be modified to emphasize functional skills as well as life skills. She also recommended direct instruction in and , ) 5x30 therapy 4x30 , with monthly interdisciplinary meetings.

The Student began the school year at . (437) He left after a few weeks. (438) The parents then provided notice to the District and withdrew the Student, sending him to the (438) The Committee on Special Education (CSE) eventually held a new review and recommended a new program in December. (440) The parents were concerned about the travel time to . (466; Exh. 26)

The proposed classroom for 2010-2011 involved reading, math, science, social studies, English, lunch, vocational work, writing, physical education, specials. (87) Students were at a similar functional level to the Student. (88) Students read at the grade level to the grade level. (113-114) Students are at the school. (151)

The school provides an 8 hour school day and a 12 month school year. (153) The class was more of a life skills class, covering independent living skills, self-care, social skills training. (157)

Students were broken into three groups during the day based on functioning levels. (88) The Student fell into the tier in the time that he was in the school. (89) There were students in this group. (89) Children are classified as . (117) They all fall within the , but are not so classified. (117)

The class had visuals for every topic covered. (90) There was a reinforcement system using points, the Student would . (92) He would use an . (92) Graphic organizers were used in the class, and other students were used for modeling. (94) Repetition was employed in the classroom. (95)

The other adults in the class kept the children focused by prompting, sitting close to them, helping them. (97)

The school was able to implement the Student’s IEP goals. (98-109)

The school is language based, there is encouragement to verbalize throughout the day. (105) The Student would , . (170)

The Student had a , maybe 40 seconds at a time. (121) Usually he from the start, but sometimes he would shut the teacher off. (121) When no one was working with him, he would . (122) He was students. (123) He was located in the middle of the classroom. (123) The teacher would try to . (124) He frequently. (125) He , .

(132) He did not want friends, . (132) He would . (133)

Teacher Assistants in the classroom have their Teaching Assistant certificate. (171)

On September 14, 2010, Dr. recommended that the placement be changed due to the Student’s performance over the summer. (Exh. 5) On September 13, 2010, the parents provided notice that they would be withdrawing the Student from the school. (Exh. C) On October 14, 2010, the parents requested another CSE meeting and provided notice that they would be withdrawing the Student and placing him . (Exh. 6)

The parental placement, , is a special needs school serving students ages

. ( 268) The Student is in the , which emphasizes . (269, 304-305) There is mostly functional academics, functional basic skills, reading, writing, math, adaptive living skills through a simulated apartment and kitchen. (269-271, 276-277, 306, 320-

322) Functional literacy curriculum was used for ELA. (385-386) Reading was taught in a group of with children on similar levels on the grade level. (387-388, 395) There were multi-sensory activities in ELA. (388-389) This helps the Student to focus. (389)

There is art therapy. (277) There is a health class, and there are health and hygiene units. (277) There is gym and movement. (277) There are community sites that the students go to. (272, 313-315) The teachers work in teams of three. (270)

There was a full-time paraprofessional assigned to the Student because he needs support during transitions to maintain on . (280, 326-327) The paraprofessional worked with him to record his homework, to remind him to submit homework, to organize materials. (326) The para would also remind him about participating in lessons and safety. (327) This maximizes his experience during the school day. (390)

Related services were provided in use, reduction of ; , on establishing , on . (279) Related services providers are integrated into the classroom. (288, 307-308, 361-363) Related services included 3x45 group of 3, therapy 3x45 group of 3, individual therapy 3x45 group of 3, and an individual session. (325, 350)

In terms of they work ; . (353-356)

The Student’s schedule was planned through a picture sequence. (311) The class uses small group instruction, with the small group then sometimes coming back together as a whole class. (312, 322)

There were students in the class. (323) Groups tended to consist of students. (323)

Progress was made in the adaptive area, learning how to do things on his own, being able to participate more, respond to questions. (283-285) There was progress in overall pitch and volume, language, staying with the group in the community, peer relationships. (329-332) Progress was made in terms of reading comprehension. (392)

There were about students in the class. (286) There were three teachers and several paraprofessionals. (287)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the Individualized Education Program (IEP) developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)

While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The record here shows the District recommended a non-public school placements for the 2010-2011 school year. This record shows that is placement that was specifically recommended by the parents’ evaluator, . The placement was agreed to by the parent at the review. The record shows the placement would teach the student a functional life skills curriculum that the Student would not have to transfer from class to class as he had done the previous year. The record shows that the placement location, the provides instruction to children with similar needs to the Student, and that the Student would appropriately grouped in the classroom. The record also indicates that the placement would provide the Student with small group instruction, which is required for the Student to progress. The record also indicates that the program would have an academic component so that the Student could work on ELA, math and other academic areas. The record indicates that the Student would receive instruction at his level in the classroom. Progress reports from the prior year indicate that the Student made progress in most areas in the program.

The parents indicate that the District should only defend the recommendation made at the December 7, 2010 review because it did not provide the parents with prior written notice that it was defending a different placement at the hearing. (IHO Ex. 3) However, the prior written notice provisions of the IDEA relate to initiating or changing the educational placement of the child. 34 CFR Sect. 300.322(f), 300.323 (a), 300.503. These provisions do not limit a District from taking particular positions in connection to litigation. Here, the parents are taking the position that a District should be made to lose the rights to a particular argument for being responsive to the parents’ requests to find another placement during the course of a school year. Application of a Student with a Disability, Appeal No. 11-063 (IHO ruled on first offer where District had made second offer to accommodate parent; IHO found that the district "should not be penalized for offering the parent an additional option with regard to the location of the recommended program;" SRO affirmed). In this connection, it should be noted that the District’s offer for a program at is the program that was recommended at the start of the school year. Districts are in fact bound to such positions in connection to litigation, since Districts must have an IEP in effect for each student with a disability at the beginning of each school year. Application of the Department of Education, Appeal No. 08-058; Application of the Board of Education of the Williamsville Central School District, Appeal No. 01-012.

The parents also appear to claim that the Final Notice of Recommendation in this matter designates that the Student should attend the public school placement at PS138 @IS190. (Exh. 2) Placements must be identified and “finalized” by the start of the school year. Mr. and Mrs. A. v. NYC Dep’t of Educ., 746 F. Supp.2d 403 (S.D.N.Y. 2011); Bettinger v. NYC Dep’t of Educ., 49 IDELR 39 (S.D.N.Y. 2007). Districts should provide parents with a “clear, coherent offer.” Glendale Unified School Dist. v. California Dep’t of Educ., 122 F.Supp.2d 1093 (C.D. Cal. 2000). Here, the parents were clearly aware of the offered school location for the Student since the parents placed the Student in at the start of school. The parents’ argument here reflects a “form over substance” posture that this IHO does not find convincing. See M.F. v. Irvington UFSD, 719 F. Supp.2d 302 (S.D.N.Y. 2011)(District failed to include developmental reading class in IEP, but student was enrolled in class).

The parents also claim that the IEP is invalid, pointing out that there are discrepancies and errors in the IEP, that the parents did not meaningfully participate in the meeting, that the goals were invalid, that related services were reduced or modified without documentary support. The parents also point out that the IEP does not properly describe the Student’s levels. The parents also point out that the proposed placement would not have provided the Student with the individualized attention that he requires, and the instruction in daily living skills that he requires. The parents also argue that the placement would not have been able to provide the Student with services that he requires.

In regard to the issue pertaining to discrepancies and errors in the IEP as pointed out by , I agree with the parents that the IEP is imperfectly written and that the District should have followed up with to correct the minor errors in it. However, there is nothing in the record to suggest these errors amounted to anything that might have deprived the Student of a FAPE. In regard to the parents’ argument that the parents did not have an opportunity to meaningfully participate in the meeting, I agree with the parents that they should have received formal written notice of the May, 2010 CSE meeting. However, the parents were given an opportunity to reschedule and did not avail themselves of that opportunity. The record also shows that the parents were given a full and fair opportunity to participate in the meeting.

In regard to the claim about goals, a review of the goals indicates that there are a large quantity of goals that are detailed, measurable and specific to the Student. The parents claim that the District did not create any additional goals for the Student beyond the goals in the previous IEP. However, a review of the two IEPs. (Exhs. 3 and L, M) reveal that there are significant changes to the goals from year to year. For instance, the 2009-2010 IEP contains 37 goals, while the 2010-2011 IEP contains 42 goals. The record shows that the goals were generated by the school and that the school is conscientious about creating goals. The parents do not point to any particular area that should have been covered in the goals, which are comprehensive.

Regarding the parents’ concerns about the related services, the parents contend that the change from individual services to group services and the reduction from twice a week to once a week (and change from push-in to pull-out) is not properly documented in the record.

The issue regarding a change in is not alleged in the Complaint. With respect to this contention, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. Sect. 1415(f)(3)(B); 34 C.F.R. Sects. 300.507(d)(3)(I), 300.511(d); 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. Sect. 1415 (c)(2)(E)(i)(II); 34 C.F.R. Sect. 300.507(d)(3)(ii); 8 NYCRR 200.5[i][7][b]); Snyder v. Montgomery County. Pub. Sch., 2009 WL 3246579 (D. Md. Sept. 29, 2009); Saki v. Hawaii, 2008 WL 1912442 (D. Hawaii Apr. 30, 2008). Regarding the issue about therapy, there is no evidence in the record indicating the proper amount of therapy that the student should receive. Moreover, the parents do not point to any cases where a dispute about a single thirty minute session of therapy rises to the level of FAPE denial. Cf. Application of a Child with a Disability, Appeal No. 11-003 (child with autism not recommended for any occupational therapy, held no FAPE denial). Moreover, there was testimony from Mr. of who indicated that if there was a need for a particular therapy such as therapy, the parents would be able to get additional therapy upon presentation of necessary documentation. (172)

Regarding the parents’ contentions on the Student’s present levels of performance and needs, the IEP at issue does provide detail on the Student’s performance levels and special education needs. The IEP indicates that the Student is making and steady progress, does well with visuals and repetition. is limited and scripted. Academic Management needs are listed as visuals, positive reinforcement, verbal cues to write. The IEP indicated that the Student has difficulty comprehending the directions in the class and requires modeling, repetition, visual aids and auditory aids in connection to speech. Formal testing is reflected on the IEP, including testing per the and the . The IEP also indicates that the Student continues to show delays in gross motor, fine motor, visual motor, self help skills. While the IEP’s academic management needs section was not complete, and while the IEP also could have provided more detail in regard to some of the Student’s academic and behavioral issues, had been educating the Student for many years and was more than familiar with the Student’s educational profile at the time of the start of school. The records show that the teacher, Mr. , had known the Student for four years and had taught him previously. Under the circumstances, I do not agree with the parents that the present levels of performance and the academic profile on the IEP amounts to a FAPE denial.

The parents also claim that the school location did not provide individualized support, pointing in part to statements apparently made to the parent by the leader of a summer camp that the student attended in 2010. This individual was not called as a witness. In fact, the record reveals that the Student in fact requires small group support to receive a basic floor of educational opportunity. The record indicates that the Student received such small group instruction at until the parent withdrew him from the school in September, 2010. In this connection, it should be pointed out that the parents’ own evaluator, Dr. , did not recommend that the Student receive instruction in school. Instead, Dr. recommended that the Student remain at with an emphasis on life skills curriculum. It should be noted that Dr. was not called as a witness here to harmonize her report with the allegations of the Complaint.

Additionally, the parents claims that the placement is not sufficiently geared toward a life skills curriculum. This claim is not supported by the record. The record shows that the class in question had a strong life skills component, covering independent , .

Finally, the parents’ brief does not reference or clearly support a number of issues raised in the Complaint (such as issues with CSE composition, issues with transition services, issues relating failure to review current and complete evaluative data). I have considered these issues and find that the facts do not support the finding of FAPE denial in connection to any such issue.

In sum, I find that the District offered the parents a FAPE for 2010-2011 based on the information it had before it when it conducted the May 13, 2010 IEP. Antonaccio v. Board of Educ. of the Arlington Central School Dist., 281 F. Supp.2d 710 (S.D.N.Y. 2003). The District prevails on the first criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

On this record, the parents have shown that the is an appropriate placement for the Student. The parental placement, , is a special needs school which meets the Student’s special education needs by providing daily living, communication deficits, and life skills, functional academics in small group instruction. The school provides services such as art therapy, a health class, gym and movement, community sites.

Related services were provided, and related services providers were integrated into the classroom. A visual schedule was used for the Student. The Student made progress in the adaptive area, learning how to do things on his own, being able to participate more, respond to questions. The Student also made progress in overall pitch and volume, language, staying with the group in the community, peer relationships, reading comprehension.

The District points out that the placement does not provide sufficient support in therapy. However, the parents do not have to provide every service required by the District to meet the standard under Gagliardo. Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, which was deemed appropriate by SRO; District had recommended speech therapy) Nor do parents need to show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). As the Circuit stated in Gagliardo:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112 (emphasis added).

The District also indicates that the parental placement is too restrictive for the Student. However, the record shows that there is no material difference in restrictiveness between the District placement and the parental placement. Moreover, parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006).

The parents prevail on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither 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 stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

A review of the record reveals that the parents provided appropriate notice to the District, cooperated with the District fully in all respects, and participated in CSE reviews. The District argues that the parents never seriously contemplated working with the District, but the record reveals that the parents in fact did conscientiously work with the District and in fact initially sent the child to the District’s proposed placement. The parents prevail on the third criterion. However, since the District prevailed on the first criterion, reimbursement must be denied. Dated: January 30, 2012 Corrected Date: February 9, 2012 (Correction made to Evidence List)

Impartial Hearing Officer

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 DESCRIPTION

A (Stricken as duplicate) B (Stricken as duplicate) C Letter from Parent to and dated 9-13-10, 7 pages D Letter from to with Receipt, 10-14-10 E Letter from Parent to and 10-29-10, 4 pages F Letter from Parent to with receipt, dated 12-28-10, 2 pages G Letter from Parent to with receipt, dated 1-7-11, 3 pages H (Stricken as duplicate) I Evaluation, 3-17-10 through 4-15-10, 12 pages J Progress Report for IEP Goals dated 2009-2010, 6-25-10, 11 pages K IEP dated 12-17-10, 17 pages L IEP dated 5-13-10, 25 pages M IEP dated 5-19-09, 19 pages N Contract for '10-'11 O Invoice for Health Para, 12-7-10, 6 pages P Special Education Service Delivery Schedule, November 2010

through February 2011, 1 page Q Evaluation, 3/3-3/15/05, 12 pages R IEP checklist, 7/6/10, 1 page S Affidavit of , 10/24/11 1 page T Enrollment Agreement 09-10, 10-11, 2 pages U 2010-11 Attendance Report, 10/22/11, 1 page V Class Schedule, undated, 1 page W , 4 pages X Progress Report, 12/10 16 pages Y Program, 3/11, 15 pages Z Progress Report, 6/10, 14 pages AA Progress Report for IEP Goals, 2009-2010, 11 pages BB request to amend IEP, 6/9/10 CC Card DD Class Schedule with Graphics, 1 Page

DEPARTMENT OF EDUCATION DESCRIPTION

1 Second Amended Complaint dated 5-19-11, 8 pages 2 Due Process Response dated 5-24-11, 4 pages 3 IEP 5-13-10, that's 20 pages 4 Student Attendance Record 2010-2011, 1 page 5 Letter from dated 9-14-10, 1 page 6 Letter from dated 10-14-10, 1 page 7 Letter from to CSE, undated, 1 page 8 Annual Review Classroom Report dated 2-10-09, 5 pages 9 Annual Review Progress Report dated 1-21-09, 2 pages 10 Test dated 1-19-09, 3 pages 11 Annual Review . Progress Report dated 3-16-09 12 Progress Report dated 2-9-09, 1 page 13 ELA Restatements, School Year 2009-2010, 2 pages 14 Memorandum dated 7-2009, 2 pages 15 Memorandum dated Fall 2009/2010, 2 pages 16 Report dated February 2009, 17 pages 17 Report dated April 2009, 17 pages 18 Report dated 11-08, 17 pages 19 Environment Statements, 2010-11 20 Recommendation, Summer 2010, 2 pages 21 Class Report, 12/23/09, 8 pages 22 Report, 12/14/09, 8 pages 23 Review, 3/17/10, 2 pages 24 Report, 3/4/10, 1 page 25 Contact Note, 5/5/10, 1 page 26 Contact Note, 5/13/10, 1 page 27 CSE Meeting Notes, 5/13/10

IMPARTIAL HEARING OFFICER DESCRIPTION

I Notes from Witness 11/17/11, 4 pp II Documents Relating to Timelines, 15 pp III Briefs on Motion, 10/19/11 and 10/27/11, 11 pp IV Final Briefs, 1/17/12, 45 pp