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: April 17, 2012

April 26, 2012

May 8, 2012

May 30, 2012

June 1, 2012 Actual Record Close Date: June 22, 2012 Hearing Officer: Diane R. Cohen, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2012

Mother — Student

Father — Student

Attorney — Student

For the Board of Education: — Student

District Representative — Student

School Psychologist — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2012

Mother — Student

Father — Student

Attorney — Student

For the Board of Education: — Student

District Representative — Student

School Psychologist — Student

-, Assistant Principal- — Student

Teacher- — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2012

Mother — Student

Father — Student

Attorney — Student

For the Board of Education: — Student

District Representative — Student

Director-Special Education — Student

Special Education Teacher–Carmel — Student

S/L Pathologist -Carmel — Student

O/T Provider–Carmel — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2012

Mother — Student

Father — Student

Attorney — Student

For the Board of Education: — Student

District Representative — Student

Director of Finance and Operations---Carmel — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2012

Mother — Student

Father — Student

Attorney — Student

For the Board of Education: — Student

District Representative — Student

IEP Teacher- — Student

Parent Coordinator — Student

On February 8, 2012, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The hearing request, dated, February 7, 2012, asserts that the New York City Department of Education (the “DOE”) failed to offer the Student a free and appropriate public education for the 2011-2012 school year. The Parents request direct funding or reimbursement of tuition for the ”); direct funding or reimbursement of related services, and funding or reimbursement for the provision of transportation. They further request that I make a determination regarding pendency.

EVIDENCE

The DOE submitted the individualized education program (the “IEP”), dated June 6, 2011, as an exhibit. The IEP indicates that the Student is classified as having a and recommends a special class in a community school with related services of counseling (1 x 30, group of 3); occupational therapy (2 x 30, ) and therapy (2 x 30 in a group of 3) were recommended (Exh. 4, pp. 1 and 13).

The DOE submitted as evidence a Psychoeducational Evaluation, which had been obtained by the Parents in March 2011 (Exh. 3). The Evaluation indicated that the Student obtained a full scale IQ of when tested on the Wechsler Intelligence Scale for Children – Fourth Edition. He achieved a score of in Verbal Reasoning and in perceptual reasoning. His verbal comprehension skills were unevenly developed and ranged from the percentile. He was generally more comfortable on verbal tasks that did not involve processing a great deal of information and only required a brief verbal response. He was also more at ease answering factual questions than he was in answering general comprehension questions and those that involved inferential reasoning. He performed significantly on a general comprehension task. His answers were often quite off base which suggested to the evaluator that the Student did not understand what was being asked. He frequently stated he did not know the answer and needed a great deal of prodding. (Exh. 3, p. 3)

In perceptual reasoning he performed on a task in which he had to copy block patterns. His poor performance on this task, to a great extent, appeared to be due to his difficulty with and planning rather than because he was able to perform the structured perceptual reasoning tasks quite well (Exh. 3, p. 3).

He performed in the on the working memory composite and in the lower end of the average range on the processing speed composite. According to the Evaluator, his scores indicated dramatic improvement in his cognitive performance since the prior assessment (on the WPPSI-III) at which time all of his composite scores were below average and overall intellectual functioning was assessed to be in the borderline range (Exh. 3, p. 4). The evaluator noted that the gap between the abilities was not as significant as it had been previously (Exh. 3, p. 7)

The Student was administered the Woodcock-Johnson Tests of Achievement – Third Edition (WJ – III) and the Gray Oral Reading Test – Fourth Edition (GORT-4). On the WJ-III he performed in the high average range (2.4 grade level) in decoding words presented on a word list but his decoding skills were assessed to be at the lower end of the average range (1.2 grade level) on the GORT-4 which involved reading stories.

When tested on the WJ – III, he performed on the lower end of the average range ( grade level) on the reading comprehension composite but his performance was quite variable. He performed in the average range ( level) on passage comprehension task in which he was required to read a sentence and provide a key missing word. He performed (below ) on another reading task in which he had to read words and provide synonyms, antonyms, or complete verbal analogies. He was unable to correctly answer any of the items on the antonyms or analogies portion of this subtest. His performance on the reading fluency subtest in which he had to read sentences unrelated to each other to determine if they were true or false was assessed to be in the average range ( grade level; Exh 3, p. 4).

When tested on the GORT-4, his reading comprehension skill was assessed to be below the first grade level as was his reading fluency skill which is a combination of rate of reading and accuracy. An analysis of his performance on the various reading tasks indicated that his comprehension skills are impeded by his poor inferential reasoning skills, tendency to interpret material in a concrete and literal manner, and his (Exh. 3, p. 4).

The examiner noted that his reading profile is characteristic of a child with who has an above average ability to read but difficulty comprehending what is read and interpreting spoken language (Exh. 3, p. 5)

The Student performed in the superior range ( grade level) on the calculation subtest in math, but his math reasoning skills were assessed to be in the average range (1.5 grade level).

The Evaluator noted that throughout the evaluation the Student had difficulty generalizing learned information (Exh. 3, p. 5)

It was noted that his graphomotor skills had improved. He held his pencil properly and wrote legibly but his ability to draw any pictures other than shapes was below the expected level for his age. He continued to have difficulties with fine motor tasks. (Exh. 3, p. 7)

When testing in writing on the WJ-III, his skills were assessed to be in the average range (1.8 grade level). However, while he performed well on structured writing tasks, he “froze” when asked to write a sentence about a picture that he was shown and was unable to generate a spontaneous writing sample. The evaluator noted that this was a reflection of his inability to apply his skills unless he was given the structure and framework to do so. (Exh. 3, p. 5)

The Evaluator noted that the Student appeared far more comfortable interacting with the examiner on a social level than he had been previously but found many aspects of the formal testing quite daunting because he was so worried and fearful of making a mistake. His performance on the Children’s Apperception Test reflected a difficulty performing novel tasks, poor verbal expression and limited ability to engage in tasks in which he had to think creatively. The Behavioral Assessment Scale for Children – Second Edition was completed by his first grade teachers. His anxiety was assessed to be in the “at risk” range as were his functional communication skills. These test results reflected improvement in his , particularly in his increased level of interaction with others and improvement in his communication skills although they continued to be quite impaired (Exh. 3, p. 6)

The Evaluator found that the Student was “unable to cope with the demands of the testing unless he was given a great deal of support and encouragement. Even within the one to one testing situation he found the testing to be quite stressful. The test results belied the difficulty that [the Student] has working within a group situation and applying what he learns” (Exh. 3, p. 7)

The Evaluator concluded that the Student presented a complex diagnostic profile. He had at least average intelligence. His functioning was impeded by a number of factors including a significant . His functioning was consistent with the profile of a youngster with which has many characteristics similar to consider it to be disorder. (Exh. 3, p. 7)

The Evaluator recommended placement in a group of no larger than 8 to 10 students with two or more adults in the room. Due to his and his tendency to become overwhelmed in large , he recommended that the Student’s special education program not be housed within a large general education setting. He recommended that he have carefully planned non-academic mainstreaming opportunities with general education students. He opined that related services must be integrated into his school day and his related service providers need to have ongoing communication with each other, with his teachers and with his parents. Additionally, he stated that the Parents needed guidance from the school staff to help them implement developmentally appropriate interventions at home. He noted that the Student continued to need , with a particular emphasis on facilitating the development of social skills and reducing his anxiety and passivity (Exh. 3, p. 8).

, the School Psychologist who attended the CSE meeting at issue, testified for the DOE. Ms. testified upon cross examination that she recommended a class because the Student seemed to be overwhelmed by large groups, had gaps in his performance, had and . She thought a larger class setting would (T. 132). She testified that although Dr. recommended in the that the Student be provided a setting no larger than 8 to 10 students with two or more adults, she did not offer such a program because “[t]here’s no such program with eight to ten students for [the Student]” (T. 133). She further testified that the classes with two adults in the room and fewer children would be for or . (T. 133-134).

Ms. further testified that the related services should be integrated into his school day (T. 120). She testified that there are no goals on the IEP to address the Student’s frustration tolerance, rigidity or anxiety (T. 125). She testified that the promotional criteria on the IEP would require the Student to make more than a year’s worth of progress based on his level of functioning (T. 129). Ms. , the Assistant Principal at testified that all children are held to standard level criteria in grade K through two (T. 163).

Ms. testified that there would have been no speech language therapist available to provide speech language therapy to the Student in the school had he attended in September. A therapist was hired in October (T. 186)

, a second-third grade teacher at , testified for the DOE. She testified that the students in the recommended class do not have that they display in the classroom (T. 330); they are all flexible (T. 331); and they do not seem to be overwhelmed in large group settings (T. 332). She testified that she has no social skills curriculum in the classroom (T. 338).

, the Student’s special education teacher at , testified for the Parents. She testified that her class has eight students and two teachers who are certified in special education (T. 383). She testified that the Student’s decoding is approximately at grade level but his comprehension is a challenge and he is very . He needs to be warned significantly in advance of any kind of schedule or routine changes (T. 385).

She testified that the class is working on answering basic “wh” questions from text. Reading is done in a very small group where his sole focus is answering those “wh” questions (T. 386). The Student’s reading group consists of two students. The other student in the group is nine years old and his decoding and comprehension issues are the same as the Student’s (T. 396). In math, the teachers address his problem-solving difficulties by using a lot of problem-solving techniques. All the lessons are multisensory (T. 397)

The teachers address the Student’s by posting the class schedule and addressing any change or deviation from it immediately (T. 387). The classroom also operates on a token economy (T. 385). If the Student becomes emotionally upset, one of the teachers will take him to a private room, talk to him about what was upsetting and discuss what the teacher and what the Student can each do to address the difficulty (T. 389).

She testified that there is direct instruction on social issues every day in the classroom (T. 389-390), and he receives social skills instruction on an as needed basis in addition to what they do in the classroom on a day to day basis (T. 398). On Friday mornings they have a social skills group called “community circles” which specifically addresses skills such as how to make a friend, what to do when , , and how to express

(T. 399). Although that weekly event includes the entire second grade, all the teachers are there, and there are 42 children and 5 teachers. He learns the information in that group, but does not volunteer in that environment (T. 400).

The Student attends a co-taught environment for social studies and science in which there are typically developing peers as well as children with disabilities. There are 25 children and three teachers. The Students with disabilities are provided redirection, reassurance, prompting and support to boost confidence (T. 391-392). There is a great deal of post-teaching and pre-teaching (T. 394). She testified that the Student benefits from attending an integrated class by being exposed to other teaching styles and to their “core counterparts”. She testified that he derives a benefit from the social aspect as well

(T. 459-460).

She testified that this year he has improved in his ability to pick up a book during unstructured time (T. 409 – 410). His level has diminished this year (T. 468). He is adapting to the co-teaching class with a lot of teacher facilitation and support (T. 470).

She testified that his academic management needs include consistent praise and encouragement as well as frequent breaks, a token economy and one on one teacher attention if he is having a hard time (T. 412).

She testified that he would be extraordinarily overwhelmed in a class and that the amount of attention he requires is quite high (T. 416). She further testified that he requires too much one to one support, for one teacher to be enough – for that to be successful for him (T. 461). She testified that she believed that the Student would be if any of his were displayed and all of the peers in the class did not have any kind of similar issues (T. 418). She felt that he would “fall apart” in a school with over 500 students (T. 420). Even if he were to attend such a program, he would need a significant transition plan of seeing the school beforehand, and having the school psychologist or social worker work with him for the beginning portion of the year (T. 420).

She testified that the school provides counseling at least once per month, one on one and once per month as a push in (T. 433). She testified that the amount of counseling he gets is sufficient for him because what they are giving in the classroom is more applicable (T. 455). If needed, they can call and have someone speak to the Student immediately (T. 456). During recess, one of the teachers participates to make sure that he finds a game or activity and will stay to made sure that he is not feeling left out or excluded (T. 457).

, the Student’s provider, testified for the Parents. Ms. testified that she sees the Student three times per week in a small group or 3 or 4, and one time in the classroom with the whole class of 8 students (T. 483 - 484). She testified that he presents with receptive and . Receptively, he has difficulty learning, storing, and retrieving new vocabulary and in his understanding of questions. Expressively, his , but he has more information than he is capable of conveying (T. 485).

This year his has made significant gains in understanding questions and is less afraid to answer. He is showing interest in vocabulary and is beginning to see when he knows how to do something (T. 497). He has improved in his general ability to answer questions when he has an idea about the answer (T. 506).

She testified that the DOE recommendation of two sessions per week in a group of three students for 30 minutes each is not enough because he has significant difficulties in ; and the gains he has made with the higher therapy she is providing are not commensurate with the amount of effort the she is putting in (T. 505). She testified that she determined that he was significantly deficient and needed as much as she could possibly give him. He receives the most therapy of any of the students she has (T. 509).

She testified that she uses strategies to alleviate his fear when they are working in a group (T. 511). She offers prompts, uses a very of voice, and has him hear the other children’s examples. She also asks the question in several ways and gives him time to answer. She finds that her techniques are successful and he will often respond (T. 524).

, the Student’s testified for the Parents. She testified that she helps to put on the therapeutic listening program to help the Student with his processing (T. 535), and to filter auditory information in a noisy room (T. 537). She also goes into his classroom once per week for a group session. She testified that if she sees him sometimes and an issue comes up, she might bring him into her room (T. 538). She addresses activities of daily living so that he can participate throughout the day. She addresses his participation in the playground, for instance (T. 536-538). Ms. testified that when the Student is in the playground now he is happy and smiling (T. 543). She further testified that the level of occupational therapy he is receiving is adequate and has “worked really well” She testified that he “is not looking so lost anymore” as a result of his receptive language difficulties (T. 545).

, the Director of Educational Resources and Director of the Special Education Program at Carmel, testified for the Parents. Ms. testified that the students in the class have very similar profiles to the Student (T. 581). The Providing Alternative Learning Strategies program (“PALS”), also known as , was designed for children with to above who have and who need more academic and social support than can be afforded in a larger setting (T. 581).

Ms. testified that the co-teaching classes that the Student attends in social studies and science were chosen because those areas are very hands on project oriented subject areas. The teachers plan together and the support has afforded special education students with a little bit of a larger setting. The teachers plan together the modifications and so they are inherent to the program (T. 583). It is supported by three teachers, two of whom have Master’s degrees in special education (T. 589).

She testified that the Student receives social skills instruction from the minute he walks into the building to the minute he leaves (T. 590). She testified that the counseling has helped and that they have seen changes in his in terms of his becoming a little bit more of a risk taker (T. 594). She testified that the school addresses his intense need to stick to routines by talking about the changes in schedule. She testified that they have stopped making reference to the exact start of the next period to avoid having the Student focus too much on the precise time and to learn flexibility (T. 601). She testified that the management needs listed on the IEP developed by the CSE do not talk about differentiating material, small groups, teacher time and attention and having everything spelled out when praising and encouraging the Student (:T. 602-603). She testified that he would not have the necessary teacher time and attention he needs in a 12:1 class (T. 607). She testified that, at , they address the by working very hard on using words, using a lot of scripting and dramatization and social stories that have references (T. 613). She has seen growth in that area since September. In September, he was not able to totally express what was bothering him (T. 613).

The Mother testified that the CSE has never conducted a social history, did not review or discuss teacher reports during the IEP meeting and did not have the evaluation they sent them (T. 656). She testified that the CSE has never observed the Student in a classroom and did not review or discuss a progress report or evaluation at the meeting. She testified that the CSE did not discuss how to provide the structure and framework that the Student requires to apply his skills or how to address his intense need to stick to routines (T. 661). She testified that when she visited the recommended site at she was told that they did not have a and that the occupational therapist was about to go out on maternity leave (T. 670-671). She testified that she believes his program at is appropriate for him (T. 684).

APPLICABLE STANDARDS

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985))

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

FINDINGS OF FACT AND DECISION

Pendency

During the pendency of a hearing, a Student is entitled to remain in his then current placement (See IDEA, §615(d)(2)(F); 8 NYCRR§200.5(m)). The Parents suggest that pendency in this case begins at the beginning of the school year; or from the filing of the first Impartial Hearing Request on November 16, 2011; or from the filing of the current Impartial Hearing Request on February 7, 2012 (Exh. A; T. 31). The Attorney for the Parents argued that pendency flowed from the Findings of Fact and Decision, dated March 9, 2010 (Exh. G), which was the last agreed-upon placement as an unappealed decision. The DOE disagreed that this constituted the pendency placement and asserted that the June 6, 2011 IEP – the IEP at issue in this hearing -- constituted the pendency placement. (T.168-171). I note, however, that that IEP has never been implemented and is the subject of this hearing. That IEP can therefore not be the pendency placement.

I noted that Exhibit G related to the 2009-2010 school year. At the hearing, I asked the parties what had transpired with respect to the 2010-2011 school year. The Attorney for the Parents stated that he believed there was a settlement agreement for that year and stated that he would disclose it to the DOE and submit it at the next hearing date (T. 171-172). The Stipulation of Settlement and Discontinuance, dated March 3, 2011, was submitted on May 8, 2012, and I entered it as Hearing Officer Exhibit I on that date. I note that the Stipulation relates to the 2010-2011 school year. I further note that Paragraph14 states that the Stipulation may not be relied upon to indicate, establish or support a position that it constitutes a recommendation by the DOE, an agreement that the Student attend the school or that the school constitutes an appropriate placement. Paragraph 15 indicates that the Stipulation shall not be relied upon to establish or support the position that the school should be considered the then current placement for the 2010-2011 school year or subsequent school years. (Exh. I, p. 6)

I therefore find that the last agreed upon placement of the Student was set forth in the unappealed Findings of Fact and Decision, dated December 22, 2009 (Exh. G). The Findings of Fact and Decision does not make explicit which private school is being referred to. However, there are references to the “Providing Alternative Learning Strategies Program” or “ ” (Exh. G, p. 6) and “WFHA” (See Exh. G, P. 19), and it therefore seems clear that it refers to the prior name of and the alternative name of the program he attends at ( ).

The Parents filed a hearing request in this case on February 7, 2012. Although there were prior hearing requests filed in this case, I was not the hearing officer on such cases and I have no knowledge of how long such hearing requests were in effect, when or why they were withdrawn or what transpired (See Exh. C and E). The Parents could have requested pendency payments during the time of such hearings, and I have no knowledge of whether they did so, or what orders or payments were made. I therefore find that the is the Student’s pendency placement from February 7, 2012 through the pendency of these proceedings. Recommended Placement

I will now turn to the appropriateness of the placement offered by the DOE. The evidence shows that the Student has strengths in rote learning, such as decoding and calculation, and difficulties with reading comprehension and problem solving. The evaluator noted that the Student’s reading profile is characteristic of a child with hyperlexia, which means that he has an above average ability to read but difficulty comprehending what is read and in interpreting spoken language (Exh. 3, p. 5). The evaluator further noted that the Student presented a complex diagnostic profile. He has at . His functioning is impeded by a number of factors including a issues, , ; .

testified that she recommended a class because the Student seemed to be overwhelmed by large groups and because he has gaps in his performance; ; and fine motor delays. She thought a larger class setting would be too overwhelming (T. 132). She testified that although Dr. recommended in the Evaluation that the Student be provided a setting no larger than 8 to 10 students with two or more adults, she did not offer such a program because “[t]here’s no such program with eight to ten students for [the Student]” (T. 133). She further testified that the classes with two adults in the room and fewer children would be for . (T. 133-134).

Ms. further testified that the related services should be integrated into his school day (T. 120). She testified that there are no goals on the IEP to address the Student’s ,

(T. 125). A review of the IEP indicates that there are goals in reading, mathematics, expressive language, memory, enhancement of self-esteem, and (See Exh. 4, pp. 610). There are no goals which relate to the , .

Ms. testified that the promotional criteria on the IEP would require the Student to make more than a year’s worth of progress based on his level of functioning (T. 129). Ms. testified that there would have been no therapist available to provide speech language therapy to the Student had he attended in September. A therapist was hired in October (T. 186). He would therefore have been unable to receive therapy services in school in September, integrated into his school day.

testified that the students in the recommended class do not have significant anxiety issues that they display in the classroom (T. 330). They are all flexible (T. 331). They do not seem to be group settings (T. 332). She testified that she does not have a social skills curriculum in the classroom (T. 338).

The Student presents with serious issues in the realms of anxiety, rigidity and emotional fragility. The evaluator notes that on the Behavioral Assessment Scale for Children – Second Edition, his anxiety was assessed to be in the “at risk” range as were his functional communication skills. The test results reflect improvement in his behavioral functioning, particularly in his increased level of interaction with others and improvement in his communication skills although they continue to be quite impaired (Exh. 3, p. 6)

The Evaluator found that the Student was “unable to cope with the demands of the testing unless he was given a great deal of support and encouragement. Even within the one to one testing situation he found the testing to be quite stressful. The test results belie the difficulty that [the Student] has working within a group situation and applying what he learns” (Exh. 3, p. 7)

The Regulations of the Commissioner of Education in New York provide that students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs in accordance with the following:

(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.

(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.

(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction. 8 NYCRR§200.6 (A)(3).

Reviewing the academic achievement of the Student and the information provided by the teacher at the recommended site, I can not find that the Student would have been suitably grouped so as to receive appropriate opportunities to achieve his annual goals; or that the learning characteristics of students in the group would have been sufficiently similar to assure that academic or educational achievement would have been maintained. The Student is high-achieving in decoding and computation, but presents with difficulties in comprehension and problem solving. Notably, in computation, the teacher testified that the students in the recommended class were doing math, including computation, at between a beginning first grade and beginning second grade level (T. 313), while the Student was at level (See Exh. 3, p. 5).

The Student requires consistent praise and encouragement as well as frequent breaks, a token economy and teacher attention if he is having a hard time (T. 412). The other students in the recommended class did not appear to have similar needs. The evaluator concluded that the Student presented a complex diagnostic profile. He had at . His functioning was impeded by a number of factors including a ; ; skills; and . His functioning was consistent with the profile of a youngster with which has many characteristics and some experts consider it to be an disorder. (Exh. 3, p. 7). There is no evidence that a student with this profile would have been suitably grouped with the students in the recommended class.

The social skills of the students in the class and the management needs of these students are also different from those of the Student. He presents as emotionally fragile, anxious and rigid. The placement offered by the DOE would not have included students in large groups settings. Nor is there a . The Student’s needs would therefore have been vastly different from those of the other students in the class. This would have made it difficult to address those needs appropriately. I also note that the Student’s teacher testified that she believed that the Student would be if any of his were displayed and all of the peers in the class did not have any kind of similar issues (T. 418).

The evaluation indicates that the Student “continues to need counseling, with a particular emphasis on facilitating the development of his .” (Exh. 3, p. 8). The evaluator recommended a full time special education program designed for students of that can address his language-based learning difficulties and his social issues (Exh. 3, p. 7). The evaluator indicated that this required placement in a group of no larger than 8 to 10 students with two or more adults in the classroom (Exh. 3, p. 8). The IEP includes a goal in expressive language skills which includes the ability to use personal pronouns appropriately, to use descriptive words, to tell about a recent event, to provide a comment in response to a comment made by an adult and to take three conversational turns with a peer or an adult (Exh. 4, p. 7). The goal evidences the need to address difficulties in the social realm. The students in the recommended class do not evidence these deficits.

I find that the DOE did not meet its burden of proof that the recommended placement is appropriate. There is no evidence that the Student can derive educational benefits in a class or that he would be have been grouped with students with similar needs. Ms. Desisto testified that the CSE recommended a class because they did not have a smaller class that would have been suitable. However, that is not a sufficient reason to recommend a particular class. Rather, the CSE must have reason to believe that the recommended class would be appropriate for the Student and would be a setting in which his needs could be met. The DOE did not meet its burden of showing that he would have been suitably grouped in the class or that the size and staffing ratio would have supported his needs. In additional, the goals on the IEP are inadequate and do not address his needs adequately. Nor do they provide the appropriate emphasis on comprehension as opposed to decoding and computation (See Exh. 4, p. 6). There is also insufficient evidence that the amount of therapy is adequate for his needs. He is being provided more than the recommended amount in his unilateral placement and the provider testified that the amount recommended by the DOE is insufficient. Unilateral Placement

Having found that the recommended placement is inappropriate, I will turn to the appropriateness of the unilateral placement. The evidence shows that the Student is attending a class with eight students and two teachers who are certified in special education. Ms. testified that the students in the Student’s class at have very similar profiles to the Student. The teacher testified that the Student is working on . He is grouped in reading with another student whose decoding and comprehension issues are the same as his. In math, they are addressing his problem-solving difficulties by teaching a lot of problem-solving techniques using a . They address the Student’s fragility by posting the class schedule and addressing changes or deviations from it immediately. If the Student becomes , one of the teachers will take him to a There is direct instruction on social issues every day and he receives social skills instruction on an as needed basis. The Student has opportunities to participate in classes with general education students in social studies and science and is improving in his ability to be in a larger group setting with the support of the special education teachers and with pre-teaching and postteaching. Although the Student does not receive weekly as a related service, he receives an abundant amount of on an as needed basis. If the Student becomes upset, one of the teachers will take him to a private room, talk to him about what was upsetting and discuss what the teacher and what the Student can each do to address the difficulty

(T. 389). Ms. testified that the counseling has helped and that they have seen changes in his coping mechanism in terms of his becoming a little bit more of a risk taker. The provider testified that he has made significant gains in understanding questions and is less afraid to answer. He is receiving more therapy than the amount recommended by the DOE.

The report card for the 2011-2012 school year indicates that the Student is progressing, meeting grade level expectations, or exceeding grade level expectations, or doing good or excellent works in nearly every area. (Exh. BB, pp. 1-6)

I find that the unilateral placement is appropriate. I will now turn to the equitable factors. Equitable Factors

The DOE does not allege that any equitable factors argue against tuition reimbursement in this case. The CSE recommended a class at a meeting on June 6, 2011. The DOE offered a placement at a class at on August 8, 2011 (Exh. 1). The Parents notified the DOE on August 22, 2011, that they wanted to see the site before deciding whether to accept it, but that they were putting the Student in in the meantime (Exh. M). On September 20, 2011, they notified the DOE that they believed that was not an appropriate placement for the Student, were rejecting the offer, and were continuing the Student at Carmel (Exh. L). The Parents signed a contract with on March 3, 2011, and opted to participate in their Tuition Refund Plan which would have provided for a refund of their tuition if the DOE had offered a placement that they believed was appropriate (T. 713; Exh. U, p. 2). The Mother testified that she would have sent her child to the public school placement if she had been offered one she considered to be appropriate (T. 684).

I find that the Parents cooperated with the CSE and that there are no equitable factors which would preclude tuition reimbursement in this case.

The tuition contract submitted as Exhibit U indicates that the tuition at is $40,

757. There is no impediment to the award of tuition reimbursement simply because the Parents have placed the Student in a sectarian school. The State Review Officer has repeatedly allowed such awards and has awarded the full amount of tuition in those instances in which the Parents have not limited their request to the non-sectarian portion of the tuition (See for example, Application of a Child with a Disability, Appeal No. 9978; Application of a Child with a Disability, Appeal No. 01-102; in contrast, see Application of a Child with a Disability, Appeal No. 04-073). The Parents have not limited their request to a portion of the tuition (although they suggest a specific reduction if I find that the award of full tuition is not appropriate: See Exh. III, p. 29), and the DOE does not argue that if I find that tuition reimbursement would otherwise be appropriate, that I should reduce the amount due to a portion of the day being devoted to religious instruction (See Exh. II). There is no evidence that the tuition is disproportionate to that of secular schools that would have accepted the Student and could have provided an appropriate placement.

I, THEREFORE, ORDER THAT the DOE shall reimburse the Parents for up to $40,757 in tuition paid to , upon presentation of appropriate documentation. Dated: July 2, 2012

_____________________________

DIANE R. COHEN, ESQ.

Impartial Hearing Officer

DRC :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 RECORD ON APRIL 17, 2012

PARENT

A Impartial Hearing Request, 2/7/12, 8 pp. B Due Process Response, 2/10/12, 4 pp. C Impartial Hearing Request, 1/23/12, 8 pp. D Due Process Response, 1/31/12, 4 pp. E Impartial Hearing Request, 11/16/11, 7 pp. F Due Process Response, 11/18/11, 4 pp. G Findings of Fact and Decision, 12/22/09, 22 pp. H Letter to (with Fax Transmission), 11/23/11, 4 pp. I Email to Ms. , Mr. , 11/17/11, 1 p. J Letter to (with Fax Transmission), 11/8/11, 3 pp. K Letter to , 10/24/11, 1 p. L Letter to (with Fax Transmission), 9/20/11, 5 pp. M Letter to (with Fax Transmission), 8/22/11, 4 pp. N Letter to (with Fax Transmission), 8/9/11, 4 pp. O Letter to (with Fax Transmission), 7/5/11, 3 pp. P Progress Report, March 2012, 3 pp. Q Progress Report, January 2012, 1 p. R Class Schedule, Undated, 1 p. S Program Description, Undated, 3 pp. T Affidavit of , 11/16/11, 1 p. U Enrollment Agreement, 3/3/11 and 4/13/11, 3 (pages U-1 to U – 3) V Attendance Information, 11/29/11, 1 p. W Proof of Payment/ Cancelled Checks, March 2011–February. 2012, 14 pp.

DEPARTMENT OF EDUCATION

1 Final Notice of Recommendation, 8/8/11, 1 p. 2 Final Notice of Recommendation, 11/14/11, 1 p. 3 , March 2011, 8 pp.

DOCUMENTATION ENTERED INTO RECORD ON APRIL 26, 2012

PARENT

U Enrollment Agreement (Amended), Change Undated, 3 (pages U – 4 to U – 6) V Letter from (Amended) 3/14/12, 1 (Replaced Old Exhibit V) W Proof of Payment, March–April, 16 in Total, (Amended to add pp. 15-16)

(Additional Pages) Y Progress Report , 2010-2011, 7 pp. Z Progress Report , 2009-2010, 2 pp. AA –Targeted Skills, 11/7/11, 12 pp. BB –Report Card, 2011-2012, 10 pp.

DEPARTMENT OF EDUCATION

4 IEP, 6/6/11, 13 pp.

5 Case Conference Summary, 6/6/11, 2 pp.

DOCUMENTATION ENTERED INTO RECORD ON MAY 8, 2012

PARENT

CC Letter to (with Fax Transmission), 5/16/11, 3 pp.

IMPARTIAL HEARING OFFICER

I Stipulation of Settlement, 3/3/11, 7 pp.

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

II District’s Closing Statement, Undated, 5 pp. III Parents’ Memorandum of Law, 6/22/12, 30 pp.