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: May 15, 2012

May 30, 2012

June 18, 2012

July 2, 2012

Actual Record Closed Date: July 2, 2012

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2012

MS, Attorney — Student

MS., — Parents

MR., — Parents

MR., CSE 3 District Representative — DOE

MS., Teacher (Via Telephone) — DOE

MS., Network Supervisor (Via Telephone) — DOE

MS., Supervisor of Psychologists Via Telephone) — DOE

MS., Supervisor of Speech (Via Telephone) — DOE

MR., Social Worker (Via Telephone) — DOE

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

Attorney — Student

Parents

Parents

CSE District Representative — DOE

Psychologist (Via Telephone) — DOE

Supervisor of Psychologists (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2012

Attorney — Student

Neuropsychologist — Student

Admissions Director (Via Telephone) — Student

Teacher (Via Telephone) — Student

Parents

Parents

District representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 2, 2012

Attorney — Student

Parents

Parents

CSE- District Representative — DOE

INTRODUCTION

On April 10, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence. It is noted that Exhibit 4 contained some other students names, which were stricken from the documents at hearing. (T 104) Post hearing submissions were not requested, nor submitted.

Parent commenced this matter through hearing request, dated 004/09/2012, seeking funding and placement at the , a New York State Approved Nonpublic School, a P1 Nickerson Letter placing the student at , or tuition reimbursement, as well as transportation and related services, and pendency as applicable. (Ex 1)

Resolution period expired on 05/01/2012, without agreement of the parties. Hearing was to commence by 05/15/2012, and compliance date was updated to 06/15/2012.

A motion, by parent, to extend the compliance date, an additional thirty days, was made on 05/30/12, at hearing, to accommodate availability of witnesses. Motion was granted and the compliance date was adjusted to 07/15/2012, which was pushed due to the 07/04/12 holiday, to 07/16/2012.

BACKGROUND

Student is presently , and her most recent IEP indicates classification of , 7th District Wide Assessment Levels or Math and English Language Arts (ELA) a , and indicates the student “…has a general feeling of being with her course study in her General Education class with SETSS.” (Ex 6-1, 6-2)

ELA teacher reports that there does not seem to be enough support for the student to work independently. Reading level is indicated as a level S (beginning 5th grade). The WISC IV indicates varied scores ranging for low average to superior. (Ex 6-2)

IEP indicates the student “…is keeping up with her studies in the General Education with Special Education Teacher Support Services (SETTS) setting. Reports of feeling overwhelmed in class work and homework are noted by her parents and teachers…needs are such that she requires a full-time small structured setting to achieve academic and social success.” (Ex 6-3)

IEP recommends a special class setting, auditory amplification for all academic instructional periods, participation in State and district wide assessments, various testing accommodations, and related services of:

Therapy 1 time weekly, individual, 45 minute sessions;

Therapy 2 times weekly, group of three, 45 minute sessions;

1 time weekly, individual, 40 minute sessions. (Ex 6)

IEP also indicates modified promotional criteria for ELA and Math. (Ex 614)

Student began the 2011-2012 school year at PS 178, in a general education classroom with SETSS services, as indicated on the IEP created on 11/04/2010. SETSS services were indicated to be 5 times weekly of direct instruction in a separate location. (Ex 13-9)

Parties acknowledge the student was doing poorly and initiated an IEP meeting which took place on 12/17/2011 and another on 02/08/2012. (T 359 & 395)(Ex 6 & 13)

THE PARENT’S POSITION

( ), attorney for the parent, presented the parent’s position, alleging numerous procedural and substantive DOE failures relative to providing the student with a FAPE.

On 07/02/2012 made closing argument which included stating the DOE failed to offer a Free Appropriate Public Education (FAPE), the proposed placement was designed to provide, and did provide, educational benefit, and that equities favored the parents. (T 459)

continued, in part, regarding the student, that the: “…IEP is not sufficient to meet her needs. There was simply no testimony about how the class would be appropriate, there was no discussion of the typical profile of the class, or how special education is delivered in this environment.” (T 481)

PARENT WITNESS BERYL NIGHTINGALE

( ) reviewed her educational and professional background, and testified as the psychologist who evaluated the student, and prepared the and Educational Evaluation on 11/30/2011, as updated on 02/9/2012. (Ex 7) (T 194-197)

testimony included reviewing her report(s), relative to the student, noting:

“…for the most part nearly , and…I learned very quickly that I needed to …if I said it at my normal typical rate of she did not understand what I was saying. I would also have to , and when I asked her a question and she did understand the question and she was , she would take . So there was what you call like a latency response between what she was hearing and what she was expressing so the observation was that it took her quite a bit of time to process information…I would say it was one of the most pronounced encounters I've had in my experience with testing in that way. She stated, and this made sense to me, this is a one-on-one setting, and then you could then wonder what's it like for her in school, so when I asked her about that she said that to me when the teachers speak, to me it's like blah, blah, blah, blah. I don't really understand a lot. She described how if there was a large group, if there was ambient noise, if there was a lot of interactions going on at once, even in the more structured setting of a classroom, it could be difficult for her to understand. She described that when her SETSS teacher pushed into the classroom to offer her support she didn't know who to attend to if the teacher was also speaking. So it was a distraction, and she couldn't keep focus on what was being said.”

(T 198-200)

“ …She had really an with a lot of work that she handed in, tests that she had taken…She was , and it was that. . She morning that school…I think that in my experience it sounded like she was on her way to . This is the kind of thing that can make and very concerning. Also . She was able to make some connections, but she also absolutely at the same time had an experience where other kids in her class had seen her grades and had commented on her grades, and she was . Overall I think she felt she was- -she knew she . So she was in a really .” (T 200-201)

continued to review testing, noting the student as having a very striking profile:

“It's almost like in a way it's almost like , but at the same time she actually has this core of intellect that is intact and also very bright in ways, so the discrepancy between the two

…” (T 216-217)

testified as to her recommendations for the student:

“…she needs a small class with very individualized instruction where she's getting enough attention so that information can be broken down. It needs to be small so that a teacher can check in with her frequently about what she's understanding. She needs . She needs . She needs , and that would require a small class with a lot of teacher attention. Also it needs to be a calm environment and special education teachers who have experience with working with these kind of disabilities…I think it's important for her to be with other kids who are calm, because she's prone to anxiety.” (T 219-220)

described the student’s need for amplification. (T 220)

described the variations in class size that are be needed for the student: “… if it's a 12:1 class I don't think that that would be support enough. I think if it's a 12-child class or a 10-child class with two teachers, that would be what she would need.” ( 220)

did not believe the needs of the student could be met in a public school, due to the needs of the student, which include a smaller, quieter, calm environment. (T 222)

attended the student’s IEP meetings, in December of 2011 and February of 2012, presenting her position regarding insufficiency of the proposed placement at the meeting. (T 225-231)

testified that at the February 2012 meeting, the team wanted the student to interact with typically developing peers throughout the day. did not agree, stating:

“She’s already , and it would just exacerbate the feelings of low self-worth.” (T 233)

testified that the was appropriate for the student: “It is a small, nurturing, quiet, calm environment. They work with children with disabilities…They're flexible in their provision of services - - staff, …and the classes are, I believe, 10 to 12 children, and it was two teachers in the classroom. It's very quiet…and in addition they have .” (T 234)

PARENT WITNESS RUTH JOSEPH

( ) testified as to her professional and educational background and as the Admission Director of the . (T 253-255)

describes her role at the school: “I am responsible for all of the intake screening of prospective students…I interface with CSE, with Central Based Support Team, with practitioners in the Field…as well as prospective parents that are looking for placement for their child…I then participate in decision making meetings with the principal and with the curriculum coordinators to make a decision as to whether a prospective student would be well-suited here at the . In that same vein I am the point person in terms of making sure that each student's IEP is being followed and that the service providers who work in the school have their students assigned to them properly in terms of individual and group mandates and that IEP meetings are being conducted and participated in…“ (T 255-256)

described the school in general, including class ratio of , students have primarily , delays, and issues related to, “… in school that would require a small school setting and a specialized learning environment.” There are 112 students, all disabled, each class has a head teacher and an assistant teacher, students are grouped according to graded classrooms, by learning style, social compatibility, emotional and social needs. (T 256-258)

Related services of therapy, therapy are provided at the school. (T 258)

states that the is a New York State Education Department approved non public school. (T 259)

did the intake for the student, ultimately accepting her into the school, having determined that the school was appropriate. (T 265)

notes the individual reading attention received by the student: “…she does get individual reading help. reading twice a week for 45-minute sessions, and she started receiving that shortly after she arrived and continues to receive it.” (T 268) J described the audio enhancement of the classrooms: “Each classroom, including (the student’s), has a built in , kind of where the teacher , and there are speakers that are built into the walls of the classroom that amplify the . She and down. So you walk into the classroom and you have a much more clear quality of sound when a teacher is speaking or if the teacher's back is not facing the classroom on the white board or the smart board, her voice quality is still audible and clear.” (T 269) described the student’s need for a special education setting throughout the day, and that the student would not benefit from mainstreaming at this time. (T 272-273)

described the student’s teachers and related services provided, which include speech and language therapy and counseling, and concluded that the is appropriate for the student. (T 275-278)

PARENT WITNESS JILL PASKAL

( ) testified as to her professional and educational background and as the student’s teacher at the . (T 284)

The student arrived in ’s class at the end of March 2012. The class consists of six girls and seven boys, mostly classified as , some are or . (T 285)

continued to describe the students environment. Students are grouped according to intellectual level, and most are in the average range. Students are also grouped by social needs. The students are often in smaller groups throughout the day, for periods such as social studies, science and math. The student is served by a one-to-one reading specialist two times weekly for 30 minute sessions. (T 286-289)

testified that curriculum is modified, and curriculum and staff meetings are held regarding the students. (T 291-294)

sates that previous evaluations, reports, the IEP and informal assessments are used to evaluate student needs. (T 295-299)

reviewed student behavior, characteristics, difficulties in the classroom, and how each is addressed. (T 299-310)

For example, was asked to describe how the student’s reading needs are addressed: “…I definitely slow the pace down…with lots of repetition, with chunking of the information so that they can get small concepts to build up to larger pieces of what the instruction is…and stopping frequently to make sure that everybody understands it and asking the students to then retell what did we learn just now…and she has by the way, which is really wonderful, started to raise her hand I'd say in the last few weeks where she wants to volunteer in class, which to me takes tremendous courage for her, and it also speaks to her comfort level…its very important for her so she can let her guard down, be willing to take risks and actually not .” (T 311)

reports having seen the students fluency improve, comprehension and reading improve. (T 320-322)

reviewed the students challenges, levels, and instruction in the area of math. notes the student receives support throughout the math period, and student has made progress. (T 320-331)

continued to review the student program in areas such as writing, social studies, , and counseling noting techniques used to address deficits and progress. (T 332-348)

Regarding social abilities describes the student as: “…tentative with her peers. She doesn't seem to quite know exactly how to socialize with them. She seems to want to very much, and sometimes if she sees a young lady talking to me at lunch time, she will sidle up to us because I thinks he likes this young lady, and she will try to make a comment. But she doesn't seem to talk to the student. She seems to talk to me about students.” (T 350)

models to address this issue with the student, and notes improvements. (T 350351)

On cross examination stated that a waiver was obtained to allow 13 students in the particular class. (T 357)

PARENT WITNESS LONNI FRIED

( ), the child’s mother testified.

describes her daughter’s strengths as: “She's extremely creative. She loves gymnastics. She's very good at it. She's active. She's friendly. She loves to be around people. When she attaches herself to something, she is very attached to it. Like, for example, if she starts an art project, she has to finish the art project. She is very into finishing something before she moves on to the next thing.” (T 360)

describes her daughter’s weaknesses as: . She has a in school. She is very . It's difficult to keep her on when it comes to academics or anything that's not something that she likes, so like a or something like that. She has a lot, very often out of that don't go her way or for things that she that she just becomes frustrated with. And she is very aware of what her disabilities are, and for her it's extremely frustrating, and she sees it as her own weakness as well as it being a weakness.” (T 361)

states that her daughter began the school year at , in a general education class with SETSS services, and had great difficulty. , did not do well in class, and the IEP was not followed at the beginning of the year. Teachers reported student difficulties, and that the child was significantly below grade level. (T 361-364)

met with the school regarding IEP items that were not being followed by the school. SETSS services at the school were conducted as push in service, not pull out as previously provided for the student. The school then agreed to pull her out once out of the five weekly sessions. (T 363-364)

reports hiring a certified special education tutor to assist her child, two times a week for reading and math. Then the obtained the Educational report, from . (Ex 7 & B) (T 365)

reviewed the findings of the report as presented to her by Dr. which outlined her child‘s difficulties. Then sought out potential placement for her child at approved New York State nonpublic schools: “…that specialized in speech and language disorders.” (T 367-368)

described the December 2011 IEP meeting, wherein BN presented her report and recommendations, including small class, reading specialist, and speech and language therapy. (T 369-372)

reviewed her child’s distress at school and her request for non public school placement at the IEP meeting, which was denied. (T 372-376)

Ultimately the team recommended the class program for the student, and told the parent they had to try that program first before moving on to any other more restrictive program. indicated she wanted to learn more about the program, but did not gain any additional program information at the meeting regarding curriculum or student population. At risk counseling was added to the IEP and the team requested a speech and language evaluation be conducted and reviewed at another meeting to consider therapy services. obtained the evaluation and presented it to the school.

(T 378-383) (Ex C & D)

continued to present information regarding her child’s functioning in school and at home, and the results of the . (T 383-389)

December’s IEP meeting yielded a placement offer to , which the parent visited. At the visit parent testifies that she was advised the school was unlikely to be able to provide therapy, or a reading specialist, and she was not provided with information regarding specifics about the children in the proposed class. Additionally: “The other thing was he said the school was rather large, and she would be in her specials like art and gym and lunch. She would be with the general population kids, and I asked him, you know, how big, and he said about 100 students or something like that…” (T 389-392)

was able to see a class which she describes: “…I saw a math class, and the teacher was in front of the class. There were ten kids in the class that day I believe, and there was no manipulatives used whatsoever. It was not multisensory. The teacher lectured to the kids, and they all looked like they needed refocusing. None of them seemed to be paying attention, and I was a little disappointed.” (T 392)

did not believe the program was appropriate for her daughter: “Because of all those reasons. Also I asked about ? And I said, no, like an in the classrooms, and he said we don't do that at the Board of Ed. The only thing we do is an FM unit, and for a seventh grader I would not suggest that because an already stigmatized and low selfesteem child would have lower self-esteem and feel more stigmatized. He said it's not something I would suggest.” (T 393)

After the visit sent a letter to the DOE, to which there was no specific response. (T 394) (Ex E)

Another IEP meeting was held on 02/08/2012. Her visit to the proposed placement was discussed, and presented her concerns regarding a program for her child, the recent speech evaluation was discussed, and the was presented by the parents as a potential program. The team adhered to their recommendation. (T 395-400)

continued to review the IEP meeting. Discussions were held regarding the , and the . (T 401-405)

After this meeting another placement recommendation was received by the parents for and parent visited the proposed placement. (T 406-407) (Ex F)

described the program visit: “I met with Ms. who is the special education coordinator there…I asked her as well about the services, and she also stated that most likely…(the student)…would not get services because they also didn't have enough people to do as many kids at they had, as needed ….she said there is no reading remediation here. It's done within the classroom. I asked her about the make up of the students in the class…and she said that class was I believe five kids. It was four boys and one girl, but she wouldn't tell me anything about their classifications, you know, what their delays were, what their disabilities were, she wouldn't tell me anything like that, their math or reading scores. She wouldn't say anything. I didn't ask for names. I just wanted to know if they were within the same range as…(the student)…and she wouldn't tell me. I asked her about amplification, and she laughed and she said I've never of that before, the Board of Ed is not going to do that for you. Then I asked if I could observe a class, and she said I couldn't observe a class. I could only look through this small, little, glass-paned window to see the class in session for two seconds. So she took me to the class, and I looked through the small, little, glass paned window, saw basically nothing, and that was pretty much my visit to 74. She did tell me though that there were 1,000 kids in the school…gym with 100 kids. …recess and lunch with 300 kids, and art would be like 25 or 30 kids depending up on which art class she would be in, and I felt that was too overwhelming for her. 300 kids at lunch, wow.” (T 407-408)

This visit prompted another letter to the DOE. T 409) (Ex G)

started her daughter at the on 03/26/12, in a class, where they are addressing her daughter’s needs, including providing an . reports that her daughter is making progress academically, has improved, related services are being delivered. (T 414-418)

referred to the tuition contract signed 11/28/2011, and payments made thus far for tuition. The check in the amount of $3,000.00 is described as a loan from ‘s parents. (T 424-426) (Ex H, I & J)

testified that the current Lowell program is appropriate and that she believes her daughter would not be appropriately placed in a 12:1 program. (T 427-428)

Hearing officer inquired of the witness as to how the related services providers were paid. stated that it was included in the tuition cost. (T 435)

DEPARTMENT OF EDUCATION POSITION

( ), Committee on Special Education (CSE) 3, representative, presented the DOE position, to deny the parent‘s hearing request. DOE position presented that the 2010, and 2012 IEPs, all were procedurally valid and a: “…valid effort to guarantee FAPE for the student.” (T 9)

made closing statement on 07/02/2012, which included stating that the IEP was designed to provide sufficient supports for the student to benefit from the academic program recommended, “The setting does, in fact, provide…(the student)…with sufficient teacher support and supervision…(student)…is classified as a child with a , her needs are not to warrant a more restrictive setting such as a New York State approved nonpublic school.” (T 443-444)

continued that the parents’ placement of the student at Lowell is too restrictive, and that equities do not favor the parent as parents did not raise their concerns at the IEP meeting, prior to private placement. (T 450-455)

DOE WITNESS JANET BREDEN

Hearing record transcript does not include swearing in of the witness. Hearing officer represents that witness was indeed sworn in prior to testimony. (T 10)

The first DOE witness ( ), reviewed her professional and educational background, testifying as a special education teacher, employed by the DOE, currently assigned to . (T 10-12)

stated her responsibilities as: …currently I have a self-contained class of , eighth grade. My job this year is to teach them science and math. I am also a SETSS provider and I work with a seventh-grade math class….I am also the IEP liaison which I'm involved in going to special education meetings and turn keying that information to the rest of the staff. I'm also a part-time dean.” (T 12)

is familiar with the student, in that the student was part of the math class, where she worked as a SETSS provider, beginning in September of 2011. (special education teacher support service) saw the student for three periods weekly. JB notes the student had difficulty keeping up with the pace of the lessons, and needed assistance which included a multiplication grid and calculator. (T 13)

continued: “…I noted that she tried very hard and did make some progress. But we were very concerned early on that there wasn't enough--that she wasn't progressing as we had hoped. Initially we thought it might be an adjustment to the school. But I think after a period of time went by we realized there was more that was going on, more than just an adjustment problem.” (T 14)

“What we found was that she was having difficulty in all her subjects, particularly

ELA and subjects that involved that type of work in order to attain and achieve. So we engaged Ms. Fried early on in discussion and with Mr. also, to see if there were things that we could do further to help her improve, and do better, and catch up.” (T 15)

“…we gave her books on CD, the social studies and the science text book on CD thinking that maybe if she had use of that at home that might ease and help her academically in those subjects. We also started a lunch group, not specifically for her, but for children in that grade at lunch time where they would monitor and do different things for the science teacher. So we attempted at trying to help her at socialization because she really didn't know anyone at this new school. We also added at-risk counseling…” (T 15-16)

participated in the 12/07/11, AND 02/8/2012 IEP meetings. (T 16)

recalls that at the 12/07/11 IEP meeting, the parents presented a and Educational Evaluation, dated 11/11/2011. (Ex 7) continued that the psychologist, , also attended the meeting, and stated: “…One thing that she did talk about was that she felt…(the student)…had a which was inhibiting her from learning information the way it's traditional handled in classroom mainframe situation.” (T 17)

states that the psychologist made recommendations, which were included in her report. Due to recommended the team wanted a conducted, which required the IEP meeting which took place on 02/08/2012. (T 17 & Ex 7)

At the following IEP meeting of 02/08/2012, states that it was clear the student:

“…was not--this is not the right placement for her because she really was not progressing as we would expect her to progress. So we recommended a setting for her, something that would offer her more structure than what she was previously getting in this mainstream class with SETSS.” (T 18)

Additional items addressed at this IEP meeting, to which does not recall any objection, included the addition of the amplification device to assist with the language processing problem, making the student second language exempt, and adding speech services. (T 19)

On cross examination, , testified that she provided her services to the student as a push in service, in the general education classroom, in a group of up to six students. The student had another SETSS provider delivering services as well as

JB. stated: “…she and the ELA teacher were very concerned about her academic performance in ELA…Her ELA reading level was below level. She was reading, they expected it as a fifth-grade level, so at least two years, if not more, behind. So we were very concerned about her inability to comprehend things that she was reading. Because that is such an important skill it permeated through everything, through the ELA, through the social studies, and the science. It was clear that she was really trying her hardest, but really struggling to keep up with work.” (T 21-23)

continued that the student had difficulties, which impacted her ability to function in the classroom, and her ability to function socially. (T 24-27)

reviewed the recommendation made at the 02/08/2012 IEP meeting, of a class, stating that she believed it would be supportive enough for the student, and that discussions were held regarding a possible need for more support. (T 33 -40)

stated that DR. stated at the IEP meeting that due to the language processing problem the student needed a room which was able to amplify the sound. (T 41)

stated that the parents were seeking private school, then clarified that they were seeking a special education school that catered to students like their daughter.

was unaware of how the team would, or if they could, recommend a New York State Approved Nonpublic School, like , or make a deferral to the Central Based Support Team. (T 42-43)

stated a discussion took place regarding the impact of the or amplification tower, and the team thought the tower: “… would be unobtrusive and that it really would have a minimal--it would have better beneficial and less deleterious effect.” (T 48)

Regarding its use in school continued: “apparently the tower is something that is a moveable object that can be moved from room to room. Ideally that--hopefully get one in every one of the rooms that she's in.” (T 49)

continued that there was a concern raised over the student’s ability to function in a large school, and that the student’s attention is better in a small group, rather than a large group. continued to describe what she meant by small group:

“Small group size, similar to what I do in the math with a group of six children. Or, throughout the day a lot of the classes they do flexible small group instruction with the children. But when she's in a larger group and there's over 20 kids in a room it's difficult for her to focus in and pay attention.” (T 53-54)

continued that the student was , while at her school. “We were afraid that she was going to and just which is why we started conversations early on in the year…to see what we could do to help her best.” (T 54)

DOE WITNESS

( ) reviewed her educational and professional history and testified a, supervisor of speech, employed by the DOE, supervising the student’s speech therapy provider. attended the 02/08/2012 IEP meeting, to add unit. (T 64-66)

reviewed IEP goals created at the time of the IEP meeting, and the purpose of the : “Sometimes an is recommended if a child has an organic hearing problem, which is not the case here with this student, but sometimes there is the ability--I'm sorry, the inability to receive information in an organized way and then be able to act on it. So, the would be recommended to assist the student to hear information directly into the earphones, that would be placed over the ears so that they could hear the information clearer and Better.“ (T 68-69)

On cross examination, did not recall discussions relative to the amplification tower. (T 70)

did not meet the student, but did review the . (T 71-72) (Ex D)

DOE WITNESS

( ) reviewed his educational and professional background and testified as a social worker, employed by the DOE, working at , at the time the student attended. The student attended his advisory group, and was seen for services, “…because she was having some difficulties adjusting to her new setting.” continued: “I know she was , and she was having a , I think. It was a big adjustment for her coming from the other school…“ (T 79-81)

saw the student from “…probably October…”, one time weekly. (T 82-83)

attended the 12/17/2011 IEP meeting, recalling: “From what I recall pretty clearly, you know, everybody was in agreement that…(the student)…was struggling, and that the setting she was in, which was at that time receiving SETSS services once a day…was not meeting her needs, and basically the meeting was to discuss what would hopefully meet her academic and social needs…and we were discussing the various options…” (T 85)

states that the 12:1 recommendation was made. counseling goals were developed, the parents were not in agreement, and the parents were: “…very open to considering anything, and I know that one of the other programs was in my other school, and I happened to be in that other school…they (the parents) were more than willing to look at the setting, you know, the programs that we recommended in the other buildings. They certainly did not reject anything out of hand, but their ultimately feeling was that, no, that her needs would be met in I believe in a private school setting.” (T 86-88)

attended the subsequent 02/08/2012 IEP meeting. summarized the meeting as follows: : “Basically that I believe the Mom or both parents had either visited one or both of the in other schools, found that, you know, according to the evaluations that had been done and their understanding of their daughter's needs that neither of those would meet what her needs were, and basically that they still felt that they would like us to send the case down to the central based support team pursuant to I believe they had an acceptance letter for the , and they wanted the team to consider doing that, and that the supervisory staff and the team still felt there had been things that could be offered in community schools that had not been tried. So that's, you know, they had gone through with what we asked them to do, which was seeing the other programs, and felt that they were still not proper...” (T 89)

On cross examination stated that during his sessions, the student generally , and the student told him it was hard for her to in group situations. (T 91)

recalled concerns regarding a large school setting, parent desire for the case to be deferred to CBST, and parent position that recommended school was too large and could not accommodate the auditory needs of the student. continued regarding the meeting and accommodations: “…there were specifics that were recommended that are generally not available in a classroom but my understanding from the second meeting though was at least the supervisors who were there said that we would be able to provide the and I think a few other of the accommodations, so as of the second meeting, the recommendation was that we were going to be able to provide the amplification in the classroom.” (T 96-100)

DOE WITNESS

( ) testified as a DOE employee, presently acting as an administrator of special education, and reviewed her educational and professional background. (T 106-107)

knows the student by consulting with school staff at , and attending the February 2012 IEP meeting. (T 107-110)

Recommendation was made, with which agreed, and the parent disagreed. Parent visited the school and felt it would not address the student’s needs. (T 110 111)

states parent requested deferral to CBST, and team did not agree. (T 113)

DOE WITNESS MARIETTA SILBER

( ) reviewed her educational and professional background and testified as a school psychologist, employed by the DOE, at . (T 141-142 MS reviewed the evaluation conducted by Dr. stating it was a thorough evaluation, and the speech evaluation, conducted by Dr. , and compared them to previous reports. (T 144146Ex 7 & D)

confirmed the recommendation of a class with related services. (T 146)

DOE WITNESS

( ) was called next by the DOE as a witness.

Witness was sworn in and advised against referring to any documents without advising the hearing officer, to ensure they were entered as evidence. (T 158 -159)

It became apparent that the witness was referring to notes not entered into evidence. (T 170-171, 174-175)

The parties and the hearing officer discussed the effect of the witnesses action, and ultimately, the testimony was set aside and the witness was dismissed as unreliable, over the objection of the DOE. (T 184-185)

I note an impartial hearing officer’s discretion to limit or exclude the testimony of witnesses that he or she deems to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][3][xii][c], [d], [e]). This discretion is balanced with the responsibility to ensure that there is an adequate record upon which to permit meaningful review (Application of the Dep't of Educ., Appeal No. 11-004; Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 00-039; Application of a Child with a Disability, Appeal No. 00-021; Application of the Bd. of Educ., Appeal No. 97-92). The record herein appears to the hearing officer to be adequate.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 unique 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. § 1400[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]).

A student is offered a FAPE 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 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 hearing 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a 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). 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, but 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). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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]). 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 (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 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 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 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. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. 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]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education , Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE PROPOSED PLACEMENT AND FAPE

DOE witness recognized early in the school year that the student was having difficulties: “…we were very concerned early on that there wasn't enough--that she wasn't progressing as we had hoped…after a period of time went by we realized there was more that was going on, more than just an adjustment problem.” The parent was engaged and efforts were made to address student issues. (T 14-16) attended the IEP which resulted in the recommendation. (T 18)

Despite student’s difficulties in the classroom, and efforts the placement made at the time, the DOE was not providing the IEP services as reflected in the then applicable

IEP. (Ex 13) The IEP of 11/04/2011, mandates SETSS services 5 times weekly, direct instruction in a separate location. (Ex 13-9) JB testified that services were being delivered as push in services in a group of up to six students. (T 22 -23) Even in the group of six students testified that: “…we were very concerned about her inability to comprehend things that she was reading. Because that is such an important skill it permeated through everything, through the ELA, through the social studies, and the science. It was clear that she was really trying her hardest, but really struggling to keep up with work.” (T 21-23)

testified to her concern regarding the challenges the student was facing: “We were afraid that she was going to begin to and just stop doing all work entirely which is why we started conversations early on in the year…to see what we could do to help her best.” (T 54) These concerns did not compel the school to properly deliver the service as required by the IEP. Proper implementation of the IEP, potentially, could have alleviated some of the problems the student faced.

reviewed IEP goals created at the time of the IEP meeting, and the purpose of the , however, it does not seem that an was actually recommended on the 02/089/2012 IEP , which instead calls for auditory amplification. (T 68-69) (Ex 6-9)

testified to the parents site visits of the offered placements and continued regarding the meeting and accommodations: “…there were specifics that were recommended that are generally not available in a classroom but my understanding from the second meeting though was at least the supervisors who were there said that we would be able to provide the amplified classroom and I think a few other of the accommodations, so as of the second meeting, the recommendation was that we were going to be able to provide the amplification in the classroom.” (T 89, 96-100) NG’s testimony continues to be less than certain which services could be provided to the student at the recommended placement. School staff and others at DOE did not respond to the opportunity to address parent concerns regarding the current failure to implement the IEP and the capability of the proposed placement to implement services properly.

, the student’s mother, recounted the 2011-2012 school year, details of the IEP meetings, her advocacy efforts for her child, concerns she expressed to the school and to the IEP teams, and her visits to the offered placements. (T 360 -434)

confirms that teachers reported student difficulties, and that the child was significantly below grade level. (T 361-364)

Parent put forth effort and cooperated with the DOE in attending meetings, obtaining evaluations and visiting placement. However, the DOE did not respond to her direct questions concerning her daughter’s educational placement, and information she received at each proposed placement, where she was informed, in part, that the auditory amplification could not be implemented. (Ex 8 & Ex G)

At the site offering of , parent testifies that she was advised the school was unlikely to be able to provide speech and language therapy, an IEP mandated service, and was not provided with information regarding specifics about the children in the proposed class, or provided with any information to justify placement at the large school setting, when the parent raised a concern over such a placement. (T 389-392)

At the site offering of , parent testifies to obtaining information about the placement that included: “…would not get speech and language services because they also didn't have enough people to do as many kids at they had, as needed speech and language….she said there is no reading remediation here…I asked her about amplification, and she laughed and she said I've never of that before, the Board of Ed is not going to do that for you. Then I asked if I could observe a class, and she said I couldn't observe a class. I could only look through this small, little, glass-paned window to see the class in session for two seconds…She did tell me though that there were 1,000 kids in the school…gym with 100 kids. …recess and lunch with 300 kids, and art would be like 25 or 30 kids depending up on which art class she would be in, and I felt that was too overwhelming for her. 300 kids at lunch, wow.” (T 406-408) (Ex F)

The IEP itself contained only one counseling goal, despite implementation of at risk counseling services and student needs as indicated throughout the testimony relative to counseling needs of the student. The one goal was to address “shyness”. (Ex 6-7) This goal fails to address the many concerns raised relative to the student’s performance in school and social issues reported throughout the testimony. This IEP goal fails to consider, or address, a critical student need.

The IEP includes result of test and evaluations identifying student needs, but does not establish goals based upon those needs. IEP indicates on the WISC IV mostly average and above average scores, and indicates scores based upon a . Goals do not indicate any grade level for addressing grade level deficits, nor do they indicate any goals or services which would close the gap which appears between the WISC IV and the student performance. (Ex 6-1 & 2)

The IEP indicates modified promotional criteria for ELA and Math. (Ex 6-14) This contradicts the student participation in State and district wide assessments. (Ex 6-11) It seems one of these has been in error. In any event it is unclear and would necessarily impede, or delay, the proper services to be delivered to the student, who may be promoted or assessed improperly.

Considering the evidence presented at hearing I find the DOE failed to properly implement the student’s IEP for the 2011-2012 school year and I find that the DOE failed to make an appropriate recommendation and placement for the 2011-2012 school year, thus denying the student a FAPE for the 2011-2012 school year.

APPROPRIATENESS OF THE

reviewed her testing and recommendations. In the then current public school placement reports the student was “ ”, “…on her way to a .”, and “..in a really bad .” (T 200-201)

recommended a placement that included small class size, individual instruction, amplification, a multisensory environment, and a calm environment. (T 219-220)

testified to the appropriateness of the Lowell placement, in meeting her recommendations. (T 234)

reviewed the school characteristics, student population, related services, class grouping, individual reading help the student receives, and audio enhancement of the classrooms. All services and characteristics follow recommendations of the professionals and parents in appropriately educating the student. (T 255-268)

, student’s teacher, detailed the student program and how her needs are addressed in her classroom. This testimony indicates the student is being appropriately educated at the . (T 285-311)

testifies to reading progress in student’s reading fluency and comprehension, math, and social abilities. (T 320-351)

started her daughter at the on 03/26/12, in a class, where the parent feels her needs are addressed, which include providing an . reports that her daughter is making progress academically, , related services are being delivered. (T 414-418)

I find the to be an appropriate placement for the student for the 2011-2012 school year.

EQUITABLE CONSIDERATIONS

states that the parent were: “…very open to considering anything…” (T 8688)

Parent attended all meetings, corresponded and communicated with the school and DOE, obtained any requested evaluations, visited any proposed placements, and worked independently to provide the DOE with information relative to creating a valid IEP and recommendation. Parent was knowledgeable about her child’s challenges, and from all accounts was very cooperative with the process and made her concerns known to whomever would listen.

Parent notified the IEP team at the 02/08/2012 meeting, of their position that placement at the was appropriate. Parent letter of 02/09/2012 outlines parent position and concern for their daughter. As child was not placed at the until 03/26/2012, I find this to be sufficient notice to the DOE that the parent was left, in their perspective, with no option but to place the child in the .

NG testified that the team was aware of the acceptance letter, however, the team: “…felt there had been things that could be offered in community schools that had not been tried….” (T 89) The parents, understandably, did not want to try a program they felt was improper, and delay, what appears to be an appropriate placement at the . Considering the student was already not receiving her mandated services, it would not make sense for the parents to place their student into another program, where it seemed services would not be properly delivered.

Parent signing of the tuition contract in November of 2011, does not weigh against the parents in this case. (Ex H) Parents are shown to merely be acting diligently to make sure all potentially appropriate educational opportunities were keep available for their child.

I find the equities to favor the parent in this matter.

TUITION CONTRACT

referred to the tuition contract signed 11/28/2011, and payments made thus far for tuition. The check in the amount of $3,000.00 is described as a loan from ‘s parents. (T 424-426) (Ex H, I & J) Tuition does include related services. (T 435)

Additional information regarding the loan referred to has not been provided. My order shall take into account that the parents of may not have felt a written loan agreement of some type was warranted, but does need to be paid back to effectuate appropriate reimbursement.

The is a New York State Approved Non Public School.

I find the monthly tuition, of $3,183.10, to be reasonable and appropriate in the case.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2011-2012 school year.

2. The parent shall be reimbursed for placement at in the amount of up to $3,183.10, monthly for each month of student attendance at the program, for the 20112012 school year.

3. Parent shall be reimbursed $3,000.00 portion of tuition paid by loan, upon proof of payment of the loan.

4. This decision is subject to appeal and review by the State Review Officer. Dated: July 13, 2012

_____________________

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Due Process Response, 4/17/12, 3 pages B Evaluation, 11/18/11, 9 pages C Letter to Silber, 1/30/12, 1 page D Evaluation, 1/20/12, 10 pages E Letter to CSE, 2/9/12, 4 pages F Placement Recommendation, 2/8/12, 1 page G Letter to CSE, 2/22/12, 4 pages H Contract , 11/28/11, 1 page I Check to , 11/30/11, 2 pages J Check , 4/30/12, 1 page K Progress Report, June 2012, 3 pages L Report from June 2012 1 page M Progress Report, 6/1/12, 2 pages N Report, 6/6/12, 2 pages

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 04/19/12, 6 pages 2 Class Profile, 04/19/12, 3 pages 3 excluded 4 Seat Detail, 04/14/12, 1 page 5 Notice of Scheduled Resolution Meeting, 04/16/12, 2 pages 6 IEP, 02/08/12, 15 pages 7 Educational Evaluation, updated 02/09/2012 15 pages 8 Letter from Parents, 03/09/12, 2 pages 9 Letter from Dr. , 02/13/12, 1 page 10 excluded 11 excluded 12 excluded 13 IEP, 11/04/10, 11 pages 5 8 14 excluded

15 Signed Attendance Page, dated 02/08/12, 1 page