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: August 1, 2012

August 7, 2012

September 19, 2012

Actual Record Closed Date: December 5, 2012

Hearing Officer: Gary D. Peters, Esq.

Corrected

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 1, 2012

Attorney — Parents

Mother — Parents

Attorney — DOE

Special Ed. Coordinator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 7, 2012

Attorney — Parents

Mother — Parents

Attorney — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2012

Attorney — Parents

Mother — Parents

Teacher — Parents

Attorney — DOE

/ INTRODUCTION

On the above dates, I conducted hearings pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. section 1415 (f) (3) regarding a special education program for students with a disability, New York City Impartial Hearing Case Number . The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing through their attorney on May 7, 2012. At the hearing, the Department of Education hereinafter referred to as “The DOE” was represented by its counsel and the Parent was represented by its counsel, Esq.

A list of witnesses and documents received into evidence is attached in this decision.

BACKGROUND

The student is now a ”. On March 10, 2011, the Committee on Special Education (CSE) met to discuss the educational needs and to develop an Individualized Educational Program (IEP) for the child, hereinafter referred to as “ .” The CSE team classified the child as having a and recommended placement in a community school in a special class with related services including , individually for 30 minutes, two times per week at a separate location, , individually for 30 minutes, three times per week at a separate location; therapy, individually for 30 minutes, three times per week at a separate location, and therapy in a group of three for 30 minutes, one time per week per week and extended test taking time at a separate test location.

Parent’s counsel maintained that District , region # has failed both procedurally and substantively, to provide their child with a Free Public Education hereinafter referred to as FAPE, for the school year 2011-2012.

The child attended the for Special Education in Brooklyn, New York for the 2011-2012 school year, which is a private school and provides small group, structured individualized programming for children with learning disabilities and is seeking reimbursement for the child’s education.

THE PARENT’S POSITION

As stated above, the parent maintains that the child’s recommended placement was inadequate, and is seeking tuition reimbursement for placement at the hereinafter referred to as the “ ”. Additionally, parent maintained that they have complied with any and all requests made by the Department and that the unilateral placement chosen by them is the appropriate placement for their child

THE DEPARTMENT’S POSITION

The Department maintained that the child was properly classified and that the IEP set forth appropriate goals and recommendations for the child; that a final notice of recommendation (FNR) was issued to the parent, wherein a placement was offered that was reasonably calculated to enable the child to obtain meaningful educational benefit. Furthermore, that the Department provided the Student with a “FAPE” for the 2011-2012 school year. Additionally, the Parent failed to meet their burden to show that the unilateral placement of the student at the “ ” was appropriate and that the equities do not favor the Parent.

THE DEPARTMENT’S CASE

The IEP team considered all the reports and input from the entire team when it formulated goals and objectives which were both “measureable and specific”. The Student’s strengths and deficits both academically, socially and emotionally were addressed and reflected within her goals, objectives and management needs. Tr. 65-81. More particularly, the IEP established that the required a small structured academic environment to address her focusing issues as well as praise and positive reinforcement. Tr. 66-68. The and goals and objectives were appropriate to address the ’s motor deficits, ; goals and objectives were formulated to address receptive expressive and pragmatic deficits.

With respect to the long term goals and short term objectives, the school psychologist, Ms. testified that the goals were measurable, specific and designed to address the child’s . Ms. ’s notes indicated that the Parent and teacher were all in agreement with the goals, mandates and recommendations in the IEP. The Department’s counsel maintained that the Parent was provided with meaningful opportunity to participate in the development of the Student’s IEP, her goals and objectives as well as a discussion of her deficits and ultimately agreed with the team regarding the goals, mandates and recommendations in the IEP. Tr 89.

Ms. testified that the present academic performance section of the IEP was drafted by the team based on, a review of all the records before the team and input from the Student’s teacher and Parent. According to teacher’s estimates, the Student’s academic levels for reading and listening comprehension, as well as writing and decoding, were at an end of beginning of level. Tr. 64. Ms. stated that the Parent participated in the review and agreed with the teacher’s estimates that was not on grade level and required additional support. Tr. 65. The Parent did not object to the description of her child’s assessment, functional levels and agreed that the was not on grade level and in “need of support and help.” Tr.65. The academic management needs were drafted with input from the entire team and the Parent did not voice concerns. The Department’s counsel maintained that Ms. articulated with specificity how the academic management needs were designed to meet the ’s needs; each section of the IEP was written by Ms. , the speech therapist, the provider or the student’s teacher. Each goal and deficit was discussed by all the members of the team and the Parent conceded that the IEP accurately reflected the Student deficits. Tr. 232.

With respect to the long term goals and short term objectives, Ms. wrote down in her notes that the Parent and the teacher were all in agreement with the goals, mandates and recommendations in the IEP. Tr. 88. The Parent testified that she heard everyone discussing her child’s , the goals and objectives and believed that that the team “probably” asked her for her input. Tr. 217.

It was the DOE’s position that the program recommendation with related services of OT, Speech/language therapy and PT was appropriate for to meet her educational needs. Ms stated that after consideration of all the evaluative reports and input provided by the teacher and Parent, the team ultimately decided on a class with related services. Tr. 62. The report submitted by the providers, including the psycho educational evaluation, supported the recommendation that a programs would help the “learn and remediate her significant academic and attention delays”. The team considered a less restrictive class for the student, an integrated co-teaching class, but rejected it as the class was too big and too overwhelming for Tr. 83. Ms. also stated that the team did not consider a more restricted program as they believed a setting was appropriate to meet the student’s delays and did not require a more restrictive environment. Tr. 84.

By letter dated August 18, 2011, the Parent rejected the program recommended by the CSE and informed the DOE that she would unilaterally continue ’s enrollment at DOE Ex. 13. Moreover, by letter dated September 21, 2011, after the start of the school year the Parent again rejected the recommended program. DOE Ex. 13. The Parent rejected the recommended placement two times, prior to the start of the 2011-2012 school year, stating that the IEP team knew was in a much smaller class at and required much more individualized attention than a class could offer. DOE Ex. 13 and DOE Ex. 14.

The Department maintained that despite the Parent’s assertions in her letters, the hearing record confirmed that the Parent never informed the IEP team that she was unhappy with the recommended program or that the IEP did not accurately reflect the Student’s strengths and deficits. The Parent testified that she thought the teacher, Ms. expressed concern that a class was too large, however she never testified that she expressed any concern or voiced any objection to the recommended program or that she was obstructed or prevented from providing her opinion or expressing any concerns that she had about the recommendations made by the IEP team. On the contrary, the Parent admitted on cross-examination that she wasn’t even sure whether she indicated to the IEP team that she was unhappy with the recommendation. Tr. 218. On August 9, 2011, the Student was offered a seat at in a class with the related services as indicated on her IEP and as stated above was rejected.

The Parent maintained that she was informed by the Special Education Coordinator, that there were two classes at the school for the and that they were both over-enrolled. This allegation was made both in her letters to the DOE dated Aug 18, 2011 and September 21, 2011 as well as in her DPC. DOE Ex. 1, DOE Ex. 12 and DOE Ex. 13. Ms. , the Special Education Coordinator and a certified special education teacher at , testified that there was a seat available for the in a class with a staffing ratio and that there were six available spots. Tr. 15. Ms. testified that, contrary to the allegation in the DPC, that class did not become full until February or March of 2012. Tr. 16. Additionally, offered related services such as and and that would have been provided with an appropriate and meaningful education to meet her needs. Tr. 20, 31.

Ms. testified that she was employed at the was the ’s teacher for the 2011-2012 school year Tr. 137, 140 and that she was in a class with six (6) other students, an assistant and a paraprofessional. Tr. 142. Three (3) students were in her reading group and two (2) students in her math group. Tr. 147,151. Ms. testified that the recommended was an appropriate size class for and that she did not need a more restrictive environment. Tr. 84.

Moreover, ’s primary teacher, Ms. taught her from 1:00pm to 3:45pm, (2 hours and 45 minutes) Monday through Thursday and on Fridays from 9:00 am to 12:00pm. (3 hours)Tr. 179-180. She would teach reading, writing, math, recess, organizational skills, science and stated that she is pulled out for related services. Tr. 181-182. Therefore, the DOE maintained that was being academically instructed for 14 hours a week, not including time spent in therapy sessions and that ’s program did not offer an educational program which met the child’s special education needs. Ms. also testified that she observed receiving related services in the therapy room where there were two other therapists working with other students in partitioned areas in the same room Tr. 183-184. She also testified that the paraprofessional assigned was for a specific student in the class and not for Tr. 191; thus the lacked the support of the paraprofessional which her IEP mandated.

Ms. testified that she is familiar with the as she has worked with this school for several years, visits the school to conduct observations and had been there about ten (10) times over the last school year. Tr.89-90. She testified that her observations take place in the afternoon when academic course work take place as the early part of the day is devoted to religious studies; she has been told by the school principal that if she wants to observe academic instruction to come after 12:00 pm. Tr.91. Ms. stated that she observed the students working in small groups in an auditorium room. Tr. 93, each group had a teacher or paraprofessional and all that instruction took place at the same time. Tr.

94. She described the environment as “hectic” and the noise level “quite high” for learning. Tr. 94. She further opined that such an environment is not good for any student who has focusing difficulties. Tr. 95. Clearly, such an environment is not tailored to meet the Student’s educational needs and the Parent had failed to meet their burden. Ms testified that there is one (1) hour of religious instruction during the day. Tr. 163.

Additionally, the Parent entered into a tuition agreement, which was executed on September 1, 2011. This contract along with its addendum indicates that the annual tuition was $39,500 and separately billed related services were $16,200, for the 20112012 School year. P. Ex. D-1, D-2, D-3. The Parent admitted that her combined household income is $5,258 a year, yet nonetheless signed a contract obligating her to pay the full tuition. Tr. 225. The Parent claimed that she borrowed $3,900 from her father-in-law and has to pay him back, but will have to seek a loan. Tr. 224; however that agreement is not in writing. Tr. 224. Furthermore, when asked whether she paid almost $60,000 to the school for the previous two school years, she “assumed” that she paid the amount out of pocket. Tr. 226. It is the DOE’s position that this testimony is not credible

PARENTS CASE

Parent’s counsel maintained that a special education teacher was not on the IEP team and that DOE’s witness could not recall who the special education teacher on the team was. T. 105-6. Furthermore, that the DOE failed to provide testimony that anyone on the team would be able to implement the IEP as written. Significantly, DOE failed to prove that anyone on the team was able to explain to the parent how a classroom would be appropriate, which impeded on the parent’s ability meaningfully participate in the process.

Regarding the IEP, counsel stated that the DOE failed to demonstrate that it would appropriately meet ’s needs and that the goals included on the IEP were inappropriate and insufficient. ’s writing level was at a level, however, there were no goals for writing. Exh. 4; T. 18. Furthermore, Parent maintained that the DOE failed to consider sufficient documentation before them and was aware that the child had been in a much smaller setting, where she demonstrated as demonstrated in the classroom observation and progress report. Exhs. 6, 8. This was also noted in the psycho educational report, wherein it reported that was distracted even in a setting. Exh. 11.

Parent’s counsel stated that a program was not an appropriate recommendation for and is too large for her. T. 160. She was placed in a class of 13 students during the 2011-2012 school year for one period a day T. 161 with support in this classroom, however still had a . T. 161 and the DOE failed to consider a more restrictive setting Exh. 4; T. 83-4. Ms. told the CSE that a would have been too large for her. T. 210, however the IEP team recommended a large class size in a large school. T. 109-10, 113,

120. Parent’s counsel opined that the recommendation was not appropriate for the student. T. 159. Additionally, the team did not provide support to transition this child into the larger environment or discuss the appropriateness of this recommendation at the IEP meeting, resulting in a denial of FAPE. T. 121.

The Parent received the placement recommendation over the summer and contacted T. 211 and wrote to the CSE, but received no response. Exh. 12; T. 212. When school opened, the parent was able to speak with Ms. , who specifically told the parent that they did not have a spot for T. 212. She provided the child’s IEP to Ms. Gentile. T. 230. The Parent then again wrote to the DOE, but received no response. Exh. 13; T. 213.

Although the DOE maintained that they had a seat for in the recommended class; the parent was told that the school could not meet her child’s needs. T. 212-3. Ms. testified that she did not recall talking the parent as she gets many calls, however the parent stated that she remembers what she was told. T. 23.

The Parent maintains that the DOE failed to meet its burden of demonstrating that the recommended placement would be able to meet ’s needs. Conspicuous by its absence is the fact that there was no testimony about the instruction in the proposed class or how the class would be appropriate for ; Ms. stated the she hasn’t performed formal observations in the classroom and has no basis for asserting that the recommended class would be appropriate for T. 43.

Ms. stated that there were approximately 35 students attending in the 2011-2012 school year at the T. 138; that school is located within a mainstream school and the students placed in classes based on their abilities. T. 135. The setting provided with the ability to navigate and transition in the building. T. 159.

was in a classroom with 6 students and 3 adults. T. 142-3; placed with students who had similar needs. T. 143-4. She received the small group support and individualized attention which was tailored to her meet her needs. In math, the students were taught life skills in a systematic manner. T. 150-1; for reading, she was in a group of three students with similar needs. T. 147-8, wherein the staff addressed and through multisensory programs. T. 146-7. In writing, and coming up with an idea. T. 152-3 a program was implemented which provided an opportunity to address her specific areas of deficit. T.

153. A per Ms. , the small group in her academic subjects allowed her to learn and stay focused. T. 147, 151.

Ms. testified that the teachers created goals for during the 2011-2012 school year based upon her individual needs. T148, 151 and with the small group support, she was able to make progress in both math and reading. Exh. B; T. 148, 152, 163. More particularly, in reading, she learned new words, new vowel combinations, improved her fluency and increased her comprehension skills. T. 149. The witness confirmed that at the end of the school year, progressed to a second grade level for decoding, a beginning to mid second grade level for comprehension. T. 149; in math she learned to do subtraction, multiplication, and learned to visualize her problem solving skills. T. 152.

was described as , ; she also has issues with . T. 154. implements a social skills program to address the child’s needs through direct instruction. T. 154. Ms stated that during lunch, the staff provides support so that could to properly use her utensils. T. 158; during recess, she was provided with support to aid in interacting with the other students. T. 149. The staff also addressed ’s by placing blocks on her desk and removing them if she was not focused. T. 155-6.

received related services to address her areas of need. T. 156-7 and her teacher spoke to the related service providers to ensure consistency in the program. T. 157.

The parent cooperated with the CSE and participated in the IEP meeting. Exh. 4. When she received the placement recommendation, she called the school and spoke to Ms. . T. 211-2. After being told that the school could not meet her daughter’s needs, she wrote to the CSE T. 212; Exh. 13.

The parents signed a contract with for the 2011-2012 school years and have been making payment to mitigate the costs pending the results of the hearing and continue to be liable for the full amount of tuition. T. 214.

FINDINGS OF FACTS AND CONLUSIONS OF LAW

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C section 1400-1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. section 1400 [d][1][A]; A FAPE includes special education and related services designed to meet the student’s unique needs, provide in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[ d]).

I will not repeat the details of evidence herein, however the basis for my findings of fact and decision are grounded in the testimony as it appears above. I have considered the testimony of all witnesses who testified at the hearing.

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: (1) the services offered by the Department of Education were inadequate or appropriate; (2) the services selected by the parents were appropriate; and (3) equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] "reimbursement 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 developed a proper IEP (id At. P. 370-371).

The burden of proof/persuasion that the District offered a FAPE in the least restrictive environment lies with the DOE.

Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 9394; Application of a Child with a Disability, Appeal NO. 95-57, in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105 [2crCir 2000 cert. Denied 532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21, 26-17 [1st Cr. 2002].

The final criterion for an award of tuition reimbursement is that the petitioner’s claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60, 68 [2d Cir.2000]; see Carter, 510 U.S. at 16 noting that courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required, such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530,532 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984], affd, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412 (a)(10)(C)(iii)-Warren G v Cumberland Co. School Dist, 190 F:-3d 80-86; See Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv )(I)(cc) (II)(bb).

The parent maintains that (1) both procedurally and substantively, the Department failed to offer a FAPE that was "reasonably calculated" to meaningfully address her unique and individual needs (Prong I); (2) the program and services for are “reasonably calculated” for her to make progress (Prong II); and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III).

PRONG I

The Second Circuit has announced the standard for assessing FAPE, as follows:

For a state to be eligible for federal funding under the IDEA, it must develop educational plans that are reasonably calculated to ensure that all children with disabilities receive a free appropriate public education ..... [F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. A valid IEP should provide for the opportunity for more than trivial advancement, such that the door of public education is opened for a disabled child in a meaningful way. D.F. v. Ramapo Cent. School Dist., 430 F.3d 595,598 (2d Cir.

2005) (emphasis added; citations and quotation marks omitted).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of an appropriate special education services (SRO 08-052; SRO 08-060 (citations omitted)). The goals must be “sufficiently specific and measurable” (SRO 07-108; p. 12) and the IEP must contain goals to address identified needs (SRO 05-049). The goals must be “sufficiently descried so as to allow the student’s teacher or therapist to understand the CSE’s expectations with respect to each goal” (SRO 07-108; p 12).

Part 200.4(d)(2)(iii) of the New York State Special Education Regulations requires that an IEP contain:

(iii) Measurable annual goals

(a) The IEP .shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals must relate to:

(1) meeting the student's needs that result from the student's disability to enable the student to be involved in and progress in the general education curriculum; and

(2) meeting each of the student's other educational needs that result from the student's disability.

(b) Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee.

I agree with the parent that the goals that were created in ’s IEP failed to provide for an appropriate educational plan.

In order to determine what goals and strategies must be implemented in order to remediate a student’s deficit, it is necessary to know a student’s current level of functioning in these areas. This basic tenet is codified in both state and federal regulations, requiring that the present levels of performance in academic and functional performance be indicated on the IEP. 20 U.S.C.§1414(d)(A)(I); 8 N.Y.C.R.R. §200.4(d)(2)(ii). Because an IEP acts as a blueprint for a child’s education, it is necessary to know where the student is functioning at present time, in order to determine the effective strategies to be implemented, as well as where the student should be functioning upon completion of the school year. Moreover, New York State regulations require that IEP's developed for the 2011-2012 school year (such as the IEP developed on March 10, 2011 for ) “be on a form prescribed by the Commissioner” including consideration of “the results of the initial or most recent evaluations; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student…” 8 N.Y.C.R.R. 200.4(d).

A. The Parent alleges that the IEP Team was Invalidly Constituted

Pursuant to New York regulations require that a special education teacher of the student be present at the IEP meeting. 8 NYCRR §200.3(a)(1)(iii). The special education teacher or provider of the child who is a member of the child’s IEP team should be the person who is, or will be, responsible for implementing the IEP. 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26.

I agree with Parent’s counsel that here was not a special education teacher on the team who could be expected to implement this IEP. The DOE’s witness could recall who the special education teacher on the team was. T. 105-6 and presented no testimony that anyone would be able to implement the IEP as written. Additionally, I agree with the Parent that, as the DOE did not offer convincing evidence to explain to the how a classroom would be appropriate, which impacted on the parent’s ability to participate in the process and resulted in a denial of FAPE.

B. The IEP was Substantively Inappropriate.

Regarding the IEP, the DOE failed to demonstrate that it would appropriately meet ’s needs. It is the DOE’s burden to demonstrate that the goals that they developed would be appropriate. The goals included on the IEP must meet the student’s needs and enable the student to make progress. see 8 NYCRR§200.4(d)(2)(iii). I find that the goals are clearly inappropriate and insufficient. As stated by Parent’s counsel ’s writing level was at a level; however, there were no writing goals. Exh. 4; T. 18. The DOE also failed to establish that the goals would be appropriate given her functional levels. The DOE failed to demonstrate that the IEP would be appropriate for and as such, have failed to meet their burden.

Additionally, the DOE failed to consider sufficient documentation or consider the documentation that was before them. It is undisputed that the child was coming from a much smaller setting, wherein she demonstrated difficultly focusing as per the observation and progress report. Exhs. 6, 8. It was also reported in the psycho educational report that was distractible even in a setting. Exh. 11. I find that there was no basis for the IEP team to recommend a class size of 12 students as the information provided to the team supports the child’s need for a smaller class setting.

In conclusion, I find that a program was not appropriate and that the DOE failed to demonstrate that it would be appropriate for her. It was too large as she would be placed in a class of 12 students for the 2011-2012 school year for one period a day. T.

161. Even with 1:1 support in this classroom, she would have a difficult time T. 161. The DOE failed to consider a more restrictive setting than a and seemed to predetermine the recommendation. Ms. Herman stated that a would have been too large for her. T.

210. Furthermore, the team knew she was struggling in her current program, but recommended a large class size in a large school. T. 109-10, 113, 120; Exh. 6. Additionally, they failed to provide support to transition this child into the larger environment or discuss the appropriateness of this recommendation at the IEP meeting, resulting in a denial of FAPE. T. 121.

C. The DOE Failed to Offer the Child an Appropriate Placement

The Parent received the placement recommendation over the summer for P.S. 200; she called the school T. 211 and wrote to the CSE, but received no response. Exh. 12; T. 212. When school opened, the parent was able to speak with Ms. , presented a copy of the IEP to her and was told that they did not have a spot for . T. 212.

I also agree with the Parent that it is disingenuous for the DOE to assert that they had a spot for . Ms. who testified that she cannot remember speaking with the parent because she gets a lot of calls. T. 23. As such, she certainly cannot recall what she told the Parent.

I find that the DOE failed to meet their burden of demonstrating that the recommended placement would be able to meet ’s needs. There was no testimony regarding the instruction in the class or how the class would be specifically appropriate for child. Ms. did not conduct a formal observation of the classroom, and it is not credible for her o assert that the recommended class would be appropriate for .

PRONG II

The test for a parental placement is that it is appropriate, not that it is perfect. Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); see also M.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). “Ultimately, the issue turns on whether that placement is ‘reasonably calculated to enable the child to receive educational benefits.’” Frank G. v. Bd. of Educ., 459 F.3d 356-365 (2d Cir. 2006); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). C.E. was appropriately placed in this program.

enrolled approximately 35 students during the 2011-2012 school year. T. 138 and the students are placed in their classes based on their abilities. T. 135. The small school made it a place where could navigate and transition. T. 159; she was in a classroom with 6 students and 3 adults. T. 142-3. The students in her class presented with similar needs. T. 143-4 and received the small group support and individualized attention that she required tailored to her areas of need.

By the end of the school year, she progressed to a second grade level for decoding and a beginning to mid second grade level for comprehension. T. 149; in math she learned to do subtraction, multiplication, and learned to visualize her problem solving skills. T. 152.

Socially, provided support in the classroom; based on the appropriate support and instruction provided, appears to have made progress academically and socially. provides the structure and support required for the child to make academic and social progress. The instruction and services were tailored to specifically address her areas of deficit so that she could learn. She was grouped with children with similar needs and made significant progress over the course of the year. As such, the parents have met their burden of proving that their unilateral placement is acceptable under the Burlington/Carter analysis.

PRONG III

THE EQUITIES SUPPORT A CLAIM FOR REIMBURSEMENT

A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” See N.R., on behalf of T.R., v. The Dept. of Educ. Of the City Sch. Dist. Of the City of New York, 2009 WL 874061 (S.D.N.Y., March 2009). The Court looks at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. See id. at 16. Both parties’ positions are considered. See SRO Appeal No. 04-045.

Nothing in this case suggests that the parents ever acted inequitably. The parent continually cooperated with the Committee on Special Education. The parents signed a contract with for the 2011-2012 school year and have been making payment to mitigate the costs pending the results of the hearing. Exhs. D, E. They continue to be liable for the full amount of tuition. T. 214. As demonstrated at hearing, the parents lack the financial resources to front the cost of tuition. Exh. F. As they have met the Burlington factors, they have a right to retroactive tuition payment. Mr. and Mrs. A v. NYC Dept. of Educ., 09 CV 05097 (February 1, 2011).

“In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See SRO Decisions 05-030, 04-091, 04-049. The parents cooperated with the CSE throughout the process and never obstructed the CSE. Despite the parents’ detailing their concerns about the IEP and placement recommendations, the CSE never remedied the issues or gave the parent an opportunity to discuss an appropriate program for , consequently, equity favors the parent.

As it is my determination that the Department failed to offer a FAPE for the 2011-2012 school year. I find that approximately 15% of the school day is devoted to “religious instruction” and accordingly that the tuition to be paid by the DOE be reduced by 15%. Therefore the Department shall be obligated to pay the sum of $47,345.00 as per my order attached hereto.

Dated: December 5, 2012

Corrected Dated: December 7, 2012 (Correction made on cover page)

___________________________

GARY D. PETERS, ESQ.

Independent Hearing Officer

GDP: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’S EVIDENCE

Exhibit Name of Document Date PAGES

A Daily Schedule 8/25/02 1

B IEP October 2011 13

C Attendance Schedule 2011/2012 1

D. Enrollment

contract/addendum 9/1/12 3

E Proof of payment various dates 2

F Tax Return 2010 2

G Affidavit of payment 8/1/12 1

DEPARTMENT’S EVIDENCE

1. Due Process Complaint 5/7/12 2

2. Due Process Response 5/11/12 4

3. FNR 8/9/11 1

4. IEP 3/10/11 19

5. IEP Minutes 3/10/11 1

6. NYC DOE CSE6’s

Observation 1/20/11 2

7 OT Update February 2011 1

8 Speech Progress

Report March 2011 1

9 Physical Therapy Update undated 1

10 Progress Report 2/28/11 2

11 Psych-Educ. Evaluation

Report 4/26/10 15

12 Letter from Parent to CSE 4/18/11 1

13 Letter from Parent to CSE 9/21/11 1