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

Dates of Hearing: August 1, 2012

January 10, 2013

February 14, 2013

February 25, 2013

March 6, 2013

April 18, 2013

June 11, 2013

July 11, 2013

July 29, 2013

Actual Record Closed Date: October 2, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 1, 2012

Esq. Attorney — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2013

Esq. Attorney — Parents

Mother — Parents

Esq. Attorney — DOE

Asst. Principal, DOE School — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRURY 14, 2013

Esq. Attorney — Parents

Mother — Parents

Esq. Attorney — DOE

Special Ed Teacher — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUAY 25, 2013

Esq. Attorney — Parents

Mother — Parents

Principal — Parents

(via telephone)

Teacher — Parents

(via telephone)

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2013

Esq. Attorney — Parents

Mother — Parents

School Psychologist — Parents

(via telephone)

Speech Therapist — Parents

(via telephone)

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2013

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2013

Esq. Attorney — Parents

Esq. Attorney — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2013

Esq. Attorney — Parents

Mother — Parents

Teacher, — Parents

(via telephone)

Director, — Parents

(via telephone)

Teacher, — Parents

(via telephone)

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED

Esq. Attorney — Parents

Mother — Parents

Occupational Therapist — Parents

(via telephone)

Exq. Attorney On August 1, 2012, January 10, 2013, February 14, 2013, February 25, 2013, — DOE

March 6, 2013, April 18, 2013, June 11, 2013, July 11, 2013 and July 29, 2013.

I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The parent asserted that the DOE failed to provide the student with a free appropriate public education (“FAPE”) for the 2012-2013 school year and seeks reimbursement for a unilateral placement for ”), a non public school which is not approved by the New York State Education Department as a facility with which a district may contract for the special education services (“NPS”). (Exs. A, P)

The proceeding was initiated at the request of the parent by correspondence dated July 2, 2012. (Ex. C) I was appointed Impartial Hearing Officer on July 9, 2012. I was available to commence a hearing within 14 days.

A hearing concerning pendency was held on August 1, 2012, pursuant to the parent’s request. (T. 3-12, Ex. C) However, the parent’s request for an interim order concerning pendency was thereafter withdrawn. (Ex. 16) ^[1]

At a telephone conference with the parties conducted on August 6, 2012, hearing dates of September 25 and October 1, 2012, the first mutually available dates for the parties, witnesses and the hearing officer, were scheduled. (Ex. I) Those dates were thereafter cancelled as a consequence of, among other things, the filing of an Amended Hearing Request by letter dated September 17, 2012. (Ex. B) A Second Amended Hearing Request was filed by letter dated October 29, 2012, received at the DOE’s Impartial Hearing Office on November 26, 2012, after the parent’s second visit to the proposed placement had occurred. (Ex. A) The delayed filing of the Second Amended Request was a consequence of Hurricane Sandy issues. (Exs. A, VI)^[2]

Positions of the Parties

The parent asserts that the student’s May 23, 2012 IEP was procedurally and substantively defective, that the parent was denied a meaningful opportunity to participate in its development and that the recommended placement pursuant to that IEP was not appropriate. Therefore the parent asserts that a FAPE was not provided for the 2012-2013 school year (12 month program.)^[3] The parent claims that the placement she unilaterally provided at Cooke was appropriate for this student. The parent further claims that equitable considerations do not bar or limit reimbursement in this matter, which the parent seeks. The parent also asserts that the student was entitled to busing for the entirety of the 2012-2013 school year and seeks reimbursement for expenses alleged to have been incurred during the school bus strike during that school year. (Exs. A, III)

The DOE asserts that the parent had a meaningful opportunity to participate in the development of the IEP, that the CSE satisfied procedural requirements, that a substantively appropriate program was provided and that it provided a placement which could implement the IEP as required. Further the DOE claims that the parent’s unilateral placement was not appropriate and that the reimbursement claimed should be denied for that reason. The DOE also asserts that equitable considerations warrant denial of the parent’s claim. (Ex. IV)

Cases Presented

Both parties submitted documentary evidence in this matter and a list of documents admitted into evidence is appended hereto. ^[4]

The DOE presented the testimony of: , CSE special education teacher who participated in the May 23, 2012 CSE review (“ ); , Assistant Principal of the recommended placement (“the AP”).

The parent presented the testimony of , Grammar School (“the ”); Christie student’s classroom teacher at ”); (“the Psychologist”); , the student’s therapist at SL”); , Director of the Director”); teacher who participated in the May 23, 2012 review (“ ”); , the occupational therapist who provided service to the student (“the OT”); the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

A) Initial Factual Findings

The student at the commencement of the 2012-2013 school year and entering grade. Her disability classification . (Ex. 3) The parent disputes that classification. (Ex.

III) The student has been classified with .

The student has especially in the domain, She has auditory processing difficulties, sensory deficits, is very interested in people and in peers and communicating with them, can become disregulated in certain circumstances. She has been diagnosed with . She is “ with . In May 2011, she remained unable to participate in standardized testing due to difficulties with self regulation, among other things. She is sweet and curious in nature. At the time of the CSE review in question in this proceeding, her reading and math functioning levels were reported to be first grade and respectively. (Exs. 1, 8, L)

The student received Early Intervention services from about 14 months and thereafter received services, including a full time SEIT, pursuant to CPSE IEPs. (T. 422425, Exs. 10-1, 20) Thereafter, CSE reviews were conducted. (T. 512)

The student attended the ”) from September 2004 (her kindergarten year) through June 2012, pursuant to the parent’s unilateral placements. (T. 425-426, 512, Ex.

20) Rebecca is a non-public school which has not been approved by the New York State Education Department as a school with which a district may contract for the delivery of special education services. utilizes the Floor Time/ Developmental Individual Difference Relationship Based (DIR) model. (T.607, Ex. J)

For the 2011-2012 school year the CSE had recommended a special class in a specialized school (12 months) with related services ( Therapy (“SL”) 3x30 and 2x30 2:1); (“OT”) 3x30 1:1 and 1x30 2:1); (“PT”) 1x30 1:1; 1x30 ). (Ex. 9) The parent rejected the program/placement proposed and the student attended Rebecca in a 12:1:4 class. The student was reported to have progressed in that program. (Ex. J)

During the 2011-2012 school year, the parent considered other placements for the 2012-2013 school year, the student’s grade year. (T. 449, 466)

On December 12, 201l, she executed an admission application . (Ex. 20)

On March 29, 2012, the parent executed a contract for the 2012-2013 school year (10 month program) commencing in September 2012 for $48,500 (including a nonrefundable deposit of $1000). The contract provided that the parent would be released without financial penalty, but for pro-rated tuition for the student’s period of attendance, should a DOE placement in a public school or NPS be accepted by October 31, 2012. (Ex. R)

On May 23, 2012, the CSE convened for an annual review to develop a program for the 2012-2013 school year. (Exs. 3, 7) The CSE again specified that the student’s disability classification and recommended a District Special Class (6:1+1) (12 month program), a full time crisis management paraprofessional and the same related services as provided in the previous IEP. ( Therapy (“SL”) 3x30 (1:1) and 2x30 (2:1); Physical Therapy (“PT”) 1x30 ( );Occupational Therapy (“OT”) 3x30 ( and 1x30 ( ); Counseling 1x30 ( ). (Exs. 3, 8)

Participants in the review were: CSE special education teacher ; a CSE school psychologist who also served as district representative; a CSE school social worker; the student’s special education teacher at ) who attended by telephone; the parent; and, a school social worker who was not the student’s counselor but who was assigned to that class. (T. 149-151, 428, Ex. 4) At the review ,the CSE was informed about the Cooke application. (Ex. 18-2) Further, the parent informed the CSE that she did not agree with the recommended program.

By letter dated June 7, 2012, the CSE recommended a placement at

P138M@P033M. (Ex. 12)

On June 11, 2012, the parent executed an for Summer 2012, specifying that tuition for that program was $7275 and that she would be released from the contract without any financial penalty if a DOE or NPS placement was accepted. (Ex. Q)

By letter dated June 15, 2012, parent’s counsel informed the CSE that unless an appropriate placement was offered, the student would attend Cooke and DOE funding would be sought. (T. 490, Ex. G)

The parent visited the proposed placement on June 15, 2013 after having been informed that the recommendation was for summer 2012 as well as the fall program. (T. 452-453, Ex. F) She concluded that the placement was not appropriate and so informed the CSE by letter dated June 18, 2012, specifying various reasons and informing the CSE that the student would be for the summer and, unless an appropriate placement was received, for the balance of the 2012-2013 school year. (T. 453-458, Ex. F) No response was received. (T. 455-459)

The parent attempted to revisit the proposed placement upon the opening of school in September. However, she was not permitted to do so until October 1, 2013. She again concluded that the placement was not appropriate and so informed the CSE by letter dated October 25, 2012, specifying various reasons and informing the CSE that the student would remain at and DOE funding would be sought. (T. 459-464, Ex. Q) No response was received. (T. 464)

The parent has paid a total of $55,775 for 2012-2013 school year tuition. (Ex. P)

B) Analysis

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which 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 appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

The parent asserts that the IEP is procedurally and substantively defective. ^[5]

Classification Issues

The parent asserts that the disability classification ” is not appropriate for this student and that the CSE failed to seriously consider her request that it be changed. (Ex.

III) She claims that there is in the student’s record and that the student is friendly and welcomes and desires social interactions with peers which she asserts is inconsistent and supports her conclusion that the classification is not adequately supported and that other classifications are appropriate. (Ex. III)

I find that the evidence does not support the parent’s claim that CSE did not seriously consider her claim and that she was on that account denied a meaningful opportunity to participate in the development of the IEP. I find that the evidence shows that the parent asserted her claims at the review and presented information she believed supported her request and the CSE discussed her request. (T. 441-442, 474, 614-615)

Further, the CSE was aware of the student’s desire for social interaction and communication, her friendliness and “real interest in people,” her like for group games and activities and talking about people and incorporated that information in the IEP. (Ex.

3) I credit the parent’s testimony that she was told that appropriate medical or similar support would have to be provided. (T. 207, 441-442) However, I conclude that the CSE’s rejection of a change in the classification in the absence of what it considered was appropriate support does not demonstrate a denial of parental participation but rather a rejection of that claim at that time.

With regard to a claim that a basis for the classification has not been established in this proceeding and the classification is not appropriate, I note that the DOE bears the burden of proof of establishing the appropriateness of the classification. Appeal No.03-

032. In this matter, no evidence of a diagnosis of or an disorder has been presented by the DOE and the parent’s claim that there is nothing in the DOE’s records to that effect has not been contested by the DOE. (T. 441-442) The mere fact that the classification had been made in the past, as is the case here, does not relieve the CSE of its burden to demonstrate the basis for that classification when it is challenged. (T. 155, Ex. 9) I conclude that the DOE has not demonstrated in this proceeding that the classification is appropriate.

However, I find that that does not require a conclusion that the IEP is substantively defective or constitute a basis for a conclusion that there is a procedural defect requiring nullifying the IEP. I note that the evidence shows that this student presents with a developmental disability significantly affecting verbal and nonverbal communication and social interaction, resistance to environment changes or changes in daily routines and unusual responses to sensory experiences, which factors are specifically referenced in the regulatory definition classification. 8 NYCRR 200.1[zz]. (Exs. 8, 9, L, J) Further, the program recommended although it “typically” has students with classification is not limited to that and may include others depending on their needs and that individual student needs are addressed by staff. (T. 54, 163, 193) In this with CSE review procedures and her rights under the IDEA and, further, that she is an attorney. (T. 512) See e.g. Appeal No. 07-060, Appeal No. 05-055 regard I note that the program is driven by student needs as opposed to disability classification and that the students in her classes had a variety of classifications including autism. (T. 334, 336, 586) To the extent that there was a procedural defect arising from classification, I find that in the circumstances here that did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decisionmaking process, or caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4])

Further, I note that the evidence in the record is insufficient for a determination by me that the CSE’s classification is incorrect. I conclude the evidence submitted herein concerning the classification is anecdotal. Both the CSE and parent may seek the evaluations and opinions of those qualified to provide it in this area and take appropriate action thereafter based upon the information provided. It is noteworthy in this regard that the psychological evaluation obtained by the parent from a psychologist characterized by the parent as “thorough” and utilized by the CSE in a prior evaluation does not reference classification although the parent asserts that it has been a longstanding parental concern.

(T. 441, 489, Ex. L)

Adequacy of Evaluative Material and Adequacy of Goals Issues

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. The parent asserts insufficient evaluative material was considered by the CSE.

The credible evidence shows that the CSE relied in its May 2012 review, which was an annual review, upon a comprehensive progress report prepared in December 2011, which included teacher and provider reports and included consideration of all the student’s goals at the time of preparation of the report and proposing modifications. (T. 148, Exs. 7, 18) Further, the student’s teacher participated in the review and provided updated information concerning the student’s progress in academics and in the area which included specific information as to how the student had progressed on various goals in that area since the issuance of that progress report. (T. 152, 188, 232, 497, 602-603, 639) The parent acknowledged that she had no dispute with the teacher’s appraisal. (T. 479) Although, the teacher did not provide information concerning the student’s progress with regard to related service provider goals, I find that the information with regard to the student’s needs in those areas was sufficiently timely and detailed to provide an adequate basis for the CSE’s recommendations in those areas. (T. 608-609, Ex. 8) I note that the related service recommendations continued unchanged from the prior IEP and were not disputed at the review. (T. 230, Exs. 1, 8) Further, I find that the IEP, considered as a whole provided, sufficient information concerning the totality of the student’s strengths, deficits and functioning levels.

I give the claims concerning inadequacy with regard to details of the goals/short term objectives little weight and conclude that they were at best de minimis objections. (T. 322-327, 384-385, 387-391, 396, 676-680, 684) I conclude that the parent substantially acknowledged that when asked why she did not raise objections to the goals when the IEP was received by her. (T. 503) Further, claims that the student had demonstrated a degree of mastery in certain objectives in September 2012, does not take into account the passage of time and the fact that the student had had an additional some 11 weeks of instruction since the CSE review. (T. 318-319) It is undisputed that the goals were written by the CSE subsequent to the review. (T. 189-190) However, I find even should that constitute a procedural error, I find it not a basis for concluding that a procedural defect impeded the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits occurred. Although the parent claims that the goals were not appropriate because written for a different type of program, the relevant concern is whether they were drafted to correlate with the student’s needs and abilities. Appeal No. 11-040. I conclude that is the case here. Further, I note that the student’s teacher testified that the CSE had changed the wording of the goals which, although covering the substance, were not in the form that she would have used. (T. 629, 638)

^[6]

Issues concerning the Class with Full Time Crisis Management Para

For the reasons discussed below, I conclude that the DOE has failed to demonstrate that that the CSE recommended a program designed for this child’s unique needs and reasonably calculated to enable her to make meaningful educational gains.

The evidence shows that the CSE was aware that this student had substantial desire for and would benefit from interaction and communication with verbal and social peers. (T. 615, Ex. 3) However, the CSE added a full time crisis management para to an already restrictive 6:1:1 program not based upon a CSE determination as to the student’s needs but rather as a substitute, albeit well intentioned, for limited transitional support services the CSE believed the student needed but which it would not provide. As a consequence, the CSE, without appropriate justification and not based upon the student’s needs, made a restrictive program more restrictive.

The parent and the teacher testified that the CSE had been informed that the student had had in the past difficulties at times of transition and/or substantial changes in environment and that additional support in the form of a degree of one to one assistance from a paraprofessional might be helpful during a transitional period were she to enter a different and more structured environment. (T. 446, 610, 622-624, 626) The CSE responded that it could not recommend a para designated as an aid for transition. Rather, the parent and teacher were asked to describe behaviors that the student had exhibited in transitions and they did so. Although there had been no discussion as to the length of time the para would be provided, after the review the CSE recommended a full time one to one crisis management para and developed a BIP/FBA specifying that various behaviors were ongoing.

(T. 446-448, 503-504, 610, 622-627, Exs. 5,6) I find the foregoing testimony credible and concluded that it was substantially corroborated by , the CSE team member. (T. 196-199) Indeed, I note that agreed that the BIP included no plan as to how to address the behaviors specified, further supporting the testimony that the the programmatic addition of the para not necessary for this student. (T. 200-202, Ex. 6)

Both the parent and the teacher testified that student behaviors were limited and that the student did not require a full time para. (T. 417, 503, 610) It is also noteworthy that both the Director and credibly testified as to the limited nature and duration of the student’s behavioral difficulties and that testimony was consistent with what was told to the CSE. (T. 330, 341-343, 379-380, 574, 579-580, 596) Evidence acquired subsequent to the review may be used to evaluate the reasonableness of the district’s decision at the time it was made. R.E. v. New York City Dep’t. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) Although the DOE has made no claim at this time that this could be remedied by the future removal of the para as the student settled in, I note that that claim would be “retrospective” since not made to the parent at the review and hence foreclosed by R.E.

Given the profile of this student, I conclude that the addition of a full time one to one para will likely result in the undermining of interactions with peers, which the evidence shows is particularly necessary of this student, regardless of her classification.

Accordingly, I conclude that the DOE has failed to establish that the program it recommended was reasonable calculated to enable the student to make meaningful educational gains.

In view of the foregoing findings I do not address the parent’s other claims, procedural and substantive, concerning the program except to note that I find credible the testimony of the parent and teacher about what occurred at the CSE and of the opinions they expressed at the time of the review. I note that their testimony regarding that was substantially confirmed by . Further, I find staff witnesses testified credibly concerning the opinions they held as to the student’s needs with regard to language and peer interaction and the appropriateness of program for this student. Although their opinions were not known to the CSE, their testimony bolsters my findings as to the credibility of the parent and the teacher’s descriptions of the student which were communicated to the CSE.

Placement

In view of the foregoing findings, I do not address the parent’s claims concerning the proposed placement. However, I note that I find credible the parent’s testimony concerning what she was told and what she observed at the time of her visits in June and September.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007)

I find that the parent has made that demonstration here.

With regard to the 10 month , the credible testimony of Cooke staff shows the following:

The school serves students 5-15 years old in grades Kindergarten through eight, with mild to moderate cognitive or developmental disabilities and a range of classifications including autism and had during the 2012-2013 school year some 104 students. (T. 258-260 Ex. O) It follows New York State Academic standards and integrates academics with adaptive and daily living skills and skills instruction as well as related services. (T. 258-259, Ex. O) Classes do not exceed 12 students, with a head teacher and an assistant teacher, both usually with Masters degrees in special education.

(T. 260, Ex. O) Staff collaborate extensively, routinely participate in meetings to coordinate services and address student needs, and staff receive substantial training. (T. 261-264, 295, 334)

This student was in a class, with students ages 10-11, and classroom staff included a head teacher who was a certified special education teacher with substantial experience, an assistant teacher and two paraprofessional assigned to individual students in the class. (T. 293-294, 298) Classroom staff and related service providers had weekly meetings to discuss student needs. (T. 294-295, 411) Instruction was provided through large and small group instruction, with small groups organized according to student’s levels for certain academic area including guided reading, writing, word study and math.

(T. 300-301) The student received instruction in guided reading, word study, writing, social studies, math and science, as well as social skills, art, physical education, yoga, technology and drumming. (T. 309-312, Ex. M)

For guided reading instruction, which focused on reading comprehension and used Fountas and Pinnell intervention benchmark books, the student was in a group of 6, all functioning on an early second grade level. (T. 300-301) Word study was provided in a group of three, all on a first grade level, and utilized a multi-sensory program focusing on sounding out and spelling words to improve the student’s writing and utilize her sightword vocabulary. (T. 301-302) Writing instruction was in a group of five, all functioning on a first grade level, and focused on going through and practicing different genres of writing. (T. 303) Math instruction was in a group of eight, all functioning on a first grade level, and utilized TERC math, manipulatives, built-in repetition and practice applying skills. (T. 303-304, 329)

Instruction for this student, in view of her learning style and needs, utilized an iPad and other technology, related content to music, multisensory instruction, provided movement breaks an OT created sensory diet as well as sensory breaks. (T. 309-310, 313, 334, 351-352) Community trips reinforced classroom content. (T. 313-314)

Related services were provided by appropriately licensed and/or supervised therapists. (T. 271-273, 304-305, 367-370, 665-666-669, Exs. U, JJ) OT was provided once per week individually and once per week in a group with the physical therapist, and a sensory gym was utilized as needed throughout the day and provided appropriate vestibular and proprioceptive input, necessary to enable her to stay regulated and available for learning. (T. 662-668, 670-671, Ex. GG-22) PT was provided twice weekly to address gross motor issues. (305, 307-08, 371-372, Exs. U, GG)

The student’s needs were addressed with intensive modifications of instruction and socialization with an appropriate peer group for positive language models. (T. 296-

298) Frequent repetition, extra time to respond, prompting and scripting and graphic organizers were utilized in class. (T. 268, 313, 353) The SL was provided twice a week individually and twice a week in a group on a push-in and/or pull-out basis as was concluded was appropriate in view of generalization and other needs of the student. (T. 405-406, 408-410) Grouping was with students determined to be appropriate to provide an opportunity for the student to develop necessary conversational skills. (T. 409-410, 416)

The student’s needs were addressed through appropriate social models in the classroom, counseling once per week individually and once per week in a group social skills class and the school’s cooperative learning model.(T. 269-270, 298, 336-337, 374375)

With regard to the , credible evidence shows that it was a six week program designed to reinforce academic skills through academics, social opportunities, related services and community trips. (T. 568-569, Ex. N) The student was in a class of eight, ages 8-10, all functioning on a first to second grade level. 9T. 572-573, 575-576) The classroom was staffed by a certified special education teacher, an assistant teacher and a classroom paraprofessional. (T. T. 573, Ex. U) Literacy and math instruction were provided in groups of two to four students, depending on the skill and related services were provided by licensed providers. (T. 575-577, 598-599, Exs. DD, FF) Transitioning was supported. (T. 573-574) The student made progress in independence and academic engagement and maintained related service and other skills. (T. 568-569, 579, 597, Exs.

N, D-FF)

The student’s progress was evaluated through regularly scheduled normreferenced assessments and three progress reports. (T. 270, 288, Ex. GG) Demonstrated progress was made in communication and social skills, academically, in the development of independence receptive, expressive and pragmatic language skills and OT goals. (T. 265, 279, 309, 328-330, 337, 382-383, 388-390, 410-411, 465, 674, 679, 681-686)

I note that related service levels did not precisely track the IEP. However, that is not required in a private placement and, in the circumstances here, I conclude that the services were appropriate in the context of the entirety of the program provided. Gagliardo, 459 F.3d at 102. See also T. 412, 686) Further, with regard to the absence of a one to one crisis management para, the credible testimony established that that support was not required to enable the student to make appropriate educational gains. (T. 328) Although the evidence shows that the student had transition difficulties at the beginning of each of the programs, staff were able to address this appropriately. (T. 330, 341-342, 379-380,574, 579-580, 596) A very limited number of incidents of physical aggression occurred but were appropriately addressed collaboratively. (T. 319-322, 378-380) Indeed, the student was consistently acknowledged for respectful and kind behavior. (T. 311-312, 350, 411-412)

The DOE asserts that the unilaterally provided program was not appropriate. It asserts in support of this claim that the staffing ratio was insufficient in view of this student’s needs. (Ex. IV) However, I find credible the testimony that the student has progressed and progress is a factor that may be considered in determining whether a parent’s program is appropriate. Gagliardo. I also conclude that the instructional methodology, grouping and behavioral supports are aligned with the student’s needs. The fact that the student is at the bottom of her class socially and still needs prompting and scaffolding to hold a spontaneous conversation and sustain attention is not a basis for a conclusion that the program is not appropriate here where the persuasive evidence shows that this student benefits from peer models and has advanced socially in the program provided. (T. 336-337) I also note with regard to appropriate grouping that students in her class are functioning academically at a lower level. (T. 355) Further, as discussed above, she has made academic progress in the program provided. The parent need not demonstrate a perfect program for entitlement to reimbursement.

I find that the parent has met her burden to establish that the unilateral program she has provided is reasonably calculated to provide meaningful educational benefits.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. The DOE has the burden with regard to this issue.

In the instant matter, the DOE has not claimed, and the evidence does not support that claim, that the parent failed to cooperate in the development of the IEP or in the designation of an appropriate placement. I give no weight in the circumstances here to the execution of the contract prior to the CSE review, and the earlier application which, I note, was substantially disclosed at the review. The parent credibly testified that those actions were necessary to ensure a place that in the event the CSE failed to provide an appropriate program/placement. (T. 467-470) Further, the contracts for both the summer and 10 month school year programs specify limits on parent’s financial liability in the event that a DOE placement is accepted and the parent’s testimony that that was her understanding is credible. (T. 469-470, Exs. Q, R) Moreover, I note that a parent’s preference for a private school, even if established, and even the signing of a contract prior to an IEP review, is not dispositive of a claim for DOE payment. Appeal No. 05-

087. I find no basis in equity for denial or limitation of tuition reimbursement.

Transportation Reimbursement Claim

The parent seeks reimbursement for transportation provided to the student during the school bus strike for which she has a pending claim on file on claim with the Office of Pupil Transportation pursuant to policies it established in those unique circumstances and which are not known to me. In those circumstances, I decline to order reimbursement for that period in this matter. (Ex. HH)

ORDER

The student was entitled to attend for the 2012-2013 school year (12 month program) with special education transportation provided by the DOE in accordance with its policies with regard to the provision of that.

The DOE shall immediately reimburse the parent for Grammar School tuition for the 2012-2013 school year, totaling $55,775, upon receipt of satisfactory evidence as to attendance and parent payment.

Dated: October 25, 2013

_________________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 WITHDRAWN Department of Education

2 WITHDRAWN Department of Education

3 IEP, 5/23/12, 19 pgs. Department of Education

4 Attendance Page-IEP 5/23/12, 1 pg. Department of Education

5 FBA, 5/23/12, 2 pgs. Department of Education

6 BIP, 5/23/12, 1 pg. Department of Education

7 Meeting Minutes, 5/23/12, 1 pg. Department of Education

8 Interdisciplinary Rpt Prog. Update, 12/2011, 22 pgs. Department of Education

9 IEP, 5/10/11, 18 pgs. Department of Education

10 Social History Update, 4/20/11, 4 pgs. Department of Education

11 Classroom Observation, 11/12/10, 3 pgs. Department of Education

12 FNR, 6/7/12, 1 pg. Department of Education

13 WITHDRAWN Department of Education

14 DOE Subpoena for Doc. 8/10/12, 3 pgs. Department of Education

15 DOE Objections to Parent Subpoenas, 9/10/12, 3 pgs. Department of Education

16 E-mail Chain Re: Pre-hearing Conference and Department of Education

Subpoena Objections, various dates, 12 pgs.

17 Signed parent Subpoenas to DOE, 9/17/12, 4 pgs. Department of Education

18 Notes from IEP Meeting, 5/23/12, 2 pgs. Department of Education

19 Due Process Response, 12/17/12, 3 pgs. Department of Education

20 -2012 Admission Application, 12.12/11, 7 exhibit Department of Education pgs. (4 pgs)

A Second Amend. Impartial Hear. Req., dated 10/29/12, Parent

14 pgs. (double spaced version)

B Amended Impartial Hearing Req., 9/17/12, 7 pgs. Parent

C Impartial Hearing Request, 7/2/12, 6 pgs. Parent

D Let to w/fax trans rpt, 10/25/12, 5 pg. Parent

E Let to w/fax trans rpt, 9/13/12, 3 pgs. Parent

F Let to w/fax trans rpt, 6/18/12, 5 pgs. Parent

G Let to w/fax trans rpt, 6/15/12, 2 pgs. Parent

H Let to w/fax trans rpt, 5/21/12, 3 pgs. Parent

I Let to w/fax trans rpt, 4/29/11, 6 pgs. Parent

J Eval, 4/25/11, 5/5/11, 5/13/11, 9 pgs. Parent

K Acad. Prog. Rpt, Summer 2012, 4 pgs. Parent

L Interdiscip. Prog Rpt Update, 6/2012, 19 pgs Parent

M , 2012-2013 Class Sched. 2012-13, 1 pg. Parent

N Acad Prog. Descrip, undated, 3 pgs. Parent

O . Prog Descrip- Mission State. 5 pgs. Parent

P Affidavit of , 1/18/13, 2 pgs. Parent

Q Summer Enrollment Contract, 2012-13, 2 pgs. Parent

R 2012-13 Attendance Records, 2012-13, 2 pgs. Parent

S Attendance Records, 2012-13, 2 pgs. Parent

T Proof of Payment, Misc dates, 6 pgs. Parent

U Qual. & Certif. of Staff, misc. dates, 45 pgs. Parent

V Spec. Ed. Service Delivery Rpt., 2012, 1 pg. Parent

W 2012 Staff/Stud. Organ., 7/29/12, 2 pgs. Parent

X 2012 Tent. Staff/stud organiz 2012-13, 8/4/12, 2 pgs. Parent

Y Stud. Attend. Chap 683-2012, 7/20/12, 1 pg. Parent

Z Official Class List for 138, 1/23/12, 2 pgs. Parent

AA Class Schedule, Undated, 2 pgs. Parent

BB Register (total school pop-only in evid.), 5/17/13, 1 Parent pg.

CC OMITTED

DD Daily Sched: Level III (Summer 2012), undated 1 pg. Parent

EE Summer Curric Guide, July 2-Aug 8, 2 pgs. Parent

FF Summer Rpt,, Summer 2012, 4 pgs. Parent

GG Prog. Rpt, March 2013, 24 pgs. Parent

HH Travel Reimb. Forms and Receipts, Feb. 2013, 4 pgs. Parent

II Exc. From NYC DOE SOPM, Feb. 2009, 5 pgs. Parent

JJ Affidavit of , 4/17/13, 2 pgs. Parent

I Prehear Conf Memo Impartial Hearing Officer

II Compliance date extension documentation Impartial Hearing Officer

III Parent Closing Memo Impartial Hearing Officer

IV DOE Closing Memo Impartial Hearing Officer

V E-mail re delayed decision issuance, 10/15/13 Impartial Hearing Officer

VI Emails re Second Amended Request, 11/26/12 Impartial Hearing Officer

Footnotes

[1] In her Second Amended Complaint, filed in November 2012, the parent requested a determination that The Rebecca School, the student’s placement through June 30, 2012, is the student’s pendency placement. (Ex. A) That claim was not thereafter reiterated or addressed in the parent’s closing memorandum and I conclude that that claim has been withdrawn. (Exs. 16, III, VI) Further, I note that the prior hearing officer decision alleged to support that claim is not in the record. (Ex. A) I also note very substantial differences in staffing ratios and instructional methodologies that I conclude are sufficient to support a conclusion that Cooke is not appropriately considered a pendency placement.

[2] The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence in the circumstances of Hurricane Sandy’s impact and numerous medical emergencies, and the submission and consideration of closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions provided. (T. 18-20, 132, 137-138, 244-245, 249, 311, 322, 530, 535-536, 655, Exs. II) The current compliance date is November 12, 2013. The record closed on October 2, 2013 upon my receipt of all post-closing memoranda. Issuance of the decision in accordance with regulatory time requirements was delayed by hearing officer illness and the parties were notified concerning the situation. (Ex. V)

[3] During the hearing, the parties noted a clerical error in the Second Amended Hearing Request with regard to the period for which a denial of a FAPE was alleged and the parties to a correction. (T. 252-253)

[4] Review of the transcript indicates that Exhibits A-O, Q-S and V may not have been formally admitted into evidence. However, they are included in the record of this matter and specified on the appended Exhibit list.

[5] In her hearing request, the parent asserted improper CSE composition arising from the absence of a parent member and there is testimony in the record with regard to that issue. (T. 428-429, Ex. A) That claim was not addressed in the parent’s comprehensive closing memorandum and I conclude that it has been abandoned. However, with regard to that claim I note that a parent member is not required in all annual reviews and conclude that it was not required here. See 8 NYCRR 200.3[c][2]-[5] Further, even had a parent member been mandated and the absence of one a procedural defect, I find that did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) I note that the parent has substantial experience

[6] The DOE does not specifically address the issue of behaviors which suggests a claim by it that it may not be considered by me. (Ex. IV-4) However, this issue was specifically raised in the parent’s Second Amended Hearing Request. (Ex. A) Further, it was the subject of testimony without objection by DOE’s attorney. Accordingly, I give no weight to a claim that it is not properly before me at this time.