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: March 5, 2012

March 28, 2012

April 16, 2012

April 18, 2012

May 17, 2012

June 12, 2012

July 17, 2012

January 24, 2013

Actual Record Closed Date: May 2, 2013

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2012

Attorney — Student

Attorney — DOE

Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2012

Attorney — Student

Attorney — DOE

Psychologist (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2012

Attorney — Student

Parents

Administrative Coordinator, Program (via telephone) — Student

Attorney — DOE

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

Attorney — Student

DR., Physician (via telephone) — Student

DR., Psychologist (via telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

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

Attorney — Student

Teacher (via telephone) — Student

Dean at (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2012

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2012

Attorney — Student

BRITTANIA STEWART, Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2013

Attorney — Student

Attorney — DOE

On January 15, 2013, I was appointed, following the recusal of the previously — DOE

appointed hearing officer, to conduct an impartial hearing pursuant to the Individuals with — DOE

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or “ .”) seeking an appropriate education placement from the New York City Department of Education (“DOE”) for the 2011-2012 school year.

I. BACKGROUND

This case was initiated as a result of a demand for due process (“Demand,” see P-

A) filed by the student’s Parent through her advocate(s), Susan Luger Associates, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about October 13, 2011, and identified as NYC Case No. 135692. Thereafter, , Esq., entered an appearance on behalf of the parents and their child. , Esq., appeared on behalf of the DOE.

In their demand for due process, the parents allege that the DOE failed to offer the student a free and appropriate public education for the 2011-2012 school year. The parents of the student had rejected the DOE’s recommended placement, and thereafter sought tuition reimbursement and/or prospective tuition payment for .’s attendance at for the 2011-2012 school year, transportation to the unilateral placement, and payment of costs for related services for that same school year.

Prior to my appointment, seven days of hearing were conducted: March 5, 2012; March 28, 2012; April 16, 2012; April 18, 2012; May 17, 2012; June 12, 2012; and July 27, 2012. Three of those days no witnesses testified. A full list of hearing participants precedes this decision; a list of exhibits accepted into the record follows.

The parties expected a final decision shortly following the July 27 hearing on or about August 29, 2012. Inexplicably, the previously appointed hearing officer, IHO ”) failed to issue a final determination. On or about October 1, 2012, Ms. wrote to IHO Abberbock inquiring as to the status of the case. See P-Y, pg. 1. IHO Abberbock replied she required an additional three weeks in order to formulate her determination and apologized for the delay. Id. at pg. 2. On or about November 13, 2012, IHO Abberbock wrote to the Case Manager assigned to this matter, stating that,

“[u]nfortunately my house was badly damaged by the Hurricane (sic) and I am working on relocating. Thus I have not been able to complete my decision in this matter. Unfortunately, I cannot give you a projected completion date at this time. Thank you for your understanding and patience.”

Id. at pg. 3. Thereafter and at the joint request of the parties, IHO Abberbock recused herself on or about December 10, 2012. Id. at pg. 5. I accepted appointment on or about January 15, 2013.^[1]

The parents raised the following issues in their demand for due process for determination at hearing:

1) The June 1, 2011 individual education plan (“IEP”) failed to offer the student a free, appropriate public education (“FAPE”) in that:

a) the Committee on Special Education (“CSE”) was improperly comprised, lacking a (i) special education teacher, (ii) parent member, and (iii) the team members did not stay for the entire meeting;

b) the IEP contained goals and/or short term objectives that (i) did not address the student’s individual needs, and (ii) were not drafted collaboratively at the meeting;

c) the IEP lacked a transition plan to address the student’s post-secondary career;

d) The recommended program was inappropriate in that it did not offer adequate or appropriate supports, supervision or services for the student to make educational progress.

2) The placement recommendation, listed in the DOE’s Final Notice of Recommendation (“FNR”) had previously been rejected by the parent and continues to be inappropriate for the student because (a) the school is too large and would be overwhelming for . in light of his social ,

(b) the class size and student to teacher ratio are too large for . to benefit educationally, (c) there lacked sufficient opportunity for individual instruction, and (d) the DOE did not make a timely recommendation prior to the start of the school year.

3) The parents are entitled to equitable remedy of tuition reimbursement for their unilateral placement of , a private, non-state approved educational placement, for the 2011-2012 school year as well as (a) the costs of any related services, (b) door-to-door transportation, and (d)

costs and fees associated with the action. See P-A, pgs. 2-4.

II. STANDARD

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

Subsequent to the parties’ submission of evidence in support of their respective burdens, the Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012). Here, the parents rejected the CSE’s recommended program and placement for the school year in question prior to the start of the school year and before observing the recommended placement. See P-E (letter dated August 1, 2011). I note that wrote that the DOE’s recommended placement was viewed by the family at some unspecified point in the past. Reviewing the record, there is no indication when the family viewed any placement at , or whether the actual placement recommendation in question was ever viewed by the family. father was unsure if or when any site visit occurred (Tr. 289-290), and never viewed the placement recommendation himself (Tr. 290-291). In fact, .’s father did not even attempt to view the placement until approximately two months prior to his testimony (estimated February 2012), some four months after the filing of the parents’ due process complaint (Oct. 3,

2011) and six months following the parents’ rejection of the DOE’s recommendation (Aug. 1, 2011). See Tr. 290-29; P-A and P-E.

To the extent that .’s father testified about an alleged conversation his wife had with an assistant principal from in a prior a school year regarding the appropriateness of the placement ., I find that such testimony is insufficient to put the DOE on notice as to the issues the parents had concerning the DOE’s placement recommendation. See Tr. 268,

289. While hearsay is generally permissible in these special education due process hearings, I find that multiple levels of hearsay are too tenuous and unreliable in this instance. Here, ’s father testified about a conversation he had with his wife concerning a conversation she had with a third party. Inasmuch as, even were the offered testimony found to be true as described, such testimony speaks to a prior school year and an IEP not at issue in the present hearing nor before me for determination.

In addition, I find that online research conducted by the family concerning the proposed school’s overall performance is insufficient to raise a credible challenge to a placement recommendation. See Tr. 270-271, 291. To do otherwise would essentially be a holding that any overall school score or “grade” might invalidate a placement recommendation, regardless of the quality, or lack thereof, of the specifics of the placement and without consideration of the individual needs of the child.

Furthermore, a review of the parent’s demand for due process reveals that no specific challenge was raised challenging the school placement, instead including what appears to be boilerplate language of uncertain inappropriateness. See P-A at 3. Certainly, the parents are unable to plead their rejection was premised on the viewing of the placement following the DOE’s act of recommending placement since the father’s visit occurred after the start of the school year in question and after the initiation of the due process hearing. Inasmuch as that the parents’ determination to unilaterally place . was premised on their view of the appropriateness of the IEP itself, I find that the question of whether the specific placement was challenged by the parent was not Therefore, I hold that the DOE is not required to defend the specific placement recommendation in this matter as per the holding in R.E. Likewise, I have not considered the offered evidence defending the proposed placement for the 2011-2012 school year, and instead limit my determination to assessing the appropriateness of the offered program through the 20112012 IEP.

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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'" Walczak, 142 F.3d at 130. 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). 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); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

Not all procedural errors invalidate an IEP under the IDEA. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative 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 decisionmaking 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)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71. "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 offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148.

A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" Frank G., 459 F.3d at 364.

III. PRONG I

FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a special education program. The program addresses the child, not the child’s classification or diagnosis. To perform this task, stakeholders – here members of the CSE – must identify the abilities (and deficits) of the child (present levels of performance and needs).

The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or

FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. A FAPE is offered to a student 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. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982). The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

The parties met to hold a Committee on Special Education (“CSE”) meeting on June 1, 2011 to develop an educational program recommendation for . for the 20112012 school year. See P-B. old at the time of the meeting. Attendees included parents, ’s advocate, as school psychologist and district representative, as special education teacher, as CSSE audiologist, and three representatives from .’s private program including (Focus Teacher and Dean), (Program Coordinator – by telephone), and Hibbard (Academic Teacher – by telephone). P-B at 2; D-10. The participants from Winston Prep supplied current progress to the CSE. Tr. 62.

The CSE described . as attending at the time a pre-vocational life skills program. P-B at 3. He is described as demonstrating decoding, spelling and reading comprehension skills at a level, critical reading skills at a second to level, and writes on a level with an inability to independently write a paragraph. While he could read the newspaper, he could not make connections independently. Math computation and reasoning were assessed at level, but had difficulty with independent money management. Id. The CSE noted that . required a multi-sensory approach to instruction, graphic organizers, highlighters and margin notes, end of page and chapter summaries, proof-reading and editing checklists, and ongoing teacher checks for comprehension and understanding, along with other interventions.

Mr.^[2] advised the CSE of .’s social performance and progress; Ms. advised the CSE of .’s academic functioning; Ms. discussed additional academic functioning as well as .’s performance in the program. Tr. 64. The parents reported to the CSE that was showing social progress including increased confidence and levels of self-esteem as well as an improving ability to interact appropriately with peers. However . continued to have difficulty reading social cues, make social connections, and communicate with others verbally. . had volunteered at a local animal shelter in the previous school year and conducted himself “almost independently.” Id. at 4. The CSE noted that did not . The CSE noted that . needed structure and clear expectations provided, praise and positive reinforcement, along with other supports.

The CSE also noted that . was in generally good health, . The CSE recommended discontinuing .’s FM unit based on reports he could focus adequately without the device. Id. at 5; see also Tr. 63-64.

The DOE presented the testimony of one witness to defend the IEP at issue: , a NYS certified school psychologist employed by the DOE. Tr. 54. Overall, I found the witness to be credible. She answered with clarity and forthrightness on both direct- and cross-examination.

I have not considered the testimony of Ms. at all. Ms. was shown a copy of a transcript containing her testimony from a prior day prior to her beginning crossexamination. See Tr. 500-501. The previous permitted her to testify over the objection of the DOE’s attorney. Tr. 502.

Gerard Morand testified at the hearing, but did not offer any testimony concerning what transpired at the CSE meeting at issue. See Tr. 544-588.

Overall, I find that the DOE presented credible evidence in support of the IEP it developed for . I further find that the evidence was contradicted by any witness offered in support of the parent’s claim. I find that the DOE has met its burden in demonstrating FPAE was offered to . for the school year at issue.

a. CSE Composition

The parents have alleged that the CSE was improperly comprised, lacking a (i) special education teacher and (ii) parent member, and that (iii) the team members did not stay for the entire meeting.

The IDEA requires a CSE to include one special education teacher of the student, or where appropriate, not less than one special education provider of the student. 20 U.S.C. § 1414(d)(1)(B)(ii-iii); see 34 C.F.R. § 300.321(a)(2-3); 8 NYCRR 200.3(a)(1)(iiiii). The Official Analysis of Comments to the federal regulations indicate that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP. IEP Team, 71 Fed. Reg. 46670 (Aug. 14, 2006).

The parents have alleged that the DOE’s failure to include the attendance of a parent member resulted in a denial of FAPE. Here, no parent member attended the CSE meeting. See P-B at 2. While the State Review Office has ruled that a failure to include a parent member a review meeting is not a violation if the student was “not being considered for initial placement in special class, a school primarily serving students with disabilities, or a school outside of the student's district.” Application of a Student with a Disability, Appeal No. 11-042, pg. 14 (June 20, 2011)(Under State regulations, the CSE could have permissibly proceeded as a CSE subcommittee, and an additional parent member would not have been a required participant). I find that this CWE in the instant matter could have equally been convened as subcommittee, similarly to the situation described in SRO Appeal No. 11-042. Therefore and while I find that the District failed to ensure the attendance of a parent member at its committee, such an absence does not appear to have (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. A close review of the record reveals no instance where the attendance of a parent member would have impacted the functioning of the committee or its eventual recommendation. Nor did the absent of the parent member impede the ability of the student’s parents to participate at the meeting. By all accounts, including those of the father during his examination, the parents were presented with a full and complete opportunity to provide information to the CSE, either themselves individually or through P.W.’s providers. Therefore, I find that such a failure does not rise to the level of a FAPE violation.

The parents alleged that the CSE members did not stay for the full meeting to discuss .’s IEP. No evidence was offered in support of this claim. It appears from a full review of the record that all members participated for the full meeting. I can find no

b. Goals and Objectives

The parent has alleged that the goals and/or short term objectives included in .’s IEP at issue do not address the student’s individual needs, and were not drafted collaboratively at the meeting.

At the outset, I find no support in the record that the parents lacked input into the creation of the goals included .’s IEP at issue.

The IEP includes a total of ten goals covering a number of broad areas. P-B, pgs. 6-13. By way of example, the first goal reads:

“In one year, using a structured and systematic decoding program, with multi-sensory input, multi-syllabic words will be read utilizing syllable types and syllabication rules such as (1) closed VC (ex. Let, tin, fun), (2)

open CV or V (ex. Si-lent, o-pen), (3) vowel-consonant-silent E (VCE)

(Ex. Cape, pipe), (4) vowel combinations (Ai, Oa, Aw), (5) Suffixes, and

(6) r-controlled words (i.e. art, term, dirt). Structural analysis, such as roots, prefixes, and suffixes, and additional instruction, repetition, review, drill, and practical applications will be provided. 80% accuracy will be attained over each of 3 consecutive assessments for each targeted skill.3”

P-B at 6. Reviewing the language of the goal, I find that it specifically targets the student’s area of need as identified in the present levels of performance and needs statement. It appears to be measurable, and sets clear criteria for mastery. Likewise, the second goal reads:

“In one year, reading comprehension of texts written at instructional reading levels will improve, including identification of main ideas, essential details, inferences, conclusions, cause and effect relationships, and character analysis, through the use of systematic and explicit instruction in active reading strategies, such as reading aloud, questioning, rereading confusing sections, completing graphic organizer, and highlighting and writing margin notes. 80% accuracy will be attained on 5 assignments covering targeting skill areas.”

P-B at 7. I find this goal also to be appropriate for the same reasons. Furthermore, I find that each of the subsequent goals included ’s IEP meets this same standard. Overall, I find that the goals, as written, are sufficient to provide the student with FAPE.

In .’s father’s testimony, I find that his memory does not support the allegations contained in the complaint that there was no discussion concerning the student’s goals for the 2011-2012 school year. Tr. 292-294. Nor was the witness asked to testify at all about the content of any of the discussions had .’s June 2011 CSE.

Reviewing the goals contained in .’s IEP, I find that there is a corresponding goal to every area of the student’s identified needs. I note that there is no challenge to student’s description contained in the present levels of performance or identified needs in the IEP. Furthermore, I find that the goals provide specific direction to the service

The goals in the IEP were written in all-capital letters. They have been changed for readability. providers expected to implement them, describe expected progress in order to attain mastery, reference instructional levels as described .’s present levels of performance, and otherwise constitute appropriate goals for this student.

c. Transition Planning

The family alleges that the IEP fails to account, or make appropriate recommendations, for the student’s post-secondary school career. The Commissioner’s Regulations require that:

For those students beginning not later than the first IEP to be in effect when the student is age 15 (and at a younger age, if determined appropriate), and updated annually, the IEP shall, under the applicable components of the student’s IEP, include:

(a) under the student’s present levels of performance, a statement of the student’s needs, taking into account the student’s strengths, preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff) of this Part;

(b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills;

(c) a statement of the transition service needs of the student that focuses on the student’s courses of study, such as participation in advanced-placement courses or a vocational education program;

(d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and

(e) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting.

8 NYCRR 200.4(d)(2)(ix).

Ms. testified that a Level I assessment was administered to the student, in which . described an interest in working with animals or in cooking. Tr. 71-72; 86-88; D-8. There, .’s mother described him as likely living at home until he gets to independent living following graduation. Id. A review of the applicable sections of the IEP reveal that the CSE has minimally described .’s vocational interests and future opportunities as required by the statute and regulations. I find that the DOE has presented credible evidence demonstrating it met its burden here.

d. Substantive Appropriateness

The CSE discussed a number of placement options for the student, particularly whether to place P.W. in a special class in a special school, or in a self-contained class in a community school. In reviewing the record. After considering .’s ability to independently travel – including driving a vehicle independently (Tr. 87, 94), as well as his current levels of functioning (Tr. 93-94), lack of need for individualized instruction (Tr. 92), and after considering the likely profile and functioning of peers in each program (Tr. 90, 92-93), the CSE recommended a class program in a community school.

Based on the reports submitted into the record, as well as the testimony of the various witnesses, I find that the CSE recommended a program appropriate for ., that was likely to promote meaningful progress in the least restrictive environment. I find that the record supports the recommendation that be educated in a 15:1 class with access to non-disabled peers. I further find that . has shown an increased ability to function independently, and would benefit from the recommended program.

e. Timeliness of Recommendation

The parents allege that the DOE failed to make a timely program and placement recommendation for P.W. prior to the start of the 2011-2012 school year. The evidence presented at hearing show that the DOE advised the parents of its placement recommendation by way of a Final Notice of Recommendation dated June 29, 2011. See P-D. Such is confirmed by .’s mother’s letter to the CSE, dated August 1, 2011. See P-

E. Therefore, I find there is no support of the allegation that, based on the parents’ own documents, the DOE failed to make a timely recommendation.

Overall, and in consideration of the totality of the documentary evidence and testimony, as well as the specific issues addressed above, I find that the DOE has met its burden to demonstrate . was offered a FAPE in his least restrictive environment. Furthermore, I find that the DOE has presented credible evidence that the CSE developed an IEP, making program recommendations and containing sufficient goals and objectives, reasonably calculated for the student to meaningfully benefit from his instruction.

IV. PRONG II AND EQUITIES

In finding that the CSE met its burden on Prong I, I decline to make explicit findings regarding the parents’ Prong II case regarding the appropriateness of the student’s unilateral placement. I am doubly hesitant to make such findings in this instance in that I was not the hearing officer that heard the testimony of the parents’ witnesses, and where such findings would be at best advisory.

Even were I to have found that the DOE failed to meet its burden under Prong I, and further found that the parents’ unilateral placement was appropriate, I would have serious doubts as to whether the equities support the parents’ claim. While the parents rejected the CSE’s program recommendation on August 1, 2011 (see P-E), the parent did not visit the recommended placement until February 2012, more than half-way through the school year at issue. Tr. 291. Moreover, I find that the parent did not, in fact, “visit” the placement, instead dropping by the building without an appointment at the end of the school day and seeing only the lobby. Tr. 290-291. I further note that the family did not attend the hearing, except for the single day the father was scheduled to testify (See preceding Hearing Attendee list). The reasons why the parent did not attend the hearing were not documented in the record, so I have no way to know whether the parents’ non-attendance was sought from the hearing officer. I note that since the 2008-2009 school year. Tr. 254. I am constrained to find that the family never had any intention of placing . in a public placement, and instead went through the motions of the CSE process. Like visiting the placement and participating with the CSE, it appears that hearing attendance was merely another “hoop” through which to hop in order to obtain public funding of the parents’ preferred private placement.

Now, therefore, it is hereby

ORDERED that the parents’ claims are dismissed in their entirety on the merits. Dated: May 7, 2013

____________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer

TMM: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

PARENTS

A Impartial Hearing Request Oct. 13, 2011 5 pgs. B IEP June 1, 2011 19 pgs. C Letter from Dr. Codeza Feb. 16, 2012 1 pg. D Final Notice of Recommendation June 29, 2011 2 pgs. E Letter to Mr. Aug. 1, 2011 1 pg. F Review 3/10 – 4/3/2008 24 pgs. G Auditory Processing Evaluation June 14, 2008 10 pgs. H Group Reading Assessment and Diagnostic Evaluation Sept. 9, 2011 2 pgs. I Progress Report 2011-2012 12 pgs. J Skill Program Fall Report 2011 2011 2 pgs. K Enrollment Contract 2011-2012 8 pgs. L Training Opportunities Program 2011-2012 27 pgs. M Reading Standards for Literature Grades 11-12 undated 2 pgs. N National Voluntary Standards for Teaching

Economics undated 22 pgs. O Participation in Government undated 12 pgs. P Progress Reports undated 11 pgs. Q Grade Group Reading Assessment and Diagnostic Evaluation March 14, 2012 2 pgs. R :

Program undated 5 pgs. S Neuropsychological Evaluation March 2012 17 pgs. T Notes for CSE Meeting May 31, 2011 4 pgs. U [omit] V Affidavit of Payment W Copy of Check to from Parent June 21, 2012 2 pgs. X Copy of Check to from Parent April 5, 2012 1 pg. Y Emails between counsel and IHO Abberbock various 5 pgs.

DEPARTMENT OF EDUCATION

1 Standardized Test Reports June 1, 2011 2 pgs. 2 Undated Vocational Interview undated 2 pgs. 3 Social History Progress Report Sept. 23, 2008 3 pgs. 4 Evaluation Sept. 23, 2008 2 pgs. 5 Classroom Observation Oct. 21, 2009 3 pgs. 6 Letter from May 22, 2011 1 pg.

7 Notice of IEP Meeting May 12, 2011 1 pg.

8 Level 1 Assessment Oct. 30, 2009 3 pgs.

9 Fall 2010 Progress Report Fall 2010 10 pgs.

10 Meeting Minutes June 1, 2011 3 pgs.

11 .’s 2011-2012 School Schedule undated 1 pg.

12 Emails between counsel and IHO Abberbock various 9 pgs.

IMPARTIAL HEARING OFFICER

I DOE Memorandum of Law Regarding Witnesses’

Testimony undated 5 pgs. II Parents’ Brief Regarding Witnesses’ Testimony undated 7 pgs.

Footnotes

[1] In speaking with the Case Manager upon accepting the case and by way of explaining the large gap of time between IHO Abberbock’s recusal and my acceptance, I was advised that a large number of hearing officers had declined to accept an already-completed case.

[2] Ms. indicted during her cross-examination that the CSE relied upon the input of .’s teachers and providers from his unilateral placement for a description of his present levels of performance and needs, as well as the testing results completed there. Tr. 102, 106.