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: November 20, 2012

November 30, 2012

Actual Record Closed Date: January 23, 2013

Hearing Officer: Lana S. Flame, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 20, 2012

Attorney — Student

Parents

Attorney — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 30, 2012

ESQ., Attorney — Student

Parents

Teacher, (Via Telephone) — Student

PhD, Psychologist (Via Telephone) — Student

ESQ., Attorney — DOE

INTRODUCTION

The parents, through their attorney, filed a due process complaint requesting an impartial hearing on September 10, 2012. Ex. 1. The parents allege that the New York City Department of Education (“DOE”) failed to offer the student a free and appropriate public education (“FAPE”) for the 2012-2013 school year, on procedural and substantive grounds. The Parents unilaterally placed the student at and are seeking to have the DOE reimburse them for the student’s tuition for the 2012-2013 school year. Ex. 1. The hearing, which took place on November 20, 2012, and November 30, 2012, was held pursuant to the Individual with Disabilities Education Act, 20 U.S.C. Sec. 1415(f)(1). Lists of the individuals who appeared and the documents entered into the record are included with the decision.

EXTENSIONS OF THE TIME LINES

On November 20, 2012, the parents requested an extension of the compliance date due to the complexity of the issues and the time needed to present the parents’ case. Both parties represented that no previous delay had been caused and no harm or prejudice would be caused to either party if a thirty day extension were to be granted. Based on the reason for the request and the representations made, I extended the compliance date for thirty days from November 26, 2012, to December 26, 2012. Tr. 174-177; IHO Ex. I. On December 14, 2012, the district requested an extension of the compliance date due to the extensive testimony, complexity of the issues and time needed to submit post-hearing briefs. The parties represented that no prejudice would result to either party and I found that neither party had caused a delay. I granted an extension for thirty days to January 25, 2013. IHO Ex. II.

BACKGROUND

The student is old. At the time of the May 10, 2012, Committee on Special Education (“CSE”) review he was old. He was a youngster known to the CSE since receiving services as a preschooler in a center-based classroom. The CSE classified the student as a child with . The CSE recommended that he attend an Integrated CoTeaching Class (“ICT”) in a community school with a full-time crisis management paraprofessional. The student also was recommended to receive therapy in a group of three, three times per week, for thirty minutes per session, physical therapy in a group of three, twice a week for thirty minutes per session, in a group of three, twice a week for thirty minutes per session and once a week for thirty minutes per session and in a group of five once a week for thirty minutes per session. All of the related services were to be provided in a separate location. Ex. 3-10.

The parents’ due process complaint alleges that on May 10, 2012, at a meeting to develop the student’s Individualized Education Program (“IEP”) for the 2012-2013 school year, the CSE inappropriately classified the student as , the recommended Integrated Co-Teaching (“ICT”) program with a Crisis Management Paraprofessional and related services was neither appropriate or the least restrictive environment (“LRE”) for the student, the IEP team did not conduct a (“ ”) or develop a (“ ”) for the student at the CSE, and the goals are vague, immeasurable and lack specificity, and were not developed at the CSE meeting. The parents allege that the goals related to the student’s social-emotional needs are inadequate. Nor does the IEP address the student’s difficulties with sensory integration and other identified areas of need. The due process complaint also alleges that an ICT class is too large for the student and that the DOE failed to respond to the parents’ concerns which inhibited their participation in the development of an educational program for their son. Ex. 1. The parents seek relief in the form of tuition reimbursement. Ex. 1.

THE DOE’S CASE

The DOE produced one witness, Dr. , a school psychologist for who participated in the May 10, 2012, CSE review as a school psychologist and the District representative. Tr. 32-33, 46. The other meeting participants included as a special education teacher, as a general education teacher, both parents, and , two attorneys for the parents, and two participants from the student's pre-school, (social worker) and (teacher), by telephone. Tr. 46-47; Ex. 3-19. Dr. did not recall if the school participants were present for the entire meeting. Tr. 48-49.

For the meeting the CSE reviewed the following documentation: a classroom observation conducted by , Ex. 8; a teacher report generated by Ms. , Ex. 6; a Evaluation, Ex. 9; a Neuropsychological Evaluation, Ex. 14; and related services progress reports for , Ex. 10; , Ex. 12; and , Ex. 13; Tr. 49. No formal assessments were conducted by the CSE apart from the observation, teacher interview and parent interview. Tr. 144.

The DOE submitted a December 16, 2011, physical therapy progress report which states that the student’s were “well below an age-appropriate level.” He presents with decreased muscle strength throughout his , decreased control, a decreased ability to grade his movements and decreased motor planning skills. The physical therapist included considerable detail in the report to the student’s ability to attend in the sessions. The student’s attention was “fair for highly motivating activities performed in a quiet environment.” The student was described as “very easily distracted by his surroundings” and he required “frequent cues for redirection when performing in busy environments.” The student was able to follow simple or familiar 2-3 step tasks. The therapist noted that the student had a rigid approach to performing tasks. When presented with a challenging task or one that he did not want to do, the student . The student was noted to be “impulsive, self-directed and act in an unsafe manner.” The student usually could be redirected to the task at hand. “Overall, he performs best in a quiet structured environment and when provided with consistent positive reinforcement.” Based on the clinical observations and evaluation, the student was found to rank in the 1st percentile for children his age presenting with skills. Based on the findings the therapist recommended that the student continue to receive physical therapy twice weekly for thirty minutes. Ex. 10-1-4.

The DOE submitted a December 8, 2011, Occupational Therapy Progress Report, which notes that as per the results of the Peabody Developmental Motor Scales-2, the student was presenting fine motor skills in the 13th percentile for his age. “ issues such as further impact on [the student’s] ability to independently participate in classroom and school activities.” Ex. 12-3. It was noted that the student with challenging activities . “[The student] attends well in a but has in a busy environment due to distractibility.” “He often has difficulty participating in large group activities in the classroom. He appears to “tune out” at times unless actively engaged by the teacher.” Two sessions of occupational therapy per week were recommended. Ex. 12-2.

A December 2, 2011, Progress Report, introduced by the DOE, indicates that the student’s skills are within normal limits for a child his age. He presents with “causing him to to his full potential.” The student “can be and noncompliant for non-desired activities and often has difficulty attending to structured tasks. The student’s articulations skills are judged to be delayed for his chronological age. The student eats a limited variety of foods and secondary has difficulty with . He was recommended to continue speech therapy three times per week for thirty minutes per session. The therapist included goals: 1. skills in order to meet his social and academic needs; 2. improve speech intelligibility and, 3. increase strength and range of motion in his oral for purposes. Ex. 13-5.

The DOE introduced the February 2, 2012, Developmental-Behavioral Pediatrics Evaluation which was sought by the parents to determine what school placement and services were recommended for the student’s transition to a school age program. An earlier diagnosis of by a was confirmed as a valid diagnosis based on clinical observations, teacher and therapist reports. The student was observed to be self-directed, easily distracted, and to have difficulty with transitions. In addition to recommending that the student continue to receive , , , the pediatrician recommended that the student receive counseling to help improve his social skills with peers and to help him improve his ability to tolerate frustration. The doctor also recommended a small self-contained highly structured classroom setting with a high ratio of teachers to students within a small school where he will be cognitively challenged, but where he will receive the individualized attention he needs to address his , and secondary to . Ex. 9.

The DOE introduced a Classroom Observation dated March 27, 2012, completed by , a DOE social worker. The observation took two hours. The class was attended by

11 students and four adults. Ms. observed that the student “resisted participation” in the classroom morning routine, did not engage in table play as his classmates did and wandered around the room until he was directed to sit in a specific area which he did not do readily and whined. Ms. was able to engage him in conversation and he exhibited his sense of humor. The student sat for circle time, but seemed .” The teacher was discussing Passover and Easter. The student , but would raise his hand and answer. He offered a comment about Christmas. The teacher asked the student to move over on the rug and had to prompt the student a few times before he complied. The student seemed to enjoy the discussion. The student was hesitant to line up with a partner for a bathroom visit but after a few minutes extended his hand to a reluctant child and proceeded to the line. The student seemed more engaged in classroom activities as the morning progressed. Ex. 8.

Ms. completed an interview with the student’s teacher. The teacher noted progress in the student’s ability to make transitions and follow directions. “He is exhibiting more peer interaction, but usually it is on his terms.” He requires teacher direction in many areas. The student’s impeded his social progress. Ex. 6-1. The teacher did not think that the student would be ready for mainstream kindergarten because while his pre-academic skills “are great” he continues to “require a lot of support”, he needs help in the social/emotional realm. The student “would be lost in a big class. He needs positive peer models.” Ex. 6-2. The teacher reported that the and are below his age level. “Processing gaps are noted as well as difficulty expressing his complete thoughts. He when he cannot express himself fully.” Ex. 6-3. The student’s need for is noted. Ex. 6-3. The teacher stated that the student relates to adults “quite well” and is beginning to show more interest in his peers. His ability to manage transitions is “better but not yet consistent.” The teacher indicated that there are no aberrant behaviors. Ex. 6-3. The student’s skills are indicated to be “fair” and he requires “prompting and teacher direction in many areas.” Ex. 6-4.

Dr. testified that the District’s CSE participants believed that the issues most impacting the student’s school functioning could be characterized as . According to Dr. , was the classification that most appropriately and comprehensively addressed the student’s current level of functioning and needs. Tr. 50-51, 103-104. The socialemotional deficits exhibited by the student that were discussed at the meeting included , “meltdowns” both inside and outside of school, certain types of atypical . Tr. 51. There were three primary areas “where [the student] , transitioning, peer relationships, and social and academic withdrawal.” Tr. 57-58 Dr. testified that the clinical data “was really in some ways the primary driver” of the classification. Tr. 54-55.

The CSE considered Other Health Impairment and as possible classifications. Tr. 55-56. Although the student does present with , that classification ultimately was rejected because “it was not the primary and most significant factor at that time. We felt the social-emotional factors were. Dr. testified that the student's tendency to isolate and withdraw from peers or actions “could also be addressed by ”. Tr. 51. Dr. noted that the speech report targeted pragmatic language skills as a primary concern. In view, has “a significant component to it, which then also contributes to—that's one factor that can contribute to the determination of an classification, certainly not the only one, certainly one that is secondary at best, but it was a factor taken into account by the team.” Tr. 53.

Dr. explained that similarly, also encompassed secondary concerns. Tr. 56. Dr. testified that the documents referenced but no formal diagnosis was made. Tr. 105. At the CSE meeting, the parents and Ms. strongly disagreed with the classification of Tr.

54. Overall, the DOE members of the CSE team “felt that emotional disturbance was the classification that best represented the predominance of t[the student's] needs at that time.” Tr. 56

As for the program recommendation, the three DOE CSE members of the CSE team “reached a collaborative decision” that given the information the CSE had at the time of the meeting, the ICT class “would be the least restrictive setting where appropriate supports would still be provided.” Tr. 65. The decision was based on the data forwarded by the student's family, the outside assessments and the school reports. Tr. 65. The student's intelligence testing and resulting scores played a significant factor in the CSE decision. There was variability in the student's IQ scores which actually may have . Dr. explained that he wanted to take into account the student's strengths, as well, in making the recommendation.

“Given his relatively strong intellectual and pre-academic /academic skills, we felt it was to his advantage and it was in his best interest educationally to have him in an environment where he is exposed to typically developing children, i.e., no -IEP students, with a general education curriculum to kind of harness those resources and strengths to help him grow, thereby helping him with his area of need.”

The fact that there were not global delays across all areas, of functioning, i.e., with respect to academic and intellectual domains, was a very important factor. Tr. 67,

163. Dr. noted that there are gross and fine motor concerns, , and concerns. Tr. 163.

Information from center-based program to support ability to be placed in ICT setting:

“His deficits with regard to and did not warrant a significant modification structurally or in terms of materials that wouldn't warrant placement in a community school setting. The nature of the issues as well in terms of articulation and intelligibility didn't seem to rise to a level where an intensive in a non-community school setting would between[sic] warranted. While there were certainly issues primarily around , those things we didn't think that the reports indicated that we wouldn't be able to address those needs.” Tr. 122-123

Dr. and his team considered Dr. 's report and recommendation for a small class which Dr. Borg took to mean “a highly specialized environment.” Tr. 100 Dr. stated that these smaller classes by definition would be with children who are delayed in one respect or another. This would be a disservice to the student who “needs – deserves the opportunity to function in a setting as close to general ed with appropriate supports.” Tr. 103.

Dr. testified that the ICT class would have 40% students with IEPs and 60% students who are not disabled. The class would have two teachers, a New York State licensed general education teacher and a New York State -licensed special education teacher. Tr. 60. Dr. Borg recalled that at the time of the CSE meeting the ICT class recommended for the student had 20 students in it. Tr. 63. For secondary classes neither of the ICT teachers are present. Drama, library, physical education, and art do not have a special education teacher present. Tr. 156. No special education teacher is with the class during lunch. Tr. 157.

Dr. explained that in the ICT class, the student has a significant amount of support that doesn't make it, in effect, a large class setting. There are “multiple levels of support” with the second teacher who is a licensed special education teacher and the paraprofessional. The management paraprofessional would work in collaboration with the teachers and “would have been an additional adult support who would be there to help manage [the student's] behaviors and certain aspects of social-emotional functioning … that had the potential to interfere with daily classroom functioning. In Dr. ’s view, the paraprofessional would foster independence by intervening with “antecedent factors before they become a concern.” Tr. 145. If the child has a “ the paraprofessional could address it immediately. Tr. 145. The paraprofessional could help the student by “putting time between .” Dr. stated that even though it's a it's not a shadow per se. Tr. 145. In terms of peer relationships the paraprofessional could stop and foster effective peerbased activities, supporting and rewarding “ ”. Tr. 146.

The parents had concerns that the paraprofessional would present a stigma or would not be effective because the student could manipulate the paraprofessional. Tr.

147. In response, the CSE highlighted the student's strong relationships with adults as well as their positive first - hand experience of kids in the school with paraprofessional s. Tr. 153. In Dr. s view, since it's a kindergarten class with many adults coming in and out of the class during the day, the other students are not going to respond negatively to another adult in the room helping a student. Tr. 153-154.

The CSE also considered other programs. Dr. believed that the CSE considered a self-contained class in a community school, a class in a District program, and a nonpublic school, at the parents' request. Tr. 64-65, Tr. 143. Dr. and the team considered Dr. 's report and recommendation for a small class which took to mean “a highly specialized environment.” Tr. 100. Dr. stated that these smaller classes by definition would be with children who are delayed in one respect or another. This would be a disservice to the student who “needs – deserves the opportunity to function in a setting as close to general ed with appropriate supports.” Tr. 103.

Dr. testified that the IEP was not created at the meeting. He did not remember specifically when it was created. Tr. 69. A “significant part of the IEP” was done prior to the meeting. Tr. 68. Ms. and the reports contributed information that appears in the IEP, but Dr. “did all of the actual writing and data entry”. Tr. 69; Ex. 3. Dr. did not recollect whether the goals were written before or after the meeting. Tr. 127-128. The goals were not drafted or discussed at the meeting. Tr. 128.

As a consequence of making the crisis management paraprofessional recommendation, Dr. developed the student's FBA and BIP, after the CSE meeting. Tr. 79-80, 138. Dr. testified that he based the content on his “best available understanding of the child and the information that was communicated to him from all the providers and people who are connected with the child and then trying to get an understanding of why these behaviors, especially the ones that are written into the IEP, why they repeat themselves in the school setting.” Tr. 75-76. Dr. did not recall discussing what function the noted behaviors serve for the student, at the CSE meeting. Tr. 78-79. Neither the parent nor the current teacher “directly” participated in the development of the FBA. Ex. 3-17; Tr. 137; 138-139. Dr. included information the parents had provided to the CSE previously. Tr. 137-138. The FBA and BIP “are specifically targeted towards the most pressing of [the student's] needs. Tr. 149.

Dr. explained that the IEP section on “Academic present levels of performance and individual needs” includes formal test data provided to the CSE from the private assessments. Tr. 70-71. The meaning of the test scores was discussed, if not all of the specific scores. Tr. 71. The section includes “a qualitative write-up” written by Dr. based on information from the formal testing, provider updates, teacher reports, and parent interviews. Tr. 71-72.

The information included in the section on social and emotional development was discussed at the CSE meeting. Tr. 73; Ex. 3-4. The section on physical development was “gleaned from a variety of sources, the parent interview, recent medical school reports.” Tr. 73. The management needs are forward looking. They include the types of interventions that the CSE believes should be put in place to assist the student in achieving his IEP goals. “It's using the data to then generate a forward looking plan about want his needs will be in school.” Tr. 74. The IEP goals, Ex. 3-6 through 3-9, were formulated by Dr. by evaluating all of the clinical data with the team and determining “what are the most pressing areas of need, what needs to be addressed, and then formulate those deficits and needs in terms of goals.” Tr. 80-81. Dr. explained the goals. The first goal is to address the student's difficulty making transitions and his behavioral inflexibility which was discussed at length at the meeting. Tr. 82-83, 112-113; Ex. 3-6. The second goal was a behavioral speech goal to address behaviors that arise in connection with the “student's lack of flexibility and rigidity he demonstrates during feeding.” Tr. 83-84. The goal would be addressed by the speech provider. Tr. 114. Dr. noted that the student had an earlier diagnosis of and had issues of inattentiveness in the classroom. Consequently, Dr. explained that there is a goal to increase quality of attention. Tr. 85-86. The academic goal to “turn and share” was developed to address the student's tendency to withdraw from non-preferred instructional activities and the difficulty the student had engaging peers. Tr. 88. The team also discussed the student's difficulty making transitions from one activity to the next. Tr. 89. The goal for the student to communicate his needs in an age appropriate manner is a pragmatic speech goal. Tr. 89-90. Dr. wrote a goal to address intelligibility, but could not recall if the student's need in this area was discussed at the meeting. Tr. 90-91. The counseling goal also is language-based. Dr. explained that it was important for the student to become proactive. Tr. 91. A goal to minimize or reduce that were interfering with learning such as non-compliance with adult authority, non-compliance with teachers, withdrawing from tests also was included as a goal. Tr. 92-93. Next goal is to use language to explain needs. Tr. 93. Plus two physical therapy goals. Tr. 93-94. Three goals – fine motor functioning, organization, awareness. 94-96. Dr. testified that the delivery of the related services would be in a combination of inside and outside of the classroom. Tr. 96-97. According to Dr. , the content of the goals and the areas that they targeted were discussed at length. Tr. 150. The teacher did not assist in development of IEP goals directly, only in terms of information that was used. Tr. 128. The teacher did not hear the goals; she might not have been on the telephone for the entire discussion. Tr. 129.

The IEP was entered into evidence. Ex. 3. The IEP states: “Due to specific and ongoing concerns with the quality of his behavior around , [the student] will require that his management paraprofessional be present during these activities, including snack and lunch. Ex. 3-5.

The student was offered a seat in the and there was a seat available. Tr. 107. The student was on the roster the first day of school. Tr. 156. has grades K-5 with approximately 500 students enrolled. Tr. 114. There are no other children with the classification of in the kindergarten ICT class. Tr. 132. No other student has a paraprofessional assigned. Tr. 133. The only other special education services offered at is Special Education Teacher Support Services (“SETSS”). was the student's zoned school. Tr. 115. The parent sent Dr. a letter dated, May 18, 2012, stating her disagreement with the program recommendation and indicating that she would be willing to meet with the team again. Ex. 15; Tr. 115-116. Dr. did not set up a follow up meeting “as we were informed that the family was going to an impartial, so there was no response to that.” Tr. 116-117.

THE PARENTS' CASE

is a kindergarten special education head teacher at , a New York State approved special education school, for kindergarten through 6th grade. Tr. 197-199, 202. Ms. has a Masters in special education and has worked for 18 years at Child School. Tr. 197. Her class is The school serves children with a variety of disabilities, but disabilities. Tr. 202. There are 360 students aged 5-21.Tr. 202. Children are grouped by three year age levels, functioning level, and social skills. Class groupings are decided by a team consisting of a psychologist, supervisor and teacher. The school offers related services of speech, counseling OT and PT. Tr. 203. Children in Ms. ’s class are 5 years old. Four are reading on a K level and one is on a first grade level. In math, four are K level and one child is beginning first grade. Tr. 207. The student’s reading level is beginning K. Tr. 209-210. In September he needed to learn sounds. He had only a few and his articulation is poor. He’s learning to blend three letter words with a short “a” sound. Tr. 209. His math level is K.4.

Math and reading are taught by introducing the concept to the whole group. Followed by teaching or smaller group instruction. Tr. 215. The smaller groups are based on functional levels and how much time they need to understand a concept. Repeats directions and speaks slowly. Each of the students is given modified worksheets and individualized pacing and strategies. Tr. 204-205, 211. The students have language, sensory and regulation issues. They have difficulty interacting with peers and an easier time interacting with adults. The staff help the children initiate and sustain language and play skills with one another. Tr. 215-216. There is a classroom behavior plan based on a reward system. Tr. 214-215, 257-258.

sees the student’s issues as his attention, his ability to sustain effort and complete a task. He has difficulty keeping up with the pace of the class, particularly with pencil and paper work or cutting skills. Tr. 217. In her view, the student’s issues are what keep him behind. Tr. 238. With read alouds the student keeps apace. Tr. 217. Another area of difficulty is his speech articulation, which she described as “poor”. Tr.

218. Ms. described the student as speaking . Ms. noted that the student also has a processing issue. Tr. 218-219. While the entire class needs information repeated as a whole group, the student additionally needs information repeated to him individually, frequently, even when he is focused. Tr. 222. The student requires prompting at least “every five minutes” to keep him on target. Tr. 222, 239-240. The student’s him. Tr.

219. The student’s socializations skills are limited. He parallel plays. To interact with his peers the student requires a lot of adult facilitation. Tr. 220-221.

Ms. described the student as “ ” because he either says he is tired or that he doesn’t want to do the work. Alternatively, he might want to do the work a different way at inappropriate times. Generally, he wants breaks from pencil and paper activities. Tr. 244-245. Ms. stated that “there’s a lot of verbal input to him on expectations, on the points.” Tr. 219. The teachers prep the student whenever possible because transitions are very difficult for him. Tr. 233. The student also cries in class. Ms. has found that the student thrives on attention so she and the class paraprofessional emphasize giving him attention for the and ignore the . Tr. 220. The teachers give the student a “verbal positive exchange almost every five minutes.” Tr. 232.

The teacher accommodates the student by giving him a lighter workload since he has . Tr. 211. The student is . He also has . He doesn’t children and easier. He requires a ”. Tr. 213-214. The pacing of his . Tr. 221.

The student receives the related services of . Generally, the services are provided on a pull out basis.

Ms. provides progress reports for her students twice a year, and a check list at the end of the year. These reports, which contain a description of what the class is learning and the student’s performance, are shared with the parents. Tr. 228-229, Ex. C.

In reading, the student’s goals include beginning to blend the three-letter words. For sight word reading the student is learning “color words’. In math the student is adding numbers through ten. In writing the student is learning to write upper case slant letters, using Handwriting Without Tears. Tr. 231.

The student has progressed. He has gained “the sounds of the letters.” He reads “color words.” He is working on identifying numbers through 100. He is beginning to learn how to print his last name. He can print his first name. Tr. 231-232. In terms of his behaviors, at the start of the school year the student could cry, for reasons that the teachers sometimes could not immediately ascertain, for twenty minute stretches and now, he . Tr. 232, 240-243. Recently the student has been able to express his needs on a couple of occasions rather than cry. The student socializes a bit more, but it is at the initiation of one other child. Tr. 256-257.

Ms. believes that the class is appropriate because the student is grouped with other students in his functional level. The other students as well. Tr. 238. She stated that he is challenged by the within even this small group of five. In her opinion, a larger class would be overwhelming. Tr. 235-236.

Dr. , the Associate Director of assessment learning and support, met the student in October 2011 for an evaluation to help the parents with educational and treatment planning. Tr. 264-268. At the time, the student was attending . Tr. 268. Prior to conducting the evaluation, Dr. reviewed any recent evaluations conducted with the student, his then current IEP from , therapists’ reports, and a medical evaluation from the who referred the student. Tr. 268.

Dr. met with the student on October 6, 20, and 27, 2011, and observed him at his school on October 19, 2011. Tr. 269, 273. Dr. explained that due to the student’s , he . Tr. 273. Dr. Salsberg recalled that the student required a easily, and needed a lot of prompts in order to stay on task and cooperate, ‘which was consistent with all the reports that we have gotten on him, as well as what we heard and saw at school.” Tr. 275. Dr. testified that the student’s primary deficits are not his Tr. 294. These issues are “a major part” and go along with and interact with some of the difficulties in . The two of them together “create the perfect storm….” Tr. 294. The

Dr. recalled that the student was in a class of 12 students, 1 teacher and two aides, although he was not sure if all of the students were in attendance on the day he observed the student. Tr. 275-276. On the day of the observation, the student’s teacher corroborated information already available to Dr. ; the student was making gains in a very structured small environment, but had difficulty with transitions and needed a lot of prompting, redirection and support. Tr. 276. The observation corroborated Dr. findings from the evaluation that the student needs “a great deal of special education support that is directed to him not just the classroom.” Tr. 276-277.

Dr. administered the WPPSI-III to learn the child’s intelligence level including cognitive strengths and weaknesses. Tr. 278. The student scored in the high average range with familiar objects, puzzles and categorizing items. The student’s scores dropped significantly to the 25th and 15th percentiles when performing on more open-ended questions. Ex. 14-9. The student demonstrated “a little bit more variability in some of his nonverbal skills. Ex.14-9; Tr. 279-280. Dr. testified that the educational implications of this variability in the language areas for this student “speaks to difficulties in frustration; difficulties in regulation; difficulties in being able to reconcile that” the student is aware of the knowledge he has and that he is unable to express it. , “it leads to a lot of which would make it difficult for the student to participate in a large classroom environment and lead to greater frustration. Tr. 282. Dr. also testified that the contributed to the variability of the scores and may have resulted in lower scores in some areas. Tr. 299.

The student was given parts of the Woodcock-Johnson, 3rd Edition and the Young Children’s Achievement Test (YCAT) to assess the student’s pre-academic skills which demonstrated that he had “solid” pre-academic skills other than his fine motor abilities. Tr. 282-283. The student was given parts of the NEPSY-II and the CELF for preschool, 2nd edition to screen a couple of areas of neuropsychological functioning, including language and motor skills., as well as parent measures on the System for Children (“BASC”) and the Adaptive Behavior Assessment System (“ABAS”) -II. The parent report on the BASC reflected clinically significant scores for “Atypicality” and “Adaptability”. Ex. 14-6; 14-11.

Dr. concluded that the combined with his areas of weakness, “the language processing, the , variabilities in his attention, and most importantly, some of the emotional and behavioral regulation issues,” required a small learning environment given that the student struggled with his deficits in a as well as his pre-school setting. Tr.

283. Dr. was concerned that the student would and environment larger than the the student attended. Tr. 283-284.

Dr. specifically recommended that the student be placed in a “relatively small classroom environment where he will receive the individualized attention he needs….” with preferential seating in order to maximize his access to the visual and auditory information being presented, instructional methods including breaking information down into smaller segments, varied instructional strategies, and checking in for comprehension. Dr. recommended the continuation of therapy and physical therapy as advised by his current providers. Dr. also recommended a behavioral therapist “to target general compliance and ” as well as the student’s feeding difficulties. Ex. 14-7 – 14-8; Tr. 285286.

Dr. testified that he has observed an ICT classroom in . Dr. stated that the size of the school itself, the fact that the program includes lunch and recess with the school population, and the size of the ICT class would be “ ” for the student. Tr. 287-288. Dr. believed that all of these factors would not provide the student what he needs “in order to participate in learning and to participate in the demands language wise, but, also, as importantly, or directly related, or interacting with, are the implications of being in an environment such as that.” Tr. 288. Dr. testified that the student “would actually regress.” Tr. 288.

Dr. reviewed the IEP and noted that all of the scores reflected in the section “Academic Achievement, Functional Performance and Learning Characteristics” are those from his evaluation with the exception of the Developmental Assessment of Young Children scores from April 11, 2011.Tr. 290-291. The text included in that section of the IEP seemed to be an accurate representation or summary of Dr findings. Tr. 291. Under the “Management Needs” section Dr. disagreed with the statement: “[The student] will benefit from placement in a class which exposes him to high functioning, typically developing peers who can model effective and adaptive behavior in a general education environment.” Ex. 3-4; Tr. 305-306. Dr. explained that if the student were with “too many typically developing peers” the student would be more frustrated by his deficits in language, in processing, in self-regulation, and in interaction. Based on discussions with the student’s pre-school teacher, Dr. believes that these circumstances would be more of a challenge to the student and not lead to modeling of good behavior. Tr. 306-307. The student needs a therapeutic environment in order to participate in academics, to make progress academically, and to make progress socially. Tr. 308

Dr. testified that he observed . Tr. 291-292. In Dr. ’s opinion, is appropriate for the student. Tr. 292. It can meet the student’s needs as identified in Dr. ’s assessment and in the “management needs section of the student’s IEP.” Tr. 292; Ex. 3-4. In Dr. ’s opinion, is a unique school to meet the student’s social development needs because the school has a “very strong presence of psychology, and a psychologist assigned to the classrooms and intimately involved with the day-to-day and week-to-week.” Tr. 293. For this student, “a conducted by a psychologist or a mental health professional is paramount to any success of his program” because even the issues that are by the student’s emotional and behavioral presentation. Tr. 293. Dr. testified that can address and manage the student’s in his class. Tr. 312.

Dr. unequivocally stated that an individual behavior management paraprofessional would not be of benefit to the student. Tr. 297. In Dr. ’s experience, a paraprofessional does not have the training, intervention or supervision to implement a behavior plan for a student like this student. Dr. also felt that the student would not benefit from, and in fact would be harmed from, an adult who shadowed him in the school. Tr. 298. In his view, placement is less restrictive than placing the student in an inappropriate program with a 1-1 para to manage his needs. Tr. 300. Dr. stated that as a neurologist he is familiar with LRE considerations followed by the DOE and considers LRE issues in making his own recommendations. Tr. 300.

The parent testified that the student’s greatest impediment to learning is his rigidity. Conceptually, he can understand new ideas, but he struggles to listen to and follow directions, instead wanting to follow his own way of proceeding. The student requires one on one instruction, patience, and a lot of repetition in order to learn. Tr. 319-

320. The parent described the student’s strength as his excitement to learn. Tr. 320-321. The student breaks down when he does not have the words to express his thoughts. Tr.

321. The parent has seen progress in this area since the teacher has been focusing on positive reinforcement. Tr. 321.

The parent provided Dr. ’s report and Emily Forest’s report to the CSE. The CSE did not do any of its own testing. Tr. 323. At the May 10, 2012, CSE meeting, Dr. ocused on . Tr. 324. The parent recalled that she explained that teachers could access the student’s “brightness” only in a small class setting. The parent stated that Dr. then explained the Least Restrictive Environment concept and expressed his concerns about a small class for the student given his es. The parent did not recall a discussion of Dr. ’s report. Tr. 324.

The parent stated that the student has since he was 2 ½ years old. He . In October 2009, through Early Intervention, the student was and he started to receive . Ex. 9-2. In September 2010, at age 3, the student attended a mainstream preschool in a class of 10:2. Due to difficulties the student had following the classroom routine, making transitions and playing collaboratively, the parents moved the child to a center-based therapeutic pre-school for the 2011-2012 school year at the in a class with a ratio of 12 students, one teacher and two paraprofessionals where he received through the Committee on Pre-school Special Education (“CPSE”) . Tr. 322; Ex. 9-2.

The parent testified that she did not agree with the recommendation made at the CSE meeting and expressed her concerns there. She testified that she voiced her opinion but that she felt a “decision was made before I entered the room.” Tr. 345, 350. The student’s then current teachers also stated that the class size was inappropriate for the student and that “he would fell lost.” Tr. 329-330.Every recommendation that was made for the student was for a small class size and the parent saw how the a class of twelve. Tr. 326-327. The parent did not think that her son twenty-five. Tr. 328. The student would be pulled out nine times a week for related services, Regress in this environment. Tr. 327. Nothing in the IEP addressed the student’s feeding issues at lunch. Tr. 347-348. The parent was told that the would not be with the student during lunch. Tr. 361-362. The student needs some type of support at lunch in order to eat and the IEP has no plan in place. Tr. 362-363. The parent also explained that in order to be available for his academics in the afternoon, the student needed to eat in a location where there was not as much sensory stimulation and that was not addressed in the student’s IEP. Tr. 363.

The parents both observed the recommended classroom, the lunch room, the gym, and the school. Tr. 331. The parent had visited the school previously since it was the student’s community school and she wanted to consider it. Tr. 331. The parent observed a class of 21 children. The students were independently selecting books and looking through them. Some of the children were packing up independently. One teacher was assisting a group of two students and another teacher was helping one child pack up. The parent was permitted to observe for only ten minutes. She observed a noise level and activity level that “ ” for the student. Tr. 332-333.

The IEP goals were not developed or discussed at the meeting. Tr. 333, 345. The parent received them some time after she wrote a letter rejecting the placement. Ex. 15, Tr. 334. The parent testified that at the meeting the CSE discussed, the student’s , how his were affecting or could affect his academic progress in the future, the student’s difficulty remaining on task due to , and difficulties with . Tr. 346. The CSE discussed the student’s deficits with respect to each of the related services. Tr. 349. The student’s behaviors were discussed at the CSE meeting. Tr. 335. An FBA was not conducted during the meeting and the parent did not participate in the development of the BIP. Tr. 335, 337; Ex. 3-15.

The student attended the pre-school program at over the summer and began to attend The Child School on or about September 7, 2012. Tr. 338

The parent has seen the student make academic progress at . He is becoming an emergent reader. He is learning He is better able to make transitions. Some life skills such as , are improving. Tr. 342. He is beginning to initiate interactions with other children. Tr. 342. The parent thinks that is appropriate because they model how to play, how to appropriately monitor oneself throughout the day, how to take turns, and how to make transitions. Tr. 342-343. The parent has observed that the and the teacher’s approach to reward the and ignore the have limited the . Tr. 343.

The private behavior specialist sees the student once a week for 1 ½ to 2 hours and is working on with the student. Tr. 353. The has gone to to ensure that the work she is doing with the student is in line with the school program. Tr. 355.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]); See Hendrick Hudson Dist. Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d); 34 C.F.R. § 300.1[a]; 34 C.F.R. § 300.347[a][2][i]). The student's program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

It is well settled that if parents believe that the school district has failed to offer their child a FAPE, they "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (citing School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 at 370 (1985)). Such reimbursement covers "'expenses that [the school district] should have paid all along.'" T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71). Courts considering a reimbursement request for the cost of private special education services must consider (1) whether "the school district [has] fail[ed] to provide a FAPE"; (2) whether "the private school placement is appropriate"; and (3) whether the "equities" warrant a reimbursement award in full or in part. Burlington, 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Forest Grove School Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009); see also Frank G.v. Bd. of Educ. of Hyde Park, 459 F.3d 356 at 363-64 (2d Cir. 2006).\

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]). Prong I: Did the DOE offer the student a FAPE?

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102. If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). The Student’s Classification

The CSE inappropriately classified the student as . The DOE did not prove by a preponderance of the evidence that the classification is appropriate.

The regulations define as:

“a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems.” (8 NYCRR §

200.1[zz][4][i-v]).

First, the student has been diagnosed with by two physicians, Dr. a pediatric psychiatrist and Dr. , a Developmental-Behavioral Pediatrician Ex. 9-1, 9-4. Dr. mistakenly testified that references had been made to in the documents, but that no diagnosis had been made. See, Tr. 105. Thus, the student’s condition does not fit “an inability to learn that cannot be explained by intellectual, sensory, or health factors”. (8 NYCRR § 200.1[zz][4][i]). The reports and witnesses repeatedly referenced the student’s ability to connect with adults, and in fact, it was that ability that supported Dr. ’s optimism that a management paraprofessional would be an appropriate intervention for the student. Tr. Therefore, the student’s condition does not exhibit “an inability to build or maintain satisfactory interpersonal relationships with peers and teachers (emphasis added)” (8 NYCRR § 200.1[zz][4][ii]).

Nor does the record support a finding that the student has a condition exhibiting “inappropriate types of behavior or feelings under normal circumstances” both over a long period of time and to a marked degree. (8 NYCRR § 200.1[zz][4][iii]). At the time of the student’s CSE review, he was 4.8 years old and had experienced and issues over the course of his 2011-2012 pre-school year. The student’s pre-school teacher reported that the student did not exhibit “ .” Ex. 6. The student’s take the form of the student saying that he does not want to finish work because he is tired or wants to complete work in his own way. Tr. 219. To the extent that the student “ ”, the student may move away from the . Tr. 220, 257. The weight of the evidence supports the finding that the student’s , and . All of the individuals who evaluated the student, taught him, provided services, and his parents took the position that the and responses stemmed from his (Tr. 53; see also, Tr. 103-104: Tr. 273; 294-295, 278-286; 320; Ex. 6, 9, 10, 12, 13, 14) All of these individuals reported or testified that supports a finding that the based. The are secondary Ex. 9, 10, 12, 14; Tr. 217-218, 238, 294. Therefore the student is not appropriately classified as a student with emotional disturbance.

Additionally, there is no evidence in the record to support a finding that the student exhibited “ a generally pervasive mood of unhappiness or depression” or “a tendency to develop physical symptoms or fears associated with personal or school problems.” (8 NYCRR § 200.1[zz][4][iv -v]).

The classification of emotional disturbance is inappropriate and the CSE must reconvene to properly classify the student in accordance with these findings. The New York City Department of Education Failed to Offer the Student a FAPE for the 2012-2013 School Year.

The IDEA directs that an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. Sec. 1415(f)(3)(E)(i). A school district provides a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley 458 U.S. at 203. A school district must provide an “IEP that is 'likely to produce progress, not regression, and...' affords the student with an opportunity greater than mere 'trivial advancement.''' Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186,195 (2d Cir. 2005) quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1995). An IEP must be “reasonably calculated to provide some 'meaningful' benefit' Mrs. B. v. Millford Bd. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The DOE failed to demonstrate that an with related services and a paraprofessional is an appropriate recommendation for the student.

Here, the DOE failed to sustain its burden to prove that an with related services and a is an appropriate program for the student. Through the only witness it called, Dr. Borg, the DOE relied on the student’s as a justification for recommending a class that could have a total of 30 students.^[1] This recommendation was made despite the unanimous reports that the student has a diagnosis of that manifested itself through which impeded his ability to which contributed to his slow rate of performance, particularly in paper and pencil work, and difficulty initiating and engaging in peer interactions. The student’s pre-school teacher, the related services providers, the student’s mother, the developmental pediatrician and the neurologist all submitted documentation or testified that even in a class of twelve students, one teacher and two aides, with a very structured small environment, the student had and individual support. Tr. 275-277, 292-293; Ex. 6, Ex. 9, Ex. 14. All of the professionals who worked with the student and his parents believed that the student would be overwhelmed in a class as large as the ICT class and recommended that he attend a small structured program.

While the record supports a finding that the student has average to academic abilities, the weight of the evidence supports a finding that the student’s other deficits and delays interfere with his ability to utilize his strengths, especially if he is in a larger environment with result in regression, not progress. Tr. 288. Little, if any, meaningful learning would occur. The assignment of a management paraprofessional would not impact on the size, structure or pace of a general education class. There is nothing in the record about the class structure or the opportunity for small group or individual instruction and peer socialization in the context of a larger class that would support a finding that the ICT class with the addition of the would confer educational benefit on the student. Cf. T.M. v. Cornwall Central School District (S.D.N.Y. 2012) 2012 WL 4714796.

Additionally, the student would not receive special education support beyond the management paraprofessional during his secondary classes, lunch or gym. The DOE did not demonstrate that the student’s needs would be sufficiently addressed during those portions of the day. The record reflects the likelihood that in such a large class, with one general education teacher, the student would not receive the support he needs, would be struggling with his , and be unavailable for learning during other times of the day. There is no evidence in the record that the student is able to receive educational benefit in such a setting. Cf. R.C. ex rel. M.C. v. Byram Hills School Dist., --- F.Supp.2d ---- (2012).

While the IDEA requires that students with disabilities be educated in the least restrictive environment available to them, the primary mandate is that the student receives meaningful educational benefit from the recommended program. See 20 U.S.C. Sec. 1412(a)(5)(A); P. ex rel. Mr. and Mrs. P. v. Newington Bd. Of Educ., 546 Fed 111 (2d Cir. 2008). Accordingly, for all of the reasons sated above, the DOE failed to provide the student with a FAPE for the 2012-2013 school year. The IEP Goals

Under the IDEA, a school district must provide the parents of a disabled child with an adequate opportunity to participate in the development of an IEP. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). Here, the parents claim that they were denied meaningful participation at the May 10, 2012, meeting because the proposed goals and objectives for the student were drafted before or after the meeting and the goals were not discussed at the meeting. Moreover, the parents allege that as a result of the failure of the CSE to include the parents and the teachers in the preparation of the goals, the goals fail to address all of the student’s identified special education needs and do not include sufficient information for the goals to be measureable. Ex. 1.

An IEP must have annual goals and short-term objectives that are related to the student’s educational deficits. See 20 U.S.C. § 1414(d); 34 CFR §300.347(a)(2). An IEP must include annual goals and benchmarks that are related to meeting the student’s needs arising from his or her disability (34 CFR 300.347[2]). Goals must be specific in order to provide sufficient guidance to a student’s teachers with respect to the CSE’s expectations for his or her performance (Application of a Child with a Disability, Appeal No. 98-14). The CSE’s failure to provide goals and objectives that indicate a grade level baseline or target as a framework for instruction nullifies this IEP and results in the denial of a FAPE.

Additionally, the record supports the finding that the parents did not participate in the development of the IEP goals and were deprived of a meaningful opportunity to participate in the creation of the student’s IEP. Dr. Borg testified that the goals were not drafted or discussed at the CSE meeting. Tr. 128. The parent also testified that she did not participate in a discussion of the student’s goals. Tr. 333, 345. She first received a copy of the goals sometime after she wrote a letter rejecting the DOE’s recommended program. Tr. 334; Ex. 15. While there is no legal authority requiring parental presence during the actual drafting of the written IEP document, E.G. v. City Sch. Dist., 606 F. Supp. 2d 384, 52 IDELR ¶ 228 (S.D.N.Y. 2009), here, the parents did not have an opportunity to respond to the goals in the IEP after it was drafted. Cf. J.G. v. Briarcliff Manor Union Free Sch. Dist., 682 F. Supp. 2d 387, 54 IDELR ¶ 20 (S.D.N.Y. 2010). Although the parent wrote a letter to the CSE expressing her willingness to meet again, she received no response. The failure to allow the parents a meaningful opportunity to participate in the development of the IEP goals deprived the student of a FAPE. FBA and BIP

The IDEA requires that, when a student's “behavior impedes the child's learning or that of others,” the CSE “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” 20 U.S.C. § 1414(d)(3)(B) (i). New York regulations require the CSE to conduct an FBA for a student “whose behavior impedes his or her learning or that of others.” 8 N.Y.C.R.R. § 200.4(b)(1)(v).

Although the Second Circuit has explicitly held that an FBA must be conducted in advance of an IEP, R.E. v. New York City Dep't of Educ., 2012 WL 4125833, at *17, a district's failure to conduct an FBA is a serious omission, not in and of itself a denial of a FAPE. Id. The absence of an FBA will not render an IEP procedurally inadequate where, as here, the IEP explicitly considers behavioral strategies to address the interfering behaviors. See R.C. ex rel. M.C. v. Byram Hills School Dist., --- F.Supp.2d ---- (2012); F.L. ex rel. F.L. v. New York City Dep’t of Educ., WL4891748, [S.D.N.Y Oct 16, 2012] (where the court also held that where the BIP was based on input from the child’s school and the parent received the BIP before the school year began, this too was proper; A.C. ex rel. M.C. v. Bd. of Educ of the Chappaqua Cent. Sch. Dist.., 553 F.3d 165, 51 IDELR ¶ 147 (2d Cir. 2009).

I have considered all of the other claims and arguments raised by the parents against the DOE and find that they do not support any additional findings with respect to a denial of FAPE. Appropriateness of the Parents’ Unilateral Placement

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]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]; See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010).).

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, the core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” id. at 364 (citing Rowley, 458 U.S. at 207). “No one factor is ...dispositive” of this issue. Instead, courts must consider “the totality of the circumstances....” Gagliardo, 489 F.3d 105, 112 (quoting Frank G., 459 F.3d at 364-365). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115. The parents must present evidence demonstrating that their chosen placement is "'likely to produce progress, not regression.'" Gagliardo, 489 F.3d at 112 (quoting Walczak, 142 F.3d at 130). The parents' choice "should [] be evaluated [by] looking at the program at the time that the parents selected it," C.R. ex rel. W.B., 2005 U.S. Dist. LEXIS 15215, at *59 (E.D.N.Y. June 10, 2005), rather than by considering the student's actual progress in the placement.

The record establishes that The Child School is an appropriate placement for the student because it is reasonably calculated to give the student educational benefit both because of the nature of the school and its program as well as instruction and strategies designed specifically for the student. The Child School is a State approved special education private school which serves students from the ages of 5-21. Tr. 199-202. The students have classifications of . Tr. 202. The students are grouped according to their functional levels, social skills, and within a three year range. Tr. 202. The school offers speech therapy, . Tr. 203.

The testimony of the student’s teacher is credited and supports the finding that the student’s math and reading levels are at a kindergarten level, similar to the functioning levels of the other four students in his class. As required, instruction is provided in small groups. Tr. 215-216. All of the students are five years old. Tr. 207-209. The students present with speech and language issues. Tr. 202.

The testimony of Ms. , the student’s kindergarten teacher, conforms to the reports and parent testimony regarding the student’s delays in processing issues. Tr. 209, 217-219, 319-320. She credibly and competently testified regarding the student’s identified needs and how they are being met by the school. Tr. 222-226. The student’s program is individualized by decreasing the amount of work he is required to produce and providing limited breaks to address his needs and ensure that his work is completed. Tr. 212-213. The teachers also provide a constant flow of verbal encouragement and redirect the student about every five minutes. Tr. 214. A behavior plan which utilizes a positive reward system is implemented in the classroom; like the other students in his class, the student has individualized worksheets reflecting his progress in the plan. Tr.

215. Dr. ’s testimony corroborated the testimony of teacher. Dr. ’s testimony and report support the finding that the student is appropriately placed at and is consistent with the student’s identified special education needs. Tr. 292-293; 314. In the context of the program at , the student’s can be appropriately addressed by the classroom behavior plan. Tr. 296-297, Tr. 310-312, 316-317. The student is receiving the related services recommended on his IEP. Tr. 223-226. Progress reports with descriptions of what the student is learning and how the student is progressing are provided twice a year, with a checklist at the end of the year. Tr. 226; Ex. C The student is benefitting from his placement at The Child School. The frequency with which he cries and the duration have decreased. Tr. 232-234, 240-243, 343. He has begun to articulate his needs. Tr. 233-235. The student is better able to make transitions. Although his advances are small, he is socializing more with his peers. Tr. 342-343. Academically, the student has gained letter sounds and can read “color words.” He is able to identify more numbers through one hundred and is increasing his ability to print. Tr. 231-232.

The district also argues that does not provide the student with special education services in the least restrictive environment. While parents are not held as strictly to the standard of placement in the LRE as school districts, the 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. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 138 [S.D.N.Y. 2006]; Pinn v. Harrison Cent. Sch. Dist., 473

F. Supp. 2d 477, 482 [S.D.N.Y. 2007]). Here, the fact that The Child School exclusively educates students with disabilities is not a bar to reimbursement. The rulings of both Burlington and Carter regarding the right of parental placement would be rendered meaningless if courts were to routinely find that parental placements in special education private schools automatically violated the IDEA's mainstreaming requirement or parents were required to keep their child in a regular education setting when they believed it was inappropriate to meet the child's needs.

Based on the information available to the parents about their son’s identified special education needs and the size of class, student to teacher ratio, the supports and services described by the parent, Dr. , and Ms. , and the actual progress the student has made, was an appropriate placement for the parents to have chosen for their son for the 2012-2013 school year. Under the totality of the circumstances, the parents have met their burden of proving that is appropriate for the student to obtain educational benefit for the 2012-2013 school year. The Equities

Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., 49 IDELR 39 (S.D.N.Y. 2007).

The record supports the finding that the parents have acted cooperatively with the CSE throughout the process. They attended the CSE meeting, provided the privately obtained evaluations relied upon by the CSE, participated in the CSE meeting as active members of the CSE, expressed their concerns about the CSE recommendation and investigated the CSE's offered placement despite their concerns, to determine whether an appropriate program or placement was offered. (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]).. There is no evidence that the parents did not cooperate with the CSE process in any way. The parents acted cooperatively, the DOE failed to offer the student a FAPE or respond to the parents' concerns, leaving the parents free to seek an appropriate placement to meet the student's needs. The equities weigh in favor of the parents and full tuition reimbursement of $29, 455, upon a showing of proof of payment, is warranted.

ORDER

1. The CSE shall reconvene and properly classify the student, consistent with the findings in this decision and taking into account the evaluative data and current information from the student’s parents, teachers and providers.

2. The New York City Department of Education shall reimburse the parents for the student’s 2012-2013 tuition for upon presentation of proof of payment. Dated: January 25, 2013

LANA S. FLAME, ESQ.

Impartial Hearing Officer

LSF:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Notice and Request for Transportation, 8/22/12, 4 pages B Notice of Address Change and Updated Evaluations, 5/10/12, 1 page C Progress Report, 10/12, 5 pages D Parent Letter to , 6/26/12, 1 page E Parent Letter to , 6/26/12, 1 page F CSE Meeting Minutes, 5/10/12, 4 pages G Child's School Tuition Payment Plan, 10/31/12, 1 page

DEPARTMENT OF EDUCATION

1 Due process Complaint, 9/10/12, 9 pages

2 Due Process Response, 9/19/12, 3 pages

3 IEP, 5/10/12, 20 pages

4 FNR, 6/21/12, 1 page

5 CSE NOTICES, 3/5/12 and 4/26/12, 2 pages

6 Preschool Teacher Interview and Classroom observation, 3/27/12,

7 pages

7 Social History Update, 3/27/12, 3 pages

8 Classroom observation, 3/27/12, 1 page

9 Developmental Behavioral Evaluation, 2/2/12, 5 pages

10 Progress Report, 12/16/11, 4 pages

11 Social History Update, 12/14/11, 3 pages

12 report, 12/8/11, 3 pages 19 21

13 Therapy Report, 12/2/11, 5 pages

14 report, 10/6/11 To 11/16/11, 12 pages

15 Parent letter, 5/18/12, 1 page 19 21 16 Child School Tuition Contract,11/21/12,^[1] page

IMPARTIAL HEARING OFFICER

I Compliance Date Extension Request and Decision,

12/18/12, 4 pages

II Compliance Date Extension Request and Decision IHO

Corrections to Transcript and Parties Confirmation,

Dated 1/20/13 – 1/22/13, 3 pages

III Emails re Corrections to Transcript, 1/20/13-1/23/13,

5 pages

IHO POST HEARING SUBMISSIONS

2 Closing Brief for the Department of Education, 1/4/13, 15 pages

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Footnotes

[1] Dr. testified that the ICT class would have 40% students with IEPs and 60% students who are not disabled, as well as two licensed teachers, one general education and one special education. Tr. 64-65. Dr. further testified that the student, in effect, is in a setting. Tr. 144-145. If there are 12 special education students in the class comprising 40% of the class, 18 students would make up the remaining 60% for a total of 30 students. At the time of the hearing the recommended class had 25 students. Tr. 63.

[1] Closing Brief and Legal Memorandum Submitted by Parents’ Counsel, January 4, 2013, 30 pages