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: January 22, 2013

February 13, 2013

March 13, 2013

Actual Record Closed Date: April 9, 2013

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 22, 2013

Attorney — Parents

Parents

Chairperson Designee, — DOE

CSE — District

via telephone School Psychologist, CSE — DOE

via telephone Special Education Coordinator, Business of Sports School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 13, 2013

Attorney — Parents

Parents

Head Master of Preparatory School (via telephone) — Parents

/ITP Teacher of (via telephone) — Parents

English Teacher of (via telephone) — Parents

Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 13, 2013

Attorney — Parents

Parents

(via telephone) — Parents

English Teacher of (via telephone) — Parents

Clinical (via telephone) — Parents

Chairperson Designee, CSE District — DOE

On October 23, 2012, I was designated by the New City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New in the matter of W.H. (hereinafter ) and the parent through her attorney initiated this hearing on September 27 5, 2012. On November 7, 2012, I scheduled a Pre-Hearing Conference and set this matter for hearing on December 3, 2012 and January 17, 2013. The parent’s attorney requested an adjournment of the December 3, 2012 hearing and with the consent of the district’s representative, I granted the adjournment request. The District representative requested an adjournment of the January 17, 2013 and with the consent of the parent’s attorney, I granted the adjournment request. Hearings were held on January 22, 2013, February 13, 2013 and March 13, 2013. The hearing was requested by the parent through her attorney to challenge the June 4, 2012 review and the recommendation of the Committee on Special Education (“CSE”) and to challenge the program and placement and to obtain funding for a unilateral placement at the (“ ”) for the 2012-2013 school year. The parent alleged that the DOE failed to provide a free and appropriate public education (“FAPE”) for the 2012-2013 school year because the goals were not appropriate (Exh. A at 2) and the CSE failed to perform adequate and appropriate evaluations and no classroom observation was conducted (Exh. A at 3) The parent alleged that CSE failed to provide an appropriate transition plan and failed to develop an appropriate program and placement (Exh. A at 4). The parent seeks reimbursement of tuition . is a non-New State approved program. has a small class program with a high teacher to student ratio. also has a for its special education students with group sessions twice a day and individual sessions twice a week. also has an Independent Transition Program (“ITP”) for its special education students who require less support with group sessions once a day and individual sessions once a week. The parent seeks reimbursement for the tuition at in the amount of $38, 950 and reimbursement for in the amount of $9,500 (trans. 250; Exh A at 6). The parent seeks related service authorization (“RSA”) for therapy (“SLT”) for the 2012-2013 school year from September 1, 2012 to June 30, 2013 (trans. 250; Exh. A at 7) and provided proof of payment in the form of a cancelled check # 192 dated October 2, 2012 in the amount of $9,662 (Exh. F at 5) and credit card payments of $3,241.67, $3,241.67, 4,266.66 and $9,662.50 (Exh. F at 1-4). I note that the parents requested reimbursement for transportation and reimbursement for compensatory education (Exh. A at 3); however, those claims were withdrawn at the hearing (trans. 250). The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (trans. 135;-139; 253; 408; Exhs. I-V). The last compliance date was extended as a result of the request for post-hearing submissions (trans. 409; Exh. IV. The parent’s representative submitted his post-hearing brief on April 8, 2013 and the district’s representative submitted his post-hearing statement on Aril 9, 2013. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

boy who is currently in the . He diagnosed with (“ ”) Not Otherwise Specified (“ ”) and a (Exh. K at 10). He was classified as on a CSE review conducted on June 4, 2011 (Exh. 2 at 1). His classification is not in dispute. was attended the grade (trans. 205) and received and (“OT”) (Exh. K at 3; Exh. 5 at 1). He attended the for the 9th grade and attended and the program for th grade. was evaluated when he was old attending while he was in by Dr. , Psy. D., School . Dr. noted that was diagnosed by Dr. , Ph.D., in 2007 with “ , compromised visual-motor integration, visual motor speed and visual-motor planning skills” (Exh. 1 at 2). Dr. conducted a evaluation on January 31, 2009, who found that intellectual function, as assessed by the Wechsler Abbreviated Scale of Intelligence and noted “no significant difference between verbal and nonverbal performance in ’s pattern of scores”(Id.). Dr. assessed ’s academic achievement on the Woodcock-Johnson III (“W-J III”) and noted that was below grade level in reading decoding and above grade level in math (Exh. at 3). Dr. reported that took medication for the and that complained of fatigue and recommended that ’s eyes be checked for convergence (Id.). The W-J III scores indicated that received a grade equivalent (“GE”) of 5.3 in letter-word identification and a GE of 10.8 in calculation and a GE of 7.7 in passage comprehension and a GE of in applied problems (Exh. 1 at 4).

A social history was conducted on January 31, 2009, when was in 7th grade and the social worker noted that was aging out of and struggled in reading, writing and math and required a great deal of repetition and instruction to make progress and stay in task and that struggled with his social skills when interacting with peers (Exh. J at 1). The reported noted that was currently and had taken since the age of 5 (Exh. J at 2).

A evaluation was conducted on August 30, 2011, when was 15.7 and had grade at the School (Exh. 7 at 1). , Ph.D., CCC-SLP assessed ’s with the Clinical Evaluation of Language Fundamentals (“CELF”) and noted he had difficulty blending sounds into meaningful words. Dr. found ’s expressive vocabulary skills were below age level expectancy (Exh. 7 at 3). Dr. noted that ’s verbal reasoning skills were weak and he had difficulty organizing information and elaborating on details. Dr assessed his expressive writing and noted numerous spelling, inappropriate use of capital letters and grammatical errors (Exh. 7 at 4) Dr. concluded that presented with language and speech concerns had a direct impact on his academic performance (Exh. 7 at 5).

Dr. conducted another evaluation in December 11, 2011, when was . Dr. found ’s general assessed by the Wechsler Intelligence Scale for Children–Fourth Edition (“WISC-IV”), was in the high average range and with a verbal comprehension th score of , in the percentile, a perceptual reasoning score of in the percentile, a st working memory score of , in the percentile, a processing speed score of , in the percentile, in the low average range and he yielded a full I.Q. score of (Exh. K at 18). Dr. assessed his academic abilities using the W-J III, and found had an score in reading and a and a borderline score in motor speed (Exh. 6 at 19, 20).

A social history update was conducted on April 25, 2012, and the social worker noted that grade at and that his mother reported the transition was difficult. (Exh. 5 at 1).

A vocational interview was conducted on April 25, 2012, and the reporter noted that intended to attend college (Exh. 4 at 1).

On June 4, 2012 CSE met and classified and recommended an integrated coteaching class (“ICT”) with 40 percent of special education students inside a general education class with 60 percent of regular education students in a community school and recommended once a week for 40 minutes in a group of twice per twice a week for 40 minutes per session in a group of 5 (Exh. 2 at7) The June 4, 2012 Individualized Education Plan (“IEP”) indicated that the instructional level in reading and math was 9th grade and recommend testing accommodations of double time, in a separate location in a small group and test directions read and reread, a 5-minute break every 30 minutes and the use of a keyboard for written test answers directly in the test booklet and the use of markers (Exh. 2 at 8). On August 13, 2012, a Final Notice of Recommendation (“FNR”) was made for . On August 28, 2012, the parent wrote to CSE upon receipt of the FNR to request a visit to the proposed placement and indicated she could not visit or speak to the staff at and so she would enroll would seek reimbursement for tuition at (Exh. C at 1). On September 19, 2012 the parent wrote to CSE to alert CSE that the campus of contained over 2000 children and the had 450 students in a single floor and the average class had 30-35 children and she notified CSE that would remain enrolled and she intended to seek reimbursement (Exh. C at 3).

THE POSITION OF THE PARTIES

The district’s representative maintained that District 3’s CSE met on June 4, 2012 with a duly constituted team and developed an appropriate IEP for who was classified as and recommended a placement in an ICT class in a community school within a general education class in the least restrictive environment (Exh. VII at 4) The district representative maintained that members of the team included the School Psychologist and District Representative, and a Special Education teacher, and the parent member, as well as ’s parent and Dr. Reese, the Director of (Id.). He further maintained that the team considered the most recent evaluations and school reports and developed IEP goals that met his unique needs (Exh. VII at 5).

The parent disagreed with the recommended placement and program and maintained that District 3 failed to provide FAPE as the placement at the was not appropriate in that the class size of 35 children was too large and the had 450 students and was housed in a school with over 2000 students (Exh. A at 5; Exh. C)

THE DISTRICT’S CASE

The District’s case was presented in the testimony Special Education Coordinator. Ms. testified that she was employed by the NYC Department of Education as a psychologist for 17 years (trans. 27). She stated she sat in the June 4, 2012 IEP meeting as both the and District Representative (trans. 32). She stated that she thought that Ms. , who participated as Special Education teacher had a dual license in regular and special education, but she was not sure (trans. 31). She stated that the parent and the representative participated by telephone (trans. 32). She reviewed the rational (Exh. 8) that indicated that the team reviewed the (Exh. 7), the social history update (Exh. 5) and the private psychological-education evaluation (Exh. 6). She stated that social history indicated that the parent would provide a hearing test to CSE (trans. 41). She recalled that IEP team recommended an ICT class to provide management needs for within the classroom (trans. 45). She explained that was related to (trans. 46). She further explained that testing accommodation of a keyboard would address the grapho motor skills and double time in a small room with breaks would give less distraction and directions read and reread would keep focused and the use of a marker would allow him to highlight main ideas (trans. 48).

On cross Ms. stated that she created the rationale (Exh. 8) to refresh her recollection of the June 4, 2012 IEP meeting (trans. 61). She further stated that CSE did not conduct a classroom observation (trans. 62). She maintained that the goals were taken from the speech report, but could not explain the source of the goals (trans. 64). She further maintained that transition was discussed, but she was not sure if the vocational interview (Exh. 4) was discussed (trans. 69). She recalled that despite the fact that Dr. diagnosed with and recommended a small, structured, integrated academic environment of no more than 18 students (Exh 6 at 10), the team decided that a small class would not be appropriate given his reasoning skills and a typical high school class containing 35 students was appropriate (trans. 82;93). She opined that an ICT class would allow him to learn adequately and that a large class was not a factor to consider (trans. 83). She could not recall if goals were discussed and could not explain the baseline for progress of the IEP goals (trans. 85). She could not explain why the IEP indicated that math and reading skills were at 9th grade (Exh. 2 at 11), yet the IEP indicated that math was a strength for (Exh 2 at 1; trans. 87). She could not recall if the parent requested a small class (trans. 95), but recollected that both the parent and the representative agreed with the ICT recommendation (trans. 96).

Ms. , a certified and licensed special education teacher K through 12 and certified and licensed in English grades 7 through 12 and licensed and certified in Common Branches N through 6, employed by the Department of Education for 42 years testified that she was the Special Education Coordinator of the (trans. 104;107). She stated a ICT program was available in for the 2012-2013 school year with SLT. She noted would be available through an RSA (trans. 109).

On cross Ms. stated that approximately 680 students attend the and that the percentage of special education students was 25 percent and regular education students was 75 percent in the ICT class (trans. 111). She further stated that 3 other schools were housed along with the in a building with 7 floors (trans. 113). She explained that the was located in the and part of the floor and there were 2 ICT classes per grade in the (trans 115). She further explained that each ICT had no more than 40 percent special education students and 60 percent regular education students (trans. 117).

THE PARENT’S CASE

The Parent’s case was presented in the testimony of the parent, Head Master of , Teacher, Clinical and , Special Language Pathologist.

The parent testified that attended for grade in the 2011-2012 school year (trans. 204). She stated that attended the for the and he had attended the from (trans. 205). She explained that aged out of the and the class size of the School was 12 children in a class (Id.). She further explained that the class size of was 12 to 13 students (trans. 206). She noted that she removed her son from the and placed him at because she wanted school closer to home and a school that would allow her son to achieve more (Id.). She stated that she participated in vocational assessment (Exh. 4) and she did not tell the reporter for her son (trans. 209). She recalled that she provided the private psychological evaluation (Exh. 6) and the (Exh. 7) to the CSE (trans. 210). She further recalled that she participated in the June 2012 CSE meeting and she cooperated with CSE. She stated she told the IEP team that she strongly disagreed that the ICT placement was appropriate for the 2012-2013 school year (trans. 212). She opined that required small class sizes and a very structured environment because he issues and required a placement with the least amount (trans. 213). She recalled that she told the CSE team that had a recent medical check-up and ’s doctor recommended a that required a (trans. 214;217). She further recalled that she visited the proposed placement and observed the school was a and opined that her son needed a environment (trans. 220-221).

On cross, the parent stated she secured a seat for at around February 2012 and would attend either the ITP or at (trans. 225). The parent further stated that she did not consider the School offered enough challenges for (trans. 226). She related that she attempted to contact the as soon as she received the FRN and the first date that she was allowed to visit was September 19, 2012 (trans. 229). She maintained that if she liked the school, then she would have placed in the Business of Sports School (trans. 230). She explained that was receiving provider for the 20122013; however, the provider had not been paid and would accept the RSA rate (trans. 230;246). She acknowledged that did not provide (trans. 231). She opined that was beneficial for and may be beneficial, but as had not received for several years, she did not consider as important for as other supports (trans. 233). She recalled that had a difficult time making friends during the and his grades improved during the at (trans. 238).

, Head Master of for 44 years, testified that was begun in 1969 to provide a supportive environment so that students could be placed in tracts based on their abilities so they could become successful (trans. at 147-148). He explained that over the years had faculty development to focus on strategies for and that was an inclusion school in which students with were educated with non-disabled students (trans. 159). He stated that there were approximately 357 students enrolled at grades 6th to 12th and that 15 students were in and 124 students were in the Program (trans. 149;169). He noted that ’s philosophy was to bring the parents into the program to assist students with and assignments and allowed parents to receive a snapshot of progress of a weekly basis for every test and quiz (trans. 155). He explained that was started for the students with IEPs which provided extended day instruction in a group twice a day from 8:00 am to 8:45 am and from 3:12 pm to 4:00 pm and individualized instruction from a certified special education teacher twice a week (trans. 152;175; 177). He further explained that the and was developed who required less individualized instruction from a certified special education teacher than the students. He noted that the provided either a morning or an afternoon session each day and individualized instruction from a certified special education teacher once a week (trans. 171;189). He stressed that the special education teachers worked with the regular education teachers to ensure that the subject teachers have knowledge of how to work with children who have learning issues (trans. 159). He maintained that testing accommodations of double time, preferential seating and testing in a separate room, FM microphones and computers were available. The class size at was 15 students per class (trans. at 160). He noted /ITP teacher acted as a mentor for the students with learning disabilities and taught the students to self-advocate (trans. 163) He further noted that the and ITP was located in a building about 200 feet from the main building that housed (trans. 191). He explained that was an appropriate placement for learning disabled students with WISC-IV scores in verbal comprehension, perceptual reasoning and working memory above the h percentile and (trans. 192).

, a /ITP teacher with a Master’s degree in Reading Disabilities and Leadership for Education Change, testified that she was ’s / teacher in a class of 9 students. She stated that of her 9 students 2 students were in the ITP (trans. 284). She further stated that she met in her ITP/ class either in the morning or in the afternoon and once a week individually for 40 minutes (trans. 256;273). She described ’s primary difficulty was organization, processing, reading and writing. She addressed his LD deficits by outlining, pre-writing and using a planner (trans. 261). She opined progressed in writing during the 2012-2013 school year by writing with improved syntax, the use of transition words and providing relevant information (trans. 263). She stated vocabulary difficulty was improved by reviewing SAT and she used strategies of annotation, chunking and summarizing to address his reading difficult (trans. 259). She opined that ’s by teaching him skills and pre-planning social situations (trans. 266). She noted oral reading difficulty was ameliorated with annotation and checklists (trans. 264). She related that was provided a computed for his dysgraphia and that s received further testing accommodations of extended time, preferential seating and specific instructions from teachers (trans. 277-279). She opined that would have a lot of difficulty without the ITP because he required structured support and benefited from the Edline, the online computer program (trans. 283)

, a History teacher employed by for 1 year, testified that he held Master’s degrees Social Studies and Secondary Social Studies Education and taught in the 11-2 History class with 14 students (trans. 287). He explained that was in the lower track and that 7 out of the 14 students were students (trans. 288). He described ’s struggles included , writing difficulty and reading comprehension difficulty (Id.). He stated was reduced by and ensuring understood the material (trans. 291). He stated he used graphic novels and visual information rather than the primary texts to ensure comprehended the reading (trans. 291). He stated he addressed ’s deficits in organization by graphic organizers and individual sessions of instruction (trans. 293). He opined that ’s writing dramatically improved and that the class size allowed him to spend a large amount of individual time with to ensure he mastered the material and his (trans. 295).

, an English teacher employed by , testified that she held Master’s degrees in Comparative Literature and in Secondary Education, testified that she taught in the 11-2 English class with 14 students (trans. 317). She explained that her English class was in the middle of 3 tracks. She opined that the middle tract was appropriate for because he had difficulty with reading and writing, (Id.). She stated that 7 out of the 14 students were students and that was grouped with students with similar needs (trans. 318). She stated that she taught reading comprehension and annotation strategies to address his difficulty with reading (trans. 319). She further stated that she used graphic organizers, character webs and pre-reading to increase ’s confidence. She opined that progressed in reading comprehension by his insightful comments in class discussing Shakespeare’s Macbeth (trans. 321). She stressed that she used pre-writing and writing lab sessions to address ’s writing deficit and that his writing improved as evidenced by the higher quality of his analysis and his sophisticated sentences (trans. 323). She explained that ’s classroom participation improved (trans. and that the small class size allowed her to provide him with individual attention (trans. 325).

Dr. testified that she held a Ph.D. in Sciences (trans. 305). She opined that would benefit from outside of the class so as not to lose instruction time (trans. 307). She opined that a small class size would benefit s because his and processing difficulty required a teacher to repeat information (trans. 308).

Dr. testified that she held a Ph.D. in Psychology (trans. 344). She stated that based on her report of December 2011 (Exh. K), that ’s slow processing affected his reading and his need for a slow pace of instruction (trans. 349). She explained that his compounded his issues of . She noted that the difficulty to sustain attention as well as organize information impacted his reading comprehension and his expressive language both in speaking and writing (trans. 351). She opined that required a small class of 15 students to address his difficulties (trans. 355;359). She stated that she was familiar with ’s challenging curriculum and the program noted provided different tracts for students with different learning styles and provided extra sessions with teachers to help student organize class work and homework and monitor progress (trans. 367). She opined that without the would not be beneficial for (trans. 368). She noted that was medicated for his from many years and still required that extra support and structure of (trans. 369).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education.” See 20 U.S.C. Section 1400(d)(1)(A). Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 (1982). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir. 2002), quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement Id. at 130. The student's recommended program must also be provided in the least restrictive environment See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.550(b); 8 NYCRR §200.6(a)(1). Also, a FAPE must be available to an eligible student “who needs special education and related services even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” See 34 C.F.R. § 300.101( c)(1); 8 NYCRR § 200.4(c)(5).

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 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.32(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special educational services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

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. N.Y. Educ. Law §4404[1][c].

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. See School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The parent’s attorney asserted many procedural flaws in the June 4, 2012 IEP: the meeting was not properly constituted because neither the special education teacher, nor the district representative met the necessary criteria as defined by federal and state law (Exh. A at 1); there was no regular education teacher present despite the general education recommendation; the goals were not formulated with regard to ’s present level of performance and neither the goals nor the IEP were reasonably calculated to confer educational benefit and did not address ’s unique social and (Exh. A at 2); the goals did not contain evaluative criteria and did not reflect the starting grade or the grade expected to achieve (Exh. A at 3).

It was uncontested that no regular education teacher participated in the June 4, 2012 IEP despite the ICT program in a general education class (trans. 31; Exh. 2 at 13). I find there was insufficient information as to how the special education teacher would have been able to implement the proposed program. The parent’s counsel asserted CSE failed to conduct the necessary evaluations (Exh. VI at 6). Under 8 N.Y.C.R.R. § 200.4(b)(3), CSE was required to conduct additional evaluations to appropriately assess the student in all areas related to the suspected disabilities. Testimony and evidence adduced at the hearing established that required a hearing evaluation (Exhs. 5, 7) and the social history indicated that the parent would provide a hearing test to CSE (trans. 41). I find the CSE should have adjourned the June 4, 2012 IEP until the hearing test was completed as the CSE was aware of ’s diagnosis and was aware of the impact of a hearing loss. I credit the testimony of the district witness who stated CSE reviewed the speech report that indicated that presented with concerns that had a direct impact on his academic performance (Exh. 7 at 5; trans 41). I credit the testimony of the parent who told the CSE team that had a recent medical check-up and ’s doctor recommended a hearing screening and later testing revealed that required a hearing device (trans. 214;217).

The parent’s attorney asserted that no classroom observation was conducted (Exh. A at 3). This assertion was uncontested. The parent’s counsel alleged that CSE failed to provide an appropriate transition plan and failed to develop an appropriate program and placement (Exh. A at 4). I find that CSE was aware of the ’s transitional problems as indicated on the social history and I credit the testimony of the district witness who stated that CSE review the social history (Exh. 5 at 1;trans 41).

The parent’s counsel asserted that Ms. did not interview for the vocational assessment and only interviewed the parent (Exh. VI at 10-11). This assertion was uncontested. I credit the parent’s testimony that she participated in vocational assessment and she did not tell the reporter were issues for her son (trans. 209) and I find the Vocational Assessment (Exh.4) was not accurate and an interview of was mandatory.

The parent’s attorney argued there were substantive flaws in the proposed ICT placement within a regular education class. The parent’s attorney asserted that FAPE for 2012-2013 was not provided because the placement size was unlimited. The parent’s attorney argued that because the district’s witness stated no size of the ICT class too large for (trans. 83) her testimony rendered the appropriateness of the IEP objectively unreasonable (Exh. VI at 4). The parent’s attorney asserted that the uncontested diagnoses of (Exh. K at 1) for made an ICT placement in a regular education class of unlimited size objectively unreasonable. The parent’s attorney argued that the IEP team ignored the parent concerns for a small class size (Exh. VI at 5),

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 (2d Cir. 2003). A procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, (S.D.N.Y., 2005). The district representative asserted that the ICT classroom at the was appropriate as would receive the mandated testing accommodations and in the recommended program and the parent could have received a RSA for the mandated (Exh. VII at 7). The district representative asserted that FAPE was provided that the IEP developed by CSE was “reasonably calculate” to enable the student to received educational benefits (Exh. VII at 9).

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007).

The parent’s attorney asserted that the June 4, 2012 IEP goals were drafted without parent participation and were not formulated with regard to ’s present level of performance and neither the goals nor the IEP were reasonably calculated to confer educational benefit and did not address ’s unique social and emotional needs (Exh. A at 2). The district’s witness could not recall if goals were discussed and could not explain the baseline for progress of the IEP goals (trans. 85), nor could she explain why the IEP indicated that math and reading skills were at 9th grade (Exh. 2 at 11) and the IEP indicated that math was a strength for (Exh 2 at 1; trans. 87). I find the CSE had ample evidence of ’s instructional levels in reading and math scores. received a grade equivalent (“GE”) of in letter-word identification and a GE of in calculation and a GE of in passage comprehension and a GE of in applied problems (Exh. 1 at 4). The district representative argued that the IEP academic goals were appropriate to improve his decoding, spelling, reading comprehension and writing (Exh. 2 at 4-6; Exh VII at 5-6) I find the academic goals were developed without regard to ’s present level of performance and were developed without the parent’s participation.

The district representative argued that the goal was prepared to improve ’s visual motor integration and speed ( Exh. VII at 6). I credit the testimony of the district witness who stated that the goals were taken from the report, but she could not explain the source of the goals (trans. 64). I find the related service goals were developed without regard to ’s present level of performance and were developed without the parent’s participation.

I credit the parent’s testimony that she voiced her concerns that required a small class at the IEP meeting and strongly disagreed that the ICT placement was appropriate for the 2012-2013 school year (trans. 212). I do not credit the testimony of the district representative who stated that both the parent and the representative agreed with the ICT recommendation (trans. 96). I find that CSE ignored Dr. recommendation of a small, structured, integrated academic environment of no more than 18 students (Exh 6 at 10). The district witness testified that the team decided that a small class would not be appropriate given ’s reasoning skills and a typical high school class of 35 students was appropriate (trans. 82;93). I find the ICT program in a general education class was made by CSE staff and contrary to the evidence and parent’s concerns and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE.

I find CSE had ample evidence of ’s language deficits, slow processing problems and . 7). I find ’s needs were not addressed on the June 4, 2012 IEP.

I further find the lack of appropriate academic goals and the related therapy predrafted goals significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE. I find that the district failed to establish that the parent and Dr. Reese meaningfully participated the decision making process. I find the lack of CSE evaluations to support the ICT program in a large general education class size significantly impeded the parents’ opportunity to participate in the decision making process. I further find that the failure for CSE to reconvene to obtain a hearing assessment or consider ’s hearing needs in a large classrooom significantly impeded the parents’ opportunity to participate in the decision making process. Therefore, I find the district failed to establish that FAPE was provided during the 2012-2013 school year.

To meet the 2nd prong, the parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent’s claim for tuition reimbursement. See Florence County School District Four v. Carter by Carter, 114 U.S. 361 (1993). The parents must prove that the student will receive an appropriate educational benefit from the program at the non-public school. The Second Circuit framed the legal standard for prong 2 in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) that the parents need not show a private school placement furnishes every special service necessary to maximize the child’s potential. (Tr. 364-365). When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a handicapped child.”’ Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-189; see also Weaver v. Millbrook Cent. Sch. Dist., No 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y).

The district representative requested that reimbursement must be denied because the parents failed to establish that provided services to meet ’s unique needs (Exh. VII at 16). Testimony adduced at the hearing clearly demonstrates that provided small classes and special educational techniques specifically designed individualized instruction to meet his unique needs. The evidence presented from the parent indicated that reading comprehension, writing, slow processing and focusing were issues for . I find testimony adduced at the hearing established that these special education needs were met by his regular education teachers who provided pre-reading, pre-writing, chunking and repetition to ensure learned. I find the teachers presented information both visually and orally. I find that the classroom teachers addressed ’s specific learning deficits using multi-sensory methods of graphic organizers and annotation and provided individual instruction in reading and comprehension skills. I credit the testimony of the English teacher described the multi-sensory techniques used such (trans. 321). I find the pre-writing and the writing lab addressed his writing deficit. I credit the testimony from the History teacher who listed the techniques he used with included providing graphic novels and visual information rather than the primary texts (trans. 291). I credit the testimony of History teacher and I find he addressed ’s deficits in organization by graphic organizers and individual sessions of instruction (trans. 293). I find /ITP teacher described how she met ’s specific special education needs by addressing his organization needs and I credit her testimony that she encouraged to self-advocate.

The district representative argued that the parent did not establish progress and the alleged progress was conclusory (Exh. VII at 16). I credit the testimony of the teacher and the academic teachers of s’ progress and I find the parent submitted grades (Exh.

L) to establish progress and I find that progressed at in his academic .

The district representative requested that I separate the tuition from the /ITP tuition and not both were reimbursable (Exh. VII at 17). I find that there was close coordination between the /ITP teacher and the academic teachers and I cannot attribute ’s progress at solely to either the /IPT teacher or the academic teacher. I find the academic teachers and the /IPT teacher provided daily individual attention in reading, writing and comprehension and addressed his

The district representative argued that was not appropriate because it does not provide SLT (Exh. VII at 22) In Application of the New City Dept. of Edu., Appeal No. 09-017, the SRO held that the absence of SLT which may have been beneficial to the student did not warrant a finding that the private placement was inappropriate. The Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student’s private placement inappropriate. The Court found “plaintiff was not required to establish that WPS offered therapy in order to prevail.” G.R. v. New City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009). In Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005), the Court found the unilateral private placement appropriate even though the school did not provide student with therapy and therapy recommended on IEP. Accordingly, I find the absence of related services at the did not render the private placement inappropriate. Therefore, I find that the parent met her burden regarding the unilateral placement of at for the 2012-2013 school year.

The third prong of the test for tuition reimbursement is whether the equities favor the parent’s position. The district representative noted in his post hearing brief that the reimbursement should be denied because the parent did not bring to the proposed school and did not consider the proposed placement (Exh. VII at 23).

Tuition reimbursement is to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to continue to enroll at for the 2012-2013 school year after visiting the proposed placement on September 19, 2012 (Exh. C at 3) and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I credit the parent’s testimony that she would have considered an appropriate public placement. I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability and made available for evaluations. I find that the equities favor the parent’s position.

ORDER

Therefore, it is hereby ordered that the Department of Education to reimburse the parent $38,950 for tuition at and to reimburse the parent for the Program in the amount of $9,500 upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Further, the Department of Education is ordered to provide to the parent a RSA for twice a week for 40 minutes per session for services rendered from the September 1, 2012 to June30, 2013.

Dated: April 22, 2013

_______________________

LINDA S. AGOSON, ESQ.

Impartial Hearing Officer LSA:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New City Department of Education has a right to appeal the decision to the State Review Officer of the New 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 ON JANUARY 22, 2013

I Compliance Date Extension, 11/7/12, 1 p. IHO

II Compliance Date Extension, 12/28/12, 1 p. IHO

III Compliance Date Extension, 1/22/13, 1 p. IHO

A Impartial Hearing Request, 9/27/12, 7 pp. Parent

B Omitted

C Parent Correspondence to CSE, 8/ 28/12 & 9/19/12, 4 pp. Parent

D Comprehensive Evaluation, by Parent

8/30/11, 7 pp.

E School contract for 2012-2013, 3 pp. Parent

F Proof of Payment, various dates, 5 pp. Parent

G / Contract, 11/19/12, 1 p. Parent

H Letter by Dr. ,11/ 15/12, 1 p. Parent

I evaluation, 1/31/09, 4 pp. Parent

J Social History Update, 1/21/09, 2 pp. Parent

K Evaluation by PhD, Parent

12/11, 24 pp.

1 Due Process Complaint, 9/27/12, 7 pp. District

2 IEP for the 2012-2013 school year, 6/4/12, 13 pp. District

3 Final Notice of Recommendation, 8/13/12, 1 p. District

4 Vocational Interview, 4/25/12, 3 pp. District

5 Social History Update, 4/25/12, 2 pp. District

6 Evaluation, 12/11, 24 pp. District

7 Comprehensive Evaluation, 8/30/11, 8 pp. District

8 Rationale, 6/4/12, 4 pp. District

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 13, 2013

9 Subpoena, 1/30/13, 2 pp. District

10 Screening, 7/13/12, 3 pp. District

11 MRI Report, 8/6/12, 2 pp. District

12 Notes from Dr. , 8/8/12, 5 pp. District

13 Hearing Test, 8/8/12, 3 pp. District

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 13, 2013

L Preparatory School Academic Report Card, undated, 1 p. Parent

V Decision to extend compliance, 3/13/13, 1 p. IHO

POST HEARING SUBMISSIONS

VI Parent’s Closing Brief, 4/8/12, 29 pp. IHO

VII District’s Closing Brief, 4/9/12, 27 pp. IHO