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: December 12, 2012

April 19, 2013

April 25, 2013

May 22, 2013

June 13, 2013

Actual Record Closed Date: July 22, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12,

2012

Attorney (Via telephone) — Student

District Representative — DOE

(Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2013

Attorney — Student

Parents

CSE Chairperson's Designee — DOE

Instructional Coach, — DOE

(Via Telephone — DOE

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

Attorney — Student

Parents

CSE Representative — DOE

School Psychologist — DOE

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

ESQ., Attorney — Student

Parents

Administrator - - (by phone) — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013

Attorney — Student

Parents

Teacher (Via Telephone) — Student

CSE- Representative — DOE

On October 3, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of an (8) year old student attending a private school and the New York City Department of Education (“DOE”) - District: , concerning the student’s special education program. I was appointed after the recusal of at least one other IHO. The parties stated that they had “waived” the “resolution meeting”, but did not do so as required by law. (T-5) After having adjournments granted either on consent of the parties or for cause, the impartial hearing was held on December 12, 2012, April 19, 2013, April 25, 2013May 22, 2013 and June 13, 2013. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated March 27, 2012 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) The Parent further alleges that she visited the recommended DOE placement, which was the same placement the agency offered the student for the 2011-2012 school and found it inappropriate for the student. (Id.) Accordingly, the Parent unilaterally placed the student in a private school for the 20122013 school year. (Id.) The Parent seeks reimbursement for the student’s tuition and related services at the private school for the 2009-2010 school year.

THE DOE’S CASE

The DOE argues that the student is classified as . (T-15) The student was recommended to attend an Integrated Co-Teaching (“ICT”) class and receive related services of . (Id.) At the student’s IEP meeting on March 23, 2012, his academic weaknesses and strengths were thoroughly discussed. (T-16) His private school teacher provided information. (Id.) The meeting was an “annual review” and the team considered the “least restrictive environment” (“LRE”) for the student. (Id.) Neither the Parent nor the student’s private school teachers requested updated assessments for the student. (Id.) The recommended DOE school had a seat for the student. (T-17) The student’s current private school does not afford him the opportunity to engage with typically developing properly credentialed. (Id.) The Parent did not enter into any sort of “tuition protection” with the private school, thereby suggesting little to no interest in a public school placement. (T-17-8)

The DOE called (2) witnesses to testify on its behalf and submitted (5) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is an “ ” for almost two years. (T-23) She testified that there are (929) students at the recommended DOE school, from Pre-K to the 5th grade. (T-25-6) There are (5) 3rd grades at the DOE school. (T-26) There are approximately

(220) students in the cafeteria during lunch, including 5th graders, with (9) adults, none of whom are teachers. (T-27) There are (32) students in the gym during gym period, with

(2) adults and sometimes a paraprofessional also. (T-28) None of them are teachers. (Id.) Later the witness stated that one of the adults in the gym is a teacher. (T-30-1) Parent-teacher conferences are held in November and March. (T-31)

The witness stated that during the 2012-2013 school year they did a lot of work on the “common core standards.” (T-32) There was an ICT class with an available seat at the DOE school for the 2012-2013 school year. (T-32-3) The teachers are state-certified in special education. (T-33) There were (28) students in the ICT class and she “believes” that (7) of them “would” be either learning disabled or . (T-34) There are (2) teachers in the classroom who utilize small group instruction based upon classroom observations and assessments. (T-35) (80%) of the teacher’s day is spent in small group instruction. (Id.) They follow the “Teachers College Reading & Writing Project.” (T-36) They also have teachers trained in “Wilson Reading” which is a “multisensory” approach. (T-36-7) There is only one ICT 3rd grade class at the DOE school. (T-37) For math they use “TERC Investigations” and the “Problem Solver” curriculum. (T-38) “Manipulatives” are used on a regular basis and they have SMART boards. (T-38-9) There is a cart of

(30) laptops the students can use. (T-40)

The witness stated that the student did not appear on her roster for the 2012-2013 school year. (T-41) The student would receive at the DOE school. (Id.) They have two full-time speech therapists, a guidance counselor, a social worker and two full-time occupational therapists. (T-41-2) They have at least (20) “fidgets.” (T-42) Their afterschool programs include track and field, volleyball, yoga, drumming, soccer and TBall. (T-43)

On cross examination, the witness testified that there were (2) students and maybe more that required a “fidget.” (T-45) They have a (7) period day and students remain in the ICT program for the entire day. (T-46) There was no re-direct examination of the witness. (T-46)

The DOE’s second and final witness is a school psychologist. (T-54) She testified that she chaired the student’s annual review as the “school psychologist” and the “district representative.” (T-56) The meeting was attended by a parent member, the private school teacher, a general education teacher and the student’s mother. (Id.) The purpose of the annual review was to review the level of services for the student, to gather any new information and to make a decision for the upcoming school year. (T-57) To conduct an annual review they use “teacher reports.” (T-58) The Parent did not make any written requests for testing to her knowledge. (Id.) A classroom observation had been conducted by the social worker. (Id.) She has never met the student. (T-59)

The witness stated that to her “recollection”, the student was at mid-first grade level and he was currently in the 2nd grade. (T-61) The student’s annual goals were elicited from his teacher. (T-62) They drafted the IEP on a SMART board as the teacher was speaking. (T-63-4) The draft IEP needed to be completed afterwards. (T-64) She does not believe that the student was receiving his full mandate of speech and language therapy at the private school because “typically” services are not provided to the extent mandated on ISPs. (T-65) The private school related service providers do not specifically provide them with goals. (T-66) The private school report was relied upon to create the student’s OT goals. (T-67) Counseling was not recommended for the student because it was a “clerical oversight.” (Id.) She does not “believe” that the student was at the private school. (Id.)

The witness stated that the student was recommended for placement in an ICT class full-time community school on a 10-month basis. (T-68-9) Their mandate is to try to maintain the students in the “least restrictive environment” (“LRE”). (T-69) They felt that the student needed more support throughout the school day and that he would benefit from having two teachers in the classroom, but conversely he did not require being in a full time special education class because he did have a good academic basis. (T-70) She would not have considered a non-public school for the student. (Id.) The student’s teacher and the Parent both voiced their disagreement with the recommendation. (T-70-1) It is not unusual to have the student’s level of delay in an ICT class. (T-71)

On cross examination, the witness testified that she did not have any independent recollection of the student’s March 27, 2012 meeting. (T-72) She did not rely on any testing at the meeting. (Id.) The social worker who conducted the student’s observation was not at the meeting. (T-72-3) She does not recall referring to the classroom observation during the meeting. (T-74 & D-4) The specific goals page was not done in front of the Parent. (T-75) She would have made up the student’s related service goals afterwards because they were not provided with those goals. (Id.) They would not have considered the student’s private school because it is a “non-approved” school. (T-76) They student’s teacher and the Parent indicated that the student was doing well at the private school. (Id.) They also indicated that they had concerns with the ICT program. (T-77) “Late 1st grade” is the same as “early 2nd grade.” (T-79) Smaller groups and differentiated instruction is not noted on the IEP because it is inherent in the recommended program. (T-80)

On re-direct examination the witness testified that the social worker was not required at the meeting because it was an “annual review.” (Id.) There was not re-cross examination of the witness. (T-82)

THE PARENT’S CASE

The Parent first reserved on making an opening statement and ultimately waived her opportunity to make one. (T-18 & 89) The Parent’s position is gleaned from her DPC which is summarized above in the “Background” section of this decision.

The Parent called (3) witnesses to testify on her behalf and submitted (8) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the director of the student’s private elementary school. (T-90) She is certified in New York State in both special education and social work. (T-93) The private school is a school for children with . (T-97) The “elementary” school has (129) students, the whole school has around (312) students. (Id.) The private school has three buildings. (T-98) Their overall mission is to meet the children’s’ needs. (Id.) The student’s are classified as , with specific reading, writing or math disabilities, “ ” or as having attention deficit disorder. (T-99) They develop their curriculum by looking at the “common core” and looking at other independent schools. (Id.) They also do a great deal of “modifications” and use a very multi-sensory approach. (T-100) Typically there are (10) to (12) students in a class with (2) teachers. (T-100-1) The private school is an “ungraded” school. (T-102)

The witness stated that they group students so as to not with peers greater than their level. (Id.) They look at chorological age, social fits and build a class that is going to have a complimentary curriculum. (Id.) Reading and math groups range from (2) to

(6) students in size with (1) teacher. (T-103-4) The private school offers speech and language therapy and occupational therapy. (T-104) In the elementary school there are

(3) full-time and (1) part time therapist and (3) , but one was out on maternity leave. (Id.) They do two extensive progress reports every year. (T-105)

The witness states that this is the student’s third year at the private school. (T-

108) His academic skills are far below his intellectual capabilities, his language is . (Id.) The private school classrooms are very language based and they “scaffold” to help the students organize. (T-109) The student goes to therapy twice a week. (Id.) To help the student “regulate” there is different kinds of seating, a variety of “fidgets” and they use movement breaks. (T-110) The student sees the psychologist or social maybe not even once per week. (T-111)

The witness stated that the private school’s mission is based on some tenets of , like equality, respect, community and service. (T-114) There are (10) students in the student’s class with two teachers. (Id.) The teacher is a licensed special education teacher. (T-115) The student’s reading group consist of (4) or 95) students and lead by a certified special education teacher. (T-116-7) It is an Orton-based reading group that uses a multi-sensory approach. (T-117) The student is in a math group with (6) students lead by a certified special education teacher. (T-118-20) The student receives occupational therapy once a week at the private school. (T-121-2)

The witness stated that the student is doing nicely over the 2012-2013 school year. (T-122) He is learning how to regulate himself a little more and has made progress in academic areas. (T-122-3)

On cross examination the witness testified that the reading teacher is not certified in , but that they do have faculty training at the private school. (T-129) The art teacher is not certified in special education. (T-132-3) There are kids in the student’s class that cognitively fall in the low average and those that fall into the superior range. (T-135) Part of the program test the student’s for proficiency. (T-137-8) The student is working on an early to mid-second grade level in reading. (T-138-9) The student’s speech sessions are (30) minutes long in a group of two or three. (T-139-40) He receives occupational therapy for (30) minutes in a group of two or three. (T-140) The students take the assessment at the beginning of the year. (T-143) Reading comprehension is established through informal assessment using teacher made materials. (T-145) “Skywriting” irritates the student. (T-146)

The witness stated that she is not involved in the admissions process. (T-148) The occupational and speech therapist are certified in New York State. (T-148-9) The student did not take a math assessment at the beginning of the year. (T-149) The private school does standardized testing. (T-150) The student started the year at the beginning of the 2nd grade curriculum. (Id.) Occupational therapy uses a formal assessment. (T-151)

On re-direct examination the witness testified that they do not have a specific behavior management system at the private school. (T-154) They use intensive strategies and behavior charts to manage behavior. (Id.) There was no substantive testimony developed during the witness’ re-cross examination. (T-155) During voir dire, the witness testified that there is no religious instruction at the private school. (T-155-6 & PE)

The Parent’s second witness is the student’s private school teacher. (T-163) She is a New York State certified Special Education teacher. (T-166) The student was in her class for the 2012-2013 school year. (T-168) She testified that the student has attention deficits, can be , has and in reading, math and writing. (T-169-70) There were (11) students and (2) teachers in his class. (T-171) The student requires the small classroom setting. (Id.) All of the students in the class were working on the same skills. (T-172) There is a total of (5) student’s in his reading group. (T-174) The student needs 1:1 teacher support to solidify and master various academic skills. (T-175)

The witness stated that the student was reading at the mid-first grade level at the beginning of the year. (Id.) He was assessed using the curriculum. (T-176) The curriculum is modified for the student where he is given directions several times, uses a “tracking card” and receives preferential seating. (T-178-9) The student has made steady progress in several reading areas. (T-180) The student’s fluency has increased and he is now at a mid-second grade level. (T-181) The student’s math group is (5) students with

(1) teacher. (T-182) The student received more one-on-one support. (T-183) All of the students in the group are at a similar level and are all working on the same skills. (T-184) The math group uses a modified version of the curriculum with shortened text for example. (Id.) They use teacher generated worksheets. (T-185) The student has made good progress and has been introduced to multiplication. (T-187) The student’s math teacher reported that at the end of the year the student’s math level was at a high second grade level with supports. (T-188)

The witness stated that “Writer’s Workshop” is an academic time of (45) minute sessions three times a week. (T-189) The student to teacher ratio varies. (T-190) The student is able to complete sentences with 100% consistency and is aware of punctuation and capitalization. (T-191-3) As a strategy to deal with the student’s attention and impulse control the student is given “ ” and uses a “standing desk.” (T-194-5) The student also receives movement breaks. (T-196) Socially, the student has made a lot progress and is involved in all of the group games that they play. (T-198) She has had consistent communication with the student’s Parents and Parent/Teacher conferences twice a year and via e-mail. (T-201)

On cross examination the witness testified that the reading group is “crossed grouped” across different classrooms. (T-204) She does not know the exact age of the students in the reading group or their grade levels. (T-205-6) They do not use formal assessments in her class. (T-207) The reading teacher did not tell her how the student was assessed. (Id.) A formal assessment was not used in the student’s math group either. (T-210) The student receives occupational therapy with one other student. (T-211-2) He receives speech and language therapy twice a week for (30) minutes in a group of two. (T-212) The student does not receive counseling at the private school. (T-213) They do not assess the student’s behavior with charts. (Id.) There was no re-direct examination of the witness. (Id.)

The Parent’s third and final witness is the student’s mother. (T-215) She testified that the student is (8) years old and can be very impulsive, has a hard time organizing his thoughts and . (T-216) The student also has . (T-217) The student began attending the private school in 2010 when he was in the . (T-219)

The witness stated that all of the students in the student’s class are highly functioning and bright, but have different areas of needs similar to those of the student. (T-220) The student’s . (T-221) His ability to read is much better and his general selfconfidence is much better. (T-222) She signed a contract with the private school on January 31, 2012 to ensure that the student would have a space there. (T-224) The tuition for the 2012-2013 school year is $49,177 of which $1,000 remains outstanding. (Id.) Parent’s Exhibit “G” states that $3,177 remains outstanding but she has made payments since then. (Id.)

The witness stated that the student’s IEP meeting lasted about (30) to (40) minutes. (Id.) The student’s classroom observation was not discussed during the meeting. (T-226) The DOE recommended a class of about (25) to (30) students. (T-228) She believed that class was too big for the student. (T-229) She visited the recommended DOE class on September 24, 2012. (T-231) The same school has been recommended for the student over the past four years and she has formally visited the school each time. (T-231-2) Also, her daughter attends school there. (T-232) It is a physically large school and she is concerned that because of the student’s impulsivity he could just leave the building. (T-234) are done in the hallway and she does not know if the student could focus there because he is so social. (Id.) She rejected the DOE school in a letter she wrote to the Committee on Special Education (CSE) the same day that she visited. (T-235 & P-C)

On cross examination the witness testified that she did not being the student’s IEP or his assessments to the DOE school when she visited. (T-237) She saw a 2nd grade ICT class for about (10) minutes. (T-238) She visited the DOE school for about (45) minutes. (T-239) She talked to the Parent Coordinator about the class size which is what she was most concerned about. (T-240) If she had accepted the DOE school, she would have asked the private school about the money that she had already paid ($28,000 by August 13th) and asked about what could be done. (T-242)

On re-direct examination the witness testified that she was not told to stop by the DOE school on a “whim” and not told to bring the student’s IEP or his assessments. (T-243) There was no re-cross examination of the witness. (Id.)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the 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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

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. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See 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]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

I first turn to the question of whether the DOE provided the student with a FAPE for the 2012-2013 school year. As stated above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Rowley and Cerra, supra) The process begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. (Supra)

The IDEA sets forth procedural safeguards that include providing parents an opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child." (See 20 U.S.C. § 1415[b][1]) Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. (See 34 CFR 300.322; 8 NYCRR 200.5[d]) Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. (See P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)("A professional disagreement is not an IDEA violation."), Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006)("Meaningful participation does not require deferral to parent choice."), Paolella v. District of Columbia, 2006 WL 3697318, at *1 (D.C. Cir. Dec. 6, 2006))

Here, the school psychologist who acted as the district representative at the student’s CSE meeting conceded that counseling was not recommended for the student because it was a “clerical oversight.” (T-67) She further testified that she did not rely on any testing at the meeting. (T-72) The social worker who conducted the student’s observation did not attend the meeting and she did not recall referring to the classroom observation during the meeting. (T-72-4 & D-4) What’s more, the specific goals page was not drafted in front of the Parent and she “made up” the related service goals after the meeting. (T-75)

“Clerical oversights”, the failure to rely on any objective testing of the student or meaningfully review the student’s Classroom Observation (in a case where no evaluations of the student where used or introduced as evidence) and the failure to draft goals at the CSE meeting, when the law requires that parents not be deprived of the opportunity to discuss the draft goals at the CSE meeting (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 32, SRO Nos.: 01-073 & 90-13), all amount to a gross deviation of the established legal procedure.

It is illogical to argue that the Parent in this case was given the opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (supra) when the student’s goals, an integral part of any IEP, were “made up” after the CSE meeting and outside of the Parent’s presence. It is also fundamentally wrong to argue that the Parent’s past participation in the process amounts to “meaningful participation” of the Parent at the CSE meeting held on March 27, 2012.

Such an argument would only provide the incentive for similar deviation of procedure in the future. I decline to do so. Accordingly, I find that the DOE failed to offer the student a FAPE in this case.

I next turn to the question of whether the student’s private school placement is appropriate for the 2012-2013 school year. Here the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (Gagliardo and Frank G., supra)

The student in this case is describe as , being , has , can be very over , has graph and and writing. (T-169-70) His academic skills are far capabilities, his . (T-108) The student can , has a hard time organizing his thoughts with . (T-216-7)

The private school is in fact a school for children . (T-97) The student’s are similar to the student in this case in that they are impaired, with specific reading, writing or math disabilities, . (T-99) The private school does a great deal of “modifications” and uses a multi-sensory approach. (T-100) It offers and occupational therapy with (3) full-time and (1) part time and (3) . (T-104)

In the private school there are (10) students in the student’s class with two teachers. (T-114) The teacher is a licensed special education teacher. (T-115) The student’s reading group consist of (5) students and is also lead by a certified special education teacher. (T-116-7) The student’s math group consist of (6) students and is also lead by a certified special education teacher. (T-118-20) The student’s are (30) minutes long in a group of two or three. (T-139-40) He receives occupational therapy for (30) minutes, also in a group of two or three. (T-140) The occupational are certified in New York State and the private school does standardized testing. (T-148-50) Occupational therapy uses a formal assessment. (T-151) Intensive strategies and behavior charts are used to manage behavior. (T-154) The reading curriculum is modified for the student to where he is given directions several times, uses a “tracking card” and receives preferential seating. (T-178-9)

The student has progressed at the private school. He has made steady progress in several reading areas. (T-180) His fluency has increased to where he is now at a midsecond grade level. (T-181) The student received at the private school. (T-183) The student’s progress has allowed him to be introduced to multiplication. (T-187) The student’s math teacher reported that at the end of the year the student’s math level was at a high second grade level with supports. (T-188) The student is now able to complete sentences with 100% consistency and is aware of punctuation and capitalization. (T-191-

3) The student is given “ to assist him with his attention issues and impulsivity. (T-194-

5) He also receives movement breaks. (T-196) Socially, the student has made a lot progress and is involved in all of the group games that they play. (T-198) The students in the student’s class are highly functioning and bright and have needs similar to those of the student. (T-220) The . (T-221) His ability to read is much better and his general self-confidence is much better. (T-222) All and all, the student is said to be doing nicely at the private school. (T-122) He is learning how to regulate himself a little more and has made progress in academic areas. (T-122-3) The record evidences that the private does provide the student with educational instruction specially designed to meet his needs and that he has benefited from the instruction that he has received thereat. Accordingly, I find that the private school was an appropriate placement for the student for the 20122013 school year.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. She attended the student’s IEP meeting, provided access to the student’s private school report and his teacher and visited the recommended DOE school. (Supra) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent or directly pay the costs of the student’s tuition at the private school for the 2012-2013 school year. Dated: August 5, 2013

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL;mv

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

Number/Letter Title Dated For # of Pages

01 Impartial Hearing Request 09/27/12 DOE 05

02 FNR 08/13/12 DOE 01

03 IEP 03/27/12 DOE 14

04 Classroom Observation undated DOE 02 05 Attendance Report 09/11-01/12 DOE 15 A Due Process Response 10/04/12 PARENT 04 B Request for Transportation 08/22/12 PARENT 02 C Letter to Placement Officer 09/24/12 PARENT 01 D Classroom Observation undated PARENT 02 E Classroom Schedule 2012-2013 PARENT 01 F Enrollment Contract 01/31/12 PARENT 02 G Payment Affidavit 01/10/13 PARENT 01 H Mid-Year Report 2012-2013 PARENT 21