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Special Education Law
DECISIONDistrict PrevailedSEL No. 2013-ih-463

New York City Department of Education, Impartial Hearing Decision

June 7, 2013·Judith T. Kramer·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 18, 2013

March 4, 2013

April 19, 2013

Actual Record Closed Date: May 23, 2013

Hearing Officer: Judith T. Kramer

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

Attorney — Student

Father — Student

Mother — Student

DOE Attorney — DOE

DOE Attorney — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 4, 2013

Attorney — Student

Mother — Student

Father — Student

DOE Attorney — DOE

DOE Attorney — DOE

Special Education Unit Coordinator — DOE

(Via telephone) — DOE

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

Attorney — Student

Parents

Parents

Head of School, — Student

(Via Telephone) — Student

Dean/Teacher, — Student

Attorney — DOE

INTRODUCTION

On January 18, 2013 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free and appropriate public education (FAPE) to (“the student “) for the 2012-2013 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. At the request of both parties, the hearing was continued on March 4, 2013 and April 19, 2013 and the requests for 30- day extensions made by both parties were granted based upon witness availability.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On October 24, 2013.the parent filed a request for an impartial hearing. On December 3, 2013, the parent filed an amended request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2012-2013 school year. Thus, the student, who had been attending the ”) for the 2011-2012 school was unilaterally placed by his parents at ”) for the 2012-2013 school year.

THE PARENT’S POSITION

The parents contend that the DOE denied the child a FAPE because: 1) the individualized education program (IEP) team was invalidly constituted; 2) the IEP team failed to consider evaluative data; 3) the IEP does not reflect the student’s needs either in the goals or in the management needs section; 4) the goals could not be implemented at the recommended school placement. 5) the student requires full-time special education for all periods of the day which could not be carried out at the recommended placement;

6) the IEP fails to address the student’s ; 7) the student requires a small school environment with appropriates supports where he can be educated with students with similar deficits which the recommended placement would not provide and 8) if supports are provided, the student does not require a paraprofessional in the classroom. The parent contends provides the student with all of the above and is thus, an appropriate placement for him. They further contend that the equities tip in their favor. They seek tuition reimbursement.[1]

THE DOE’S POSITION

The DOE contends that its recommended program provided the student with a FAPE. It further contends that it was not obligated to show that the recommended placement would have been able to implement the program because the parent rejected the program and the placement prior to visiting the placement. It contends that in any event, is not an appropriate placement for the student and that the equities tip in the DOE’s favor.

THE EVIDENCE PRESENTED

The student is a old boy classified as ( ). ( Ex. 2.1). He currently attends for the 2012-1013 school year. Prior to , he attended ), a full-time special education school. (T. 402-404).

On November 11, 2011, the parents applied for a seat for the student for the 2012-2013 school year. (Ex. 17). On January 30, 2012, the parents signed the contract for the 2012-2013 school year and paid the five thousand dollar non-refundable deposit to secure a seat there for the student. (Ex. D).[2]

After receiving , on May 7, 2012, the parents signed a new enrollment contract for the 2012-2013 school year. (Ex. 19, T. 441, 211).[3] That contract “unconditionally” obligated the parents to pay the full tuition by October 1, 2012 shall have no further obligation to provide educational services to the student”. (Ex. 19.1,2) On June 5, 2012, the parents paid $20,125 tuition, which was non-refundable, for the 2012-2013 school year. (Ex. 18). They paid the balance of the tuition, which was non-refundable, on September 27, 2012. (Ex. F) The parent st at ed that had the DOE offered an appropriate placement, the h e would have taken the placement or not sought reimbursement if he could have accepted the placement. (T. 442). The parents never requested an amended contract to request a different payment plan to extend their time to consider a public school placement. (T. 209). The school has included clauses in some tuition contracts to allow parents to withdraw a student from the school to attend a public school with only the loss of the non-refundable deposit. (T. 213-4). The school did not offer and the parents did not request such a clause to be added to the contract. (T. 214).

On June 18, 2012, the Committees on Special Education ( CSE) held an IEP meeting. (Ex. 2-12, T. 115). The parents did not inform the CSE that they had signed a contract for 2012-2013 school year and had paid a considerable portion of the non-refundable tuition by then. Present at that meeting were (general education teacher), (the classroom teacher (district representative and school psychologist), (parent member) and both parents. (Ex. 2 , T. 20-1, 33). The IEP team recommended a special class for the student with related services of ) and (OT). (Ex. 2.8). The parents expressed their concerns about the program recommendation at the IEP meeting, ( T. 412, 413-414). The student had previously been recommended for special classes and his parents had visited several classes in the past. (T. 404). The parents said that they were concerned about the mix of students in the class because they understood that some students require more social-emotional support and the students could have emotional or behavioral issues. (T. 98-100.) They understood that there would be times when the class would join the larger, general population, where the student has not done well in the past; and they did not know whether the student would receive the one-to-one instruction he needs. (T. 414, 416). The parents were further concerned about t h e program because they did not know whether he would be able to receive a multi-sensory education within all of his classes and whether he would receive the ongoing, intervention from special education teachers that he needed in all subjects. (T. 416).

At the IEP meeting, the CSE did not discuss the specific placement (T. 112, 113, 415), or how the IEP would be implemented in the community school. They did not discuss the profile of the (T. 414-415) although it was agreed that the student should be grouped with students who are presenting with similar needs. (T. 104).. The parents said that they wanted to visit the DOE's placement to learn specific information about the IEP's implementation and the class profile.

The IEP team had various reports and evaluations from regarding the student including OT, general observations, reading, language arts, math, social studies, science, art, music, physical education, and . Id. The team also had the student’s prior IEP. (T. 21).[4] The IEP team discussed the student’s medical needs and medications. Id. His teacher from provided information regarding the student’s functional levels in encoding, decoding, comprehension, writing, calculations and applied problems. (Ex. 2). She described the student’s grade level estimates within the classroom setting. (T. 24). She also provided specific details about the student’s performance in reading, writing, mathematics, organization and the need for a multi-sensory approach. Id. The IEP team also discussed the student’s social and emotional needs during the IEP meeting. (T. 35). The student was learning but still needed direct teacher assistance on a daily basis. Id. When he needed help, he asked for it and sought out adult assistance when he felt overwhelmed. (Ex. 5.1) Within the present performance section, the IEP team included goals provided by his teacher. (T. 24, Ex. 2). The goals were reviewed with the teacher and the team was in agreement with the goals. Id. The IEP team also relied upon input from the parents. (T. 24).

The teacher reports include several very specific accommodations regarding the student’s management needs that were being utilized for the student within his academic classes, including teacher reminders to raise his hand and wait to be called on (Exs. 5.1, 8.2, 9.2); reminders to read so everyone can hear (Ex. 6.2); teacher support to answer abstract comprehension questions involving predictions and inferences (Ex. 6.2); teacher support to become organized to start the writing process (Ex. 7.1).; carats to help him include critical words when writing (Ex. 7.1); using a quick outline to write complete topic sentences, organize his thoughts, and produce concluding sentences (Ex.

7.2); utilizing a place value chart to understand the value of each of the digits in greater numbers (Ex. 8.1); new material presented on a SmartBoard to integrate information visually (Ex. 8.1); introducing original mnemonic devices when introducing new vocabulary (Ex. 8.1); for math, revised worksheets with fewer problems, more space on the page, directions with visual clues, and templates for multi-step problems, and function tables (Ex. 8.1, 8.2); reminders to focus (Ex.10.3); lists of key vocabulary words and rephrasing of questions (Ex. 10.3); and, hands-on demonstrations and repetition of key vocabulary and concepts (Ex. 10.3).

Ms. , the school psychologist who attended the IEP meeting, explained that the IEP is a living, breathing document that is developed as a whole entity. (T. 29). “While there may not be things noted under management needs, there can be different things noted under physical development, social development, academic achievement, the entire document being an individualized educational plan, one can interpret as being the student’s management needs throughout the school year.” (T. 29-30). She agreed that a multi-sensory approach was necessary for the student, and it should include verbal prompts, physical prompts, visual aids, charts and diagrams when writing, math aids and charts, and diagram work for multiplication. (T. 28). The IEP states in the academic achievement section that the “all the goals are based upon a muli-sensory approach to learning including visual aids, teacher prompts, review and repetition of previously presented facts. (Ex. 2.1). The IEP also states in the social development section that the student requires direct teacher support to refocus and in another section it state that the student would benefit from more support throughout the school day. (Ex. 2.2,3 The IEP states in the academic achievement section that the “all the goals are based upon a muli-sensory approach to learning including visual aids, teacher prompts, review and repetition of previously presented facts. (Ex. 2.1). Implementation of mandated related services was the only thing specifically included in the management needs section because the student was not receiving his full related services . (T. 31).

The IEP contains many specific goals for the student for the 2012-2013 school year. The first annual goal targets the student’s encoding or spelling skills. (Ex. 2 and T. 42). The goal pertains to the student’s need to learn and remember the spelling rules and then apply those learned skills across multiple subject areas. Id. This goal came directly from the teacher report and discussions at the IEP meeting. (T. 42, 45). Progress in reaching this goal would be measured by eighty percent accuracy in four out of five trials at the end of the school year as measured by teacher made work, observations, charted progress, class work, homework, weekly quizzes, periodic assessments or student portfolio. (Ex. 2 and T. 44-5). No one objected to this goal at the IEP meeting. (T. 45).

The second annual goal addresses the student’s decoding skills or sounding out unfamiliar words. (Ex. 2 and T. 46). The teaching of decoding skills is left to the discretion of the classroom teacher but can include a “variety of rote skills, whole-word work, or also phonemic awareness, and breaking them down into smaller word chunks, which is something that [the student] would benefit from.” (T. 46). The team included the ability to “use learned strategies to decode larger multi-syllabic content related words across curriculum areas” as suggested by the teacher. (Ex. 2 and T. 46-7). Progress was to be measured by eighty percent accuracy on four out of five trials based upon various teacher made materials, student work, and classroom quizzes. (Ex. 2 and T. 47). No one at the IEP meeting verbalized any disagreement or objection to this goal. (T. 47).

Reading comprehension skills are the focus of the third annual goal. The teacher input and school report provided that the student attained “concrete comprehension skills and now needs to work on more inferential or higher-ordered comprehension skills, such as making predictions [and] drawing conclusions.” (T. 48 and Ex. 2). The student’s needs also include the ability to focus his attention to writing mechanics, ready fluency, and reading with expression. Id. This goal was intended to increase the student’s critical thinking skills by integrating a deeper understanding of information as the student progresses toward his current chronological grade level. (T. 49). This goal also included the objectives for punctuation and reading expression because those were noted as areas of major weakness by his teacher. (Ex. 2 and T. 49). The method of measurement was same as in the prior two annual goals. (Ex. 2). No one verbalized any objections to this goal at the IEP meeting. (T. 50).

The fourth annual goal addresses the student’s deficit in writing mechanics. (Ex. 2 and T. 50). Both the teacher report and the IEP team discussion included the need for support in writing. (T. 51). This goal includes the use of multi-sensory materials in that the student would use daily journals, graphic organizers, student portfolio and an editing checklist. (Ex. 2 and T. 50-1). Both the school reports and the discussion by the IEP participants included the student’s need for organization and editing work, to increase his writing skills to an independent level and to expanded sentences. (Ex. 2 and T. 51-2). Writing mechanics was an area of greater weakness for the student and the criteria of measurement was lowered to seventy percent across four out of five trials for this goal. (Ex. 2 and T. 52). No one at the IEP meeting verbalized any objections to this goal. Id.

Math calculation skills are targeted in the fifth annual goal.(Ex. 2 and T. 52). Math calculation includes working with different mathematical items or equations which can be supplemented by the use of the following multi-sensory materials: manipulatives, charts, diagrams, or tactile pieces. (T. 52-3). The need for this goal came from the teacher input at the IEP meeting. (T. 53). Progress was to be measured based upon eighty percent accuracy on four out of five trials using math logs or journals, diagrams, small group work, student portfolio, homework, or assessments. (Ex. 2 and T. 53-4). No one at the IEP meeting verbalized any objections to this goal. (T. 54).

Math word problem skills are addressed in the student’s sixth annual goal. (Ex. 2 and T. 54). Math word problem solving involves items that have their own language or math vocabulary which can make it difficult for students to understand requiring more teacher input. (T. 54). The sixth annual goal includes the use of a multi-sensory approach including the use of manipulatives or diagrams. (Ex. 2 and T. 55). The goal also includes the objective for the student to ignore extraneous information and identify key words. (Ex. 2). Both the school reports and the IEP team discussion included information regarding the student’s deficit in math word problem solving. (T. 55-6). Progress on math word problem solving skills will be measured by eighty percent accuracy on four out of five trials using class work , homework, student portfolios, quizzes or assessments. ( Ex. 2 and T. 55). No one verbalized any objections to this goal. (T. 56).

The last four annual goals targets the student’s demonstrated deficits as reported by his school reports and the discussion at the IEP meeting. (T. 56, 59, 60) The IEP recommended one session of individual and one session of group speech and language therapy each week. (Ex. 2 and T. 56) to address the student’s “continuing need for teacher verbal prompting, [and] redirection.” (T. 56). The student also needed information to be reviewed, repeated, and the use scaffolding techniques. Id. The first goal addresses the student’s receptive by creating objectives to enable the student to remember spoken language more readily. (T. 57). That goal also aims to build the student’s critical thinking skills, by using word knowledge to make analogies or solve crossword puzzles that was taken directly from the school report. (Ex. 2 and T. 58). The second goal targets the student’s deficit in auditory processing skills specifically how he orally receives and retains information. Id. The auditory processing goal would also have an academic component in that the classroom teacher would also use the same strategies of breaking down multi-step directions into smaller units and using repetition. (Ex. 2 and T. 59).

The third goal addresses the student’s expressive language skills. (Ex. 2 and T. 60). This goal also relates to classroom functioning in that the student would be organizing, retrieving and expressing his thoughts within the classroom setting. Id. Expressive language was identified as a weakness in the past and continued to be a deficit during the IEP meeting. (T. 60-1).

The final goal targets the student’s deficit in pragmatic language. Id. He also had a continuing need in the ability to communicate and understand verbal messages. (T. 62). HE needed to work on building his verbal socialization skills with peers and how that communication differed from communication with an adult. Id. In the recommended individual speech therapy session, the provider would model the pragmatic language skills and provide individual support to the student so that he could learn the skills. (T. 63). In the small group session, the student would be able to practice those modeled skills with his peers and then generalize those skills to the classroom setting. Id. Both speech therapy sessions provide a more supportive environment than the classroom to allow the student to gain confidence in the pragmatic language skills with immediate feedback. No one verbalized any objections to any of the therapy goals. (T. 58, 60, 61, 63).

OT goals were provided in the IEP. (Ex. 2, T. 64). The first OT goal strives to increase the student’s strength and endurance through specific activities in his physical education class and OT sessions. (Ex. 2). This goal references ball-handling, balance, and body awareness as mentioned in the OT report. (Exs. 2, 4, T. 64, 67). The purpose of this goal is to help him “increase his arousal and attention” in order to generalize back to the classroom. (T. 65). Progress is measured by the provider’s observations and assessments. (Ex. 2 , T. 66). The second OT goal addresses the student’s deficit in visual motor integration as exhibited by his weaknesses in organizational and writing skills. (T. 67). Specifically the student’s weaknesses in motor output including letter formation, copying notes, organizing information, and letter spacing. (T. 68). The final OT goal focuses on the student’s “need for increased executive functioning skills or organizational skills.” (T. 69). The student’s need for this final goal was noted by the teacher at the meeting and referenced in the school reports. Id. No one at the IEP meeting communicated any objections to the occupational therapy goals. (T. 67-8, 70).

In mid-August, the DOE issued an final notice of recommendation ( FNR) for JHS 54. (Ex. 3, T. 418.) Shortly after the parents received the FNR, they wrote to the placement officer stating the concerns that they had mentioned at the IEP meeting, requesting a class profile and information regarding the curriculum. (T. 419, Ex. A). That information was not provided to the parents by the DOE . ( T. 420).

The parents called the school to schedule a visit. Since the school was closed they left a message stating that their son received a placement offer for the school and they would like to visit. (T. 419). A school tour was scheduled for September 14th. The tour took place with 10 to 12 other parents visiting several different special education programs. ( T. 420, 421). The parents were not shown the 6th grade class at that time, nor were they given specific information about the curriculum and the class profile. (T. 422). The parents requested another tour and the class profile. (T. 422) . The parent had a second visit the next Friday, September 21''. ( T. 422). The second tour was similar to the first. (T. 423). The parent was able to ask questions, but they were not answered with specificity. The parent was not able to visit the class to which the student was to be assigned . Id. The parents then made a third site visit on September 28th, after again requesting to view the class and asking for a class profile. (T. 424).

On the third visit, the parents were able to view the class. (T. 424). But, they concluded it was not appropriate for the student because based upon their brief observations, it did not meet any of his needs. (T. 424- 427). The class they observed was presented as a lecture with no multi-sensory instruction, no encoding or decoding support, no executive functioning help and no manipulatives. (T. 427428). Nobody reviewed the students IEP with them, nor did they discuss the student’s particular needs. (T. 428).

The parents communicated with the school representative, Ms. through email requesting a class profile. (T. 429-430, T. 432). The parents never received a response. ( T. 432-433). After the school visit, the parents wrote to the CSE with their concerns. (T. 433, 436, Ex. B). No one from the DOE responded to the parents' letter. (T. 436-7) The student was already .

During the 2012-2013 school year, had an enrollment of 197 children, grades 5 through 12. ( T. 195). chiefly to three types of children: those with language processing issues (e.g. ), (e.g. 's), and those with (e.g. ). Ibid. While not all children have an IEP, all of them have been formally diagnosed with some form of . (T. 387. maintains low student-teacher ratios; all of the student ’ s classes contain either eleven or twelve students. ( T. 196-197, 202, 223). places a great deal of emphasis on professional development; indeed, classes end early every Wednesday, at which time the faculty and staff participate in various training seminars. ( T. 215, 244-245). recoups this lost time, of course, by following an extended day schedule (8:15-3:00) the rest of the week.( T. 245).

At , the student is grouped in a small class by learning style and receives daily individualized instruction to meet his specific needs. ( T. 196, 198-199). He is grouped with the same students for literature, writing, history and science. (T. 202). He is then grouped with different students for math, physical education, art, and music. ( T. 202-203). reviewed his prior school reports, testing, a parent questionnaire, and evaluative data to determine that the student’s main deficit area was executive functioning-the organization of ideas and his impulsivity. He was grouped him with students with similar issues. (T. 260-261).[5] A group profile was created (Ex. K), which details the general goals and methodologies addressed within every one of the student’s classes. (T. 262). The student’s program focuses on remediating a primary of , while addressing his social skills. ( Ex. K, T. 263267). He also receives daily, one-to-one support on writing, decoding and encoding through the Focus program. ( T. 305-6, Ex. L-1, L-2, M-1, M-2, M-3).

At , the deans set the scope and sequence of the various curricula. The teachers adapt their teaching methods to foster practical skill development. (T. 201, 248249). The teachers employ class-wide strategies that correspond to the student ’ s unique learning style. (Ex. K). These goals include the chunking of information; the use of multisensory materials such as PowerPoint presentations, video, and interactives, a slower pace of instruction and frequent repetition ; organizational support, such as binder checks, planner checks, and graphic organizers; and instruction in study skills, such as note-taking and highlighting. ( Ex. K; Ex. L; T. 262-265, 272-280, 285-287, 288, 297, 315, 319, 322).

The literature, writing, science, and history classes are all comprised of the same eleven students, all of whom evince delayed executive functioning and social skills. ( Ex. K; T.202, 222-223).

At the beginning of the 2012-2013 school year, the student. had various social weaknesses, including a low frustration threshold and tendencies to speak too loudly and to interrupt while others were speaking. ( T. 265-267). His classmates at all had the same issues. ( T. 267-268, 350-351).

At the start of the year, the student’s reading level was at the fourth grade level and hi s writing was at the third grade level; his math skills tested at the seventh percentile, in between the third and fourth grade level. (T. 270, 284, 296, 355-356). His classmates' at had similar reading skills ranged from grade; their writing skills from the third grade to ; and their math skills were at the late- third and earlyfourth grade level. ( T. 269, 354, 344-346, 361).

Teachers routinely meet to discuss the student’s progress. ( T. 257-259) and provide him with . (T. 326). All of his teachers work to address his . ( T. 327329). When he , he is refocused as necessary. ( T. 357-358). If he becomes frustrated or upset, he is allowed to leave the class to . (T. 376, 395).

Winston also provides the student with individualized support through t he , which provides him with forty minutes of multi-sensory, one-to-one instruction every day and allows the program to be further individualized to meet his specific needs. (T. 198-199, 312-315). Through Focus, he has improve his decoding skills. (Ex. M; T. 265-266).

The program also addresses the student’s related services needs. In physical education and other courses, he has been developing the same skills that he would otherwise be working on in OT. (T. 207-208, 331-333). T h e physical education teachers have heavily adapted their program to improve his gross and fine motor control, grouping him with similarly functioning children and providing activities that target his areas of need. (T. 239-240,288-289, 383-385). The t eachers are aware of his and work to ameliorate them. (Ex. L; Ex. M; T. 238-239, 328). He has been observed by pathologists in the , and they regularly communicate with the teachers about his needs. (T. 235-236, 242-243).

The student has made significant progress over the 2012-2013 school year at . His writing skills have improved from the third grade level to the fourth grade level. T. 284, 294. He now "has a better understanding of how to... use examples to support his ideas... where things belong in a paragraph; how to better write an introductory paragraph and how to write a concluding paragraph... " (T. 289).

In reading, the area of his greatest difficulty, he has gone from the late-third, early-fourth grade level to the mid-fourth grade level. (T. 270, 282) . He has improved in the area of decoding. ( T. 309). His reading comprehension --especially of figurative language-- has also grown stronger. (T. 282-283).

In math, the student has spent the year primarily on long division, decimals, and fractions using an individualized, web-based interactive program called the . ( T. 296). His math levels have improved from to the level. (T. 296, 302-303, 305). His confidence has also improved over the course of the year, and he has grown increasingly comfortable with mathematics. ( T. 302).

While the student’s delays are the crux of his learning profile, he has made significant strides in this area. His study skills have improved, particularly in the area of note-taking. (T. 292, 325). With the assistance of staff, he has also begun to implement other organizational methods with significantly less resistance than at the start of the year. (Ex. M; T. 269, 278-280, 282, 292, 305, 309).

The student has made significant social progress, . His has improved, and he is much less impulsive. (T. 292, 309; see T. 395). While he is still an eager participant in discussions, he calls out less frequently. (T. 282). He has made friends in his classes, and is a part of the community . (T. 293-294).

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). School districts are not required to "maximize" the potential of students with disabilities or “provide the best possible education available.” Rowley, 458 U.S. at 189, 199; Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 132 (2d Cir. 1998). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 122 quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The DOE has the burden of proof to show that the IEP meets these criteria. In this case the DOE has met that initial burden.

First, the parents contend that the IEP team was improperly constituted. The IEP team must include all the legally mandated members as required under the IDEA and the New York State regulations, including: (1) the parents of the child; (2) at least one regular education teacher of the child (if the child is or may be participating in general education); (3) at least one special education teacher or provider of the child; (4) a district representative; and (5) an individual who can interpret the instructional implication of the evaluation results. 20 USCS §1414(d)(1)(B); 8 NYCRR §200.3(a); see also, 34 C.F.R. § 300.321. The IEP team in the instant case included both parents, a general education teacher, the student’s classroom teacher , a district representative, a school psychologist and a parent member. (Ex. 2 and T. 33). Therefore, the student’s IEP team was validly constituted.

Second, the parent contends that the IEP team failed to consider evaluative data without speicifically identifying which data they are referring to. The IEP team had a multitude of reports and teacher evaluations before it. (See, Exs. 4-14) There was some confusion among the witnesses over whether there was evaluation or evaluation provided to the team. Ms. did not recall seeing either one during the IEP meeting. Mr. said he saw evaluation of the student, but the parent said that such an evaluation was never done. In any case, no one offered either one into evidence. If the parent clams that a particular evaluation was ignored by the IEP team, and Ms. as part of that team could not recall it, it would have been helpful to have that document produced by the parent to show that there was such an evaluation that was not considered by the team. In the absence of that document, it is impossible to conclude that the IEP team failed to consider evaluative data since it had considered many reports and evaluations.

Third, the parent contends that the IEP does not reflect the student’s needs either in the goals or the management needs section. It is clear that each IEP must include measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. 8 NYCRR §200.4(d)(2)(iii). The goals must be sufficiently specific to provide direction to the child's teachers about the CSE's expectations. SRO Appeal No. 00-072, citing Appeal No. 94-8. The goals must meet the student’s needs and enable the student to make progress. See 8 NYCRR§200.4(d)(2)(iii).

This IEP contains multiple goals all of which have been explained in detail above. Each of them address the students functional needs and are sufficiently specific to provide direction to the child’s teacher about the CSE’s expectations as required by the regulations. The level of specificity which the parent argues is required by these regulations is simply not mandated by the regulations. All that is required is that the goals be consistent with the student’s needs and abilities. Teachers, in particular, special education teachers, are highly trained to interpret the goals set forth on the IEP and incorporate them in to the lessons to meet the student’s needs. In addition, each of the specific goals on the IEP set forth a method(s) of measurement as also required by the regulations. They are not vague.

With regard to the student’s management needs, the IEP is also sufficient. The regulations define management needs as "the nature of and degree to which modifications and human or material resources are required to enable the student to benefit from instruction." 8 NYCRR §200.1(ww)(3)(d). It does not state that they all must be included in one place on the IEP.

Citing the management needs section of the IEP, the parent argues that while the IEP goals Include several strategies that the student would use in related service sessions for , there were no management needs for these strategies to be carried over and benefit him within the classroom setting. citing (Ex. 2-6, Ex. 2-2). However, the IEP team included many strategies throughout the IEP to address specific management needs which the parent insists must be included in the management needs section or else they simply do not satisfy the regulation. The IEP states in the academic achievement section that the “all the goals are based upon a muli-sensory approach to learning including visual aids, teacher prompts, review and repetition of previously presented facts. (Ex. 2.1). The IEP also states in the social development section that the student requires direct teacher support to refocus and in another section it state that the student would benefit from more support throughout the school day. (Ex. 2.2,3 The IEP states in the academic achievement section that the “all the goals are based upon to learning including visual aids, teacher prompts, review and repetition of previously presented facts. (Ex. 2.1).The inclusion of these on the IEP satisfies the regulatory requirement that modifications and human or material resources must be included to enable the student to benefit from instruction.

With regard to the adequacy of the IEP, the parent further contends that it fails to address the student’s executive functioning delays. The student’s executive functioning needs were described in the IEP and the final academic goal in the IEP addressed those needs. (Ex. 2.7) Ms. stated that the last goal addressed his “need for increased executive functioning skills or organizational skills . . . and the teacher has made note during the meeting and also in the report how [the student] has improved in that area and that he's now able to track some of his individual items or remember to check his planner.” (T. 69). The IEP team also discussed his ongoing need for executive functioning skills and to increase those skills with greater independence. Id. The IEP team believed that the student needed to learn to remember how to organize his materials in school and outside of school without adult prompts. Id. The aforementioned goal would be worked on by the student’s teachers and his OT to assist the student in developing greater organizational skills. Id. The team also recommended two sessions of OT each week to assist the student with the above described needs. (Ex. 2).

Next the parent argues that in addition to the issues with the IEP, the DOE did not carry its burden with regard to whether the recommended placement could 1) provide the student with full-time special education for all periods pf the day, and 2) whether the student would be grouped with students with similar deficits The DOE’s position is that it did not have this burden because the parent rejected the recommended program during the IEP meeting and then again in a letter. (Ex. A) The DOE claims that the parents visits were only conducted to purposes of the litigation. While this might indeed be the case with regard to the visits, the DOE’s contention that the parents rejected the program at the IEP meeting is not supported by the evidence. The DOE was not aware at the time of the IEP meeting or even at the time of the parent’s visits that they had already enrolled the student and paid a substantial amount of the . Thus, while this factor will be considered when assessing the equities, it did not relieve the DOE of its burden to defend the recommended placement at the hearing. The DOE did not meet this burden. In this proceeding, the DOE must demonstrate the appropriateness of its IEP and placement.

A district provides a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). The DOE has failed to demonstrate that it could provide personalized instruction with sufficient support services for the student . There was no testimony about the specific curriculum being utilized in class or how this IEP would be implemented in order to confer educational benefit.

The evidence and testimony demonstrates that the parents did not communicate their rejection of the placement prior to the start of the year. ( Ex. A, T. 134, 412, 414, 415. The parent's testimony, was that they told the IEP team that they would visit the placement. (T. 412,414, 415). Ms. said the parents were open to the DOE's suggestions. ( T. 134).

The DOE points to Exhibit A to support its contention that the parents rejected JHS 54 prior to the start of the year, but the letter explicitly states that the parents were going to call the school to visit and then respond to the DOE's placement offer. ( Ex. A.2). The parents' letter is their effort to provide the DOE with notice of their concerns, while expressing a desire to visit the proposed placement. ( Ex. A). The letter specifically notes that the parents cannot accept the placement at this time because they do not have any information on the school or class and have not been able to visit due to the summer vacation. ( Ex. A.2).

Additionally, the DOE's own Due Process Response specifically alleges that the placement that was offered was reasonably calculated to enable the student to obtain meaningful educational benefits. ( Ex.C.3). The DOE raised the appropriateness of the placement in its due process response, yet never met its burden of production or persuasion in defending this placement at hearing. The information presented was only general information and never detailed how would implement his IEP to enable the student to make adequate progress. T he DOE did not present a witness with hands on experience with the recommended class.

As recent Court decisions have held:

"Prior to making a placement decision, a parent must have sufficient information about the proposed placement school's ability to implement the IEP to make an informed decision as to the school's adequacy. At the time the parent must decide whether to accept the proposed placement or unilaterally place a student elsewhere, the only information available to the parent about the proposed placement are the FNR and, if the parent visited the proposed placement, the information provided during the visit. The information a parent can glean from these two sources creates considerable reliance interests because the parent must decide, based solely on this information, whether to take the financial risk of unilateral placement."

• D.C. ex rel E.B. v. New York City Dep 't of Educ., 12 Civ 1394 Opinion and Order at37.

At the IEP meeting, the parents were not given any information about placement or how the IEP that was created would be implemented. (T. 415). Ms. stated that the student should be placed in a class where he could be grouped with students who present similarly, yet she could not discuss the profile of the recommended class (T. 99, 100, 104, 109, 113). Generally, it is important for the parent to visit the placement and learn about how and whether the IEP and its supports would be implemented in the actual classroom setting. There was never any testimony about the functional levels in the DOE's proposed classroom, the ages of the students, or their classifications. 8 NYCRR §200.6(a)(3) prescribes that students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs and then delineates several factors: academic or educational achievement; social development; and management needs. The DOE has failed to demonstrate how the student would be grouped so that his academic, socialemotional, and management needs could be properly addressed.

The DOE must demonstrate that it could implement this IEP, which includes offering a placement in a school that can fulfill the requirements set forth in the IEP. D.C., 12 Civ 1394 Opinion and Order at 33 citing 0.0. v. District of Columbia, 573 F.Supp. 2d 41, 53 (D.D.C.2008) (citing 20 U.S.C. § 1401(9) ("The term [FAPE] means special education and related services that ... are provided in conformity with the [IEP].")). Thus , if JHS 54 could not provide the supports on the IEP , the DOE has failed to offer a FAPE. The DOE has failed to show that this IEP would be properly implemented at JHS 54. R.E. v. NYC Dep 't of Educ., 694 F. 3d 167 (2d Cir. 2012), is not to t he contrary. See D.C., 12 Civ 1394 Opinion and Order at 38 citing B.R. 2012 WL 6691046, at *5-6.

Having failed to meet its burden with regard to defending the recommended placement, the DOE has not met its burden to show that it provided the student with a FAPE.

Since the DOE has not met its burden that it provided a FAPE, the burden shifts to the Parents to show the appropriateness of Winston. MS. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). The test for a parental placement is whether it is appropriate, not whether it is perfect. Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); see also Application of the NY City Dept. of Educ., SRO Appeal No. 07-098. With respect to the appropriateness of a private placement, the issue ultimately turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cir. 2006). In Gagliardo, the Second Circuit 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 Individuals with Disabilities Education Act, 20 U.S.C.S. § 1400 et seq., 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."

• Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

The Parents have met their burden of demonstrating the appropriateness of Winston as the parent’s unilateral placement. At , t he st udent receives the benefit of a small-scale, structured environment, along with multi-sensory instruction that is specially tailored to help him issues and participate in the educational process. (See generally, T.193-401). The student has made academic and emotional progress over the 2012-2013 school year . Thus, it is an appropriate placement.

The final factor to consider here is whether the equities support an award of tuition reimbursement. A "major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE." See, NR., on behalf of TR., v. The Dept. of Educ. Of the City Sch. Dist. Of the City of New York, 2009 WL 874061 (S.D.N.Y., March 2009). Equity looks at both parties actions. See SRO Appeal No. 04-045.

However, the parents have the burden of proving that “equitable considerations favor their claim." Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402,417 (S.D.N.Y. 2005); Thies v. New York City Board OF Education, 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y., 2008). The parents must show good faith efforts to cooperate with the DOE to find an appropriate public placement for a student. SW v. New York City Dept. of Educ., 07 Civ. 9812; Thies, 2008 U.S. Dist. LEXIS 11354. A parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct impeded the CSE's ability to develop an appropriate IEP. Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir.

1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd.

of Educ., Appeal No. 04-026. Here, the parents did not meet their burden.

The parents did not engage in the IEP meeting in good faith, but rather, “did only the bare minimum necessary to give the appearance of their good faith participation in the process – physically being present at the IEP” and then visiting the recommended school. J.P. v. N.Y.C. Dep’t of Educ., CV 10-3078(ERK)(MDG) (Feb. 2, 2012).

Indeed, they vehemently contest the DOE failure to defend the placement citing D.C. ex rel E.B. v. New York City Dep 't of Educ., 12 Civ1394 Opinion and Order at 37 because they correctly argue that the parent must decide, based s olely on this information, whether to take the financial risk of unilateral placement." However, in this case, that argument is disingenuous since the parent chose to take that substantial financial risk even prior to the IEP meeting.

The parents applied to and signed two contracts for for the 2012-2013 school year prior to any IEP meeting for the student. (Ex. 2, 17-19 and (Ex. D). After receiving financial aid, the parents signed a new tuition contract based upon that financial aid in May of 2012 still obligating them to pay over $46,000 . (T. 210-1). The new contract was the binding contract. (T. 211)[6] In addition, the parent admitted that the IEP team was not told that the parents were withdrawing the student from . (T.459) or that the parents had enrolled the student for the 2012-2013 school year. Id.

The parents ostensibly rejected the public school placement because of the DOE’s failures. First, 1) they had not seen the placement before the start of the school year, 2)

when they saw the placement their questions were not answered satisfactorily, and 3) they could not accept a placement without receipt of a class profile. (T. 414, 419-20, 433, 444) However, that testimony is unconvincing where, as here, never provided the parents with a class profile. (T. 353) and the parent accepted the class placement sight unseen. (T. 472).

The parents had completed an application, initial testing of the student, acceptance , the signing of two enrollment contracts, payment of a non-refundable deposit, and a non-refundable payment of over twenty thousand dollars in tuition prior to the scheduled IEP meeting. (Ex. 2, 17, 18, 19 and Exs. D, H, M). The parents did not request an earlier IEP meeting or request to receive a special clause in their contract for additional time to consider a public school placement. The parents evidence that the parent would have placed the student in the public school placement if his visits had shown it to be appropriate or that he would not have sought tuition reimbursement if the DOE provided a placement which they “could accept” (Ex.A) is not credible. The two contracts unconditionally required the parents to pay more than $46,000 intuition payments . They would never have accepted a public school placement after obligating themselves to make such payments. Thus, the parents did not meet their burden to establish that the equities tip in their favor. Accordingly, their request for tuition reimbursement must be denied. [7]

ORDERED that:

The parent’s request for tuition reimbursement is denied. Dated: June 7, 2013

________________________

JUDITH T. KRAMER

Impartial Hearing Officer JK;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

PARENT

A Letter to , 8/18/12, 3 pages B Letter to , 10/2/12, 5 pages C Due process response, 12/5/12, 4 pages D contract, 1/30/12, 2 pages E Proof of payment, 1/30/12, 2 pages F Proof of Payment dated 9/27/12, 2 pgs. G Proof of Payment dated 5/25/12, 2 pgs. H-I **Withdrawn** J Description, undated,1 pg. K Class Profile, undated, 4 pgs. L Fall Report From , Fall 2012, 8 pgs. M Winter Report From , Winter 2013, 7 pgs. N Emails From Parents to , various dates, 3 pgs.

DEPARTMENT OF EDUCATION

1 Amended due process complaint 12/3/12, 5 pages 2 IEP, 6/18/12, 15 pages 3 FNR, 8/13/12, 1 page 4 OT report, 2011/2012, 1 page 5 General observations, 2011/2012, 1 page 6 Reading report, 2011/2012, 3 pages 7 Language arts report, 2011/2012, 2 Pages 8 Math report, 2011/2012, 3 pages 9 Social studies report, 2011/2012, 3 pages 10 Science report, 2011/2012, 3 pages 11 Art evaluation, 2011/2012, 1 page 12 Music evaluation, 2011/2012, 1 page 13 Phys-ed evaluation, 2011/2012, 1 page 14 Language and therapy report, 2011/2012, 2 pages 15 class schedule, 2012/2013, 1 page 16 Junior High School 54 sign-in sheet, 9/28/12, 1 page 17 application, 11/8/11, 2 pages 18 tuition affidavit 1/9/13, 1 page 19 enrollment contract, 5/7/12, 2 pages

Footnotes

[1] In the parent’s post-hearing brief they argue that the DOE did not meet its burden to show that there was a classroom observation reviewed by the IEP team. This argument will not be considered because it is not alleged in the parent’s amended request for an impartial hearing. (Ex.1)

[2] The pre-admissions testing took place prior to January 30, 2012. (T. 340).

[3] At the time, they did not have a class profile of the classes in which the child would be enrolled at Winston.

[4] The parent said that they previously provided the CSE with a evaluation. ( T. 418, 460). Ms. did not recall reviewing the prior testing and could not recall when it was done. ( T. 90,91). The evaluation in question was not offered into evidence by either party.

[5] Students take the Wechsler Individual Achievement Test (WIAT) at the end of every year; since this was his first year , the student was tested in late summer and early fall of 2012. (T. 216-219).

[6] However, the parents submitted only their original contract with the higher tuition amount as evidence in this impartial hearing. ( Ex. D.) The DOE received the second contract from and submitted that contract as evidence in this impartial hearing. (Ex. 19). The DOE also provided a tuition affidavit from with the tuition amount reflected in the second contract. (Ex. 18).

[7] Parents failed to present any evidence regarding their claim for transportation services. Accordingly, it appears that this issue has been abandoned.