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: April 11, 2013

May 8, 2013

Actual Record Closed Date: June 10, 2013

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2013

ESQ., Attorney — Student

Mother — Student

Father — Student

Observer — Student

ESQ., Attorney — DOE

SETSS Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2013

ESQ., Attorney — Student

Mother — Student

Father — Student

Observer — Student

DR., Director of Strategies Program, — Student

ESQ., Attorney — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parents in a due process complaint notice dated November 9, 2012, and later amended on January 24, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents and/or directly pay for costs associated with the student’s unilateral private placement at the in for the 2012/13 school year (Exs. SD-1, SD-2).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

The original due process complaint, dated November 9, 2012, was filed with the DOE on November 14, 2012 (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(1), (j)(1). I was appointed by the DOE to hear this matter on November 15, 2012. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated November 19, 2012, the DOE denied each and every allegation contained in the parents’ due process complaint (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). Counsel for the parents filed an amended due process complaint on January 24, 2013 (Ex. SD-1). See 8 NYCRR § 200.5(i)(7). Hearings in this matter were thereafter held on April 11, 2013 and May 8, 2013.^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the January 24, 2013 amended hearing request, the student was old and diagnosed with ”) and (inattentive type) (Exs. SD-1 at 2, SD-3 at 1, SD-4 at 1, SD-8 at 1, SD-9 at 1, P-A at 9, P-E at 1-2, 4, 7-9). For the 2012/13 school year, the student attended the tenth grade at the (“Marvelwood”) (Exs. SD-1 at 2, SD-13, SD-14, P-G). The Commissioner of Education has not approved as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-1 at 2, SD-2 at 1, SD-3 at 1, SD-4 at 1, P-A at 1). See 34 C.F.R. § 300.8(c)(10); 8 NYCRR § 200.1(zz)(10).^[3]

The student attended the from 1998 through 2001. According to the student’s mother, the student was , but also displayed a very (Ex. P-E at 5).

The student attended a pre-kindergarten class at during the 2001/02 school year. According to the student’s mother, the student was and had strong social interactions with peers, but was also and still for average periods of time without roaming around the room (Ex. P-E at 5).

The student continued to attend for kindergarten during the 2002/03 school year. According the student’s mother, the student was described by his teachers as sweet, of others, but also was not serious about unable to cope with homework demands and did not work independently (Exs. P-A at 1, P-E at 2, 5).

For the 2003/04 school year, the student was enrolled in a first grade class . According to the student’s mother, the student was about learning, but needed to learn strategies for self-monitoring, sitting still, in a timely fashion, and handwriting (Exs. P- for extensions of the case compliance date were granted (R. 39-40, 320-321; Exs. IHO-I, IHO-II, IHO-III, IHO-IV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). A at 1, P-E at 5).

When the student was in the second grade (2004/05 school year), the parents referred the student to the CSE for an initial evaluation due to behavioral difficulties including hyperactivity and inattention at home and in school. The findings of a November 2004 School-Based Clinic were that “his behavior and pattern of assessment results [did] not warrant a diagnosis of , although he [did] experience difficulty with executive functioning.” The that “his observed hyperactivity and inattention [were] better explained by his emotional state.” On a January 2005 auditory processing evaluation, the student was found to have difficulties in “tolerance-fading memory and decoding.” On a January 2005 occupational therapy evaluation, the student was found to have some fine and visual motor concerns, mostly in his ability to organize himself. On a February 2005 evaluation, the were all at or above age/grade level expectancy. At a meeting held on January 24, 2005, the CSE classified the student as one with an educational disability and developed an IEP for him which called for the student to receive occupational therapy, program modifications and testing accommodations (Exs. SD-9 at 1, P-A at 1, P-E at 4, 6).

During the 2005/06 school year, the student attended the third grade The student continued to demonstrate fine motor coordination weaknesses and below average listing comprehension. These difficulties resulted in poor endurance in his writing and affected the student’s classroom performance. The student’s inability to stay focused, to remember directions and to complete homework assignments continued. On a May 2006 speech/language evaluation, the student demonstrated above average language skills. At the end of the school year, were terminated and the student was declassified (Exs. SD-9 at 2, P-A at 1, P-E at 6).

The student attended fourth (2006/07 school year) and fifth (2007/08 school year) grades at . In March of 2007, the student’s mother re-referred him to the CSE for evaluation due to was “functioning in the average range intellectually,” with academic skills ranging “from low average to high average.” In a May 2007 occupational therapy leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder, or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10). evaluation, the student was found to have “difficulty in the areas of behavior and learning, sensory processing and visual motor skills.” At a meeting held in June of 2007, the CSE classified the student as having an other health impairment and recommended that he receive occupational therapy and counseling (Ex. SD-9 at 2, P-E at 6).

For the 2008/09 school year, the student attended the sixth grade at (Simon ). During the majority of that school year, the student received individual occupational therapy and small group ( ) counseling. In March of 2009, the student’s occupational therapist and counselor recommended declassification. While the CSE agreed at an April 2009 meeting to terminate occupational therapy and counseling, rather than declassify the student, the CSE modified his IEP to include part-time academic support, i.e., Special Education Teacher Support Services (“SETSS”), to address organization and implement a behavior modification program. Dr. , a school psychologist for the CSE, also referred the student for a private psychological evaluation to (Exs. SD-9 at 2; P-E at 2, 4, 6, 8).

Following an evaluation, Dr. Thomas Brown diagnosed the student , inattentive type, and referred him to Dr. for . In August of 2009, Dr. stared the student on , and subsequently an array of other stimulants, e.g., , , in a trial effort to discover the most effective one and dosage. After approximately six (6) months of treatment, or by May of 2010, the were stopped and Dr. recommended that the student see a therapist specializing in OCD (Exs. SD-9 at 2, SD-8 at 1, P-E at 2, 4, 6, 8).^[4]

The student continued to attend during his seventh (2009/10) and eighth (2010/11) grades. The mother reported that that student felt stigmatized at having to report his progress on schoolwork on a daily basis to his SETSS teacher and that he rejected the use of a laptop computer for written output (Exs. P-A at 1, P-E at 7).

At a meeting held on April 5, 2011, the CSE recommended for the 2011/12 school year, the student’s ninth grade, that he receive SETSS three times per week in a general education classroom for math and writing support, and testing accommodations. The student’s program was implemented in a general education class of 34-36 students at the . The student’s grades and behavior significantly worsened prompting a February 2012

Promotion-in-Doubt meeting between the parents and school personnel (R. 50-51; Exs. SD-4 at 7, 11, P-A at 1, P-B, P-E at 3, 7).

In the winter of the 2011/12 school year, the student was referred by his parents for a to assess his intellectual and academic functioning in order to identify his learning needs and to develop an appropriate classroom placement to assist him in performing up to his potential. During testing conducted in December 2011 and January 2012 by Dr. , the student performed in the upper limits of the average range of intelligence when compared with his peers (WISC-IV Full Scale IQ percentile). The student demonstrated a high average ability for verbal comprehension (Verbal Comprehension Index = percentile) and average perceptual abilities (Perceptual Reasoning Index = percentile). The student’s psychomotor processing speed was also an area of strength as he performed consistently within the high average range when compared to his same-aged peers (Processing Speed Index = percentile). While the student’s ability to sustain auditory attention and concentration fell within the average range when compared to his same-aged peers (Working Memory Index percentile), his score was still nineteen ( comprehension skills (Ex. P-A at 3-4).

The student’s academic achievement was measured using the Woodcock-Johnson Tests of Academic Achievement - Third Edition (“WJ-III”). His overall academic skills measured within the low average range and his ability to retrieve and produce academic information under timed conditions measured within the average range when compared with his same aged peers (Academic Skills ; Academic Fluency = ) (Ex. P-A at 4).

The student’s ability to read individual words was within the lower limits of the average range (Letter-Word Identification ) and he displayed an average ability to complete timed reading tasks (Reading Fluency = ), along with reading comprehension skills that were within the low average to average ranges (Passage percentile; Grey Oral Reading Test - Fourth Edition, Rate = , Accuracy , Comprehension = ). Dr. Sands stated that this pattern illustrated that the student was a somewhat slow and non-fluent reader and that his comprehension of what he has read is well below his verbal comprehension abilities when utilizing his oral language skills (Ex. P-A at 4, 10).

The student’s ability to spell individual words was measured within the average range (Spelling = percentile) while the speed with which he could write meaningful sentences was within the low average range (Writing Fluency = percentile) (Ex. P-A at 5, 10).

The student’s ability to solve paper and pencil math problems was within the low average range (Calculation = percentile) and represented an area of weakness. When verbally presented with math problems that included textual materials, however, the student significantly improved his performance to solidly within the average range (Applied Problems percentile), indicating the benefit of utilizing language to assist him when solving challenging material. Lastly, the rate at which he could rapidly access basic math facts under a time limit was within the average range (Math Fluency = percentile) (Ex. P-A at 5, 10). Dr. Sands administered the Children’s Memory Scale to assess the student’s verbal and visual learning and memory abilities. Overall, both his immediate and delayed verbal learning and memory measured within the average range (Verbal Immediate Memory percentile; Verbal Delayed Memory percentile). Dr. Sands also administered the Delis Kaplan Executive Function System to the student, which assesses his ability to quickly solve new problems in a fast, fluent and efficient manner, particularly with visually-based, non-verbal problems. The student displayed variability in his executive functioning, with somewhat more proficiency when presented with novel verbal problems (Ex. P-A at 5, 10-11).

From the data obtained on his neuropsychological evaluation of the student, Dr. Sands determined that the student continued to meet the DSM-IV criteria combined type, and OCD. Dr. recommended that a variety of program modifications and testing accommodations be incorporated into the student’s school program. Lastly, Dr. recommended that the parents consult with a pediatric psychiatrist to determine if the student would benefit from resuming medication targeting improved attention and concentration (Ex. P A at 11-12).

On March 12, 2012 the student was administered several subtests of the W-J-III by Ms. , a school psychologist. In reading, the student achieved a grade level of 8 in Decoding and a grade level of 10.1 in Passage Comprehension, which Ms. stated “implies that [the student] is able to compose sentences better than he can recognize vocabulary.” The student also achieved a grade level of in Math Fluency and a grade level of 7.3 in Calculation. Ms. stated that these scores suggested that the student was able to do simple additions and subtractions while being timed better than he could do math with logic (Exs. SD-3 at 1, SD-5, SD-7).

The CSE reconvened on March 15, 2012 to develop an IEP for the student for the 2012/13 school year (tenth grade). The CSE described the student as “bright . . . with a great deal of academic potential.” On the point of the student’s academic needs, the CSE stated:

[The student’s] greatest challenge to his academic success this year has been his inconsistency in completing and submitting work. [The student] does not complete the majority of his assignments and as a result is currently not passing his major credit bearing classes. This has left him in danger of repeating grade. [The student] has stated that homework doesn’t interest him and that is why he doesn’t do it. It was communicated to [the student] throughout the course of several meetings this year that the work he does submit often scores well, so if he consistently completed his assignments he would likely be passing all of his classes with high . Intervention strategies such as creating an afternoon schedule, using a planner, and designing set times to complete homework have been implemented with minimal success.

We will continue to work with [the student] and his family to find and implement successful strategies to help [the student] improve in school (Ex. SD-3 at 1-2).

The CSE recommended for the 2012/13 school year, that the student receive the majority of his instruction in a general education setting supported by SETSS, five (5) times per week, and group counseling, one (1) time per week for thirty (30) minutes per session (Ex. SD-3 at 5). Following the March 15, 2012 meeting, the parents withdrew the student from the and enrolled him in the . While the student reportedly responded well to the structure and academic support , the parents ultimately determined that the Hyde school did not provide the student with sufficient individualized academic support and intervention (Exs. SD-4 at 7, 11, SD-11, P-A at 1, P-B, P-E at 3, 7).

On June 4, 2012, the parents submitted an application for the student’s admission for the 2012/13 school year (Ex. SD-14). In August of 2012, the parents referred the student to Dr. to determine the most appropriate academic school placement, setting and environment for the student. Dr. confirmed that the student’s history of inattention, difficulties in organizing tasks, avoidance of tasks that required sustained attention and distraction across multiple settings met the criteria , inattentive type. In addition, Dr. confirmed that the student’s history of recurrent and persistent intrusive thoughts that caused significant distress and were followed by repetitive behaviors to relieve distress met the criteria . Based on her thorough review of the student’s psychiatric, developmental, social, educational, medical and family histories, Dr. recommended that the student receive one-on-one tutoring and/or small group instruction in organizational strategies, study skills and math in a specialized residential school setting offering supervision within a structured, yet nurturing milieu (Ex. P-E at 1, 9-10).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 41-43, 300-314).

B. The Parents

The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement for the 2012/13 school year. The CSE’s proposed program for the student was both procedurally and substantively deficient and served to deny the student a free appropriate public education. appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition (R. 314-320).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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.^[5] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the 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).

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.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see 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.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

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, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Composition of the March 2012 CSE

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent alleges that the March 15, 2012 CSE was not properly constituted (Ex. SD-1 at 1).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).

The hearing record reflects that March 15, 2012 committed was duly composed of the student’s parents, Ms. , the student’s special education teacher, Mr. , a general education biology teacher, and Ms. , a school psychologist (R. 48, 53-54; Exs. SD-3 at 11, P-S). While Mr. may not have attended the entire meeting, I do not find that his absence from a portion of the March 2012 meeting impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (R. 85). 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).

C. Adequacy of Evaluations

The parents allege that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2012/13 school year (Ex. SD-1). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2012/13 school year (Exs. SD-3 at 1). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the March 15, 2012 meeting, the CSE considered psychological assessments conducted in 2009, as well as a recently completed educational evaluation (WJ-III) and vocational assessment, and teacher progress reports (R. 55-56; Exs. SD-3, SD-5, SD-6, SD-7, SD-8, SD-9). Ms. Edell was also present at the March 15, 2012 CSE meeting, participated in the meeting’s discussion and gave input regarding the student’s then-current functioning (R. 48, 53).

D. Adequacy of IEP Goals

The parents allege that the annual goals developed for the student did not adequately address his particular needs (Ex. SD-1). An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

I find that the CSE’s IEP for the student for the 2012/13 school year established annual educational goals which were reasonably related to his educational deficits. The CSE noted that the student “ . . . [and] doesn’t complete or hand in his weekly assignments. He has poor management and disorganization.” While the CSE developed only three (3) annual goals for the student for the 2012/13 school year, two (2) of those goals were directed at improving the student’s academic performance by providing strategies such as after school help, using a planer and checklists to manage assignments and creating a homework schedule. The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (R. 61-62, 64-65; Ex. SD-3 at 4). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

Alternatively, while the CSE erred in omitting a writing goal from the student’s March 2012 IEP to address the student’s struggle in meeting those general education performance standards which required written expression (Exs. SD-3 at 4, SD-4 at 2-4), I find that the omission of such a goal from his IEP did not impede his right to a FAPE or cause 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. Substantive Appropriateness of Proposed Program

As noted earlier, 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. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

Based on the evidence submitted into the hearing record, I find that the CSE’s proposed program for the student was not reasonably calculated to provide him with meaningful educational benefit. The student has received (2009/10) through the ninth grade (2011/12) (Exs. SD-4 at 7, 11, P-A at 1, P-E at 6-7). The student participated in the same State and district-wide assessments of student achievement that were administered to general education students and had a standard promotion criteria (Ex. SD-3 at 7, 9-10, SD-4 at 9, 11-12). By the second half of the student’s ninth grade (2011/12), he was underwater academically. He was behind in his lab work necessary to participate in the Living Environment Regents Exam (Ex. P-S). His applied design teacher noted in January 2012 that he “struggles with staying focused and on-task; in addition he doesn’t complete or hand in his weekly assignments” and displayed “poor time management, disorganization” (Ex. P-R). Indeed, at the conclusion of the second marking period (February 2012), the student was failing all of his subjects except for physical education

(R. 95; Ex. P-B at 1).

In planning for the tenth grade (2012/13), the March 2012 CSE noted the student’s “great academic potential,” which I interpret as an oblique reference to the student’s strong performance on standardized assessments of cognitive functioning and academic achievement (R. 58-60, 67-69; Exs. SD-3 at 1, SD-5, SD-6, SD-7, SD-9, P-A at 3-9). From the CSE’s analysis contained in the present levels of performance and individual needs section of the IEP, it appears that the committee believed that if only the student would consistently complete his assignments, he would be passing all of his classes with high grades (R. 63, 117-118; Ex. SD-3 at 1-2). While that may well have been true, there was also evidence before the CSE that the student’s executive functioning deficits and inability to hold focus for a reasonable period of time in the classroom contributed, if not caused, his inability to reach basic academic milestones (R. 118; Exs. SD-8, SD-9 at 1-2, P-E at 1). As three (3) years of SETSS had not proved successful in helping the student meet the general education course requirements, I find that it was unreasonable for the March 2012 CSE to conclude that increasing the student’s SETSS by two (2) periods per week would yield significantly different results, i.e., meaningful educational benefit (R. 66-67, 78-79, 96-98; Exs. SD-3 at 5, SD-4 at 7).

F. Appropriateness

Given my finding that the DOE failed to provide the student with a FAPE during the 2012/13 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). 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.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; 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. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. 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 parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of Dr. and the student’s mother, I find was an appropriate placement for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs. is a small, independent boarding school for students in grades nine (9) through twelve (12) which offers a college preparatory academic program. had approximately 156 students during the 2012/13 school year, of which sixty percent (60%) were male. Approximately one-third (⅓) of the students enrolled have diagnosed learning disabilities. groups students for instruction by ability and provides them with instruction in classes capped at eleven (11) students. Students requiring more intensive academic support may also enroll in the school’s Strategies program (R. 150-151, 161, 221; Exs. P-K at 2, P-V at 3). The Strategies program offers students one-to-one (1:1) or small group support in executive functioning, pre-teaching, re-teaching, homework support, scribing, and tutoring (R. 149-150, 162). Strategies teachers coordinate their instruction with content-area teachers (R. 156-157).

To address the student’s , the student was provided with a planner to record assignments. Essay writing was facilitated by using outlining and co-writing strategies. Teachers questioned the student about reading assignments to monitor his comprehension. The student received modified classwork and homework assignments to ensure completion. The student regularly participated in a supervised evening study hall at his dorm and also participated, as needed, in a make-up study hall called “MUSH” to complete (R. 155-156, 158, 165, 170-174, 181, 218-219). Given the student’s past difficulty with algebra at the Frank McCourt High School and the Hyde School, the student was enrolled in a one-to-one math class (R. 158-159, 163). As a result of the specially designed instruction provided to the student , he was able to consistently complete his homework, pass his content area subjects and demonstrate more academic confidence now than at the beginning of the school year (R. 161-164, 170, 182-185; Exs. P-N, P-O, P-P).

Alternatively, while I recognize that there is a "strong statutory preference in favor of ‘mainstreaming,'" see Phillips v. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist., 949 F. Supp. 1108, 1114 (S.D.N.Y. 1997), "the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students," see Briggs v. Board of Educ., 882 F.2d 688, 692 (2d Cir.1989). Here, it is clear that mainstreaming supported by SETSS did not work for the student. As noted earlier, the record demonstrates that the student did not succeed in the public school system and that his behavior and academic performance improved considerably once he was removed from the public school setting (R. 95, 161-164, 170, 182-185; Exs. P-B at 1, P-N, P-O, P-P, P-R, P-S). While was in fact a more restrictive environment than the , the DOE failed to provide the student with an appropriate IEP under the IDEA that would allow him to continue his public school education, and, thus, the parents had no alternative but to unilaterally place him in a private facility. See Muller v. Comm. on Special Educ. of the East Islip Union Free Sch. Dist., 145 F.3d 95, 105 (2d Cir. 1998).

G. Relevant Equities

The IDEA allows that 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 student from public school, or by written notice ten (10) 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); 34 C.F.R. § 300.148(d)(1).

The IDEA also provides that 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, 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); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

In a letter dated July 16, 2012, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the at public expense for the 2012/13 school years (Exs. SD-10, SD-11). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the student’s parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition was unreasonable (Ex. P-I), see Carter, 510 U.S. at 16.

Alternatively, while the DOE contends that the parents never intended to place the student in public school for the 2012/13 school year, based on their March 23, 2012 letter to Ms. and their completion of an admissions application in June of 2012, the parents’ pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE (Exs. SD-10, SD-14). Cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs, including tuition, associated with the student’s private placement at the for the 2012/13 school year and shall directly pay the private school for any outstanding costs associated with said placement. Dated: July 2, 2013

_____________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JS;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 ON APRIL 11, 2013

PARENT

A. Neuropsychological Evaluation & Educational Placement, 1/14/12, 12 pgs.

B. NYC DOE Student Report Card & Quarter 2 Report Card, 2/1/12, 5 pgs.

C. [Withdrawn]

D. [Withdrawn]

E. Diagnostic Psychiatric Evaluation, 8/21/12, 13 pgs.

F. [Withdrawn]

G. , Letter of Attendance, 10/16/12, 1 pg.

H. , Student Schedule, 10/16/12, 1 pg.

I. , Affidavit, 10/16/12, 1 pg.

J. Bank Statements with tuition payments listed, various dates, 3 pgs.

K. , Program Description, 2 pgs.

L. [Reserved]

M. Student Writing Samples, various dates, 4 pgs.

DEPARTMENT OF EDUCATION

1. Amended Due Process Complaint Notice/Impartial Hearing Request, 1/24/12, 2

pgs.

2. Due Process Response, 11/19/12, 4 pgs.

3. Individualized Education Program (IEP), 3/5/2, 11 pgs.

4. Individualized Education Program (IEP), 4/5/11, 12 pgs.

5. Woodcock-Johnson Test of Achievement & Scoring Report, 3/12/12, 8 pgs.

6. Level I Vocational Assessment, 3/12/12, 1 pg.

7. Educational Evaluation, 3/12/12, 1 pg.

8. Report, 5/28/09, 5 pgs.

9. Letter from , 4/24/09, 3 pgs.

10. Letter to from parent, 3/23/12, 1 pg.

11. Letter of from parents, 7/16/12, 1 pg.

12. Emails from 5/2012, 2 pgs.

13. Enrollment Contract, 9/8/12, 2 pgs.

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 8, 2013

PARENT

N. Report Card (Winter Term), 3/12/13, 4 pgs.

O. Progress Report (Winter Term), 1/31/13, 1 pg.

P. Report Card (Fall Term), 11/29/12, 5 pgs.

Q. Report Card (Fall Term), 10/10/12, 1 pg.

R. - Student Progress Report, 1/20/12, 1 pg.

S. Letter to parents from , 1/12/12, 1 pg.

T. Mid Quarter Report, 3/6/12, 3 pgs.

U. Rundown of Education Services & Therapeutic Support (RESTS), 10/16/12, 4

pgs.

V. Curriculum Guide, 10/16/12, 19 pgs.

W. Jump Rope Student & Parent Portal, various dates, 1 pg.

DEPARTMENT OF EDUCATION

14. Application for Admission, 6/3/12, 6 pgs.

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Confirmation of Extension, 1/4/13, 1 pg.

II. Confirmation of Extension, 4/11/13, 1 pg.

III. Confirmation of Extension, 5/8/13, 1 pg.

IV. Confirmation of Extension, 6/7/13, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests

[3] Other Health Impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning,

[4] The student has not been taking any medication since 2010 and has been seeing Dr. for psychotherapy since May of 2010 (Ex. P-E at 8).

[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.