New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 9, 2013

May 21, 2013

June 17, 2013

Actual Record Closed Date: July 25, 2013

Hearing Officer: Lynn Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2013

LISA ISAACS, Attorney (Via Telephone) — Student

JACLYN BARNEY, Attorney (Via Telephone) — Student

Parent (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

JACKIE OKIN BARNEY, Attorney — Student

LISA ISAACS, Attorney — Student

Parents

Chairperson's Designee — DOE

(Via Telephone (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2013

JACLYN OKIN BARNEY, Attorney — Student

LISA ISAACS, Attorney — Student

Parents

(Via — Student

Telephone) — Student

) — DOE

JURISDICTIONAL STATEMENT

On December 13, 2012 I was appointed to hear the Matter of pursuant to the Individuals with ), 20 US Code Section 1415(f)(l). On January 9, 2013, a pre-hearing conference was held and, in furtherance thereof, an Interim Order of Pendency was issued on January 11, 2013. Thereafter, hearings on the substantive merits were held on May 21, 2013 and June 17, 2013. Specifically, the Parent asserts that the Department’s educational placements as memorialized by the Individualized Education Program (IEP)s of May 18, 2011 and May 10, 2012 stand in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and are neither suitable nor appropriate for her child. Exh. A. As a result thereof, she is seeking tuition reimbursement in furtherance of a unilateral transfer to a non-public school setting. As a corollary, the Parent has defended the educational program implemented by and relies upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S. Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Beyond this, the Parent contends that there are no equitable factors which militate against her right to relief. ” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

testified as lead witness for the Department of Education. She is licensed both as a general education teacher and by New York State. She has been employed by the Department as a school for 19 years. Tr. at 51. As such, she is responsible for conducting , participating in meetings and making educational recommendations for placement. On May 18, 2011, the CSE convened. Although Ms. had assessed . on January 26, 2011, she had not observed him subsequently. Tr. at 84. She did, however, participate in proceedings. While, Ms. acknowledged that she had a limited recollection of the events that day, she did note that her findings had been incorporated into the IEP document. Nevertheless, of the participants at the May 18, 2011 proceedings, only the Parent and Ms. , a teacher from were personally familiar with the child on an on-going basis. Tr. at 55-56. As a result, Ms. testified that the CSE had relied upon Ms. familiarity with the student and had crafted its goals based upon her contributions and those of related service providers. As such, the witness opined that the goals and recommendations articulated on the May 18, 2011 IEP were appropriate. Exh.

5. Ultimately, a program in a community school was offered to along with the related service of

On cross-examination, the witness noted that she did not recall discussing the student’s transitional goals or plan, but did discuss, in a general way, the IEP’s programming recommendations. Tr. at 88-90. She did not, moreover, remember any discussion about the site previously recommended and rejected by the Parent, nor could she recall whether exhibited any conditions which would preclude him from participating fully within ’s program. Tr. at 71-73. The witness observed that the IEP of May 18, 2011 did not provide for a functional life skills program, but surmised that could offer this, an opinion based upon prior discussions with a special education CSE colleague. Having said this, Ms. Gonzalez testified that she was not involved in the placement process for . during the 2011-2012 school year. Tr. at 69.

additionally testified on behalf of the Department of Education. Ms. holds a Master’s degree in social work and is licensed as such by New York State. On May 10, 2012, Ms. participated in a CSE convene for the purpose of developing IEP for the 2012-2013 school year. Ms. has never met the child, nor has she even observed him. Tr. at 105-106. The witness noted that goals and related service recommendations were based upon both Ms. input and that of his providers. Once again, Ms. and the Parent were the only participants with direct and on-going knowledge of the child. Based upon Ms. statements, Ms. opined that all goals were appropriate. Tr. at 99-103.

Beyond this, Ms. noted that had not received his services during the prior year, but did not know how or why this had occurred. Tr. at 116-117. In furtherance thereof, Ms. acknowledged that the student’s 2012-2013 , both as a separate related service and as an element of the child’s transition plan, was no more than a reiteration of his 20112012 recommendation. Tr. at 125-126. She did not recall any disagreements voiced by the Parent nor did she recall any discussions about in the course of the May 10, 2012 CSE proceedings. The witness additionally observed that she was not involved with the placement process. Tr. at 104. Finally, in referencing the student’s transition plan, Ms. acknowledged that the plan was based upon services offered through . Nevertheless, she believed the Department could furnish with a similar assignment. Finally, Ms. testified that the Department had “worksite programs that are programmatic with the special class in a community school,” although she had no way of knowing if could continue at his present site. Tr. at 123-124.

additionally testified on behalf of the Department. This was first year serving as a supervisor and assistant principal at . In this capacity, Ms. testified that she conducts classroom observations, reviews IEPs and facilitates placements. Having said this, Ms. indicated she was not involved in placing students into classes, nor was she responsible for developing their schedules. Tr. at 178. As such, she acknowledged that, in planning for the 2011-2012 school year, classes were “unknown.” Tr. at 184-185. In fact, work-site planning and the development of a program would not occur, as a matter of protocol, until a student affirmatively accepted the placement at . Tr. at 200-

202. The witness described a community school that offered integrated co-teaching classes, classrooms which included alternate classes. Tr. at 139-141. During the 2012-2013 school year, had staffed by licensed and certified individuals in the area of . Ms. described the services and programs offered at her school, noting that there were many related services on site, In September 2011, Ms. testified that related service mandates were being filled at her school by licensed providers or receiving related services authorizations. Tr. at 143. Finally, the witness noted that the classes recommended for were departmentalized and that mainstreaming opportunities were available.

Reviewing the student’s May 18, 2011 IEP, the witness described a number of actions she would have taken had she been assigned to case. Based upon an conducted in January 2011, she noted that broad . Similarly, broad scores reflected level, with , a score which . Exh. F. The witness testified that she was directly involved in the placement of students and worked closely with in her school. Tr. at 151. She did not, however, participate in the development of the student’s 2011-2012 IEP. Exh. 5.

The witness described double period English classes in which leveled materials with age appropriate materials were utilized. Instruction was differentiated and included the use graphic organizers, previewing of vocabulary and class read-alouds. Ultimately, reading and writing strategies were stressed so that students could achieve greater independence with their literacy skills. Tr. at 186. In math, the curriculum was based upon the New York State Alternate Assessment criteria. Tr. at 155. She noted that math instruction might focus on computation skills, problem-solving or algebra/geometry, depending upon the student’s academic level. Tr. at 186. A decision-making class was additionally offered as was the opportunity to work in the school store or the school cafeteria. Tr. at 157. As such, the decision-making class was considered a transitional class in which students developed resume, interview and problem-solving skills. Tr. at 159.

The witness testified that a transitional coordinator, , was available to ’s students. It was Ms. responsibility to conduct level one vocational aptitude assessments, interface with parents and work collaboratively with students to develop a career plan. ’s personnel additionally worked closely with as well as in order to identify appropriate job placements and facilitate a smooth transition to the community. In furtherance thereof, supervised work-study programs were offered on a ten month basis at the . Tr. at 161-169.

Reviewing of May 18, 2011, Ms. noted that all of its goals were appropriate for the student and could be met at . Similarly, the transition plan and any accommodations incorporated into the IEP could be implemented by her school. Tr. at 171-176. Similarly, although various work-sites were offered, placement could not be assured as an incoming student would require an initial skills evaluation. Tr. at 189. Thereafter, an assignment would be developed in collaboration with the student and his parents. In some circumstances, volunteer opportunities might be arranged where there was currently no existing work-site placement. Tr. at 191.

With regard to the 2012-2013 school year, Ms. testified that she was directly involved in scheduling and programming for students. Exh. 1. Notwithstanding this, she had no direct knowledge regarding the formulation of and the nature of its proceedings. She did note, however, that even if a student never accepted the placement, a class program would be developed for that individual. Tr. at 209. In fact, the witness indicated that much of her testimony regarding the services offered by during the 2011-2012 school year would apply to the Department’s 2012-2013 IEP. As such, she testified that the student’s goals were appropriate. Similarly, she testified that the IEP’s recommendations and accommodations could be furnished by . Tr. at 210-216. Ultimately, she opined that would be placed in a suitably profiled classroom, reflecting similarly classified students with . Tr. at 218. Nevertheless, she noted that could not offer the specific work-sites requested by the student, although the

On cross-examination, the witness acknowledged that some measures of the student’s present levels of performance within the IEP and that B.R. would need to be reassessed upon entry to in order to accurately Tr. at 226. Similarly, Ms. agreed that a parent would be unable to clearly whether a student had toward the IEP goals as they did not reference a starting point for the student’s skills. However, even if they had identified a starting point, Finally, the witness acknowledged that a broad description of

THE PARENT’S CASE

testified as lead witness on behalf of the Parent. Ms. is the Director of the for Learning. She holds Master’s degrees in and school building leadership. She has been employed in the field of education . School is hosted by , a general education school. Tr. at 272-273. The witness described as a program which services children from age . There are in the high school. ’s instructional staff participates in on-going training, in-service and otherwise. Tr. at 251. Supervision is provided at least weekly and related service providers are retained through the Department. Given the limited enrollment of the School, personnel interface daily and can intervene immediately as issues arise. For those involved in the work-site model, the witness noted that services are provided on however, did not during the 2011-2012 school year and for part of the 2012-2013 school year.

attended during the 2011-2012 and 2012-2013 school years. Although Ms. did not participate in the development of the student’s IEPs, she testified generally about the protocol follows in its relationship with the Department. In furtherance thereof, she noted that personnel participated in CSE proceedings on both May 18, 2011 and May 10, 2012, meetings in which additionally furnished updated progress reports. Exhs. 1, 5, D, E. Although utilized the student’s IEPs as a guideline, the witness noted that personnel frequently enhanced the Department’s IEP’s provisions so that they more specifically related to the student in question. Tr. at 242. She did not view as an as the students were able to interface throughout the day with the host school’s mainstream population. Tr. at 243; Exh. M. Beyond this, a specific was offered on a daily basis in addition to integrated opportunities during lunch and special school events.

During the 2011-2012 and 2012-2013 school years, Ms testified that participated in the and life skills. Its students are generally somewhat older, having previously been retained in There are six similarly profiled students in class. . is additionally assigned to the , where he is one of three students in his work division. Tr. at 270, 282; Exh. S. The enables ’s students to participate at a days per week. Once at the work-site, activities are supervised by his teacher, and the work-site supervisor, an employee of the site rather than personnel. The additionally includes travel training and the development of consumer skills. Tr. at 265-265. During the remaining two school-based days, reinforces such as learning to access information in newspapers or online. Reading instruction is similarly functional in nature and may include menu skills or learning to read job application postings. Calculator skills are additionally reinforced so that students may be more independent within the community.

The witness noted that during the 2011-2012 and 2012-2013 school years, teacher. In addition to Ms. was assigned to the student’s class. Reviewing the Department’s 2011-2012 and 2012-2013 IEPs for B.R., Ms testified that the transition plan was very vague and additionally underestimated the extent of abilities. In furtherance thereof, she opined that

Referencing the 2011-2012 IEP goals, Ms. observed that, with the exception of a complicated three digit fraction goal, the goals could be implemented at . She noted that, notwithstanding the existence of the Department’s IEP, personnel would frequently prepare a more specific IEP of their own which would then be discussed with the parent. Tr. at 260-263.

Reviewing the student’s 2012-2013 IEP, Ms. testified that the child did not begin receiving his related services until “a few months ago” when a pendency order was issued. Exhs. 1, E, S. The witness testified that she was advised by Department personnel that could not receive these services as the matter was “considered by the Department of Ed to be in litigation. Whether or not they have even initiated their due process rights and requested an impartial hearing, just by virtue of the fact that they request an IEP, they are considered in litigation and so therefore services are not provided by the Department of Education if that’s the case.” Tr. at 278-280. More specifically, the witness was advised that if parents did not execute an IESP, they would not have their related services provided. Tr. at 289. Ms. opined that this was particularly destructive

In sum, Ms. testified that

Lastly, the Parent testified. Ms. provided a brief history of educational experiences, noting that her son

Referencing the May 18, 2011 IEP, Ms. expressed concerns that a would not provide the required. In addition, she noted that the transition plan was vague and inaccurately described her . passim. Notwithstanding all of the above, Ms. scheduled a site observation of , at which time the Parent realized that proposed program would essentially remain the same as the program in which . had previously participated; the issues she had raised would not be addressed.

On or about June 15, 2011, the Parent received the Department’s Final Notice of Recommendation for the 2011-2012 school year. Exh. 10. When the Parent shared her concerns and requested an alternate site, she was advised that no alternatives were available. More disturbingly would be assigned to the same teacher and program. Ms. testified that none of the programming opportunities previously discussed by administrator (in the course of the hearing proceedings) were mentioned. Tr. at 304. Thereafter, Ms. advised the Department that she would be unilaterally placing at . Exh. K.

On May 10, 2012 the CSE again convened for the purpose of developing an IEP for At this time, many of the 2011-2012 recommendations were reiterated as were the Parent’s objections. Once again, a classroom at , a community school, was recommended. Exh. P. In June 2012, the Parent advised the CSE that, although she was attempting to set up a school observation, she had not heard back from the Department and, therefore, had been unable to schedule another site visit. Exh. Q. Ultimately, due to the exigencies of Hurricane Sandy, Ms. was unable to conduct an observation of until mid-October 2012. Although was already enrolled at , the Parent testified she would have transitioned her son back to a public placement had an appropriate site been identified. Tr. at 328-329.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education contends that its recommendations for the 20112012 and 2012-2013 school years, as memorialized by the IEPs of May 18, 2011 and May 10, 2012 are valid and consistent with its IDEIA mandate pursuant to both Educ. Law 4402(2)(a) and 8NYCRR 200.6 §(a)(1). As specifically articulated the School District asserts that its IDEA mandate simply requires that, consistent with procedural elements promulgated therein, it provide a (hereinafter referred ”). In furtherance of this, the Department maintains that its educational programs accurately reflect the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating . It is not compelled to maximize or optimize the child's educational benefits. Its duty is simply fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child.” Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

The School District additionally asserts that, even if it were determined that the Department of Education had not, in fact, provided , the program is not an appropriate placement for the student. Similarly, it maintains that the Parent has not met her equitable burden consistent with Sch. Comm. Of Burlington v. Dep’t. of Educ, 471 U.S. 359, 370 [1985].

THE PARENT’S POSITION

The Parent, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] asserts that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education during the 2011-2012 and 2012-2013 school years. As a corollary, counsel maintains that the educational program at constitutes an appropriate educational program for and, furthermore, that there are no equitable factors which militate against her entitlement to tuition reimbursement.

Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), were the May 18, 2011 and May 10, 2012 IEPs reasonably calculated to confer an educational benefit upon S.N. during the 2011-2012 and 2012-2013 school years?

Among the purposes of the IDEA is the preparation of students with for (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; See also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth-specific requirements related to transition planning and transition services (id.). For students of age and older, the IEP must include a statement of the student's transition service needs in the applicable portions of the IEP (34 C.F.R. § 300.347[b][1]; 8 NYCRR 200.4[d][2][viii]). For students of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]). For such students, the IEP is also required to include a statement of needed transition services, including, if appropriate, a statement of the interagency responsibilities or any needed linkages with other service providers (34 C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), as well as a statement of the student's projected post-school outcomes, based on his or her needs, preferences, and interests, in the areas of employment, post-secondary education and community living (8 NYCRR 200.4[d][2][ix]); Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Appeal No. 04-112). Although it is clear that vocational skills are the most critical component of educational experience, I find, first and foremost, that the student’s transition plans, both for the 2011-2012 and 2012-2013 school years, inadequately describe the student's individualized post-transition and vocational needs. Neither document identifies any specific transition service needs or provides for a specific coordinated set of transition activities in “instruction, related services, community experiences, development of employment and other post-school adult living objectives adult living objectives,” as required by 8 NYCRR 200.4[d][2][i][c] and 200.1[fff].

Rather, the transition plan appears to be little more than a perfunctory nod to comporting with state regulations (8 NYCRR 200.4 [d][2]). This is particularly disturbing . graduated during year and there is no reference to identifying any postsecondary agency such as , which might “promote movement from school to post-school opportunities or both, before the student leaves the school setting,” all in violation of 8 NYCRR 200.4(d)(2)(ix). In fact, the responsibility for this is erroneously placed exclusively upon the Parent in the IEP of May 18, 2011 and is not addressed at all in the May 10, 2012 document. Exhs. D at 17, E. Incredibly, notwithstanding the Department’s description of there is no discussion of the or goals. Exhs. 1, 5, F.

All of this is particularly disturbing school year and there is no reference to any post-secondary agency , which might “promote movement from school to post-school opportunities or both, before the student leaves the school setting,” all in violation 8 NYCRR 200.4(d)(2)(ix). In fact, the responsibility for this is erroneously placed exclusively upon the Parent in the IEP of May 18, 2011 and is not addressed at all in the May 10, 2012 document. Exhs. D at 17, E.

I further note that there and, under these circumstances, the Department cannot reasonably establish that the student’s transition plan adequately addresses the student’s needs. While there are some references to the development of functional life skills in the May 18, 2011 IEP, they are so broadly stated as to be utterly unquantifiable and accountable. Exh. D at 9. Similarly, the few functional goals articulated in the May 10, 2012 IEP are merely referenced, but not developed in any meaningful way. Exh. E at 5. IEP entries such as “utilize budgeting skills for given amounts of money” Clearly, a statement will apply basic computational skills to problems from other subject areas and real-world situations” does not reflect anything more than a broad aspiration. In the absence of these specifics, one simply cannot develop a meaningful IEP whose transition plan and functional goals will serve as an adult. There is no vocational assessment in the record and, as a result, the Department has not met its burden of establishing the appropriateness of IEP, and more particularly, its transition plan.

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private , and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]). I note, additionally, that other than ’s personnel and the Parent, no one on behalf of the Department possessed any direct familiarity with the student during the May 10, 2012 convene. Clearly, the student’s present levels of performance were internally inconsistent within the IEP and, as a result, Ms. credibly testified that would need to be reassessed upon entry to in order to accurately identify his present levels of skill levels. Tr. at 226. Similarly, Ms. agreed that a parent would be unable to clearly whether a student had made any progress toward the IEP goals as they did not reference a starting point for the student’s skills. However, even if they had identified a starting

As with the 2011-2012 IEP goals, it is clear from a review of the 2012-2013 IEP that its goals are expressed so generically that they might apply to any student, classified or not. Beyond this, references to measurement criteria and methodology reflect boilerplate entries which further underscore the lack of individualization required within an IEP’s goals. Given the IEP’s global definitions of mastery and the universality of its goals, accountability is non-existent. In fact, the IEP is totally bereft of any specific short-term objectives.

Indeed, even administrator noted that it was ’s practice to develop their own goals, expanding upon the Department’s IEP, as “. . . sometimes the goals are a little bit vague and we would like to hone in on more specifics, so in addition to following those goals, we also kind of add to their individual education plan.” Reviewing the student’s 2011-2012 and 2012-2013 IEPs, administrator testified that both the 2011-2012 and 2012-2013 IEPs underestimated the extent of In furtherance thereof, she opined that the student did not require , with the assistance of adult services, a supportive employment model had been recommended. Tr. at 249.

Beyond issues related to the student’s transition plan and the absence of any specific measures directed at testimony of Ms. is persuasive in terms of the appropriateness of . As the only witness with on-going knowledge of the child, This testimony was particularly credible as the witness declined to commit herself affirmatively to the inappropriateness of a .

Finally, although Ms. testified credibly about a number of services and accommodations which could be offered to it is clear that “retrospective testimony” cannot be used to rehabilitate an IEP which is facially defective (R.E., R.E., M.E. et al v.

NYC. Dep’t of Educ., 2nd Cir., Dkts nos., 11-1266-cv, 11-1474-cv, 11-655cv (Sept. 20, 2012). In furtherance thereof, the Court has clearly stated that, “[T]testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP." This is particularly significant in view of Ms. inconsistent testimony regarding the development of a program. As such, it is unclear whether a program would only be developed upon a student’s acceptance to (Tr. at 200-202), or whether a program would be developed even if there were no acceptance. Tr. at 200-202, 209.

"[T]he IEP must be evaluated prospectively as of the time of its drafting and . . .

retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding."

"[P]arents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision." [emphasis added]. "[I]t is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that specific teacher would have taken beyond what was listed in the IEP." "This rule recognizes the critical nature of the IEP as the centerpiece of the system, ensure that parents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of the services they intend to provide in the written plan."

Thus, while the Parent has no right to designate any specific teacher or, by extension, any particular work-site for her child, neither is she required to rely upon statements as to what additional services might be provided after that student’s IEP has been drafted. This is significant given Ms. onclusions that . would need to be at in order to identify his present levels of performance and levels. Tr. at 226. Given the present form of the student’s IEP, Ms. agreed that a parent would be unable to clearly whether a student had made any progress toward the IEP goals as they did not reference a starting point for the student’s skills. In the absence of a “starting point,” the basis for establishing class assignments is unclear. This is underscored by the Department’s insistence that be placed in whose curriculum includes instruction directed, for example, at and the . Tr. at 186-187, 302. While it is true this is merely a measure of the individual’s ability to recall . It ignores inability to apply these facts to problemsolving at a level greater . Exh. F at 2.

Point II: Was High School an appropriate educational placement for during the 2011-2012 and 2012-2013 school years?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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 child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified teachers, nor have its own IEP for the student (Application of a Child with a Appeal No 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a , Appeal No. 99-44.

I find, at the outset, that the program offered at correlates well with the student’s needs, as identified by Ms a witness who has . personally for several years. The program provides classroom instruction in addition to work-site supervision on a basis. The Department’s academic goals have been refined by so that they are individualized and meaningful . The student, moreover, participates with peers whose consistent with his own. The development of is stressed as evidenced by simple goals directed at learning to read menus and job postings. participates in which provides mainstream opportunities for the student. It offers related services through contractual agreement with the Department and provides adaptive physical education through a private organization known as “ Finally, arrangements have been made to transition to an adult service agency which will provide day habilitation and supportive employment during the upcoming year. Tr. at 292. Given these facts, the Parent has satisfied her burden in terms of establishing the appropriateness of for during the 2011-2012 and 2012-2013 school years.

Point III: entitled to an award of compensatory education?

Finally, I find that the Department’s refusal to services to a child classified as “ constitutes a gross violation of the student’s rights. Clearly, the Department’s actions reflected an intentional effort to deny services to which was unambiguously legally entitled, all to according to the listener, . . . ” Ms. testimony regarding her efforts to obtain services are credible, and under these circumstances, it is clear that an award of compensatory education is mandated. The Department is well aware of its obligations regarding the pendency provisions of the Individuals with Act (IDEIA) and the New York State Education Law. It is well aware that there is no requirement that an order of pendency be issued by a court of competent jurisdiction (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; Education Law § 4404[4]). As seminal case law has established, pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; v. Bd. of Educ., 335 F.3d 297 [4th Cir. 2003]). The Department’s purposeful misstatements as to the basis for pendency, presumably directed at reducing its financial liability, are little more than gross and improper attempts to interfere with the protections afforded to children.

In tandem with the Department’s improper withholding of related services, the Second Circuit, allows for the provision of compensatory education services for a student over years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Appeal No. 02-019). Given the Department’s egregious actions, I find that the student is entitled to an award of compensatory education, not to provide “extra” educational services but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier” (Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]). Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate” (Reid v. Dist. of Columbia, 4401 F.3d 516, 525 [D.C. Cir. 2005]).

Point IV: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2011-2012 and 2012-2013 school years?

I find that there are no equitable factors which militate against the Parent’s right to recovery. The evidence indicates that Ms. participated willingly in her son’s CSE convenes and arranged for the participation of ’s personnel. The Parent has worked collaboratively with the Department of Education, exchanging private when available. When a recommendation was made, she visited the placement and shared her concerns. When the Parent’s concerns were ignored, a ten-day notice was duly filed. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition.

CONCLUSION

shall be entitled to an additional basis for the following two school years. Services shall be based upon a week school year. Given the intentional harm inflicted through the Department’s actions, the Parent shall be entitled to a full services for both school years, notwithstanding the following the issuance of a pendency order in January 2013 by the undersigned. Dated: August 8, 2013 Corrected Date: August 29, 2013 (Correction made to cover and evidence page)

____________________

LYNN ALMELEH, ESQ.

Impartial Hearing Officer LA;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

DEPARTMENT OF EDUCATION

1 IEP dated 5/10/12, 14 pgs. 2 Teacher dated 3/29/12, 1 pg. 3 Conference Summary dated 5/10/12, 2 pgs. 4 FNR dated 5/25/12, 1 pg. 5 IEP, 5/18/11, 18 pp. 6 dated 5/18/11, 1 pg. 8 Classroom Teacher , 1/26/11, 1 pp 9 CSE Conference Summary dated 5/18/12, 2pp 10 FNR, 6/15/11, 1pp

IHO

I IOP, 1/11/13, 3 pp II Parent’s Memoranda of Law, 7/23/13, 14 pp.

PARENT

A Impartial Hearing Request, December 10, 2012, 7 pp B Findings of Fact and Decision, April 10, 2012, 10 pp C Related Service Provider February 2, 2011, 1pp D IEP, May 18, 2011, 17 pp E IEP dated 5/10/12, 13 pgs. F dated 1/26/11, 5 pgs. G Update dated 1/26/11, 2 pgs. H dated 2/4/11, 6 pgs. I Conference dated 3/16/11, 1 pg. J Final Notice of Recommendation dated 6/15/11, 1 pg. K Ten-Day Letter dated 7/11/11, 1 pg. L Tuition Agreement dated 8/27/11, 1 pg. M Class Profile and Schedule, 2011-2012, 3 pgs. N dated 3/29/12, 1 pg. O dated 3/13/12, 1 pg. P Final Notice of Recommendation dated 5/25/12, 1 pg. Q Ten-Day Letter dated 6/14/12, 1 pg. R Tuition Agreement dated 8/23/12, 1 pg. S Class , 2012-2013, 3 pgs.