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: March 13, 2013

April 18, 2013

May 15, 2013

May 29, 2013

May 30, 2013

May 21, 2013

Actual Record Closed Date: October 3, 2013

Hearing Officer: Gary D. Peters, Esq.

Corrected

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

Attorney — Parents

Attorney — DOE

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

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2013

Attorney — Parents

Mother — Parents

Attorney — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2013

Attorney — Parents

Mother — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2013

Attorney — Parents

Mother — Parents

Attorney — DOE

Principal — DOE

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

Attorney — Parents

Mother — Parents

Parents

Attorney — DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a education program, Students with , New York City Impartial Hearing Case The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its counsel and the parent was represented by her attorney,

BACKGROUND

The student hereinafter referred to as “” is currently a ear old male child, classified by the Committee on Education (“CSE”) as a child with “

On March 28, 2012 the Committee on Education ("CSE") convened and held an IEP meeting to develop an IEP for ("student") for the 2012-2013 school year. The IEP team consisted of Ms ; district representative and school ; Ms. , education teacher; Ms. , parent member; Ms. , representative; the Parent; and Ms. , teacher. In preparation for the IEP meeting the team reviewed the following reports and : a ,

A final notice of recommendation ("FNR") was received by the parent on June 20, 2012 offering placement at Parent sent a notice to the CSE on both June 19, 2012 and June 25, 2012 rejecting the placement and notifying the district of her intention to unilaterally place the student at the .

This proceeding commenced as the result of a Due Process Complaint filed by the student’s mother, through her attorney, . The complaint alleges substantive and procedural deficiencies, wherein the Parent maintains that the IEP and its recommendations are inappropriate for the child, hereinafter referred to as “”; furthermore it is alleged that the IEP does not accurately describe . Additionally, the Parent alleges that the recommended placement at a Di The parent claims that the “DOE” has denied a FAPE, and requests that the DOE pay for tuition for the .

THE PARENT’S POSITION

The district failed to meet its legal burden to demonstrate that it offered a FAPE. More particularly, the IEP is inappropriate and insufficient to appropriately address ’s education needs and that the district failed to prove that a , program could address his needs.

Additionally, the DOE did not have a true understanding of the student’s needs, and did not have sufficient information in order to support its own recommendations. The district failed to develop an IEP that was reasonably calculated to confer meaningful educational benefit, as it failed to make recommendations based on ’s individual needs.

THE PARENTS CASE

is currently a year-old student classified by the Committee on Education ("CSE") with an , and has been diagnosed . (Ex.3, 4); he

Counsel maintained that the district unilaterally changed ’s programming without any objective data that would support such a significant change; Ms. opined that prior to changing a student's placement, ’s parents were entitled to "prior written notice," a written statement developed in accordance with IDEA, and which must be provided a reasonable time before the school district proposes the change.

Ms. stated that prior to recommending the district , the district failed to obtain sufficient data to support its recommendation. Rather, as stated above, the district relied extensively upon the March 2012 ). As per the district's own witness required significant redirection even in this environment due to (See T. 106; Ex. 4). Ms. maintained that if reports or relied upon at CSE meetings are "not sufficiently accurate or complete for the purposes of designing ... [the child's] IEP, the responsibility for such deficiency lies with" the district. Additionally, the district failed to conduct a classroom , and therefore, had insufficient information regarding ’s . (T. 79-80) . Parent maintained that , a school and the only witness presented by the district to defend the March 2012 IEP, lacked any personal knowledge of and never met him (T. 100). Moreover, Ms. participated in approximately 200 CSE reviews for the 2012-2013 school year. (T. 100) and could not recall details of the March 2012 meeting; (T. 105, 107-08, 124, 135, 141) she could not recall what documents (if any) were reviewed during the meeting. (T. 105) While Ms. seemingly reviewed the February 7, 2011 and February 6,2011 prior to the March 2012 meeting, she did not discuss the results of the testing with the , nor did they participate in the March 2012 meeting. (Ex. 3; T. 105-06).

Counsel also stated that the district chose not to call these at the hearing, despite the fact that they have personal knowledge of and his needs. Without sufficient clinical data to support its recommendations at the March 2012 meeting, coupled with the questionable testimony provided by Ms. , the district has not met either its burden of production or persuasion to prove it offered a F APE. Furthermore, Ms. testified a (T. 96). Counsel opined that while the district is on similar needs, there is no evidence in the record to support this assertion made by Ms. .

During her visit to the recommended placement, the parent was informed that the proposed class (Ms. class) utilized a system for students. (Ex. D, F. T. 368-69) This system is utilized for students who are

Additionally, the Parent was informed at her visit to that the school utilizes a 209-10). I agree that the evidence supports the fact that the recommended program at is focused on . Counsel stated that the use of the system, coupled with the need for a room and several , evidences that would not be appropriately placed, as he does not require and the district provided no evidence to the contrary. Furthermore, ’s mother informed the district that would not provide with appropriate classroom instruction or an appropriate , and that she was informed "all students, regardless of their needs, participate in which is inappropriate and unnecessary for ; the district failed to respond to the Parent’s concerns.(Ex. D; T. 370, 373-74)

Counsel maintained that the inappropriate

The recommended program consists of a classroom whose main role is for classroom management. (T. 139-40) while a classroom may provide some instruction, it is only at the direction of the classroom teacher, and therefore was insufficient to meet ’s needs. Id. Counsel also stated that there is no evidence in the record regarding the credentials and qualifications required in order to become a classroom ; as Ms. and the district's placement witness were unaware of the qualifications (T. 140,213). Counsel also stated that the failure to provide evidence regarding the credentials of a is crucial, as the district failed to provide any testimony that the proposed teacher or in the proposed class at could provide with instruction. Infra. Thus, the district failed to meet its burden of production and persuasion regarding the appropriateness of . Infra

Ms. stated that had the review team considered

Parent’s counsel stated that the evidence supports the fact that the district inexplicably and inappropriately made recommendations based on what was available within the DOE program and not based on ’s individual needs. The district failed to consider other possible programs which would address his needs. Notably, the only other program considered at the March 2012 meeting was an , however, this program was only considered at the request of the Parent. Ex. 3, 8). This program was rejected as the

Counsel opined that if the district had any intention in recommending an appropriate program for and believed was appropriate, it would have developed a class with two Ms. stated that while the district did not consider the full range of programs within the public school system, it also failed to defer ’s case to the for consideration of an appropriate private placement. (Ex. 3)

It is the Parent’s position that, the district opted to inappropriately place within a program model, which does not have his needs as its primary focus and that the IEP fails to include sufficient present levels of performance in all areas of need.

Ms. stated that an IEP acts as a blueprint for a child's education; it is necessary to know where the student is time in order to determine the effective strategies to be implemented, as well as where the student should completion of the school year. An IEP must include "a statement of the child's present levels of ". As admitted by the district's own witness, the purpose of including a baseline for a student's current evel is to provide an (T. 148-49). Despite being aware that an IEP shall include sufficient present levels of performance in all areas of need, the district failed to include present levels of performance in all areas of need on the March 2012 IEP. (Compare Ex. 3.1-3.2 to 3.5-3.9) While the March 2012 IEP goals were directly copied from the March 2012 progress report, the district failed to provide a baseline for all the indicated goals. (Ex. 3). Counsel maintained that a teacher who has not met and is would not have a starting point in which to determine progress. The IEP also fails to include a baseline for any in providing an adequate baseline for the indicated decoding goal which states "” will (Ex. 3.5). As the IEP fails to provide a baseline for the indicated IEP the child's parent and teacher .

Counsel further opined that the March 2012 IEP fails to include appropriate transition services in order to assist in meeting his post-secondary goals and failed to include appropriate transition goals based on his preferences and interests. Students, such as who would require appropriate transitional planning at an , to ensure that they become the maximum extent possible.

Ms. stated that on cross-examination Ms. testified she was unsure as to why the post-secondary goals were included on the IEP. (T. 130-31), therefore it was argued that her testimony regarding the appropriateness of the recommended program (and IEP as a whole) lacks credibility.

As per the Due Process Complaint, Parent argued that the district was required to prove the appropriateness of these goals and identify the services which would ensure would meet the indicated goals in a timely manner. (Ex. A) Specifically, the IEP fails to include the child’s preferences and interests as they relate to post-school activities, measurable post-secondary goals, and a , needed activities to facilitate his movement to , and the responsible party to assist in meeting his post-secondary goals. (Ex. 3). Furthermore, it was argued that the IEP post-secondary goals inappropriately and vaguely state will attend a program, will be employed with , and will live with moderate to . (Ex. 3.4-3.5). Counsel opined that the indicated post secondary goals are so vague that they are virtually meaningless. ld. The vague post-secondary goals are a result of the district's failure to conduct a , and to discuss the goals with ’s parent. (T. 130)

Additionally, parent maintained that Districts are required to conduct an would have provided the district with some insight as to ’s , and would have determined what would require post-school. Ms. admitted the purpose of a is to discuss with the student and the parent, what the student's interests are, and to take into consideration the parent's input. (T. 93); however the district failed to utilize this opportunity (T. 130-32); Ms. testified that she would not have taken into account the Parent’s input regarding ’s goals.

(T. 94, 133). Counsel stated that Ms. 's testimony indicates a complete disregard and lack of understanding regarding the purpose of the IDEA and her obligations as a district representative. Ms. stated that contrary to Ms. 's testimony, that if had the review team included the Parent in the development of the goals, they would have determined that her ultimate goal for is to live on his own, and therefore, they would have begun transitional planning to ensure this goal was met. (T. 357)

Parent maintained that the DOE failed to present any evidence to prove that could implement the IEP and provide with a F APE. Parent argued that In order for the district to successfully meet its burden of proving that it offered a student a F APE, the district must prove that it offered a placement which could meet the student's needs as set forth in an appropriate IEP. In this case, the district simply chose not to attempt to meet that burden, thus requiring a finding that the district failed to prove that it offered a FAPE.

In her June 19, 2013 letter, ’s mother contacted the district, indicating she had not received a placement recommendation for the July 2012 start date for the 2012-2013 school year. (Ex. B) Therefore, at the time of her initial letter that the Parent could not possibly have rejected the district's recommended placement. The parent sent a subsequent letter dated June 25, 2012, wherein she notified the district that she had received a placement letter on June 20, 2012, and that she was attempting to schedule a visit of the proposed program. (Ex. C). Additionally, in the June 25, 2012 letter, the Parent requested information regarding , such as a class profile and program description and stated that “in the event the recommended program cannot provide her son with an appropriate education, he will continue to attend the ." ld. (emphasis added). ’s mother did not reject the proposed placement; as per Ms. , it is was stated that she acted exactly as the IDEA sets out, and notified the district of her concerns with the IEP.

Parent’s counsel stated that the district further attempts to relieve itself of its affirmative obligation to prove the appropriateness of the proposed class, by arguing information regarding the proposed class is speculative as it was not determined which class would have been placed in. However, the class is far from speculative, but is rather, of definite certainty. The first day of school for the 2012-2013 school year was July 5, 2012 (T. 198); the Parent visited on July 13th, after the proposed program had moved to its new location (T. 179) During her visit, Ms. was informed by Ms. (the parent coordinator at ) that would be placed in Ms. class, after confirming that would be entering the 8th (See Ex. D, F; T. 366) The district attempted to offer contrary testimony, through Ms. , who stated she would never inform the parent what class the student would be placed in, as this information is "directed by placement." (T. 182). Ms. confirmed the information that was provided to the Parent during her visit, regarding which class would be placed in. Ms. testified that had only in both July and September, which was Ms. class (T. 191, 198). The district attempted to clarify this testimony, through the School Principal, who testified there were six students (T. 230). However, Ms. opined that the record is clear that of , there was only one alternate class for children of those classes was for students who take (T. 191,198).

According to Parent’s counsel, the district presented two witnesses, , the Parent Coordinator and , the School Principal. However, both Ms. and Mr. provided very limited testimony, which was insufficient to meet the district's burden of production and persuasion. Ms. could not testify to the of the other students in the proposed class, offered bare and conclusory testimony regarding the related services provided at , and could not testify to the classroom instruction/curriculum in the proposed class. (T. 193, 210, 213). It was stated that Ms. ' credibility is even further suspect, given that her testimony is factually inaccurate. Though she met ’s mother on three separate occasions, she testified she had only met her two times, in June 2012 and July 2012 (T. 179, 197,371-72). Much of the testimony provided by Ms. and Mr. , confirmed what was stated in the Parent’s three letters to the district, regarding the inappropriateness of , in that cannot provide with an appropriate peer grouping.

As per Ms. , the evidence demonstrates the inappropriateness of the proposed program. The Parent raised several allegations regarding the inappropriateness of . (Ex.

A) .The district's own witness testified that it is important to know the levels of the other students in the proposed class for placement purposes. (See T. 139).

Ms. stated that the record established that cannot meet ’s related service needs. The district failed to prove that could meet ’s

Counsel also opined that the proposed class cannot provide appropriate classroom instruction. The Parent informed the district in her July 23, 2012 and her October 19, 2012 letter, that would not receive appropriate district failed to provide any evidence to the contrary. Ms. stated that there is no evidence in the record to establish that the proposed class could implement any of the IEP goals or , the or that it could provide with the level of , support, and instruction he requires. Additionally, counsel stated that there is no evidence in the record regarding whether the classroom in Ms. class could provide with appropriate . As the evidence supports the fact that the proposed program's focus is to address presumably the classroom 's main responsibility would be for classroom , rather than being responsible for planning. Ms. , Mr. , and Mr. all testified that a classroom could not provide with the level of instruction he requires (particularly given the fact the district recommended ’s ) as the role of a is for classroom management and assisting the teacher (T. 317, 266, 336). Ms. opined that it is clear that the district failed to recommend a program that could meet ’s needs. The failure to do so is a direct result of the district failing to obtain sufficient information to support its own recommendations prior to the March 2012 meeting, and subsequently, divorcing itself from the placement process. Thus, the district failed to meet its burden to prove it offered a FAPE for the 2012-2013 school year.

Additionally, Ms. stated that the evidence amply demonstrates that ’s placement at is appropriate, as they had an awareness of ’s needs, and specifically designed a program individualized to meet his educational needs. ’s education program is designed to address the needs of students with , in . (T. 330).

Parent’s counsel opined that the district was provided with notice of the parents' concerns so that they have the opportunity to resolve any issues. The district cannot now argue that the Parent did not act equitably, when it was the district that failed to utilize the opportunity to address her concerns. Furthermore, the district cannot, in good faith, argue that the Parent did not act equitably, given its own delays. For example, while the district developed an IEP for in March 2012, it failed to provide a placement recommendation until June 2012. (Ex. C). As the parent cooperated throughout the educational decision making process, it is clear that equities do not bar her recovery of tuition of ’s appropriate placement at .

Lastly, Counsel stated that direct funding of a student’s private school placement is an available remedy under the IDEA when the District fails to provide a FAPE. The testimony and evidence clearly establishes that the Parent has proven her financial inability to front the cost of tuition at . The Parent testified that it would be a financial hardship to pay the cost of tuition, in its entirety, upfront, due to her financial status. (T. 374-75). The cost of tuition for is over 50% of the Parent’s total income. While there is a order in place for ' s father to provide financial assistance, he does not comply with this order. (T. 375) 's contracts clearly state that the parent is obligated to pay the cost of tuition at '. (Ex. H, I). While the parent did not date the contracts for , she testified that the signed in July and the was signed in September. (T. 380) The Parent testified she is obligated to pay the full tuition for for both the summer and fall program. (See T. 37576; Ex. H, I)

THE DEPARMENT’S POSITION

The Individualized Educational Plan ("IEP") developed was tailored to meet the student's educational needs and the public school placement offered was appropriate. Therefore, the Parent's requests for relief should be denied. Alternatively, if considered, the DOE also asserts that the (" ") is not an appropriate placement and the equities favor the DOE.

THE DEPARTMENT’S CASE

The DOE maintains that the Parent’s allegations that the CSE failed to give the parent sufficient notice of the meeting because it did not adequately indicate the expected participants is inaccurate. More particularly, a notice of IEP meeting was sent on March 7, 2012 and indicated the expected meeting participants; the Parent was aware of the usual process of such meetings as she attended previous IEP meetings.

Furthermore, the Parent alleges in her due process complaint that the CSE failed to conduct sufficient of the student and failed to review sufficient in making their recommendations is unsupported. Counsel maintained that most important to a determination of whether have provided F APE or not is not whether the District followed the exact procedures set out in the regulations, but whether the team had adequate information to understand the and if the IEP, and whether the resulting IEP is appropriate. In the instant matter, it is the DOE’s position that the CSE considered the following documents and during the IEP review: a , these were done well within of the March 2012 IEP meeting. Id. Additionally, the parent did not object at the meeting to these , nor did the parent request any additional at the meeting or thereafter (T. 378). The DOE presented testimony from school and CSE member . Ms. testified that she felt that the reports utilized by the CSE provided them with sufficient information to make regarding the student (T. 79). Regarding the parent's allegation that the CSE lacked an update . testified that the team obtained information about the from the student's and that this information provided an adequate substitute for an (T.80). The DOE maintains that evidence established that the CSE recommended an appropriate program that was based upon a thorough of this student's needs. The team classified the student as and program in a school (T. 94, Ex. 3). According to school , the team recommended the

Accordingly, the DOE maintained that the CSE properly analyzed ’s individual needs and recommended an appropriate program that would have afforded the student the opportunity to make meaningful educational progress.

Counsel for the DOE stated that the Parent’s allegations that the present levels of performance contained within the IEP are insufficient as they do not provide an adequate baseline from which to are invalid (Ex.1). The CSE determined that the student was functioning on a as Ms. explained during her testimony that the IEP contains a baseline measurement of the with regard to the that were included and the goals are to be measured either in relation or in relation to the ability for a student to complete (T. 149). The IEP contained accurate and appropriate information from which an instructor can appropriately assess the student's progress and is in accordance with all IDEA requirements.

Furthermore, the DOE maintained that the IEP contained an appropriate transition plan and post secondary goals; Parent alleges that the IEP includes a transition plan that is inappropriate because it was not developed with the participation of the student or his parent (Ex. 1). It is the DOE’s position that old at the time of the IEP review and it was not necessary that a statement of goals be included in the IEP. While the IEP did include goals, Ms. testified that these goals were intended to be "anticipated long term goals based on the student's present " (T. 93, Ex 3-4). Ms. testified that the goals were drawn up in an intentionally broad manner to, you know to -- to with any -- any precision"(T. 92). Additionally, the record and meeting minutes reflect that contrary to parent's assertions the

The due process complaint also challenges 's ability to meet the ’s needs and implement the IEP's recommendations, Counsel asserts that a meaningful analysis of the parents' claims regarding , would require a determination of what might have happened had the district been required to implement the student's IEP; such a determination would be speculative because the parents did not enroll the student in the district school. Counsel stated that the only support for the allegations by the student's mother was based on her single to the offered placement and contrary to the substantial evidence in the record. The DOE opined that the evidence in this case demonstrates that the parent rejected the public school placement and made their unilateral placement decision well before the start of the school year; accordingly analysis of placement is not warranted as part of a Prong 1 determination.

It is undisputed that the parent sent her first letter to the DOE on June 19th, 2012, wherein she stated that she did not agree with the IEP's recommendations, the student would continue enrollment at , and that the parent planned to file an impartial hearing request. The DOE’s counsel opined that the language of the letter indicated parent's rejection of the DOE's program; her unilateral placement of the student occurred on June 19, 2012 - prior to the start of the school year and prior to the time that the DOE became obligated to implement the student's IEP. Following the June 19, 2012 letter the parent sent a second letter to the CSE on June 25, 2012 (Ex. C), which indicated that the parent received the placement recommendation, but had not yet visited the site. The June 25, 2012 letter restates the parent's intention of enrolling the student at and again requests an impartial hearing. Id. The second letter purportedly made it clear to the DOE that the parent rejected the DOE's recommended program and placement and would be pursuing an impartial hearing. The letter does not request a reconvene of the CSE to draft a new IEP, or request a new placement offer. The DOE counsel maintained that the parent made visits to in mid July 2012 and in October 2012 and that the parent made her placement decision prior to her visit to the recommended school.

According to the DOE, the parent's claims regarding the proposed placement are both speculative in nature and disproven by the evidence. Furthermore, Counsel for the DOE maintains that I should not give credence to allegations raised relating to the October 2012 recommended placement visit, as the visit was for purposes of litigation only - it is clear that the took place after the student had been enrolled at for months and thus was not relied upon by the parent for purposes of placement.

The DOE counsel maintained that the parent testified that she visited and argues that based on the placement would be I for the student because it would not be able to adhere to the program recommendation on the IEP; she alleges that the proposed class would be inappropriate because it would not provide appropriate . Id. The DOE submits that the parent's allegations are baseless because at the time the parent visited she was unaware of the as she was similarly unaware of what specific class the student would have been placed . In this matter the parent alleged that based on her visits to the school and particularly would be inappropriate to meet the needs. The parent testified about her visit to in July of 2012, stating that she observed in a and the class she observed contained students that were not on the same as . However, the record reflects that during the July visit the parent was inside a classroom for (T. 184- 5, 388); the parent admitted that she was never told the of the students she observed in any of the classes she was shown (T. 389). The parent also admits that the parent coordinator could not supply her with any information about a specific class placement should choose to begin attending in September (T. 390).

Mr. , the principal at addressed the parent's allegations, he stated that the reason the parent observed one classroom was because another classroom had come to share the room with the issue that lasted a short period of time (T .183). Further Mr. and the parent coordinator Ms. both confirmed that despite sharing the , the classes were (T. 183). Further, Mr. made it clear that there were many possible classes that could have been placed in; there were classes during the summer session and that the parent was never told specifically what class the student would be placed in (T. 230). Additionally, the record demonstrated that at the time the parent visited (July2012), the school was unaware of how many classes they would have in and thus was not able to give the parent any specific classroom information about a fall placement (T. 191). Mr. testified that there were seven of 2012 that would have been possible placements for this student

(T. 233) and only when a students is a determination made as to what class a student is placed in (T. 233).

The DOE counsel maintained that it is evident that the parent's visit to the proposed placement did not provide her with any evidence to support her contention that the student would not . The parent was never told what specific class the student would be placed, nor was she told the evels of the students she observed. The parent speculates that would not be similarly grouped . Such speculation has been held to be an inappropriate basis for a unilateral placement and should be found to be insufficient in this matter.

The parent further alleged that she was told that were not available; the DOE submits that this is a speculative argument as the student was never placed in the school and one does not know what would have happened had he enrolled. Additionally, the parent's testimony on this issue is claimed to be inconsistent. When asked on cross examination, the names of the she that she purportedly spoke with, parent could not identify anyone (T. 394). Further, the parents own testimony was inconsistent on this issue. The parent claims to have been told that no were available, but then claims to have observed a during both her July and September visits to the placement (T. 388, 392). Clearly, if were unavailable then the parent would not have viewed a room dedicated to . Mr. testified regarding the availability of related services at and established that the school had both related services available fall of 2012 (T. 235). Thus, this allegation, in addition to being speculative, is without merit as it is clearly refuted by the evidence presented by the DOE.

In her due process complaint he parent further alleges that she was told the building in which the school was located in site and thus alleged that the environment would be child. This claim is both speculative and unsupported by the evidence. Both the parent coordinator and the principal testified that although is a separate entity and its students have no other sites and are (T. 236). Accordingly, speculation that a school is that houses other schools is an placement.

Counsel stated that it is clear from testimony that the student requires a education program which is staffed by highly trained instructors. The parent has not demonstrated that such an environment is present at as the staff lacks the requisite training and experience to properly service a student like . The record reflects that while the assistant teachers are responsible for instruction none of them responsible for instruction possess degrees or certification in the field of education (T. 281, 318). The student's teacher, admitted that despite the fact that she is only certified to teach is teaching s at (T. 317). While 's staff are not required to be licensed or certified in their respective fields, the fact that that a majority of the individuals responsible for teaching a student with such complex ized training in their field illustrates how is not reasonably serving this student's

The DOE asserts that it is clear from the testimony that does not employ an objective or standard measure of progress. No objective reports or data have been entered into evidence proving such progress. The student's teachers testified that the test was administered in October of 2012 and June of 2013 however the record is devoid of any evidence of those exams nor could the teacher 9T. 322-4). Based on the lack of objective parent has not met her burden in establishing as an appropriate placement.

The DOE maintained that parent did the "bare minimum necessary to give the appearance of good faith." Ms. opined that the parent never intended to accept a public school placement and only participated in the IEP meeting, sent a letter, and visited the placement to give the appearance of cooperation. For example, in the impartial hearing complaint, the parent alleged that the CSE failed to conduct sufficient , however the parent admitted during testimony that she never requested any new at the IEP meeting, nor did she request any new following the meeting (T. 378-9). Further significant is the fact that the parent never contacted anyone at the CSE following the IEP meeting to voice her alleged concerns with the IEP, nor did the parent ever request a reconvene of the CSE to draft a new IEP despite her alleged concerns (T. 391). Instead, the parent waited until the start of the school year but more than 2 months after the IEP meeting - to send a letter to the CSE indicating that she did not agree with the IEP's recommendations and that she planned to file an impartial hearing request (T. 378). Lastly, the DOE’s counsel stated that is clear from the evidence that the parent's visit to the proposed placement was done as part of her contract with and not due to any genuine desire to send the student to a DOE placement. Despite being undated, it is obvious that the were signed prior to the parent's visit to the proposed placement as the student was already attending the (T. 402-3). The parent admitted that the contract required her to visit all DOE placements, and that she had been to the school prior and had rejected it (T. 359). Further, despite parent's allegations regarding the proposed class being inappropriate, during the visit to the school the parent admitted she never inquired as to how it would be determined what class the student would be placed in if he enrolled (T. 386). Based upon the foregoing, it is evident that the parent's cooperation with the DOE was disingenuous; rather they were simply going through to motions to feign cooperation. As such, the equities do not favor the parent here and tuition reimbursement should be denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Education Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students with have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

In conformity with a written IEP, a school district must provide education and related services designed to meet the student’s unique needs.^[20] U.S.C. §1401(9) (D); See render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ "reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.

The Burlington/Carter test applies where the parent is seeking a program that was never recommended by the district in any of a student’s previous IEPs. However, where a Parent is not seeking tuition reimbursement for a unilateral placement, binding precedent in the Southern District establishes that consideration of the 2nd and 3rd Burlington/Carter factors is wholly unnecessary, M.N. and H.N. v. NYC Department of Education, 700 F. 2d 356 (S.D.N.Y. 2012). “because the Plaintiffs are merely seeking to maintain the services they are currently receiving at the DOE’s expense pursuant to the IDEA’s pendency provisions, the Burlington/Carter test does not apply” Id at 369. Additionally, the SRO has followed this precedent. In Application of a Student with a , Appeal No. 11053, the Parent requested that the impartial hearing officer continue the student’s current program of and related services under pendency as she disagreed with the program recommended in the Student’s new IEP. The SRO agreed with the Parent that the Burlington/Carter analysis should not be applied because the parent did not unilaterally place the student in a private school or seek reimbursement for her expense related to the services she unilaterally obtained without the consent of the District. Since the Parent sought an order directing the school district to provide different services to the student then were recommended in his IEP, then there was no basis for the impartial hearing officer to require the Parent to prove that the services she sought were appropriate for the student,” Id at 4., see also Application of XXXX, appeal No. (tution reimbursement analysis applicable to unilateral placement does not apply where parent requested continued placement at approved non public school as he student’s last agreed upon placement).

PRONG I

The burden of proof rests with the DOE to prove or disprove any allegations raised by the Parent in the Request for Due Process and failed to present convincing evidence to establish that it delivered appropriate services during the 2012-2013.

PRONG II

Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a , Appeal Application of a Child with a , , in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's educational needs (Application of a Child with a , ). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105 [2crCir 2000r,cert. Denied532 U.S. 942 [20012]). The private school need not employ certified education teachers, nor have its own IEP for student (Application of a Child with a Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21, 26-17 [1st Cr. 2002}.

In review of the appropriateness of the proposed placement, the inquiry is whether, at the time the parent was considering the proposed placement, the DOE could implement the IEP. B.R. v. New York City Dep’t of Educ., No. 11 Civ. 8433(JSR), 2012 WL 6691046, at *6 (S.D.N.Y. Dec. 26, 2012); See also R.E. v. New York City Dep’t of Education, 694 F.3d 167 (2d Cir. 2012).

To demonstrate that the private school placement chosen by the parent is appropriate, the parent must show that the services met the student’s educational needs. Burlington, 471 U.S. 359 (1985). Review of the nonpublic placement is more informal than review of the original IEP – indeed; the nonpublic placement need not even meet the IDEA’s definition of a FAPE. R.E., 694 F.3d at FN3. The ultimate issue to be determined is whether the placement is reasonably calculated to enable the child to receive educational benefits; there is no one dispositive factor in this determination. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). The private program need not employ certified education teachers, as the requirements for district placements to meet State educational agency standards do not apply to parental placements (Carter, 510 U.S. at 14; See also 34 C.F.R. § 300.148(c)).

PRONG III

The final criterion for an award of tuition reimbursement is that the petitioners' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 noting that courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required}) such considerations Include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530, 5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984], affd, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412; Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. ). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv )(I)(cc) (II)(bb).

I agree with Parent’s counsel that the district must meet its burden of proving it offered F APE by a preponderance of the evidence (the standard required in many civil proceedings). Ed. Law §4404(1) (c), see also, Chapter 583 of the Laws of New York

2007. Thus, in order to meet its burden of proof, the district must put forth "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary (9th ed. 2009).

Ms. stated that the IEP is inappropriate and insufficient to appropriately address the child’s unique education needs. More particularly, the district failed to prove a district 75, 12: 1: 1 program can appropriately address ’s needs. I agree that the record supports to students. Most importantly, ’s needs are academic and cognitive in nature, rather than behavioral, and I agree that the recommended program is not suited to address ’s primary areas of deficit. Infra The failure to recommend an appropriate program in an appropriate placement is a direct result of the district's policy to prevent CSE teams from having any role in the placement process. While the review team alleged that they recommended a program to foster ’s

More particularly, the district failed to develop an IEP that was reasonably calculated to confer meaningful educational benefit, as it failed to make recommendations based on ’s individual needs. A FAPE must be tailored "to each child's unique needs." Lessard v. Wilton Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18, 23 (1st Cir. 2008). In developing an appropriate education plan, the district must consider the "academic achievement, functional performance and learning characteristics ... and learning style." (emphasis added) 8 N.Y.C.R.R. 200.1 (ww) (3) (i) (a)

In this matter I find that is a motivated hard-working student who is social among peers. (Ex. 3; T. 248, 303-04), but exhibits significant learning deficits which impact his 260-61, 333, 336)

Furthermore, Federal Law mandates that school districts "conduct an ... of any person who ... needs or is believed to need education or related services before taking any action with respect to the initial placement ... and any subsequent significant change in placement." 34 C.F.R. § 104.35(a). Prior to recommending the district program at , the district failed to obtain sufficient clinical data to support its recommendation. Rather, the district opted to rely extensively upon the March 2012 report to develop the March

2012 IEP. (Ex. 3,9; T. 78, 106)

Although, the district conducted a in supports the claim that continued to require a program which can provide him , such as his programming at . (Ex. 4) As admitted by the district's own witness due to significant redirection . (See T. 106; Ex. 4); if reports or relied upon at a CSE meeting are "not sufficiently accurate or complete for the purposes of designing ... [the child's] IEP, the responsibility for such deficiency lies with" the district. A.D. v. Bd. of Educ. a/the City Sch. Dist. a/New York, 690 F.Supp. 2d 193,208 (S.D.N.Y. 2010). Thus, the failure to obtain sufficient objective data to support the recommendations made at the March 2012 meeting, led to a denial of FAPE. Furthermore, the district failed to conduct a classroom observation, and therefore, had insufficient information . (T. 79-80) The district argues that the failure to conduct a classroom observation was as ’s teacher provided input during the meeting; however, the New York State Regulations require re- ... that ... the CSE and other qualified professionals, as appropriate, shall review ... current classroom-based observations, and observations by teachers and related services providers." 8 N.Y.C.R.R 200.4 (b) (5) (i) (emphasis added) Statutory construction requires that statutes be interpreted so as to give meaning to each provision. Parent’s counsel maintained that Congress contemplated that the CSE would obtain different information from a classroom observation by an individual other than the student's teacher. The district cannot read this requirement out of the law-to do so would defeat the very purpose of 8 N.Y.C.R.R 200.4 (b)( 5)(i), which is to obtain sufficient and accurate information from a variety of sources in preparation of an IEP meeting.

In this case the district opted to inappropriately force to fit within a program model, which does not have his needs as its primary focus. I agree with Parent’s counsel that these actions are in direct violation of state and federal law, and inconsistent with the spirit and intention of the IDEA. The IEP fails to include sufficient present levels of an IEP acts as a blueprint for a child's education, it is necessary to know where the student is time in order to determine the effective strategies to be implemented, as well as where the student should be the school year. An IEP must include "a statement of the child's 20 U.S.C. §1414(d) (A) (I); 8 N.Y.C.R.R. §200A (d) (2) (ii) (emphasis added). As admitted by the district's own witness, the purpose of including a baseline for a student's current is to provide an instructor with a starting point and determine progress. (T. 148-49) Despite being aware that an IEP shall include sufficient in all areas of need, the district failed to include present levels of performance in all areas of need on the March 2012 IEP. (Compare Ex. 3.1-3.2 to 3.5-3.9)

The IEP failed to include an appropriate transition services in order to assist in meeting his post-secondary goals and to include appropriate transition goals based on ’s preferences and interests. New York State regulations clearly state that transition services shall be included on an IEP "for those students beginning not later than the first IEP to be in effect when the student (and at a younger age, if determined appropriate)", to assist the student in meeting their in a timely manner. 8 N.Y.C.R.R. 200.4(d)(2)(ix) (emphasis added) Presumably, New York State contemplated students, such as , who would require appropriate transitional planning at an earlier age, to ensure that they become independent/ adults to the maximum extent possible. Id.; See also Deal v. Hamilton, 392 F.3d 840, 864 (6th Cir. 2004) State Regulations further provide that the IEP shall include: 1)

The district failed to present any evidence to prove that could implement the IEP and provide with a F APE. An essential part of a F APE is providing an appropriate placement within the public school system. 34 C.F.R. § 300.17(c); 300.1 16(b) (2); 8 NYCRR§ 200.4(e) (7); Application ala Child with a , Appeal No. 08-087; Muller v. CSE of Islip UF.S.D., 145 F.3d 95, 105 (2d Cir. 1998). In order for the district to successfully meet its burden of proving that it offered a student a F APE, the district must prove that it offered a placement which could meet the student's needs as set forth in an appropriate IEP. In this case, the district simply chose not to attempt to meet that burden, thus requiring a finding that the district failed to prove that it offered a FAPE. The district proffered no evidence to prove that the recommended placement at suited 's needs, or that it could meet the requirements on the IEP. See record generally Utilizing the Second Circuit's decision in R.E., the district attempts to argue that it was not required to prove the appropriateness of, as the district alleges that the parent rejected the proposed placement prior to the start of the school year, and therefore, the district has no obligation to demonstrate how the IEP would be implemented. (T. 71) R.E. v. New York City Dep't of Education, 694 F.3d 191 (2d Cir. 2012) However, the district's argument is unsupported by the record and recent case law. The district cannot use its failure to issue a timely placement recommendation, as a means to evade its burden. In a remarkably similar situation, the Southern District recently addressed this, nothing that "the fact that the Department dragged its feet in . its placement recommendation . . . is not an equitable factor that cuts in favor of the Department." 2012 WL 6691046, at *9.

As stated above, to demonstrate that the private school placement chosen by the parent is appropriate, the parent must show that the services met the student's educational needs. Burlington, 471 U.S. 359 (1985). The nonpublic placement need not even meet the IDEA's definition of a FAPE. R.E., 694 F.3d at FN3. The ultimate issue to be determined is whether the placement is reasonably calculated to enable the child to receive educational benefits; there is no one dispositive factor in this determination. Frank G. v. Bd. of Educ. a/Hyde Park, 459 F.3d 356,364 (2d Cir. 2006). The private program need not employ certified education teachers, as the requirements for district placements to meet State educational agency standards do not apply to parental placements. Carter, 510 U.S. at 14; See also 34 C.F.R. § 300.148(c).

Moreover, any argument by the district that is inappropriate is disingenuous, as he district relied extensively on the report in creating its own IEP. The Southern District held that "insofar as the CSE elected to utilize and rely upon the reports and s" of a private school, their reliance on such materials weighs in favor of the private placement's appropriateness. A.D. v. Bd. of Educ. of the City Sch. Dist. of New York, 690 F.Supp. 2d at 208 (S.D.N.Y. 2010). We urge, insomuch as the district's own witness at hearing admitted reliance upon the opinions of the staff, Congress granted hearing officers broad discretion to fashion equitable relief in "light of the purpose of the Act" to ensure that a child with a receives a free and appropriate public education. Burlington, 471 U.S. at 370-71, see also 20 U.S.C. § 1415 (i) (2) (C) (iii); Carter, 510 U.S. 7, 16 (1993). If student is not provided with a FAPE and the placement obtained by the student's parent is appropriate, then a hearing officer may engage in a "balancing of the equities" to determine appropriate relief. Burlington, 471 U.S. at 367,374. 's mother cooperated in the IEP's development, and did not engage in any conduct that would have precluded the CSE from creating an appropriate IEP. She appropriately expressed her concerns at the CSE meeting, indicating that she had significant concerns regarding the recommendation of a for . (Ex. D, F) Once she received the offer of placement, Ms. immediately contacted the school for a visit. (Ex. C)

In all of her letters to the district the Parent indicated that she had significant concerns regarding the IEP developed, stating that the would not meet ’s needs, and the IEP post-secondary goals were inappropriate. (Ex. B, C, D, F); no one from the district contacted the Parent to address any of her stated concerns. , the purpose of the IDEA's requirement that a parent provide notice of their concerns with the district's recommendations is to give "the school system an opportunity, before the child is removed, to assemble, evaluate the child, devise an appropriate plan, and determine whether a [F APE] can be provided in the public schools." land Sch. Dist. v. Amy N, 358 F.3d ISO, 160 (1st Cir. 2004). In other words, the district is provided with notice of the parents' concerns so that they have the opportunity to resolve any issues. The district cannot now argue that the Parent did not act equitably, when it was the district that failed to utilize the opportunity to address her concerns. Furthermore, the district cannot, in good faith, argue that the Parent did not act equitably, given its own delays. For example, while the district developed an IEP for in March 2012, it failed to provide a placement recommendation until June 2012. (Ex. C) B.R., 2012 WL 6691046, at *9. As the Parent cooperated throughout the educational decision making process, it is clear that equities do not bar her recovery of tuition of ’s appropriate placement at .

The uncontested testimony and evidence clearly establishes that the Parent has proven her financial inability to front the cost of tuition at . Ms. testified that it would be a financial hardship to pay the cost of tuition, in its entirety, upfront, due to her financial status. (T. 374-75) Binding precedent holds that retroactive direct funding is an available form of relief under the IDEA. D.A. v. NY. City Dep’t of Educ., 769 F. Supp.2d 403 S.D.N.Y. 2011).

Accordingly, I find that the district failed to offer a F APE for the 2012-2013 school year, that his program at was appropriate, and that there is no equitable bar to recovery. I direct the DOE to pay tuition at the for the 2012-2013 school years in the amount of $55,775.00. Dated: October 4, 2013 Corrected Date: October 8, 2013 (Correction made on cover page)

GARY D. PETERS, ESQ.

Impartial Hearing Officer GDP:gc

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 Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EVIDENCE

Exhibit# Date Document Pages A 1/10/13 Impartial Hearing Request 3 B 6/19/12 Letter from Parent to CSE 3 C 6/25/12 Letter from Parent to CSE 3 D 7/30/12 Letter from Parent to CSE 4 E 8/27/12 Change of Address letter to CSE 3 F 10/19/12 Letter from Parent to CSE 4 G 6/22/09 Letter from Parent to CSE 3 H summer/2012 2 I 2012-13 Enrollment contract 2 J 3/919/13 Affidavit 1 K summer 2012 Daily schedule 1 L 20132-13 Daily schedule 1 M 2011 US Individual Tax Return 2 N 2012-13 21 O undated 4

DEPARTMENT’S EVIDENCE

1 1/10/13 Due process Complaint 3 2 2/4/13 Due Process Response 3

3 3/28/12 IEP 17

4 2/7/11 14 5 2/6/11 3 6 9/30/11 10 7 2/6/11 2 8 3/28/12 CSE Meeting rationale 5 9 March 2012 / 29 10 6/25/12 Notice of Unilateral Placement 1 11 3/7/12 Notice of IEP Meeting 1

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Footnotes

[20] U.S.C. § 1414(d)). “The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a , Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532. A school district provides a FAPE 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. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); 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