Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 3, 2013

May 24, 2013

Actual Record Closed Date: June 28, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 3, 2013

Esq. Attorney — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 24, 2013

Esq. Attorney — Parents

Esq. Attorney — Parents

Mother — Parents

Father — Parents

via telephone Psychiatrist — Parents

via telephone Psychologist of — Parents

via telephone Head of Grammar School — Parents

Head Teacher Grammar School — Parents

Esq. Attorney — DOE

The matter of . came for hearing before me on February 22, 2013, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On February 22, 2013, I was appointed as impartial hearing officer. On April 3, 2013, a pre-hearing conference was held and this hearing was scheduled to commence on May 24, 2013. The hearing concluded on May 24, 2013. The parent seeks direct funding/prospective funding for the tuition in the amount of $48, 500. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is June 28, 2013 and the compliance date for issuing a decision is July 12, 2012. This hearing was convened at the request of the parent through her attorney. The request was received on February 22, 2013. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (NYCRR). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (CSE). The hearing was initiated the parent ., who challenges the August 28, 2012, review and recommendation of the CSE.

The parent unilaterally placed her son in and is a program for students aged five to fourteen that provides self-contained classes to support the generalization of skills including social and academic experiences (Exh. 54). is a private entity lacking State Education Department approval. The parent seeks direct funding/prospective funding for the tuition at in the amount of $48, 500 including all costs and fees. I note that the parent requested direct funding/ prospective funding for related services (Exh. 47 at 4); however, the claim for related services was withdrawn at the hearing (trans. 259). The parent withdrew the claim for direct funding/reimbursement of transportation for the 2012-2013 school year as well any as pendency provision at a post-hearing conference with the both parties.

BACKGROUND

-old student diagnosed with by his psychiatrist, who recommended a specialized school for children with specialized needs (Exh. 28). was , and had issues (trans. 108). had attended and a public school at two years and the mother reported head banging and sensitivity to loud noises (trans. 90; Exh. 60 at 1). In September 2010, noted that he improved globally with early intervention, but regressed in a collaborative team teaching class for first grade (Exh. 28 at 2). has attended the since 2010 and is currently attending the for the fourth grade in the 2012-2013 school year. The DOE had agreed to pay s tuition prospectively to for the 2010-2011 school year and the 20112012 school year (Exh. 47 at 2). When was in second grade, for the 2010-2011 school year on March 15, 2010, the CSE classified and recommended be placed in a community school in a special class with a student to staff ratio of 12:1 or twelve students and one special education teacher (Exh. 27 at 2). When was in third grade for the 20112012 school year on April 15, 2011, CSE classified and recommended that by placed in a community school in a special class with a staffing ratio of 12:1:1 or twelve students and one special education teacher and one paraprofessional (Exh. 33 at 1). The April 15, 2011 individualized education program (IEP) indicated that exhibited difficulty with self-regulation and organization of his thoughts, body and speech (Exh. 33 at 5). The April 15, 2011 IEP recommended related services of counseling once a week for thirty minutes in a group no larger than three; individual speech and language therapy (SLT) twice a week for thirty minutes per session; SLT once a week for thirty minutes in a group no larger than (OT) twice a week for thirty minutes per session in a group no larger than two (Exh. 33 at 17).

On August 21, 2012, the parent alerted CSE that as no IEP team meeting occurred and no appropriate placement was offered for the 2012-2013 school year, the parent intended to place for the 2012-2013 school year (Exh. 42).

On August 23, 2012, CSE and recommended a placement in a special class with a staffing ratio of 12:1:1 in a community school for a twelve-month program and receive testing modifications, without related services (Exh. 44 at 13). The parent challenged the August 23, 2012 IEP review and disagreed with CSE’s placement. The parent maintained that the DOE failed to provide a free and appropriate public education (FAPE) and she placed . The parent does not have the financial resources to pay the tuition for the for the 2012-2013 school year and so requests prospective payment to in the amount of $48,500 for the 2012-2013 school year (Exh. 47 at 3).

On August 28, 2012, the Final Notice of Recommendation was sent to the parent to inform the parent of the placement at P.S. 129 (Exh. 44)

The parent asserted that the placement at a community school was inappropriate required a small class setting within a structured environment with substantial individual support throughout the day from professionals trained and experienced in working with students on the autism spectrum (Exh. 47 at 2). The parent maintained that the August 23, 2012 IEP was developed without a representative to provide current information (Id.). The parent further maintained that the absence of related services rendered the August 2012 IEP flawed and the deletion of related services was not based on any assessment and that the placement offer at was not appropriate because the large school would overwhelm (Id.). The parent visited the proposed placement at the fall of 2012 and on November 14, 2012, wrote a letter to CSE indicating that the proposed placement was not appropriate because the school lacked the technical resources to meet ’s needs and alerted CSE for the 2012-2013 school year (Exh. 46 at 3).

THE DEPT. OF EDUCATION’S CASE

Stacy Faraci, Esq., the DOE attorney maintained was appropriately placed in the special 12:1:1 class and FAPE was offered for the 2012-2013 school year. Special Education Teacher with CSE testified for the DOE.

Mr. , a certified special education teacher and with a Master’s degree in special education, testified that he was assigned to CSE for two years (trans 39). He stated that he scheduled an IEP meeting in May 2012, and he facilitated the August 23, 2012 IEP meeting for (trans. 40). He reviewed the August 23, 2012 minutes (Exh. 60) and noted that the School Psychologist was present as was the parent and the parent’s attorney (trans. 89). He stated the team reviewed the progress reports from including the progress reports of the related service providers (Exh. 40) and developed related service goals (trans. 49). He recalled that he wrote the same frequency and duration of related services on his notes (Exh. 60) as the related service progress report for the 2011-2012 (Exh. 40) reflected (trans. 51). He stated that his notes indicated the frequency of the related services, but did not indicate the duration of the related services (trans. 53). He further stated that he wrote the results of the August 23, 2012 IEP meeting on the EPC/CSE Conference Results Form (Exh. 62) and the Results Form reflected the frequency and duration of related services for (trans. 52). He stressed that he wrote the CSE Review Agenda (Exh. 59) and his handwriting reflected the frequency and duration of the related services (trans. 55). He explained that the parent did not object to the frequency and duration of the related services for for 2012-2013 school year (trans. 56-60). He further explained that he mistakenly omitted the related services on the August 23, 2012 IEP, but maintained that he discussed the related services recommended for during the August 23, 2012 IEP and there were related service goals on the August 23, 2012 IEP (trans. 61).

Mr. Towsend stated that while no representative participated in the August 23, 2012 IEP review, the progress reports provided specific information regarding (trans. 64). He further stated that the August 23, 2012 IEP listed under management needs the use of graphic organizers, charts, checklists and a multi-sensory approach as well as direct teaching modeling and that these management needs were taken from Center progress reports (trans. 65). He opined that as an experienced self-contained teacher for the DOE, the program of was a self-contained classroom with clear, consistent routines and expectations with direct teacher modeling (trans. 66;68). He maintained that the academic goals listed on the August 23, 2012 IEP were taken from the Cooke Center progress report from June 2012 (trans. 70). He agreed that the Review Agenda (Exh. 59) and the CSE minutes (Exh. 60) contained different related services than the EPC/CSE Results Form, (Exh. 62), but could not explain the differences or the exact frequency and duration of the related service of counseling (trans. 76-78). He stated that the Review Agenda (Exh. 59) reflected the accurate amount of related servicers (trans. 79).

On cross Mr. stated that he relied on progress report to determine the class size for at the in the 2011-2012 school year (trans. 83). He further stated that he did not recall if he mailed the ECP/CSE Results Form or the minutes of the August 23, 2012 IEP meeting to the parent (trans. 85). He recalled that the parent expressed her concern that ’s then current teacher did not participate in the August 23, 2012 IEP meeting (trans. 87). He further recalled that the parent expressed her concern of a 12:1:1 program in a community as her son was placed in a large school at P.S. 34 and requested a placement like as the concerns were reflected in his notes of the meeting; however, he opined that a self-contained classroom in an elementary school was appropriate for r and based his opinion on his experience teaching a self-contained classroom he taught autistic children with similar behaviors and learning needs as (Id.). He stated that the self-contained classroom was based on an elementary model and not a middle school model (trans. 88).

THE PARENT’S CASE

Ms. , School Psychologist at , Head of Head Teacher at testified in support of the parent’s claim for direct funding for her unilateral placement at the The parent is seeking approximately $48,500 for tuition for the academic year 2012-2013.

Dr. a board certified psychiatrist practicing in child psychiatry since 1985 and employed as a clinical professor of psychiatry at testified that she met in 2009 (trans. 103). She stated that his mother for an evaluation because he and had consistent with an and she wrote a report (Exh. 28) that recommended a placement in a specialized school for children with specialized needs such as (trans. 104). She opined that would be overwhelmed by the noise and the social demands in a mainstreamed setting and he required a setting to meet and his and meet his needs (trans. 106). Dr. she again on June 18, 2013, and found his behavior socially appropriate and noted reciprocal conversation (trans. 109). She opined required a small structured classroom with a high teacher to student ratio where his could be accommodated (trans. 110).

On cross Dr. stated that she was not paid to testify and that her understanding of a mainstream setting was a placement in a classroom with children who did not have a special education classification (trans. 112). She further stated that she recommended the because she felt that the could provide the individualized behavior approach that required. She recalled that a behavior approach was required to desensitize to certain types of food (trans. 114). She stated that there were twelve students classroom for the 2012-2013 school year, but she had not visited the (Id.).

, employed by the as a School Psychologist, testified she had a Master’s degree in special education and was a special education teacher in Massachusetts for thirteen years and a CSE chair for seventeen years (trans. 117). She stated that she visited the proposed placement with mother in the end of September 2012 (trans. 118). She stated that she was not allowed to view a classroom, but spoke with the assistance principal and classroom teacher (trans. 119). She stated that the classroom teacher for the proposed 12:1:1 class told her that the proposed class was made up of fourth to sixth graders with various classifications of , , and (trans. 120). She further stated that the teacher of the proposed class broke up the class into small reading groups which was led by herself and the paraprofessional (Id.). She opined that there was a considerable level of noise in the hall (trans. 122).

On cross, Ms. stated that there was only one fourth grade special 12:1:1 class according to the assistant principal of the proposed school at P (trans. 123). She further stated that the classroom teacher of the proposed class taught her class humanities and social studies and the other core subjects were taught by different certified special education teachers (trans. 125).

, a holder of a Master’s degree in special education and a Master’s degree in school psychology and a doctorate in psychology and NYS certifications in teaching and school psychology, employed by the as Head for one year and as Assistant Head of the , a high school, for the last seven years (trans. 129;139). He stated that he worked for the DOE for ten years as a NYC inclusion classroom teacher for a bridge class of fifth and sixth grade students and he worked for the DOE as a special education coordinator (trans. 130; 140;164). He explained that the 104 students with 60 staff members for children grades Kindergarten to eighth for special needs students with speech and language processing issues (trans. 136;181). He further explained that the students required intense modification for academic work and (trans. 132). He noted that the staffing ratio of the class was one head teacher, with a master’s degree in special education and one assistant teacher who possessed either a master’s degree or a bachelor’s degree and two paraprofessionals for a classroom of nine to twelve students (Id.). He explained that the paraprofessionals provided supervision or behavior management, but did not provide direct instruction (trans. 133). He recalled was in a class for the 2012-2013 school year with twelve students with two teachers and two paraprofessionals or 12:4 student to staff ratio (trans. 135). He further recalled that for ELA and was placed in a group of four to five students (Id.). He stressed that had on staff five psychologists, four SLT providers, four OT providers and three PT providers as well as teachers who specialized in science, music and art (trans. 136). He further stressed class had two teachers and the DOE 12:1:1 class had one teacher and a paraprofessional and class had two teachers, a Head teacher, a possessor of a Master’s degree in special education and an assistant teacher, who was in the process of obtaining a Master’s degree in special education and two paraprofessionals (trans. 143-144). He explained that one of the paraprofessionals in ’ s class in fourth grade for the 2012-2013 school year had a bachelor’s degree and one paraprofessional had a high school degree (trans. 146). He further explained the technology in class included an interactive computer screen and iPads to help (trans. 149). He described the sensory gyms for the students with regulation issues included compression equipment such as body socks which compressed the student’s muscles for three to five minutes to filter stimuli (trans. 152).He maintained that students transitioned from to NYC DOE public schools (trans. 153).

On cross Mr allowed that a paraprofessional in a special class may have as much education as the special education teacher (trans. 156). He explained that while required the Head teachers to have master’s degrees in special education, the Head teachers were not required be registered with NYC or NYS (trans. 168;172). He reviewed schedule (Exh. 54), and noted that the staffing ratio of 12:4 allowed the class to be broken down into small groups for ELA, math, science, social studies and technology. He noted the technology teacher, the yoga teacher and the art therapy teacher were NYC and NYS certified as were the OT and SLT providers (trans. 178;180). He further noted that the social skills class was co-taught by the one of the two school psychologists and the speech pathologist and two paraprofessionals (trans.179).

Ms. , the Head Teacher, a NYC certified special education teacher with a master’s degree in special education and a master’s degree in regular education, testified that she was ’s teacher for the 2010-2011 school year and the 2012-2013 school year (trans. 185;188). She stated that she taught math, ELA and writing to her students and supervised the three other adults in her class (trans. 186). She explained that the assistant teacher was a co-teacher and both she and the assistant teacher provide differentiated instruction to small groups in the class and to ensure that the education is individualized to each student (trans. 187). She noted that there were two paraprofessionals in the class and the paraprofessionals supported the students during specials and supported the students when there were push-in services from the counselor, speech pathologist and occupational therapist who came into the classroom. (Id.).

Ms. learner, who wanted to be part of the group (trans. 189). She noted that he was currently reading on with frequent repetition and with the use of graphic organizer had made gains in reading. She stated that words to (Id.). She maintained that during the majority of the received small group or individualized instruction. She stated that the assistant teacher and the two paraprofessionals repeated her lecture and rephrased questions to assist (trans. 191). She opined that without intense support with a large level of adult supervision would regress (trans. 192). She explained that received either push-out or pull- counseling throughout the day because he needed support in himself (Id.). She stated that received individual and (trans. 193). She opined that (trans. 194). She further opined required counseling to assist in problem solving skills with his peers and noted that him during lunch and recess to learn social strategies and support in playing games, taking turns and following rules (trans. 195). She described the that received included a brain gym, which was a relaxing time without lights. She noted that used a fitness tool such as putty for two to three minutes to regroup and received (Id.). She stressed that the technology in the class included iPads, a Smartboard, videos and PowerPoint slides and that technology was important because benefited from the multi-sensory approach and technology and manipulatives assisted in focusing (trans. 196). She described the behavior system included a green, yellow, orange and red card for each encouraged to follow the rules (trans. 197). She explained was completed in two minutes to teach the children (trans. 198). She noted that sensory breaks assisted to fix to earn points. She opined that was motivated by positive reinforcement (trans. 199). She further opined that transitioned well from each period due to the routine and the large amount of adults in the class (trans. 200).

On cross, Ms. stated that received and counseling individually and in a group both as a push-in and pull-out basis (trans. 207-209). She further stated that there were no pull-outs during ELA and math (trans. 213).

Ms. . testified that received early intervention when he was evaluated and found to be 33.3 percent delayed. She recalled that engaged in head banging and did not speak and had no eye contact (trans. 215). She stated that he from 18 months to age five and opined that progressed (trans. 216). She recalled that attended P.S. 36 in a class from 2008-2009 in Kindergarten and first grade during 2009-2010. She noted that ’s in first grade he again would and she calls because he was crying and she had personal knowledge of increased anxiety in as she volunteered in the classroom (trans. 218). She stated that she was referred to Dr. who also had an autistic child recommended the Cooke Center (trans. 220). She opined that from September 2010 to present and his behavior improved as (trans. 221). She opined that improved academically at . She stated that she never received a notice for an IEP meeting in May 2012, and attended the August 23, 2012 IEP meeting (trans. 222). She stated that she repeatedly expressed her concerns that the meeting continued without a representative from (Id.). She stressed that she told the August 23, 2012 IEP team that required a specific setting to progress and learn. She stated that she was open to a public school placement as her two older children were successfully educated in the DOE system (trans. 224). She recalled that she visited the proposed placement in September 2012 and again with Ms. in October 2012 (trans. 234). She stated that she was concerned that a large school like would cause regression and wrote a letter on November 14, 2012 (Exh. 46) to reject the placement (trans. 227;242). She stated that reacted negatively to loud noises and became anxious (trans. 228). She further stated that she for the 2012-2013 school year and would make partial payments for the tuition if required (trans. 229). She further stated that she received public assistance (Id.).

On cross the parent stated that she visited her son’s class at for the 2012-2013. She further stated that she was not aware that she could request another IEP meeting for in September 2012. She maintained that she signed the contract (Exh. 46) on August 22, 2012 because she did not receive a public school placement and that she considered the approximately $45,000 tuition a debt (trans. 241).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education.” See 20 U.S.C. Section 1400(d)(1)(A). Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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, 207 (1982). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir. 2002), quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement Id. at 130. The student's recommended program must also be provided in the least restrictive environment. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.550(b);^[8] NYCRR §200.6(a)(1). Also, a FAPE must be available to an eligible student “who needs special education and related services even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” See 34 C.F.R. § 300.101( c)(1);

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. See School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The parent’s attorney asserted many procedural flaws in the August 23, 2012 IEP: the meeting was not properly constituted because a representative from the did not attend despite the parent repeatedly requests to adjourn the meeting until an educational expert from the could participate; the classroom failed to address ’s needs and there were no related services (Exh. 47 2 and 3). The parent’s attorney stated that the proposed placement was not likely to cause progress as required under IDEA because required a greater adult to student ratio (Exh. IV at 5). I credit the testimony of the parent and the psychiatrist who observed negative and in the special class at . I credit the testimony of the psychiatrist that required a high teacher to student ratio.

The parent’s attorney asserted that testing was required prior to the August 23, 2012 IEP (Exh. IV at 4). The parent’s attorney asserted that in the minutes of the April 15, 2011 meeting, the team deemed necessary to consider ’s classification (Exh. 34 at

3) and to done before the August 23, 2012 IEP meeting. The parent’s attorney maintained that the lack of current testing coupled with the parent’s request to adjourn the August 23, 2012 IEP until a person knowledgeable about from the to participate rendered the August 23, 2012 IEP flawed (Id.).

It was uncontested that no staff member from participated in the August 23, 2012 IEP and CSE had no educator with personal knowledge of ’s educational needs. The parent’s counsel asserted CSE failed to conduct the necessary evaluations prior to eliminating related services (Exh. 47 at 4) and the DOE’s own evaluations (Exhs 50 at 2 and 51 at 4) indicated that related services were appropriate (Exh. IV at 7).

The parent’s attorney asserted that related services were eliminated from the August 23, 2012 IEP and every prior IEP (Exhs. 23 at 20; 26 at 15; 27 at 11 and 33 at 16) mandated related services of (Exh. IV at 6). The August 23, 2012 IEP contained related service goals, yet no related service was listed on the August 23, 2012 IEP. I credit the testimony of the district witness who stated CSE reviewed the related service progress reports to write related service goals (Exh. 43 at 6-7) and that the omission of related services was in error. The DOE attorney argued that the omission of the related services was a clerical error (Exh. V at 5). The parent’s attorney argued that the lack of related services could not be rehabilitated by internal documents (Exh. 59, 61 and 62) because there was no evidence that the parent received the internal documents (Exh. IV at 7). The parent’s attorney maintained “in R.E. v. N.Y.C. Dep’t of Education., 694 F.3d 167, 186 (2d Cir. 2012), the Second Circuit held that ‘“retrospective testimony”’ is barred from consideration. Id. at 186 ‘“(barring from consideration ‘testimony that certain services not listed in the IEP would actually have been provided to the child if he or she had attended the school the district’s proposed placement’” Id. at 185” (Exh. IV at 7). The parent’s attorney noted that the parent alerted CSE of the deficiency of the August 23, 2012 IEP by the November 14, 2012 rejection letter (Exh. 46) and by the February 22, 2013, due process request (Exh.47) and the CSE could have issued a new IEP to cure the defect of the omission of required related service and the CSE failed to do so (Exh. IV at 8). The parent’s attorney maintained that the under the “binding precedent of R.E., the DOE may not at the impartial hearing use retrospective testimony to rehabilitate IEP deficiencies of which it was already on notice” (Exh. IV at 8). I agree.

The parent’s attorney argued there that the DOE bears the burden to show that it can implement the IEP at an actual appropriate placement and noted a recent “precedent from the Southern District of New York explicitly applying R.E., has confirmed that “‘designing an appropriate IEP in accordance with the procedural and substantive requirements of the IDEA is only the first step.”’ D.C. ex rel. E.B. v. N.Y.C. Dep’t of Educ., 2013 U.S. Dist. LEXIS 42764, at *39 (S.D.N.Y. Mar. 26, 2013). Under R.E. and the cases applying that the decision, the DOE still must also implement the IEP. Id. at 39”(Exh. IV at 10).

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 (2d Cir. 2003). A procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. J.D. v. Pawlet School District, 224 F.3d 60 at 69 (2d Cir. 2000). The denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, (S.D.N.Y. 2005). The district representative asserted that the 12:1:1 classroom at the P.S. 129 was appropriate and that FAPE was provided as the IEP developed by CSE was “reasonably calculated to enable the child to obtain educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982)” (Exh. V at 3).

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007).

The parent’s attorney asserted that the uncontested with in a proposed class in a large community school was not appropriate. The parent’s attorney argued that the IEP team ignored the parent concerns for a small class size with a large adult to student ratio in a small environment (Exh. IV at 4). I credit the testimony of the district witness who stated that the related service goals were taken from the progress report, but I find the related service goals were developed without regard to ’s present level of performance and I find the goals were developed without the parent’s participation. I credit the parent’s testimony that she voiced her concerns that required a small class with a large adult to student ratio at the IEP meeting and strongly disagreed that the placement in a community school was appropriate for the 2012-2013 school year. I credit the testimony of the district representative who stated that the parent disagreed with the placement in a community school recommendation (trans. 96). I find that CSE ignored Dr. s recommendation of a small, structured, environment. I find the : program in a school was made by CSE staff and contrary to the evidence and parent’s concerns and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE.

I further find the lack of related therapy on the August 23, 2012 significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE. I find that the district failed to establish that the parent meaningfully participated the decision making process. I find the lack of CSE evaluations to support the in a community school significantly impeded the parent’s opportunity to participate in the decision making process.

Therefore, I find the district failed to establish that FAPE was provided during the 2012-2013 school year.

The parent has the burden of proving that the unilateral placement was appropriate during the 2012-2013 school year. In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs. Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007).

The Second Circuit held that the private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). The issue of the private school's appropriateness depends on whether Cooke Center was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459

F. 3d at 364. Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement Frank G., 459 F. 3d at 365. The parent must provide an appropriate program not an ideal program. C.B v. N.Y. City Dep’t of Educ., No 02 CS 4620(CLP), 2005 WL 1388964 at *24 (E.D.N.Y. June 2005). The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115.

Testimony by the parent and the staff at and evidence submitted by the parent established that the parent has met her burden regarding the unilateral placement of .I find his small class setting with a student to staff ratio of addressed his sensory and . I found credible testimony of regarding the technology in the ’s class included an interactive computer screen, iPads and a technology person worked inside the classroom to develop projects or activities to enhance fine motor production or speech production and PowerPoint presentations were used to assist in executive functioning deficits (trans. 149). I credit the Head teacher’s testimony regarding the appropriateness of multi-sensory techniques to teach reading and math and social skills to and I find that benefited from the technology in his class which included iPads, a Smartboard, videos and PowerPoint slides. I credit the Head teacher’s testimony that benefited from the multi-sensory approach and technology and manipulatives assisted in focusing (trans. 196). I find credible the testimony of the Head teacher regarding the use of technology to address ’s sensory deficits (trans. 197). I find that direct instruction from teacher and repetition and rephrasing from paraprofessionals allowed to focus and that progressed in his reading.

I credit the testimony of the and I find progressed emotionally as the routine and the number of large adults in the classroom provided reinforcement and allowed to focus. I find that ’s improved by the push-in and pull-out services of the speech pathologist and school psychologists. I find the program curriculum was modified according to his needs and I find credible testimony that he improved academically. I credit the testimony of the testimony of the Head teacher and I find that was appropriately grouped with other students who struggle with similar issues. I find was placed with students with similar deficits. I find individualized instruction was provided in academic areas. I find his learning deficits were addressed in the Cooke Center that provided unique educational instruction that was specifically designed to meet his needs for repetition, refocusing and sensory breaks. I find made meaningful progress in his regulation issues by the sensory breaks and the brain gym as well as the compression equipment such as body socks assisted in his regulation (trans. 152). I find progressed in his language and in his ability to communicate with his peers by the modeling of reciprocal conversation and articulation. I find progressed in his behavior by the color-coded positive behavior system, which included sensory breaks and that ’s behavior improved as he enjoyed earning points for positive behavior (Id.). I find that met ’s academic, social, emotional, language and sensory needs.

I find that the provided with the related services of counseling once a week for thirty minutes in a group of three; OT twice a week for thirty to forty minutes per session in a group of five to six and a week for thirty minutes in a group of two to three (Exh 49). I credit the testimony of the who maintained that was necessary for reciprocal conversation with peers and articulation (trans. 194) and I credit her testimony regarding the progress made in his articulation and conversation. I credit the testimony of the Head teacher who maintained that required counseling to assist in problem solving skills with his peers and noted that supported him during lunch and recess to learn social strategies and support in playing games, taking turns and following rules (trans. 195). I credit the testimony of the Head teacher who maintained that improved his fine motor skills in the weekly handwriting class and I credit the testimony of the Head teacher who maintained that received push-in individual OT and group OT to reduce anxiety and assist in focusing (trans. 193).

The DOE attorney asserted the was not an appropriate placement because for because the did not provide educational instruction in the least restrictive environment (Exh. V at 9) I find that the parent’s placement may not be held to certain requirements that districts are held such as teacher licenses or LRE under Frank G. and Gagliardo and that the unilateral placement is “not perfection”’. M.S.. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000) Accordingly, I find that LRE was not required to render the Cooke Center appropriate. Therefore, I find the parent provided ample evidence to establish the appropriateness of the Cooke Center and I find the parent established the second prong of the Burlington/Carter analysis.

The parent requested direct funding to Cooke Center of $48,500 for the 20122013 school year. Direct retroactive payment is an appropriate remedy in proceedings under IDEA. Mr. and Mrs. A. v. N.Y.C. Dept. of Educ. 769 F.Supp. 2d 403, 406(S.D.N.Y. 2011 (IHO Exh. III at 20). I find the parent established that she was financial unable to pay as she received public assistance. I find the parent cooperated with the DOE. I find the parent is entitled to an Order directing the DOE to pay for the 20122013 tuition by issuing direct payment. I find when the parent has satisfied each of the Burlington/Carter factors, a court has broad discretion to "grant such relief as . . . is appropriate" including direct payment of private school tuition. Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). Further, a court may require a school district to pay a private school directly and prospectively for special education. 20 U.S.C. 1415[i][2][C][iii].

The DOE attorney argued that parent failed to demonstrate she had a legal obligation to pay the tuition for the 2012-2013 school year (Exh. V at 10). The parent’s attorney argued that the parent was obligated to pay the tuition for the 2012-2013 school year (Exh. IV at 22). The parent’s attorney asserted that the fact that parent signed the contract before visited the proposed public school placement did not “weight against retroactive direct tuition payment. See M.F. v. N.Y.C. Dep’t of Educ., 2012 WL 2435031 at *12 (S.D.N.Y. June 4, 2013).” (Id.). The parent’s attorney asserted that under the contract (Exh. 63) the parent was obligated to pay the tuition did not assume any risk in the event that the parent did not receive direct funding (Exh. IV at 23). I agree and I find the parent had a legal obligation to pay. I further find that the parent provided detailed and uncontradicted information as to her lack of income and financial resources and I find the parent lacked the financial resources to tuition for the 2012-2013 school year.

Equity may only favor a school district if the parents failed to cooperate with the CSE process or frustrated the placement by the school district N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y. March 31, 2009) (IHO Exh. IV at 20). I note that the parent established full cooperation by her August 21, 2012 letter to CSE alerting CSE that there was no IEP or placement (Exh. 43) and her openness to an appropriate placement. Tuition reimbursement to be reduced or denied if the parent

(1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to continue to enroll at the Cooke Center for the 2012-2013 school year when no IEP or placement was offered (Exh. 43) and I find the parent informed the CSE that she intended to continue to enroll at as no appropriate placement at was offered (Exh 46) after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability.

ORDER

I order that the DOE shall be directed to remit payment in the amount of $48,500 within thirty days of the submission of proof of attendance. Dated: July 11, 2013

_____________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA: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 Disabilities Education Act.

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 24, 2013

1-22 Omitted.

23 2008/2009 IEP, 4/8/08, 22 pp. Joint

24 2008/2009 IEP, 4/14/08, 17 pp. Joint

25 observation checklist, undated, 2 pp. Joint

26 2009/2010 IEP, 4/7/09, 16 pp. Joint

27 2010/2011 IEP, 3/15/10, 13 pp. Joint

28 Evaluation, 9/10, 2 pp. Joint

30 Application, 2010/2011, 7 pp. Joint

31 Progress Report, 11/10, 19 pp. Joint

32 School Progress Report, 3/11, 23 pp. Joint

33 2011/2012 IEP, 4/14/11, 16 pp. Joint

34 Meeting minutes, 4/15/11, 4 pp. Joint

35 2011 FNR, 6/20/11, 2 pp. Joint

36 School Progress Report, 11/11, 13 pp. Joint

37 2011 FNR Rejection Letter, 11/10/11, 2 pp. Joint

38 2012 Impartial hearing request, 2/23/12, 7 pp. Joint

39 School Progress Report, 3/12, 20 pp. Joint

40 School Progress Report, 6/12, 21 pp. Joint

41 Schedule, 2011/2012 year, 1 p. Joint

42 2012 ten-day notice letter, 8/21/12, 3 pp. Joint

43 IEP 2012/2013 school year, 8/23/12, 16 pp. Joint

44 2012 FNR Notice, 8/28/12, 1 p. Joint

45 Progress Report, 11/12, 16 pp. Joint

46 2012 FNR Rejection Letter,11/14/12, 6 pp. Joint

47 2013 Impartial Hearing Request, 2/22/13, 10 pp. Joint

48 Psycho-educational Evaluation Report, 2/27/13, 10 pp. Joint

49 Progress Report,3/13, 23 pp. Joint

50 Evaluation, 3/1/13, 6 pp. Joint

51 Occupational Therapy Evaluation, 3/12/13, 11 pp. Joint

52 Omitted

53 Schedule, undated, 1 p. Joint

54 Program Description, Undated, 4 pp. Joint

55 Omitted

56 Financial documents, various dates, 22 pp. Joint

57 Notice of IEP meeting, 8/16/12, 4 pp. Joint

58 Omitted

59 Review Agenda, 8/23/12, 1 p. Joint

60 Meeting notes, undated, 2 pp. Joint

62 EPC/CSE Conference Result Form, Undated, 1 p. Joint

63 IEP, 8/23/2013, 13 pp. Joint

64 Contract, 8/22/12, 2 pp. Joint

I Extension Decision, 4/9/13, 1 p. IHO

II Extension Decision 5/24/13, 1 p. IHO

POST HEARING SUBMISSIONS

III Extension Decision, 6/19/13, 1 p. IHO

IV Parent’s Closing Statement, 6/28/13, 29 pp. IHO

V District’s Closing Statement, 6/28/13, 13 pp. IHO

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Footnotes

[8] NYCRR § 200.4(c)(5). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.32(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special educational services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law §4404[1][c].