Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 30, 2013

June 6, 2013

June 11, 2013

Actual Record Closed Date: July 26, 2013

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 30, 2013

Esq. Attorney for Parent — Student

Esq. Attorney for Parent — Student

Social Worker, CSE 7 (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 6, 2013

Esq. Attorney for Parent — Student

Esq. Attorney for Parent — Student

Parents

Dr. Chairperson Designee — District

School Psychologist, CSE (via telephone) — District

Assistant Principal, (via — District

telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 11, 2013

Esq. Attorney for Parent — Student

Esq. Attorney for Parent — Student

Teacher, (via telephone) — Student

Dr. Psychologist (via telephone) — Student

Dr. Chairperson Designee — District

INTRODUCTION

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by , the Parent (“Parent”) on behalf of the student (“Student”), through her attorneys, Patterson, , LLP by filing a Due Process Complaint dated March 25, 2013.

The Parent is alleging that her daughter, ., was denied a free and appropriate public education (“FAPE”) for the 2012-13school year and is seeking tuition for her unilateral placement at ”) for said year.

There were three (3) days of hearings in this matter. Hearings were conducted on May 30, June 6, and June 11, 2013. Extensions were granted in this case making the final compliance date August 7, 2013. A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer submitted exhibits.

BACKGROUND

This case involves a fifteen (15) year old student. During the 2012-13school year, where the Student was unilaterally placed by the Parent.

With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on May 24, 2012. Pursuant to the May 24thIEP, A.J. was placed in a 15:1 class for all subjects and no related services were offered. P-S; D-1.

The District issued a Final Notice of Recommendation dated August 13, 2012. P-

V. It stated that the offered school shall be special NY. The Parent sent a letter to the District on August 22, 2011 indicating that she was unable to visit the program since school was closed and would visit the program in the fall. P-C. She stated that in the interim, they would continue ’s placement at and will seek tuition payment for the placement. P-C. The Parent then visited the program when school began and sent a letter to the District on October 22, 2012 rejecting the IEP placement and advising the District that she would keep for the 2012-13 school year. P-O.

The Parent entered into an Enrollment Contract for on September 6, 2012. PQ.

The Parent filed a Due Process Complaint on March 25, 2012. P.A. I was appointed as an Impartial Hearing Officer on March 26, 2013.

POSITION OF THE PARTIES

District’s Case

The District called two (2) witnesses, and placed two (2) documents in evidence. D-1 – D-2.

The first witness for the District was . She acquired a Master’s Degree in Education from Brooklyn College along with credits beyond Master’s for state certification as a school psychologist. She is currently employed by the New York State Department of Education and assigned to Committee on Special Education (CSE) 7 in Brooklyn. Tr. 48. Ms. is part of a team that tests students in terms of their cognitive and academic levels of functioning. Her team then reviews the testing with parents, providing them with reports based on their findings, participates in IEP conferences, annual reviews, triennials, initials, and collaborates in the process of writing IEPs. Tr. 48.

In the process of setting up an IEP meeting, Ms. recognizes that it is a team member’s responsibility to send out the pre-printed SEIS notice of an upcoming IEP meeting to the parents, notifying them of the date and time of the meeting as well as informing them that if they are not able to attend the meeting in person, they are welcome to participate over the phone. Tr. 49. The letter also indicates that they can bring other parties to the meeting and whatever documentation is pertinent. The team also notifies the school so that they can arrange to have a teacher that knows the student participate in the IEP meeting by phone. Tr. 50. If the child is in private school, they also ask for teacher reports and progress reports and if related services are provided, they ask for goals from the providers. Tr. 51.

On the May 24th 2012, a CSE meeting was held and the following parties were present: Dean Bevilacqua, one of the teachers at , an IEP teacher at CSE ; the Parent; Ms. , District representative and school psychologist; and Ms. , parent member. Tr. 52-

53. As stated by Ms. there was not a special education teacher available that day, so Mr. filled both the roles of special education teacher as well as a global studies teacher. Ms. , however, didn’t recall what specific licenses he held. Tr. 56.

As .’s teacher, Mr. was asked to report on .’s academic progress over the course of the year. Although he does not represent all of her subjects, Mr. was able to report on .’s reading and writing abilities and how that information is pertinent to her functioning in his classroom. Tr. 57. In terms of school development, Ms. estified that had a tendency to isolate herself and had few friends. Tr. 57.

When asked about .’s specific management needs, Ms. noted that the CSE determined that best learning environment for . would be a ten-month program in a small self-contained classroom in a community school. This recommendation was based on ’s level of functioning in the classroom and parental concerns along with the Parent’s desire for a public school placement for her daughter. When asked about the information available at the time of the annual review meeting and more specifically about recorded reading and math scores, Ms. stated that the school did not have formal levels because they do not do any standardized testing on their students. Tr. 60. Therefore, the IEP was based entirely on estimates made by the teacher. Tr. 60.

Ms. stated that the first annual goal on the IEP is an ELA goal regarding reading comprehension and the hope is that will improve by one grade level within one year’s time. Although this goal was not discussed at the CSE review meeting when Mr. was present, Ms. explained that her team always lets the school, as well as the parent, know that her team will be developing academic goals based on the information provided by the school at the meeting. Tr. 61. She also said that if the student should need any related services, Ms. and her team will make sure to address those services in the annual goals. Tr. 62. The second annual goal addresses the Student’s ability to better understand what she is reading and addresses her academic abilities. Tr. 62. The third annual goal is meant to address math word problem solving. The last goal addresses writing skills. Ms. believes that these goals are consistent with ’s academic abilities as discussed on page eight of the IEP and that said goals can be addressed by a special education classroom teacher.

Ms. stated that the CSE recommended a ten-month community school program in a class and she felt this was appropriate for The Student was classified as learning disabled and Ms. did not think there was any disagreement with her disability. Ms. stated that she didn’t know what documents were reviewed at the IEP meeting. Tr. 69. She also stated that a class is usually composed of students with different types of , . She said that “it is a classroom of diploma bound, fairly well behaved children who do not harbor any social or emotional difficulties but who and require instruction in a small special education classroom”. Tr. 69-70.

On cross examination, Ms. stated that she conducted a psycho-educational evaluation of . several months after the CSE meeting but did not know the Student at the CSE meeting. Tr. 70. She stated that she conducts hundreds of IEP meetings a year. Tr.

71. She said that there was no transition plan in the May IEP and this was an oversight on her part. Tr. 71. She stated that it should have been in the IEP. Tr. 71.

In reviewing the Services Evaluation from March 2009, Ms. LaRocca said it was not available to the CSE at their May 2012 IEP meeting. Tr. 77, D-F. Ms. LaRocca stated that there were no specific goals on the IEP that addressed executive functioning difficulties specific to the processing problems. Tr. 82.

Ms. testified that she was at the November 21, 2012 IEP meeting and the mother was at the meeting by phone. Tr. 88. She stated that the meeting was help “to give the mother the results [of ] and to produce a new IEP though not a new placement, but an IEP with updated cognitive and academic levels of functioning. Tr. 89. No one from was available nor was the Student. Tr. 90. In addition, the transition plan was discussed but . was not at the meeting. In this regard, there is no mention of interests and strengths regarding what she wants to do after high school. Tr. 90. In addition, Ms. testified that in her evaluation, under “test results” it states that a brief vocational interview was conducted but none of vocational interests were mentioned in the IEP. Tr. 92.

On redirect, Ms. testified that in September and October of 2012, she conducted a evaluation and did cognitive evaluations and under the WISC. Tr. 94. Her grade equivalencies on her achievement testing ranged from a The next witness was . She has a Master’s Degree in Multicultural Education and another in School Leadership. Tr. 100. She has certification as a school building leader and as an Earth Science teacher, grades 7-12. Tr. 100. She works for the Department of Education (DOE) and is employed at the as an assistant principal for instructional support. Tr. 101. She is responsible for overseeing the preparation of IEPs, conducting meetings with parents regarding goals and transition from middle school to high school and also when leaving high school, observing classes, dealing with discipline issues, etc. Tr. 100.

At School, they have and ICT classes. They also have SETTS and for related services they offer . Tr. 102. There are approximately 1600 students in the school; 267 special education students. Tr. 103. Students in a class are in departmentalized classes so they move around with the general population. Tr. 104. There are about eight tenth grade classes. Tr. 104.

When a student comes into the school, the guidance counselor sets up the student’s schedule. Tr. 108. The students are not placed in classes based on their reading scores; they are placed in classes based on the amount of kids in the class and then the teacher will review the IEP and differentiate instruction. Tr. 107. They have different sections of math, ELA, social studies and science and will be placed based on how it fits into the schedule with their electives. Tr. 109. Electives are not ; in these classes, they are mixed with the general population. Tr. 110. They need seven electives to graduate. Tr. 112. Ms. testified that if a child wished, he/she could meet with a guidance counselor, psychologist or social worker. Tr. 113.

Ms. testified that she does not recall meeting with Parent. Tr. 116. Generally, if a Parent wants to visit the program, they speak to the parent coordinator or her. Tr.

116. If they ask for a class profile, it can be provided. Tr. 117. She also stated that they are able to address goals on IEPs and they are able to address test modifications. Tr. 120.

On cross examination, Ms. stated that she was not aware how many students in tenth grade were in a class. Tr. 122. When looking at the handwritten document entitled ‘Profile of Classes’ (P-N), Ms. stated that it was her handwriting. She stated that this would apply to the 15:1 classes as of September 2012 when the Parent toured the school. Tr. 126. The levels on the class profile are based on learning levels not grade levels as a result of their junior high school test scores and includes levels one through four. Tr. 127. Level . Tr. 129. Ms. Whittingham stated, however, that they place students in classes based on the number of kids not based on their levels. Tr. 127. The age range in tenth grade is 14 to 16; there are no 17 or 18 year olds in the 15:1 class but they are in the school in alternate assessment classes. Tr. 128.

Ms. testified that all teachers are instructed to give a Gardner test initially to all of their students and this will show the type of learner they are. Tr. 130. She stated that there are students throughout the school that have behavioral issues including in the 15:1 class. Tr. 131. She said approximately 25 percent of students with disabilities graduate from . Tr. 132. Ms. Whittingham indicated that she was not aware of the recent school state report card that showed that only 14 percent graduate from high school. Tr. 132. Parent’s Case The Parent called three (3) witnesses, , and the Parent, and placed 24 documents in evidence. P-A– P-X.

The first witness for the Parent was . He is employed at and has been there for 15 years. Tr. 144. He has been a school psychologist for 19 years and is certified as a school psychologist and a special education teacher in New York State. Tr. 143. Presently, , he works as a psychologist and a special education teacher and is also part of the school based support team. Tr. 144. He teaches certain special education classes and also teaches some courses in inclusion mainstream classes. Tr. 147. The school support team meets every week and per diem as needed to discuss different children’s needs but also to coordinate with other staff members to brainstorm about various techniques, coordinate with related service providers and teachers, etc. Tr. 145.

has a heterogeneous population including general education students and special education students with different programs. They have program which is a part of . Tr. 146. They also have a program called for students who want to take more mainstream classes but need the special education supports. Tr. 147. There are also opportunities to have a mixed program with mainstream or inclusion classes and selfcontained classes. Tr. 148. There are approximately 210 students in the school and on third of them have special needs. Tr. 150.

is for students with learning disabilities and/or . Tr. 150-151. The students in the participate in standardized testing and take the Regent examinations. Tr. 151. He stated that there are no children with or behavioral needs in the program. Tr. 151. The approach used to teach the students in is multimodal, child centered and includes different forms of instruction including graphic organizers, hands on instruction, organizational binders, etc. Some students in take regent classes like biology over a two year period so that it’s slower paced and scaffolded. Tr. 152. The students are grouped within a grade or two of each other in terms of functioning. Tr. 153. At the beginning of the year for a course like history, they would look at the student’s reading levels and place them with students on a similar level. Tr. 154. If they have an area of deficit that needs more support, they would be put in a smaller group. Tr. 153.

Ms. testified that the average graduation rate at is in the high nineties. Tr. 157. The school gives assistance to students with respect to post-secondary planning from the beginning. Tr. 157. Mr. when she started . He presently is part of the school based support team and pushes into her contemporary issues class. Tr. 159. He has worked directly with her in the class, she has been discussed at the weekly meetings, and he also coordinates with her history teacher. Tr. 159. In English, there are 11 or 12 students; in biology 12 or 13; in history, 11; in math, five or six; in writer’s workshop, 14 students with two teachers; in art, six or seven students; and in planning and organization, there are 12 or 13 students. Contemporary issues is the support class for history and reviews a lot of the Regent’s prep work. Tr. 161. Although . passed her algebra Regents last year, she will be taking it again to achieve a better grade and also preparing for the geometry Regents. Tr. 163. She will also be taking the biology Regents since it’s the end of a two year course. Tr. 163. Mr. indicated that she is taking the number of Regents required for a Regents diploma. Tr. 163. He is not sure if all the teachers have their certification, however, he knows that some do and that they are under the supervision of the director of the program, Dr. and are supported by the school based support team. Tr. 165.

Mr. stated that every has a Planning and Organization class at the end of the day where they meet with their homeroom teacher. They utilize a binder system with folders and a planner and the students are trained in organizing themselves. Tr. 165. All the teachers stay until 3:30 so the students can go to their subject teachers for additional help. Tr. 166.

Mr. testified that has made progress between last year and this year. He observed her using brain storming techniques and generated an opening paragraph much quicker than she had been able to do last year. Tr. 167. She still is struggling with syntax and she is a phonetic speller but there has been growth. Tr. 167. She has also progressed socially, she has made friends and is in the anime club. Tr. 168.

After reviewing her evaluations, Mr. indicated that her weaknesses lie in her functioning deficits and her information. Tr. 168. She is a and benefits from using multisensory techniques like using the Smart Board and graphic organizers. Tr. 169. They are working on building her sigh word vocabulary to help with her reading fluency and they work on how to approach multisyllabic terms to improve her reading style. Tr. 169.

Mr. stated that required “very small classes, very individualized, multimodal sensory with lots of scaffolding of tasks, breaking them down into smaller component parts where she can get lots of individualized attention”. She is very self-conscious about how she appears in a group setting, however, she has started to participate more than last year. Tr. 170. He believes that in order to do so, she needs to be in an environment of her peers that she feels she is connected to and is on a similar academic and intellectual level with. Tr. 170. He thinks she receives counseling at . Tr. 170. He believes that the program is appropriate for A.J. Tr. 171.

Mr. reviewed the goals and indicated that they seem a bit generic and not specific to A.J. Tr. 174. He stated the goals do not specifically address her issues and goals don’t indicate how they should be implemented. Tr. 176. He stated that at the May 24, 2012 IEP meeting goals were not really discussed. Tr. 175.

In classes, the number of students range from five to 14 and all of the students have special needs. Tr. 178. Her smallest classes are writing, history, the support class for history, the writer’s workshop and math. In contemporary issues, he is in there two out of three times a week, therefore it is a 14:2 ratio. Tr. 179.

With respect to the November 2012 IEP, no one from participated because it was the day before Thanksgiving and school wasn’t in session. Tr. 180. Mr. stated that was never informed when the IEP meeting was to be held. Tr. 181. Looking at the November IEP, he believes the goals are the same as the goals on the May IEP. Tr. 182; P-S; P-T. He said the goals were not individualized for and a lot of growth happened between May and November. Tr. 182.

On cross examination, Mr stated that before working at Bay Ridge Prep, he was at Adelphi Academy. Tr. 191. Dr. was the headmaster and he is now headmaster of the middle school . Tr. 192. Mr. s working under Dr. who is the headmaster of the high school and previously worked at Tr. 192. This year he sees . as a result of his involvement with her Contemporary Issues class. Tr. 194. He stated that the classes at are inclusion classes. Tr. 196. He stated that there are different levels of classes i.e. modified English. A mainstream class would be at a regular pace with higher level material. Tr. 198.

Mr. stated that the school day goes from 8:30 to 2:45. Modified English is taught by Ms. and there are 11 or 12 students in the class. Tr. 201. Modified biology is taught by Ms. and there are 12 or 13 students in class. Tr. 203. The next class is modified history and there are 11 students in the class. Tr. 204. Modified math is taught by Dr. , there are five or six students in the class. Tr. 207. In modified Spanish, there are 12 or 13 students and it is taught by Ms. Tr. 210. Writer’s Workshop is taught by Ms. , a special education teacher, and Ms. a speech pathologist and there are 14 students in the class. Tr. 211. Mr. believes that is a year or two behind in terms of her expressive writing. Tr. 212. There are eight students in art and it is taught by Mr. Tr. 213. There are approximately 10 or 11 students in homeroom and her teacher is Ms. Tr. 214.

Mr. recalls speaking about ’s phonetic spelling and difficulty with synthesizing sentences at the May 24th IEP meeting. Tr. 223. He said the meeting took 10-15 minutes. He stated that he believes the testing accommodations were appropriate and they were all implemented by . Tr. 230. He indicated that the reading level on the IEP appeared to be a little low. Tr. 231. He would have placed her in the middle Tr. 231. He stated that at the meeting he may have said she was definitely a year behind but not three grades behind. Tr. 232.

The next witness was Dr. . He is currently employed . P-F. He is the clinical director. Tr. 242. He works with school aged children ages four to 20 with a broad range of issues, issues. Tr. 242. He has done this for approximately 13 years and has been at the since 2005. Tr. 243; Tr. 244. He has a doctorate in psychology.

Dr. is familiar with because he observed her testing and supervised the case, and met with Dr. to discuss the diagnostic impressions and recommendations. Tr. 246. Based on the evaluation that the Center did, Dr. stated that . has some strengths in terms of reasoning skills, however, she has weaknesses in executive functioning, working memory, processing speed, planning and problem solving skills. Tr. 250. He stated that “this also was consistent with some concept formation and abstraction ability that she had difficulty with and academically she had problems in math. Tr. 250. He indicated that her math was very poor and that she also had difficulty with reading comprehension and reading speed, although her decoding skills were age appropriate. Tr. 251.

Dr. described executive function as “an umbrella term that represents goal oriented thoughts and behavior…so planning for a task, sustaining attention, managing multiple bits of information and working quickly”. Tr. 251. He stated that this is important because if a student is in a classroom and has difficulty managing information effectively, then they can fall behind and lose track of what’s being said in the classroom. Tr. 252. He also indicated that she experiences mood and they felt that that she’s experiencing is connected to her academic performance. Tr. 252. Dr. ’s team recommended that she continue in her current school program where she is receiving highly specialized individualized instruction in a small, supportive and structured environment. They felt that it was important for her to stay challenged academically but be in a small nurturing environment due to her demonstrated internalizing symptoms. Tr.

253. They also suggested additional time and for her to continues to work oh graphomotor control and to receive psychotherapy. Tr. 250; P-F.

Dr. testified that children who are typically children who while children with internalizing demonstrate . Tr. 258. He stated that . would not do well in an environment with children with since they would need different classroom settings. Tr. 258; Tr. 260. With respect to making progress in math, Dr. stated that needs a small individualized classroom again that can present the material in a way…that is level with her conceptual abilities, her reasoning abilities but in a way that teaches the specific procedures in a way that sort of builds her from the bottom up in terms of learning the basics and then build up the foundations that she has.” Tr. 260-261.

On cross examination, Dr. stated that first draft of the report was created by the fellow and then he revised it and then they met and co-edited it together. Tr. 261. He stated that he has worked with students that went to and spoke to the school on one or two occasions but never visited the school. Tr. 262. Dr. stated that in the report it indicates that in connection with , she meets with the . Tr. 265.

The last witness was the Parent, she stated that is 15 years old and in the tenth grade. She described . as very and talented in the arts and has a learning disability. Tr.

269. She attended for public school through fifth grade. Tr. 270. The Parent noticed that since she was having difficulty with writing, spelling and math. Tr. 270. In second grade, the Parent had her evaluated and she shared the evaluation with the school and the District. Tr. 271. She was then given pull-out services, and she was placed in an ICT class. Tr. 271. She said she had difficulty in third, fourth and fifth grade and would Tr. 272.

The Parent testified that she was first enrolled in private school in fifth grade. Tr.

273. She started at , however, needed to change because it was only up to sixth grade. Tr. 274. After that she was enrolled at . Tr. 274. The CSE convened and developed an IEP in May 2012. Tr. 275. She attended the meeting and told the CSE the importance of placing . in a small classroom with students who didn’t have discipline problems. Tr.

276. She was recommended for a 15:1 class. The Parent did not think it would be appropriated for classes . Tr. 276. She also did not think the goals on the IEP were specific to and there was no mention of organization which is one of her biggest deficits. Tr. 277. She testified that no post high school planning was discussed at the IEP meeting. Tr. 278. The last time the Student was evaluated prior to the meeting was in 2009 and it was a private evaluation. Tr. 279. in October of 2012, and she was contacted in November of 2012. Tr. 279. She stated that they called her the day of the meeting and asked her if she was coming and then proceeded to conduct a CSE meeting to review the results of the psycho-educational evaluation on that day by phone. Tr. 279. They said they would update the IEP but she thinks they kept everything basically the same and no changes were made to placement or related services. Tr. 280.

The Parent testified that . has been for many years but is not sure if it was discussed at the meetings. Tr. 281. The Parent stated that she was not notified before the date of the November meeting and was not given an opportunity to reschedule the meeting. Tr. 282. No one from was at the meeting. Tr. 282. She received a phone message and they basically had the meeting when she called back. Tr. 282; P-T. There was no discussion at the November 19, 2012 IEP meeting about her transition and goals for her transition. Tr. 284.

For the 2012-13 school year, School and she was notified of this in the summer of 2012. Tr. 286. She was surprised with this placement since she had received the same placement the year before and an impartial hearing was conducted and they received tuition reimbursement. Tr. 286. This placement is in her neighborhood and she called to visit the school but was advised to return in September. Tr. 287. She set up an appointment with Ms. Tr. 287. She sent a ten day notice to the District on August 22, 2012 through her attorneys. Tr. 287; P-C. She then visited the school on the second day of school and saw two 15:1 classrooms. Tr. 288. Ms. gave her the tour at that time. In the first class, there was one teacher and one students and the teacher said that the other students hadn’t come to school that day. Tr. 289. In the other class there were approximately ten students and one teacher, and the teacher gave the students an assignment and they didn’t appear to be engaged. Tr. 290. Ms. gave the Parent a profile of the classroom that . would be in. P-N; Tr. 290. Her concern was with the emotionally disabled children in the class and her understanding of what the levels were for reading and math. Tr. 291. She thought that these were grade levels one to four and Ms. did not explain it. Tr. 291. In the past, when she received class profiles from this school, they always indicated grade levels. Tr. 291. The Parent testified that she’s not on the grade levels listed and as a result she would not be able to progress to what she’s capable of. She also felt that a class with children would be distracting and that she “would just and not really be able ”. Tr. 292. She also felt that the school environment itself would be difficult since it’s a very large school with a heavy police presence. Tr. 292. She felt that at she would Tr. 293. On the school’s report card, the Parent testified that the graduation rate for students with disabilities is 14 percent. Tr. 295; P-K. She feels that this would not be the right environment for her due to her struggles with math, comprehension and writing. Tr. 295. The Progress Report Overview indicated that the grades for the Student for overall progress, for Student performance, school environment and college and career readiness were ‘F’. Tr. 296. The Parent let the District know that she was rejecting the school by a letter dated October 22, 2012. Tr. 297; P-O.

The Parent testified that the Student has made progress at in her attitude in wanting to go to school. Tr. 298. In addition, she did well on her report card and she passed . Tr. 299. Her Organization and Planning class keeps her focused and organized and on track. Tr. 299. Socially, she started out very shy this year but has made a couple of friends and feels more confident and is making progress with hanging out with other people. Tr. 300. She believes the progress she made socially helps with her academics because she makes more of an effort to be part of the class. Tr. 300. She now raises her hand to participate and asks for help if she needs it. Tr. 300. The Parent believes that Bay Ridge Prep is an appropriate placement she’s doing well and she has progressed and would need the same type of environment on order to continue to succeed. Tr. 301; Tr. 302.

The Parent indicated that she owes $38,675 for .’s tuition and her family income is $30,000. Tr. 302. She stated that based on her income and two students at , she can not afford to pay the tuition. She did not make a down payment since the school did not require it. Tr. 303. She stated that she understands that if the District doesn’t pay the tuition, she will be responsible for it. Tr. 303.

On cross examination, the Parent stated that she voiced her concerns at the May 2012 IEP meeting. Tr. 305. She agreed that a small placement was necessary and that no related services were needed. Tr. 306. The Parent indicated that she was not offered a or or an ICT class. Tr. 308. She stated that she was told that this is high school and that the classroom size they have for her is . Tr. 308. The Parent testified that they said that that wasn’t the only option, but according to what needed, that would be the best option for what they offered. Tr. 309. She didn’t object because she stated that she didn’t really have a choice. Tr. 309. She said that she wasn’t verbally told of other options at the meeting. Tr. 310.

The Parent testified that she did not make a determination as to . would go for the 2012-13 school year until the end of August, beginning of September. Tr. 311. She stated that she told she was coming back on the first day of school. Tr. 313. She visited on the second day of school, September 7. Tr. 313. She stayed there for between 30 minutes and an hour. Tr. 313. The reasons she did not think the school was appropriate for . included the grades of the school, the fact that it wasn’t considered appropriate the previous year, etc. Tr. 314.

On redirect, the Parent stated that she is not opposed to a public school for and visited with an open mind. Tr. 317

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue I-Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

I have reviewed all of the testimonial and documentary evidence in this matter and find that the District has failed to sustain its burden.

First, in ’s IEP, the CSE failed to make any transition plans for . and Ms. specifically stated that this was an oversight on her part and should have been addressed. Tr. 71.

The CSE is required to develop an IEP that accurately reflects the student's special education needs (34 C.F.R. § 300.306[c][2]; 8 NYCRR 200.4[d][2]). Incumbent with that duty is the mandate that the IEP "shall report the present levels of academic achievement and the functional performance and indicate the individual needs of the student." (8 NYCRR 200.4[d][2]; see 34 C.F.R. § 300.320 [a][1]).Based on the testimony of Ms. , it is not clear what evaluative data was used at the CSE meeting since she couldn’t recall what reports and evaluations were reviewed at the CSE.Tr. 69. It is clear from reviewing the IEP itself that it does not adequately address ’s Present Levels of Performance and Individual Needs. D-1; P-S. Mr. stated that lie in her functioning . Tr. 169. He also said that she is a techniques and that she needs work on building her sight word vocabulary to help with reading fluency; and he emphasized that she has as well as individualized attention. Tr. 176. Although both evaluations were done after the May CSE meeting, it is clear in both Dr. s report and Ms. evaluation that ’s math skills were poor, and had been for a long time, yet no mention was made of this on the May 24th IEP, since no one was able to speak to her math abilities and no evaluative data was presented by the CSE. P-S. In addition, Ms. that she didn’t have standardized test scores and relied on the estimates made by ’s teacher at the CSE meeting, yet Mr. indicated that the reading levels were wrong and it was clear that he wasn’t in a position to give math estimates. Tr. 60. In addition, there are no management needs or goals to address her nor is there any indication of her need to receive a multisensory approach to instruction which was addressed by Mr. and had been addressed previously. She also had issues which were “glossed’ over on the May 24th IEP where it states that “ in school” and “she reportedly has few friends”. D-1; P-S. Even Ms. testified to these issues yet nothing was included in goals or management needs to deal with this.

Accordingly the District did not meet its burden in showing that the present levels of academic achievement and functional performance were indicative of ’s needs, and accordingly, a placement recommendation could not be made on that basis and that the placement recommendation that was made was not appropriate.

An IEP must also include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]).There are no goals for executive functioning and organization which appear to be a major deficit for nor are there any to meet her social/emotional needs, and I credit the testimony of both Mr. and the Parent that indicated that the academic goals on .’s IEP were generic and were not specifically tailored to meet ’s needs.

The Parent also has taken the position that the student was alsodenied a FAPE based upon the determination that the student would not have been grouped with students having similar functional ability at the public school site . State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii], 200.6[a][3], [h][3]; see Walczak, 142 F.3d at 133 [approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed]; Application of a Student with a Disability, Appeal No. 09082; Application of the Dep't of Educ.,Appeal No. 08-095; Application of the Dep't of Educ., Appeal No. 08-018; Application of a Child with a Disability, Appeal No. 07-068; Application of a Child with a Disability, Appeal No.05-102). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to the following: the levels of academic or educational achievement and learning characteristics; the levels of social development; the levels of physical development; and the management needs of the students in the classroom (8 NYCRR 200.6[h][2]; see 8 NYCRR 200.1[ww][3][i][a][d]). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement (8 NYCRR 200.6[a][3][ii], [iii]).

Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class (8 NYCRR 200.6[a][3][iv]).

The hearing record reflects that the student may not have presented in a similar manner with respect to both academic and social/emotional functioning compared to the students in the assigned class. Ms. testified that the students are not placed in classes based on their reading or math scores but only based on the number of students in the classroom. Tr. 107; Tr. 127. Although there was a discrepancy as to what was meant by levels on the class profile, I credit the testimony of Ms. that the levels were based on the student’s test scores on their math and ELA testing and that the there are students in levels one to four in the classes since placement is made based on number of kids not based on their levels. Tr. 127. Levels one through four is an extremely large range for any classroom. Based on her class profile, she also indicated that the students range in age from 14-17 and that the class is made up of students with learning disabilities and students with emotional disabilities. P-N. All of these elements of the proposed setting would prevent the Student from making meaningful academic progress.

Therefore, based upon the foregoing, I find that the District failed to provide the Student with FAPE for the 2012-2013 school year . Issue II-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of . In order to meet that burden, the Parents must show that offered an educational program designed to meet special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing that was an appropriate placement for a school with both mainstream, inclusion and self contained classes and has a Bridge program specifically designed for students with learning disabilities. Tr. 150-151. The students in program participate in standardized testing and take Regents exams. Tr. 151. They use a multimodal, child centered approach and utilize different methodologies and different forms of instruction. The program is geared to deal with students with and has a binder system and class designed to help the students with this. Tr. 165. The students are grouped within a grade or two of each other in terms of functioning. If the student has difficulty in an area, they will be put in a smaller group to accommodate their need. The smallest class that is in is a class of 4 and the largest class is a class of 14 with two teachers. Tr. If a student needs a class to be slower paced, like biology, they will be placed in a modified class and take the course over a two year period. Tr. 153. There are different levels of classes at so that if advances, she can be placed in a faster paced class with higher level materials. Tr. 198.

Both the Parent and Mr. testified that . has made progress at . He said that he observed her using brainstorming techniques and generating an opening paragraph in his Current issues class at a much quicker pace than she would have done last year He also says that she has progressed socially and is in the anime club. Tr. 67-168. The Parent stated that she has done well academically and has passed both her biology and algebra regents; her Organization and Planning class keeps her focused and organized; and socially she is more involved with the other students and this has helped her with academics since she makes more of an effort to be part of the class. Tr. 301. Dr. testified that he and his team recommended that she continue in her current school since she is progressing and is able to receive instruction in a small, supportive and structured environment that is academically challenging. Tr. 253; P-U.

Based upon the foregoing, I find that the program at met the student’s unique special education needs. Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parent participated in the May 24, 2012 CSE meeting and cooperated with the District in all respects at this meeting. The mother also contacted the District after she received the Final Notice of Recommendation dated August 13, 2013 (P-V), visited the school program as soon as school started, sent a ten day notice to the District advising them that she was placing the Student in ( P-C) and another letter after her visit to the school. P-O.

Based upon her actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Therefore, I find that the District did not provide FAPE to for the 2012-13 school year (Prong 1), the Parent’s placement of is appropriate (Prong 2) and the Parent cooperated with the District (Prong 3). Accordingly, the Parent is entitled to direct payment of tuition to ’s attendance at for the 2012-13 school year.

ORDER

Based on the foregoing, the Parent is entitled to direct payment of tuition for ’s attendance for the 2012 -13 school year. Dated: August 7, 2013

_______________________________

ELISE KESTENBAUM, ESQ.

Impartial Hearing Officer

EK;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

District Exhibits

No. Date Document Pages

1. 5/24/2012 IEP 11

2. 8/13/2012 Final Notice of Recommendation 1 Impartial Hearing Officer Exhibits No. Date Document Pages I undated Subpoenas to 4 Parent Exhibits No. Date Document Pages A 3/25/2012 Impartial Hearing Request 7 B 9/10/12 C 8/22/2012 Ten Day Notice 5 D 5/30/2013 Subpoena for CSE 7 2 E 5/13/2013 Subpoena for 2 F misc. dates

Services Inc. Evaluation 10 G 5/13/2012 Report Card 1 H 2012/2013 Schedule

For 2012-13 School Year 1 I 4/18/2013 Attendance

Record 1 J 1/20/2012 Special Education

Delivery Report 1 K 4/20/2012 New York State

Report Card 19 L 2011/2012 Progress

Report or Review 2 M 3/22/2012 Quality

Review Report 8 N 3/22/2012 Class Profile 1 O 10/22/2012 Letter to CSE 7 4 P 2/12/2013 Report 18 Q 9/6/2012 Contract 2 R 2012/2013 Overview 1

S 5/24/2012 IEP 10

T 11/21/2012 IEP 11

U 10/9/2012 Evaluation 4 V 8/13/2012 Final Notice of Recommendation 1 W 2011/2012 Tax Information for Parent 26 X 4/4/2013 DOE Due Process Response 3