New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 20, 2014

July 17, 2014

Actual Record Closed Date: September 17, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2014

Attorney — Parents

Attorney — DOE

Father Dep’t. of Education — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 17, 2014

Attorney — Parents

Attorney — DOE

Father — Parents

Dr. — Parents

Teacher — Parents

INTRODUCTION

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

BACKGROUND

is a student with a disability; he was classified as “ ) and thereafter declassified by the DOE on July 13, 2013. (also referred to as the “parents”) brought this the DOE’s failure to a free appropriate public education (“FAPE”) during the 2013-14 school year. The Parents are seeking an order to compel the DOE to pay for transportation, tuition at and related services.

THE PARENT’S POSITION

The parent maintains that the CSE incorrectly determined . no longer met the criteria for a disability under the Individuals with (IDEA) and committed numerous . has been known and identified as a child with a disability and has had an IEP through the DOE since 2011. However, less than a year after the CSE agreed . should be classified, the IEP team . without providing a sound basis for this drastic change of course.

should have been classified as a student in need of special education services and continues to require, special education support to make progress. Furthermore, the ) has provided this student with the support he required for the 2013-2014 school year, and that he has made . Finally, the parent maintained that he cooperated in good faith with the CSE. Accordingly, the DOE has failed to offer a FAPE for the 2013-2014 school year.

THE DEPARTMENT’S POSITION

The DOE maintained that it provided, with a FAPE ” the student and recommended an appropriate placement and services. Additionally, that the Parent has failed to establish that the educational program they selected was appropriate and that equitable considerations do not favor the parent.

THE DEPARTMENT’S CASE

Counsel for the DOE was properly was his previous classification on his IEP for the 2012-2013 school year was no longer appropriate. More particularly it is claimed that there is no evidence , . The DOE evaluation “maintained an appropriate level of adaptive functioning throughout the evaluation.” Ex. 2-3. Additionally, Dr. . for the 2013-2014 school year, functioning and did not Tr. 128-158; the social history report fails to document any health concerns. Ex. 4.

Ms. psychologist testified that the CSE team reviewed the psychological evaluation of Dr. a classification under the IDEA. The team was not disabled Tr. 2021.

Furthermore, counsel opined that, all reports and information available to the CSE team indicated setting. The mother reported to the was “ and was moved to a higher functioning group.” Ex. 2-1. within the testing environment illustrated that he did not . The only ,” and that as a result he “required some redirection/refocusing.” Ex. 2. Overall, the examiner noted ,” and that “rapport was established effortlessly.” Id. report confirmed that “ ,” and that “he and purposeful.” Ex. C-1. Dr. and the DOE examiner agreed that “ was very easy.” Ex. C-2. Dr stated on cross-examination are not his Tr. 113-114.

Additionally, objective testing in the on the majority of tests. Ex. 2 and C. Dr. established that the child was on all . Ex. 2, C. conducted by the in the average range on approximately half of the tests, and on the other half of the tests. Ex. 2. ; the only test in which , where he range. Id. conducted on April 15, 2013, was which is considered high and is in . Ex. C-9. was in the memory and were in the

The DOE maintained that the parent’s attempts to in reading and writing was unconvincing. testified , however, she of objective testing.” Tr. 162-164. Ms stated level reading group was “one of the stronger groups.” Tr. 162-163. The testing conducted by Dr. was .” Ex. C. Ms that areas of academic weakness, “it didn’t rise to the level wherein he should be classified with a of the other handicapping conditions.” Tr. 29.

Ms. that she discussed related services with the team and that she did not feel that any related services in order to make academic progress. She reviewed the progress report; it didn’t as a related service who did not recommend therapy. It reported throughout the evaluation process,” and that his “speech presented as age appropriate; understood.” Tr. 27-28, Ex. 7, 2-1. The DOE asserted that neither noted any problems in their reports. Ex. 2, C.

The DOE claimed exhibit any that would merit a . His mother reported in the social history that her son “interacts appropriately towards school authority.”Ex.4-1. The DOE examiner reported, “He , smiled when appropriate, and displayed a good sense . Rapport was established effortlessly.” Ex. 2-1.

Additionally, the DOE maintained that there was no indication that occupational therapy was needed in in school. The DOE examiner noted that he “ all precise fine motor functions that were asked of him” and that “ appeared within normal development limits.” Ex. 2-1 – 2-2. The IEP team had report from who had testified that the team considered. Ex.3, which indicated , was not warranted. Id.

Dr. , it was fair to say that he did . Tr. 122-123. The DOE maintained that Dr. Prieto admitted that his conclusion “on my experience testing him.” Tr. 122-123. However, there were no indications in in the testing environment. in crossexamination much . Tr. 111.

Dr. academic performance had improved, but attributed the improvement solely to the . Tr. 123-124. Additionally admitted that had had no background or training in special education. Tr. 110. could not recall whether he had spoken with any reaching his conclusion and testified that he never observed the child in a classroom setting Tr. 110.

argued that diagnoses does not make sense in view test scores indicated a grade the tests Tr. C-9. Dr. conceded that weaknesses were not . Tr. 113-114.

Ms. could make progress in a general education setting, indicating that he does not need special education services. He has the intellectual ability and the background academic skills that he needs to progress academically. testified , noting that the reports confidence, charisma, and that there were no social problems indicated in the social history report. Tr. 24. Also, there were many would be able ensuring his successful transition to a general education classroom. his report that to him. Ex. C-2. Dr. noted that the child, unprompted, asked for a modification in the way a test was presented to him, and “did so without a ,” noting that, “It is come and ask for things when he needs them. His , stated that she believed be able to make some academic progress in a general education classroom. Tr. 176. ’s father stated that it was possible that his son could make progress in a general education setting. Tr. 208-209.

Counsel for the , the team merely explained to the parent their decision to declassify the that the team predetermined services. that it is her general practice at any IEP meeting to “review all the reports , and to determine if the child meets a classification.” Tr. 19. She also stated that all documents provided by either the school or the parent, and all pertinent available documents are discussed at her IEP meetings. Tr. 15-16. Additionally, Ms. that she explained to the parent that the team considered , classroom performance, and social and emotional functioning in determining did not need special DOE maintained that in support of Ms. ’s statement, the parent testified that the IEP meeting lasted approximately forty-five minutes and that “there was bickering back and forth between my position and their position,” Tr. 204-205. Ms. testified that the team’s determination was the result of a review of all of the reports, and speaking with his then-current . Tr. 13. Additionally, the team did not make the determination to to the meeting “because we needed everyone’s input before we could make any kind of a recommendation. Tr. 14.

Ms. maintained that placement is irrelevant as the student was correctly declassified, and does not qualify as a student with a disability under the IDEA; therefore the DOE was not obligated to provide the student with a FAPE within the meaning of the IDEA. stated that even if the decision to declassify the student was erroneous, the placement allegations education program for his son at the IEP meeting and in his 10 day notices; he did not base his rejection of the DOE’s proposed program on anything that he learned at his visit to the school. Furthermore, the parent alleged that the proposed placement , would be inappropriate for a number of reasons. Ex. A. The DOE asserts that a meaningful analysis of the parents’ claims regarding the proposed placement would require a determination of what have happened had the district been required to implement the student’s IEP. Such a determination would be speculative because the parents did not enroll the student in the district school. The DOE stated that there is evidence that the parent disagreed with the at the time of the IEP meeting, as the parent stated that he what he described as a very contentious meeting. Tr. 18. The father, when asked if he expressed his concerns about a general education classroom at the IEP meeting, stated: “Up until then, I had not actually gotten the chance to observe a regular public school classroom. But I knew that it would not be the same environment as he was in at that point.” Tr. 185-186. He further stated that the meeting ended with: “Basically, you’ll hear from me – that I think and that, you know, we have to take this further.” Tr.

186. Ms. maintains that for the parent to state that he was open to the public school placement with a general , but also precludes the argument that the parent relied on anything learned at the placement in his rejection of the DOE’s proposed placement.

Additionally, the DOE asserts that the parent has not established the appropriateness current teacher , testified that he was in a class of eleven students and two teachers. Tr. 133; that special education school with no mainstream students and no opportunities . Tr. 170-171. As stated above, Ms. would benefit from being surrounded by typically developing peers in a general education setting. Tr. 31-32. The DOE maintained objective measures an , and the fact that he would likely be surrounded by peers level could be admitted on cross-examination that by the end of the 2013-2014 school year, in his class. Tr. 175 not specifically designed to meet his unique needs. testified on direct confirmed that he is not recommended for counseling; she was the person if required and she believed that he needed it. Tr. 154, 172-173. Additionally, there was no explanation as for and that this is supportive of the conclusion that the was not designed to did not testify ; the documentary and testimonial evidence set forth by the parent . The DOE’s also didn’t recommend the services. Dr. ’s report did not provide a recommendation for speech language therapy or any other related service. Therefore, as , when left with no explanation of why Gaynor was providing the DOE argued that “one is left to conclude that speech and language is recommended for every , regardless of whether or not they require it”.

The DOE asserts is not appropriate father had to provide private tutoring for his son during the time when he was . The Parent had attended a private tutoring service that teaches math during the 2013-2014 school year paid for this service. Tr. 214. The Parent testified that Parent was an attorney and signed a contract obligating him to 2013-2014 school if he did not withdraw his son by September 5, 2013. Tr. 194, Ex. G-2. However, the Parent did not visit the DOE’s proposed placement until September 18, 2013, which was the first available appointment he could obtain Tr. 212.

DOE’s counsel opined that this statement is inaccurate as there is little likelihood that the 2013-2014 school year started on September 18, 2013 or that he was unable to get an appointment to visit prior to that date. Additionally, as an attorney, the Parent should be aware that in order to be released from his contractual responsibilities, he would need to visit the school and make a decision 2013. Ex. G-2. Furthermore, even if the Parent’s testimony regarding the reason for his late visit to the school is to be believed, it is not credible that an attorney would enter into a contractual agreement that would force him to make a decision about the public school placement prior to the time when he would be able to visit it. The DOE submits that the only possible explanation for this conduct is that the Parent had no intention of enrolling his child in public school at the time he signed the contract on April 23, 2013, approximately three months before the IEP meeting. Ex. G,

PARENT’S CASE

and has had an IEP since 2011. T. 183. Parent’s counsel maintained that less than a year after the CSE agreed be classified, the IEP team arbitrarily declassified wherein the team . had been education school for students . T. 132; Exh. 4, 5, 6, 7,

By history, , a mainstream general education school, from pre-kindergarten through 2nd grade. T. 196-197. That beginning in began receiving additional, independent tutoring services outside of school to . T. 196-197; however, mainstream classroom. id. The school said they could not provide for and recommended that he be placed in a more restrictive, special education environment. id.

Dr. a licensed psychologist, conducted a comprehensive psychoeducational evaluation with a . 92, 95, 100; Exh. C. Despite receiving intensive special education support for the past three years at remained continued to lack depth recommended school and small classroom with a high teacher (no greater than12 students) which would offer an . T. 101-102. The CSE was provided with report prior to the July 11, 2013 IEP meeting. T. 15, 184. Dr. regarding his findings and explained have been classified as a student with a disability. T. 100, 103-104, 105.

For the 2013-2014 school year, with two specially trained teachers. T. 138; he was placed into smaller groups for reading and math. T. 140, 144, 147. from the 20132014 school year and his parent testified as to the the school year. T. 144, 149-150, 151, 195-196, 198.

Parent’s counsel maintained that the July 2013 IEP team improperly determined that . The parent's witnesses testified as with a disability and should have been classified T. 104. Dr. his March 2013 evaluation in detail; explaining the tests that he administered T. 96-97, 98. The testimony and how they performance. T. 98-100, 120121.

since 2009. T. 92; and stated that standards, but is not achieving adequately in reading or writing to meet those standards. T. 102.

to have difficulty with reading . T. 98, 99, 120-121. Dr. explained that despite receiving . T. 99. , he should have has not. As per Parent’s counsel, the DOE has failed to consider the testing and the scores that Dr. . T. 99; he explained which specific questions about what he read, was a good . T. 97, 99. More testified that when it to reading phrases T.99-100 that reasoning skills, his reading aloud skills are at the low end of the average range and his fluency skills remain weak and require continued support.

are described in his 2012-2013 school reports which were available at the July 11, 2013 IEP meeting. Exh. 5, 6, 7; T. 15-16. As placed in a small setting of less than 12 students with 2 teachers where he received with his reading comprehension and with understanding cause and effect relationships of events that took place in a novel. Exh. 5. He id.; he required , and chunking of information to express and organize his thoughts . id. In addition, the end to . He does when ...Because reports are consistent . Both and in a small, structured environment. However, and with no support. Exhibit 1.

to make progress in a mainstream setting with additional outside tutoring support. T. 196-197. A DOE general education classroom would have at least 20 students, according to the DOE's own witness. T. 67. was consistent with the and cognitive abilities recommendation was inappropriate unrebutted testimony than can be offered in a mainstream, general education setting. T. 104. or less in a full-time special education school. T. 101-102 and would be overwhelmed in a general education classroom T. 105. Each of the parent's witnesses testified why a to needs. level curriculum because of his expressive language needs.

T. 157. Ms. that despite general education classroom. T. 157.

Parent maintained that the team failed to consider the reports and the child's needs when making , able to make progress because he was placed in a small classroom with full-time special education support, yet they offered absolutely no special education; they testing environment and ignored the reports and performance.

As per Parent’s counsel the DOE's failure to complete and consider the required observation prior to not therefore a denial of FAPE. Despite the fact that the IEP review held . on July 11, 2013, was his triennial review. Exh. 4, , did not know last observed in the classroom. T. 36. The DOE failed to his then current placement. Parent’s counsel opined that an observation is mandated because it gives the team, who has never met the child, insight into how the child presents in the classroom; this was vital information that the team required to consider before being able to adequately education needs. There was no evaluation which demonstrated . All of the testing was and is not a true indicator of in an actual classroom. Exh. 2, 3, C. T. 36; Exh.4. It is uncontroverted that Ms. program or the services that were provided in order for him to make progress. T. 10, 26.

At the start of the meeting . did not need special education. T. 184. This determination by the team ignored the information then¬ current teacher. T. 185; Ms. was critical in especially since the DOE failed to complete a classroom observation and failed to have any evaluations that were conducted in a setting larger than setting.

Likewise, testified that the team did not review or from November 2012 at the July 2013 IEP meeting. T. 40. The November 2012 IEP with written expression and organization and includes numerous management needs that are necessary to address his deficits. Exh. 10. to improve on a number of goals from the prior IEP. Id.; there was no discussion at the July 2013 IEP meeting as to whether these deficits continued to impact C.G. in the classroom and whether he had met the goals delineated in the prior IEP. T. 4142.

Parent maintained to validate as the team had new evaluations; however, the team did not appropriately consider the new evaluations in light of all the evidence in the record. scores and while scores provide do not provide a full picture of the child's , evaluation, and the prior IEP all . 5, 6, 10, C.

testified that she did not believe aligned with the scores. T. 46. However, she never information and never explained why she did not agree considering the fact that she . T. 46. that going to any issues given the discrepancy as to recommended at the IEP meeting and recommended in his evaluation.

Ms. or observed him in a classroom setting; no one from the CSE ever met or .

T. 36. Ms. class was, how many teachers were in the classroom, and what management needs was within the classroom. T. 10, 26. Ms. maintained that not only did the team fail to appropriately consider documentation and input from the , but also failed to take into account in at the time of the evaluations. The CSE members who recommended that be classified had never observed him in an unstructured setting. T. 36, 18-19. The team merely relied on the scores without giving appropriate consideration to the support he was receiving or the fact that the scores were only reason on these evaluations was because of T. 127-128. The team to justify their decision to not however, the team disregarded the was made in a classroom of 11:2 or 6:1 with teachers who are specially trained in special education. T. 131-132, 133.

Ms. to present any evidence or testimony that a general education classroom would be appropriate , all of the information presented at hearing would not have made struggled even with a . T. 195-197. Ms. of a general education setting for this student

T. 155-156.

As a result of , his parents enrolled , which is a small, full-time special education school from in the entire school. T. 132-133. All teachers and staff receive then three times during the year focusing on varying , Program and learning to differentiate instruction for all types of learners. T. 135-136.

Ms. testified as to the appropriateness of the unilateral provided testimony and how the program met his needs as demonstrated the 2013-2014 school year Tr. 137, Exh. L, M. testified regarding her for the 2013-2014 school year and explained that understanding of and has a hard time advocating for himself; he is unable to independently implement the tools that he needs in order to make progress. id. Ms. small classes due to his . He is in a small homeroom two special education teachers and was placed . T. 138, 140, 144, 147; that the small the support that he needed. T. 144-145.

Ms. disorder noting that , he often omits or substitutes words while he reads which impacts his comprehension. T. 141. He to accurately comprehend text. id. In terms of therefore, predictions based on evidence from a novel. T. 141-142. To address implemented a variety of specialized supports to assist him with both his decoding and his . T. 140. at a similar level; the small class to help with his comprehension, interpretation, and analytical thinking. T. 140, 142; Exh.L.

Ms , is a certified special education teacher, whose curriculum includes teachermade materials and novels . T. 131-132, 142-143. The novels were specifically chosen and based on the needs of the students in the group T. 143. received specific teacherguided questions during class to expand his thinking. Exh. M; he also pre-read the assigned text on his own the night before class and would re-read it in class the next day.

T. 144. Ms as he needed the additional review to process the information accurately

T. 144. Ms. created individualized small literature class was extremely beneficial for because when he misunderstood something in the was able to go back and see his train of thought and help him to better make connections for the future. T. 144. He also had the opportunity to work what was going on in a novel. T. 144-145.

As a result of the supports in the 2013-2014 school year, he made progress in his ability to write about what he was reading and events that were happening in the text.

T. 145-146. At the beginning of the year, estimated at an early in literature and that by the end of the school year, . T. 142-143, 146. . improved his ability to recognize when he did not understand a lesson, , and asking for teacher assistance. T. 145.

In with breaking down new concepts and applying different procedures to the same concept. T. 146-147. testified that had a of with word problems and with expressing what he solved. T. 147. Due required significant reinforcement and instruction when express was not understood. Exh. C, G, L, M.

In order to required, he was placed in a small math group with six students who were similarly functioning. T. 147. The class focused on decimals, percentages, ratios and pre-algebra. T. 147-148. described the specific modifications implemented specifically for math. T. 148-149. He thoughts before he began to speak. T. 149. Whenever a new concept was introduced, presented the material in a multisensory manner benefited from a . T. 148. Regarding his difficulty with word problems, procedural, "How To" sheets which provided step-by-step reminders on to how to . T. 149; Exh. L. The specific modifications, small classes, were very , he made progress in math. T. 149-150. He progressed through the curriculum and for the 2014-2015 school year. T. 150. The his writing deficits. Ms. grade level in this area T. 152. Writing is given his significant mid-year report card . Exh. L. tenses and As a vague and full of filler words. id. He also used very simple vocabulary which did not reflect his thinking. id. Furthermore his own work. T. 150-151, 152. He support to hear his writing read back to him order for him to correct errors; even , he had a hard

T. 151. To with the revision provided him with individualized checklists for revising and editing. T. 152. He also techniques to prepare, organize and write his thoughts. T. 152.

As per counsel, due to the intensive and individualized instruction he received at . made progress in the area of writing in the 2013-2014 school year. T. 153. By the end of the year he was able to compose in his ability to put his thoughts on paper in a logical manner that a reader would understand. id. ; he is now more willing to speak with teachers and seek their support. T. 154. his as he is provided with a lot of selfreflective type of techniques. T. 155. As per was not too restrictive, especially in light of the fact that the DOE was offering absolutely no support for this student.

Ms. stated that the equities favor the parent; that the evidence and testimony established that the parent was cooperative with the CSE and never inhibited the DOE's ability a FAPE. The parent facilitated the process by providing specific information to the DOE he required in order to learn. T. 184. The parent attended and participated in the July 11, 2013 IEP meeting, and at that time, expressed his concern with the team's unilateral decision to . T. 183-184. He provided the team with updated evaluations and asked that they be considered IEP. id. The recent testing strongly recommended that education support. id.

The parent agreed to look at the program and placement recommended . T. 188189, 206-207; Exh. E. Upon the reopening of school in September, the parent went to visit the program to see if it . T. 189. Following the visit, the parent wrote to the CSE and addressed his concerns related to the recommended placement. T. 191; Exh. F; however, he received no response from the DOE. T. 192. If the program and placement been . there. T. 191-192, 193, 211. The parent signed a in April 2013 on order to hold

T. 194; Exh. G. As per to the DOE’s assertions the parent's signing of the contract and making payments in accordance with its terms indicates his intent on , the evidence demonstrates otherwise. Merely signing the contract does not support the DOE's conclusion, especially when the contract includes an escape clause. T. 194-195; Exh. G. The if they accept a public school placement. id. In addition, following the July 11, 2013 meeting, the parent continued to reach out to the CSE to try to develop an appropriate public program for the 2013- 2014 school year. Exh. D, E, F; T. 188. Lastly, Ms. stated that the parent cooperated with the CSE throughout the process and never obstructed the process with the CSE. The parent was open to the DOE placement options.

T. 211. There is no evidence that demonstrates that the parent failed to cooperate in the development of the IEP or precluded the development of an appropriate IEP. The evidence is clearly to the contrary.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the DOE has failed to a FAPE for the 2013-2014 school year. The evidence has established that the CSE improperly no longer met the criteria for a disability under the IDEA. The evidence presented supports a finding the support that he required for the 2013-2014 school year; that Lastly, the parent has cooperated with the CSE. Accordingly, under the Burlington/Carter Test, reimbursement should be awarded to for the 2013-2014 school year.

The IDEA defines a "child with a disability" as a child with a specific physical, mental or emotional condition, "who, by reason thereof, needs special education and related services". 20 U.S.C. § 1401(3) (A); Educ. Law § 4401(1), (2) (k). In order to be eligible for special education and related services, a student must not only have a specific , but in most of the disability categories enumerated under the IDEA, such condition must adversely affect or impact upon a student's education performance to the extent that he or she requires special education services and programs. 34 CFR § 300.S (a) (c); see 8 NYCRR 200. l (zz); Application of a Student Suspected of Having a Disability, Appeal No. 13-235.

The evidence indicates The Regulations of the Commissioner of Education § 200. l (zz)(6) defines as a processes involved in understanding or in using language, spoken or written, which as determined in accordance with section 200.4(j). The term includes such conditions as that are , of , of , cultural or economic disadvantage. 8 NYCRR 200.l (zz) (6). In this case, the parent's witnesses provided extensive testimony about why and should have been .

Section 200.40)(3) states, a student may be determined to have a learning disability if, when provide for the student's age or State-approved grade-level standards, the student does not achieve adequately for the student's age or to meet State-approved grade level standards in one or more of the following areas: oral expression, listening comprehension, written expression,

(a) Does not make sufficient progress to meet age or State-approved grade level standards in one or more of the areas identified in this paragraph when using a process based on the student's response to scientific, reached-based intervention pursuant to section 100.2(ii) of this Title; or

(b) Exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards, or intellectual development that is determined by the CSE to be relevant to the identification of with section 200.4(b) of this Part; and (ii) The CSE determines that its findings under this paragraph are not primarily the result of ; or limited English proficiency under the IDEA; the DOE is responsible for providing a FAPE to address his specific needs. The failure of the team to consider the documentation before them and develop an . has resulted in a denial of FAPE. The parent was not able to participate in the meeting because the evaluation he provided was for the most part disregarded was denied an educational benefit.

I agree with the Parent’s position that if the DOE conducted the required observation, . The DOE's failure to conduct an observation led to their failure to classify , which ultimately resulted in a denial of FAPE. Additionally, there was no evidence that class in a community school; everything before the team indicated that a general education classroom would be that he required special education. The evidence proved that . There was extensive testimony and evidence as to the documentation provided by the parent prior to the July 11, 2013 IEP meeting. As argued by Parent’s counsel, while Ms. testified that it is her general practice to review all reports and to speak to the teacher and parent before making a recommendation, there was no testimony which established that she followed this . T. 13; there is no indication that the team considered the parent's documentation as they immediately informed the parent that they were not going to T. 183. The parent testified that it was very clear to him that the decision to , and was made without his input or the teacher , who had considerable experience working a classroom. T. 184-185.

As stated above, Parent maintains that if IEP team considered the narratives and C there continues to be that require . The DOE's disregard of all documentation besides the scores found in Dr. . was not a child with a disability ultimately lead to a denial of FAPE.

However, as noted above, scores are not the only way to determine a child's strengths and weaknesses and the team is required to analyze the entire file to make a determination. 34 CFR 300.324(a); 8 NYCRR 200.4(d) (2). Despite this, it is clear that the team only and did not consider the narrative or consider how the combination of A denial of FAPE occurs when procedural inadequacies either result in a loss of education opportunity for the student (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005); or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP. See Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 (S.D.N.Y. 2002).

The IEP review on July 11, 2013, was his triennial review. Exh. 4. The DOE last observed in the classroom. T. 36 and t2he DOE at his then current placement. In order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative info1mation. Application of a Child with a Disability, Appeal No. 05-062. Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years (34 C.F.R. § 300.303[b] [2]; 8 NYCRR 200.4[b] [4]); See also SRO 09-070. The procedure for a reevaluation requires that a group that includes the CSE and other qualified professionals, as appropriate, conduct an initial review of the existing evaluation data including information provided by the student's parents, current classroom-based assessments and observations, and observations by teachers and related service providers. 34 C.F.R. § 300.305[a] [l]; 8 NYCRR 200.4[b] (5] [i]

The IDEA directs that an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § l415 (f) (3) (E) (i). An appropriate educational program begins with an IEP that accurately reflects the results of observations and evaluations to identify the child's needs, and provides for the use of appropriate special education services to address those needs. Application of a Child with a Disability. Appeal No. 98-71. A school district provides a 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.

Accordingly, the testimony and evidence a student who should be classified with a disability under the IDEA as the evidence proves that he meets the . The evidence illustrated the a small, full-time special education classroom and school where his can be addressed. In addition, the DOE has committed a number of procedural violations that establish a denial of FAPE. Therefore, Prong I of the Burlington/Carter test favors the parent.

It is well known that the test for a parental placement is that it is appropriate, not that it is perfect. Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); see also M.S.v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). "The issue turns on whether that placement is 'reasonably calculated to enable the child to receive educational benefits."' Frank G. v. Bd. of Educ., 459 F.3d 356-365 (2d Cir. 2006); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). In Gagliardo, the Second Circuit set f011h the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the prop1iety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the Individuals with Disabilities Education Act, 20 U.S.C.S. §1400 et seq., 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 pe1mit the child to benefit from instruction."

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir.2007).

provided him with a curriculum specifically designed to meet his needs, and as a result, he made progress. Therefore, the parents have met their burden of establishing the appropriateness of the placement under Prong II of the Burlington/Carter test.

A "major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE." See N.R., on behalf of T.R., v. City of New York. 2009 WL 874061 (S.D.N.Y. March 2009). In this regard, the Court looks at whether the parents obstructed the Department's placement process or its ability to provide the student with a FAPE. See id. at 16. "In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See SRO Decisions 05-030, 04-091, 04-049.

In this case, the equities favor the parent. The evidence and testimony shows that the parent was cooperative with the CSE. The parent facilitated the process by providing specific information to the he required in order to learn. T. 184. The parent attended and participated in the July 11, 2013 IEP meeting, expressed his concern with the team's unilateral decision to declassify C.G. T. 183-184. He provided the team with updated evaluations and requested that they be considered when IEP. id.

As the parent discussed in his testimony, the IEP not need any special education support because his ." T. 183-184. There was no and the teacher was prevented from providing her input. T. 184-185. The parent informed the team that his son was making progress because of supports . T. 184-186. The parent was open to a public placement but could not agree to their recommendations if the team was not offering any type of support. T. 186. The parent wrote multiple letters to the CSE prior to the start of the 2013-2014 school year regarding the team's improper determination. T. 186-187, 188; Exh. D, E. In these letters, he requested that the CSE reconvene an IEP meeting. T. 187, 188; Exh. D, E. However, the CSE has failed to respond to the parent's concerns and has failed to schedule an IEP meeting thereby inhibiting parental participation in the process.

T. 187, 188.

The parent agreed to look at the program and placement 188-189, 206-207; Exh. E. Upon the reopening of school in September, the parent went to visit the program to see if it would . T. 189. Following the visit, the parent wrote to the CSE with his concerns related to the recommended placement. T. 191; Exh. F. However, he received no response from the DOE. T. 192 The parent cooperated with the CSE throughout the process and never obstructed the process with the CSE. The parent was open to the DOE placement options. T. 211. There is no evidence that demonstrates that the parent failed to cooperate in the development of the IEP or precluded the development of an appropriate IEP.

For the foregoing reasons, I find that the DOE a PAPE for the 2013-2014 school year and order tuition School. Dated: September 23, 2014

, ESQ.

Impartial Hearing Officer

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

PARENT’S EVIDENCE

Exhibit Name of Document Date Pages

A. Impartial Hearing request 2/3/14 3

B. Parent Letter 6/27/13 2

C. Comprehensive Update March 2013 10

D. Parent Letter 7/22/13 3

E. Parent Letter & 8/23/13 4

F. Parent Letter 9/25/13 3

G. Enrollment Contract 2013-2014 4/26/13 5

H. Class Schedule 2013-2014 1

I. Affidavit of Payment 2/7/14 1

J. Attendance Record 2013-2014 1

K. Proof of Payment 2013-2014 14

L. Mid-Year Report 12/22/13 8

M. Evaluation 2/3/12 8

DEPARTMENT’S EVIDENCE

1. Declassification Recommendations 7//11/13 3

2. Education Report 4/15/13 4

3. Evaluation 1/25/13 4

4. Social History Report 4/15/13 3

5. Report Card 6/8/13 8

6. End of Year Addendum June 2013 1

7. Remediation Report School 2013-2014 undated 3

8. Notice of IEP Meeting 6/19/13 4

9. Final Notice of Recommendation 8/14/13 1

10. IEP 10/16/12 11