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 4, 2014

July 21, 2014

September 10, 2014

October 22, 2014

Actual Record Closed Date: October 22, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2014

Attorney — Student

Parent/Father — Student

Parent/Mother — Student

Attorney — DOE

School Psychologist CSE (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 21,2014

Attorney — Student

Parents

Representative (Via Telephone) — Student

DOE Attorney — DOE

CSE Chairperson (Via Telephone) — DOE

Unit Coordinator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 10,

2014

Attorney — Student

Parents

DR., Head of School, — Student

(Via Telephone) — Student

Head Teacher, (Via Telephone) — Student

Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2014

Attorney — Student

Parents

Attorney, — DOE

An impartial hearing was held in the for a student who has been classified as having a disability pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. 1415 (f) (1). The hearing was held on June 4, July 21, September 10 and October 22, 2014. The parent and District requested an extension of the compliance date and those extensions were granted. This Impartial Hearing Officer was appointed to hear the case on March 4, 2014. The Impartial Hearing Office assigned this case, case number. A pre-hearing conference was held on April 3, 2014.

The closing date was October 22, 2014.

The parent was represented by Ms.. The District was represented by Mr..

The parents requested tuition payment for the School for their son for the 2013-2014 school year.

There is no dispute that the student was classified with an .

The parents did not contest this classification.

Ms. in the hearing request claimed that the Individualized Education Program (IEP) that was created out of the April 3, 2013 conference was defective and inappropriate for this student. The parents further claimed that they did not receive a placement notice (FNR) prior to the start of the student’s school year.

The first issue is whether the District provided the parents and the student with a timely placement in order for him to begin school on the first school day in July. The student is a student. See the 2013-14 IEP (Department of Education (DOE)

1 in evidence).

The District’s only witness as to the claim that the DOE sent the parents’ notice of placement via a FNR was Mr.

The District’s first witness though was Ms. , a school psychologist.

Ms. presented her credentials and responsibilities. Ms. works with a Ms. a certified special education teacher in conducting IEP conferences. Ms.

listed the participants at the IEP conference.

The team at the time of the conference had a psychoeducational evaluation from the and reports from the (the school the student attended during the 2013-14 school year).

The student’s ( ) revealed that “

” (Tr. pg.70) The student’s IQ was listed as . The student was classified as having an . The conducted the . This test is administered to the teacher and again the result for the student was the revelation of “ . Again at a level less than relative to the same age peers.” (Tr. pg. 72)

The team (the witness referred to the team when referring to herself and Ms. )

according to this witness had sufficient data at the meeting to develop an appropriate IEP.

There was no challenge by the parents to the classification of .

There was a discussion of and this discussion was a significant portion of the entire IEP conference.

The student’s teacher Ms. spoke of the student’s supports and needs. The student was provided with for his needs.

Ms. testified that although they may have not placed education under management needs they listed specific supports which would fall under education in the IEP.

Mr. and Ms. continued with the Q & A in which Ms.

described the goals that were placed in the student’s IEP. Ms. ’s input as to the goals was taken into account in listing the goals in the IEP.

The team considered , and and decided that the and the classroom ratios were too restrictive. The witness stated the ratios were rejected in that those ratios “

”

(Tr. 87) The team was informed by the student’s teacher that his class consisted of students, teachers and other adults in the room, presenting a ratio of . The student’s class had a ratio in that it was . The recommendation was for a school in a school with a ratio of .

Ms. testified that the recommended program was appropriate in that

“…he had been in the past in a but that was a school, and so the degree of support is different, not just in the ratio but the population of students who are going to be in a school versus a school , the school being a more restrictive setting in terms of access to nondisabled peers. And so we did recommend a more restrictive environment than he had been in. In terms of the , the report from , the 2011 …at the time he was in a – and the parent felt he was progressing academically but there were concerns, and and so we again read that report…took that into consideration, and then gave him a different type of setting.” (Tr. 88-89) The parents, as per this witness’ testimony were satisfied with their son’s academic progress in a setting.

The witness testified that in DOE Exhibit 20 it was listed that the parents’ spoke of the student having “

.”

NOTE: The parents were concerned as to the in the program where the students required more support.

The witness then responded to the issue of peers in the programs. “…the peers are going to differ. Those that are recommended for a program versus a program is essentially a different population, the program having a higher degree of than a population. And…for a program…the peers would likely more like himself in terms of skills.” (Tr. 91) The witness did not recall whether she informed the parent that the population was to be different.

The student was exempted from state tests and thus the IEP did not contain a list of testing accommodations.

It was the witness’ belief that the student would make progress in the program recommended in his IEP.

The parents and Ms. from the objected to the recommended IEP program. Ms. stated that the student was in a program and the support of teachers was significant for this student in making progress.

Cross-examination:

The team did not have any NYC DEP evaluations, reports or observations in piecing together a new IEP. The previous year’s IEP was used as a “reference”. The student’s teacher informed the members of the team the student’s work up to the moment of the meeting for the then school year.

The witness became aware during her preparation of her testimony for the hearing that the parents submitted updated reports subsequent to the IEP meeting. Ms.

admitted that she was listed as a DOE contact person for the parent in regard to the additional reports. The witness added that she was never contacted as to any additional documents.

Ms. questioned the witness as to various goals that were listed in the

IEP.

The student’s deficiencies which were listed in the March 2013 reports were not in dispute.

The witness was asked as to her previous testimony as to the support would be different in the school and the school. Ms.

testified that support was probably not the correct term to employ. “Support might not be the best word because the ratio is the same but the population is going to differ based on level, meaning that the school’s school years tend to be students with more needs but , sometimes but not in case. And so the population is going to shift based on those needs and that’s what I was referencing.” (Tr. 132) Ms. stated that the main reason in placing the student in the school and not the school was because of the student’s level of his skills and not due to any needs.

The student repeated a grade while he was in the public school system. The IEP team was aware that the student had repeated a grade during his tenure in the public school system. The student was in a class when he repeated the grade. The witness agreed that the IEP lists the student with ‘

.’

The ratio would be too restrictive. The types of classifications for a school with an ratio would cover “Usually students with an have more intensive management needs and often times their classification can be with a than say a also concerns. But it really focuses more on the intensiveness of the management needs for the students.” (Tr. 138)

The discussion as to was limited to the number of sessions he was receiving at the , which was session a week in setting and the skills the school personnel were working with the student. The report was incorporated in the report. The conference did not include a social worker, counselor or guidance counselor.

Re-direct:

The triennial was for the 2014 school year and the observation was for the 2014- 2015 school year. A classroom observation was not necessary for this IEP.

The following Q and A is found on page 142-143.

Q:Did you feel that the team had enough data and and information contained in the reports to develop a meaningful IEP?

A:Yes.

Q:Did the team have enough data and evaluations regarding to develop meaningful goals?

A:Yes.

On July 21 the District called Mr. , the chairperson of Committee on Special Education (CSE) in the . Mr. presented his credentials and responsibilities. In June 2013 Mr. stated he was a special education evaluation placement and program officer with CSE in . In the spring of 2013

Mr. testified that he had mailed out as the placement officer for CSE approximately Final Notice of Recommendations. Mr. had no independent recollection as to any of the FNRs mailed out in the spring of 2013. The custom and practice of such mailings the witness testified that “The day that we receive the response back from either the Office of Student Enrollment or a Final Notice of Recommendation was created on that date and time, printed, and mailed to the parent.” (Tr. 163) Mr. testified that he was the person who personally mailed out the FNRs in the spring of 2013. The witness was presented with Exhibit 4 and stated that he had no memory as to whether he mailed Exhibit 4 out but it appeared to be a document he would create and mail. Cross-examination:

Mr. admitted that the telephone number listed on the FNR was his telephone number. Mr. did not recall any correspondence from the parents in this case. Any letters that are returned to the CSE, the custom and practice is that they are addressed to the chairperson. The witness did not recall any letters going to him from any of the FNRs that he sent out.

The next witness was a . Mr. stated that he has been the unit coordinator at since September of the 2013-14 school year. is a special education school. It has classes that are , and .

The is for “

” (Tr. 172)

During September of 2013 Mr. presented tours to parents for . He had no recollection of giving a tour to the parents of this student. The witness was presented with document BB and was asked whether (quoting from the document) “When the parent questioned Mr. about the fact that students were not allowed to

“

” (Tr. 175)

The site had ’s and they were a mixture of graders. It was the protocol of schools that students are ‘

.’ This protocol would be a statement he would have told parents on tours he gave to parents. In September 2013 students were when they were in the school and this policy was in effect for the entire 2013-2014 school year.

During lunch time there is a class with students classified as sitting with the students who are classified as .

The witness was cross-examined by the Parents’ attorney. The District rested its case.

Ms. , the school psychologist at the School

was the first witness called by the Parents’ attorney. Ms. presented her credentials and responsibilities. Ms. testified that she was familiar with programs and that she had created and supervised such programs but did not work in such programs. The witness is familiar with this student for the past two years. The witness had spoken to the student’s teachers and related service providers he had during the 2013- 2014 school year. The witness also read his progress reports.

The witness testified she regularly attend IEP meetings for the students of the School. Ms. attended this student’s 2013-2014 IEP meeting. The witness testified as to the areas of discussion that took place at the meeting. The student’s and any and needs were discussed along with the academic subjects of and .

In the student’s class for the 2012-2013 school year there was a head teacher and an assistant teacher. Ms. testified that she disagreed with the program recommendation in that it was not sufficient support for this student. “They had recommended a program with students, teacher and . And because he was getting—currently he had teachers in the classroom, I felt that would be a reduction in services for him and it would not be appropriate.” (Tr. 204-05)

had reports in front of her and using such reports as the basis of the IEP goals that she was recording. The goals were not discussed, Ms. did state to the participants what she was writing down. The reports referred to the skills the student was working on in his classroom.

Ms. testified that after the April 3, 2013 IEP conference she had a discussion with the CSE as to subsequent progress reports. “I told them that there were additional—there was an additional progress report available and asked if they wanted a copy.” (Tr. 218) Ms. , the CSE person who the witness spoke with did not wish the additional report claiming it was not needed.

The determines progress by the level of support a student requires.

The level of support is based on how often a student requires or or the basis of the need for help in academic areas. “

” (Tr. 221)

Ms. claimed that although she understood the measurement criteria of accuracy she did not believe it was relevant to this student. The witness presented her opinion as the following, “…what I have told them in the past is that the students are inconsistent, and therefore on a particular day the student might be able to do something, a particular skill of the time but maybe with support. And on another day, could only do of it. And so that because of that, the measure was not meaningful for this student.” (Tr. 222) The witness added in response to a further question that the criteria is not relevant for this student.

Ms. did not agree with the recommendation and voiced her opinion as to her disagreement as to that recommendation. The witness then explained her belief as to why this student required teachers in the classroom. It was her opinion that the student requires instruction and only teachers can provide such instruction. The student “needs

.” (Tr. 225)

SEE ABOVE PARAG.

The IEP did not include the specific tools that the student’s teacher discussed at the conference. The teacher also spoke of how the student’s has over the course of the year based on his use of the tools and the IEP did not list that information. The tools discussed was that the student used a

, , and .

The witness stated that she has never agreed with the CSE’s recommendation for the students. The reason is that at the there is a level of support that is provided which the CSE’s recommended programs do not provide. There have been students from the who no longer require the level of support provided and then find public school placement.

Ms. recalled the father at the IEP meeting expressing concerns that their son was not motivated academically and concerns as to his progress in his previous school.

The parents also expressed their concerns that “the students in his previous school, that they were - - . He was learning some and that he had and they were very concerned about his . (Tr. 254) The parents did not agree with the program recommendation.

The witness with the parents visited the DOE recommended school on September 4, 2013. They were informed that there was no one to visit that day. The parents made a second appointment at and Ms. went with the parents to visit the school.

The assistant principal, Mr. provided the tour.

The recommended school was . The witness and the parents were informed that the students

. “

” (Tr. 260) The witness was queried as to recess for the student population and she answered, “ ” (TR. 262) During lunch in the cafeteria, the students were in one area, the students with were in a different section and the students with were in a third section of the same cafeteria.

The witness was asked and then provided her opinion as to why she believed the student would not make progress at and her testimony as to this opinion is the following, “…we were told that the way that the room was, the way that the groups were broken up that the students would be instructed by a and I was concerned that most of his instruction would be added by a and not by a teacher. I was concerned that he would be spending the entire day with students with and he did – they did not tell me that there was any opportunity for him to be with other students of a in the school and that and he would not have . I was concerned about the . At the he is able to…

. He needed

support throughout the day and there did not seem to be the ability to have breaks as he needed and I was concerned about his in terms of the way the lunchroom was set up and the fact that there was parts of the school, particularly the that he wsa not allowed to be in because he was a special education student.”

(Tr. 264-265)

The parents were informed that support would be in the particular classroom.

The parents and the witness had a discussion regarding public schools and the parents stated that if they found an appropriate school they would want to send him to that school.

The provided the student with a meaningful educational program.

The student to aid him with his needs uses a , and . The student also uses . The student was able to take anytime that he needed . Such breaks would include and/or .

Cross-examination:

The witness observed this student approximately a month. The student was in a group of for with Ms. , his teacher at the time.

The witness refreshed her memory with a progress report and testified he was of with head teacher and for . It was a .

The witness had attended approximately 100 IEP meetings with Ms. and Ms. and did not agree to any recommendation or any recommendation made by the DOE IEP team.

The witness disagreed with the recommendations of the DOE in that it was her understanding that the in that program is a . Any instruction in those classrooms by a means that they are not being instructed by a qualified teacher.

The IEP did recommend instruction. The IEP does list the words

‘ supports’ as well as .

The parents and the witness were informed that the upper range of the class was at a level and this student functions at a level than . The witness agreed that academically there were .

The witness stated that on a particular level translate into the student is on that level .

The last date of testimony was September 10, 2014 and the first witness was Dr.

, the Head of the School. Dr. presented her credentials and responsibilities. This student has attended the school for the last two years.

The student was provided with his related services. All the related service providers are licensed. All their teachers are certified special education teachers. The classes consist of a head teacher, an assistant teacher and . Each room has to start the year. The typically do not work with the students on academics. All the students in the school take their class. The witness described this student’s needs as ‘ ’.

“

” (Tr. 184) The student required breaks. “

” (Tr. 390) The breaks started to level off between February and March of 2014. There was a leveling off of these breaks due to general improvement in the student’s and issues.

This student was in the and the class at was a / class. It was the opinion of the witness that this student required more support than the of the recommended program. The student made progress in the 13/14 school year.

Cross-examination:

There were no students at for 13/14. Instruction in and was provided .

The DOE IEP did not provide for either or .

The mother/parent was the next witness. The student was adopted. He is/was the father’s grandson. The parents placed their son at for the 2012/13 school year in that the public school did not meet his needs, he did not progress and . The parent described her son’s needs. The breaks allowed her son and . The parent provided the DOE with reports of her son’s diagnosis.

The parent testified that her son does not like and at times

.

The witness testified that she attended the IEP meeting and voiced their concerns at the meeting. The witness described her disagreements with the recommended program.

The parent stated that on August 15, 2013 they received a letter from DOE. The letter referred to the parents’ ten day notice and the FNR that they never saw before that date. The IEP recommended a program. The student was to begin school in July. The date of the final notice of recommendation in the letter of August 2013 was June 5, 2013. The parents did not receive the FNR dated June 2013 in either June nor

July. The parents did not receive any letters or documents from the DOE in either June or July of 2013. The parent called the school on the FNR and received no answer. She called the name of the person on the letter Mr. and he provided the parent with school numbers to call. She called and made an appointment to see the school on September 4, 2013. The tour eventually took place on September 12, 2013. The parent testified she rejected the program in that there was and

.

The parent requested a different public school and was not offered another placement. She placed him at the .

The cost of summer school was . The cost of the regular term was

.

The student wants to go to school since he has been attending . Previously for public school he did not want to attend. The witness described her son’s progress on page 462 of the transcript. The parent testified that if she could have found an appropriate neighborhood school for 2013/14 she would have sent him to that school.

Cross-examination:

The student only attended the second summer session at for 2013/14. The parents did not sign their son up for the first summer session of because they were waiting for the DOE to send them their school recommendation.

The last witness was Mr. , a head teacher for the in at . The student was in Mr. ’s class for the 2013-14 school year and that year he was in the . The witness was the student’s and teacher. The class consisted of students with a head teacher and an assistant teacher. There was a for the entire class to support all of the students in the class. There was a similar class ratio in this student’s class. The

/ class was divided into and individualized conferencing for each of the students. In the teacher worked in

.

The student here made progress throughout the school year in the / class. Mr. described that progress on page 507-508 of the transcript. The student at the beginning of the school year was on level and at the end of the year he was on level Level translates into .

The student during the school day and a variety of breaks and those breaks were at times built into the schedule of this student. The student was also able to request a break during class time. The student took a break every minutes during the rotation of classes and during the class we would take breaks. The student is and .

The school has that are employed by both the and the and on each floor there are designated for student . The gyms contained a and various tools. would use the and at the school.

The students during the lunch period were permitted to and would accompany the students to lunch and recess. The student here struggled during the days when

.

Mr. was asked and described the progress made during the 2013-2014 school year on pages 536-537 of the transcript. Mr. opined that the was an appropriate program for this student.

Cross-examination:

In there was teacher and and this student made progress in that class with that ratio. do not provide instruction.

The two attorneys presented their closing statements on October 22, 2014. Mr.

in his closing statement stated that the District’s IEP was valid and presented an appropriate program and services for this student. Mr. stated that if the IHO found the DOE did not meet its burden under Burlington/Carter then the program is so similar to the DOE program it would be an appropriate program for this student. He further stated that equities favored the District claiming that the contract the parents’ signed with the was illusory in that the parents had not paid any of the tuition for the 2013-2014 school year and the student is enrolled at the for the 2014-2015 school year.

DECISION:

The purpose behind the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. sections 1400-1487 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). A FAPE consists of special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive IEP (20 U.S.C. 1401 [8][D]; 34 C.F.R. 300.13. A board of education may be required to pay for education services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate and equitable considerations support the parent’s claim (Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 [1985]). The parents’ failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206, 207 [1982]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck

Cent. Sch. Dist. 346 F.3d 377, 381 [2nd 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 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. section 1415 [f][3][E] [ii]; 34 CFR 300.513 [a][2]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007].

The IDEA directs that an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. section 1415 [f][3]{E] [i]). A school district offers 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). However, the “IDEA does not itself articulate any specific level of education benefits that must be provided through an IEP” (Walczak v.

florida Union Free Sch. Dist., 142 F.3d 119, 130 [2nd Cir. 1998]; The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walzak at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2nd Cir 1989]. Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley at 189, 199; Grim at 379). 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” (Walczak at 130; Perricelli 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 [2nd Cir. 1997]). The student’s recommended program must also be provided in the LRE (20 U.SW.C. section 1415[a][5][A]).

The first issue is whether the District provided the parents and the student with a timely placement in order for him to begin school on the first school day in July. The student is a student. See the 2013-14 IEP (DOE 1 in evidence).

The District’s only witness as to the claim that the DOE sent the parents’ notice of placement via a FNR was Mr. . Mr. had no memory of mailing out this student’s FNR. He had mailed out FNRs in the spring of 2013. The DOE Exhibit 4 was a FNR with the information related to this student and listed the parents’ address. What it did not list was the parents’ signature and date on the bottom. The last line of the document reads, “Please return this form to the address above.” The document is dated June 5, 2013. Yet in reviewing District’s 6 in evidence (letter parents wrote to the chairperson) dated June 19, 2013 and time stamped July 1, 2013 at 11:03 by the CSE, the parent wrote the CSE that they had not received a Final Notice of Recommendation for a placement of their son. Mr. testified that any letters as to the FNR would be addressed to the chairperson of the District, here District . The June 19th letter was addressed to the chairperson. The parents’ did receive a reply to their letter DOE Exhibit

7. The date of that letter is listed as 8/14/13. A typed in date was crossed out and initiated with the date of 8/14/13. The DOE did not claim the written date which was initialed was erroneous. Included in the letter to the parents by Ms. - the Chairperson of District was the FNR dated June 5, 2014. The parent testified that she and her husband did not send their son to the first session of the program at the in that they were still waiting to hear from the DOE as to a Public School program for their son. The parents did send their son to the second session at that began in the end of July in that they could not delay his school year waiting for the District’s recommended site.

The evidence presented at the hearing as to the parents’ letter to the District on June 19, 2013 that they did not receive a placement is uncontroverted; as well as the DOE’s response to the parents’ June 19, 2013 letter, almost two months later, with an attached FNR. I find that the parents’ letter of June 19, 2013 that they did not receive a

FNR, the credible testimony of the parent (The DOE did not present any reasonable explanation from its cross-examination as to why the parents kept their son out of school in the first month of school in July beyond the explanation she presented on direct examination: waiting for the DOE’s placement. It does not logically follow that these parents, who have fought over the years for an education for their son, would keep him out of school for a month, beyond what the testimony revealed.) as to her son not attending the first session of summer school, in conjunction with the statement of Mr. that he had no independent recollection of mailing the FNR, that the District is not entitled to the presumption of mailing in this case. The District was placed on notice by the parents in the June 19th letter that they had not received a placement and yet it was two months later, August 15, 2013 (the mother testified she received DOE’s on August 15, 2013) in which the parents’ finally received the FNR.

The student therefore missed July and August of the recommended program. The parent testified that she called the school when she received DOE but the school at that time was closed. I find this alone invalidates on procedural grounds the IEP and the recommended program. See Application of the NYC Dep’t of Educ., Appeal No. 14-121 holding, “as the IHO based his determination that the district was not entitled to the mailing presumption at least in part on a credibility determination, this finding is entitled to deference and will not be disturbed.” (Page 9 of the SRO decision)

Irrespective of the above analysis and decision as to the FNR, this IHO will now turn to the substantive issue of whether the DOE program and IEP was appropriate.

I find the testimony of Ms. confusing and contradictory as to how the CSE team determined that a program was appropriate. Ms.

first claimed that the parents were satisfied with the student’s academic progress in the school, a program but not as to his .

Ms. testified that the program in the school provided more support for the student but failed to state how the programs were different as to the support for this student. She did state the student populations in the programs were different. Ms. reported that the parents were concerned of . Thus at that point in her testimony the CSE changed the program based on the parents’ concern that the student was having . In her testimony as to why the program was not appropriate the witness claimed the was too restrictive and would not provide sufficient , yet the program was restrictive in that it did not provide any with non-disabled peers. The mother testified that she was concerned with the program in that . She was concerned as to the different population in the school and the program.

Ms. when queried as to the support the student was to receive in the recommended program that was different then the support in the previous school program, and in response to such an inquiry she changed her testimony. “Support might not be the best word because the ratio is the same but the population is going to differ based on level, meaning that the school’s school years tend to be students with more needs but , sometimes but not in case. And so the population is going to shift based on those needs and that’s what I was referencing.” (Tr.

132) Thus I find in reviewing this part of the witness’ testimony, it was no longer issues for the CSE in recommending a program from a school but now the student’s academic needs. The witness testified that the student was previously in a school program and that was not appropriate, yet Ms. failed to provide any facts as to how the program was to provide more support than his prior program which the CSE designated as not appropriate.

I find from the reports, the IEP and the testimony of the witnesses this student has needs. At the he knows that and that he does not require . Mr. , the DOE witness testified that in the program a student . In the program there is only and therefore if a student has , including needs,

. Mr. informed

the parents during the visit in September, as he was informed, that there were different schools in the building and the special education classes would not be able to go outside for recess. In the 4/3/13 IEP (District’s ), it lists under management needs, supports and . Confining a student to the lunchroom is contradictory to this student’s management needs and all of the witnesses testified as to the need for such breaks and supports. I further find that under management needs, the IEP is deficient in listing the supports needed.

I find the testimony of the witnesses credible in presenting their program and that program with teachers and a allows the class ratio to be students which the DOE program does not. Ms. presented her opinion as to their program--- and the program. The fact that Ms.

never agreed with the CSE in their recommendations, does not in of itself result in her testimony being not credible. Additionally, it is only a teacher not a who should teach a student his/her academic subjects. The DOE in rejecting its own program conceded that the student required more support. More support is another teacher in the room or a teacher pupil ratio than . In failing to provide the parent with timely notice of a public school site (It was only in the August 14th DOE response letter that the FNR was presented to the parents), the student missed the entire summer sessions in the public school which was recommended on the

FNR.

I find that the District failed in providing the student with FAPE as per the 4/3/13

IEP (I do find that the goals, criteria and measurements of the goals were sufficient and appropriate; an IEP does not, contrary to Ms. require goals), the program presented and the site presented and thus the DOE has not met its burden under Prong I of Burlington/Carter.

I find the testimony of the parents’ witness credible as to the progress the student achieved during the 2013-14 school year. The witnesses described the student’s needs, their accommodations, the strategies used in class and the work he produced this year.

The school progress reports presented the issues this student faced in each class, the reports revealed the progress he did make that year. The District did not produce any rebuttal witnesses or documents to contradict the parent or her witnesses. I therefore find that the student received an educational benefit at the and it was sufficient for the parents’ to have met their burden under Prong II of Burlington/Carter. I further find that in his closing statement Mr. conceded that the parents’ met their Prong II

burden.

Lastly I find that equities weigh in favor of the parents. The parents attended numerous IEP conferences. Their son had previously attended public school. The parents visited the site and the mother testified that if she was presented with an appropriate public school placement she would have enrolled him in public school again. I find her testimony credible in that parents would rather know which school their child is attending throughout their education than worry each year rather they will win an impartial hearing.

I disagree with Mr. ’s claim that the contract between the parents and the is illusory. Non-approved private schools are fully aware of the impartial hearing process that parents must go through in determining whether the DOE will pay for their child’s tuition. Parents’ U in evidence allows the parent to withdraw their child from school which would abrogate the contract if they accept a DOE placement prior to October 31, 2013.

I therefore order the DOE to pay the the tuition for this student for the 2013-14 school year. The shall provide the DOE with the relevant documents as to the tuition cost for the 2013-2014 school year for this student.

Dated: October 28, 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

PARENTS’ EVIDENCE:

A.3/3/14 Request for Impartial Hearing 8pp.

B.Duplicate

C.Duplicate

D.8/19/13 10 Day Notification Letter II & Enclosures 25pp.

E.Duplicate

F.8/26/13 10 Day Notification Letter III 4pp.

G.9/4/13 Letter 5pp.

H.9/26/13 Letter 13pp.

I.Duplicate

J.10/1/13 Letter 4pp.

K.Duplicate

L.10/10/13 Letter 4pp.

M.10/16/12 Grade Assessments 13pp.

N.11/13 Progress Report 16pp.

O.2/14 Progress Report 19pp.

P.Denied

Q.4/28/14 Summer attendance 1pg.

S.Denied

T.Misc. Dates Summer schedule 1pg.

U.5/28/13 Enrollment Contract 2pp.

V.2012-13 Tax information 2pp.

W.--------- 13-14 Schedule 1pg.

X.---------- 13-14 Summer Contract 2pp.

Y.10/18/13 Letter 4pp.

Z.Denied

AA.4/3/14 Ms. Notes 8pp.

BB.9/12/14 Ms. Notes 3pp.

CC.ID only Ms. Notes 6pp.

DD.6/14 Progress Report 22pp.

DISTRICT’S EVIDENCE:

1.4/3/13 IEP 17PP.

2.4/3/13 IEP attendance page 1pg.

3.4/3/14 IEP Minutes 2pp.

4.6/5/13 FNR 1pg.

5.3/13 Progress Reports 60pp.

6.6/19/13 Letter 1pg.

7.8/14/13 Letter 2pp.

8.8/19/13 Letter 2pp.

9.Duplicate

10.Duplicate

11.9/26/13 Letter 6pp.

12.9/27/13 Letter 1pg.

13.Duplicate

14.10/8/13 Letter 1pg.

15.Duplicate

16.Duplicate

17.3/7/14 Due Process Response 4pp.

18.2013-14 Reports 22pp.

19.Withdrawn

20.3/8/11 Evaluation 5pp.

IHO EXHIBIT:

I.5/12/14 Decision on subpoenas 6pp