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: April 29, 2014

June 19, 2014

July 8, 2014

Actual Record Closed Date: July 28, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2014

Father (Via Telephone) — Student

Mother (Via Telephone) — Student

District Rep. (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2014

Attorney — Student

Attorney — Student

Parents

Parents

President, — Student

Foundation — Student

Attorney — DOE

Psychologist, CSE District (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2014

Attorney — Student

Attorney — Student

Father — Student

Mother — Student

DR., Witness — Student

Witness — Student

DOE Representative — DOE

Psychologist (Via Telephone) — DOE

INTRODUCTION

On April 1, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Pre hearing conference was conducted on April 19, 2014. It was established that the student was currently the second year, and parent request relates to the 2013-2014 school year. Hearing request alleges the student was misclassified and the recommended placement is not available. (T 7-8, Ex A)

DOE representative sought clarification of the hearing request and agreed to allow the parent time to amend the request. (T 14-15)

Parent was allowed until May 9, 2014 to amend the hearing request. (T 20-21, EX I)

Pre hearing conference was conducted on June 18, 2014. Hearing was scheduled to continue and request was made to extend the compliance date, and was granted. Compliance date was extended through July 9, 2014. (Ex III)

Parent had filed another hearing request regarding the 2014-2015 school year. Requests were not consolidated as indicated in Interim Order. (Ex IV)

At hearing of July 8, 2014 parties joined in a request to extend the compliance date. Request was granted an date was extended through August 9, 2014. (Ex X)

This matter was instituted by the impartial hearing request dated March 24, 2014. (Ex A)

Request was amended in writing of May 7, 2014. (Ex II)

Allegations include that the Department of Education (DOE) misclassified the student ), failed to refer the student to the Central Based Support Team (CBST) for placement, and the placement offered classroom was not appropriate. (Ex II)

Parent alleges that since no appropriate placement was offered the student was enrolled and parent seeks funding for said placement from July 2013. (Ex II)

I note that the student is at times referred to “.

Parent and DOE submitted closing statements which were considered by the IHO.

(Ex XI & XII)

BACKGROUND

IEP of May 29, 2013 includes the following information: student was about years of age, multiple disabilities classification a recommended services including a special class D 75 12:1 + (3:1), (OT), physical therapy (PT), school health services, ), vision education services, a group service health para professional (Ex 1-14), a twelve month school year (Ex 1-15),and instructional functional levels of pre-kindergarten for reading and math. (Ex 1-18)

THE PARENT’S POSITION

) and ) represented the student and parent at hearing.

contends the evidence will show the IEP is inappropriate, testing, evaluation and goals are inappropriate, IEP lacks supports to enable the student to enable him to receive an educational benefit, and recommended program is inappropriate. (T 41-42)

PARENT WITNESS DR. RONALD SAVAGE

Dr. reviewed his educational and professional background, which includes being certified in special education in New York State. (T 225-233)

is also President of the . (T 231-232)

and schools have merged. (T 232)

serves children . (T 232)

The student attends seen, observed and reviewed student records. (T 234)

“Traumatic Brain Injury, as a category in Special Education was added in 1991, the Federal Laws and then later to the New York State Law to a child who has sustained in in my book, that this the one that was used for the federal guidelines and then later expanded to the New York State guidelines.” (T 234)

Student and learning across the board. This includes “all of the cognitive areas: attention, memory, information academic performance. in terms of when he is overwhelmed, over stimulated, he will shutdown, social pragmatics. And then, in the , and sensory perceptual problems. He has for example.” (T 239)

is the student’s primary educational difficulty or need. (T 239)

Student also has difficulties in areas . (T 240)

A specifically designed teaching model to educate children Instruction. “It's intensive teacher teaching with that student in a one on one environment. And also, the extended need for . These children have also very , etc. So, the model is to use an intensive interdisciplinary model to where, in a classroom, where the environment is controlled , that you have teachers working with that child in a one on one fashion, and working and language therapists.” (T 241-242)

Class size increases environmental issues such as in the room and other factors that impeded learning for . (T 243)

. (T 243-244)

has implemented the Direct Instruction model at several locations, including

Standing Tall. (T 245-246)

The educational setting required : manage the environment, reduce distractions, minimize stimulation, and have Special Educators trained in using

Direct Instruction. “also that, rather than for occupational therapy, physical therapy, or therapy, while that certainly happens to teach them discrete skills, what we have found in terms of the model that is the most appropriate for the kids, that gets the best outcomes, is to imbed those services right within the classroom. from one situation to the next. So, we focus on an interdisciplinary model includes not only the family, but the the child's physician in or other medical concerns and we do that in an environment that is well and has minimal distractions.” (T 246-247)

Classroom size can vary from . A ratio may be appropriate for a student with a mild brain injury, but not someone like the student in question. (T 248 & 259)

Students in the Standing Program each have a (T 248-249)

Results are measured through the IEP and overall health. (T 250-251)

A program primarily consists of habilitation, maintenance to keep students where they are so they do not regress. Program works on activities of daily living. (T 255)

This program is not appropriate for the student who requires much more 1:1 instruction by a special educator. (T 264)

A classroom is appropriate for the student, with a paraprofessional assigned to each child, and related services introduced in the classroom “embedded in the special education program“. (T 260-261)

identified the student’s 2013-2014 IEP. (T 261-262, Ex 1)

believes the IEP to be inappropriate. Student needs more supports and services and a different model of instruction. (T 262)

object to the amount and way the related services are recommended to be provided. (T 262)

Student requires more service and not . (T 263)

Student requires at least an hour each day four to five times a week of and speech. (T 284)

Student program consists of 15 students with acquired , 1 teacher for every 6 students and para professional for each student. (T 265-266)

The teaching model at the school was a special educator, as well as occupational therapy, Education…Those services were presented in what we would call a push-in program. Those are services that were provided primarily within the classroom setting, but conductive education which is very similar to adaptive physical education was also offered to students outside the classroom.” (T 266)

Goals and objectives were produced for each student as part of the IEP process, data was collected and student progress followed. (T 267)

Progress is measured with standardized, norm referenced and criteriareferenced measures. (T 268)

Student needs were addressed during the 2013-2014 school year by having the student in an environment that was not overly stimulating, a good teacher student ratio, . (T 269)

was asked how student medical needs were addressed: “His medical providers, that information was part of his school record so that all the staff there were familiar with his medical condition, as well as medications and those kinds of things so that they could keep track of that as they .” (T 270)

Visual needs were address by having a vision expert work with the student as well as training staff to work with the student in terms of his educational program. (T 270)

Regarding student feeding needs: “in , , those needs were all incorporated into his educational day program.” (T 270)

Student assistive technology needs were addressed “by an expert out-of-state who consulted with the program and set up an individual program for him so he could better understand us and we could better understand him.” (T 271)

“…his toilet needs are very specific, they're very detailed. Directions came from physicians, nursing consultants, and the teachers .” (T 271)

Some goals created were included in the Student’s IEP and some were not.

Those not included were “especially in the area of communication”. (T 272-273)

During the 2013-2014 school year the student made progress academically in the areas of early literacy and language skills (T 273) and in social functioning in his communication and by becoming more social with his peers (T 274).

Communication progress is noted to be in that “He was able to demonstrate simple wants, needs, some preferences, and the CommuniCam system that was individualized for him allowed him to express that.” (T 274)

to have been an appropriate placement for the student for the 2013-2014 school year. (T 275)

believes the student needs a specific behavior management program to address behaviors. (T 280)

was providing services as recommended in the IEP, though believes the student required additional services. (T 285)

PARENT WITNESS

the student’s mother, recalled the student’s ho he (T 295-297)

Student received early intervention services and came to attend school, continuing to receive special education services and therapies. (T 297-298)

An IEP was developed for the student and a placement offered, and site visit took place. (T 297-301)

not accept the placement offer and the student was ultimately enrolled at in August of 2012. (T 301)

attended another IEP meeting of 05/29/2013. (T 304)

provided some information to the CSE by phone and provided information as well, in preparation for the IEP meeting. (T 303-304)

expressed concerns regarding the student’s disabilities and requirements for his education. (T 304)

Concern included: “ …a heightened startle response…so wouldn't bother another, my other where he important that he be able to learn and eat in a quiet environment. He takes, in the past it's been very hard to get him to take medications because he doesn't like things that , so we give . One is in the morning, we mix with a nutritional supplement and he takes it with a bottle, and nursing and you're trying to do it in , they're looking around and they're distracted, and so he has a hard time focusing on eating if there's a lot of noise and distraction, coming and going, so I also mentioned he's room where there's a lot of people like if it's a birthday party or on the subway train or someplace where there's a lot of noise. If he's in a place that's very quiet where there's maybe an echo or he gets much more vocal, much more expressive.” (T 305-306)

also raised toileting concerns and (T 307-308)

Parent believes she also raised concern over kidney. (T 309)

Parent detailed communication issues of the student at the IEP meeting. (T 310-311)

“I remember saying specifically that I thought it was important that he be in a small classroom where there wasn't, there weren't children who were loud and upset because he catches the moods of, he's very sensitive to the moods of other kids, so if he's totally fine and there's a kid crying next to him, he will then start to cry, and then the kid who be, will have moved on and gotten to fine, but we're still trying to get…back…I remember specifically saying that that would involve a concerted effort to kind of redirect him if he got upset based on other kids being upset.” (T 311-312)

Parent received a letter in July indicating placement and visited the placement twice. (T 313-314)

MP looked at two classrooms. Classrooms had Smartboards and a Yoga program that would not benefit the student. Students did not get to go outside. (T 315-316)

raised a concern about , which was large. Student and lighting is particularly disturbing for the student. (T 316-317)

did not feel the placement was appropriate and wrote the CSE as she had done the previous year. Letter details her concerns. Parent does not recall a DOE response or offer of another placement. (T 318-319, Ex B)

Later in the summer enrolled her child and advised the DOE. (T 320)

Parent signed an enrollment contract and made payments under the contract to

Standing Tall. (T 320)

Student for the 2013-2014 school year. (T 321)

notes that during the 2013-2014 school year student toileting improved, he started being able to spell his name, and was able to navigate the phonics book using a switch to communicate.

(T 321-322)

Student also was consistently selecting the correct choice for things like bigger and smaller. (T 324-325)

Socially the student has the opportunity to get to know other children and has increased his tolerance and willingness to be around other children. He had been pretty isolated prior. (T 325-326)

to have been and continue to be an appropriate placement for her child. (T 327)

One reason the student needs a para is that he has a tendency to put objects in his mouth. (T 327)

Student had a “She's like a conduit, a mouthpiece for him because she has spent so much time observing him and seeing him in different situations and circumstances that she is able to set up an environment where he can perform to the best of his abilities.” (T 327-328)

DEPARTMENT OF EDUCATION POSITION

), DOE Attorney, presented the DOE position.

contends the evidence will show the student was appropriately classified, appropriately recommended to a program, and equities favor the DOE as the parent was “not interested in a public school placement“. (T 39-40)

DOE WITNESS

) reviewed his educational and professional background and testified as a DOE school psychologist who attended the IEP meeting of 05/29/2013. (T 44-47, Ex 1)

described his role at the IEP meeting: “As a school psychologist, I was involved in interpreting evaluations and reports, profiling the student's strengths and weaknesses, and in participation with my other team members and deriving goals, coming from this profile, and assigning an appropriate classification, and making recommendations as to special education services that might enable the child to reach those goals…As a district representative, I Chaired the meeting. I represented the Department of Education in the meeting with the parents of this child and worked together with them in fashioning the IEP and creating the IEP.“ (T 48)

Student was accurately given the classification multiple disabilities: ”Because he had significant delays in a number of basic aspects of his development.” (T 48-49)

continued to justify the classification: “Because has very significant , living, taking care of himself. He also He has a high level of need in all areas. He has a high level of disability in a number of areas which occur together. He has multiple disabilities.” (T 49)

does not think there was any disagreement as to the classification at the time of the meeting. (T 49)

Program recommendation was discussed at the meeting and arrived at by developing a profile for the student and discussing the best setting for the student. (T 50)

Other setting s were considered. (T 51, Ex 20)

Regarding the program recommendation states: “we felt that, with the continuum of services and with the programs that the DOE had developed, that we did have a program which was a , which felt, given the profile of strengths and weaknesses, given…a social youngster who was generally responsive to classroom situations, that his needs could be addressed in that program. That's why we didn't petition or suggest to the Department that they ask the state for a nonpublic school.” (T 52)

believes the program would provide a high ratio, a level of safety and security, a high level of paraprofessional support and a high level of available support. (T 52)

NO testifies that the student was recommended a one-to-one para professional: “Because he's a high level of medical situation and because he also made use of a paraprofessional in communicating and in his engagement with the classroom. Because we were also aware that, in his present setting And we felt that that was probably acknowledging the level of support that he had been making progress in, and that it was I be continued in the program recommendation, in the program that we were making, as we were aware that our program would not be the program where he currently was placed.” (T 53)

confirmed again later in his testimony that he believed it was necessary for the student to have a Paraprofessional. (T 95-96)

Progress reports from related service providers led to related service recommendations. (T 53-54)

does not recall any objection to the related services. (T 54)

is aware of the student’s medical condition which includes seizures and vision impairment. (T 55-56)

testified as to being “quite certain” the parent did not raise the issue of classification at the meeting. (T 64)

The four referred to in the recommendation refers to the number of paras. (T 100)

A group para is shared by student, the number of which would be reflected in the IEP. (T 105)

When asked why the student’s IEP does not reflect a stated it was a clerical error. (T 106)

states that at the onset of the IEP meeting the parents were informed the team could not , the student’s then current placement. (T 109)

could not recall if the parent wanted the student to remain at (T 111)

was aware had a ratio. (T 115 & 123)

is not sure if the parents wanted to keep their at the time of the meeting. (T 123)

could not say the parent’s agreed with the recommended placement, stating “They had reservations about the vision.” (T 125)

Parent expressed concerns at the meeting including having a program that would be able to fully address the student’s difficulties, . (T 135)

Witness could not recall any parent concerns regarding the size of the classroom or noise level. (T 135-136)

states that the parent did have concerns regarding several areas of student difficulty, that were discussed at the meeting. (T 137)

testifies that it is fair to say he did not reflect any of the parent concerns in the IEP, where it would normally be included. (T 137-138)

Regarding measurement of a goals states: ” Well, it is detailed in the IEP that he is nonverbal, and so, obviously, it would not be answered directly and that his communication is going through an augmentative communication device.” (T 166)

supports the program recommendation noting it would match the level of support the student was currently receiving. Student class would have four para professionals and an individual para, plus related services. (T 96-97 &212)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 unique 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. § 1400[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]).

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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 procedural violations are 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 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], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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]).

The IDEA directs that, in general, 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. § 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 educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 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 (LRE) (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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth 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 propriety 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 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).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT FOR the 2013-2014 SCHOOL YEAR

DOE FAPE and resultant placement offer for the student for the 2013-2014 school year are inappropriate for the reason set forth below.

DOE witness, who intended to support the IEP and placement, offered testimony as to the insufficiency of the IEP and placement.

testified to the need of the student for a , a high level of paraprofessional support and a high level of available support. (T 52)

confirmed later in his testimony that he believed it was necessary for the student to have a . (T 53 & 95-96)

supports the recommendation noting it would match the level of support the student was currently receiving. Student class would have four para professionals and an individual para, plus related services. (T 96-97 &212)

Parent witness detailed why such a class ratio was not appropriate for the a student, who had such a high level of need. (T 248 & 259)

No para professional appears in the IEP. When asked why the student’s IEP does not reflect stated it was a clerical error. This does not excuse the failure to provide what the witness already identified as a necessary service for the student.

Provision of a group para, shared by students, is not an adequate substitute for the 1:1 para (T 105-106)

IEP also fails to identify gals for any para to address student needs. IEP fails to include para information or a goal related to the need to have the student environment monitored as described by the parent. This would also include a goal related to the student . Parent clearly understands and presented the specific need for the para. This included a need relative to make sure there aren't things . (T 327329)

detailed why he believes the student was accurately given the classification of multiple disabilities, basically attributing the classification to the student high level of need and various challenges. ”… , motor functioning, adaptive skills, living, taking care of himself. He also . He has a high level of need in all areas. He has a high level of disability in a number of areas which occur together. He disabilities.” (T 48-49)

I do not find the testimony of the witness to be credible regarding a lack of disagreement as to the classification at the time of the meeting. testified as to being “quite certain” the parent did not raise the issue of classification at the meeting. (T 64)

Witness contends that he could not recall if the parent wanted the student to remain at . (T 111) was aware that . (T 115 & 123)

Later testifies that he is not sure if the parents wanted to keep their child at , at the time of the meeting. (T 123)

Somehow contends that he was not sure if the parents wanted to keep their child in the current placement while testifying “It was stated at the outset that we could not recommend (T 109)

There would be no reason to set forth such information if the team, or at least , had not been aware of the parent’s intention to keep the student at placement, with the current class ratio.

declined to answer several direct questions regarding parent disagreement with the recommended placement. Instead stated “They had reservations about the vision.” (T 125)

I find the testimony of credible in that she raised an issue regarding the proposed placement. This is apparent based, in part, upon testimony that included the parent had already disagreed with the same placement offered the previous year. (T 326-327)

I find the parent testimony credible regarding raising concerns at the meeting, including those regarding class size which impact upon the program recommendation. (T 311-312)

Witness could not recall any parent concerns regarding the size of the , though he states that the parent did have concerns regarding several areas of student difficulty, that were discussed at the meeting. (T 135-137)

Concerns of the parent are not adequately reflected. testifies that it is fair to say he did not reflect any of the parent concerns in the IEP, where it would normally be included. (T 137-138)

IEP does note in one area intended for parent concerns that the student “continues to require a” and then fails to include any additional information. (Ex 1 1)

’s testimony evidenced her to be an informed and insightful parent and caregiver. Information provided at the IEP meeting does not appear in the IEP. detailed several areas of concern and student need that are of importance for the student which are not included in the IEP. This includes information necessary regarding student medications and sensitivity to the environment. (T 305-306)

IEP management needs are lacking in that they do not include parent concerns and student needs relative to . (Ex 1-2)

Regarding measurement of a goals states: ” Well, it is detailed in the IEP that it would not be answered directly and that his communication is going through an augmentative communication device.” No specific augmentive communication device appears in the IEP. IEP generally refers to assistive technology as “Picture Communication and Switches“ which is not sufficient to address the student‘s specific needs. (T 166) Student uses a particular switch tailored to his needs. (T 324)

Contrasting the DOE IEP the Student’s communication needs were shown to have been met by a specifically tailored program that included a CommuniCam system. (T 275) Student also uses a Tobii C-12 (T 293) an ipad (T 335) and a (T 335)

Some assistive technology since it is specifically identified in the DOE documents, though not included in the IEP. This includes the Communican Program (Ex 4-1) and (Ex 5-2).

IEP does contain goals relating to a communication device and communication system. However, this device and system are in no way defined or identified making the goal meaningless. (Ex 1-8 & 1-9)

I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

I also find the parent was not afforded the opportunity to appropriately take part in the IEP meeting. This finding is due in part by the failure of the DOE to reflect parent concerns in the IEP. Failing to reflect parent concerns or even acknowledge the parent’s disagreement with the classification and placement make it impossible for the IEP to reflect parent involvement in its creation.

The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

I find the IEP and resultant placement offer for the 2013-2014 school year to be inappropriate.

CLASSIFICATION

DOE IEP classifies the student as multiple disabled. (Ex 1-1)

defends this classification based upon the fact that the student does indeed have multiple disabilities. “He has a high level of need in all areas. He has disability in a number of areas which occur together. .” (T 49)

This does not take into account the impact of the classification upon the student’s unique educational needs. Those needs are evidenced to be more accurately identified with a classification

Parent witness detailed the characteristics of children and the resulting educational needs of the student. and . This includes “ : will . And then, in the , . He has for example.” (T 239)

is the student’s primary educational difficulty or need. (T 239)

detailed in detail. (T 234-236)

Classification of as evidenced clearly coincides with the definition contained in the Regulations of the Commissioner at 200.1 (zz) (12) means an acquired injury to the behavior, physical functions, . The term does not include injuries .

I find the student to have been classified improperly at the IEP meeting of 05/29/2013. Student classification should have been reflected

PLACEMENT FOR THE 2013-2014 SCHOOL YEAR

detailed the program . This included the educational model and how it is appropriate for the student.

. (T 232)

detailed the impact on educational performance and learning (T 239); specifically designed teaching model to educate children (T 241); and the characteristics of Direct Instruction (T 241-242 & 246-247).

Student environmental issues such as class size, noise and lighting are addressed at Standing Tall. (T 243-244)

Students in the each have a as required y the needs of the student, and lacking in the DOE offered program. (T 248-249)

Student program consists of 15 students with , 1 teacher for every 6 students and a para professional for each student. (T 265-266)

The teaching model at the school was a special educator, as well as occupational …Those services were presented in what we would call a push-in program. Those are services that were provided primarily education which is very similar to adaptive physical education was also offered to students outside the classroom.” (T 266)

Goals and objectives were produced for each student as part of the IEP process, data was collected and student progress followed. (T 267)

Progress is measured with standardized, norm referenced and criteriareferenced measures. (T 268)

Student needs were addressed during the 2013-2014 school year by having the student in an environment that , a good teacher student ratio, , education. (T 269)

detailed how the , and technology needs were met . (T 270-271

During the 2013-2014 school year the student made progress academically in the areas of (T 273); in social functioning in his communication and by becoming more social with his peers (T 274); and in communication in that “He was able to demonstrate simple wants, needs, some preferences, and the CommuniCam system that was individualized for him allowed him to express that.” (T 274)

to have been an appropriate placement for the student for the 2013-2014 school year. (T 275)

Parent also noted student progress: toileting improved, he started being able to spell his name, was able to navigate the phonics book using a switch to communicate (T 321-322); was consistently selecting the and smaller (T 324-325); and socially the student has increased his tolerance and willingness to be around other children (T 325-326).

to have been and continue to be an appropriate placement for her child. (T 327)

I find the educational instruction designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-20143 school an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

PREDETERMINATION / PARENT PARTICIPATION

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice."]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]).

Moreover, the consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P., 554 F.3d at 253; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. Of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 333-34 [E.D.N.Y. June 13, 2012], aff'd, 2013 WL 3868594 [2d Cir. July 29, 2013]; D. D-S v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-11 [E.D.N.Y. Sept. 2, 2011], aff'd, 2012 WL 6684585 [2d Cir. Dec. 26, 2012]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K., 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D. D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009], aff'd, 2010 WL 565659 [2d Cir. Feb. 18, 2010]).

I find the DOE did not afford the parent the ability to participate in the IEP meeting or in the creation of the IEP of 05/29/2014.

Parent concerns were not acknowledged at the IEP meeting nor at the hearing.

that it is fair to say he did not reflect any of the parent concerns in the IEP, where it would normally be included. (T 137-138)

Witness testimony evidences a lack of regard for the parent and parental input as part of the IEP process. contends that he could not recall if the parent wanted the student to remain . (T 111) However, testifies that he is not sure if the parents wanted to keep their , at the time of the meeting. (T 123)

Somehow contends that he was not sure if the parents wanted to keep their child in the current placement while testifying “It was stated at the outset that we could not recommend Standing Tall.” (T 109)

There would be no reason to set forth such information if the team, or at least , had not been aware of the parent’s intention to keep the student at placement, with the current class ratio.

declined to answer several direct questions regarding parent disagreement with the recommended placement. Instead stated “They had reservations about the vision.” (T 125)

I find the testimony of credible in that she raised an issue regarding the proposed placement. This is apparent based, in part, upon testimony that included the parent had already disagreed with the same placement offered the previous year. (T 326-327)

I find the parent testimony credible regarding raising concerns at the meeting, including those regarding class size which impact upon the program recommendation. (T 311-312)

Witness could not recall any parent concerns regarding the size of the classroom or noise level, though he states that the parent did have concerns regarding several areas of student difficulty, that were discussed at the meeting. (T 135 -137)

Concerns of the parent are not adequately reflected to say he did not reflect any of the parent concerns in the IEP, where it would normally be included. (T 137138)

IEP does note in one area intended for parent concerns that the student “continues to require a” and then fails to include any additional information. (Ex 1 1)

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting (Ex 1-21), participated in requested social history report (Ex 4), visited the proposed placement and communicated her concerns to the DOE (Ex B).

Parent notified DOE of her rejection of the DOE placement offer through her letter of July 2013. (Ex B)

Parent also provided notice through attorney letter of 08/23/2013. (Ex C)

The CSE was also aware of the parent’s intent to seek placement as evidenced not only by the parent’s concerns raised at the meeting, but also by the testimony of who testified that at the onset of the IEP meeting the parents were informed the team could not recommend the student’s then current placement. The only reason to so inform the parents would be if the CSE was aware the parent was seeking such a placement. (T 109)

documents relative to tuition include Enrollment Contract for the 2013-2104 School Year (Ex J) and Payment Affidavit (Ex I). Total tuition is $105,200.00 inclusive of 12 month tuition and related services. Of this amount a balance of $21,955.00 remains. (Ex I)

I find that the parent is entitled to full tuition reimbursement in the amount of $105,200.00.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 school year.

2. The parent shall be reimbursed for any payment made for 2013-2014 school year tuition and related services.

3. Total amount to be reimbursed or directly funded is $105,200.00.

4. DOE shall provide parent any required documentation and forms necessary to facilitate payment and/or reimbursement within ten days of the date of this order.

5. This decision is subject to appeal and review by the State Review Officer. Dated: August 8, 2014

Daniel Ajello, Esq. gc

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 04/29/2014

A Impartial Hearing Request, 03/27/2014, 1 page

ENTERED 07/08/2014

B Parent Letter, July, 2 pages C Transportation Request Notice 8/23/13 D Letter from Psychologist 2 pages E Letter 2 pages, 6/15/14 F Assessment, dated 04/28/2014, 10 G Description of Continuum, 56 pages H DOE SOP, 305 pages I Tuition affidavit 7/8/14, 1 page J Contract 2013/2014 academic year, 9/15/13, 15 pages

DEPARTMENT OF EDUCATION

ENTERED 06/19/2014

1 IEP dated 5/29/13, 21 pages 2 Final Notice of Recommendation dated 7/2/13, 1 page 3 School Report dated 2/5/13, 4 pages 4 Social History Report dated 4/25/13, 5 Report dated 4/13/13, 14 pages 6 Therapy Report dated 5/28/13, 1 page 7 Physical Therapy Report dated 5/2/13, 3 pages 8 Physical Examination dated 10/25/12, 3 pages

IMPARTIAL HEARING OFFICER

ENTERED 06/19/2014

I Prehearing Conference Summary and Order, dated 5/1/14, 1 page II Due Process Complaint dated 5/7/14, 2 pages III Interim Order dated 5/20/14, 10 pages IV Interim Order dated 6/12/14, 8 pages V DOE Notice of Appearance dated 6/17/14, 1 page VI P. Notices of Appearance dated 6/6/14, 2 pages VII E-mail to Parties dated 4/1/14, 3 pages VIII Extension Order dated 6/18/14, 3 pages

ENTERED 07/08/2014

IX Notice to the Parties, dated 05/24/2014 3 pages

ENTERED 07/28/2014

X Extension Order, dated 07/09/2014, 3 pages XI Parent Post Hearing Memorandum, dated 07/28/2014, 27 pages XII DOE Closing Brief, dated 07/28/2014,13 pages