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: May 14, 2014

June 2, 2014

June 17, 2014

Actual Record Closed Date: July 23, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2014

Attorney — Student

Parents

Parents

DOE Attorney — DOE

School Psychologist (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 02, 2014

Attorney — Student

Parents

Parents

Teacher (Via Telephone) — Student

Teacher (Via Telephone) — Student

Head of School (Via Telephone) — Student

DOE Attorney — DOE

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

Attorney — Student

Parents

Parents

Attorney — DOE

INTRODUCTION

On 04/03/2013, 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.

On 06/06/2014 parent made a motion, via email, to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to 07/16/2014.

On 07/07/2014 parent made a motion, via email, to extend the compliance date to allow for attorney due to family issue which would be taking up his time, and to allow additional time to submit closing brief. Department of Education (DOE) attorney had no objection. Motion was granted and compliance date was extended to 08/06/2014. (Ex III)

This matter was instituted by the impartial hearing request dated 04/02/2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 10)

Relief sought includes funding or reimbursement for unilateral placement at the ) and a declaratory finding that the student’s right to a FAPE was violated. (Ex A 11)

I note that the transcript of 06/02/2014 incorrectly identifies the DOE Attorney as , when in fact it .

I note that in transcript of 06/17/2014 is sometimes referred to as Mr. Shore.

BACKGROUND

IEP of 05/29/2013 includes the following information: Student and 8 months, that holding and (Ex 5-1); learns best using a , test anxiety may be impacting school performance, he may refuse to participate without prompts, prone to becoming others, and difficulty staying focused in large groups as well as peer engagement and social connectedness, after school. (Ex 5-2)

Physical development notes additional information regarding the student in that he has and core strength that limit gross motor functioning. Student seeks out vestibular input, , which can . Student responds well to movement breaks, deep pressure, and vestibular input, are recommended. (Ex 5-3)

IEP notes that there are concerns that given student’s “tendency to become easily overloaded by that a regular size class may also interfere with his ability to work up to his potential and to make appropriate progress.” (Ex 5-3)

Recommended services include an Integrated Co-Teaching program for 30 periods weekly, in a group of 3, once weekly for a 30 minute session, and once weekly for an individual, 30 minute session three times weekly, individually, for 30 minute sessions, and ) individually for three, 30 minute weekly sessions. (Ex 5-7)

IEP recommends special education transportation and identified the student instructional/ functional level as kindergarten for reading and math. (Ex 5-10)

THE PARENT’S POSITION

(SC) presented the parent’s position via hearing request, throughout hearing and through Memorandum of Law in Closing Argument. (Ex A & I

PARENT WITNESS MELISSA GILBERT

) reviewed her educational and professional background and testified as a special education itinerant teacher (SEIT). “My job is to work one-on one with the child to help them adapt to their current general ed setting, working with them one-on-one to work on the skills mandated by their IEP. So - - general ed teachers work with that child as best they could in the general ed setting in the least restrictive environment.” (T 138-139)

worked with the student for the 2012-2013 school year as an SEIT for ten hours weekly. (T 139)

For the 2012-2013 school year the student was in a general education setting, with one head teacher, a co-teacher, a floater (classroom paraprofessional), and about 20 students. Student received . (T 140)

Student made progress, though not as anticipated, and was really anxious. Student struggled because the class size . Student the end of the school continued to grow. (T 140)

Student had social skill problems including talking to himself and saying random things. He was not up to the level of his class mates when it came to play skills or social skills. (T 141)

Student required step by step instruction to successfully complete a task. (T 141-142)

communicated with the classroom teacher. “…when I wasn't there he seemed to do worse because he didn't have like I was. I had to hover over him in order to get him to be successful. When I wasn't there, the two teachers and the floaters coming in every now and then there wasn't enough support in order to provide him that They would try but because there were other children that he needed to attend to, he would and get and not be as productive.” (T 142-143)

discussed student needs with when the classroom observation was conducted. This discussion included relations, about finding the appropriate program for the student. indicated it seemed like the student needed a gifted program with a smaller program, indicated the DOE did not offer such a program. An ICT was indicated the class size was too large for the student. indicated the ICT was the best the DOE could offer. (T 144)

participated in the IEP meeting of 05/29/2013. Parties raised concerns regarding class size and that a larger class would not provide adequate student support. “The gist of the meeting was we can't do any better than the ICT classroom, and we all said, well again that is too big of a classroom setting for him, he is going to do poorly in there. We believe that many children are going to affect his ability to perform appropriately in the classroom, and they said, well, that is the best we can do, our hands are tied.” (T 146)

does not recall discussion or review of any documents at the meeting nor any discussion of the classroom observation that was conducted. did not see any documents before the parties at the IEP meeting. (T 147 & 167)

believes that in an ICT program the student would be completely overwhelmed and I would be detrimental to his ability to perform, and student due to student being seen as odd. (T 148)

the student would not be appropriately served in a class of 15 students. (T 148-149)

has referred students to ICT class in the past. (T 149)

PARENT WITNESS

reviewed her educational and professional background and testified as a certified general and special education , responsible for teaching all academic areas except math. has been the student‘s teacher since September. (T 169-171)

Class has ten total students ages 6 and 7, two teachers and a classroom para. (T 171)

Teacher and co-teacher equally share instruction the students. Classroom para is supervised, occasionally provides one-on-one academic support, keeps students on task, refocuses and redirects students, provide student breaks, and provides praise and reinforcement. (T 181-182)

Student started the year as an emergent reader, Level A, and has grown to an instructional Level D, which is Kindergarten Level. Reading levels in the class go up to about 3rd grade. (T 171-172)

All students in the class are not classified by the DOE. Those classified include classification of autistic, learning disabled, and other health impaired such as

ADHD. (T 173)

Student fits into the class academically and is verbal, loves to express opinions and share ideas, and takes risks by raising his hand. Student is at grade level in reading, writing, science and social studies. (172-173)

Socially the student is more on “the alone side”. He will occasionally parallel play. Student is starting to feel more comfortable initiating conversation or play with classmates when it is one of his interests. (T 173)

Co-teacher is also certified in general and special education. (T 174)

described student academic challenges, and how they are addressed. “…struggles in reading, and we address those by giving him lots of one-on-one support. We've increased his sight word knowledge. We have a word wall in our classroom which he can refer to as well so also has a continuum of those sight words. We practice reading through Just Right books…which are at an appropriate level for him, and we read those books with constant repetition…we'll also have individual conferences…during our reading workshop and we'll focus on things such as story elements, maybe characters or settings, maybe strategies such as retell or fluency. In the areas of writing…presents a challenge with his handwriting, so we have collaborated with our occupational therapist, Abby, and we provide…special paper that has raised lines to help him keep his words within a specific frame, and we also give him a pencil with a unique grip on it…we'll provide lines on paper for him if lines are not given, we make the accommodation of providing the dotted lines…a point of reference. As far as…independent work, we support him heavy one-on-one because he needs help getting started with almost all academic subjects, and we give him lots of check-ins, redirection, we might rephrase our instruction…we might assist him in writing, and we might use reinforcement and encouragement…” (T 175176)

Student is and frequently needs the help of a if he is feeling overwhelmed. His . Support includes taking a break, and the school psychologist being on hand. (T 176-177)

issues include working on pragmatics, understanding personal space, keeping an appropriate distance when communicating, and appropriate voice volume. (T 177 178)

Student can be overwhelmed in a large group so he is offered breaks if he is becoming overwhelmed. in any group beyond a class size of ten. One-on-one attention is given to guide him if he is . School psychologist is also available. (T 178)

Student was in a performance with more than ten students and became . (T 178-179)

A is used during the school day. This includes pictures, charts, graphic organizers, posters, videos, touch, clapping, and lots of directions and prompting. (T 180)

described the teacher’s college workshop model of instruction and is used in the class room. (T 180)

Students are broken into small groups daily. (T 183)

Student reading groups are determined through assessment. (T 183)

Student math instruction is reflected Student shows strong counting proficiency and is currently Student with getting ideas on paper and can become easily frustrated. Accommodations include one-on-one teacher assistance, encouragement and homework that student can do independently. (T 188-189, Ex N 7-9)

Student is in a math group with other student who are on grade level. (T 189)

reviewed student schedule. Additional classes each include ten total students and various levels of support, of minimally a teacher and assistant or para. (T 190 194)

speaks with other student teachers informally daily and at weekly staff meetings. (T 194)

Progress is measured through a developmental reading assessment, Fountas and Pinnell, informal assessments, observations, and Singapore Math assessments. (T 194-195)

Some student goals are and progress is accurately reflected in the report. (T 196, Ex N)

Student has improved in all academic areas, including reading, handwriting, and math. (T 196-197)

Student has improved socially with pragmatic language, having built skills for turn taking. (T 197)

Student receives related services of a group and individual session of each of counseling, , and OT. (T 198-199)

has discussed the student with each provider and testifies that the student has made progress and student needs are being met in each related service area. In OT progress includes has decreased. (T 199-203)

Student needs a sensory gym and has access to the gym during PE and OT. (T 201)

does not believe the student needs physical therapy sessions. have a physical therapist. (T 203 & 207)

to be appropriate for the student because it provides: “small class size with heavy teacher support…our low teacher to student ratio…students in his classroom who are high cognitive functioning peers in which he can relate to and he feels comfortable…service providers on hand, and they're easily accessible in our small school, and we're able to collaborate with them frequently and then integrate those ideas and suggestions into our classroom…small class size is the key…because if he's in social situations where there is too many people he . He , and on may . So I believe that here he is making such tremendous progress because he feels safe, he feels comfortable, and he's receiving all that extra attention and support that he requires.” (T 203-204)

program would be appropriate for the student due to the large class size and student need for support. (T 206)

PARENT WITNESS

) reviewed her educational and professional background and testified as the , describing the school mission as to “serve a unique social/emotional and academic needs of twice exceptional children.” Twice gifted refers to academically gifted students who have some type of diagnoses related to learning. (T 221-224)

reviewed the qualifications and role of various school staff, including, head of admissions director of pedagogy, school psychologist, and learning specialist. (T 225-226)

Staff meets formally once a week. (T 226)

Student is in class, which also contains one second grade student. (T 226)

observes students daily and was involved in the student’s admission process. (T 227)

Admission process includes a review of student records, discussion with school teachers, a visit by the parents, a visit by the student and review by the school team to decide if an offer will be made for the student to attend. (T 251-252)

Student was accepted being seen as a good fit, being a very bright child struggling with challenges that Lang was prepared to remediate. Challenges included “He was . And when adults in the classroom supported his social interactions, he responded well to that. And he was able to keep up academically.” (T 227-228)

has a total of 36 students. (T 228)

Program overview is applicable to the 2013-2014 school year. (T 229, Ex O)

Student “ that he came to us with, but so…he can feel overwhelmed with tasks that he is concerned that he doesn't have the ability to complete successfully whether or not that is true, . He can be rather . He had a history coming to us of being very exhausted and discouraged at the end of a school day when he went home. He has, historically had, and still . Writing is a big challenge, fine motor skills. And when he came to us, he wasn't a reader yet, or a write yet, which was age appropriate, but he is now both.” (T 229-230)

described aspects of the student program. Reading program is differentiated, student fine motor issue, identified as lack of core strength, is addressed by OT and PE, and social development is addressed by observations and continuous staff development. (T 230-232)

Classroom is designed with the OT team so that students do not feel overwhelmed. Design includes the room being completely carpeted, with some areas having two layers of carpeting so there are no echoes or noise, special chairs that are flexible with foot rests, a large digital clock, a visual schedule, a SMART board and a class library. (T 233-235)

provides ongoing staff development and training. (T 235-238) Student is fitting in academically and . Student learned to write this year, is using upper and lower case letters, student became a reader this year and sometimes socializes independently. (T 238-239)

Related service providers are all New York State licensed. (T 240-241)

is an appropriate placement for the student for the 2013-204 school year. (T 243)

does not believe a DOE ICT program would be appropriate for the student. “I think it would be very hard for him to be productive and to not feel overwhelmed by the size of the class. Number two, the chances are in the Department of Education the . It's not set up to meet a needs…I think …He . I have a hard time imagining him being able to learn effectively in that kind of classroom.” (T 245-246)

PARENT WITNESS

the student’s mother, described the student’s early history. This included a difficult child birth, teacher that he was not interacting with any one in the classroom and was withdrawn. observed her son in class, saw issues and began to have the student evaluated. (T 271-275)

Evaluations disclosed problems, and a sensory processing disorder. (T 276277)

A meeting was held with the DOE and a SEIT was recommended for extra help in the classroom as well as . (T 277)

The SEIT, visited the home and student before commencing services and did not see student issues present in the home. (T 279)

describes the student in a classroom setting. “The minute there are 20 children present and the chaos of the classroom and everything else that's there, he goes into what I would call basically an autistic state. He . He cannot communicate…he is not there with his peers, he is just not a normal kid. me at the end of that day and said, if you hadn't warned me, I would have never believed you, wow, you know, and she spent that entire year of the fours trying as best as she could she worked, and she worked really hard, and my son made a minimal amount of progress.” (T 280)

continued as the student’s SEIT for the following year. Class had 19 students, two teachers and a floater (classroom para). Student engaged private therapists as developed and he was being bullied in the classroom. (T 281-282)

Additional evaluations were done and the turning five meeting came for the student. (T 282-283)

completed an application for admission form for the student to attend the local DOE school. (T 284, Ex E)

provided consent for the DOE to evaluate her child. (T 287, Ex F)

Parent provided the DOE with a copy of obtained, prior to the turning five IEP meeting. Letters included reflect steps made to schedule the meeting. (T 290292, Ex G, H & 3)

identified letter from Dr. , who was working with the student, which included recommendations. Letter was provided at the IEP meeting to all parties. (T 293, Ex B)

At the IEP meeting of 05/28/2014 there was no parent member present. The role of such a party was not explained. (T 293-294)

did not receive a copy of the pre-school observation or classroom observation prior to or at the IEP meeting. Said documents were not reviewed at the meeting. (T 294-295, Ex 1 & 2)

did not receive any documents from the CSE team prior to or at the IEP meeting. (T 295-296)

was discussed at the meeting. , who completed the evaluation, was also attended the meeting, along with other student teachers and service providers. (T 295-297, Ex 3)

Parent recalls “every single person who had spent time with (the student) during the fours and had worked with him to help him was present at that meeting, and every single person made statements regarding their work…their evaluation…and their feelings about what (the student) needed for the coming year.” (T 297)

Dr. , at the meeting and through her report indicated that the student required a very structured, very small environment to address student needs, including sensory issues and anxiety. Class size was recommended to be no more than ten students in order for the student to maintain focus and ability to participate and not get overwhelmed. (T 298)

Dr. indicated the student needed a very small, very structured environment. Other parties who knew the student indicated a similar position for the student‘s upcoming program and placement. (T 299-300)

DOE representatives at the meeting listened and indicated they could not pass the matter off to the central committee because their hands were tied. “They said it would be rejected because (the student) had a myriad of issues, there was no one thing they could point to, and so it would be rejected, and so they were not going to pass it off, they were simply going to recommend an ICT classroom, and we all went crazy and we said an ICT classroom is not going to work for this child, how can you recommend an ICT classroom? And they said we can recommend an ICT classroom because it's all we have. And we looked at each other and we said, that doesn't make sense, you know as well as we do that an ICT classroom doesn't fit the needs of the child, and they said, we know that, but it's what we have, and so we will offer him all of these push-ins and pullouts and load him up with all of these things, and we know it's not right.” (T 300)

Parent was told that this was part of the process to go through. (T 300-301)

Parent did not feel the services offered were adequate, and understood that the student was going to be provided various services, including a para. (T 303)

Though an occupational therapist did not sign in there was one on the phone during the meeting. (T 304)

IEP recommendations for ICT frequency were not discussed. No discussion was had regarding the five unaccounted periods. (T 305)

was not provided any documents and the IEP did not include the para she had expected. (T 306)

Parent understood that was the expected placement. Parent indicated she would visit the ICT classroom, which she was able to do. (T 306-307)

visited the placement for about three and a half hours. Visit started in the gym. In the gym there were about 15 students. Students were hitting each other with balls and no one was intervening. In the classroom students were repeating the names of states. There was no map present. Half the students were not participating. Visit took place on 06/21/2013. (T 308-310 & 319)

JB recalls nine student had IEPs, and lunch included 150 students in a lunchroom. (T 311)

would have accepted an appropriate public school placement for her child. (T 314)

JB enrolled her child at Lang for the 2013-2014 school year and has been satisfied, believing it to be an appropriate placement. (T 314)

“He is a do. He has a friend, something I wasn't sure he would ever have, and he marches off to school every day . I didn't think he would ever get there, so that is a miracle to me.” (T 315)

identified the , which she signed on 04/02/2013, prior to the meeting. JB signed the contract to avoid losing a spot. If JB accepted a public school placement she would receive her money back. (T 315, Ex R)

Parent paid the tuition in full, in the amount of $49,500, and is seeking reimbursement. (T 315, Ex S & T)

that letters and emails entered into evidence are accurate. (T 317)

that she believed part of the process of finding the appropriate placement would be corresponding with the DOE and receiving a response. Parent wrote several times without a response. (T 332-333)

nformed the parties at the IEP meeting that she had signed a contract with

(T 337)

DEPARTMENT OF EDUCATION POSITION

), presented the DOE position at hearing and through written DOE Closing Argument. (Ex V)

DOE WITNESS

reviewed his educational and professional background and testified as a DOE school psychologist, who attended the student‘s IEP meeting of 05/29/2013. (T 14 17)

Documents were reviewed at the meeting and the parent was in the process of having the student evaluated. “The parents were in the process of having the child evaluated, so there was information from there as well which, I believe, was also available, but to be honest I can't remember.” (T 18)

does not recall the Preschool Observation/Interview classroom observation of Mr . being reviewed at the IEP meeting. (T 21, Ex 1)

performed a classroom observation of the student in May of 2013 and the observation was memorialized in writing. (T 22, Ex 2)

IEP information was written by DS: “pulled from various sources, pertinent sources such as past evaluations that were conducted, the information gathered during the observations, and then there's the school information, if it was relevant, from conversations and consultations.” (T 24-25)

does not remember to level of parent participation at the IEP meeting. (T 25 26)

included parent concerns in the IEP and sensed the parents were not happy with the recommendation. “We felt 1 that this was an appropriate recommendation for (the Student), but parents were not happy, I think, with that, but they had some reservations at least.” (T 28-29, Ex 5-2)

not recall discussing student deficits and delays at the meeting. (T 29-30)

described how his meetings are usually conducted. This included introductions, describing the purpose of the meeting, parties are heard from, each party brings their expertise to the table, “information is there. And then where there's concerns or where the child may need supports, discuss how those needs can be met whether programmatically or through goals or related services and decide them and write them.” (T 35-36)

Program recommendation is included in the IEP. (T 38, Ex 5-7 & 5-8)

agreed with the recommendation due to the special education and regular education teacher, general education curriculum, it is a supportive setting for kindergarten, very nurturing, and student needs would be met. (T 39-40)

recalls the report from which included the child should not be in a program with lower functioning students. (T 40-41, Ex 3-10)

rejects the allegation that the program recommendation was determined prior to the meeting. (T 43)

described when a deferral to the Central Based Support Team (CBST) can be made. “When we feel that the child's needs are so exceptional that they cannot be met by a school in the Board of Education system. That's my understanding.” (T 44)

does not recall the specific recommendations of Evaluation; “but I know smaller setting and a structured setting were issues. Those were parts of what parents . I felt that an integrated co-teaching class would actually provide those things.” (T 45, Ex 3-11)

Parents, doctors and the student’s special education itinerant (SEIT) teacher all recommended a smaller class with higher functioning students for our student. (T 46)

A parent member did not attend the meeting. (T 63-64)

All of the IEP meeting participants that knew the student expressed that an Integrated Co-Teaching Class (ICT) would not be appropriate for the student. (T 72)

was asked if the same participants agreed the class size would be too large given the student’s issues. DS responded “I don’t remember, but it’s likely.” (T 72 73)

continued that this position was supported by the documentation before him at the meeting. No document supported the ICT placement. (T 73)

At the time of the meeting the student was in a class of 18-20 student with two teachers and 10 hours weekly of 1:1 SEIT services. Participants expressed the student was having difficulties in his current program, however, DS felt the student was being well supported in and outside the program. (T 73-74)

ICT recommendation was made: “Because I felt he could handle an integrated co-teaching class. I thought that would be good for him. It would raise the bar a little bit more. It wouldn't coddle him as well. It would promote growth.” This was not supported by documents, but instead clinical impression and knowledge of the system and programs. (T 74-75)

not recall anything said at the meeting to support his position. (T 75)

Department of Education has 40 class periods per week, including lunch, or 35 without lunch. (T 82)

ICT recommendation only includes 30 class periods, leaving 5 periods unaccounted for in the program believes different programs run their ICT programs differently which may result in different frequencies. (T 84-85, Ex 5-7)

was not sure how the remaining 5 periods would be spent for the student, stating it would be up to the school to develop that part of the program. “Most likely it would be devoted to something around literacy.” (T 86)

does not recall a discussion about adding a paraprofessional. (T 90, 94-95)

does not remember a discussion at eh meeting regarding goals or management needs of the student. (T 103)

wrote the entire IEP. consulted with the SEIT regarding goals. (T 103104)

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 at184-85; 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.3dat 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 witness testified as to the IEP meeting and IEP created as a result of the meeting. (Ex 5)

DS sought to defend the IEP and placement in question. Testimony included that documents were reviewed at the meeting (T 18), he does not recall the Preschool Observation/Interview or classroom observation being reviewed at the IEP meeting (T 21, Ex 1), IEP was written included information from various sources (T 2425), and he does not remember to level of parent participation at the IEP meeting. (T 25-26)

did sense the parents were not happy with the recommendation. “We felt that this was an appropriate recommendation…but parents were not happy, I think, with that, but they had some reservations at least.” (T 28-29, Ex 5-2)

does not recall discussing student deficits and delays at the meeting. (T 29 30)

agreed with the ICT recommendation due to the special education and regular education teacher, general education curriculum, and believing it to be a supportive setting for kindergarten. (T 39-40)

does acknowledge that all of the IEP meeting participants that knew the student expressed that an Integrated Co-Teaching Class (ICT) would not be appropriate for the student. (T 72)

continued that the position against the ICT placement was supported by the documentation before him at the meeting. Furthermore no document supported the ICT placement. I note that one of the documents available at the meeting included his own classroom observation, which appears not to have supported his own recommendation. (T 73)

Classroom observation included areas of concern that coincide with parent concerns and other documents, that ultimately were against the ICT recommendation. Observation, taking place in a class of ten students, includes: the student was ”soon overshadowed by one of the other boys…who was more impulsive”, tended to keep more to himself and did not seem to care what the others were discussing or doing, student did not want to participate when called on, but with coaxing and assistance was able to “find the energy/strength to do so even though overall performance seemed lackluster.” (Ex 2-1)

Another document available at the IEP meeting was the Preschool Observation/Interview. This document is barely legible and not able to provide any meaningful information about the student that could be understood to support any placement. (Ex 1)

At the time of the meeting the student was in a class of 18-20 student with two teachers and 10 hours weekly of SEIT services. Participants expressed the student was having difficulties in his current program, however, felt the student was being well supported in and outside the program. If felt the student was well supported in the current program it is not clear why he would recommend an even larger program in the face of the written and verbal objections he encountered at the IEP meetin g. (T 73-74)

ICT recommendation was made: “Because I felt he could handle an integrated co-teaching class. I thought that would be good for him. It would raise the bar a little bit more. It wouldn't coddle him as well. It would promote growth.” This was not supported by documents, but instead by of the system and programs. No actual information appears in the IEP nor was provided how the program would specifically support the student. (T 74-75)

anything said at the meeting to support his position. (T 75)

that the DOE has 40 class periods per week, including lunch, or 35 without lunch.

ICT recommendation only includes 30 class periods, leaving 5 periods unaccounted for in the program. programs run their ICT programs differently which may result in different frequencies. This unidentified five periods for the student leave the IEP incomplete and add to the finding that the IEP and recommendation as ultimately inappropriate. (T 82 & 84-85, Ex 5-7)

was not sure how the remaining 5 periods would be spent for the student, stating it would be up to the school to develop that part of the program. Acknowledging the incompleteness of the recommended program makes it even more difficult to understand how take the position that the program would provide appropriate support for the student and be “very nurturing“. (T 39-40)

IEP includes there are concerns that given student’s “tendency to become easily overloaded by sensory stimuli and to shut down in large settings that a regular size class may also interfere with his ability to work up to his potential and to make appropriate progress.” Despite this notation the recommendation is for a general education class with no indication of class size limitation. (Ex 5-3)

does not remember any discussion at the meeting regarding goals or management needs of the student. DS does testify that he wrote the entire IEP and consulted with the SEIT regarding goals. (T 103-104)

Though the IEP does recommend PT, no basis for the service and goals are included beyond general statements regarding the student’s physical strength. PT goals themselves contain no baseline or possible way to measure student success towards completion of any of the IEP goals. Each goal in and of itself is vague and without any specific activity to actually be performed by the student.

Documents provided at the meeting which reject the recommended program include the psychological evaluation of Dr. . Document reflects student history and makes clear recommendations regarding student placement which were ignored, and otherwise not addressed or included in the student’s IEP. This includes placement in a small, structured, multi-sensory kindergarten setting, with supports, no more than ten students, frequent teacher support, positive feedback, cues to help plan and execute tasks, visual models, visual aids, and visual and verbal cues. (Ex 3 -11)

DOE sought and obtained parent consent to evaluation. Consent included notice from the DOE it would conduct additional assessments “as necessary to determine your child’s educational needs.“ DOE conducted no assessments. (Ex F 1)

DOE identifies a need for PT services but provides no evaluation or support for the service.

The result of the DOE efforts are that the DOE is unable to point to any document to support the recommended placement contained in the IEP.

Parent, in closing memorandum, points to the DOE failure to provide a parent member, as another factor leading to the failure of the DOE in conducting an appropriate IEP meeting. (Ex IV 12)

Parent argues that the DOE failed to demonstrate that it recommended placement in a special class composed of students having similar needs, considering levels of academic/educational achievement, learning characteristics, levels of social and physical development, as well as academic and social management needs of the students in the classroom. 8 N.Y.C.R.R. §§ 200.1(ww)(3)(i), 200.6(a)(3), (h).

The DOE failed to present a complete IEP that any placement could have delivered to serve the student. DS himself was not sure how the missing 5 periods would be spent for the student, stating it would be up to the school to develop that part of the program. DS appears to have given the student’s placement freedom to create whatever program they wish for the student for the 5 periods in question. This is not appropriate for the student. DS has no authority to surrender the responsibility of the IEP team to a proposed, yet identified, placement to complete the student’s

IEP. (T 39-40, Ex 5-7)

I note that the parent even inquired about where the student would be placed for the periods beyond the 30 reflected in the IEP. No response was made to this concern, nor any others the parent raised in written communications to the DOE. (Ex I, J, K, L & M)

Parent, at the IEP meeting, understood that PS 289 was the expected placement, and arranged for a visit to the expected placement. (T 306-307)

Despite the parent expecting the PS 289 placement, no actual placement offer has been provided. Though parties throughout have referred to the expected placement as the proposed placement no actual Final Notice of Recommendation has been provided.

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.

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.

PLACEMENT

Witnesses and documents detailed an understanding of the student’ special education needs and services implemented to meet those needs.

Testimony included that the student, for the 2012-2013 school year, was in a general education setting, of about 20 students. Student made progress, though not as anticipated, struggled because the class size was too student developed a tic toward the end of the continued to grow, student had social skill problems including He was not up to the level of his class mates when it came to play skills or social skills. (T 140-141)

Student needs and areas of concern were identified to include step by step instruction to successfully complete a task (T 141-142); and “extra one on-one or the extra step by step“ (T 142-143); anxiety level, productivity, peer relations, conduct restraints (T 144)

Witness indicated it seemed like the student needed a gifted program with a smaller program. (T 144)

, the student‘s teacher since September (T 169-171) described the student’s 203-2014 program as a class with ten total students ages 6 and 7, two teachers and a classroom para. (T 171)

Classroom para is supervised, occasionally provides one-on-one academic support, keeps students on task, refocuses and redirects students, provide student breaks, and provides praise and reinforcement. These are all identified as special education needs of the student. (T 181-182, Ex 5-1 & 5-2

Student fits into the class academically and is at grade level in reading, writing, science and social studies. (172-173)

Math accommodations include one-on-one teacher assistance, encouragement and homework that student can do independently. (T 188-189, Ex N 7-9)

described student academic challenges in detail and how they are address in the program. (T 175-176)

Student frustration is addressed with the help of a teacher, taking a break, and the school psychologist being on hand. (T 176-177)

issues include working on pragmatics, understanding personal space, keeping an appropriate distance when communicating, and appropriate voice volume. (T 177-178)

The importance of class size was a continuous concern among the witnesses, whose testimony was not refuted. (T 203-204 & 280)

Essentially the student struggles in any group beyond a class size of ten. Lang provides one-on-one attention to guide the student through anxiety and headphones are offered if he is bothered by sound. (T 178)

Student was in a performance with more than ten students and became completely overwhelmed. (T 178-179)

employs a multi sensory approach which includes pictures, charts, graphic organizers, posters, videos, touch, clapping, and lots of directions and prompting. (T 180)

IEP includes that the student learns best using a multi-sensory approach and concerns regarding class size are also noted. Each concern is addressed . (Ex 5-2)

Testimony reflected student progress in that: the student had progressed in Reading, moving to an instructional Level D, which is Kindergarten Level. (T 171172)

Progress socially was noted in the student starting to feel more comfortable initiating conversation or play with classmates when it is one of his interests. (T 173)

Witness provided uncontested testimony that the student has made progress towards the goals described . Report details goals and progress in areas that include ELA, Reading, writing, speaking,, language, science, social studies, Math, art, and music. (T 196, Ex N)

Testimony includes that the student has improved in all academic areas, including reading, handwriting, and math (T 196-197); socially with pragmatic language, having built skills for turn taking (T 197); and student sometimes socializes independently. (T 238-239)

Parent provided her perspective regarding student : “He is a completely different kid…He is reading, something I wasn't sure he could do. He has a friend, something I wasn't sure he would ever have, and he marches off to school every day with a smile on his face and he loves school. I didn't think he would ever get there, so that is a miracle to me.” (T 315)

Student receives related services of a group and individual session of each of , and . (T 198-199)

Witness testified that student needs are being met in each related service area. In progress includes student fine motor skills and handwriting. works on building has decreased. (T 199-203)

Witness testified that student fine motor issue, identified as lack of core strength, is addressed by . (T 230-232)

Accommodations addressing student sensory and OT needs include the room being completely carpeted, with some areas having two layers of carpeting so there are no echoes or noise, special chairs that are flexible with foot rests, a large digital clock, a visual schedule, a SMART board and a class library. (T 233-235)

Physical student needs are met, in part, through a sensory gym used during PE and OT. (T 201)

Witness admission process which included a review of student records, discussion with school teachers, a visit by the parents, a visit by the student and review by the school team to decide if an offer will be made for the student to attend. (T 251-252)

Ultimately the student was accepted being seen as a good fit, being a very bright child struggling with was prepared to remediate. (T 227-228)

The Lang program is in accord with Psychological Evaluation provide by the parent, and delivered various times to the DOE. This included a recommendation to address a primary need of the student, and concern of the parent, namely a small class size of no more than 10 student. (Ex G 12)

also followed other recommendations of the evaluation that included small group instruction (T 183), addressing sensory needs (T 201 & 233-235), providing praise (T 181-182) and a multi-sensory approach (T 180). (Ex G 5-6)

I find the educational is especially 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 2013-2014 school year I find provided 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.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, consented to DOE evaluation and communicated concerns to the DOE.

provided consent for the DOE to evaluate her child. (T 287, Ex F)

Parent provided the DOE with a copy of the psychological evaluation obtained, prior to the turning five IEP meeting. Letters included reflect steps made to schedule the meeting. (T 290-292, Ex G, H & 3)

Parent made her concerns known at the IEP meeting of 05/29/2013. She was clear that she did not feel the services offered were adequate, and understood that the student was going to be provided various services, including a para. (T 303)

Though not provided with an FNR, the Parent understood that PS 289 was the expected placement. Parent indicated she would visit the ICT classroom, which she was able to do. (T 306-307)

Parent spent three and a half hours visiting the expected program placement and detailing areas on concern in various correspondences. No response was ever received by the parent. (T 308-310 , 319 & 332-333)

Parent testifies that she would have accepted an appropriate public school placement for her child. (T 314)

Enrollment Contract, which she signed on 04/02/2013, prior to the meeting. signed the contract to avoid losing a spot. If accepted a public school placement she would receive her money back. (T 315, Ex R)

informed the parties at the IEP meeting that she had signed a contract with . DOE had an opportunity as early in the process as could be expected to address the parent’s concerns and draft an appropriate IEP for the student. (T 337)

Parent paid the tuition in full, in the amount of $49,500, and is seeking reimbursement. (T 315, Ex S & T)

For the 2013-2014 school year the Parent has provided: student attendance records (Ex Q); Student Enrollment Agreement (Ex R); and proof of payment in full of the tuition (Ex S & T).

testified that letters and emails entered into evidence are accurate. (T 317)

Parent letters continuously raise parent concerns regarding her child, evaluations, the IEP, recommended program and perceived placement. (Ex E, H, I, J K & L)

I find the parent is entitled to full tuition reimbursement in the amount of $49, 500.00.

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. DOE shall reimburse parent for payment for 2013-2014 school year tuition.

3. Total amount tuition to be reimbursed to parent is $49,500.00.

4. DOE shall provide parent with any required documentation and forms necessary to facilitate 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: July 31, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 05/14/2014

A Impartial Hearing Request, dated 4/2/14, 13 pages B Letter from to SBST, dated 5/15/13, 2 pages C IEP Summary CPSE, dated 7/3/12, 1 page D IEP CPSE, dated 7/3/12, 15 pages E Application for admission to NY Public School Kindergarten, dated 3/5/13, 1 page F Parent consent for reevaluation dated 3/5/13, 1 page G Letter from parent to CSE & SBST with enclosure of March 13 evaluation, 21 pages H Letter from parent to SBST with enclosures, dated 5/10/13, 21 pages I Letter from parent to SBST & CSE, dated 6/21/13, 3 pages J Email from parent to CSE, dated 6/4/13, 4 pages K Email from parent to CSE, dated 8/20/13, 5 pages L Email and fax from parent to CSE, dated 8/20/13, 6 pages M Email exchange between parent and CSE, dated 8/20/13, 6 pages N progress report, dated 2/1/14, 12 pages O Program description 2013-2014, 1 page P Class schedule 2013-2014, 1 page Q Attendance record, dated 5/7/14, 1 page R Enrollment contract, dated 4/2/13, 4 pages S Proof of payment April 2013-April 2014, 7 pages T Tuition affidavit of dated 5/7/14, 1 page

DEPARTMENT OF EDUCATION

ENTERED 05/14/2014

1 Preschool observation, dated 4/8/13, 6 pages 2 Classroom observation, May 2013, 1 page 3 evaluation, dated 3/19/13, 18 pages 5 IEP, dated 5/29/13, 13 pages

IMPARTIAL HEARING OFFICER

ENTERED 05/14/2014

1 Notice of appointment dated 4/4/14, 3 pages

ENTERED 07/17/2014

II Extension of Timelines, 06/06/2014, 3 pages

ENTERED 07/23/2014

III Extension of timelines, 07/07/2014, 3 pages Entered 07/23/2014 IV Memorandum of Law in Closing Argument, dated 07/23/2014, 37 pages V DOE Closing Argument, dated 07/23/2014, 8 pages