New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 11/6/13

1/7/14

2/28/14

3/27/14 Record Close: 4/28/14 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 6, 2013

Attorney — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 7, 2014

Attorney — Student

Mother — Student

Headmaster, (Via Telephone) — Student

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 28, 2014

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Teacher (Via Telephone) — Student

Attorney — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 27, 2014

Attorney — Student

— Student

Parents

Psychologist (Via Telephone) — Student

Attorney — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

Feeley ( ) is a student whose parent, ), has brought a hearing contesting action by the DOE to declassify and requesting reimbursement of tuition School ( ) for September 2013 through June 2014. Ex. A. At the request of the parent, a pendency hearing was convened on November 6, 2013 and a pendency order issued on November 25, 2013. Further hearing was held on January 7, 2014, February 28, 2014, and March 27, 2014.

DISTRICT CASE

) testified that she is a . She explained that during the summer of 2013, she was pulled out of her regular job to work on a review team, and participated in a . She explained that her regular work is in the impartial hearing office doing hearings, but she can also be assigned to sit in on reviews or test, stating that “it’s everybody pitching in.”

An IEP was not created, as the child was declassified. The date of declassification was September 2, 2013. Ex. 3. Ms. stated that the letter addressed to the parent tells parents what they are expected to bring and what will be discussed at the meeting, when services may be provided and documentation that would be useful. She stated that at the meeting on August 2, 2013, she participated in the role of and district representative. Asked what the role the district representative is at the meeting, Ms. stated that she was not really sure what the role was at the CSE level. She stated that she knows at the school level meeting, she is representing the interests of the school.

There was a teacher report, an occupational therapy report, a speech evaluation, and a neuropsychological evaluation before the team. She testified that evaluations did not need to be done in advance of the meeting to determine the student’s need for special education services, as “we had what we needed.” She cited the former IEP, noting that the child had speech, occupational therapy (OT), and educational supports, as well as the school’s reports and grades, and evaluations.

Ms. indicated that she did not recall the specifics of the meeting, but she did remember “some very awkward circumstances” because the parent came in with a man, and right away they went out and were on the phone. She stated the meeting was a little long time because they were making this phone call, and when they returned it seemed that it didn’t really matter what happened at the meeting as if they didn’t care.

Ms. reviewed the teacher’s written report, and stated that she couldn’t answer what was done with the information in it because she didn’t specifically remember, but she knew what she would typically do. Ex. 7. The report indicated the student was functioning at grade level, or close to grade level. All the scores reported on the report were above age norm. Asked if they reflected a deficit in any area for the student, she noted scores in the BRIEF, but stated that they were not really related to grade level. The narrative of the report describes the child’s social functioning, that leads him lot of improvement. Ex. A. Ms. noted that all the grades are 80s and 90s, and he was even taking a course in Mandarin and doing exceptionally well. There was nothing in the report card to indicate a deficit in the student’s academic performance. She described evaluation, stating that it was recommended that the child did not services. She testified that there wasn’t anything in the report to indicate concerns about the student’s ability to function in an academic setting. She acknowledged that he was described as being fidgety by the evaluator, but did not see any reference in the teacher’s report for grades to indicate that it impacted school performance. The evaluation did not recommend services, although Ms. conceded that she was not a evaluator and was not really familiar with the evaluation components other than the scores. At the conclusion of the meeting, the recommendation was declassification with support services for one year. She thought he was also recommended for counseling, but was not sure. She would have been able to make educational progress, because according to the scores and the teachers, he is “more than well equipped to handle the level of work in his classes and he is excelling.”

On cross-examination, Ms. stated that she in the record, although some of the descriptive information made her think was also a diagnosis. She acknowledged there was no discussion about doing a report at the meeting. She agreed that the recommendation in the neuropsychological report for a small class in an inclusion setting where they would be ample opportunity for with respect to social interactions and difficulties was not followed. Ex. D. She did not recall that the CSE team for the previous year had recommended an integrated coteaching (ICT) about the evaluation, Ms. stated that she didn’t know the content of the test and had no way of knowing whether was tested with the pragmatic profile section of testing. Asked about the IEP, did not recall much of the document nor what was said at the meeting, and stated more than once that she could only speak to what was typically done at IEP meetings. She did not recall the parent returning to the room and asking for a new evaluation for . She did not recall if RF disagreed with the declassification. She acknowledged that the reports indicated that was in an environment that supports his academic needs, noting it as part of the reason for the recommended discontinuance of OT.

Ms. acknowledge grades were one part of the declassification decision. She conceded there was no observation of in the classroom that year, and acknowledged that there was no participants from the school he attended at the meeting. Ex. 7. She didn’t know if had small class sizes, explaining that it didn’t enter into the equation of making a decision for the CSE. She testified that they considered recommending him for services eligible for special education, then stating that she didn’t remember what was considered but stating that “typically we would.” Tr. 74-142.

PARENT CASE

, testified that the school was designed as an inclusion mainstream school, with a large inclusion program for students who have learning issues or special needs but could be accommodated within a mainstream program with support. He estimated at more than 50 percent of the students have special needs. He described the various components of the school, including a tracking program, program to give students support they need to work in classroom environment, and faculty and providers to work with how the child is doing and if intervention or concerns arise. He stated that parents get involved in helping them organize their child and dealing with the , and Edline is a valuable tool to keep the parents part of the team. She described a substantial amount of teacher development, training for the teachers on how to deal with students who have among the staff, taff, and subject teachers staff. He described the support in the for students, including support of the classroom teachers as well as work with the students, explaining that the average student is two or three years in the Jumpstart program. Once they’ve learned the techniques, students can stand by themselves without the teacher; the teacher is always there somewhere. About a third of students are in program. He stated that students who graduate are an indicator of the success of the program. Tr. 21-32.

testified that she was a history teacher and chair of the history department She has a Master’s of education to teach secondary social studies, and is certified at middle and high school levels in Alabama; she is not certified in New York State medieval world history class, a class of 17 students; approximately two-thirds of the students in the class have a variety of learning disabilities, with issues similar She as having some mostly due to issues, and some challenges. He also will rush through assignments and miss important details.

Ms. described strategies targeted toward improving his comprehension, including teaching metacognition while reading, modeling identifying areas of difficulty and exploring how to overcome the difficulty, using chunking, graphic organizers, a lot of question and answer sessions that model how to formulate a question. She described “peppering the room,” through randomly called questions which stimulate attention, and using exit cards, index cards to increase attention and check in to ensure key concepts have been understood. She also uses visuals, creates her own graphic organizer to accompany a large reading assignment, does a lot of stop and discuss, and a lot of document-based reading and writing activities to encourage students to return to the passage insight the passage and answers, which she says make sure is not only reading and understanding but that he can go back and support his answer a detailed way. Ms. stated that tends to be very minimal in his answers, but she has seen a great deal of progress in the depths an amount of details that he given his answer.

Asked about social skills, she noted not listening to others, impulsivity, calling out, talking over another student, starting side conversations even when she is talking to him. Also, when he is talking or having a conversation, he behaves in a way that indicates he is not engaged in the conversation, turning away or not looking the person in the eye, or is talking over them. His tone also may come these skills, she uses SLANT, an acronym which stands for sit up, listen, ask and answer questions, nodding and confirming you’re listening, and track the speaker. She will to show her his SLANT, or use a hand signal to turn down the volume, and she has seen improvements trying to ensure that the listener knows he is paying attention, and fewer instances of impulsivity where she has had to intervene.

Attention issues including fading out or daydreaming, with a tendency to twirl his hair. To address that, Ms. cited her instruction, a basic routine that varies instruction and moves from tasks or activities every 15 minutes. She also cited multisensory activities, kinesthetic learning, music, art, artifacts, and a timer for to see exactly how much time he has left to accomplish what he needs to. She also described his executive functioning issues, and use of a history notebook to organize his work, as well as assignments posted on Edline with detailed instructions. Larger assignments get intermediate deadlines, with a checklist for each deadline. She also described accommodations for test taking, including a computer to type answers, detailed study sheets, and extra time.

Ms. characterized ’s performance as very good, on grade level for the most part although not exceeding grade level in history. She testified that his grades are not of concern, as he was at grade at the current time. She stated that he is doing well because of the support he receives, the strategies and techniques that she and other teachers employ. She stated that it would be unlikely could function without the supports, which would be detrimental to his learning, as he still . She testified that had , calling out, which currently restrict his academic progress. Asked whether the supports were designed to continue throughout his academic career, she likened them to training wheels, stating that ideally they were working toward functioning independently at the supports would eventually come off and other supports go on, eventually working toward his full independence. Tr. 151-183.

testified that he is an English teacher , and head of the English department. He has a Master’s in English literature, certification in English education, and is state certified as a teacher in ELA for grades seven through 12. was in his ninth grade English class. Mr. stated that 75 percent of the students had learning disabilities in the class.

He identified ’s as based students have problems in one or another of those areas. ’s reading comprehension and writing comprehension are , an estimated eighth . He stated that loses focus easily, affecting his comprehension. Mr. teaches at a slow pace, repeating material, rewording questions, checking in for understanding, and teaching active reading tips such as annotations and highlighting. He also where one student may call on another at any time which encourages . He also cited and overhead projection, and graphic organizers used in the class. ’s deficits in writing are careless mistakes because he occasionally rushes. Mr. described use of a five-paragraph essay to model correct essay and paragraph structure, pre-writing, and brainstorming ideas with . He also cited the use of graphic organizers to organize the ideas and concepts for the written work. Mr. stated that these tools definitely help . He testified that he saw improvement in ’s understanding of literature, stating that is more likely to participate in class discussion and speak with confidence about his ideas. His writing has improved since September, where he is been able to keep more on task and focus on a specific topic.

Mr. cited ’s practice of twirling his hair, exhibiting distraction, staring at another student to get a rise out of the students, and testified that he used various ways to redirect , tapping on the desk and making eye contact. Mr. has seen improvement in attention and impulsivity, in that he doesn’t see the staring anymore, and doesn’t call out and ask inappropriate questions really anymore. Mr. cited the improvement as a function of the relationship built in the small classroom, which allows him to be specific with as far as acceptable classroom behavior. At the same time, Mr. didn’t ask embarrassing questions about the issues in front of the class. He also talked about executive functioning difficulties, citing the use of Edline and other review strategies of help to . He is doing well in the class, in the low 90s again in the current quarter.

Mr. was an appropriate placement for , as his social needs and academic needs spoke to what is provided at the school, support, small classrooms, and similar students with teachers who know how to work with students with learning challenges such as inattention, impulsivity, and disorganization. He did not think could function a school without the supports described. Tr. 186-213.

Dr. testified that he is a psychologist, with a doctorate in clinical psychology and specializing in neuropsychology, and working at . He stated that he first saw in 2004, when he was four years old, and conducted an evaluation that confirmed the initial impression of a psychiatrist colleague that met criteria for . He noted the disorder involves deficits in social interaction, behavioral and emotional regulation, and certain inflexibility in ’s behavior, as well as the presence of inattentive symptoms, . Dr. stated that he has seen a number of times over the years. The first couple of times he evaluated he to assess, ; it was difficult to gain his cooperation, although Dr. was able to get enough cooperation to get reliable results. Initially, he recommended a small educational setting, so from his teacher, more redirection in terms of his , as well as with requiring teachers trained in providing support for these kinds of difficulties. Throughout elementary school, he continued to need a very structured setting; in the middle school years, there was some improvement in certain aspects of his functioning, and he was a little better able to interact socially and self-regulate. Dr. explained that when he evaluated in 2008 and 2009, he felt that didn’t necessarily need a special education setting; he still needed supports but not necessarily a special education school. The recommendation was to continue him in a school environment with small classes, teachers experienced working with children in the classroom, as well as specific support for executive functioning, organization, and time management.

Dr. explained that he saw again in the fall of 2013, when his parents reported that he was being declassified by the DOE and wanted the doctor’s opinion as to whether or not that would be appropriate. Dr. explained that the diagnosis had not changed. still met criteria for revised DSM-V). He described the testing he did, noting the behaviors he observed, including aspects concerning that were problematic for him. remained , using humor in and the total scores on ) related to social reciprocity, communication skills, and repetitive behaviors indicated an autism classification. Dr. noted as well the context of ’s history, and his functioning at home and at school, stating that the entire picture make consistent with the diagnosis of .

Dr. stated that he did not believe should have been declassified by the DOE in 2013. continues to have in some ways, he continues to be a student with significant needs. His classroom is a supportive environment, where he gets needed redirection for his attention, behavior, and social skills. Dr. gave his opinion that in a general education setting, would “really decompensate.” He stated that did not , , and that will enable him to successfully managed an academic setting without small classes, supports, and ample opportunity for redirection from his teachers. Asked about evaluation conducted by the DOE, he stated that the evaluation did not assess the areas in which has difficulty, looking only at very basic and fundamental skills and not at the that has. Similarly, the occupational therapy evaluation of the DOE, while relevant to fine motor difficulties of the child, was really not central to what his educational needs are, specifically those impulsivity, and social skills. Exs. 9, 10. He did not believe the evaluation supported the conclusion that should be declassified.

On cross-examination Dr. acknowledge that ’s academic skills have been strong, but repeated his opinion that has struggled in the past even with ample supports. He stated that ’s issues are , which impacted and interfered with his ability to function in the classroom environment. Tr. 223-250.

, ’s parent, testified that was old and currently in . He was about two years old when she first ; he did not was knowledgeable about the subway system, discussing it unbidden with strangers. He was and other doctors, who said . He was put , and in class but would just ” on the medication. He had a special education itinerant teacher (SEIT) in the morning, so he could only go to the morning portion of his preschool program. When he went to kindergarten, he was given a Nickerson letter; he was ultimately sent by the parents to the . He attended the from kindergarten through grade 5, after which the parents determined to send him because it had a support system, small class sizes, and . She stated has been a wonderful support system, citing program, the classroom support, and parent support. He has been going since and was in the from grade. He was in the program for three years, after which the school informed them he no longer needed the program and had graduated .

She described the recent teacher conference, stating that the teachers understand and his issues. They seat him at the front of the classroom, and when he calls out, they remind him to raise his hand; they tap on the desk; they sometimes speak with him after class. She described these and other signals used with by his teachers. She noted that the math teacher allows to get up and walk around the classroom to help him refocus. She stated that the size of the class helps immensely, as loses focus so easily a large group, and the teachers are able to help redirect him without losing the rest of the class. She also cited the benefit of the school’s Edline program, so the parents can stay on top of what his homework is. Asked about his progress she stated that they were helping him with his issues so he stays on task and does well academically, noting that he does do well academically. She testified without those supports, would be lost and would be what they call “the bad kid,” always yelled at by the teacher because he is impulsive, he shouts out, he gets up, and doesn’t raise his hand.

She testified about the CSE review on August 2, 2013, stating that she provided the CSE with ’s report card and an evaluation. Ex. D. She described the meeting by saying there were introductions, she turned over the report card and the report, and she and the advocate who accompanied her were told that was being declassified. She didn’t know what that meant, and was told he would no longer be classified as other health impaired and would be recommended for general education with special education teacher support services (SETSS). Ms. , the psychologist who was at the computer, held up the report card when asked what the decision was based on explained that he does well and that’s not his issue; he he is highly functional and highly intelligent, but he needs support to stay that way. She said she was upset and not understanding, and asked if they could take a moment and stepped outside which she tried to find out if there was something that she could do, such as having the meeting postponed. She told the CSE team that she disagreed with the declassification, and repeating herself about his , and the support she needed in the classroom to deal with his impulsivity and other issues. She asked if it could be postponed, and if she could have any testing done for , but was told no. She said that she said she disagreed, but for everything she asked, she was just told no. They did not look at goals from the prior year, nor did they discussed the neuropsychological report, the speech and language report, or the occupational therapy report. She was not told she had a right to retest . She informed the CSE in writing that she disagreed with the recommendation would be sending to . Ex. F.

She stated that she was not put on notice that the DOE would be declassifying . She did not receive any letter offering her public placement nor did she get an IEP for the SETSS that was offered. Asked about the meeting notice from the DOE, which included language that the CSE would be determining whether continued to have an educational disability which require special education services and the development of an IEP, she stated that that was the same letter she got every year and it didn’t say anything about declassification. She testified that she did not interpret the notice to mean that declassification was a topic to be discussed at the scheduled meeting.

On cross-examination she conceded that she had not had the opportunity to observe him in an academic class larger than the class he was in, as he has never been in a class larger than 15 students. She explained that although he was no longer in , his organizational, social, and behavioral issues still needed to be addressed, and that teacher gave him strategies to help him and he still gets support in the program. Tr. 252-294.^[1]

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(i), (iii), (v).

In this case, the DOE failed to provide a FAPE for . The district clearly failed in its duty in the August 2, 2013 meeting, providing only a cursory review that failed to justify the decision to declassify the student.

The limited review upon which the district based the decision to declassify was particularly egregious. Federal law and regulations, and state regulations require that districts are conduct an evaluation of a student with a disability prior to making a determination that the student is no longer eligible for special education programs and services as a student with a disability. 20 U.S.C. §1414(c)(5)(A); 34 C.F.R. §300.305(e)(1); 8 NYCRR §200.4(c)(3); see also Appeal of Board of Education, Appeal No. 11-142.

As noted, the district representative relied primarily upon the student’s grade report, as well as the written narrative of the student’s teacher. There was no teacher participating in the review who knew the student. Nor was there any evaluation conducted as required. While Ms. did not recall the parent asking for an evaluation, in conflict with RF’s testimony of such request, I need not determine whether the parent made a request. It was undisputed that there was no evaluation conducted or contemplated; as Ms. stated, “We had what we needed.” The balance of her testimony made clear how hollow that claim was. She acknowledged the recommendation in before the team for a small class in an inclusion setting, but was unaware that the child was diagnosed , even though the diagnosis was in the first paragraph of the report as well as in the summary and recommendation. Ex. D. She stated that the team had the prior year’s IEP before them, but did not recall the recommendation in that IEP for an integrated co-teaching class for and an ICT was not considered by the committee. She conceded that she did not know the specifics of the speech and language evaluation, and “had no way of knowing” if was tested. As Dr. testimony made clear, the did not assess the which has difficulty, and the evaluation was not central to his educational needs.

I would be remiss if I did not comment on Ms. MoCloskey’s understanding of her role as the district representative at the meaning, and question its influence on the outcome of the meeting. The district representative as chairperson presides over the meeting of the committee; the committee’s functions are to evaluate and make recommendations for the child, based on the special education needs of the child. 8 NYCRR §200.3. Ms. clearly did not understand her role at the meeting. She admitted she was uninformed of the role of the district representative at the meeting at the CSE level, and more appallingly, stated that at the school level meeting, she was representing the interests of the school. I give her the benefit of the doubt, that the statement was made from ignorance as opposed to intentionally ignoring the responsibilities of her role, but such ignorance was difficult to fathom, given her primary duties at impartial hearings. The absence of the child in the equation was notable.

Under the circumstances of this case, the district's action in declassifying this student violated the IDEA and its implementing regulations regarding evaluating students prior to declassifying them from eligibility for special education programs and services.

I note also the parent’s argument that the district failed to provide adequate notice that the district was considering declassifying . I agree that the notice as written, stating in its standard form letter, as sent to the parent yearly, that the meeting will determine whether the child “continues to have an educational disability which requires special education services and the development of an [IEP]” fails to amount to sufficient notice of the purpose of the meeting, i.e., that declassification is being considered. See 34 C.F.R. §300.345(b)(1); 8 NYCRR §200.5(c)(2)(i). I cite this finding as support for the conclusion that the district failed to provide FAPE, a finding which stands on its own due to the flawed review upon which the district’s action was based.

There was a substantial amount of boilerplate in the due process complaint notice unrelated to the instant case, setting forth objections to an IEP and placement recommendation that did not exist in this case. For that reason, I find those objections irrelevant and unfounded. As noted, the district failed to offer the student a FAPE during the 2013-2014 school year as a result of declassifying the student without evaluation.

For the reasons noted above, I find the DOE failed to provide a FAPE to . Although the demand for reimbursement for tuition at the parent’s unilateral placement requires additional analysis, the district’s improper declassification requires remedy. The child’s eligibility for special education and classification must be restored. I credit Dr. testimony, and the recent evaluation of that supported his earlier diagnoses . As he, the child’s teacher, and the parent confirmed, does well academically, but with needed supports.

I will be ordering the declassification null and void, and ordering the CSE to reconvene to take steps to void the declassification and reclassify as ( ). The CSE shall also include in its review of Dr. of October 11, 2013. The IEP shall include the child’s diagnoses of

ISSUE 2 - Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parent bears the burden of proving the appropriateness of the services obtained for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parent must show that York Prep offered an educational program designed to meet ’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I find an appropriate placement for , and the parent has sustained the burden of demonstrating its appropriateness. I credit Mr program, including support for classroom teachers in implementing instruction for students. I note also his description of the Edline program, providing students with needed support and providing parents with access to performance and progress.

Certainly, inclusion was an appropriate placement for . There was no dispute that had challenges, and , as well as twirling his hair which affect his academic progress. He also had deficits in writing, making careless mistakes because he occasionally rushes. As Dr. ’s testimony confirmed, the child continues to display I credit his opinion that despite some improvement continues to be a student and his classroom is a supportive environment, where he gets needed support for witnesses testified at length concerning their work with , noting the importance of the small class size and Edline for . I credit the work of Ms in providing needed support in the classroom for . He did well in his classes, and their testimony clearly show instruction geared to his special education needs. Of particular note were strategies that included slower paced instruction, repetition, chunking, annotation and highlighting, graphic organizers, various modeling and brainstorming ideas, random questioning and quizzes to keep him alert and check in on his understanding, graphic organizers, prewriting and essay templates, various signals to cue his social interaction, and multisensory activities and tools. He also had accommodations for test taking, including a computer to type answers, detailed study sheets, and extra time. I credit testimony that these tools help him. I also note the teachers’ explanation of developing trust in the classroom, refraining from embarrassing him to facilitate imposing rules about acceptable behavior. I note progress noted by Ms. in the details of his answers and Mr. ’s description of increased focused in writing, improved understanding of literature and participation in classroom discussion, and improvement in attention and impulsivity.

For all the foregoing reasons, I find the program and services provided were appropriate to the child’s special education needs.

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

I find that equitable considerations do not operate to deny or reduce an award of funding or reimbursement to the parent for tuition and/or services. The parent cooperated with the district at all times. As noted above, I also agree with the contention of RF that the notice sent by the DOE, a form letter inviting discussion of the child’s needs, does not amount to sufficient notice that declassification will be a topic at the meeting.

Under the circumstances, I find no reason to reduce or modify an award to the parents due to equitable considerations.

ORDER

1. The district’s declassification of is declared null and void.

2. The CSE shall reconvene and take all necessary steps to void the declassification.

The CSE shall reclassify as other health impaired (OHI). The CSE shall include in its review the neuropsychological evaluation of Dr. of October 11, 2013. The child’s diagnoses be included on the child’s IEP.

3. The DOE shall reimburse ’s parents for the cost of the student’s tuition at in the 2013-2014 school year, at a cost not to exceed $41,200. IT IS SO ORDERED. Dated: May 12, 2014

Nancy M. Lederman gc

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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.

If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be Prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.

If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

The petition for review shall be served upon the opposing party 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. (8 NYCRR §279.2[b])

The rules of procedure for proceedings before a State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 Due process response, 8/29/2013, 3 pages

2 Notice of IEP meeting, 7/23/2013, 4 pages

3 Recommendations upon declassification, 8/02/2013, 2 pages

4 Attendance page from IEP meeting, 8/02/2013, 1 page

5 Student parent independent evaluative information, 5/20, 5/21, 6/03/2013, 1 page

7 Instructor teacher report, 5/13/2013, 2 pages

8 Academic report, 2012/2013, 6/10/2013, 1 page

9 evaluation, 5/20/2013, 5 pages

10 evaluation, 6/07/2013, 5 pages

PARENT EXHIBITS

A Impartial Hearing Request, 8/28/13, 7 pages

B Findings of Fact and Decision, 11/25/12, 10 pages

C IEP, 6/22/2012, 22 pages

D and educational evaluation, 3/30/2012, 8 page

E Letter from parent, 2/13/2013, 3 pages

F Letter from parent, 8/13/2013, 4 pages

G contract, 2013/2014, 2/02, 2/04/2014, 3 pages

H Cancelled check, 2/02/2013, 1 page

I Second quarter report card, 1/07/2014, 1 page

J Evaluation, Dr. , 10/11/13, 4 pages

IHO Exhibits

I Prehearing conference summary, 10/2/13, 1 page

II Decisions on request for extension, 11/8/13 – 4/13/14, 6 pages

Footnotes

[1] Transcript correction, page 278, line 22: Line reading “that they would be classifying ?” should be changed to “that they would be declassifying ?”