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Special Education Law
DECISIONParent PrevailedSEL No. 2014-ih-4

New York City Department of Education, Impartial Hearing Decision

March 6, 2012·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: November 16, 2011

December 1, 2011

January 23, 2012 Actual Record Close Date: February 23, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2011

Attorney — Student

Father — Student

Attorney — DOE

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2011

Attorney — Student

Father — Student

Student

Special Education (via telephone) — Student

Attorney — DOE

Assistant Principal- (via telephone) — DOE

Special Education Teacher- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2012

Attorney — Student

Father — Student

(via telephone) — Student

- (via telephone) — Student

(via telephone) — Student

Attorney — DOE

INTRODUCTION

On November 16, 2011, December 1, 2011 and January 23, 2011 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 1:10 p.m., 10:15 a.m. and 10:00 a.m., respectively. The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified on her IEP as having “ ” is years old and attends for the 2011-2012 school year. In a letter dated June 11, 2011, the child’s parents, by their advocate , filed a due process request for an impartial hearing. In their complaint the parents maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2011-2012 school year and they requested reimbursement for the child’s tuition at as well as special education and the cost of related services from July1, 2011 through June 30, 2012.

The impartial hearing request was filed on July 12, 2011 and I was assigned as the impartial hearing officer on July 14, 2011. The original compliance date was September 26, 2011. On July 25, 2011 the District requested an extension of the compliance date for the availability of witnesses. The parents did not object, the case was scheduled for hearing on October 5, 2011 and the compliance date was extended to October 6, 2011. It was subsequently determined that the case was assigned to the incorrect district. On September 20, 2011 the appropriate District requested an extension of the compliance date in order to review the case. The parents did not object, a control date was set for November 1, 2011, hearing dates were scheduled for November 16, 2011 and December 1, 2011 and the compliance date was extended to November 5, 2011. On November 4, 2011, the District requested an extension of the compliance date for preparation. The parents did not object and the compliance date was extended to December 7, 2011. The hearing was held on November 16, 2011 and December 1, 2011. At the hearing on December 1, 2011, the parents requested an adjournment to determine when their witnesses would be available. The District did not object, a control date was set for December 12, 2011 and hearing date was scheduled for January 23, 2012. On January 3, 2012, the parents requested an adjournment for the availability of witnesses. The District did not object and the compliance date was extended to February 5, 2012. The final day of the hearing was January 23, 2012. At the conclusion of the hearing and at the request of both parties, the compliance date was extended to March 7, 2012 for the receipt of the final transcript, the submission of briefs and the issuance of the Decision and Order.

All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.

THE PARENTS’ POSITION

, Esq., of , represented the parents at the hearing. Mr. alleged that for various reasons the District did not provide the child with a FAPE for the 20112012 school year, that is an appropriate placement for the child and that the equities of the case support the parents.

THE DEPARTMENT OF EDUCATION’S POSITION

, Esq., represented the Department of Education at the hearing. Ms. asserted that the Department of Education provided the child with a FAPE for 2011-2012 school year, that is not an appropriate placement for the child and that the equities of the case support the Department of Education.

THE EVIDENCE AT THE HEARING

THE DEPARTMENT OF EDUCATION’S CASE

has a Master’s Degree in special education/educational evaluation and Master’s Degree in teaching English as a second language ( : 11-12). For the past five yearsk she has been a special education teacher assigned to Committee on Special Education (“CSE”) . Prior to that time she worked at the Department of Education as a special education teacher and an educational evaluator. Ms. described her duties and responsibilities in her current position ( : 12-13). She testified that when she worked with the CSE she visited the program and is familiar with it ( : 14). Ms. stated that she worked on the child’s Individualized Education Program (“IEP”) for the past three years. In addition, she observed the child on November 8, 2010 prior to developing the IEP for the 2011-2012 school year ( : 14-15; DOE Exs. 3, 6). Ms. explained that the purpose of the observation was to see how the child functioned in her program. She noted that the observation was scheduled by for half an hour. When she arrived at the school the child was with her During the session the child had “ with the about her , “she [ ] to go to in the previous place.” The and the child also talked about “ ” and the fact that she was “ before or two days before” ( : 16-17). Ms. testified that she is at “ and that she did “at least two or three observations” in the child’s class. She stated that every time she went to the floor where the child’s class was located, the child was “ ” next to the elevator ( : 17-18). At the IEP annual review on January 24, 2011 Ms. signed in as the special education teacher and the District Representative and signed in as the ; for the past few years they have worked as a “team” in developing IEPs ( : 18-19, 55, 71).2 Ms. explained how she and Ms. prepare for and conduct an IEP meeting ( : 19-21). In preparing for the child’s IEP meeting Ms. reviewed the Evaluation dated October 6, 2008, the Classroom Observation dated November 8, 2010, and the December 2010 School Report of Progress ( : 21-22, 71; DOE Exs. 5, 6, 12). The Evaluation indicated a and indicated that the child’s was in the “ ,” noting that she “may have a .” Ms. elaborated that “if you read the report” the child was “not during the testing” and “ to do things” ( : 23-24; DOE Ex. D at 5).

1 Ms. testified that the school schedules the times of the observations and that she was “not allowed” to come back and observe the child while she was in the classroom. She stated that “in the past” Ms. requested to observe students in their classrooms but she did not ask to observe the child in the classroom. She noted that “it’s very difficult to get an appointment” and she and Ms. are “very busy” in that they “have a lot of children to observe” (Ye: 58-60).

Citations to pages 55-78 refer to Mr. cross-examination of the witness.

The child’s parents attended the meeting as did the child’s from , , a , the child’s classroom teacher, a parent member and , an advocate office. During the discussion about academics, the child’s father asked if the team was “adding or modifying academic goals” relating to “ handling” ( : 24-26, 73). Ms. gave the team “all the information and contributed in develop[ing] all the academic and social emotional goals” (Ye: 26). Ms. explained how she developed the Academic Performance and Learning Characteristics page of the IEP, which she based on “the history” ( : 27-28). She noted that Ms. did not “feel comfortable to give a ” for the child because is “ .” However, the team determined what the child could and could not do and based on those determinations Ms. “suggested a for instructional purpose[s]; the team “discussed it and everybody agreed.” Ms. also identified academic management needs that work well with the child ( : 28-29).

Ms. testified that the child’s “ is pretty ” but that her “ skill is because [ ] does not teach ” and its program “is oriented” ( : 29). She stated that when the child “reaches years old and is in ” the Progress Report is “very vague as far as the academic goals going on” ( : 29). Ms. opined that she “basically believe[d]” the Report in that the child “does have a because the is .” She stated that her of the child during the session indicated that the “topics and the way [the child] react[ed]” were “age appropriate,” while the child’s and skills are “ ” ( : 29-30). Ms. explained how the academic management needs on the IEP addressed the child’s needs ( : 30; DOE Ex. 3 at 3). She stated that the child is on the because she has a and that she needs and , noting that the child is “very . “ ,” the child “wants to have more ” and therefore “ ” works well. The use of manipulatives for math is “hands on” and is better for the child than “ .” Ms. recalled that the child is “very interested in singing and dancing” and so relating those activities to academic skills “will help” the child. The child also needs “a lot of ” ( : 30-31, 75-76). Ms. testified that academic performance and academic management page of the IEP was discussed at the meeting and that no one expressed any disagreement ( : 31; DOE Ex. 3 at 3).

Ms. developed the portion of the IEP and she based it on current school reports. Ms. read out the important things at the meeting and asked if any additions or deletions were recommended; if there were any changes those changes were made on a draft of the IEP and after the meeting were included in the IEP. Any changes that were made would be reflected in the minutes of the IEP meeting, which “tells exactly what was discussed in the meeting” ( : 31-33, 49; DOE Ex. 3 at 4, Ex. 7). The child’s in this category is that she is “ to be part of a activity” and she “does not like .” The child also uses “ ” and “has a the classroom” ( : 33). The management needs on the IEP were discussed and Ms. explained how they address the child’s in this area ( : 34-35).

Ms. testified that Ms. stated at the meeting that the child’s instruction and required “additional adult support” when she becomes “ or ” ( : 35-36). In addition, her tendency to leave the classroom is considered to be a The team “informal[ly]” assessed the “function of” the child’s and she explained why a formal was not conducted, stating, in particular that the child’s has “been .” Ms. developed a for the child ( : 33, 36, 74-75; DOE Ex. 3 at 17, Ex.

7 at 2). Ms. reviewed the on the and noted which of those she had personally observed ( : 36-37). The was discussed at the IEP meeting ( : 37). The Health and Physical Development needs page was developed by referring to the prior IEP and from information gleaned from the parents at the meeting. The team determined that the child does not any when she goes to school and that her primary relates to , for example, a “ , the way she’s not in ” and her to ( : 37-38).

The academic goals on the IEP were developed with reference to the Progress Report and input from the Ms. and the parents. The goals for (“ ”) were developed at the IEP meeting ( : 39). The related service goals were provided by and were reviewed with the parents at the meeting ( : 39). The goals were developed by Ms. and Ms. , the child’s at , to address the child’s / ( : 39). The “Methods of Measurement” boxes on the IEP are left blank because the team leaves that determination to the teachers (Ye: 39-40).

Ms. testified that both the annual goals and short term objectives on pages 3-6 of the child’s IEP, which refer to reading and writing skills, are actually all “annual goals.” She explained that some of those goals are listed under the heading of “short term objectives” because the “IEPs format is limited.” Ms. stated that all of the goals on the IEP are measureable if treated either as short-term or annual goals (Ye: 42-44).

Because the child was when the IEP was developed, a Plan was included. The “long-term adult goals” in the Plan were based on a discussion with the child’s parents about what their expectations are for the child ( : 25, 44-45, 60, 64-65; DOE Ex. 3 at 16). Ms. recalled that the child’s father stated that the parents did not expect the child to “get a do .” Rather, their expectation is for the child to raise a family, “say home, raise kids” and “take care of the household. Ms. opined that this expectation was “probably culture-related.” When the team said that maybe the child was “interested in something”, the father said “if she’s interested in a ” then “put down [a] job of her interest” ( : 6970). Ms. stated that the “consensus” was that the child “is not going to seek higher education” and that would provide job training ( : 70-71).

The “ Services” on the bottom of the Plan are blank because it is completed only when a child is years-old ( : 45). The goal stating that the child “will into the community ” means that she will be able to without any type of support. The parents want the child to have the ability to “get , raise a , go to do by , [and] do ” ( : 65). Those specifics are not reflected on the IEP because the word “independently into the community says a lot,” and it is a “conclusion” based on the specific goals ( : 65-66). The goal is not measurable. Ms. explained that the general goal is to “point in a “of what the expectations are for the child when she becomes an . She stated that because this is the “first ” goal for the child it reflects the parents’ expectations. The goals in the child’s IEP when she is years-old will be in more and will be ( : 66-67). Ms. explained the distinction between the goals of “ [ ] ” and “ [ ] into the community ” ( : 68-69).

The Department of Education did not conduct a vocational assessment of the child. Ms. noted that Ms. is assigned to and is not “her school,” she not know whether the Department of Education asked to do such an assessment. However, she stated that would not do what the CSE wanted it to do ( : 63-64).

Based on the child’s “ , and her needs” the team recommended a -month program in District . Ms. stated that a -month program would lead to . The team discussed the different student to teacher ratios in of the child’s and to . She noted that the participants from stated that a ratio works for the child and they “tried to match” that ratio. The ultimate recommendation was for a and class and a -to- ( : 46, 77). The related services recommended for the child were and the and services were recommended but modified ( : 47; DOE Ex. 3 at 15). No one at the meeting disagreed with either the ore related service recommendations or the recommendation for a The child’s parents were informed that is a component of the and that the principal at the specific school would “inform them in more detail” ( : 48).

The IEP was developed in January 2011 and was based on a December 2010 Progress Report from . The goals on the IEP were not to be implemented until July 2011 (Ye: 71-72). Ms. testified that the teachers at the meeting indicated that the goals were developed for the “next school year and will carry on to the end of June 2012” ( : 72-73). However, since it was “ ” Ms. told the parents that if they saw “significant changes or any changes [they] want to make,” they “could always come back to the team.” Ms. stated that she told the parents they can “compare [the IEP] goals[s] with the main report goals” and “see if any significant changes exist.” Ms. also testified that the IEP team is a “ten-month team” and so they do not work in the summer ( : 72-73; DOE Ex. 7 at 2).

Ms. opined that, based on her “numerous visits” to and her observation of the child at the school, is not appropriate for the child. She based this opinion of the information in the “last formal testing” of the child indicating that she has “ ” and on her 30-minute observation of the child during which the child carried on “quite age appropriate conversation.” Thus, Ms. believed that the child can develop more skills. She recalled that the child’s father questioned why the child still could “have to be taught” ( : 50-51). Ms. stated that the child had to be taught those skills “step by step in a more structured way.” She noted that “is not ” and that on “at least three” 30minute visits to the child’s classroom she has never seen any class activity geared to reading or writing ( : 51-52). uses methodology and Ms. testified that she “never saw a positive between [that] and literacy development” ( : 77). Ms. also testified that it is apparent from the school reports that the emphasis at the school is “minimally on education and teaching literacy” ( : 52-53). She also stated that she “wouldn’t say the child’s ” since during one of her observations in the prior school year she saw a student in the child’s class who is have an “ ” ( : 53, 78).

has worked for the Department of Education for years and is currently the assistant principal of on . The school has and she is the direct supervisor at including the (“ ”) site at ( : 92-93, 95, 120).[3] Ms. explained her duties and responsibilities at the site, which is the placement indicated on the FNR sent to the child’s parents; the school is in the same as the ( : 93-95, 119; DOE Ex. 13).

Ms. described as a “ , state of the arts school” ( : 97). It shares its site with three other schools, an intermediate school and high schools; there are a total of approximately students in the , of whom are special education students. has its own on the floor of the building; there are no general education classes in either the or on the floor. The has a “ ” a and an additional on the floor that is dedicated to and is used for education. also has its own “ ” space in the and a “dedicated room” for students who have “ . The “ room” is separated from the by a and it is supervised by staff. Currently students eat in that room; when it opened students ate there but they subsequently moved into the dedicated space in the portion of the when they became “acclimated,” which is the goal. The located in the level of the building.[4] also has the use of the library at specific times ( : 97-98, 100-101, 121, 127-132, 134, 138-139; : 207-208).

is on a different time schedule from the in the building and it does not hear the “bells” from the other Because has its the students do not pass the other students when going from class to class. When the students go to the cafeteria or the library or to their related service providers they are always accompanied by either a or the related service provider ( : 100). There are or “ ” at the school every day and one is always at the to the building ( : 101-102, 136). has its into the building that leads directly into its so that students do not enter the building with the general education students. The buses pull up to that entrance and students enter through the door to the school’s ; there is a at that door. A is also present at dismissal and when the bus arrives from school trips. Once the students are in the school the door to the “stays locked all day” ( : 137).

services are a “big part” of the school program. When a new student comes to the school the school conducts a to determine where the students, the parents and an agency, if applicable, “see[ ] the student” after graduation. The school then “work[s] backwards” from there to develop a “ IEP” with the assistance of the , the child’s prior records, parent surveys and an “intake” by the nurse ( : 110-111, 114; : 173).

The school provides . When the parents come to the school they are asked to complete a survey with the Based on the needs of the parent, the school conducts workshops on various topics and the sites and hours are “rotated” to accommodate parents who need to come during the day and those who need to come during the evening ( : 111-112). The school also holds a “tremendous fair;” agencies attend the and with parents about options for when their child graduates ( : 112).

Ms. met with the child’s father and an advocate on June 27, 2011and she took them on a tour of . She showed them the school’s and they “peeked into classrooms.” The advocate asked who the child’s teacher would be for the summer. At the time Ms. did not know who the teacher would be because the child’s “busing” was not in place and she had not yet reviewed the child’s IEP. She told the father and the advocate that the particular class they were looking at was full and that it was all Ms. told them that the child would be placed in a class that had and she testified that there was a place available for the child that summer ( : 102-105). Ms. also took them to the cafeteria and showed them both the space and the private dining room; she also took them to the gym. They then went to Ms. ’s office; the tour and meeting took about half an hour ( : 104, 141-142).

For the 2011-2012 school year, has grade classes, all for students with who are between and years old; the students in each class are within the legal year age range ( : 105, 122-127). The school follows the of any student who has one. During the tour with the child’s father and the advocate, the advocate asked whether there is a specific room dedicated to “ .” The school does not have a “dedicated room.” However, if a student has a “ ” the child can be taken to the resource center behind the library, Ms. ’s office or to the hallway ( : 106-

[5]

107, 133, 134-135, 141; : 214-215). The advocate also asked whether the school had a “separate subject called ” and Ms. told her that are embedded throughout the school’s programming. The school uses the “ ” lesson plans; Mr. is “renowned for his ” ( : 114-115, 143-144).

There were , , and at the school during the summer; any student whose IEP mandated received counseling ( : 107). Ms. testified that during the summer the school had at least providers and in the fall the school had and full-time . The school would have been able to meet the and on the child’s IEP both in the summer and in the fall ( : 107-109; DOE Ex. 3 at 14). During the summer, the school had full-time and in the fall had full-time as well as additional from an agency. The school would have been able to meet the mandates on the child’s IEP both in the summer and in the fall ( : 109-110; DOE Ex. 3 at 14).

Ms. reviewed the page on the child’s IEP. She testified that the school would have been able to begin addressing the “ outcomes” on the top of the page and she explained how that would have been done. , who, after having reviewed the child’s IEP, Ms. would have assigned as the child’s teacher in July 2011,explained how the school promoted independence for the students ( : 112113, 140; : 151-152).[6] For example, community integration would have included trips on public transportation to the museum, the mall, restaurants and for shopping. There is a “ ” who accompanies the students on the trips and the students go to “ ” where they learn about travel. Ms. noted that the school has a “state-of-the-arts room” where the child would learn, for example, , and do ( : 113, 116-118; : 172-174; DOE Ex. 3 at 16).

During the summer of 2011, the school day was from a.m. to p.m. The classes were based on a “formula” considering the , , and ( : 144-145). There were about students attending in the summer and approximately of them of them were ( : 146-147, 149). Since the fall and currently the school day is from a.m. to p.m. ( : 115). Beginning in the fall semester the school instituted departmentalized classes for the students, in that a different teacher teaches the various subjects. The teachers move from room to room but the students remain in the same classroom ( : 147-148). During the school year there is an after school program called “ ” which is funded by the Department of Education. There is also a program called “ ” which is private and meets days a week for students who “meet the criteria” of the program ( : 115116).

Ms. explained her understanding of as a “ delay” ( : 191192).7 She did not take a course in the connection between and the to but she explained her understanding of how to address issues of with students ( : 192-193). Part of Ms. ’s training in the program was a program geared to train the teachers how to determine baselines and bring a child who exhibits back to that ( : 160-161).

During the summer of 2011, there were girls and boys in her class, all of whom were on the . The age range of the students was from to years-old; all of the students were except for one who used a “ ” ( : 158-159, 162, 172, 195). All of the students were able to communicate in to word sentences ( : 195).[8] The class had a classroom a health and a for the latter for particular students. Ms. was responsible for supervising all of them ( : 159). The classroom assisted the students who did not have a -to- ( : 159). The was with a student who had “ .” However, the child did not have any outbursts while in Ms. ’s class ( : 160, 194, 204). Ms. noted that she follows the for any student who has one ( : 161, 215). She testified that she would be able to implement the included in the child’s IEP; she explained how she would do so and how she would measure the child’s progress ( : 215-217; DOE Ex. 3 at 17). Ms. testified that each requires an and she explained how she prepared an for one student ( : 218-222).

The school uses the “ ” academic curriculum, which she described; the curriculum is aligned with “common core” standards. Ms. assessed her students in the class using the “ ” in order to determine the appropriate modification or differentiation of that curriculum. She noted that a lot of students with are “ ” and she testified that she “tend[s] to make her more ” ( : 154 156-158, 212-213). Ms. stated that the teachers teach to the IEP and that the helps develop IEP goals for the students ( : 158). The school also uses the (“ ”). On the first day of the summer program Ms. had the students complete a survey identifying their and and sent a survey home to the parents as well ( : 169-170).

The math functional levels of the students in her summer class were from to or grade; student was on a level and the other were on a to grade level. The students worked on various “ ”; some were working on identification of and and others were working on using and , depending on the individual needs of each student. In English/Language Arts (“ELA”) the levels were from to grade; student was on a level and the other were on a to level ( : 162-163, 170, 196-198). For those on the same level she instructed the class in groups and for the others she instructed to- ( : 170, 196). Throughout the course of the day the students have math, ELA, science, social studies, adaptive physical education and , each taught in minute blocks of whole group and small group instruction ( ” 163-164, 174).

Ms. has computers and a board in her classroom as well as an which she can use for -to- instruction ( : 174-175). Ms. described a typical lesson involving and the use of “ ,” including lists, and trips to “ ” to utilize those skills. During the week session the class visited about times. On , and came to the school and the students were able to make ( : 163-164). The class also once walked to or ( : 199-201). In addition, over the summer the class took walking trips or a week during which they worked on “ ,” for example what to do in a and “ ”( : 201-202).

Ms. also described a typical ELA lesson. She testified that she used a “loose model of .” She noted that methodology is “ .” In particular, in the classroom is “broken up into centers,” for example a math section, an ELA section, a writing section and a game section as well as a and area, the use of which is based on schedules and “embedded schedules.” Her use of employs schedules but not “ ,” which she described. The use of in her classroom is for the group model, specifically, “small grouping and things in ( : 164-166, 210-211).

Ms. reviewed the child’s IEP prior to the impartial hearing. She explained her understanding of the portion of the document, in particular that the child is “challenged in a group” and that she “needs more -to- instruction.” She also noted that the child benefits from the opportunity to have “choices throughout the day” as well as from “ ” and, she stated that if group instruction is used, the child should be in a “ group” ( : 166-167). Ms. explained how she would have been able to meet the child’s needs in her class, including the use of , and visits to the / room ( : 167168; DOE Ex. 3 at 3). She testified that the child is similar to the other students who were in her class and explained those similarities ( : 168-169). Ms. also testified that she would have been able to provide the child’s needs as indicated in the IEP and explained how she would have done so ( : 170-171).

Ms. described the / needs of the students in her class as the those of their typical . She noted that the - and indicated on the child’s IEP are “typical” for an She reviewed the “ [ ] Performance” page of the child’s IEP and testified that the child’s is to that of the in her class, most of whom prefer to with an rather than a ( : 176-177; DOE Ex. 3 at 4). Ms. testified that the school is part of a grant called “ ” which stands for and for with , and noted that she “did a lot of through that ” ( : 177-178). She also addressed the fact that the IEP indicates that the child “likes to ” and explained how she would have addressed that if the child had been in her class ( : 178-179).

Ms. reviewed the reading, writing and math goals on the child’s IEP. She testified that she would have “absolutely” been able to address those goals in her class during the summer of 2011 and explained how she would have done so ( : 179-181; DOE Ex. 3 at 6, 7). The , and goals would have been addressed by the related service providers; Ms. stated that she communicates with the related service providers “[a]ll the time” ( : 182).

If a child needs to leave the class for an extended period of time, he or she would be accompanied by a or a related service provider ( : 213).

The students have “ ” at the school with all of the teachers and in attendance during which they “typically work[ ] on is by a teacher and the assistant principal; all of the are in the as well ( : 182183, 206-208).

Each of the students has a in which Ms. writes to the parents ( : 183).

Ms. opined that, having reviewed the child’s IEP, the child “would have fit in [her summer 2011 class] ” and that she would have been able to implement the child’s IEP, which is “not unlike most others” ( : 184).

THE PARENTS’ CASE

is the child’s father. In 2006 and 2007 the child attended a class at . He did not think public school was “ ” for the child because when she was there she was “always coming [and] .” The teachers put “too much ” on the child, who is “ ,” and they did not understand her needs ( : 405-406). One time the child “even had a when she was , from the way that [the teacher] put her” ( : 405-406).

The child began at in May 2009 and the child is “ .” The teachers understand her, they “take their time” and they are “ with her” ( : 406). Mr. stated that if the child was offered a public school program that he thought would meet her needs “and “she will be pleased and they will understand her,” he would not reject the placement ( : 406).

Mr. attended the IEP meeting on January 24, 2011 and he cooperated at the meeting. He explained that his goal for the child was for her “to be , to be able to a , and to a and be to ” and to “be with the way, like, person.” He also wanted the child to be able to ( : 407). He did not tell the CSE that he wanted the child to of his “ ” and did not understand why Ms. said that at the hearing ( : 407-408). The parents did state at the IEP meeting that “as a starting point” one of their goals for the child was to “ a ” and “ ,” but that is not their only goal for her. He stated that if that was what the parents wanted there would be no need to send to her to school; rather they could just “ ” and “not go through all this ( : 407-408, 409).9 Mr. visited and he subsequently wrote a letter to the CSE indicating that he visited the school and listing the reasons he found the school to be inappropriate for the child ( : 408, 412; Parents’ Ex. C). One of the reasons mentioned in the letter was that he saw “a lot of ,” particularly in the class “that she was ,” and that there were “not ” for the child to “associate with” ( : 410). Mr. was also concerned about the number of students that were “ ,” meaning that some of the students

Citations to pages 409-416 and 424-429 refer to Ms. cross-examination of the witness. had that was “ ” compared to the child and he was concerned that those students would “ ” on her ( : 410-411).

In June 2011, the parents determined that the child would attend for the 2011-2012 school year. The child is “ ” at the school and the parents as well as friends and neighbors have noted “ ” ( : 411-412). They submitted a check to the school on April 6, 2011 for $ and another on June 10, 2011 for $ however, they did not sign the contract until June 21, 2011. Ms. signed the contract on June 24, 2011 ( : 412-413, 419; Parents’ Exs. E, F). The contract is for August 2011 through June 2011 ( : 420-421 Mr. stated that the first check was for the “down payment” and that the second check was the first one due according to the “schedule.” He explained that the contract was not signed until after the checks were submitted because the parents originally signed a contract for months but subsequently signed another contract changing it to months, beginning in August 2011 ( : 413416, 421-422, 426).

is the at the Ms. has a Master’s Degree in and is a licensed . She also has a Master’s Degree in education and certifications as a School Administration Supervisor and a School District Administrator, all in New York State; she is not certified in special education ( : 223, 331).

Ms. described as an “ ” school for children with - in relating and communicating that include , and , “global ” and ; none of the students are classified as having an . There are approximately students in the school in age from to . The classes range from to students and the student to teacher ratio ( : 224, 258).10 The school day at is from a.m. to p.m. Monday through Thursday and from a.m. to p.m. on Friday when the teachers have staff development from p.m. to p.m.. While the “ ” is the same every day it gets “individualized for each student.” Staff development covers many different topics related to the (“ also known as “ ” teaching model used by the school and relevant to the students with - ( : 227-

Citations to pages 258-284 and 289-291 refer to Ms. cross-examination of the witness. 229, 263). Ms. described she explained why it is considered “developmental” and why it is an appropriate methodology for children with ( : 230-233). is a under the model that specifically targets the levels. She explained the difference between the and methodology ( : 233-234). “Everyone” at is trained in and she explained how is implemented at the school during the current school year ( : 234, 267-269).

Ms. testified about the reading methodologies used at . She explained that the school determines whether a child is a “sight reader or a decoder” and determines a strategy on a “case by case basis.” She noted that “research is showing that children on the are whole language learners and have a lot of as a strategy” ( : 234-235). If a student is a strong sight reader the school introduces decoding as a reading strategy, but only for children who need that strategy to be able to read ( : 235).

Each family is assigned a for parent support. The provides parent education, training, support groups and as needed ( : 253, 275). holds weekly team meetings at which the staff members who work with the child may discuss the child individually or the child within the classroom. There are also “ meetings” week during which the child may be discussed ( : 254).

The head teacher oversees the whole classroom; he does the lesson plans and adapts the curriculum. He creates the schedule for each individual student and he guides the assistant teachers. The head teacher also makes sure that the students are getting all of their needs met and are receiving all of their services ( : 242-243). The assistant teachers in the child’s class are “ facilitators” and work with the child to “meet her goals” ( : 243). Ms. explained that uses an model for the child rather than the model that the District uses. She noted that the child and the others in the classrooms need a lot of adult support in order to be successful throughout the day. A higher staff ratio is also necessary to be out in the community “safely and successfully” ( : 243-244).

The child began at in March 2009, shortly after she was as being on the . Prior to that time she was in a public school ( : 238). Ms. testified that the child presents with in relating and communicating and she explained why is appropriate for her ( : 235-236). She explained that the child has “holes in her earlier developmental levels” that created “core ” ( : 235-236). The child also has “ and while she has relationships, they are for her to all areas and certainly across .” Because of these the child has “ throughout the day caused by either and by some .” In particular, Ms. explained that the child “ but does , so the and you have to to what she was talking about our of off on a other ” (

: 236). [11]

The first day of summer school for the 2011-2012 school year was July 5, 2011 but the child began the school year on the school day of August 2011 ( : 228, 270, 284). The child’s class for the current school year was based on her Progress Reports and a parent team meeting ( : 244). Since September 2011 has been the head teacher in the child’s class; the child had a different teacher in August but the students in the class remained the same. Mr. has a Master’s Degree in general and special education and he is a certified special education teacher. The student-teacher ratio in the child’s class is . The class has students between the ages of and , all of whom are on the . There are teacher assistants in the class as well, including one who has a Master’s Degree in special education and another who is enrolled in a special education Master’s Degree program ( : 242, 244-245, 263; : 293-295, 316-317, 321).12 The child is the only in the class. However, there are other on the floor, the child has with other and there is called that comes in and works with a group of to them ( : 245-246). The school “felt ” that the child “needed an opportunity to really be and to really be in a place where she could take her within a that sort of her a little and her a little ” ( : 244-245, 263, 273). Despite the age range the students in the child’s class are ( : 245).

Mr. testified that he child’s primary vary depending on whether she is regulated. When she is regulated she is able to “ ” but has with” and and “at times .” When she is not or she is feeling “ ” she “has . At those times she will “ or be to doing the ” and she asks to take her outside the classroom “where she feels more in a environment” ( : 295, 325; : 237-238, 247-248, 270-273). While has a “ room” on each floor with a and a “kind of ,” She does not “primarily” go to the room when she the . Rather, the teachers “often find an classroom” where she gets her . When the child the she is accompanied by either Mr. or a teaching assistant; Mr. explained what the teachers do with the child when she becomes . This year she has used the room “ or ” and she has become “much more and in the throughout the day” than at the beginning of the year ( : 296, 298-299, 320-321; : 241, 271). Recently, the child has been “doing inside the classroom and doing much ” ( : 297, 323). Ms. stated that the amount of time the child spends out of the classroom has “ ,” and that she now to percent of the day the classroom ( : 246-247, 269).

As part of the s program, the child’s class is “ from one teacher to the next teacher for math, literacy and science in order for them to become more and with within the program” ( : 301-302, 325). Mr. teaches math but coordinates with the science and literacy teachers ( : 302, 325-326). The child is with him for an and a in the and then from . for the rest of the day, except for when she is “pulled out” for related services ( : 317-320, 324).

The math skills being taught to the child at the time of the were skills, in particular “ and and ”; the child is also beginning to do . While the child “can do some ,” the “more it gets the it is for her.” Mr. noted that other students in the class are working on and that the child “wants to do it and is to learn the table.” At this point, the instruction is “not really formal” but “just through her observing in the classroom she is doing it.” Every the child’s class goes to the and throughout the week the students “might go to a to a .” On those occasions, the child is able to give the and the of ( : 299-300, 305-306; : 236-237, 264-265). Mr. noted that the child “is more able to and the change” than she was in in that she can now “do change” with “minimum staff support” of encouragement, whereas before she was only able to do “ - change” ( : 301). The outings also help the child learn to “ ” to get to and from the , “ in the ” and learn how to in the ( : 306). The child has in that she is now “completely going to the with a staff member” who now “ her” ( : 306-307). In addition, since the child now in the she will ask to go to the ” or and a teaching assistant will accompany her to the ( : 310).

Another math goal is “ ,” for example it will take to go to the and come to . Since the child is “getting at” . At the beginning the child was “ even to the she she was going to be .” However, now the child “has a much ” to a time. Mr. explained that allows the child to have a “ ” and is also relevant if she “ever wants to have a ” ( : 300). He explained how he addresses the child’s specific math needs ( : 303).

English/Language Arts is taught by another teacher. At the time of the hearing the child and her class were learning and the of ( : 301). The child is working on goals. Her comprehension has from September in that she is now “more able to of the story is” and the “ in the .” However, she still with the “ questions” such as what a particular character is “feeling a certain in the story” ( : 302303).

The child is “still working on .” While she does have “ of thinking [ ]” the thinking is “often .” The more the are about the child’s reading material the more it is for her to answer the questions. However this skill has since September when she “had a much more time doing that and staff ” ( : 311-312; : 237). The child is not at the point where she can answer an alone and Mr. explained how he is working with the child to improve this skill which, he believes, is a realistic goal for her ( : 312-314). The child has how and she has “ ” questions ( : 237).

The child “ with” her peers and when she is with peers she “ to be as as could be.” In order to address these the staff has “ [the child] to go” to “many different groups” within the school. On Fridays the students can choose a group they are interested in. Last year the child was in a “ ” group but she is a “ to go back this year” because the other students in the group have changed ( : 303-304). However, the staff has encouraged her to “go at least and look inside the class” and has also encouraged her to go on lunch dates with other classes so she can interact with students in classes other than her own; Mr. explained how the staff facilitates peer interaction ( : 304, 322). He explained how the child has in with peers that she is less than she used to be and seems “ ” when initiating with her peers ( : 305).

To foster , the child is going to be a “ ” and the child will “have to come up with .” There is also a possibility that the child will gave an with that person for an a week. This was arranged specifically for the child based on her “ ” ( : 307-308, 3230324).

Mr. noted that the child is only years-old and has about years until she has to decide whether she wants to go to . He opined that if the child is “able to remain ” and “ ” through “ ” and if she “ ” that her, she is “ of she wants” ( : 308309). Mr. explained what he is doing to address the child’s and how the school is helping the child her ( : 309).

Since August 2011, the child has been receiving the related services of , and . She receives a week for minutes and has individualized goals by the ; Ms. described the child’s progress in since August 2011 ( : 239-241).

Ms. opined that the child has during the current school year. She based that opinion on seeing and speaking with the child, talking to the providers that work with the child, her weekly meetings with the supervisors of each department, her participation in some of the meetings ( : 269).

The school provides reports of the child’s progress in December and May, and each of the teachers provides a “ ” for the report. The goals developed for the child are month goals, and the goals that were developed for the child in May 2011 are “revisited” for the December 2011 report to see whether they have been met or whether they need to be modified ( : 248-249, 273-274). The month goals on the Progress Reports would not be an appropriate annual goal on an IEP because they should be met before the year is up and new goals should be developed for the next months ( : 249). Ms. explained why the goals on the May 2011 Progress Report are appropriate for the child and why and when with are important goals for the child ( : 249-251). She testified about why she believed that some of the goals on the child’s IEP were too general or too vague ( : 252-253).

When the Department of Education wants to observe a student, a representative calls the school, states who is to be observed and schedules an appointment. Ms. testified that the Department of Education sets the time of the observation but does not request the child’s schedule prior to making the appointment ( : 256-257, 275276). As long as the school has the consent of the child’s family, the person observing may change the observation to a later date; has never told the Department of Education that it could not return at a different time or that the observation had to be done at a specific time. The only time a representative is told that a requested date is “no good” is when the students will be out of the building at the requested time ( : 256, 276-277). set the time for her observation of the child ( : 257-258).

Ms. explained her understating of as a system based on methods, the main premise of which is to create an environment in which the child can be successful. The method uses a schedule and the child is “expected to do a skill” ( : 266). She did not believe that would be appropriate for the child because the child requires “ to be able to ,” and the expectation of is that the child can be in an activity before he or she “move[s] on.” Ms. opined that the child would “become and follow through on the activity even though she ” ( : 284-285, 289-290). Ms. and Mr. both opined that the child did not need a at . Ms. testified that while the child needs support “at certain activities and at certain times” she is “able to remain part of the group without having one person with her all the time” ( : 286-287). Mr. testified that that “staff in the [class]room is able to “ [the child] and her to the any ” ( : 315). Ms. stated that a would be “too limiting” for the child because the school wants her to “be able to and be able to with the and not just become on one ” ( : 287).

is the child’s and at for the 2011-2012 school year. She has a Master’s Degree in has New York State certification in and holds a Certificate of Clinical Competence from the

Association ( : 362-363, 369-370).

Since September 2011, Ms. has been seeing the child a week for minutes in a group with other students ( : 363, 373-374, 376). She described the child’s with and she explained the and she uses to address those ( : 364366). Ms. explained how the child’s skills have ( : 366). The child also has with . Ms. described the child’s in this area and detailed how she addresses them ( : 367-368). Ms. stated that the child has “definitely made ” in expressive since July 2011 and she described that progress as well as the child’s progress in ( : 370-371).

Ms. also works on al activities with the child, such as helping the child’s “plan and sequence the steps to going out in the community,” and she gave an example of how that is done, citing in particular a trip to . She also explained how the child’s were addressed before and during the trip ( : 372-373, 379-381).

Noting that the child’s IEP recommends that she have a week in a and a week in a , Ms. explained that the child’s needs are met at because the school is an “interdisciplinary model” and the teachers and providers collaborate on their goals for each child. Therefore, the child’s goals are being “targeted” throughout the day either directly through Ms. or indirectly through other teachers and providers ( : 374). Ms. wrote the and portion of the child’s December 2011 Progress Report which covered the period of time from May to December 2011 ( : 375).[13]

is the child’s at . She is a registered and licensed therapist in New York State ( : 384-385). 14

Ms. sees the child minute sessions a week with other students and a week individually. The sessions may take place in her office, in the , out in the or somewhere within the . She explained the child’s with and regulation ( : 385387, 400).15 Ms. noted that the child “ from a lot of ” and from “activities that provide her with and input,” and she described how she provides such activities. The child engages in sensory activities “periodically throughout the day” and Ms. has trained the staff on those activities ( : 386-387, 394-396). The child has benefitted from the activities and Ms. testified about the child’s progress with respect to . For example, she noted that “most recently” the child has been “ and with her and with the classroom staff,” in terms of her use of and to “kind of run away” from the staff if she is . Rather, the child has made “in her ability to what it is” that “made her so .” The child is also better able to by asking for a or to from the classroom ( : 387-388, 400).

and is “definitely one of [the child’s] strengths” but is still a “focus” of her program, and Ms. testified about the issues she addresses with the child, in particular activities related to ( : 389-390). And, Ms. described the progress the child has made in this area ( : 390-391). Ms. also described the child’s with , how she addresses those issues and the progress the child has made in this area ( : 392-394).

Ms. was involved with the planning and execution of the child’s trip to and she explained how the activities leading up to the trip and during the trip helped the child to “generate new ideas and think[ ] of new places” ( : 390-391).

Ms. and Ms. collaborate with the child’s classroom teachers and other related service providers at weekly team meetings. Every the team discusses a different child. On most there is either a training session or a team meeting and on the providers “collaborate with other disciplines.” All members of the staff are “very easily accessible” and “can meet as needed” about specific children ( : 371-372). Ms. ’s office is on the same floor as the child’s classroom and so she sees the child and the child’s teachers and providers on a “daily basis” ( : 399-400).

is a child and family at ling and . She as a Ph.D. in guidance and is a licensed and a credentialed in New York State ( : 348-349). Dr. treated the child from May 2008 to December 2009 when the child was and years-old. At that time the child was in a class at in . Dr. was working with the child when the child was referred to for a evaluation and she received a copy of that evaluation ( : 349-350, 354; Parents’ Ex. D).[16] Dr. testified that Dr. found that the child “was in the areas” related to “gave ” and “ ” and that she “ with skills.” The general diagnosis was , a ( : 350; Parents’ Ex. D).

On June 22, 200917 Dr. accompanied the parents when they visited and she did not think it was an appropriate placement for the child ( : 353-354, 358). Dr. explained that while the child the students she observed at “were not as as the child.” She noted in particular that the teacher who gave the tour stated that most of the students were “ ,” and she testified that the child “was certainly category” ( : 354, 358-359).

When Dr. stopped treating the child in December 2009, the child “still had all of the ”( : 350-351). In particular, the child was “ ,” did not “ at all [and] always . She and was to at all with .” However, once the child began attending she was getting there and thus Dr. no longer had to treat her ( : 351).

Dr. recently contacted the parents and she saw the child again on the Thursday prior to her appearance at the hearing ( : 351, 354-355). She met with the child personally at and also visited a ; she was with the child for about an and . At that time Dr. was “surprised” in that the child’s “were almost on ” and the child made “ ” with her. In addition, the child twice “asked for a , which was ” since in the past the child “didn’t want to ” ( : 351-352, 356). Dr. opined that the progress was “clearly” attributed to since the school was the “ ” the child had been receiving since Dr. had last seen her ( : 352). Dr. also spoke to the child’s teacher and a , and noted that the “kind of independence” the child was showing by for her was to do before “ ” ( : 352353, 357). The child’s teacher told her that the students in the child’s class were “testable.” Dr. explained her understanding of a and opined that the child did not require a because “she doesn’t really have that may crises.” Rather, she “ ”( : 353, 357, 359).

The tuition at for the month 2011-2012 school year is which covers the full school day, all of the child’s related services, trips and anything else related to the child’s education ( : 224-225). The child did not begin the current school year until August 2011 and the tuition was prorated to for eleven months ( : 238-239; Parents’ Ex. E). The contract states that if the parents inform the school within five days of the start of the school year -- which for the current school year was September 7, 2011 -- that the child was going to attend school the parents would be released from the contract and would be responsible only for the nonrefundable deposit of and the prorated amount for the summer session if the child had attended. If the child started in the public school in July the parents would be released from the entire contract except for the non-refundable deposit ( : 255256, 277-278, 280-281, 287-288; Parents’ Ex. E at 2, 5).

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. 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. The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985).

** *

I begin by noting that except as otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. The Decision is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.

I. The parents allege in both the Due Process Complaint and their Post-Hearing Brief that, for numerous of reasons, the Department of Education failed to meet its burden under Prong I because the IEP and the recommended placement were inappropriate. I will address only those issues necessary to reach a determination in this case. The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053. To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits Rowley, 458 U.S. at 188-189; R.E. and M.E. 785 F. Supp.2d at 40, and that the recommended program is the least restrictive environment (“LRE”) for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12. The IEP must include the child’s present levels of academic achievement and functional performance. 8 NYCRR 200.4[d][2][i]. The IEP must also include measurable annual goals that include “evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with the placement and ending with the next scheduled review by the committee.” 8 NYCRR 200.4[d][2][iii][b].

In developing an IEP a school district must comply with the procedural requirements set forth in the IDEIA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2nd Cir. 1997); R.E. and M.E., 785 F. Supp. at 40-41. While not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA, Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 U.S. Dist. LEXIS 9873, at *30 [S.D.N.Y. Feb. 9, 2007], Application of the New York City Dep’t. of Educ., Appeal No. 07-046, “the Supreme Court and congress have emphasized the importance of the procedural provisions found in the IDEIA.” R.E. and M.E., 785 F. Supp. 2d at 40-41, citing Rowley, 458 U.S. at 205. When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits . 20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; Perricelli, 2007 U.S. Dist. LEXIS 9873, at 30-31; Application of the New York City Dep’t. of Educ., Appeal No. 07-046.

In this case I find that the IEP was defective in that it did not reflect the child’s present levels of academic achievement and functional performance or the academic, developmental and functional needs of the student for the 2011-2012 school year. In particular, I note that the IEP meeting was held on January 24, 2011 and that the 20112012 school year did not begin until July 2011. Ms. testified that the goals on that IEP were based on the December 2010 Progress Report and input from the child’s classroom teacher at . While Ms. stated that the teachers at the meeting indicated that the goals were developed for the “next school year and will carry on to the end of June 2012” ( : 72-73), Ms. , the director of , testified that the goals were month goals, not annual goals. This testimony is supported by the fact that issues Progress Reports with goals for the child in both December and May of each year, and I credit Ms. ’s testimony on this issue. In light of this fact I find that the IEP does not reflect the child’s present level of performance, her needs or the goals that were appropriate for the child in July 2011, almost months after the IEP was developed and after the child had had additional months of school during which the current levels could have changed and any number of the goals in the IEP could have been met in whole or in part. In fact, a review of the December and May Progress Reports shows that this is the case (DOE Ex. 12; Parents’ Ex. G). When questioned at the impartial hearing about the timeliness of the information on the IEP, Ms. stated that she told the parents they can “compare [the IEP] goals[s] with the main report goals” and that if they saw “significant changes or any changes [they] want to make,” they “could always come back to the team.” This testimony is reflected in the Minutes of the CSE Meeting ( : 72-73; DOE Ex. 7 at 2). I find Ms. testimony that the parents had the responsibility to compare the child’s May 2011 Progress Report with the IEP and determine whether the IEP should reconvene for purposes of updating the IEP to be both and . It is clearly the responsibility of the Department of Education to develop an IEP reflecting the child’s needs and appropriate goals for the coming school year and I know of no provision in the law that places that burden on the parents.

Ms. also noted that the CSE meets only months a year and thus it would not be available to convene during the summer. The fact CSE works only months a year is irrelevant and has no bearing on its responsibility of developing an IEP for the child that is designed to meet the child’s needs and provide her with educational benefits. There was certainly time to schedule an IEP meeting subsequent to the issuance of the May 2011 Progress Report. Moreover, even if an IEP meeting had been held in May, prior to the release of the Progress Report, the child’s teachers and providers could certainly have contributed to the development of an IEP that was in line with the student’s needs and goals at that point in time. In any event, the CSE would have had to reconvene before the summer of 2011 since the 12-month school year for which the IEP was developed began in July.

For the reasons stated above I find that the IEP was not reasonably calculated to provide the child with educational benefits. Thus, I conclude that the Department of Education has not met its burden in demonstrating that it provided the child with a FAPE for the 2011-2012 school year.[18]

II. Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden 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." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364; R.E. and M.E., 785 F. Supp.2d at 44-45. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000). I find that the parents have met their burden in this case. The testimony in support of this determination is presented in detail above with citations to the record and citations will not be included here. To summarize, there are students in the child’s class, head teacher and teaching assistants. Ms. , the director of , testified why the class is appropriate for the child. Ms. , Mr. , the head teacher in the child’s class, Ms. , the child’s and Ms. , the child’s , all testified about the instruction and activities that are helping the child in her academics, her and in fostering her in the community. Mr. testified about the child’s academics, explaining what she is working on in math and literacy including reading comprehension. And, he explained how he addresses the child’s regulation issues and her need for sensory input. Mr. noted that the child leaves the classroom when she is “ ” and that on those occasions she is accompanied to another room by himself or a teaching assistant, and that the child completes the classroom work at that location. Mr. and Ms. testified that the child spends more time in the classroom than she did at the beginning of the school year and Mr. stated that she child has become “much more throughout the day” than she had been earlier in the year. The evidence also showed that the child receives the related services of and . Mr. , the Ms. and Ms. all testified about the trips outside the school that are geared to foster the child’s skills and . Mr. explained that the child takes trips to the every with her class and that she is now able to go to the , in that she is followed by a teaching assistant rather than accompanied by one. On occasion, the child also goes to the grocery store to her , also with a staff member. Ms. and Ms. testified about a trip to that the child planned with a peer. They described the skills, including and , encompassed in the activities leading up to the trip and during the trip itself. In addition, Ms. and Ms. provided detailed testimony about their work with the child in and , respectively, and how their work is helping to meet the child’s needs.

While, as Ms. states in her Closing Brief, the child is the in a class of to year old (DOE Closing Brief at 13), Ms. testified that the students are developmentally similar to the child and that the child was placed in that class so that she would have the opportunity to be challenged and to be “pushed” to use her skills. Ms. also noted that there are on the same floor of the school as the child and that there is a in the school. Moreover, the testimony of Mr. and Ms. and Ms. indicated that the child has made progress in all areas, including , and thus there is no evidence that being in a class with all , most of whom are older than she is, has adversely affected the child in any way.

There was additional evidence at the hearing that the child’s social skills are improving. Dr. , a who worked with the child from May 2008 to December 2009 while the child was still in public school, testified that at that time the child was very shy, . However, when she saw the child shortly before the impartial hearing the child displayed . Dr. also commented on the child’s independence in that she was able to go out ”

In addition, while evidence of progress and achievement is not required to sustain the parents’ burden, all of the witnesses gave examples of the child’s progress since the beginning of the school year. And, the child’s father testified that the child’s family and neighbors noted that she has made “a lot of progress.” In light of the forgoing findings of fact and the more detailed testimony elsewhere in this Decision, I find that the parents sustained their burden of demonstrating that is an appropriate placement for the child for the 2011-2012 school year. III.

Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. Here, the evidence supports a finding that the equities favor the parents.

The IEP meeting was conducted on January 24, 2011. After receiving the FNR dated June 6, 2011, the parents visited on June 27, 2011. They toured the school and asked questions of Ms. , the assistant principal who met with them. The next day the child’s father wrote a letter to the CSE stating that the reasons that he did not believe the school was appropriate for the child (Parents’ Ex. C). While I find that several statements in that letter conflict with Ms. ’s testimony about the school and are factually inaccurate (see DOE Closing Brief at 26-27), I find that the letter was based on the father’s perception of the school and the classes during his visit and that any misstatements of fact were not deliberate and do not impact on the equities of the case.

Ms. argues in her Closing Brief that the equities favor the Department of Education because the parents were never interested in sending the child to the proposed placement (DOE Closing Brief at 26-27). The child attended public school until May 2009 when she began attending . The child’s father explained why the child’s public school was not appropriate for her and that the child is much happier since she has been at . However, he also testified that the if the child was offered a public school program that he thought would meet her needs, he would not reject the placement ( : 406). There is no reason for me to discount this testimony as insincere.

The fact that the parents signed a contract for and made payments to the school prior to their visit to , as Ms. asserts (DOE Closing Brief at 26), does not warrant a finding against them on the equities. The parents did not receive the FNR until sometime after June 6, 2011. The fact that they wanted to ensure that the child had a place to attend school for the 2011-2012 and thus entered into a contract to reserve that place in case the Department of Education did not offer an appropriate placement, does not weigh against them. I note that the contract and Ms. ’s testimony made clear that if the parents accepted a placement in a public school and notified within five days of the start of the school year, all payments would have been returned to the parents except for the non-refundable deposit ( : 255-256, 277-278, 280-281, 287-288; Parents’ Ex. E at 2).

In light of the above findings of fact I conclude that the equities in the case favor the parents.

ORDER

In light of the above findings of fact, it is hereby ordered that:

Within 30 days of receiving a copy of the tuition contract for the 11-month 20112012 school year at and proof of payment by the parents, the Department of Education is reimburse the parents in the amount they paid to the school for the tuition. If the parents are still making periodic payments to the school the Department of Education is to reimburse the parents within 30 days of proof of each payment. The amount to be reimbursed is not to exceed Dated: March 6, 2012

__________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 7/11/11, 6 pp. B IEP, 1/24/11, 17 pp. C Parent Correspondence to CSE, 6/28/11, 2 pp. D Evaluation by , 10/2008, 5 pp. E Contract, 6/23/11, 6 pp. F Proofs of Payment, Checks, 4/6/11, 6/10/11, 8/26/11, Various Dates, 3 pp. G Interdisciplinary s Program Report of Progress, 5/2011, 17 pp. H Interdisciplinary Program Report of Progress Update, 12/2011, 15 pp. I Parents’ Closing Brief, Undated, 31 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/11/11, 6 pp. 2 Due Process Response, 10/13/11, 3 pp. 3 IEP, 1/24/11, 17 pp. 4 Evaluation, 3/27/10, 5 pp. 5 Evaluation, 10/6/08, 5 pp. 6 Classroom Observation, 11/8/10, 2 pp. 7 IEP Meeting Minutes, 1/24/11, 2 pp. 8 Annual Review Notice, 9/22/10, 1 p. 9 Notice of IEP Meeting, 12/20/10, 1 p. 10 -Month School Year Consent Form, 1/24/11, 1 p. 11 Notice of Recommended Deferred Placement, 1/24/11, 1 p. 12 School Report of Progress, 12/2010, 12 pp. 13 Final Notice of Recommendation, 6/6/11, 1 p. 14 Social History Update, 5/23/08, 3 pp. 15 Class Schedule, 2011/2012, 1 p. 16 Signed Subpoena to 2 pp. 17 Signed Subpoena to , 2 pp.

18 Letter from , 11/29/11, 2 pp.

19 Letter from , 1/12/12, 1 p.

20 Emails Between Counsel on Subpoena issues, 1/2012, 3 pp.

21 Emails Between Counsel on Subpoena Issues, 11/2011-1/2012, 3 pp.

22 Emails Between Counsel on Subpoena Issues, 3 pp.

23 Closing Brief, Undated, 27 pp.

IMPARTIAL HEARING OFFICER

I Letter from and ,

1/9/12, 2 pp.

Footnotes

[3] Citations to pages 120-147 and 149-150 refer to Mr. cross-examination of the witness.

[4] The students and general education students use the same staircase and entrance to get into the cafeteria: : 140).

[5] There are no mats in the resource room but there are mats in the room, which are in the and in the gym ( : 135-136).

[6] Ms. has worked for the Department of Education for four years. She has a Master’s Degree in special education and is a certified special education teacher. In July 2012 she will complete a -credit Master’s level program at for national certification as an specialist; the program is part of a federal grant ( : 153-154, 185-189). She also attends professional development sessions( : 154-155). Ms. stated that one of her District professional development courses explained that a person on the may have “very ability with a lot of ” or “ ability and not really display .” Because the is on a it is “very individualized” ( ” 189-190). Citations to pages 185-214 and 218-221 refer to Mr. cross-examination of the witness.

[8] Ms. is also teaching a class since the fall; of the summer students remained in her class and new students were added ( : 193-195).

[11] Other students in the class have difficulty staying regulated as well ( : 322). Citations to pages 314-324 refer to Ms. cross-examination of the witness.

[13] Citations to pages 375-378 refer to Ms. cross-examination of the witness. Citations to pages 400-401 refer to Ms. cross-examination of the witness.

[16] Citations to pages 354-360 refer to Ms. cross-examination of the witness. Since the visit was in June 2009 it was apparently for a school year other than 2011-2012.

[18] In light of this finding I will not address the other issues raised in the Due Process Complaint about the IEP or the propriety of the proposed placement. As an aside, I note that Mr. argued in his Closing Brief that the was defective in part because there was no However, neither the issue of the nor an was raised in the Due Process Complaint. The Complaint was not amended and the Department did not consent to address any issues that were not raised in the Complaint. Thus, those issues are not ripe to be addressed here. See Application of the Department of Education, Appeal No. 08-056.