New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 16, 2012

June 5, 2012

June 28, 2012

March 25, 2014

Actual Record Closed Date: August 28, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2012

ESQ., Attorney — Student

Parent/Mother — Student

District Representative, Committee On Special Education — DOE

School Psychologist, Committee on Special Education (Via Telephone) — DOE

Assistant Principal, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2012

Parent Attorney — Student

Parents

Principal (Via Telephone) — Student

CSE- District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2012

Parent Attorney — Student

Parent Attorney — Student

Parents

Teacher (Via Telephone) — Student

Director (Via Telephone) — Student

Consultant (Via Telephone) — Student

CSE- District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2014

Attorney for Parent — Student

District Representative — DOE

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District (Department of Education (DOE.)) will be referred to as DOE, the parents as Parents and the student will be referred to as Student. The complaint notice is dated January 19, 2012. (Ex. 1) Issue was joined and three days of testimony ensued. A decision was rendered on November 9, 2012 holding that the Parent lacked standing to seek tuition reimbursement. (See IHO ex. 7 (SRO decision 12-230 @ p. 4)) The Parent appealed to the State Review Office. The DOE cross-appealed and the State Review Officer issued a decision on December 6, 2013. (Ex. 7) That decision reversed that of the IHO to the extent that the IHO erroneously concluded that the Student lacked standing to sue. On this point, the SRO held that the relief requested would redress the injury alleged. Additionally, the decision remanded the matter for a traditional “Burlington-Carter” three prong analysis because “the IHO did not address the alleged violations set forth in the Parents’ due process complaint notice or make a substantive determination on whether the DOE offered the student a FAPE and to address, as necessary, the relief requested.” (Ex 7 - SRO Decision at 9) Following the remand, the original IHO recused himself, as did several others before the case was assigned to myself. The parties met before me on March 25, 2014 in order to offer background information and to supplement the record. ^[1]

The primary issue that persists in this litigation is whether the District provided the Student with a Free Appropriate Public Education (“FAPE”) for the 2011-2012 school year. In sum, this is a reimbursement case, and the Parents have raised both procedural and substantive violations. Parent’s Position

In the complaint notice dated January 19, 2012, the Parents allege that the DOE denied the Student a FAPE for the 2011-2012 school year. (Ex. 1) The Parents assert that the Individual Education Plan (“IEP”) developed at the May 4, 2011 Committee on Special Education (“CSE”) meeting is inappropriate, that the CSE was not duly constituted, that the CSE did not recommend an appropriate program or placement for the Student. (Ex. 4, 1) The Parents are seeking tuition reimbursement and payment for compensatory education and/or RSAs for related services and transportation. District’s Position

The District’s position is that the IEP was appropriate, the CSE was duly constituted, and the placement was appropriate. Overview

In accordance with the discussion that follows, I find that the DOE did offer the Student a FAPE for the 2011-2012 school year. I have also determined that the Private School is appropriate and while it is the prerogative of the Parents to send the student there, this is not a case where reimbursement is warranted. Even if I were mistaken regarding Prong I, I would still deny reimbursement based upon my review of the equitable considerations which do not favor the Parents in this case.

A finding in favor of the District under Prong I would ordinarily permit me to dispense with and corresponding facts as they relate to Prongs II and III. However, the extraordinary procedural history of this case warrants modification of regular practice. Also, the SRO’s decision to remand the case insinuates that a comprehensive analyses under Burlington/Carter is proper.

Procedural History

The CSE met on May 4, 2011 for an annual review to develop an IEP for the Student for the 2011-2012 school year. (Ex. 4) The CSE recommended a special class in a community school with related 30 minutes twice per week, individual four times per week for 30 minutes, three times per week for 30 minutes, and individual physical therapy three times per week for 30 minutes. (Ex. 4)

This matter involves a student who, at the time that the IEP at issue was developed, and classified as a student with a (Dist. Ex. 4 at p. 1) For the 2010-2011 school year, the Student was enrolled in a nonpublic school, which the record indicates has since closed. (Tr. pp. 16-17, 69-70)

By “Final Notice of Deferred Placement,” dated May 4, 2011, (Ex. 4) the DOE notified the Parents of the CSE's program and placement recommendations and indicated that it was prepared to implement the Student's IEP but requested that the Parents consent to delaying implementation of the May 2011 IEP until September so that the Student could remain in the private school until the end of the school year. On August 29, 2011, the Parents entered into a the 2011-12 school year and soon thereafter paid a deposit toward the costs of . (Ex.s C & D) Student History The Student is classified with . (Ex. 4 and 6) The Student is attending the . The Psychologist at the Student’s previous school characterized the Student:

…Presents with errors. His delays are compounded by his distractibility and trouble staying focused to task at hand… . He has difficulty with comprehension and answering follow up questions… (Ex. 6, p. 3) Likewise, in conducted by the DOE on February 11, 2009, the School Psychologist wrote that the Student score in on the and and that he in all areas. (Ex. 3)

On the other hand, there is information indicating that the Student is progressing. [The Student’s] teacher feels that he is progressing nicely in his social skill development and . He requires prompting to . She feels that he will require a special education program in order to continue his progress. (Ex.3)

In the Annual Student Report: 2011-2012 from the Private School, the Teacher wrote that the Student showed improvement in his ; following directions, and communicating with his peers. (Ex. J pp. 1-2) Nevertheless, regarding the program dated September 15, 2011, the teacher wrote that “[the Student] has directions and he often misunderstands instruction… he on a specific task for a few minutes at a time…” (Id.)

In Mid-year progress, dated January 1, 2012, the teacher wrote “he has learned how to follow and predict the daily schedule and can follow simple directions.” (Id.) He still . In the end of the year progress dated June 3, 2012, “[The Student] has made much progress in his this year.” “His attention span has increased, and with help from his teacher, he can work on a certain task for up to 20 minutes at a time.” (Ex. J, p. 2-3) In math, he increased his understanding of subtraction, addition and answering simple math problems. (Ex. J, p. 3) In reading, he mastered and was beginning to answer simple comprehension questions about stories that were read to him. (Ex. J, p. 4) In writing, he learned to spell around 30 sight words and can copy homework from the board, and is learning to write about his feelings and ideas with the help of a teacher. (Ex. J, p. 5) In science and social studies, the Student has learned some concepts and can remain quiet during discussions. (Ex. J, p. 6) The Principal from the Student’s private school testified that the Student had made progress in spelling, writing, math computation, and expressive language. (Tr. p. 140) The Student’s English Teacher from at the June 28, 2012 hearing date that the Student showed improvement in the areas of following a schedule, interacting with other students, increasing knowledge of sight words, decoding and learning concepts. (Tr. p. 180-181) The Student’s Parent testified that the Student has made progress in the Private School and is now interested in learning and will do schoolwork with her. (Tr. p. 213) The testified that the Student made improvement in his social skills. (Tr. pp. 217-218) The Student is currently receiving related services in at the Private School. (Tr. p. 229) Violations

The Parents have raised both procedural and substantive violations. Below, I identify the main issues and segregate them according to their nature as either procedural or substantive while recognizing that there are often features from either category in any given issue. Alleged Procedural Violations

1. The CSE panel was not duly constituted because the special education teacher and the general education teacher did not meet the necessary criteria as defined by federal and state education law.

2. The goals and objectives were not developed at the CSE meeting, denying the Parent input into the development of the IEP.

3. The CSE ignored the Parent’s concerns about the proposed program.

4. The IEP was inappropriate because the team inserted a school report in the IEP instead of developing the IEP at the meeting. Alleged Substantive Violations

1. The IEP was inappropriate because:

a. The IEP was not reasonably calculated to provide the Student with educational benefits;

b. The goals and objectives do not meet all of the Student’s unique educational,

; and,

c. The goals do not contain evaluative criteria, procedures or schedules to measure progress.

2. The CSE did not recommend an appropriate program for the Student because:

a. The recommendations were not in agreement with the suggestions and recommendations of those who work with the Student;

b. The CSE team was unable to provide the Parent with information about the proposed program;

c. The Program does not offer adequate or appropriate instruction, supports, supervision or services for the Student to make educational progress;

d. The class size and student to teacher ratio are too large;

e. There is not enough opportunity for instruction;

f. The Student requires a therapeutic environment;

3. The CSE did not recommend an appropriate placement for the Student because:

a. The Parent found the placement inappropriate during the visit because the students had a the Student and did not have similar needs.

b. The lessons are taught in 50 minute intervals of time, which would not be appropriate for the Student because of his disability.

c. The lesson the Parents observed was for students on a higher intellectual level than the Student.

d. The classroom was .

Discussion

Turning to the instant case, the precise issue remanded by the SRO for review is whether the District offered the Student a FAPE. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The first prong; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged procedural and substantive violations in this case. Prong I: Whether the services offered by the board of education were inadequate or inappropriate

All students must be afforded a FAPE. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 20607; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child with a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

“[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c)

caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S.

516, 525-26 [2007]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F.

Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See, Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida

Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The

United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458

U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]), Application of a Child with a Disability, Appeal No. 07-007.

I now turn to the alleged procedural violations in this case. Here, the Parents allege first that the CSE panel was not duly constituted because the special education teacher and the general education teacher did not meet the necessary criteria as defined by federal and state education law. The first IHO did not address the merits of this allegation, but rather skipped to the issue of standing. The IHO found the issue of standing to be preclusive and dispensed with the procedural allegations altogether. Thus, this claim is considered here for the first time.

The IDEA requires a CSE to include, among others, one special education teacher of the student or, where appropriate, not less than one special education provider of the student (20 U.S.C. § 1414[d][1][B][ii]-[iii]; see 34 CFR § 300.321[a][2]-[3]; 8 NYCRR

200.3[a][1][iii]; see 8 NYCRR 200.1[xx] [defining "special education provider, in pertinent part, as an "individual qualified . . . who is providing related services" to the student]; 8 NYCRR 200.1[yy] [defining "special education teacher," in pertinent part, as a "person, . . . , certified or licensed to teach students with disabilities"]). The Official Analysis of Comments to the federal regulations indicate that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP (IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]). The mandatory regular education teacher on the committee should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child (SRO No. 02-056 citing to 34 C.F.R. Part

300, Appendix A, Question No. 26). 20 U.S.C. § 1414[d][1][B][ii]-[iii]).

First, the special education teacher meets the necessary criteria in this case. The

May 4, 2011 IEP verifies that the Student’s special education teacher was in attendance at the CSE meeting. (Ex. 4) The Parents did not present evidence that this special education teacher was unlicensed or improperly certified to teach students with disabilities. Even if the special education teacher was unlicensed or improperly certified, a special education provider may participate in the alternative. 20 U.S.C. § 1414[d][1][B][ii]-[iii]. The

District’s Verified Answer and Cross-Appeal to the SRO accurately states that the Student’s speech and language provider was also present at the CSE meeting. (Ex. N) The

May 4, 2011 IEP Conference Information confirms attendance by The Teacher, SLA. (Ex.

4) Speech and language services are “related services.” Both a special education teacher and a special education provider were present at the CSE meeting. Because the requirement of a special education teacher or special education provider is disjunctive, and both were present in this case, the CSE was not unduly constituted for lack of a special education teacher.

The Parents also alleged that the general education teacher did not meet the necessary criteria as defined by federal and state education law. However, the record reflects the absence of a general education teacher altogether. The District does not argue, nor does the May 4, 2011 IEP Conference Information indicate that the Student’s general education teacher was in attendance. Accordingly, the next issue is whether a CSE is properly assembled in the absence of a general education teacher.

The IDEA, its implementing regulations, and New York law require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). SRO # 05-074

Section 4402 (1)(b)(1) indicates that a procedural error has occurred where the Student’s teacher is excluded or otherwise absent from a meeting held to evaluate the Student’s IEP. Though “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E. v. New York City Dept. of Educ., 694 F.3d at 190-91 (2012). The general education teacher’s absence from the CSE meeting constitutes a single procedural violation in this case. This violation is a de minimus flaw that does not prevent the Student from receiving a FAPE. For these reasons, the Parents’ allegation that the CSE panel was not duly constituted because the special education teacher and the general education teacher did not meet the necessary criteria as defined by federal and state education law are dismissed.

The remaining procedural violations alleged by the Parents relate to the development of the IEP. Specifically, the Parents allege that goals and objectives for the Student were not developed at the CSE meeting. This allegation arises from the underlying narrative that requisite measures were not taken; instead, the team copied and pasted a school report in the IEP. Where the team used this questionable method, it is argued that the IEP was not developed at the meeting, and ultimately, the Parents were denied input into the development of the IEP.

In order to meet its burden, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]; see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]). Because an IEP is established by the CSE, and the CSE includes parent(s) of the child, it follows that the parent(s) input into the development of the IEP may not be denied. Although a CSE, or subcommittee thereof, is not obliged to accede to the wishes of the parents, it must give the parents a meaningful opportunity to interact with the members of the committee or subcommittee in developing the provisions of each IEP. SRO No. 90-13.

Among the alleged procedural errors, the Parents argue that goals and objectives were not developed at the CSE meeting, and therefore they were deprived meaningful participation in the development of the IEP. However, the record suggests otherwise. The Parent’s testimony reveals that the Parent was present at the May 4, 2011 CSE meeting. (Tr. pp. 207) The Parent testified that she agreed with the recommended staffing ratio proposed at the meeting. (Tr. pp. 209) The Parent said that she did not know what was appropriate for her son, and the Parent admitted that she was relying upon the committee at that time. Id. The applicable rule states only that parents must be given meaningful opportunity to interact with members of the CSE. SRO No. 90-13. The Parent’s testimony in this case suggests that the Parent was afforded a meaningful opportunity to interact with other members of the committee. The Parent also testified on June 28, 2012 that the Parent no longer agreed with the committee’s recommended staffing ratio. (Tr. pp. 209-10) This testimony is offered after the unilateral placement, and almost 14 months after the May 4, 2011 CSE meeting. The Parent’s opinion does not negate participation in the May 4, 2011 CSE meeting, nor does it imply that the Parent’s at that time. Despite the method utilized for drafting the IEP at issue in this case, it cannot be said that the Parents were opposed to its content or denied an opportunity to express discontent.

The substantive issues raised by the Parents in this case begin with the IEP. The Parents allege that the IEP was inappropriate because: it was not reasonably calculated to provide the Student and objectives do not meet all of the Student’s unique educational, , the goals do not contain evaluative criteria, procedures or schedules to measure progress.

The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]; see Rowley, 458 U.S. at 192). Goals and short-term objectives are sufficient when they address a student’s weakness and enable the student to make progress. Application of a Student with a Disability, Appeal No. 12-070. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the Student's present levels of academic achievement and functional performance (see 34 CFR 7 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 07 Civ. 7936 (GEL) [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

In this instance, the current IEP includes a statement of the Student’s present levels of academic achievement and functional performance. The Present Performance Section clearly indicates the child’s difficulties and their likelihood to effect his future development. (Ex. 4) Accordingly, the IEP is reasonably calculated ‘to produce progress, not regression.’ On its face, it affords the Student with an opportunity greater than mere trivial advancement because the IEP addresses the Student’s (attending and play skills), social-emotional skills and annual goals , math and reading comprehension/critical thinking skills (Ex. 4). These goals correlate with the Student’s areas of weakness; thus, the objectives are sufficient. With regard to each and every goal, the document speaks for itself (Ex. 4).

Immeasurability of goals set forth in the IEP is an alleged violation; it was referenced as an issue in the hearing, and briefed on appeal to the SRO. The Parents’ argument, at its essence, is that the IEP detracts from a FAPE because the annual goals listed therein are immeasurable. Ideally, there should be objective standards of measurement. However, immeasurability is a de minimus flaw that does not prevent the Student from receiving a FAPE in this case. Immeasurability is not a dispositive factor because alternative methods of measurement are still at hand. For example, the Student’s progress in some goals could be measured through teacher observations, as the teacher from the proposed placement testified. (Ex. 5)

The alleged substantive violations carry over into the recommendation made by the CSE. The Parents allege first that the CSE did not recommend an appropriate program for the Student because the and recommendations of those who work with the Student.

A board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). Although a CSE must consider the results of a student’s evaluations (8 NYCRR 200.5[g][1][v][a]), it is not obligated to adopt the recommendations set forth in each and every report submitted to it. Rather, it is the responsibility of the committee to make recommendations regarding the student's needs and the services to be provided (Education Law § 4402[1][b][3]). A CSE need be mindful that the recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]).

Here, the February 11, 2009 notes that the Student’s teacher believed the Student would require a special education program in order to continue his progress (Ex. 3). Conversely, the May 4, 2011 IEP suggests the Student would not thrive in a community school or specialized school because the environment in either setting would be too restrictive. The CSE is obligated to that it has at its disposal, but it is not required to adopt their recommendations. Despite the observation made by the Student’s teacher, the CSE, of which the Parent was a member, believed that a totality of the Student’s evaluations pointed to a less-restrictive environment as part of a plan for future progress. The record does not support a finding that the CSE ignored several suggestions of those who worked with the Student leading up to the May 4, 2011 IEP.

The Parents argue that the CSE team was unable to provide the Parents with information about the proposed program. Also, the program, the Parents allege, did not offer adequate or appropriate instruction, supports, supervision or services for the Student to make educational progress.

The District is required to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 927; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To demonstrate appropriateness, a board of education need only show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]. Reasonable calculation is demonstrated by an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The (Ex. 3) shows that the Student received an overall composite score that was below average in pre-academic and language skills. Specifically, the evaluation states that his , which were stronger. The evaluation also indicated that the Student required extra assistance following basic classroom rules and regulations. The May 4, 2011 IEP (Ex. 4) reflects similar observations. There, the Student’s present performance assessment revealed that the would continue to impede his educational development. Yet, the IEP contains corresponding annual goals such as demonstrating improved comprehension skills. Specifically, the IEP says that the Student will The Student will use pronouns and articles to produce coherent answers. The Student will improve his vocabulary at a rate of ten new words bi-monthly, and . The IEP reflects consideration of the evaluation and establishes short-term instructional objectives related to the Student’s needs. The IEP does more than address the Student’s . As for each and every short-term and annual goal created in the interest of correcting the Student’s areas of weakness, the IEP speaks for itself.

In this case, the appropriateness of the program is also supported by the circumstances surrounding testified that he participated at the May 4, 2011 annual and in his role . (Tr. p. 16) He explained that the CSE reviewed the Student’s school progress to prepare for the meeting. (Tr. pp. 16-17) The said that the CSE based its recommendations for placement on the February 11, 2009 evaluation, the School Psychologist’s report, and the Teacher’s report. (Tr.p.21) He said the recommendation for services were discussed at the CSE meeting and everyone agreed that the goals were appropriate.

This testimony contradicts the Parents’ allegation that the CSE team was unable to provide information about the proposed program. It is worth noting that the Parent was a member of the CSE and a participant at the May 4, 2011 IEP meeting. The proposals set forth in the IEP were communicated to the Parent, and the Parent agreed that the goals and proposals were appropriate. The May 4, 2011 IEP reflects an effort to match Student’s recorded areas of weakness with beneficial goals. Such effort demonstrates reasonable calculation. For these reasons, no effect will be given to Parents’ allegations that the CSE team did not provide information and that the program was not reasonably calculated to confer an educational benefit.

As a final matter of substantive injury, Parents allege that the class size and Student to teacher ratio are too large; there is not enough opportunity for and that the Student requires a therapeutic environment.

It is well-settled that any recommended program must be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The requirement of instruction in the least restrictive environment must, however, be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). A CSE must consider various alternative placements along a continuum ranging from the least restrictive to the most restrictive (see 34 CFR 300.551). In making its selection of a placement, the CSE should consider the extent to which a child requires at least some primary special education instruction. SRO No. 99-7.

The evidence in this case suggests that the CSE accounted for the Student’s primary special education needs. The placement recommended by the CSE put the Student in a special class environment with a staffing ratio . (Ex. 4) The Assistant Principal (who is also the supervisor of special education) testified that the placement would have been appropriate for the Student because it class with students around the with a qualified teacher, and related services. (Tr.P. 79) The Student was also set to continue . (Ex. 4.) The to address the Student’s , and that the goals from the previous IEP remained appropriate because the Student had not been given the related services to work on them. (Tr.P.25, 45-46, 63) said the CSE used the present levels of performance from the gave those present at the meeting the opportunity to make changes. Everyone agreed the information was accurate. (Tr. pp. 58-59) The CSE considered special placements with identical staffing ratios in a community or specialized school, but rejected these options due to their restrictive attributes.

The facts in this case do not indicate a failure to balance the Student’s ability to receive an appropriate education. The record shows that the were considered, and that the CSE made a recommendation for placement based on those considerations. The recommendation was that the Student staffing ratio with This proposal was reasonable in light of the District’s responsibility to keep the Student in the least restrictive environment, and where it was less than definite that the student ought to attend a special school to receive an appropriate education.

The alleged violations raised by the Parents in this case are generally inconsistent with the information on record at the time of the CSE’s recommended placement. It is my decision therefore that the services offered by the board of education were adequate and appropriate.

This decision is rendered with the understanding that hindsight is not a basis for questioning the appropriateness of an IEP, but that the IEP should be judged as a “snapshot” of the student at the time of the CSE meeting (Roland M. v. The Concord School Committee, 910 F.2d. 983 at 922 [1st Cir. 1990]). Prong II: Whether the services selected by the parents were appropriate

The second prong of the Burlington/Carter test is whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. Federal District Courts in New York have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch.

Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents “may not be subject to the same mainstreaming requirements as a school board.” Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v.

Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

is a private placement that provides educational instruction specially designed to meet the needs of the Student. The typical student at is a child with a (Tr. 130) a school uniquely intended for children . As such, it is routinely involved with committees on special education, its services are specifically tailored to each child’s needs, and these services are rendered in a setting where the student to teacher to assistant teacher ratio . (T. 130-32, 35) The foregoing details indicate that the would satisfy the appropriateness standard set forth above is a placement that provides educational instruction specially designed to meet the unique needs of the Student. However, examination of the Parents’ placement under the second prong does not end here.

The record, taken as a whole, does not reflect dispute as to whether instructional and therapeutic services are appropriate for the Student. Rather, the District’s main objection to the attributes of the Parents’ chosen setting is that it is an overly restrictive environment. The District argues that Student’s May 4, 2011 IEP does not recommend that the Student requires a specialized school, but to the contrary, it indicates that the Student should be integrating with non-disabled students. (Answer and Cross-Appeal at 19)

While parents are not held as strictly to the standard of placement in the least restrictive environment 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 Pub. Sch. Comm., 315 F.3d 21, 26-27;

M.S. v. Bd. of Educ., 231 F.3d at 105). The CSE is required to consider various alternative placements along a continuum ranging from the least restrictive to the most restrictive (see 34 CFR 300.551). In making its selection of a placement, the CSE should consider the extent to which a child requires at least some primary special education instruction. SRO No. 99-7. In light of these guidelines, it was appropriate for the CSE to consider the competing environments in this case. The CSE concluded that the Student should remain in a regular school setting. This decision upholds the CSE’s assessment because the CSE accounted for the Student’s primary special education needs. The CSE acted reasonably in connection with its assessment and recommended that the Student be placed in a special class environment with a staffing ratio . Nonetheless, this does not preclude a finding that the private school chosen by the Parent was also appropriate.

Upon the information before me, I find that the private school placement, with less students and a greater student-to-teacher ratio, is likewise appropriate. Therefore, I find that Parents did meet their burden of proof with respect to the second of the three criteria.

Prong III: Whether equitable considerations support the parents’ claim

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents if equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). Put another way, Parents must show that their claim for reimbursement is supported by equitable considerations.

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

The issue of notice in this case is slightly complicated. The Parent testified that she sent the District a letter in August or September 2011 stating her intention to enroll the Student in the private school. (Tr. pp. 217-218, Ex. L-1 dated 8/29/11). The record indicates that this letter referenced by the Parent was post-marked August 31, 2011. At this point, the Parents had already signed a contract with the Private School. The Parents entered this contract three days earlier on August 28, 2011. (Ex. C) The Parent’s testimony indicates that she paid a registration fee of $2500.00 to be applied toward the annual tuition at at the time the contract was signed. (Tr. pp. 220, Ex. L-1) The notice letter itself is dated August 29, 2011. In light of these facts, it is evident that the Parent made the unilateral decision to place the child at notifying the District. The Parent’s decision and action thereon violates the requirement to give notice at the most recent CSE meeting , or in the alternative, within ten business . However, the notice letter sent by the Parent to the District complicates this matter. The August 29, 2011 letter evinces the Parent’s effort, which began on August 2, 2011, to visit the recommended placement to determine the appropriateness of the (Ex. L1). The letter references an unreturned phone call to the Parent Coordinator on August 2, 2011, and an instruction by the CSE Chairperson to visit the placement once school starts in September. Id.

The Parents’ inability to visit the recommended site before the beginning of the school year is not indicative of a procedural violation unless it was alleged that the Student's special education and related services needs could only be met in a particular classroom or school. SRO No. 10-094. In other words, a parent who raises specific concerns about the student’s learning environment has the right to inspect and approve the recommended placement before the start of school. The point is for the parents to determine the appropriateness of the placement in light of the parents’ concerns which are identifiable and known by the school district. Conversely, the SRO’s reasoning in case

No. 10-094 suggests that the school district does not commit a procedural violation if parents generally relied on the CSE’s recommendations, yet are unable to conduct a site visit before the beginning of the school year.

In SRO Case No. 10-094, the parents had “an opportunity to participate in the development of… the IEP.” The student's father testified that “the parents were open to the recommendation of .” Moreover, “the parents did not voice any objections at… the CSE meeting regarding the Further, the hearing record showed that the parents’ attorney “did not submit any concerns about the IEP” prior to the notice letter. These facts indicate that Case No. 10-094 was similar to the instant case. Here, the Parent’s testimony reveals that the Parent was present at the May 4, 2011 CSE meeting. (Tr. pp. 207) the Parent testified that she agreed with the recommended staffing ratio proposed at the meeting. (Tr. pp. 209) the Parent said that she did not know what was appropriate for her son, and the Parent admitted that she was relying upon the CSE. Id. In sum, the Parents relied on the CSE, and made no objections to the IEP or the CSE’s recommendations.

More importantly, the Parents did not raise any concerns about environment, nor did they allege that a particular classroom or school was appropriate for their child.

Based on these facts, suggests that I am unable to hold a delayed site visit was unjust in this case. For the reasons stated above, the Parents’ inability to conduct a site visit before the start of school does not amount to an equitable consideration that weighs in favor of Parents. Thus, I decline to order an award for tuition reimbursement.

So Ordered,

Dated: September 10, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

1 Dated January 19, 2012, Impartial Hearing Request, five pages 2 Dated February 6th, 2012, Class Roster, one page 3 Dated February 11, 2009, Evaluation, three pages 4 Dated May 4th, 2011, IEP, 14 pages 5 Dated May 4th, 2011, Final Notice of Recommendation, one page 6 Dated May 27, 2010, IEP, 19 pages 7 Dated February 16th, 2012, Class Roster, five pages 8 Dated April 6th, 2011 School Report, five pages

PARENT

A Class schedule, 2011-2012, 2 pages B Tax return 2011, 1 page C , dated 8/29/11, 2 pages D Cancelled checks, dated 8/30/11, 1 page E , n.d., 4 pages F , n.d., 2 pages G Spelling test results, various dates, 2 pages H Math test results, various dates, 3 pages I Writing samples, various dates, 8 pages J student report, 2011-2012, 7 pages L Letter, 8/29/11, 3pp M Verified Petition, 12/14/12, 21pp N Verified Answer, 1/7/13, 20pp O Verified Answer, 1/24/13, 12pp P Verified Reply, 1/29/13, 3pp Q Affidavit, 3/24/14, 1pp

IHO

I Interim Order, 4/28/14, 5pp II SRO decision, 3/25/14, 10pp III Transcript, 3/25/14, 119pp IV Transcript, 3/25/14, 35pp V Transcript, 3/25/14, 96pp VI Transcript, 3/25/14, 8pp VII SRO decision, 3/25/14, 10pp

Footnotes

[1] Specifically 7 and M through Q supplemented by stipulation and Exhibit L which was challenged by the DOE. To this, the SRO decision 12-230 spoke at page 9 indicating that this letter was not made part of the initial hearing record but that it was submitted as part of the appeal and that it was for me to decide its admissibility and the weight to be given to this exhibit.