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: March 14, 2014

April 22, 2014

May 5, 2014

June 9, 2014

July 7, 2014

Actual Record Closed Date: August 25, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 14, 2014

Attorney — Parents

Parents

Parents

Attorney — DOE

Dr. School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 22, 2014

Attorney — Parents

Parents

Parents

Director — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 5, 2014

Attorney — Parents

Parents

Parents

Teacher (via telephone) — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 9, 2014

Attorney — Parents

Parents

Attorney — DOE

Principal, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2014

Attorney — Parents

Parents

Attorney — DOE

On November 4, 2013, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter . and the parents through their attorney initiated this hearing on November 1, 2013. Hearings were held on March 14, 2014, April 22, 2014, May 5, 2014, June 9, 2014 and July 7, 2014. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted (IHO Exhs. 1-IX). The current record close date is August 25, 2014 and the decision due date is September 8, 2014. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (“CSE”). The hearing was initiated the parents who challenge the April 26, 2013, review and recommendation of the CSE.

The parents unilaterally placed their daughter in at , a private educational program lacking New York State Education Department approval. parents seek an order for the DOE to for the placement ") for the 2013-2014 school year and provide transportation (Exh. A at 3).

BACKGROUND

-old boy with a at the presented (Exh. 4 at 2).

He received special education services program for 2 hours per day 5 days a week (Exh. 4 at 18).

When he fell in the jurisdiction of the Committee on Preschool Special Education (“CPSE”), the Individualized Education Program (IEP) dated June 6, 2012 was developed and . was classified as a Disability. The IEP recommended a 12-month program in a special class in an integrated setting with a student to staff ratio of provided related services week for 30 minutes per session in a group of 2 and a week for 45 minutes as an dual recommendation and individual physical therapy (“PT”) twice a week (Exh. 3 at 11).

A neuropsychological evaluation was conducted on various days in December 2012, when psychologist. who used and Primary Scale of Intelligence, 4th Edition and reported (Exh. 4 at 8). She used and found skills were in the adequate range; the 4). Dr. avoided peer interactions and displayed both restrictive and stereotypical behaviors (Exh. 4 at 22) and recommended a placement in a small, structured and specialized class placement in a specialized school to address his needs and a continuation (Id.).

On March 19, 2012, education teacher of school to work

On May 8, 2012, B presented "with of communication and understating social cues/recognizing social cues" (Exh. 20 at 2).

On December 2012, provider indicated his present level of performance in a report at the age of 4.4 and noted that formal tests were not above average to superior scores on formal Language assessments for the past 2 years and he had made progress on his Language goals, but required adult support and scaffolding to engage with peers (Exh. 5 at 2).

On January 2, 2013, at age 4.5 on processing, motor planning and motor skills (Exh. 6 at 1). The provided noted and understanding/recognizing social skills" (Exh. 6 at 3).

On January 3, 2013, 's teacher at the in a progress report . was enrolled since September 2011 in a class with a staffing ratio developed students, 8 special education students, 2 teachers and 2 assistant teachers and continued to choose solitary activities and that he required assistance and the support of a teacher to sustain conversation or play (Exh. 7 at 1).

On January 18, 2013, a classroom observation was conducted during play time and noted 18 students and 3 adults (Exh. 10 at 1). The observed noted that played in the sand table" (Exh. 10 at 1).

On January 18, 2013, with and would benefit from continued PT to improve his strength, balance and acquired " " (Exh. 11 at 1).

On April 26, 2013 the CSE met and and recommended in an integrated coteaching class ("ICT") and receive related per week for 30 minutes per session in a group of 3; per week for 45 minutes in a group of 5; PT twice a week for 30 minutes per session in a group of 3 and counseling twice a week for 30 minutes per session in a group of 5(Exh. 15 at 7). The IEP indicated that the CSE team considered and rejected a special class with a staffing ratio of 12:1:1 (Exh.15 at 11).

A placement was formally offered to the parents on June 17, 2013 for PS 107 for the 2013-2014 school year on the Final Notice of Recommendation (Exh 19 at 1).

THE DISTRICT’S CASE

The DOE presented the testimony of Dr. Dr. a DOE School Psychologist, who evaluated children, made referrals and conducted observations and was employed by the DOE since 2002, testified that CPSE conducted on June 6, 2012 preschool review (Exh.

3) and on the team reviewed the April 27, 2011 Child Outcomes Summary Form (Exh.

27) which included a list He stated that he participated in the April 26, 2013 "Turning Five Review" and recalled that the team had before it the following: the CPSE SLT provider's report (Exh. 5), the Child Outcome Summary Form (Exh. 27), the June 6, 2012 IEP (Exh. 3), the preschool special education teacher's report (Exh. 7), provider's report (Exh. 6), the education progress report (Exh. 7), the classroom observations (Exh. 9, 10), (Exh. 11); the social history update (Exh. 13) and evaluation (Exh. 4). Dr. noted that the DOE special education teacher and DOE regular education teacher participated as did the parents in the April 26, 2013 IEP and the parent's advocate (trans. 28;33-36). He noted that he report and interview and the classroom observation (trans. 41). He noted that the and the fourth goal was a writing goals and opined that these 4 goals were developed for (trans. 46). He explained that the related service goals were generated from the related service provider's reports and that the 3 counseling goals were based on the observation and the profile of a (trans. 47-49). He recalled that the team recommended recommendation of an ICT program presented as a very intellectually capable, but struggled the recommended program was the least restrictive environment ("LRE") (trans. 50). He stated that the IEP provided sufficient support with 2 teachers and management needs of prompting and modeling that the related services goals were appropriate and could "be adjusted up or down"(trans. 54). He stressed that the ICT recommendation was consistent with the second teacher in the ICT class provided a higher level of support and small group instruction (trans. 58). He opined that Dr. a small, specialized school with no opportunity to participate in the general education curriculum or general education peers "grossly underestimated his ability" (trans. 59).

On cross Dr. teacher who participated in the April 26, 2013 IEP review was a pull-out special education provider and the DOE general education teacher who participated in the April 26, 2013 IEP review . 66-68). He acknowledged that no participant had taught . 69).

On cross Dr. recalled that he did acknowledged that parents disagreed with the ICT program and expressed their belief that their son required a smaller class setting; however, the IEP did not note the parents' concerns (trans. 74-75). HE explained that the ICT class with 2 teachers and only 13 special education children (40 percent of the class) and 18 general education children (60 percent of the class) for a total of 31 children was appropriate despite then current special and the stated he thought would be appropriate despite the fact that he did not communicate with then current special education teacher regarding socialization needs (trans. 84). He acknowledged that the related services would be provided outside of class and was . 86). He maintained that the team decided to and not a small class of 12 special education provide access to general education peers and positive modeling in the LRE (trans. 91).

The Principal by the DOE of a Master's degree in education and a certification for Administration Building Site Supervisor, testified that his school had 578 students for grades Kindergarten to fifth grade in the community setting (trans. 256). She stated that his school had a full-time ICT class with 2 teachers in the ICT class for each grade (trans. 258). She stated that on July and August 2013 there was room in class in . 270-271); however, she acknowledged that she did not receive a response accepted the ICT class trans. 275). She recalled that on July 3, 2013, she received an email indicating that was issued a FNR for her school and she noted that .'s parents did not register and as late as August 2013, she placed had a child in the "turning-five" class because in August 2013 there were only 7 special education students (trans. 279).

THE PARENT’S CASE

The parent, the special education classroom teacher testified in support of the parents’ request for reimbursement for the unilateral placement of for the 2013-2014 school year.

The testified was a school for children with high IQs and functioning and that the staff included only licensed teachers with NYS certifications in special education or gifted education and the Director was in special education teacher who had taught ICT classes and who supervised the teachers (trans. 113). She stated that providers were NYS certified and there were licensed school psychologists (trans. 114). She noted that the school had small structured nurturing programming " for the 2013-2014 school year for students grades Kindergarten through second grade which (trans. 114), with 10 children with 2 NYS licensed special education teachers (trans. 119). She further noted there was a classroom paraprofessional class had a college degree (Id.). She explained that she was familiar 2013-2014 and all 10 students scored cognitively in the superior range and 3 of the students were diagnosed with autism and 4 students were diagnosed with 1 student had a (trans. 122). She noted that the based , . would be a good fit for her school and opined in his social skills and in his pragmatic language and his ability to express his feelings (trans 129). She attributed his progress in part to the 2 individual sessions and school psychologist (trans. 124) and the 2 group sessions of course taught in the classroom by the 2 psychologists who Class (trans. 125).

On cross the stated that there were 35 students in her school who were students with disabilities for grades Kindergarten through eighth (trans. 133).

teacher, a possessor of a Master's degree in teaching students in elementary education and teaching students with disabilities, testified that she was since March 2013 (trans. 202). She stated that she was one of the 2 co-teachers in the and that she was responsible to develop curriculum and she collaborated with the related service provides to integrate the related service interventions into the classroom and collaborated with the learning specialist and the Directors of . 203). She stated that for the 20132014 school year, her co-teacher had a Master's level qualification and was NYC certified to teach literacy and was the learning specialist for over 10 years for elementary aged students (trans. 204). She described the students who were placed in the Seedlings Classroom, as the in his class with a similar profile and similar social challenges and similar (trans. 207). She opined that the similarity of the out of his shell and socialize with the students and improved his self-esteem (trans. 208;213). She progressed in his ability to initiate conversations with his classmates and in his ability to talk about his feelings (trans. 209). She described the supports embedded in the to support his by the once weekly pull-out session for 30 minutes to work on social pragmatics and once weekly and her work suggestions to meet (trans. 210;223). She stressed that in addition individual weekly sessions for 30 minutes and group sessions in the class with the psychologist (trans. 223) and that she met frequently informally and formally once a week with all (trans. 212). She opined as she and her co-teacher provide instruction in reading, writing, science and social studies and math instruction was provided by 2 math specialists who broke the class into 2 groups of 5 students and and project-based math exploration and opined that he progressed in math from multi-digit addition to basic multiplication that (trans. 217). She stated that B.V. progressed in reading as she assessed his reading on the Fountas & Pinnell Level C when he entered her class and he on his last assessment (trans. 221;235). She and as a result of the placement at Lang due to in the class and the individualized program he received to meet his (trans. 226). She further opined that an ICT class would not be appropriate as the large class size would not provide sufficient adult support (trans. 227).

On cross the had 10 students with 4 adults as there were 2 co-teachers and a classroom paraprofessional and a paraprofessional designated to a particular student with 8 Kindergarten students and a first grade student and a second grade student (trans. 228-

230) She explained that as he had the same and he progressed in his ability to interact with the older students outside his class (trans. 232). She a pull-out of once a week for 30 minutes and a pull-out of individual OT once a week for 30 minutes and a pull-out of individual counseling once a week for 30 minutes (Exh. E) and the students participate in once a week research or explorer projects to foster independence (trans. 238). She noted that the school psychologist and the psychology intern pushes class for lunch and recess to support the class class to provide support (trans. 241). .

The parent testified that his son had pragmatic language issues and would withdraw from activities without clear structure (trans. 137). He stated that in September 2012, his son was placed in a class with 22 students of whom 8 were CPSE students (trans. 137). He stated that his son as well as private special education itinerant teacher ("SEIT") sessions and that Dr. assessed his son in December 2012 (Exh. 4) as he wanted an assessment to recommend an appropriate Kindergarten program (trans. 139). He recalled that based on Dr. recommendation of a small, structured program to work on and , he explored 20 to 25 schools (trans. 140). He noted that he visited 15 public schools in the spring class (trans. 141). He recollected that he January 2013 (Exh. D), and that he paid a deposit to secure a would be reimbursed if he was able to find an appropriate public school setting (trans. 143). He recalled that the timing of the CPSE IEP meeting in late spring was during the time that most pre-schools had already completed their acceptances and he was lucky that was open so he started searching for school prior to the CSE meeting in April 2013 (trans. 145). He recalled that he attended the April 25, 2013 IEP meeting with his wife and Dr. and a general education teacher and a special education teacher were present. (trans. 147) He did not recall that any of the then current teachers or related service providers participated despite his request that the CSE team contact 's then current teachers by telephone (trans. 148). He stressed that he and his wife informed the CSE that Dr. recommended a small class and experience at Dillon demonstrated that he required a small class with a lot of support and scaffolding (trans. 150). He explained his idea of a small class was a large ratio of teacher to students and a small number of students (trans. 150). He recalled that the CSE recommended an ICT program (trans. 152). He stressed that he voiced his concerns that his son required a small and structured class (Id.). He recalled that the team mentioned a class with a student to staff ratio with (trans. 153). He recollected despite his class he visited the ICT class stated that after he received the FNR on June 17, 2013, he went to on June 21, 2013 to visit and he presented the FNR to a staff member who informed him that his son was not on the ICT roster and not be able to enroll in the ICT class in the fall of 2013 as the ICT class was full (trans. 159;293 their records and there were no available spots in one responded to his letter (trans. 160). He opined that his son progressed at Lang and he paid the tuition in full (trans. 162).

On cross the parent stated was a preschool integrated classroom for years and during the first year there were 19 students and the second year there were 22 students with 4 adults in the class (trans. 175). He recalled that he told the April 26, 2013 IEP team that if they wanted to speak teachers or related service providers, they were available by telephone (trans. 179). He recalled that for other IEP meetings his son's teachers and related service providers participated due to his arrangements ahead of the meeting and that he made the same arrangement for the April 26, 2013 IEP meeting; however, he was told by the team that the team had sufficient information (trans. 181183). He recollected that he agreed with the continuation services during the April 26, 2013 IEP and agreed with the addition of counseling (trans. 186). He noted that when he on June 21, 2013, he presented the FNR to the told to come back in September to check on the availability of (trans. 188). He stressed that during the April 26, 2013 IEP meeting the team felt would meet his needs (trans. 192). He maintained that he visited her received the FNR because he wanted to see and he was open to (trans. 197).

On re-direct the parent stated that he spoke to coordinator on June 21, 2013, and the special education coordinator told him class for the 2013-2014 school year (trans. 293). He stated that after he sent his August 2013 letter to CSE, he did not receive a response (trans. 294) and that he received an email (Exh.F) from the dated June 21, 2013, after his wife wrote to the parent coordinator to state that . was not registered and the parent coordinator confirmed that the parent spoke to the social worker and the school psychologist (trans. 295).

On re-cross the parent explained with the parent coordinator as the parent coordinator lived in the same building as his family (trans. 296) and despite various trips during the summer of 2013, he received mail (trans. 299), and after receiving the June 21, 2013 email from the parent coordinator, he never received any further response by postal mail or by electronic email (trans. 301).

FINDINGS OF FACT AND DECISION

Under Individuals with Disabilities Education Act (IDEA), New York State law and both the federal and State regulations, the right to a Free and Appropriate Public Education (FAPE) is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, 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]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parents claim that the April 26, 2013 IEP was substantively and procedurally defective. The parents claim the following defects: (1) the required members were not present as there was no current teacher or any teacher that would be expected to teach . under the IEP; (2) the team did not rely on sufficient evaluative material to make a profile ; (3) the ICT placement without to support him in class was insufficient; (4) that large setting would not provide adequate support as noted ; (5) the team ignored the parents concerns regarding the large placement and (6) the team failed to meaningfully review any goal, management needs or promotional criteria as therefore, the present levels of performance, management needs and goals were vague and insufficient (Exh. 1 at 3). Moreover, the parents claim that after visiting the proposed school at PS 107, the staff at the proposed school informed the parents that there were no open seats in the ICT program (Exh. 1 at 4).

Under the IDEA, if a procedural violation is 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011.)

The parents' attorney argued that the CSE team was not validly composed because no team members were teaching in DOE programs nor were they expected to teach for the current school (Exh. IX at 2). I find that there was no testimony at the hearing to establish that the required members were present or that the special education teacher would be able to implement the student’s IEP as required by 8 NYCRR 200.3[a][1][ii][iii]. Therefore, I find the April 26, 2013 IEP team was not validly composed.

The DOE attorney argued that the absence of that teacher "of the child, is de minimis violation of the IDEA where 'the absence of…[such] teacher did not impede the child's right to a free appropriate education, limit the parents' ability to participate in the decision making process, or result in the denial of educational benefits.' See A.H. ex rel. J.H. v. Dept. of Educ. of City of New York, 394 Fed. Appx. 718, 720-21 (2d Cir. 2010); see also A.M., 964 F. Supp. 2d at 279-80; R.B. v. New York City Dept. of Educ., 13 CIV. 01131, 2014 WL 1618383, *6 (S.D.N.Y. March 26, 2014)" (Exh. X at 5).

The parents' attorney argued that in "Matrejek v. Brewster Cent. School Dist.(471 F.Supp.2d 415, 421 (S.D.N.Y. 2007) (aff'd, 293 Fed. Appx. 20 (2d Cir. 2008)), the court noted that the District’s case was 'infected with a major procedural error' in that neither the general nor the special education teacher were teachers of the student or responsible for implementing the IEP. The court found a denial of FAPE due to this failure, even despite the fact that the absence at the IEP meeting of any of the student's teachers from the unilateral placement was attributed to the Parents' failure to make them available, not the District’s failure to invite them. (Id. at 422)"(Exh. XI at 3).

I find the April 26, 2013 CSE team was aware communicate school to work on his social interactions by the special education teacher's reports (Exhs. 7at 1; 9 at 1; 23 at 2) and required adult support and scaffolding to engage with peers report on October 2012 (Exh. 5 at 2), and OT progress report of January 2013 (Exh. 6 at 3) and the progress report of January 2013 (Exh. 7 at 1). I find the April 26, 2013 CSE was aware of the December 2012 (Exh. 4) and the Child Outcome Summary Form dated April 27, 2011 (Exhs. 18, 27 at 3) that were at an from his special education teachers. I find failure to provide a program to address theses deficits was caused by the lack input then current teachers and I find the lack of current teachers was not a de minimus error. The parents' attorney argued that the parents requested that the team contact the thencurrent teachers (Exh. XII at 2;trans. 148). I credit this testimony and find the lack of any then-current teachers or teachers who would implement the IEP caused an educational deficit.

The parents' attorney asserted that insufficient evaluative material data was done to identify the student's needs as required The DOE attorney argued that there were sufficient evaluative material and noted that there was "relevant information regarding the Student’s educational needs gleaned from Dept. Exs. 2, 4, 5, 6, 9, 11, 12, and 13, was adeptly summarized in the April 26, 2013, IEP. See Dept. Exs. 15-1 – 15-2. Moreover, the IEP’s inclusion of fifteen (15) individual goals alerts the reader that the Student’s has deficits with respect to attention, oral language, proactive learning, writing, building relationships with his peers, self-regulation in the classroom, functioning in social situations, sensory processing, fine motor strength, functional upper body control, walking, coordination, pragmatic language" (Exh. X at 8). I find there was sufficient evaluative material; however, I find there was no evaluations or documentation were submitted to reflect and address the student's needs in and no documentation was submitted to establish that the student's needs would be met in the parent's testimony that he disagreed with the CSE program recommendation class and district failed to establish which documents the CSE considered or how the student could be appropriately placed in an ICT class.

The parent's attorney asserted that the IEP recommended without to support him in class. I find did not provide sufficient adult support as teachers and related service providers to communicate and engage with peers (Exhs. 7at 1; 9 at 1; 23 at 2;5 at 2; 6 at 3; 7 at1) .

The parents' attorney argued that the large setting of was made in contraction of Dr. report. I agree and find that the IEP did not provide sufficient adult support to meet his and his communication needs and I find this failure caused a deprivation of an educational benefit.

The parents' attorney argued that the IEP team ignored the parent's concerns addressed at the April 26, 2013 IEP for a small, specialized school with a small class (trans. 152). This assertion was not contested. The DOE's own witness acknowledged that the parents had concerns with the size of (trans. 150); however, the IEP did not note the parents' concerns (trans. 74-75.) The parents' attorney asserted that the proposed placement did not offer the small special education setting (Exh. XI at 8). This assertion was not contested. There was no testimony to establish that the goals, objectives and management needs were appropriate or were able to be implemented in the recommended ICT classroom setting.

I find the parent established that he expressed the need for a small placement with a small adult to student in a special class with a staffing ratio the parent established he expressed the need for a small class size and at the April 26, 2013 IEP and the team's decision to consider only was made without evaluation, I find the lack of the CSE team was aware of the as documented by the evaluation and reports and the CSE team ignored the parents' request for more support which significantly impeded the parent's opportunity to participate in the decision making process. The DOE attorney argued that because he did not (Exh. X at 13). I disagree. I further find the decision to refuse to consider a small, structured and therapeutic program caused a deprivation of educational benefits. Accordingly, I find FAPE was not during the 2013-2014 school year.

The DOE attorney asserted that "school districts are not required to ‘maximize the potential’ of students with disabilities, but instead must offer only ‘a basic floor of opportunity.’” See Reyes ex rel. R.P. v. New York City Dept. of Educ., 13-158, 2014 WL 3685943, *8 (2d 10 Cir. July 25, 2014) (citing Rowley, 458 U.S. at 200). “School districts do this when they formulate an IEP that is ‘reasonably calculated to enable the child to receive educational benefits,’… that is, ‘likely to produce progress, not regression.’” Reyes, 2014 WL 3685943, *8 (internal citation omitted)"(Exh. X at 8-9). The DOE attorney further asserted that was described as an “inclusion program,” see Dept. Ex. 914, and the Student’s pre-kindergarten teacher opined that the Student was “ready for mainstream kindergarten this September.” (Exh. X at 10). The DOE attorney argued that well academically: "See Dept. Ex. 13-1; see also Dept Exs. 9-3 and 9-4 (pre-school teacher commenting “he’s ready, on the ball” and noting that, relative to his peers, Student “excels academically”); Dept. Ex. 4-9 (“[i]t should be noted that [the Student] excels in his current classroom academically”)" (Exh. X at 11). I do not find the academic up for his "tendency to withdraw from and classroom functioning" as noted on page 2 of the IEP (Exh. 15 at 2) as argued by the parents' attorney (Exh. XI at 10).

I find the a reduction of a support as the ICT program had 2 teachers and up to 31 students from pre-school setting of staff to student ratio. The parents' attorney argued "reduction of services over a prior year’s program is similar to the situation in Reyes ex rel. R.P. v. New York City Dept. of Educ. (2014 WL 3685943, *8 (2d. Cir., July 25, 2014)), wherein the Second Circuit found that the DOE’s recommended program was not supported by the information available to the team where the team proposed moving the student from a 2:1 student to teacher student’s satisfactory classroom"(Exh. XII at 2). I agree.

The parents' attorney argued that the goals were insufficient as the goals did not address . An IEP must include appropriate annual goals, consistent with the student's needs and abilities, with the evaluative criteria, evaluations procedures and schedules to be used to measure progress towards meeting the annual goal per 8 NYCRR 200.4[d][2][iii]. I find the IEP goals and short-term objectives were consistent with his related service providers; however, I find there was counseling goals were not developed with the current teachers. The parents' attorney argued that the academic goals were developed without the assistance or input of classroom teachers and the goal to peers in the classroom, the goal to improve his peer relations during school activities outside of counseling and to improve his in the classroom and the goals to initiate pro-social contact with others failed to recommend appropriate supports within the classroom to meet these goals based on his levels of functioning available at the time of the IEP meeting (Exh. XI at 9). I agree.

The parents' attorney asserted that the proposed failed to offer (Exh. XI at 11). I find there was no testimony or evidence to establish that the IEP could be implemented at . I credit the parent's testimony and not be placed in an ICT class as it was full. I note that the school district must identify a school which is capable of implementing the IEP as the Second Circuit of New York ruled in T.Y., K.Y, on behalf of T.Y., v. New York City Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009). The parents' attorney argued that "numerous district court opinions issued subsequent to R.E. have reiterated the continuing importance of reviewing all the information that a parent had when making the decision of whether to enroll a child in the offered program and placement. (SeeB.R. ex rel. K.O. v. NYC Dept. of Educ., 910 F.Supp.2d 670, 677 (S.D.N.Y. 2012) (“The Court evaluates whether, at the time [the student] was actually considering the proposed placement, the school could offer” the required services);D.C. ex rel. E.B. v. NYC Dept of Educ., 950 F.Supp.2d 494, 510 (S.D.N.Y. 2013) (“The reasoning of R.E. [with regard to disallowing retrospective testimony] compels the same result” in the context of a placement site); V.S. v. NYC DOE, --- F.Supp.2d ----, 2014 WL 2600313 at *4 (E.D.N.Y. June 10, 2014); C.U. v. NYC DOE, --- F.Supp.2d ----, 2014 WL 2207997 (S.D.N.Y. May 27, 2014)" (Exh. XI at 12).

I credit the testimony of . required changes in the related services, the program could be adjusted up or down (trans. 54). However, I find the holding in R.E. v. N.Y.C. Dep’t of Education., 694 F.3d 167, 186 (2d Cir. 2012), barred this testimony and I find the Second Circuit held that 'retrospective testimony' is barred from consideration. Id. at 186 and I am barred from considering testimony that certain services not listed in the IEP would actually have been provided to the child if that child had attended the school in the district’s proposed placement. Furthermore, I credit the testimony of the parent who stated that he was told by staff from the proposed school that there was no ICT class (trans. 159;293). I find that the parent had a right to rely on information given to them by the school.

The parents' attorney noted that in "Reyes v. NYC DOE (--- F.3d ----, 2014 WL 3685943 at *6 (2d. Cir., July 25, 2014)), the court adopted the legal reasoning of the B.R. court, holding that the information relevant to a parent’s determination as to the appropriateness of the offered program is based not simply on the IEP but on “the information made available to them by the Department at the time of the placement decision” (Exh. XI at 15). I credit the testimony of the parent who stated that he was told by staff from the proposed school that there (trans. 159;293). I find that the parent had a right to rely on information given to them by the school. The parents' attorney submitted the FNR dated June 17, 2013 with his reply brief. The DOE attorney argued that the FNR dated June 27, 2013 "addressed the discrepancy regarding whether the Student was “registered” to the Petitioners decision to unilaterally place "(Exh. X at 16). I find the June 21, 2013 FNR and the June 27, 2013 very similar except that the June 27, 2013 FNR indicated 25 periods per instead of the 28 periods per and the June 27, 2013 added counseling to the related services. The parents' attorney argued that the June 27, 2013 FNR did not establish that a seat would be available after the social informed the parent that the ICT class was full on June 21, 2013. I find that the parent wrote to the CSE on August 23, 2013, (Exh A) to alert CSE that the ICT class did not in their records and there were not available spots in the ICT and no one responded to his letter (trans. 160). I credit the parent's testimony that he received an email (Exh.F) from the parent June 21, 2013, after his wife wrote to the parent coordinator to state that was not registered and the parent coordinator confirmed that the parent spoke to the social worker and the school psychologist (trans. 295).

Therefore, I find the district failed to establish that FAPE was provided during the 2013-2014 school year as I find CSE failed to offer an appropriate placement for the 2013-2014 school year.

The parents must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. In order to meet that burden, the parents must show that the private school offers an educational program that meets the student's special education needs Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007).

The Second Circuit held that the private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). The issue of the private school's appropriateness depends on whether Lang was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F. 3d at 364. Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement Frank G., 459 F. 3d at 365. The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115.

Testimony adduced at the hearing clearly a small structured therapeutic environment with a is a small, special education school for children with superior intellect abilities who required special education support for their I find persuasive testimony and evidence that the special educational needs. I provided he required for social cues and was placed in a class with a total of 10 students with 2 certified special education teachers and a classroom paraprofessional and a paraprofessional designated for a student matched the staffing ratio of his preschool placement and the program of a small, structured and specialized class matched the program recommended . I find the push-in sessions class by providing services and collaborating with the teachers to ensure progressed. I find the supervising staff met with the teachers and related service providers reviewed the program and made sure .I find the related services providers were present in the classroom to ensure that were carried out by the teacher. I find credible the teacher that the staffing ratio provided sufficient support for his which required (tran. 226) I find the classroom teachers and related service providers provided special education services . The parent and the Head and teacher testified that had made progress academic, social and emotional progress. I credit this testimony. Testimony adduced at the hearing established that because of the intensive level of adult he had made progress academically, socially and emotional during the 2013-14 school year. I credit this testimony.

Testimony adduced at the hearing established that the both the teachers and the psychologist worked on progressed socially and emotionally during the 2013-2014. I find the use of teacher modeling and verbal prompts and I find that his math (trans. 221;235). I find testimony adduced at the hearing established that education needs were met by his teachers and related service providers

The DOE attorney was not in the LRE and did not provide related services of PT (Exh. X at 19). I find the parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or LRE under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S.. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). I further find in Application of the New York City Dept. of Edu., Appeal No. 09-017, the SRO held that the have been beneficial to the student did not warrant a finding that the private placement was inappropriate. The Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student’s private placement inappropriate. G.R. v. New York City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009); Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005). Accordingly, I find the absence of related services of PT at Lang did not render the private placement inappropriate.

Therefore, I find that the parents met their burden regarding the unilateral placement of for the 2013-2014 school year.

The DOE argued that "a hearing officer may reduce and/or deny reimbursement where a party acts unreasonably See Bettinger v. New York City Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560 (S.D.N.Y. Nov. 20, 2007)" (Exh. X at 20). I find that the parent established full cooperation by his August 23, 2013 letter to CSE alerting CSE that the proposed school was not appropriate (Exh. A) and his openness to an appropriate placement. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that he intended to continue to enroll for the 2013-2014 school year when no appropriate program or placement was offered after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parents fully cooperated with the district to the best of their ability.

ORDER

Therefore, is hereby ordered that the Department of Education reimburse the parents for tuition at Lang in the amount (Exh. D) for the 2013-2014 school year upon receipt of evidence of the parents' payment and provide transportation. Dated: September 8, 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 ON MARCH 14, 2013

A Notice of Unilateral Placement, 8/23/13, 6 pp. Parents

B Progress Report, Fall-Winter, 2/1/14, 12 pp. Parents

C Program Overview, undated, 1 p. Parents

D Enrollment Agreement, 1/7/13, 2/5/13, 4 pp. Parents

E Schedule, 2013-2014, 1 p. Parents

1 Parents' Complaint , 11/1/13, 6 pp. District

2 Department's Due Process Response, 11/13/13, 4 pp. District

3 IEP, 6/6/12, 14 pp. District

4 Evaluation,12/2012, 23 pp. District

5 Progress Report,

12/14/12, 2 pp. District

6 Related Service Student Progress, 1/2/13, 4 pp. District

7 Educational Progress Report, 1/3/13, 1 p. District

8 Department Assessment Planning, 1/11/13, 2 pp. District

9 Department Teacher Interview and

Classroom Observation,1/18/13, 5 pp. District

10 Department Classroom Observation, 1/18/13, 1 p. District

11 Dynamic Solutions Physical Therapy Progress Report,

1/18/13, 1 p. District

12 Center Report,3/1/13, 3 pp. District

13 Social History Update dated, 3/14/13, 2 pp. District

14 Notice of IEP Meeting, 4/3/13, 4 pp. District

15 IEP dated 4/26/13, 11 pp. District

16 Attendance Page, 4/23/13, 1 p. District

17 Letter from Parent to Department of Education, 4/26/13, 1 p. District

18 Child Outcome Summary Form, 4/26/13, 1 p. District

19 Final Notice of Recommendation, 6/27/13, 1 p. District

20 Related Service Student Progress Report, 9/15/12, 2 pp. District

21 Progress Report, 5/10/11, 1 p. District

22 Progress Report, 5/1/12, 1 p. District

23 SEIT Report from , 3/19/12, 2 pp. District

24 Education Progress Report, , 3/12/12, 3 pp. District

25 Evaluation Summary Report, 3/25/11, 2 pp. District

26 Evaluation, 3/25/11, 6 pp. District

27 Child Outcome Summary Form, 4/27/11, 10 pp. District

I Decision on Extension, 1/9/14, 1 p. IHO

II Decision on Extension, 2/6/14, 1 p. IHO

III Decision on Extension, 3/12/14, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 22, 2014

IV Decision on Extension, 4/10/14, 1 p. IHO

V Decision on Extension, 4/22/14, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 9, 2014

VI Decision on Extension, 6/9/14, 1p. IHO

28 Class Organization & Telephone Extension Charts

9/13 through 6/14, 1 p. (incorrectly listed Exh. 20) District

29 T Support e-mail to , 7/3/13, 1 p. (Exh. 21) District

30 Handwritten Post-It Note, undated, 1 p. (Exh. 22). District

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 7, 2014

VII Decision on Extension, 6/18/14, 1 p. IHO

F Emails to and from , 6/21/13, 1p. Parents

POST HEARING SUBMISSION

VIII Decision on Extension, 8/11/14, 1 p. IHO

IX FNR 6/17/14, 1 p. IHO

X DOE’s Brief, 8/11/14, 23pp IHO XI Parent’s Brief, 8/11/14,17pp IHO XII DOE’s Reply Brief, 8/25/14, 3pp IHO XIII Parent’s Reply Brief, 8/25/14, 6pp IHO