Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 21, 2013

September 12, 2013

October 15, 2013

November 1, 2015

Actual Record Closed Date: December 6, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 21, 2013

Esq. Attorney — Parents

CSE Representative — DOE

via telephone Teacher Assigned to CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 12, 2013

Esq. Attorney Mother Father Teacher/Coordinator for — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 15, 2013

Esq. Attorney — Parents

CSE Representative — DOE

via telephone Special Education Coordinator for — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEBMER1, 2013

Esq. Attorney Mother Father Teacher/School Psychologist for — Parents

CSE Representative — DOE

The matter of . came for hearing before me on August 21, 2013, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On May 30, 2013, I was appointed as impartial hearing officer. On July 2, 2012, I scheduled this hearing for August 1, 2013. On August 1, 2013, the Dept. of Education (“DOE”) representative requested an adjournment of this case due to witness unavailability and with the permission of the parent’s attorney, I granted the district’s request. The hearing commenced on August 21, 2013, and continued on October 15, 2013 and due to a problem with the transcript which required an additional date, concluded on November 1, 2013. 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 to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (trans. 26;28;112;219; Exhs. I-IV). The last compliance date was extended as a result of the request for post-hearing submissions (trans. 219; Exh. IV). The parents’ representative submitted his post-hearing brief dated December 3, 2013 by email. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted 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 by the parents of , who challenge the March 15, 2012, review and recommendation of the CSE.

The parents unilaterally placed their daughter in the , special education program located in the is a private school located in Brooklyn, New York. It is a private entity lacking State Education Department approval. parents funded this placement from September 2012, through June 2013 and now seek tuition reimbursement for the 20122013 school year.

BACKGROUND

is an who was in the for the 2012-2013 school year, with various issues including and (Exh. 3 at 1) She was classified as (“LD”) on a CSE review conducted on March 15, 2012, while was attending in the (Exh. 1 at 5). There was no dispute in the classification (trans. 97). On March 3, 2011, was evaluated by a NYS certified school psychologist, who found comprehension and applied math problems and found that suffered (Exh. 3 at 5). had , as assessed by the Wechsler Adult Scale of Intelligence-IV and the psychologist noted were slightly better than verbal skills (Exh.3 at 2). The psychologist found that ’s reading comprehension and reading fluency as assessed by Woodcock-Johnson Tests of Achievement III was delayed by 2 years (Exh. 3 at 4). The ’s (Id.).

On March 15, 2012, District 20’s CSE classified as and developed an individualized education program (“IEP”) that recommended that be placed in a general education program with special education support services (“SETSS”) for 5 periods per week with related services counseling for once a week for 30 minutes in a class no larger than 3 (Exh. 2). The IEP indicated that ’s reading level and her math level was (Exh 1 at 9.). The Final Notice of Recommendation (“FNR”) dated August 10, 2012, recommended a placement (Exh. at 2). The parents challenged the March 15, 2012 IEP review and disagreed with CSE’s placement. They maintained that District 20 failed to provide a free and appropriate public education (“FAPE”) and they placed at Bay Ridge Prep. The parents’ submitted an Affidavit from indicating the parents paid $22,285.50 (Exh. E) dated January 9, 2013 with a balance due of $8,265 and indicating that total tuition was $30,550. The parent testified that the tuition for the 2012-2013 was paid in full (trans. 142).

THE DOE’S CASE

The District’s case was presented in the testimony of , a teacher assigned to CSE 7 and testified that he was a special education and a general education teacher employed by the CSE Region 7 for the post 3 years (trans. 10). He stated that he sat on the March 15, 2012 IEP team meeting as did ’s then , who participated by telephone and her parent and the school psychologist were present for the review (trans. 12). He recalled that the CSE team recommended SETSS to address ’s disability (trans. 13). He stated that the reading comprehension goal on page 3 of the IEP addressed ’s deficit and the second goal addressed her reading and writing skills and the third goal addressed her basic math skills and the fourth goal addressed her writing skills (trans. 16). He recollected that ’s provided the information for ’s academic functioning (trans. 18). He did not recall that any member of the team disagreed with the program recommendation of SETSS for 5 periods per week to address her weak reading and math (trans. 18). He stated that the counseling goal was designed to help ’s (trans. 17).

On cross, Mr. acknowledged that he never met and that he participated as the special education teacher because ’s then current teacher who participated by telephone was the regular education teacher (trans. 20). He did not know where the grade equivalents listed on page 1 of the IEP were obtained (trans. 22). He stated that the grade equivalents were obtained from the March 2011 evaluation and was not sure if was in ninth or tenth grade when was assessed (trans. 23). He noted that the staffing ratio for SETSS was 8 children to 1 special education teacher (trans. 24). He did not recall if the SETSS ratio was discussed at the IEP meeting (trans. 24). He did not recall who developed the goals at the March 15 2012 IEP meeting (Id.).

, a NYS Certified special education teacher employed as Special Education Coordinator in the Secondary School for Law for 3 years, testified that she worked individually with specific students to evaluate their needs and accommodate the needs of the special education students (trans. 116). She stated that her school had related service providers for and and a (trans. 118). She described the services at her school included parent training workshops once a month (trans. 120). She stated that students were assessed in her school to determine the SETSS teacher who would have been assigned to (trans. 122). She noted that the general education teacher as well as the special education teacher and advisor tract students and there was tutoring during lunchtime and afterschool (trans. 126).

On cross Ms. stated that for the 2012-2013 school year her school had 500 students from and there were 2 SETSS classes for each grade (trans. 127).

THE PARENT’S CASE

Mr. ’s father, Mrs. , ’s mother, , Teacher/Coordinator of the Program and , school psychologist at Bay Ridge Prep testified in support of the parents’ claim for tuition reimbursement for the unilateral placement of at . The parents are seeking approximately $30,550 for tuition for the academic year 2012-2013. Mr. . testified that that his daughter received special education services since when she attended a and she received tutoring from (trans. 139). He stated that she attended for grades (trans. 140). He recalled that he enrolled in for the 2012-2013 school year and signed the enrollment contract (Exh. D) on April 2, 2012 and paid the tuition in full for the 20122013 school year (trans. 142). He recollected that he visited the proposed school in September 2012 and observed a , but was unable to observe a SETSS class (trans. 145). He stated that because he received no information regarding the SETSS class and because he received no information regarding the level of special educational support or psychological support at the proposed school he wrote a letter to CSE in September 2012 to express his concerns (trans. 149).

On cross Mr. stated that he requested CSE provide further information regarding the level of support the proposed school would provide his daughter (trans. 152). He opined that his daughter progressed at during in 2012-2013 in writing and she received counseling from several sources at so she would not be (trans. 157) He stressed his daughter received services from a several times a week in addition to her regular once a week session (trans. 160). He opined that his daughter progressed in her reading during the 2012-2013 school year and the supported her in writing as did the college counseling teacher (trans. 161).

Mrs. . recalled that her daughter required the support of a school psychologist frequently during the 2012-2013 school year (trans. 162). She recalled that she participated at the March 15, 2012 IEP meeting, however, she did not recall a discussion of ’s and that the meeting lasted about 10 minutes (trans. 173). The parent stressed that she told the CSE team that the was performing well at the and was told the CSE team would make the same program recommendation of SETSS at as had been recommended for the past several years (trans. 173). The parent stated that while she always had visited the recommended program, she had never observed a SETSS class in the proposed school (trans. 174). The parent recalled that there was not time to discuss her visits to the proposed school and express her concerns regarding the proposed school during a CSE meeting that lasted 10 minutes (Id.). She stressed that she told the CSE members that her daughter received a large amount of support in her current school at and the CSE did not respond to her concerns (trans. 177). She recalled that she wrote to the CSE chairperson on August 22, 2012 (Exh. A at 2) to reiterate her concerns regarding the program and to request a class profile to determine the appropriateness of the DOE placement and as she was unable to visit the proposed placement she informed CSE that she would place at and seek tuition reimbursement. She further recalled that she wrote to CSE on August 28, 2012 (Exh H) after receiving the FNR and the IEP to alert CSE that she was unsuccessful in arranging a visit to the proposed school (trans. 181).

On cross Mrs. . stated that her daughter never attended a public school (Id.). The parent opined that her daughter progressed in reading during the 2012-2013 school year because her daughter started reading for pleasure and her during the 2012-2013 school year (trans. 184). The parent stated that while she and her daughter’s then current teacher participated during the March 15, 2012 IEP meeting, she tried to convey her concerns regarding the support her daughter required (trans. 185). She further stated that when she visited that in past years she observed a courtroom, but never observed any special education services (trans. 186).

Anthony Tempera, a possessor of Master’s Degree in Special Education and a Professional Diploma in , employed as a school psychologist for 3 years by the DOE in District 22 and employed as a teacher for 17 years, testified that he was the Coordinator for the for the 2012-2013 (trans. 45). He described as a private school in Brooklyn with 2 buildings: a school for K through 8 and a high school (trans. 46). He further described the various programs in which included the Program (trans. 46). He noted that the had very small classes for students with severe learning disabilities or emotional problems that impinge on learning and the had but were able to attend general education classes with support (Id.). He stated that he coordinated between and staff to mentor each student (trans. 47). He explained that offered a variety of support services to the by regular communication with learning specialists, and mentors and the families and the staff, as well as altered curriculum and special education services including extended time on test, graphic organizers, a multimodal approach with SMART Boards, and a visual approach and counseling in a mainstream setting (trans. 48). He further explained that there was a team approach and he worked with the school psychologists and learning specialists and classroom teachers once a week to ensure the receive all the supports required to enable them to learn (trans. 49). He noted there were 8 during the 2012-2013 school year (trans. 50). He noted that had reading specialists and speech and language pathologists to meet with the students individually or in small groups either once a week or several times a week to meet their learning needs (trans. 51). He stated that he trained the classroom teachers to provide differentiated instruction to enable the Achieve student to progress (trans. 53). He further stated that in addition to differentiated instruction, an additional teacher pushed into the class to provide accommodations and modifications for the in the classroom (trans. 54). He noted there was collaboration with the special education teachers and the mainstream teachers in a once a week meeting with the school psychologist and learning specialist for the students (trans. 56). He described that mentoring system for the involved a meeting for 15 minutes each day to touch base and help organize assignments and use planners for upcoming programs and noted that the mentors met with the learning specialists or speech and language teachers or school psychologists to ensure the individual goals of the Achieve students were met (trans. 59-60).

Mr. stated he was familiar with for past several years as he taught a class in middle school and in ninth grade with (trans. 63) He described a and the counseling team was very involved with during the 2012-2013(trans. 65). He stressed that struggled with a lot and was a , who was a her trans. 65). He explained that was required graphic organizers to break down material and repetition and extended deadlines as well as study skills training to read, revise and review skills (trans. 66-67). He stated that due to her fragile emotional state, required a tremendous amount of counseling during the 2012-2013 school year from himself and her mentor, who was a school psychologist (trans. 68). He further related that received with her mentor to lesson anxiety and had received breathing techniques and test taking techniques from her mentor (trans 70). He noted that during the 2012-2013 school year was highly anxious as she was leaving and required twice daily sessions with her mentor for 15 minutes as well as extra sessions on an “as needed” basis (trans. 73-74;77). He further noted that received academic supports of extended time and frequent redrafts as well as support for written assignments as she (trans. 78). He related that required such intense support because . 79). He opined that progressed in her senior classes during the 2012-2013 school year and many of her teachers possessed either Master’s degrees in special education or had a P.D. in School Psychology (trans. 83) He noted that the class sizes during the 2012-2013 school year for was 20 to 26 students and opined that with accommodations and modifications of extended timelines for tests and assignments succeeded academically and emotionally (trans. 84-92).

On cross Mr. stated that received support services from a special education teacher during class on a daily basis and her mentor provided counseling daily to work on her generalized (trans. 99-101).

, a possessor of Master’s Degrees in Education, Special Education and a specialization in reading remediation and a Professional Diploma in Urban School Psychology, and permanently certified as a school psychologist in NYS, testified that he was employed by as a teacher, mentor and school psychologist for 15 years (trans. 190). He stated that he was familiar with as she was in her SAT prep course during her sophomore year and during the 2012-2013 school year she was in his modern literary criticism class (trans. 191). He described as a student who struggled with executive functioning, organization and grammar mechanics (trans. 192). He explained that he coordinated with ’s mentor, a school psychologist as well as the teacher of her college preparation class to address her writing issues to generalize her writing skills (trans. 193). He stated that he and his colleagues broke down the writing assignments and provided and support (trans. 195). He noted that met with her mentor at the beginning and the end of each day to work on organizational study skills and long term academic goals as well and social goals (trans. 196-197;209). He opined that progressed in her understanding of punctuation and syntax and her flow of the essay structure (trans. 199). He explained that performed in the middle of his class and his class was a mix of Bridge students and mainstream students (trans. 200). He stated that he broke up the class into small groups and the students worked collaboratively on grammar issues and literary critique (trans. 203). He opined that progressed in her writing (trans. 204). He stressed that due to the accommodations of extended time on assignments and her work with her mentor and the individual attention from him that developing in her reading and writing (trans. 206). He opined that progressed academically, social and emotionally during the 2012-2013 school year (trans. 206-210)

On cross Mr. stated that ’s mentor was a licensed school psychologist and received remediation in reading and writing from himself, a licensed special education teacher as well and the teacher of ’s college English course and the teacher of her course on Shakespeare, who were certified special education teachers (trans. 211). He further stated that ’s teachers developed the curriculum and she passed her Regents and had taken standardized tests (trans. 214).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a 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.” See 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 See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.550(b); 8 NYCRR §200.6(a)(1). Also, a FAPE must be available to an eligible student “who needs special education and related services even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” See 34 C.F.R. § 300.101( c)(1); 8 NYCRR § 200.4(c)(5).

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 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.32(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special educational services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law §4404[1][c].

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. See 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).

The parents’ attorney asserted many procedural flaws in the March 15, 2012 IEP: the meeting was not properly constituted because there was no appropriately certified special education teacher (Exh. B at 2). The parents’ attorney asserted that the DOE failed to establish a parent member was present as required by and § 8 NYCRR 200. 3[a][1][viii] (Id.). This assertion was not contested. The parents’ attorney asserted that the reports and evaluations utilized by the CSE members were not shared by the teacher who participated by telephone (Id.). This assertion was not contested. Telephone conferencing of participants is permitted, provided that individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. (See Application of a Child with a Disability, Appeal No. 00-043). The parents’ attorney asserted that the evaluation used by the CSE dated March 2011 did not provide current grades levels or equivalents (Exh. B at 3). I credit the testimony of the district representative that he did not know where the grade equivalents listed on page 1 of the IEP were obtained (trans. 22) and he was not sure if was in ninth or tenth grade when was assessed (trans. 23). The parents’ attorney asserted that the goals were not formulated with regard to Margo’s present level of performance and the goals were generic and vague and did not provide a baseline from which to work (Id.). I find the goals were not developed with appropriate evaluative material to measure ’s current level of functioning and did not reflect ’s or . There was no testimony to establish that Mr. , who signed the IEP as a special education teacher had taught a high school class and § 8 NYCRR 200.1, 200.3[c][2][iii] required the special education teacher be present at the IEP and 34 C.F.R. § 300.344[a][3] required the special education teacher be a person charged with implementing the IEP or someone qualified to do so (Exh V at 3). Accordingly, there was no testimony that Mr. taught high school despite the SETSS program recommendation. I find there was insufficient information as to how the special education teacher would have been able to implement the proposed program. The parents’ counsel asserted CSE failed to conduct the necessary evaluations (Exh. B at 2). Under 8 N.Y.C.R.R. § 200.4(b)(3), CSE was required to conduct additional evaluations to appropriately assess the student in all areas related to the suspected disabilities. Testimony and evidence adduced at the hearing established that required many supports for her (Exh. 3at 2-5), and yet CSE possessed no social history, not a classroom observation to assess her . I find the CSE had ample evidence of ’s LD diagnosis and history of anxiety and executive functioning issues and I credit the testimony of the parent who told the CSE team that required a small class size and her need for constant support (trans. 174). The parents’ attorney alleged that the sole goal to address ’s significant issues related to anxiety was not sufficient (Exh. V at 5). I agree. The parents’ counsel alleged that CSE failed to provide an appropriate program because Mr. could not support the recommendation of the SETSS program (Exh. V at 4). I credit Mr. s testimony that SETSS was the least restrictive educational environment (trans. 19); however, the record was devoid of evaluative material to support the SETSS recommendation.

The parents’ counsel asserted that there were substantive flaws in the proposed placement at The Secondary School for Law with 5 periods of SETSS per week and that FAPE for 2012-2013. I find testimony adduced at the hearing establish that was not capable of following the mainstream curriculum and required a modified curriculum and accommodations and supports throughout the day.

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 (2d Cir. 2003). A procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, (S.D.N.Y., 2005). The district representative asserted that the IEP meeting on March 15, 2012 was a duly constituted team and delivered an IEP tailored to meet the specific needs of (Exh. VI at 1) The district representative maintained the SETSS program recommendation of 5 periods of SETSS per week and the related service of group counseling once a week was based on psychological evaluation (Exh. 3) and the input of the parent and ’s then current teacher (Exh.VI at 2). I credit the testimony of the parent who stated that the March 15, 2013 IEP meeting lasted 10 minutes (trans. 173) and I find the district representative failed to establish there was meaningful participation of the parent and the teacher. I credit the testimony of the parent who stated she did not receive the psychological evaluation and there was no substantive discussion of the recommendation of 5 periods of SETSS (trans. 18). The district representative asserted that for Law was appropriate because all the special education teachers were licensed and certified (Exh. VI at 2). The parents’ attorney argued that the DOE witness who testified as to the appropriateness of the placement could not provide any information as to how the IEP would have been implemented. Further, the parents’ attorney asserted that any testimony to rehabilitate the IEP was dismissed by a recent Second Circuit decision “R.E (2012 WL 4125833)(C.A.2(N.Y.) at 12)”(Exh. V at 7).

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007).

The parents’ attorney asserted that the March 15, 2012 IEP goals were drafted without parent participation and were not formulated with regard to ’s present level of performance and neither the goals nor the IEP were reasonably calculated to confer educational benefit and did not address ’s unique social and emotional needs (Exh. V at 5- 6). I credit the parent’s testimony that the goals were not discussed and I find the goals were developed without regard to ’s present level of performance and were developed without the parent’s participation. I find the related service goals were developed without regard to ’s present level of performance and were developed without the parent’s participation.

I credit the parent’s testimony that she voiced her concerns that required a small class at the IEP meeting and strongly disagreed that the SETSS program in a general education class for the 2012-2013 school year (trans. 175). I do not credit that the testimony of the district witness that the parent and the agreed with the SETSS program recommendation. I find the SETSS program recommendation was made by staff and contrary to the evidence and contrary to the parent’s stated concerns and significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE.

I find CSE had ample evidence of ’s learning deficits, and her social/emotional needs as the team reviewed psychological evaluation (Exh. 3). I find ’s learning deficits and emotional/social needs were not addressed on the March 15, 2012 IEP.

I further find the lack of appropriate academic goals and the related therapy predrafted goal significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE. I find that the district failed to establish that the parent meaningfully participated the decision making process. I find the lack of CSE evaluations to support the special class program significantly impeded the parents’ opportunity to participate in the decision making process. Therefore, I find the district failed to establish that FAPE was provided during the 2012-2013 school year 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 by the parent and the staff at Bay Ridge Prep and evidence submitted by the parents established that the parents have met their burden regarding the unilateral placement of . I find her small class settings, the use of multi-sensory tools such as the graphic organizers, binders, SMART boards, and the experienced teachers, as well as the mentoring component of individual counseling addressed ’s unique learning disabilities and her . I credit the testimony of the testimony of the psychologists at who ensured that all people involved in 's education had an understanding about her disability and made adjustments in the class to meet her needs. I find the Program provided the appropriate program with the mentor and the as-needed counseling that addressed ’s needs and achieved success in improving her organization issues, her writing issues and her emotional issues. I find her special education needs were addressed in the and the provided educational instruction that was specifically designed to meet her academic and emotional needs (trans. 60-67;70-77;84-92; 190-206). I find made meaningful progress in her . I credit the testimony of the school psychologist and I find the parents established the second prong of the Burlington/Carter analysis.

I find that the equitable factors supported the parents’ claim for reimbursement. The record was replete with the parents’ efforts to cooperate. The parents participated and attended all meetings and repeatedly requested an appropriate placement (Exh. H). I find the parents established the third prong of the Burlington/Carter analysis. Therefore, I find the parents are entitled to reimbursement for $30,550.

ORDER

I order that the DOE shall provide tuition reimbursement to the parents for the 2012-2013 school year in the amount of $30,550, upon proof of payment acceptable to the DOE. Dated: December 11, 2013

_____________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer LA:mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 21, 2013

A Notice and Request for Transportation, 8/22/12, 3 pp. Parents

B Impartial Hearing Request, 5/28/13, 5 pp. Parents

C DOE Letter to Parent, 9/24/12, 1 p. Parents

D Enrollment Contract, 4/21/12, 2 pp. Parents

E Payment Affidavit,1/9/13,1 p. Parents

F Description for 2012-2013, undated, 3 pp. Parents

G Daily Schedule, undated, 1 p. Parents

H Parent Letter to DOE, 8/20/12, 1 p. Parents

1 IEP ,3/15/12, 12 pp. District

2 Final Notice of Recommendation, 8/10/12, 1 p. District

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

I Decision on Request for Extension, 8/7/13, 1 p. IHO

II Decision on Request for Extension, 8/21/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 12, 2013

I Report Card, 4th Quarter, 2012- 2013, 1 p. Parents

J Class Schedule, Updated, 2012- 2013, 1 p. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 15, 2013

III Decision on Request for Extension, 10/1/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER1, 2013

IV Decision on Request for Extension, 11/1/13, 1 p. IHO

POST HEARING SUBMISSIONS

V Closing Statement,12/6/13, 14 pp. IHO VI Closing Statement, 12/6/13, 6 pp. IHO