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 18, 2014

March 27, 2014

April 23, 2014

May 7, 2014

Actual Record Closed Date: May 17, 2014

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSON’S WHO APPEARED MARCH 18, 2014

For the Student:

, Esq. Attorney

For the Department of Education:

Chairperson’s Designee, CSE (via telephone)

NAMES AND TITLES OF PERSON’S WHO APPEARED MARCH 27, 2014

For the Student:

, Esq. Attorney

Parent

For the Department of Education:

Chairperson’s Designee, CSE

IEP witness (via telephone)

NAMES AND TITLES OF PERSON’S WHO APPEARED APRIL 23, 2014

For the Student:

, Esq. Attorney

Parent

Coordinator of ,

(via telephone)

For the Department of Education:

Chairperson’s Designee, CSE (via telephone)

Assistant Principal, School

NAMES AND TITLES OF PERSON’S WHO APPEARED MAY 7, 2014

For the Student:

, Esq. Attorney

For the Department of Education:

Chairperson’s Designee, CSE

INTRODUCTION:

This case was brought before me upon my designation by the Department of Education (“District”) as an Impartial Hearing Officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the parent (“Parent”) on behalf of the student (“Student”), through their attorney, Esq., by filing a Due Process Complaint dated December 19, 2013.

The Parent is alleging that his son was denied a free and appropriate public education (“FAPE”) for the 2013-14 school year and is seeking tuition for his unilateral placement at the Program.

There were four days of hearing in this matter. Hearing were conducted on March 18, March 27, April 23, and May 7, 2014. Extensions were granted in this case making the final compliance date June 13, 2014.1 A list of Exhibits is attached as Exhibit A. The Parents and the District, and the IHO submitted exhibits.

BACKGROUND:

This case involved an eighteen (18) year old student. During the 2013-14 school year, attended ”) in the Program, where the Student was unilaterally placed by the Parent.

With respect to the 2013-14 school year, an Individualized Education Program (“IEP”) was developed on January 30, 2013. Pursuant to the January 30th IEP, the recommendations that were made include: Integrated Co-Teaching Services, seven times per day for all subjects and Counseling Services, , one time per week for 40 minutes each time. D-1.

The District issued a Notice of Recommendation dated July 24, 2013. D-2. It stated that the offered school shall be MS20 at 411 Pearl Street, New York, NY which is also known as . D-2. The Parent sent the District a letter on August 22, 2013 indicating that he strongly objected to an Integrated Co-Teaching classroom in a general education setting for his son. He also stated in the letter that he was unable to visit the program over the summer since the school was closed and would visit the program as soon as school opened to determine if it were appropriate. P-B. He further stated that until such time, and if the program were not appropriate, he would seek reimbursement. He also asked for a class profile. P-B. In his letter dated October 22, 2013, he stated that he visited the program and determined that it would not be appropriate for his son, and, as a result, would seek reimbursement for for the 2013-14 school year. P-C.

The Parent entered into an Enrollment Contract for the 2013-14 school year on May 15, 2013. P-E.

The Parent filed a Due Process Complaint on December 19, 2013 (P-D). I was appointed as an Impartial Hearing Officer on January 21, 2014 after recusals by several hearing officers.

A Pendency Hearing took place on March 18, 2014 and a Pendency Decision was issued on April 6, 2014. IHO-I. In that decision, the parties agreed that pendency was based on the Findings of Fact and Decision dated December 7, 2011. P-A. In that decision, the District was ordered to reimburse the Parent for . P-A. Following this, at the April 23 hearing, through the testimony of Mr. and the Parent, it came to my attention, that the Student was not in for the 2013-14 school year but was in the Program. As a result I advised the parties that an additional hearing date would be scheduled to discuss the pendency matter and that in the meantime, I would issue an interim order suspending the Order on Pendency dated April 6, 2014. P-A. Therefore, on May 1, 2014 an Interim Order on Pendency was filed suspeinding the Order on Pendeny dated April 6, 2014, until additional testimony was taken and a decision was rendered as to whether, in fact, pendency lies in the Findings of Fact and Decision dated December 7,

2011. P-A. DISTRICT’S CASE:

The District called two witnesses, , and placed five (5) documents in evidence. D-1—D-5.

The first witness He has his New York State certification in general education grades one through six, special education, kindergarten through twelfth grade, his advanced state certification as a supervisor/administrator and is also certified as a school district leader. Tr. 30. He has worked for the District for 29 years and is currently a teacher assigned to Committee on Special Education (CSE)-7and is part of the IEP team. Tr. 30.

Mr. took part in the IEP meeting of Z.C. dated January 30, 2013 for Z.C.as the special education teacher and District representative. Tr. 31. The other parties present were: , general education teacher the school psychologist. Tr. 31-32. The recommended placement was an ICT class, and counseling one time per week, 1:1. Tr.

32. There results from May 11, 2011 on the IEP and in the section entitled Academic Achievement, Functional Performance and Learning Characterisitcs. The CSE got the information from direct conversations with at the Evaluation (D-5). Tr. 33. Mr. testified that the goal on page 3 of the IEP addressed reading comprehension and this goal helps address his educational needs since he is functioning on a 10th grade reading level. Tr. 34. The next goal is a math computational goal and the one following that is for reading comprehension. The goal for writing was to in writing which is an issue as well writing level. Tr. 35. With respect to math, his math skills weren’t listed on present levels of performance because his teacher, Mr. had no information about math though his instructional level was listed as ninth grade.

Mr. testified that the recommendation for ICT was made since he was on a tenth grade level in reading and a ninth grade level in writing and math and the CSE believed that the ICT would be appropriate because there were two teachers in the class to give him the support he needed. Tr. 37. The Parents and the school participated in the CSE meeting. Tr. 38.

On cross examination, Mr. testified that .’s time management skills were addressed in the goal relating to improving his on-task behavior and his work study habits. Tr. 40. They were told by . had difficulty completing his work and handed in work late and needed additional time and reminders to do so. Tr. 42. Mr. testified that the baseline would have been established in September. Tr. 42. Mr. also stated that he never taught a high school ICT class. Tr. 43. He indicated, however, that as District representative, he has knowledge of the continuum of services and the classes within the continuum on every level, elementary through high school. Tr. 44. Mr. could not recall how the CSE came up with the information on the IEP indicating reading comprehension skills fall on a possibly 10th grade level. Tr. 49. With respect to the math level, Mr. indicated that he was basically level and he made this determination based on the Evaluation. D-5. With respect to writing, the information is taken from his School Progress Report which indicates .’s ability to express his ideas in written form is much weaker than his verbal skills. Tr. 54. Ms. believes that any teacher can look at the writing goal and know that the Tr. 55. The goal with respect to counseling indicates that he has peers. Tr. 57. When Mr. was questioned about this, he indicated that it may have been more appropriate for him to receive counseling in a small group to address this issue. Tr. 57.

. was classified He has a history of difficulties. Tr. 58-59. Mr stated that the IEP indicates he is on medication but that it is not necessary to list the specific medication because of confidentiality issues. Tr. 59. Mr. ’s class size in the ICT class would have been 20 to 32 students and at Bay Ridge the class size was 10 to 12 students. Tr. 66. The CSE recommended the ICT class because of his academic and attentional needs and the fact that there was a general and special education teacher in the classroom. Tr. 61. Mr. indicated that the Student Progress Report and Progress Report were obtainable by the teacher on the committee but he did not give the teacher the evaluation due to confidentiality issues and was not aware as to whether the mother had waived her rights. Tr. 63. Mr. had a general education license and a psychology license. Tr. 67. He was no aware whether Mr teacher or psychologist. Tr. 65.

On redirect, Mr. testified that in terms of the math levels, he believes it was based on teacher estimates. Tr. 65. He also stated that with respect to on-task behavior, the IEP also provided for redirection, breaks as needed, reminders to address organization and time management. D-1; Tr. 66. . Tr. 66. As a district representative Mr. testified that he is familiar with high school ICT classes. Tr. 67. Mr. testified that a counselor, in an individual session, can provide or teach the student strategies regarding avoiding distractions in class especially from peers. Tr. 68. In addition, he stated that the attentional needs would be addressed by having two classroom teachers in the room.

The next witness for the District was . He is currently assistant principal of for Business Careers, and for the previous nine months, he was assistant principal of Support Services. He has a permanent teacher’s license and a permanent school administration license. Tr. 85.

Mr. indicated that in accordance with IEP, they have integrated co-teaching services available at his school and they also have counseling services. Tr. 87-88. The teachers are certified in their respective areas as are the related service providers. Tr. 88. All teachers are observed formally and informally. Tr. 88. There is also ongoing professional development. Tr. 89. There is a parent coordinator and mostly parental meetings and a newsletter. Tr. 89.

In .’s integrated co-teaching class there are different reading levels so the teachers differentiate instruction and all content area teachers are to have that pedagogy going on every day. Tr. 90.

In terms of scheduling classes, if the student has failed Regents classes, they will be prepped to pass these classes and if a student is in the process of accumulating college credits, there are AP courses that are offered. Tr. 91. They have clubs, tutoring and after school sports. Tr. 91. There are report cards and progress reports issued every six weeks so that the parents can track the students throughout the semester. Tr. 92.

Mr. also testified that there are transition coordinators to help with jobs and internships and also a college office. Tr. 93. The teachers and related service providers have DPT meetings to discuss any issues teachers have with students. Tr. 93.

On cross examination, Mr. stated that there is a small school in the basement for 86 students and the rest is . Tr. 94. He stated that Ms. just became principal of the high school and that although had historically underperformed last year, he stated that “in every new leader and leadership there is a time where the new administration is making headway with the concerns the parents are having…” He stated that there are things happening in the school and progress being made and they believe they can turn the ‘F’ around with the new leadership. Tr. 95.

He stated that he doesn’t have the information in front of him regarding how many seniors are going to college, however, for this year they have been able to put some of the seniors in great colleges and it is a work in progress. Tr. 96.

Mr. stated that he was at the school when the Parent toured the school. Tr. 96-

97. He stated that basically he schedules students with IEPs according to the mandates of their IEPs. Tr. 98. There are seven periods a day and lunch. Tr. 100. There are also electives that are not given within the ICT framework. Tr. 101. Mr. stated that as a result of his mandate, he may be precluded from being scheduled for less restrictive electives. Tr. 101. The issues of whether there are ICT classes for AP Physics and AP Calculus has never come up before because they didn’t have students that requested that type of service. Tr. 103. Therefore, Mr. testified that the ICT program does not include students capable of taking advanced placement courses. Tr. 104.

To prepare students for college, Mr. testified that they help with the application process, take students on tours, and schedule colleges to come to campus to recruit students. Tr. 104. They also have collaboration with CUNY institutions. They are conducting seminars and workshops at the high school to help students start to think beyond high school. Tr. 106. PARENT’S CASE:

The Parent’s called two witnesses, and the father. Mr. s employed as a teacher at . He teaches ninth grade algebra, history and English and also teaches the eleventh grade psychology class. He is also the coordinator of . There are 220 students in the high school program. Tr. 110. They are not a special education school and are accredited by the NYSED. Tr. 110. There are three programs in the high school, the regular education program, the . Tr. 111. is a mix between mainstream regular education students and students is more intensive and a more inclusive program with just students with IEPs. Tr. 111. is almost exclusively self-contained classes but there are inclusion classes as the students get older. Tr. 112.

Mr. stated is a mainstream program. The students in the program either have an IEP or have some learning issues that need to be addressed; however, they are integrated into the mainstream classes with special education supports, curriculum, workload modifications and accommodations. Services within the classroom are provided through collaboration between mainstream and special education teachers and the teachers are trained utilizing differential instruction at all levels. Tr. 113. They also have individual or small group sessions outside of the classroom depending on their needs. Tr. 114. Teachers use techniques such as pre-teaching, previewing material, reteaching, specific remediation, as well as extra time on tests, testing in separate locations, meeting with students outside the classroom etc. Tr. 114. There are team meetings with the teachers in the to discuss the progress of the student and how best to accommodate them in the classroom. Each student also has a mentor who is a trained teacher that works with that student. Tr. 114.

For. , who teaches his animal behavior class, is his mentor. She works with him within the classroom on her curriculum and outside of the class helping with his difficulties. She also is involved with the track a member of, and she works with him and informally discusses his organizational issues. Tr. 115. There are also formal scheduled times she meets with him to discuss goals, college and how his management needs are being addressed in different classes. Tr. 115. In addition, at the end of the day there is time for the mentor to touch base with the mentee for help with projects, homework, or organizational support. Tr. 115. A teacher is assigned one to four mentees. Tr. 116. The teachers are given formal training on now to be a mentor. They meet at least twice a month. Tr. 116.

With a student be unfocused in class and distracted. The types of strategies that may be included or if his comments are inappropriate to the discussion, or breaks from class so he can refocus. Tr. 116.

Mr. stated that he has four years. He was algebra class, he sees him on a regular basis in the hallways and he meets with his teachers and the school psychologist on a regular basis are certified in their subject area though not all of them are certified in special education. Tr. 118.

Mr. Tempera testified skills so the teachers are trained to work with him on along with his mentor. Tr. 123. He is and needs regular . He also is impulsive and says what he is thinking in a class discussion even if it is tangential and the teacher will have to refocus him and bring him back. Tr. 124. Mr. stated that for a diagnosis they use the IEP as a reference. Tr. 125.

In class where there are five students. The teacher has a Master’s in Physics and generaL education and she is a licensed teacher, though not in math. Tr. 121. Mr. testified that math is a strong subject . but his issues are time management and completing assignments on time. Tr. 122. Although he is very strong in mental math, he needs organizational help in calculus. His notes are sparse and are often not even in the same notebook. Therefore, the math teacher and his mentor make sure his notes are in the same notebook and he is writing information down. Tr. 126. He is getting ‘A’s’ in calculus. Tr. 130.

In Animal Behavior, his teacher, Ms. is his mentor and she has a Master’s degree in science education. Tr. 127. She has 31 students in her class. She finds him during group class. Tr. 127. Mr. stated that due to the large class size, there is a qualitative difference in his ability in a smaller class. Tr. 128. He stated that he has a difficult time in such a large class; however, this is an elective that he chose. He is doing well in this class and but got for second quarter. Tr. 130. Although he did not have specific information on World History, his grade is in range. Tr. 130. In his Environmental Science class, there are 11 students. Ms. his teacher has a Master’s degree in Environmental Science and Entomology. She says that he is functioning well in her class but socially get Sinto “tiffs” with other students and herself. She stated that this occurs when he argues a point to the extreme. Tr. 132. She provides him with extended time on projects and assignments. She meets with him one-to-one to make sure he has his work down, redirects and refocuses him, and provides him with preferential seating. Tr. 132. In Environmental Science his grades are in range. Tr. 134.

His AP Physics teacher, Ms. , has a degree in physics. There are seven students in his class. He has difficulty getting his homework in on time in this class. In physics, he is getting but he has dealt with incompletes due to the fact that his work wasn’t in before report cards were going out. Tr. 124.

College English is taught by Dr. who has a Master’s degree in comparative literature and also has a doctorate in education and is a licensed psychologist. He is the headmaster of the school as well. . is getting similar accommodations to his other classes in English but is also involved in a peer assistance program where his peers will try to keep him on track. Tr. 137. His English teacher states that in order to remain focused, he sometimes needs direct eye contact. Tr. 137. He also said that he does well in writing if it’s something he is personally interested in. If not, he manipulates the topic so it comes around to something that interests him. Tr. 138. He received ‘A’s’ in the class.

and his mentor meet every day after school, once a week during the school day formally for the support period and informally at other times as well. Tr. 140. The support period is the after school time just . Tr. 140. He also has Psychology with Dr. who has a PhD in school psychology. Tr. 142. There are 23 students in that class. He has similar accommodations to other classes. She also noted that he can be immature at times and has difficulty acting his age. Tr. 143. Dr. guidance counselor so meets with about his college needs and also talks to him about . Tr. 143.

He gets one-to-one counseling once a week with Dr. College Psychology is referred to as a seminar class and it is pass/fail. Tr. 145.

Mr. testified that if you look at his program, there is a real qualitative difference between .’s ability to focus and his performance from small classes to large classes. Tr. 145.

Mr. stated that in his professional opinion, he would have difficulty in an ICT class due to and his organizational needs without the support system he presently has in the classroom and outside. Tr. 146.

Mr. testified that there are presently approximately 12 seniors in the Achieve Program and all of them are going to college. Tr. 147. Between September and now, has made progress with his organizational skills and keeping up to date with his assignments. He has a much stronger awareness of what his issues are and what he needs to work on . Tr. 148. Mr. testified that has been in since ninth grade. Tr. 149. Mr. Tempera meets twice a month with .’s teachers and mentor. Tr. 150.

On cross examination, Mr. Tempera testified that he does not have a certification in administration. Tr. 152. .’s College Psychology teacher and college English teacher are the only teachers that are state certified in special education. Tr. 152. The progress in this class is measured by his grades on Regents as well as teacher based assessments and tests, looking at his skills in group work, his assignments, etc. Tr. 156. His ability to complete assignments and his organizational skills are areas of improvement. Tr. 156.

The last witness was the father. from kindergarten through fifth grade. It was then recommended that he receive a neuropsychological evaluation and he attended from sixth through eighth grade. Tr. 161. For ninth through twelfth grade he attended . Tr. 167. He had an IEP from kindergarten or first grade. Tr. 163. He was diagnosed and was given a classification . Tr. 165. He was distractibility, inability to focus, and executive functioning. Tr. 162. Although he was a sponge and would soak up information orally, he was having and . Tr. 162.

The father testified for freshman year and was moved in his sophomore year to the . Tr. 164. They moved him because he was and needed more appropriate instruction. Tr. 164. He since junior high school. Tr. 166.

The father testified that he benefits from because it allows him to be in a more mainstream environment that is teaching him at a higher level because he clearly needs that and still receives support. Tr. 167. The smaller class size is a big because of his distractibility and also the accommodations of refocusing and redirection. Tr. 167.

The father indicated that he did not attend the IEP ’s mother did, but he observed the school placement. Tr. 169. He found the class to lack structure and organization and be lost. Tr. 168. The father testified that he believes . needs to take classes that are academically challenging. Tr. 169. He was shocked to find out that the recommended school was reported failing by the District. Tr. 170.

The father testified that they always ask for a placement as early as possible so they can visit the placement in the Spring. Tr. 171.

When the father signed , he was aware that they had added a clause in releasing the parent from additional financial penalty if they accept a school placement recommended by the Department of Education in a public school, and he signed the contract because he needed to save a place just in case. Tr. 172. He stated that his full tuition obligation was $31,850 and as of March 15th, all tuition had been paid. Tr. 173.

The father testified . has shown emotional development this year and he feels that his focus on science and calculus this year has enabled him to begin to become familiar with the discipline he wishes to pursue in college, which is engineering. Tr. 173. With respect to the two large classes he was in , the father testified that they were electives and he felt that the school would provide him with the supports he needed to be able to succeed in classes of that size .

On cross examination, the Parent . had never attended public school. Tr. 176. In fifth grade, , the Parent believes a placement was not offered for the Student and so he was unilaterally placed . Tr. 177. When the Parent visited the he testified that he asked the special education teacher what her role was in the classroom and she stated that she hadn’t had a chance to discuss it yet so she really didn’t know. Tr. 178. He also spoke to the dean she said that it was would be in a classroom with students with behavioral issues and this was of concern to the Parent due to his distractibility. Tr. 175.

The Parent testified that with respect to counseling, it is something “that he can get as he needs it”. He stated that he is more likely to rely on speaking to his mentor or his college psychology teacher. Tr. 182.

FINDINGS

The first issue that must be addressed is whether pendency lies in the Findings of Fact and Decision dated December 7, 2011. P-A.

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5[m]; see Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of the Dep't of Educ., Appeal No. 08-061; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of a Student with a Disability, Appeal No. 08-003; Application of a Student with a Disability, Appeal No. 08-001; Application of a Child with a Disability, Appeal No. 07-095; Application of a Child with a Disability, Appeal No. 07062). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). The pendency provision does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; Application of a Student with a Disability, Appeal No. 08-107; Application of the Bd. of Educ., Appeal No. 07-125; Application of a Child with a Disability, Appeal No. 07-076; Application of the Bd. of Educ., Appeal No. 05-006; Application of the Bd. of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000] aff'd, 297 F.3d 195 [2002]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Child with a Disability, Appeal No. 01013; Application of the Bd. of Educ., Appeal No. 00-073). The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement (Evans, 921 F. Supp. at 1189 n.3; see Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001] aff'd, 290 F.3d 476, 484 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed impartial hearing officer's decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep't of Educ., Appeal No. 07-134).

In this case an Order on Pendency was issued on April 6, 2014 based on the understanding Program for the 2013-14 school year. There was no indication in the documents presented at the March 18, 2014 hearing or the testimony that indicated that the Student was not in the ; all of the documents other than the December 7, 2011 Findings of Fact and Decision (P-A) referred to without specifying a program and that decision provided reimbursement placement in the Program . The testimony presented by the Parent at the April 23 hearing however shed light on the fact that the Student was in the Program, which was a different program than the Program . Therefore, although a prior unappealed impartial hearing officer’s decision could establish current educational placement for purposes of pendency, the decision in that matter dealt with the program not the . Therefore, based on this new evidence, it was clear that there was no pendency in this matter. The Parent and District agreed that has three separate programs; the general education program, the , all different programs with different tuition rates and different education program. Tr. 204. The Parent’s attorney stated that the hearing officer’s decision placed pendency in the program based on her interpretation of the Findings of Fact and Decision dated December 7, 2011 and that he stated that that was a correct interpretation. Tr. 206, P-A. When the parties agreed to pendency at the March 18th hearing, they were agreeing to pendency in the unappealed decision dated April 7, 2011 which placed the student in the not . Therefore, the Order on Pendency is hereby suspended on a permanent basis.

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Prong 1-Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 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 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; 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])

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 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). The student’s recommended program must also be provided in the least restrictive environment (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; 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 education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 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 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. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parent alleges that the District did not comply with the procedural and substantive requirements of the IDEA. The Parent took the position that the CSE failed to appropriately review and consider appropriate evaluative data and that the IEP fails to appropriately describe education needs and fails to provide the results of any standardized testing. P-D. e evidence has shown that the District had failed to develop an IEP for the 2012-13 school year that provided the most current and accurate information available at the meeting. Mr. testified that the CSE got the information for the IEP from the teacher at the meeting, the Student Progress Report (D-3), the Counseling Report (D4), and Report (D-5). First, with respect to Math, his math skills were not listed on Present Levels of Performance yet his instructional level was listed level based on Evaluation from 2011 and a goal was created based on that. Tr. 35. With respect to reading comprehension, Mr. could not recall how the CSE came up with a reading comprehension level of tenth grade and yeat, made gaols with respect to it. Tr. 49.The that was referred to at the CSE meeting was from May of 2011 and the only other reference to it in the IEP was in the evaluative results where his IQ was reported. No other standardized assessments were reported or reviewed. D-1; D-5. The Student Progress Report reviewed at the meeting was from his Introduction to Psychology class and no other reports were reviewed to address Present Levels of Performance in other academic areas. D-3. The report did, however, indicate significant difficulty in time management and organization which impacts his overall performance in class since he was not able to obtain a grade in that class for first quarter. Clearly, the Academic Achievement , Functional Performance and Learning Characterisitcs section of the IEP is vague and does not provide enough information to adequately characteristics so that his special education, academic, developmental and functional needs can be addressed and therefore, was not able to develop an IEP that was reasonably calculated to confer educational

The Parent stated that the IEP has insufficient goals and objectives and fails to address post high school planning and graduating senior. With respect to goals, without specifics with respect to Present Levels of Performance, it is difficult to address goals to meet his needs. It was made clear .’s present math levels were not available, and that he used the Evaluation from 2011 and created a goal indicating that “within one school year, will improve his math skills by one grade level. He will solve equations and word problems involving algebraic expressions, mixed numbers and integers.” There is no indication where this information came from and what it is measuring. In reality based on the hearing record was a strong math student and was taking A.P Calculus and A.P. Physics so that goal would not have been appropriate; his , as in all subjects relate to With respect to time management skills, an important ., a goal was written which stated his work study habits with 80 percent accuracy. Mr. stated that in creating this goal the CSE was not familiar with what percentage of the his work on time and the base line would not be established until September. Tr. 41. With respect to transitional goals, it states that “[Z.C.] will apply to/attend a four year college/university. He will earn a degree and be competitively employed.” The transition plan and goals do not appear to have the level of specificity required to comport with statutory requirements.

It is clear from the foregoing, that the information in the January 30th 2013 IEP does not accurately and completely reflect the student’s special education needs. The Present levels of performance did not reflect the Student’s current skill levels and were vague and incomplete; and the goals were not designed to meet the Student’s present needs.

The Parent takes the position that based on the foregoing the placement recommendation of a general education class in an integrated co-teaching setting is inappropriate will not meet his special education needs and provide him with FAPE in the least restrictive environment. I credit the testimony need for a small setting and the individualized and special education supports he needs in order to be successful. He specifically stated that “in his professional would have difficulty in an ICT class due to his and his without the support system he presently has in the classroom and outside. Tr. 146. Mr. Tempera testified that if we look at his program this year, it is clear that there is a qualitative difference to focus and his performance from small classes to large classes. Tr 145. Without the specific organizational help he receives from the Achieve Program Mr. indicated that he would also not be in a position to complete his coursework. Mr. testified that the recommendation for the ICT class was made since he was on tenth grade level for reading and a ninth grade level for writing and math and there would be two teachers in the room to give him support. Since these levels are not accurate and there is not sufficient information to justify these levels, a placement decision should not be made on this basis. On this basis, his ability to fit into the District’s program is not credible Therefore, the Program recommendation on the January 30th IEP is inappropriate and was not calculated to receive educational benefit.

With respect to the Final Notice of was placed in . The Parent believed that the particular placement was inappropriate due to the large class size and its inability to meet his needs. The Parent was also concerned about the functional grouping of the class and requested a class profile which he never received. Finally, he expressed concern about the “F” rating the school had received. Mr. testified that they are working on turning around and have new leadership at the school. In accordance with the Parent’s concern about functional grouping and the types of . could take, Mr. that students get scheduled in accordance with the mandates of their IEPS and since is mandated for all ICT classes, he would be precluded from taking AP courses since they do not fit into the ICT framework. When asked about the A.P. Calculus and A.P. Physics classes wished to take, he was advised that this had never come up before because they didn’t have students that requested this type of service. Tr. 103. It should be noted that the Parent’s concern regarding the school’s rating is not a proper inquiry for this hearing.

For all of the foregoing reasons, I find that the District did not provide FAPE to . for the 2013-2014 school year and did not meet its burden with respect to it. Prong 2-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement Program. In order to meet that burden, the Parent must show that offered an educational program designed to meet s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parent has met his burden in showing was an appropriate placement is a private school that has both general education students and special education students and has a general education program, . The Achieve Program is a mix between mainstream regular education students and students with Program is a inclusive program. Tr. 111.The classes are not a set size and class groupings are based upon what the student’s skill needs are and what their needs are in terms of class size. The students in the program either have an IEP or have some learning issues that need to be addressed; however, they are integrated into the mainstream classes with special education supports, curriculum, workload modifications and accommodations. Services within the classroom are provided through collaboration between mainstream and special education teachers and the teachers are trained utilizing differential instruction at all levels. Tr. 113. They also have individual or small group sessions outside of the classroom depending on their needs. Tr. 114. Teachers use techniques such as pre-teaching, previewing material, reteaching, specific remediation, as well as extra time on tests, testing in separate locations, meeting with students outside the classroom etc. Tr. 114. There are team meetings with the teachers in the to discuss the progress of the student and how best to accommodate them in the classroom. Each student also has a mentor who is a trained teacher that works with that student. Tr. 114.

There is evidence from and the Parent that the is special education needs and that he is making academic progress. There are specific strategies and management needs they are using which have proven effective in his classes. Tr. 116; Tr. 124-125; Tr. 121-

143. Mr. provided information concerning classes and it is clear that they are addressing his needs and he is making progress academically which is evidenced by his grades on regents as well as teacher based assessements and tests, his skills in group work, his assignments, etc. In addition, Mr. testified that there has been improvement in his ability to complete assignments and his organizational skills. The father testified that the was important of his ability to grasp information and take challenging classes with in place. Tr. 167. He also indicated that he has seen emotional growth in his son this year. Based on the foregoing, I find that Program is appropriate and unique special education needs and provides her with academic benefit.

Therefore, the Parents met their burden in proving the appropriateness for the 2013-14 school year Prong 3-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parent participated in the January 30th CSE meeting. The Parent contacted the District after receiving the Final Notice of Recommendation (D-2) but were unable to visit the proposed school since it was closed for the summer. Accordingly, the Parents prepared a letter to the District dated August 22, 2013 notifying them of their disagreement with the program and advising them that they would be enrolling and would be seeking tuition reimbursement from the District until they visit the program, and if they believe the placement continues to be inappropriate after that time, they will continue to B. The Parent then visited the placement and sent a letter to the District on October 10th, 2013 rejecting the program and setting forth his objections and requesting tuition reimbursement for his unilateral C.

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District did not provide FAPE for the 2013-14 school year (Prong 1); that the Parent has met his burden in proving year (Prong 2); and the equities weigh in favor of the Parent (Prong 3).

ORDER

Based upon the foregoing, it is hereby

ORDERED, that : The District shall reimburse the Parents in the amount of Thirty-One Thousand Eight Hundred Fifty ($31,850.00) Dollars for tuition paid to the for the 2013-14 school year upon proof of payment and proof of for said year. Dated: June 13, 2014

Elise Kestenbaum mv

ELISE KESTENBAUM, ESQ.

Impartial Hearing Officer EK;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

EXHIBIT A

No	Date Document Pages
A	12/7/2011 Impartial Hearing Decision 15
B	8/22/2013 Parent’s Letter to the CSE 4
C	10/10/2013 Parent’s Letter to the CSE 3
D	12/19/2013 Impartial Hearing Request 2
E	5/15/2013 Bay Ridge Preparatory School Enrollment Contract 2
F	2/21/2014 School Affidavit 1
G	2/21/2014 School Attendance Record 1

H. VOID

I. undated FACTS Tuition Management Payment History 2

J. undated School Class Schedule 1

K. undated NYC Department of Education

L. misc. dates Proof of Payment 9

M. 6/26/2012 Enrollment Contract and Program Description 4 District’s Exhibits No. Date Document Pages

1. 1/30/14 IEP 11

2. 7/24/13 FNR 1

3. 1/29/13 Student Progress Report 1

4. 1/23/13 Counseling Report 1

5. 5/19/11 Evaluation 6 IHO Exhibits No. Date Document Pages I 4/6/14 Order on Pendency 5

II. 5/1/14 Interim Order on Pendency 6

III. misc. dates Compliance Decisions 4

11 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. ( IHO-III).