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: January 16, 2014

March 26, 2014

September 16, 2014

October 1, 2014

Actual Record Closed Date: January 1, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014

Advocate — Parents

Mother — Parents

DOE Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2014

Advocate — Parents

Mother — Parents

DOE Designee — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2014

Advocate — Parents

Mother — Parents

DOE Designee — DOE

CSE # Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 1, 2014

Advocate — Parents

Mother — Parents

DOE Designee — DOE

Principal — Parents

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # The hearing was conducted at the impartial hearing office, New York City Department of Education at . The Department of Education, hereinafter referred to as the “DOE” was represented by their advocates and ; the parent was represented by their advocates and .

BACKGROUND

is an year old student with a disability; she was classified as “ ”. (also referred to as the “parent”) brought this hearing challenging the DOE’s failure to provide with a free appropriate public education (“FAPE”) during the 2012-2013 school year. The Parents are seeking an order to compel the DOE to pay for transportation and tuition at the School and related services.

THE PARENT’S POSITION

Despite the special needs of , the DOE has failed to offer a FAPE for the 2012-2013 school year. The School has provided this student with appropriate support for the 2012-2013 school year, and that she has made , , and progress. Finally, the parent maintained that she cooperated in good faith with the CSE.

THE DEPARTMENT’S POSITION

The DOE maintained that it offered a FAPE and recommended an appropriate placement with services. Additionally, the Parent has failed to establish that the educational program they selected was appropriate and equitable considerations do not favor the parent.

THE PARENT’S CASE

’s mother ( ) testified after being duly sworn that her daughter first displayed difficulties at old; she noticed that “ , ”. She was evaluated for services at the age of and received services at . When her daughter turned , the DOE created an IEP; they recommended a program at a public school in . attended public school for full academic year; the witness stated that her daughter didn't do very well and .

testified that in April 2012, was in grade; her was progressing, but not on the level that she had expected her to be. She described her struggles as follows: ,“ .

The Parent attended an IEP meeting on April 24th, 2012; a teacher from the School participated in the meeting. She didn’t recall if there was discussion about receiving ; she recalled a discussion about a recommendation of the class in a public school and she was not in agreement.

The DOE mailed a copy of the IEP and a public school placement; when school started, went to the visit the public school, she was informed that the staff was unable to show her the class and that she needed to make an appointment. stated that she called several times and received no response. She decided that her daughter would attend program after the school year began. She signed a contract with and stated that the tuition for the 2012-2013 school year in excess . The witness was in the process ; she believed that he made several payments, “a little bit over

”. She was informed that if she was not successful at an impartial hearing that expected payment for the balance of tuition.

The Parent stated that during the 2012-2013 school year make progress at ; she progressed with , , and . At the end of the school year, there was another IEP meeting; a recommendation was made for a placement in a public school and her daughter attended in a class. testified that as succeed at School and she felt that her daughter was ready to be in a class.

Upon cross examination, the witness stated that at the CSE meeting, she and ’s father, the psychologist and two teachers agreed that was not ready for a setting in the 2012-2013 school year. The Parent conceded that has made progress at , “not as much as I would like her to be, but I would say a little bit of progress”. The Parent stated that has difficulties with .“

”. , was and her was class.

The witness was aware that could hold her responsible for the balance of tuition. She stated that she would attempt to pay by utilizing her income and child support; the outstanding balance was approximately over .

The next witness to testify was Ms. who stated that she has a Masters Degree in special education from , maintains a license and is certified New York in special education. She was a resource room coordinator and a , , and grade teacher for and at the in . Seven years ago she accepted a position as Principal at the School; her duties and responsibilities include running the school, making sure that the teachers are as prepared to invoke lessons to the students. Additionally, she is in contact with the parents and coordinates all the activities of the school.

For the 2012-2013 school year, the witness stated that the teachers were certified and licensed in New York State in special education. There were classes which are located within the school, so that there is opportunities on a daily basis; including , , with the school, and when possible with the programs,

The average class size and staffing ratio for the program consists of students per class with a teacher, an assistant and a if necessary. The school is under an umbrella organization from the ; there is a professional development conference for a full day each November.

The witness was familiar with as she attended the school for the three years; for the 2012-2013 school she was in the class. ’s teachers were Mrs. (phonetic) and Miss ; both have their Masters in special education from . There were students at beginning of the 2012-2013 school year. She described the child’s skills as follows: ; however, she is weak in . At the beginning of the school year, she needed to . In , regarding she needed “ , and in order to get it”.

The witness testified that if was in a full class, “she would , … and unless she had she wasn't able . Regarding , at the beginning of the 2012-2013 school year, was “ ”. In the 2012-2013, received instruction in the program/academic skills, including , and .

The witness stated that lessons plans are sent in to the office on a weekly basis and discussed with the teachers; there are weekly meetings with the teachers. Ms. frequently visited ’s classroom and performed observations of . She noted that was able to , however, when it came ,“ ”. Additionally, “ , ,“

”. She could not . “ .

The witness was directed to the and stated that the skills are taught via a program called ; it comes with ; ; , and period. is taught through the use . Additionally, students are ; , wherein is , is . Regarding related services, is provided with services at school on a basis; she consulted with the during the school year as she is on staff.

begins with and . and are utilized to make sure that the students could .

For , the witness stated “ ” is utilized and is approach to . program is , and . In ; , ,

, , , and . There is a , a weekly magazine that addresses and ; are completed by the students after the lesson. and the were and was ; she worked on and was able to . She was instructed and : , . She was instructed in which was an area of weakness for her.

Regarding class, the witness stated that there was a student intern named who was supervised by the school psychologist, Dr.

(phonetic). Issues in the class were discussed as they arose such as . was taught by a certified instructor; she worked on ,

, , , , and . was provided by a ; there was an for the 2012-2013 school year and Ms.

testified that she consulted with her.

The witness stated that she had the opportunity during the 2012-2013 school year to review the IEP that was created for . She agreed that some of the academic goals that were created were appropriate and that “some of them were way too high for her to achieve”. For example on page four, the top goal was that within one year, will skills by level; however there was no goal for her. Additionally, the goal was ; . Regarding the second goal, that within one year, will ; . The goal was “ . Also, the goal , with an annual goal for was “ ”.

The witness opined that is a child who was not ready for a class in 2012-2013; she required ; it was highly improbable that she would The witness stated that the child has , issues, issues, and . The witness opined that made progress in the program during the 20122013 school year and that the goals were measured. There were parent-teacher conferences, wherein goals were presented to the parents. The school created its own goal, a goal, and goals. The teacher creates the goals, which were reviewed by the witness and by the overall director.

Regarding progress, ’s was better than it was at the beginning of the year. Her and also improved; the school was pleased with her progress.

Upon on further questioning, Ms. stated that if

.“

.

In conclusion the witness opined that the program was an appropriate special education program for for the 2012-2013 school year. She had appropriate peers in her class and the staff worked on her strengths and her deficit areas. She was a student and progressed in her studies.

Upon cross examination, the witness conceded that she does not have supervisory certification or administrative education. She reviews the curriculum and lesson plans on a weekly basis; additionally, there are weekly grade meetings with the staff

In describing her duties she stated that she visits the classrooms in the morning and does curriculum development in the afternoon. Additionally, the school has a psychologist, a , and on staff. Ms. stated that she takes calls from parents and other people who may need her assistance. She interacts with the school ( school) as has opportunities.

The witness stated that he school is a private school; her direct Administrator was Dr. , the school psychologist who is also employed by . She reiterated that there were students enrolled in the program and that the class sizes were based on the student enrollment. When asked if there is a protocol or a cut off for the program regarding class sizes, she stated that it all depends on the make up of the class. 's class was a ratio, however if there were students, it would be a ratio for that grade.

The witness observed the classroom on a weekly basis and visited on a daily basis. Formal observations were completed monthly for approximately minutes. She stated that she knew very well as a student and saw her on a daily basis; she knew exactly what her weaknesses and her strengths were.

The witness was referred to Parents' Exhibit C, the goal on page 3 and indicated that the IEP provides for , , , ,

, , , , . Additionally, the witness opined that “they're not necessarily just special education techniques that would be specific to and were appropriate”.

The witness stated that attended the IEP meeting as the representative from . It was her impression that the school progress reports were provided to the CSE before the IEP meeting. She was referred to page four of the IEP goals, wherein it was stated that within one year, will demonstrate and , as well as and that within one year, will demonstrate and . In her opinion this was not a skill, but was more of goal.

In order to address issues, was and the staff worked on her

.

. was the curriculum utilized at and is a State approved curriculum. Ms. stated that it follows the core standards; the staff adheres to a approach, an base type of approach. “We use

, , , ”.

The witness stated that the IEP mandated periods of , and that the school generally provides the services for periods a week; additionally, skills are provided times per week on a basis. The , , and staff are full time employees at . However for the school year at issue, the witness states that did not have on staff and that the parent was notified; she believed that received the services privately.

Mrs. utilized and state approved texts; she taught as a ; she was not certified in ESL or bilingual. The teacher for computers and technology is a licensed special ed teacher. The witness stated that related service providers meet with staff; it was up to the discretion of the providers and the teachers to arrange for the meetings. The school set goals for each child in November; there was an informal assessment done on the student, and based upon the assessment, the goals would be set up. The informal assessment consisted of a assessment, , , , , and assessments, and . The teachers have a number of informal assessments to use, and they decide which would be appropriate for class or the student. The witness did not recall if the goals were shared with the CSE when the teacher participated.

In order to determine gains at the end of the year, an assessment was done. improved in her skills; and skills. Although her was weak it had improved. She began , which she did not do at the beginning of the year, and she seemed to .

The witness was directed to exhibit Document D-1, ‘s class schedule, and confirmed that there was day schedule on and that was part of a school which mandated day schedule. attended in the 2012-2013 school year but did not attend the following year as she went to a public school.

Upon redirect examination, the witness stated that for the 2012-2013 school year, did not have any academic classes. The staff felt that would benefit more from having the instruction in class based upon her needs. She needed , , , and on a basis. The in the classroom was working for her, and the staff felt that it would be more beneficial for her not to have that academic class.

THE DEPARTMENT’S CASE

Mr. , after being duly sworn stated that he has a New York State special education certification in education from to grade and from through grade. Additionally, he maintains a state advanced certificate as a supervisor, administrator, and as a school district leader. He is employed at the DOE and currently works at CSE as teacher assigned to an IEP team.

The witness stated that his current duties and responsibilities include conducting IEP meetings. “We contact the schools to get teacher progress reports and any other related service progress reports that the school services the child with, or we contact the independent service providers, or we contact agencies to get the related service progress reports”.

The witness testified that he was part of an IEP meeting for and served as the general education teacher/district representative. The other attendees were, was the special education teacher ( ); the parent participated by telephone; the school psychologist and the advocate. The review was a triennial review; either a psychoeducational evaluation or a classroom observation is required. The team had all of the required documents necessary for a triennial review, including a school progress report and a psychoeducational evaluation; all the documents were current within the three-year mandate.

The witness was directed to DOE Exhibit 3, the IEP minutes and stated that he wrote them; they reflected that reviewed the psychoeducational evaluation and that ’s level was on the level in and ; she had difficulty in , with new skills in and and skills.

Parent concerns and input from school input were taken into consideration at the meeting. The classroom teacher was on the telephone during the entire conference. As per the IEP, the child’s was on a level; ( ) was on the level; was on a level and were on a level.

Regarding the IEP goals were that will have in skills. It was noted that , .“

."

The team didn’t believe that there was the need to create a for ; in most of their special education classes, have special education classes with a system; the teacher felt that was responding well to that system, and there was no need for an system or a

With reference to related services, the witness was directed to page 7 on the IEP and stated that the mandate for the services were the same as the current mandates that was receiving. The team received a progress, , and progress reports, from , and “there was no change in the mandates”. She was recommended to continue minutes, individual service, minutes , minutes, service, minutes, individual service and a class, . There were no concerns and or requests made at the meeting for related services; the team recommended a program due to ’s and issues. The team felt that a class, , would provide additional support necessary in order to be successful in school and to gain educational benefit.

Mr. did not recall if there was disagreement with the recommendation. Regarding the goals, the team utilized the school progress reports, the psychoeducational evaluation, and the “direct recitation of ‘s progress over the phone by her classroom teacher”. The goals were discussed, including ’s strengths and weaknesses; the team developed goals based upon those strengths and weaknesses and transcribed into the IEP after the meeting.

Mr. stated that the first goal was and that this could be used as a goal, or utilized within the classroom setting . Furthermore, "

”. The next goal was a goal, which can be used as an goal and . The next goal was a goal, "

." The witness testified that it could also be a skill and . The next goal was a goal, . There was a skill goal is and . There was a goal , as well as . Additionally, there was an goal which could be used as a goal. An additional goal was ; the classroom teacher could also , also, within the classroom. There was a goal to ; goal . The last goal was a goal. All of the goals would be to be measured by accuracy through teacher-made materials, classroom activities and teacher observations. The team determined accuracy for was appropriate as they were grade to grade goals, and she was functioning level. There was no disagreement regarding the goals at the meeting; the parent had an opportunity for input and discussion regarding the goals.

Regarding testing modifications the team recommended of no more than students; . There was no request for additional test modifications made by the parent or school.

Ms. , the psychologist was at the meeting; the psychoeducational evaluation was discussed and reviewed in its entirety. The witness did not recall if there were questions or concerns on behalf of the parent or the school regarding the evaluation; however, Ms. ' common practice “is that, after she reviews the entire psychological profile, she always asks the questions to determine if the parent understands or has any questions”.

The Parent’s concerns and input was documented; she stated that had and . The parent reported that and .

There were other programs considered by the team; an in a class in a school. This was rejected “as the class size would have been ”. Additionally, a class, with a ratio was rejected as required the additional support of within the classroom, therefore a recommendation of a class placement was made and discussed with the parent.

Lastly, the witness testified that the IEP generated by the team represented ’s learning needs and offered the child a FAPE.

Upon cross examination, the witness was directed to Page 1 of the IEP, wherein it indicated that “ ”; he believed that this came from the psychological evaluation/observation. Mr. did not know whether the testing was modified in any way because of ; he didn’t believe that a classroom observation was done or necessary as part of this evaluation.

The witness was directed to page 5–2 of the psychological evaluation, wherein it was noted that and …." " ; he didn’t recall if this was discussed at the meeting. The witness stated that at the IEP meeting, the team inquired of the classroom teacher as to the conditions within the classroom and that “she reported about that”.

Mr. stated that at ’s current school, there is a system; , wherein if a child gains per week for and they can for , , , etc. and that according to the classroom teacher was making progress. Mr. stated that most special education classes within the public school system do use systems. When asked if the team knew for a fact that the class that was being recommended would incorporate system, he had no idea as “we have nothing to do with placement”. The witness conceded that it was an oversight not to incorporate this into the IEP. There were no discussions in regarding adding to the IEP.

The witness was directed to the CSE Minutes Exhibit 3–1, and a notation at the bottom of the first page that, " ”, he didn’'t recall what that meant. Furthermore when asked if a student was ; he stated “ ”, however we were told by the classroom teacher she was by system. Regarding, ’s , the witness stated that there was no discussion about adding any testing modifications that would assist her as it was not brought up by the classroom teacher, by the parents or by the advocate.

The witness stated that it is standard practice at to send all progress reports. There was no input from the in the creation of goals, they were created from the report; if the team didn’t have the report he stated that “we usually recycle the goals from the previous IEP”. He stated that this was the same procedure for the and and that usually “provides ,

, and , and are supposed to be given through RSAs to the parents”; he didn’t recall whether the parent was taking the child to .

The IEP team didn’t determine whether or not any assessments needed to be done to determine whether or not the student still required or whether or not new goals needed to be created. However, none was requested by the parent or the advocate. Furthermore, it is usually standard practice of the DOE that once an evaluation is done, “we rely on progress reports, and if the provider feels that they need a new assessment, they would request one, or they would ask permission to do the evaluation. Mr. did not recall if the team reviewed the goals in order to determine if had mastered the goals. The witness believed that was in a class with anywhere from to students, with teacher and teacher aid in the room. He recalled that ’s teacher opined that that she ( ) required and . He was directed to the IEP needs, page 2-14, wherein it stated that " ,

, , , , , , and ,

, and ." He didn’t recall if during the discussion of the recommendation, if ’s teacher had an opinion if could function in such a class.

On redirect, Mr. was referred to the psychoeducational report, the DOE Exhibit 5, page 4; the section wherein it is stated that according to the Parent, ’s was and . Additionally, there were two school progress reports, wherein it is noted that , and ." Mr.

noted that upon review of the reports, there were no concerns for ; she was for extracurricular activities and regarding...academic content areas uses programs. A system is used in order to . There were no issues discussed at the meeting regarding her opportunities and difficulty within that area; the report says, is that there is no .

Mr stated that to the best of his knowledge, there was no indication the team would have been inclined to create a behavioral intervention plan as it was not necessary.

Upon re cross examination, the witness stated the system is used , while . He didn’t recall what . He recalled that was discussed during the meeting, but the classroom teacher said that , and the was in the classroom, and the being used and that was responding to the . Lastly, the witness testified that the is programmatic to the classroom attended and was not specifically used just for her.

The next witness to testify was Dr. who received a BS from and then attended a graduate program for school psychology; she attended to obtain her doctorate in psychology. She is a licensed school psychologist and has a certification in teaching. She works at as a school psychologist and has been so employed for four years.

Dr, stated that currently attends a class program at in Mr. 's class. It was a grade class in the 2013-2014 year; a class with a ratio. She described the functional groupings of the class as consisting of , ; they utilized program. There was there instruction in the classroom. The class followed the core curriculum, however, instruction is differentiated to the children’s abilities.

The witness stated that the school reassured progress during the school year via a Teachers College assessment. The following related services were available: ,

, , and services. The witness was directed to the April 24, 2012 IEP and to the present levels of performance on page one. She believed that would she have been appropriate for a class last year for the 2012/2013 school year.

The witness stated that she believed that the related service mandates for , , times and times were appropriate and that the class recommendation would’ve been available.

The witness was referred to the testing modifications of the IEP and stated that the testing modifications of , , could have been implemented. Regarding the needs for this student as per page two of the IEP;

, , , , , , , , could’ve been provided in classroom last year. Additionally, the goals as set forth in the IEP also could’ve been addressed within the program during the last school year for this student. It was the witness’s opinion that the goals seemed appropriate for the classroom last year.

Lastly, based on her review of the IEP, and knowing the class last year and the program, the IEP would’ve provided with a FAPE and would have met her educational needs last year.

Upon cross examination, the witness stated that she observed children in the class but didn’t work with them. Her evaluation of the progress is based upon on teacher reports, observation of children who are up for re-evaluations or triennials or initial cases. She was unable to recall how many students were in the recommended class except that it was under . The grade level assigned to the class was a grade class last year and all of the children in this class receive the related services as mandated on their IEP.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to(20 U.S.C.section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v,'Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd' ; - FR Section 200-347. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5]a; CFR section 300.13 [a] [2][i], .200. 1.116 [a][2]; 8 NYCRR 200.6 [a][IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

The legal standard applicable to request for payment for educational services suchas in this case is well established. A Department of Education may be required to pay foreducational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent'sclaims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence ,County Sch. Dist-Foru v. Carter, 510U.S;7 [1993]; Cerra v. Pawling Center. School Dist. 427::F. 3d 186, 192 ,[2d Cir. 2005] "reimbursement merely requires a district to;belatedly pay expenses; that it should have paid all along and would have borne in the first-instance had developed a proper IEP';. : ;Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were "proper under the act", (IDEA)(Buriingto~47-l U.S. at 370) i.e. that the private school-offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent's private placement is that it is “appropriate” not that it is-perfect (M.S. v Bd. Of Educ. 231

F. 3d 96, lQ5 [2d Cir. 2000] cert. denied 532 U.S. 9422001. The private school need not employ certified special education teachers, nor have its own IEP for the student. The final criterion for an award of tuition reimbursement is that the petitioners' claim .is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F..Supp. 2d 402; 4]6 [S.D.N.Y. 2005] affd2006 W]. 23341.2d cir, 2096); Frank G.-.459 F. 3d at 36364). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. c: v. Voluntown Bd. Of Edu. 226 F. 3d 60,68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required). Such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions and like matters (Wolfe v Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept, of Educ. 736 F.-2ds at773, 801.-02[1st Cir...1984] aff';l471U.S 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available’ for evaluation by the district or upon fining of unreasonableness with respect other-action taken by the parents 20 D.S.C. section 1412 (a)(lO)(C)(iii) Warren G. v. Cumberland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such 'notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a) (C) (iv) (I) (cc) (II) (bb).

Parents maintain that the DOE failed to offer a FAPE that was "reasonably calculated to meaningfully address ’s unique and individual needs, that the unilateral placement of at amply conformed to the second circuit’s “reasonably calculated” test for Prong II and that there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III). Accordingly the Parents maintain that for the 2012-2013 they met the recognized test for Burlington/Carter reimbursement relief.

A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised of full evaluations an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer, 34 C.F.R. section 300.110. Regarding Prong I The DOE presented two witnesses, to wit, and . Mr. was part of an IEP meeting for and served as the general education teacher/district representative. The team had all of the required documents necessary for a triennial review, including a school progress report and a psychoeducational evaluation; all the documents were current within the three-year mandate. He stated that the Parent concerns and input from school input were taken into consideration at the meeting; that the classroom teacher from school participated by phone. Furthermore, the team didn’t believe that there was the need to create an for as have special education classes with a system; the teacher felt that was responding well to that system, and there was no need for an system or

With regard to related services, the witness stated that the mandate for the services were the same mandates that was receiving. The team received a progress, , and progress reports, from , and “there was no change in the mandates”. There were no concerns and or requests made at the meeting for related services; the team recommended a program due to ’s and issues. The team felt that a class, , would provide additional support necessary in order to be successful in school and to gain educational benefit.

The team utilized school progress reports, psychoeducational evaluation, and the “direct recitation of 's progress over the phone by her classroom teacher”. The goals were discussed, including ’s strengths and weaknesses; the team developed goals based upon those strengths and weaknesses and transcribed into the IEP after the IEP meeting. All of the goals would be to be measured by accuracy through teachermade materials, classroom activities and teacher observations. The team determined the accuracy for as they were grade to goals, and she was functioning level. There was no disagreement regarding the goals at the meeting. Regarding testing modifications the team recommended of no more than students; . There was no request for additional test modifications made by the parent or school.

There were other programs considered by the team; an in a class in a school. This was rejected “as the class size would have been ”. Additionally, a class, with a ratio was rejected as required the additional support of within the classroom, therefore a recommendation of a class placement was made and discussed with the parent. Lastly, the witness testified that the IEP generated by the team represented ’s learning needs and offered the child a FAPE.

Dr. is a licensed school psychologist, certified in school psychology and also had a certification in teaching; she stated that attends a program at in Mr. 's class. It was a grade class in the 2012/2013 year; with a ratio. She described the functional groupings of the class as consisting of , ; they utilized a program. The class followed the core curriculum; however, instruction is differentiated to the children’s abilities.

The witness was directed to the April 24, 2012 IEP and to the present levels of performance on page one and believed that would she have been appropriate for your class last year for the 2012/2013 school year and that the class would’ve been available. Additionally, she testified that the goals as set forth in the IEP also could’ve been addressed within the program during the last school year for this student. It was her opinion that the goals seemed appropriate for the classroom last year.

The Parent testified that in April 2012, was in grade; her was progressing, but not on the level that “I had expected her to be, but she was progressing and ”. She described her struggles as follows: ,“ .

The Parent testified that there was a discussion about a recommendation of the class in a public school and that she was not in agreement with the recommendation. She believed that at that time, her daughter wasn't ready to be in a class; in ,

, , and , if a question, was presented she “ ”.

The DOE mailed an IEP with an offer of public school placement. When school began, she went to the visit the public school and was informed that the staff was unable to show her the class and that she needed to make an appointment; she called several times and received no response. She signed a contract with on 10/1/12 and stated that the tuition for the 2012/13 school year was over . The witness was in the process of and believed that he made several payments, “a little bit over ”; she spoke to the personnel at and understood that if she was not successful at an impartial hearing that the school expected payment of the remainder of the balance. Lastly, the Parent stated that during the 2012/13 school year make progress at ; she slowly progressed with , and . Ms. stated that the average class size and staffing ratio for the program consists of students per class with a teacher and an assistant, with a if necessary. She knew for three years; for the 2012-2013 school she was in the class. There were students at beginning of the 2012-2013 school year. was described as follows: ; however, she is weak in . At the beginning of the school year, she needed . In , regarding she needed “ , and in order to get it”. The witness testified that if was , she would , … and unless she had that she wasn't able to . In the 2012-2013 school year, received instruction in the program/academic skills, including , and .

The witness was directed to the IEP and agreed that some of the academic goals that were created were appropriate and that “some of them were way too high for her to achieve”. The following were goals were not appropriate: on page four, “that within one year, will ”; however there is no goal for her. Additionally, the goal was . Regarding the second goal, that within one year, will level, she stated that . The goal down was stated to be “ . Also, the goal , with an annual goal for was “ ”.

The witness opined that was not ready for a class; she requires

; it is highly improbable that she would .The witness stated that the child has , issues, issues, and . She had level, so with all those issues in a class of , it would be highly impossible for her to achieve.

A FAPE is offered to a student when the Board of Education complies with the procedural requirements set forth in the IDEA, and the IEP developed by the CSE, through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Although school districts are not required to maximize the potential of students with disabilities, 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. The Parent asserts that the IEP drafted for her daughter is not reasonably calculated to provide meaningful benefit.

I agree with the Parent and find the testimony of Ms. was convincing. She agreed that some of the academic goals that were created were appropriate, however “some of them were way too high for her to achieve”. The following were goals were stated not to be appropriate: on page four, that within one year, will improve her skills by level; however there was no goal for her. Additionally, the goal was stated to be “way too hard for her”. As per the IEP, the child’s was on a level; ( ) was on the level; was on a grade level and were on a grade level. The DOE has not established that a child with such a deficiency would be able to attain meaningful educational progress with the goals that were created. Regarding Prong II

It is the Department’s position that is not an appropriate placement. I find that made progress in the program during the 2012-2013 school year. Progress was measured; there were parent-teacher conferences, wherein goals were presented to the parents. The school created its own goal, a goal, and goals. The teacher creates the goals, which were reviewed by the witness and by the overall director.

Regarding progress, ’s was better than it was at the beginning of the year. Her and also improved; the school was pleased with her progress.

I find that had an appropriate special education program for for the 2012-2013 school year. She had appropriate peers in her class and the staff worked on her strengths and her deficit areas.

The witness stated that the IEP mandated periods of , the school provided the services periods a week; additionally, skills are provided times per week.

was taught as a by Mrs. ; she used . The teacher for the computers and technology is a licensed special ed teacher.

In order to determine gains at the end of the year, as stated an assessment was done. improved in skills, , and skills. Although her was weak it had improved. She began to and at beginning of the year, she seemed to , which she did not do at the beginning of the year, and she seemed to be .

’s class schedule confirmed that there was only day schedule on . The Parent was clear and the record established that during the 2012-2013school year, the student attended the special education program. This program consisted of a class, in a school, which was a environment that offered the student class size and to address her academic deficits. The Parents have established that the implemented educational program was appropriate and that the child is making meaningful educational progress as stated more particularly above.

I find that was an appropriate setting for and provided her with a curriculum specifically designed to meet her needs, and as a result, she made meaningful educational progress. The parents have met their burden of establishing the appropriateness of the placement under Prong II of the Burlington/Carter test. Regarding Prong III, Equitable considerations for the fact finder to consider in determining whether reimbursement and-related relief is appropriate "include the parties" compliance or non compliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability Appeal NO.05: 9~7 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp. 2d 530,533 (N.DE.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773, 801-02 (1st Ci9r. 1984) aff'd 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See supra, Appeal No. 05-087 (referencing Application of the-Board of Edu. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-Q49).

In this case, the equities overwhelmingly favor the parent. The evidence and testimony shows that the parent was always cooperative with the CSE and never inhibited the DOE's ability to provide . with a free, appropriate public education. In fact, the parent facilitated the process by providing specific information to the DOE about ’s strengths, weaknesses and the support he required in order to learn. The parent attended and participated in the IEP meeting, and at that time, expressed her concern with the team's decision. She also provided the team with updated evaluations and asked that they be considered when developing ’'s IEP.

However, as I find that a portion of the school day was dedicated to instruction and that the school only provided services for of the day on , I am reducing the amount of tuition to be paid by . The Parent has established proof of payment in the sum of . The total tuition was less which is ; thereby the amount due to is Dated: January 6, 2015

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date Pages

A. Impartial Hearing request 6/28/143 4

B. Program Description undated 1

C. IEP 4/24/12 11

D. Class Schedule 2012-13 1

E. Academic Progress Report June 2013 4

F. Enrollment Contract 10/1/12 1

G. Notarized Affidavit 11/4/13 1

H. ’s US Tax Return 2012 2

I. ’s US Tax Return 2012 2

J. Proof of Payment 2012-2013 7

K. Attendance Report 2012-2013 1

DEPARTMENT’S EVIDENCE

1. IEP 4/24/12 14

2. FNR 7/10/12 1

3. CSE Minutes 4/24/12 2

4. School Progress Report 3/26/12 3

5. Psycho/Educational Report 3/1/12 5