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: November 13, 2013

January 14, 2014

Actual Record Closed Date: March 24, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2013

Attorney — Student

Parents

Attorney — DOE

School Psychologist — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2014

Attorney — Student

Parents

Associate Head of School (via Telephone) — Student

Classroom Teacher (via Telephone) — Student

Attorney — DOE

Attorney — DOE

INTRODUCTION

This hearing was requested on July 19, 2013 by , Esq. of the Law Offices of , LLP for the Parent on behalf student The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act, §1415 (f) seeking tuition reimbursement for the failure of the New York City Department of Education (DOE) to provide the student with a free, appropriate, public education (FAPE) for the 2012 – 2013 school year. This Impartial Hearing Officer was appointed on July 30, 2013 by the New York City Department of Education Impartial Hearing Office. A hearing was held on November 13, 2013 and continued on January 14, 2014. Joint extensions were granted due to witness availability without prejudice to the student. By means of the appeal process, this decision re-evaluates

Parents Due Process Complaint.

BACKGROUND

, at the time of placement in issue, was a old male student, attending

(“ ”). According to testimony by Ms. , had been receiving special education services since he was in . (Tr. 158)

Sine that time, has received education in a classroom setting. Ms. sent the DOE a notice of unilateral placement into in 2012. (Exhibit B) The record reflects a history of placement in public school programs in the beginning of his education, following extensive enrollment in . (Exhibits 8-11) According to an IEP dated August 15, 2011, the DOE deferred recommendation, allowing Ms. to enroll into . (Exhibit 5) ’s education report provided evidence that had . (Exhibit 8) The CSE review team convened on March 20, 2012, at which time the recommendation was for to be placed in a classroom. (Exhibit 3) Both the DOE and the Parent provided the Midyear report from at the IEP meeting. (Exhibits F, 10)

LEGAL STANDARD

The IDEA mandates that students with disabilities be provided a FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student with a disability and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S.Ct. 3034, 3037-3038 (1982).

The law dictates that the services required to meet the needs of a student with a disability be set forth annually in a written Individual Educational Plan (IEP) which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initial date and duration of services, and objective criteria for determining whether goals and objectives are being achieved.

Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998). Where a parents seeks reimbursement for a private educational placement predicated upon a District’s denial of FAPE, case law as modified by amendments to the IDEA at §1412

(a)(10)(c) confers the granting of such relief if the placement selected by the parent is appropriate and equitable considerations support the parent’s claim. Sch. Comm. Of

Burlington v. Dep’t of Educ. Of Mass, 471 U.S. 359 [1995]; Florence County Sch. Dist.

Four v. Carter, 510 U.S. 7 [1993]. The parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510

U.S. at 14

DOE’S POSITION

The DOE contends that they did offer a FAPE as detailed in both his 2012 IEP, and the final notice of recommendation dated August 24, 2012. As such, the DOE, by counsel, maintains that the allegations by the parent are without merit and reimbursement is not necessary.

The DOE proffers that New York State law places the burden of production and persuasion upon the Department during an impartial hearing to prove it offered FAPE, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

See, Education Law §4404[1][c]. The DOE cites to Gagliardo v. Arlington Cent, Sch.

Dist., 489 F. 3d 105, 111-115 (2d Cir. N.Y. 2007) for the proposition that a private school must offer an educational program which meets the student’s special education needs and when determining whether the parent’s unilateral placement is appropriate, the issue turns on whether that placement is reasonably calculated to enable the child to receive educational benefits.

The DOE contends there was no procedural deprivation of FAPE, as they complied with the procedural requirements of the IDEA. Additionally, the DOE believes there was no substantive deprivations of FAPE because the goals set forth for were sufficient, meaningful, measurable, designed to convey a meaningful educational benefit, and in the least restrictive environment. The DOE also believes that the evaluations before the team were sufficient and justify the ultimate programmatic recommendation, and the parent had an opportunity to participate in the decision making process regarding the provision of a FAPE. (Exhibit BB)

Furthermore, the DOE contends that the parent’s unilateral placement is inappropriate. Citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir.

2007), the DOE offers that they considered the totality of the circumstances in determining the parent’s unilateral placement into (Exhibit BB)

Reviewing New York Law, the DOE states that the parent failed to meet their burden to prove that the DOE failed to offer a placement where he would receive an educational benefit. Citing App. NYC Dept. of Educ. Appeal No. 11-040 (SRO). In addition, the allegation that the DOE teacher does not meet the criteria for a is incorrect. Ms. is a certified teacher who is capable of providing the appropriate learning environment for (Exhibit BB)

PARENT’S POSITION

The Parent contends that they satisfied the three-prong test established by the Supreme Court in Burlington and Carter. Since it is the DOE who has the burden to demonstrate the appropriateness of the educational program they offered , the DOE must show they offered a FAPE to , which also provided a meaningful educational benefit. As it relates to , the DOE failed to meet its burden of showing it offered a FAPE. This is evident by the testimony of Ms. , the documentary evidence, and lack of additional support.

The Parent posits the CSE was not properly composed. Citing IDEA (20 U.S.C. §

1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]), it was made clear that , the member of the CSE meeting, however had not been a teacher for quite some time. This diminishes Ms. ’s ability to adequately participate in the CSE meeting according to the mandates of the statute. (Exhibit AA)

DOE CASE

’s Testimony

Ms. is a school psychologist who works for the NYC Department of Education (“ ”). (Tr. 9) She has permanent New York State certification as well as a Masters in school psychology. She is employed at CSE in currently as a school psychologist. She has worked for the DOE for over 20 years. Her responsibilities include: assessing and observing students in a non-public school setting. (Tr. 10) She also chairs IEP review meetings, as well as review various documents and liaison with families and their advocates. In March 2012, she worked exclusively on

(“ ”) cases. (Tr. 10)

is a school for special education students. (Tr. 11) There are no students at . The typical class size consists of students, who are into for and . (Tr. 11) Not all the teachers are are certified in special education. (Tr. 11) Ms. participated in the CSE meeting for that took place on March 20, 2012. (Tr. 12) The IEP meeting lasted for about , and since it was an annual review, Ms. was asked to participate in the meeting and ended up chairing the meeting for the CSE. (Re. 13) Other individuals in attendance included , teacher; a parent member named

, ’s mother, , special education teacher at . (Tr. 15-

16) Ms. confirmed that since Ms. was on the phone, she could not see anything written on the smartboard. This was not too much of a disadvantage because they told her what they were as they took notes. According to Ms. , although Ms. was not physically present, she was able to fully participate in the meeting (Tr. 17).

Ms. referred to the IEP, which was admitted into evidence as Exhibit 3. According to the IEP, was performing at a level. He was performing at , and and . According to Ms. , ’s current performance levels were provided Ms. during the IEP meeting. (Tr. 20) Ms. stated that Ms.

endorsed Ms. ’s view of ’s academic performance. (Tr. 20) Regarding his social development, Ms. stated that exhibits at , which was supported by Ms. . (Tr. 21)

Ms. recalled that Ms. stated concerns related to the recommendation made at the end of the meeting (Tr. 22) According to Ms. , ’s programmatic recommendation included a class in a school with his mandated related services of and . (Tr. 22) These services would be similar to the support would receive at (Tr. 23) This recommendation was made based on the midyear school report from , an observation made by Miss , however Ms. could not recall whether Miss

’s observations were communicated to the team during the IEP meeting. (Tr. 23-24)

There was no objection to the evaluations used at the meeting, nor were additional documents requested. (Tr. 25)

With regards to ’s performance in relation to his goals, Ms.

stated that seemed to , but he was able to understand the . (Tr. 26) ’s goals according the IEP involved an (Tr. 27) It was also noted that benefits from the

. (Tr. 27) It was difficult to determine his grade level, but Ms.

contends that with the multiple ways to measure performance, would get the services he needs (Tr. 28) According to Ms. , was entitled to testing accommodations in order to assist him in meeting his goals (Tr. 30)

With regards to related services, there were goals added to the IEP, however there wasn’t a related service provider present at the IEP meeting in March 2012. (Tr. 31)

There was consideration for an class, but Ms. recalled both Ms. and Ms. felt that would be too . They felt that he required . (Tr. 32) Additionally, would have at a school.

This would mean he would have access to peers, other courses such as students. (Tr. 32-33)

This would not be possible at . (Tr. 33) Ms. wanted a made, which was the previous recommendation. Additionally, Ms. was not in agreement with this because it was more restrictive for (Tr. 35) Based on the recommendations and ’s progress, Ms. believed the program and related services were appropriate for and provided him with an educational benefit (Tr. 36)

On cross-examination, Ms. stated that she chaired/participated in approximately 125-150 IEP meetings during the 2012-2013 academic school year. (Tr.

37) She furthered stated that based on the above numbered IEP meetings, she observed students at approximately 80 times during the academic school year. She did not recall however, speaking with prior to ’s IEP meeting. Ms.

elaborated on the ’s IEP goal to mix with students in a school. (Tr. 41) Regarding standardized test review in advance of the March 2012 IEP meeting, Ms. stated the CSE did not review an updated test scores (Tr. 45-46) She stated that for an annual review, there is no requirement for updated test results (Tr. 46)

Regarding her agreement with the August 2011 IEP team recommendation, Ms.

stated she did not agree with their decision to defer ’s case to CBST. (Tr. 52) Ms.

stated that although she did speak with a colleague whom was present at the August 2011 IEP meeting about their reasoning on deferment, she would not state what her colleague told her. (Tr. 55)

Regarding Ms. ’s classroom observation, Ms. stated that although she was not present at the observation, the observer does not normally interview the teacher. (Tr. 58) Also of note is the concern regarding ’s use of an (Tr. 58)

Ms. stated that there is a difference regarding use of the unit at v. use at a public school. At there is use , whereas at a public school, he would only use the testing accommodation. (Tr. 59) Ms.

also stated that the IEP did not specify the exact use of the , and she was not clear on why specification was not made. (Tr. 60) During the IEP meeting it was presented by both Ms. and Ms. that needed teachers working with him in the classroom, however that recommendation was not written into the IEP. (Tr. 65)

PARENT’S CASE

’s Testimony

has a BA from the State University College of New York-

Purchase. She also has a certification from Manhattanville College in .

Ms. is currently the Assistant Head and Associate Head of the . (Tr. 88) Her responsibilities include working in concert with the and upper school division heads. (Tr. 89) The is a

. (Tr. 89) Approximately students ranging from years to attend the school. (Tr. 89) The school spans buildings divided by grade level. (Tr. 89) According to Ms. , approximately students were in the section of the school during the 2012-2013 academic school year.

(Tr. 90) For the classroom breakdown, students are grouped according to age and then they are broken down into based on their needs. (Tr. 91)

All teachers are trained in , which is an based program. (Tr. 91) The teachers are also trained in using the

. (Tr. 91) In addition to academics, children attend , . (Tr.

91) They have services for students in terms of and

. (Tr. 91) In addition to the academic services, provides different types of modifications and accommodations including a . (Tr. 91-92) There is no instruction involved in the school although there is an undertone of the principals involved in the school. (Tr. 92) This is also evident in their commitment to

. (Tr. 92)

A typical classroom can have anywhere from students with teachers. For within the classroom, the can be anywhere from students per . (Tr. 93) Ms. discussed the detail involved in determining how children are placed . In determining which teacher is assigned, Ms.

stated that she oversees the teachers. (Tr. 94) In addition to the classroom teachers, the division of the school is also composed of specialists, in and , a school psychologist and a social worker. (Tr. 95) Staff meetings took place every afternoon and then every other week on and morning. (Tr. 95) Student progress is measured informally through and standardized tests. (Tr. 95-96)

With regards to , Ms. has observed him in class. (Tr. 96) Based on her observations Ms. believes ’s biggest difficulties during the 2012- 2013 include his . (Tr. 97) According to Ms. , is . His deficit leads to issues with . (Tr. 97) ’s deficits were addressed through teacher , putting him in a very for , as well as making sure there were always teachers in the classroom. In addition, used

an

. (Tr. 98-99)

Regarding the teachers who provided instruction to during the 2012- 2013 academic school year, Ms. discussed Mr. ’s background. Mr.

is an assistant teacher who has worked at for approximately years. (Tr.

101) He had training in various and programs used by the school. (Tr.

101) was listed as ’s teacher. She is certified in both general and special education. (Tr. 102) During the school year at issue, ’s comprised of students including him. (Tr. 102)

taught ’s group. Ms. has a dual

certification and master’s in and special education. She worked at for the past seven years. (Tr. 102) There were students in his .

(Tr. 102) received times a week for , and

, , and a . (Tr. 103)

According to Ms. , made progress in by being more confident in , which carried over into his . (Tr. 105-

106) In he used varied structure format of the program and learned to . (Tr. 106) In , he was introduced to . He developed a better understanding of

. (Tr. 106)

On cross-examination, Ms. described the program. She stated it is a approach to teaching that provides the student an alternative way to learn and develop their skills. (Tr.

107) Additionally, Ms. stated that all teachers in the division are trained in the program. (Tr. 108) The training is three days long and involves further training in order to refresh the teachers on additional updates and changes to the program. (Tr. 108) Ms. stated that during the 2012-2013 school year, supervised all of ’s teachers. (Tr. 111) Ms. has a dual degree in and special education from Bank Street College. She is also a licensed social worker with a social work degree from Columbia University. (Tr. 111)

There are no for students who attend . (Tr.

117) Given ’s academic challenges, Ms. stated that he would not have thrived in a person classroom without some work. (Tr. 118)

Testimony of has a BA and a Masters in special education from Bank Street

College. She has worked for for the past thirteen (13) years. Her responsibilities include creating the curriculum, coordinating with teachers, and communicating with families. She also writes the progress reports and end of year reports. (Tr. 122) During the 2012-2013 school year, she taught students including in the . (Tr.

122) Ms. stated that she taught the class with Mr. . She primarily taught and split responsibilities with Mr. . (Tr. 122) She further stated Mr.

taught . The age range of the classroom was year old students. The social and emotional needs of the children were somewhat impaired.

(Tr. 123) In her classroom, they used , however laptops are available as well. They also used a . (Tr. 124)

With regards to , Ms. stated that during the 2012-2013 school year, he struggled with . (Tr. 125) This was manifested through his in the classroom. Both teachers attempted to address this by seating near

. (Tr. 125) They

addressed his

. (Tr. 126) Regarding his

. (Tr. 126)

They would also

. (Tr. 127)

Ms. stated that she and Mr. would

. (Tr. 128)

For , was with with other students. (Tr. 129)

The group size was determined in order to help address his .

Teachers were more able to redirect in a setting when he . (Tr. 130) The lesson was with all students and the teachers. (Tr. 131) His lesson was with with other students. (Tr. 132)

The students participate in something called where they get together in the . (Tr. 135) This ritual is a that they participate in. They also participate in something called . This is performed at the end of the week, where all the students

. (Tr. 135)

Ms. continues to describe the process in her classroom. One part is where they report on the student’s progress in each area. The report discussed describes specific concerns and progress of the student, so that immediate changes can be made to help the student. (Tr. 138) Progress is mainly measured through daily observation. They look at the student’s , to determine where changes need to be made. (Tr. 139)

On cross-examination, Ms. discussed ’s

time. (Tr. 141) She stated he required from the teachers to get him to . (Tr. 142) She stated that he was able to benefit from the as we all as use of the . (Tr. 143) He also had . She stated was able to progress using this discipline. (Tr. 144) Although Ms. was not present at each lesson was a part of, she was clear on the school’s practice of . (Tr. 147) If a student was not properly , would be the teacher who would change . (Tr. 150)

Ms. confirmed she is not a certified teacher, which meant that neither of the teachers in ’s classroom were certified teachers during the 2012-2013 school year.

(Tr. 152)

On re-direct, Ms. confirmed her knowledge of ’s progress in his . (Tr. 153) She stated that his teachers in those groups would report to her any issues or progress that experienced. The teachers also reported any strategies implemented to help with his struggles. (Tr. 154)

Testimony of is ’s mother. She stated that is currently years old. She stated that started at old, where it was suggested by his teacher that he be tested. (Tr. 157) She had him tested and it was determined that he had , , and . (Tr. 157) He wasn’t diagnosed with at this point in his development. (Tr. 157)

was recommended and used, but Ms. didn’t like having at the age of . (Tr. 157) He was designated a for by the Board of Education. (Tr. 158) From there, he attended , which was in their zone district.

(Tr. 158) Within the first months of , visited the nurse’s office times for being by his fellow classmates. (Tr. 158) Ms. said the class was very , and she had placed in a class, which he also attended for . (TR. 158) She also stated that his first teacher quit within her first year of teaching because . (Tr. 158) Ms. herself observed the class when she volunteered for . (Tr. 159) She stated that some of the children were . (Tr. 159) She was happy could be placed in the class. (Tr. 159)

Ms. stated that in , did not learn very much. (Tr. 159) She noticed that the class was and he was not on , however the teachers really liked him. She was even told by a teacher March of his year that the school could not support ’s needs. (Tr. 159) It was suggested that he be placed in a class. The teacher recommended and .

She applied to both schools, and he was denied admission to , but was accepted to . (Tr. 159-160) began at . At this point, they tried again, and it seemed to help him focus better and keep his down.

(Tr. 160) Currently, is taking . This addresses his attention and . (Tr. 160-161) Ms. agrees with ’s teachers that he struggles with . At , she has to , and he needs to . (Tr. 161) She does believe however that has a strong . (Tr. 161) She likes how makes him feel successful, which motivates him to want to continue to learn. (Tr. 161)

Regarding her participation in the March 20, 2012 IEP meeting, Ms. stated that she communicated her concerns regarding the ’s progress and placement. She agreed with his teacher Ms. that at classroom in a school would not help him with his academic needs. She stated that to her knowledge, the CSE had access to his prior year IEP. (Tr. 165-166) Ms. believed that the CSE finally recommended a setting in a private school for She also stated her shock that the CSE could make a determination so quickly that the private school setting was not OK; although they had considered it OK the prior year. (Tr. 166) She furthered that she felt bullied to being submissive and not say anything. (Tr. 167) She stated that Ms. was very forceful with regards to the CSE’s decision. (Tr. 168) Ms.

stated that Ms. cut her off when she raised her concerns, and said that since she was thinking of changing ’s , that change would be enough. (Tr. 168) Ms.

stated that Ms. said that would be fine in a setting. (Tr. 168)

Ms. didn’t know how to respond. Ms. stated that no one else expressed an opinion after Ms. . (Tr. 168-169) Ms. felt that although usually Ms.

was supportive at the IEP meetings, she was silent at this particular meeting, and Ms.

felt unsupported. (Tr. 169) Ms. stated that she felt ignored and that no one wanted to listen to her concerning (Tr. 169) She stated that the March 20, 2012 IEP meeting ended poorly and she was disappointed. (Tr. 170) She said it was one of those bulldozing situations where nobody said anything. (Tr. 170) According to Ms. , she did not receive the IEP from that meeting until August 2012.

Ms. concedes that she did not initiate communication with anyone at DOE until June 2012 regarding the last meeting. She also states that she had not to date received a placement offer from the DOE. (Tr. 171) When she finally received a placement offer from the DOE, it was August 2012. The offer was a placement in .

(Tr. 172) She further states that she sent a letter August 20, 2012 regarding their placement, but only after calling the DOE was she informed that she could not get a tour the school until September. (Tr. 173) She finally toured mid September 2012. She spent about an at the school, but she did not receive an actual tour while she was at the school. (Tr. 173) She spent about ( ) minutes observing a classroom. She was concerned that would be the only grader in the recommended program. (Tr.

174) In general, Ms. proffered that the class was very chaotic and unattended to by appropriate personnel. (Tr. 174 - 175) Ms. did not believe would have been appropriately placed in that type of classroom. (Tr. 175)

Based on her concerns, Ms. sent a letter to the DOE stating that she was not accepting the placement for (Tr. 176; Exhibit I). Said letter was sent September 26, 2012 to Ms. . Ms. stated she did not receive a response to her letter. (Tr. 176)

Ms. testified that ’s academic and emotional growth prospered at . She noticed that his improved; he loved learning and . (Tr. 177)

Ms. also testified that she made a non-refundable deposit to for the 2012- 2013 school year. (Tr. 178; Exhibit G)

On cross-examination, Ms. stated that ’s move to the class was decided by the school principal. She stated that she agreed with the principal’s decision to move from the class. (Tr. 180) She also confirmed that she made a deposit to prior to the March 20, 2012 IEP meeting. She further confirms that she did not agree with the placement for , and did not state she was in agreement at the March 2012 IEP meeting. (Tr. 189) She states that she based her opinion on his prior performance at , and his prior performance in the recommended setting. (Tr. 190)

She repeated that even his teacher at the time stated his needs were not being met in the program placement. (Tr. 191) She admits that going into the March 20, 2012 IEP meeting, she was open to looking at any setting that would work, but by the end of the meeting she was sure a was not an appropriate placement. (Tr. 191) She claims that she did not recall some of the references to pre-IEP meeting telephone contact (Tr. 193) Ms. testified that had she felt the public school setting was as appropriate for her son, she was willing to forego the dollar ( ) deposit in exchange for not having to pay the remaining dollars ( ) in tuition costs. (Tr. 199)

Ms. believes meets the needs of her son. (Tr. 199, 200, 205)

DISCUSSION

I. Ms. provided the district timely notice of her rejection of the proposed placement, and removal of the child, including her intent to enroll her son in a private school at the district’s expense.

Under IDEA, the parent must provide the school district with timely notice of their intent to remove their child from the district placement and enroll the child in a private school at the school district’s expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(e). Timely notice can be provided either orally by the parent at the most recent IEP meeting, or in writing at least 10 days prior to removal of the student from the district school.

The Parent in the instant case received the district’s final recommendation on August 14, 2012, and the parent informed the district in writing on August 20, 2012 that she received the recommendation, but that she will not be able to see the recommended school until September. The parent later informed the district in of her intention to remove from the district, and enroll him in .

Furthermore, the parent stated in her letter that she intended to request tuition reimbursement from the district. Said letter was written on August 22, 2012, although Ms. did schedule a visit to the recommended school in September, and visited the school as suggested by the district. Since the district did not provide Ms. with a final recommendation of placement until August 14, 2012, the failure to provide notice 10 days before removal is adequate given the school year was set to begin before Ms.

would have an opportunity to visit the recommended school.

II. The DOE did not offer the Student a Free Appropriate Public Education in a timely manner.

The IEP is the “centerpiece of the statute’s education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate education program for a disabled student starts with an IEP that reflects the uniquely tailored needs of the student, such that the public school district is able to help the student receive some educational benefit.” Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-191 (1982). Every student, especially one with a classified disability, must have a plan to help them progress, rather than regress educationally. In creating the IEP, the team must convene in order to create the student’s plan for the upcoming school year. Such a team includes the child’s parents, educator, and related services coordinator. The team must consider the results of the student’s most recent evaluation, and insure that as soon as possible following the development of an IEP, special education and related services are made available in accordance with the such IEP. Furthermore, the IEP must determine the placement recommended for the student. M.M. v. District of Columbia, 607 F. Supp. 2d 168, 174 (D.D.C. 2009). Although mainstreaming children eligible for special education services is the goal of IDEA, where no public school can accommodate the student’s needs the government is required to place the student in an appropriate private school and pay the tuition. 20 U.S.C. § 1412(a)(10)(B)(I); see also Sch. Comm. of Burlington v.

Dep't of Educ., 471 U.S. 359, 369 (1985).

Here, an IEP meeting was convened March 20, 2012 for Participants of the meeting included but were not limited to the Parent, a designated

Teacher (however this person had not practiced in that capacity for a long time), a

Chairperson, as well as a Special Education Teacher. The School Psychologist did not personally observe, nor send a representative to observe the teacher responsible for educating the student during the 2011-2012 but did state that the student did not need even though use of an was on the student ’s IEP.

Furthermore, the IEP team made no reference to recent evaluations of the student. In regards to classroom dynamics, the Committee did not agree with the Parent’s concern that the child be placed in a amongst other , and instead recommended a program devoid of necessary related support. Finally, the DOE did not provide the final recommendation for the upcoming year, until August 14, 2012, months after the IEP meeting. Review of the recommendation provided the student very . The Parent, after review of the recommendation, did not see the educational benefit for , communicated her concern both in the IEP meeting on March 20, 2012, and in her letter of removal dated August 22, 2012. DOE participants, although qualified within their own specialties, did not sufficiently comprise the IEP process. The annual goals are generic in form without means of achievement standards.

III. The Actions of the Parent were not unreasonable.

Ms. took proactive measures in retrieving academic assistance for her son by insuring his participation in all requested evaluations, attendance at the CSE meeting, as well as through her personal visit to the DOE’s recommended program. Complete removal from the program in which demonstrated progression would have been detrimental to

DECISION

At the onset, it is noted that this Hearing Officer recognizes the failure of the DOE to offer a FAPE to for the 2012-2013 school year. Moreover, a complete and thorough review of the testimony presented by the Parent’s witnesses in conjunction with the post-hearing position statements greatly supports the appropriateness of the for the school year in issue. It is undisputed that presented as a student with not only mandated, but necessitated a designed to meet his immediate educational needs. Therefore, I conclude that the was an appropriate placement for , and that since notice of a recommended placement was provided long after the IEP meeting took place which was inappropriate for the student, the DOE failed to meet the unique educational needs of

Moreover, this Hearing Officer is persuaded that the record lacks any evidence that the Parents acted in bad faith or with the purpose of frustrating the District’s efforts.

Significantly, “the law requires that the actions of both parties be examined to make a determination as to the balance of equities.” Matthew J. v. Massachusetts Dept. of Educ., 989 F. Supp 380 at 393 (D. Mass 1998) Thus, this Hearing Officer is persuaded that there are no equitable considerations to consider.

Accordingly, upon a thorough review of the Due Process Complaint, full tuition reimbursement is awarded to Parents for the 2012 – 2013 school year within thirty days of this decision.

Dated: March 24, 2015

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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

DOCUMENTATION ENTERED INTO RECORD

PARENT

A Impartial Hearing Request, 7/19/13, 5 pages

B Notice of Unilateral Placement, 8/22/12, 4 pages

C E-mail with , 6/11/12, 1 page

D Letter to , 8/20/12, 2 pages

E Class Schedule, 2012-2013, 1 page

F Midyear Report, , 2012-2013, 19 pages

G Affidavit of Tuition Payment, 1/10/13, 1 page

H Enrollment Contract, 2/13/12, 2 pages

I Letter to , 9/26/12, 4 pages

J Internal Report, , 2012-13, 37 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 7/19/13

2 Dated 7/26/13 Due Process Response, 4 pages

3 Dated 3/20/12, IEP, 15 pages

4 Dated 3/20/12, IEP Signature page

5 Dated 8/15/11, IEP, 13 pages

6 Dated 8/14/12, FNR, 1 page

7 Dated 12/1/11, Classroom Observation

8 Dated 11/29/10, Educational Eval Report, 16 pages

9 Dated 5/26/10, Social History Update, 5 pages

10 '11-'12 Midyear Report, , 25 pages

11 '10-11 Report, 38 pages

12 Dated 3/14/09, Psychoed Eval, 12 pages

13 Dated 4/24/09, and Eval, 8 pages

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

AA Parent’s Closing Brief and Legal Memorandum, 22 pages

BB DOE’s Post-Hearing Closing Arguments, 10 pages