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 23, 2015

April 22, 2015

May 19, 2015

Actual Record Closed Date: June 12, 2015

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2015

Attorney(Via Telephone) — Student

No Appearance by the — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 22, 2015

Attorney — Student

Parents

Parents

District Representative — DOE

, IEP & SCHOOL WITNESS (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2015

Parents

Parents

Director,, (Via Telephone) — Student

District Representative — DOE

INTRODUCTION

On 02/10/2015, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Pre hearing conference was conducted on 04/23/2015 and a date was set to commence hearing.

On 04/22/2015 parties made a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to 05/27/2015. (IHO Ex II)

On 05/18/2015 parties made a motion to extend the compliance date by 30 days to allow for receipt and review of the transcript of that day’s hearing. Motion was granted and compliance date was extended to 06/26/2015. (IHO Ex III)

This matter was instituted by the impartial hearing request dated 02/09/2015 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2014-2015 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2014-2015 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the School ( ) for the 2014-2015 school year. (Ex A 1)

BACKGROUND

Student IEPs include the following information:

IEP of 06/12/2014, , classification of , levels, states adequate progress (Ex 4-

1), parent concern that student’s disability is negatively effecting his academic performance, include to keep student on track and focused, (Ex 4-2), goal where student will be able to solve (Ex 4-13).

IEP of 10/01/2014, student , classification of (Ex 2-1), no grade levels for or , a , parent concern that student is in the wrong class, is easily distracted, request

, , ( ), a certified

teacher, , , and recommended changes made by outside (Ex 2-2), goal where student will understand and become mathematically confident by communicating and reasoning mathematically, by applying in real-works settings, and by solving problems through the integrated study of number systems and algebra with accuracy (Ex 2-9), goal to read and comprehend informational material by restating and summarizing information from classroom assignments and text with accuracy (Ex 2-8), recommended services including an class for , services weekly on an and in a group times weekly and weekly as an individua l service (Ex 2-11), a and an (Ex 2-11), functional instructional levels of for and for (Ex 2-15) and standard promotional criteria (Ex 2-16).

IEP of 11/03/2014, student , classification of (Ex 3-1), no grade levels for or , a , parent concern that student is in the wrong class, is easily distracted, request

, , , a certified teacher, , , and recommended changes made by outside (Ex 1-2), goal where student will understand and become mathematically confident by communicating and reasoning mathematically, by applying in real- works settings, and by solving problems through the integrated study of number systems and algebra with accuracy (Ex 1-9), goal to read and comprehend informational material by restating and summarizing information from classroom assignments and text with accuracy (Ex 1-8), recommended services including an class for (Ex 1-10), services weekly on an and in a group times weekly and weekly as an individual service, a and an (Ex 1-11), functional instructional levels of for and for and standard promotional criteria (Ex 1-15).

Evaluation of 08/28/2014includes a variety

of detailed recommendations which include an , (Ex 6-4)

and an , (Ex 6-5), , (Ex 6-6), such as an (Ex 6-7), (Ex 6-8).

THE PARENT’S POSITION

( ) presented the parent’s position.

contends the DOE failed to establish it has offered the student a FAPE for the 2014-2015 school year (T 89) and the school had failed to implement parts of the IEP recommendation. (T90) is appropriate for the student and the student is making progress. (T 90) Parents are not financially able to pay tuition and therefore direct payment by the DOE is appropriate in this case. (T 91)

contends

PARENT WITNESS

( ) reviewed his educational and professional background and testified as Director of . (T 93-94)

The at “…was really designed for the students who have different kinds of …from learning disabilities, to , to and… disabilities, etc. So, we're working with students who may not have done well in other settings, but who need a very small, intensive kind of approach to intervention and help, at the same time working within a school with the intent of providing the experiences to be put in those classes as much as possible, with the support they need…mapping out a very individualized Program…a variety of and learning activities, that they are introduced to each year--of course, really covering the New York state curriculum with the idea of getting all the , they need, working toward their Regent's diploma, try to keep all those criteria for that, and develop what they need for college, and being of the primary ones, being another . The building pieces that we work are on here really important for the executive function and academic like planning, organizing, study, test (T 96) taking skills that they really need. Students get all sorts of support during the school day and during the year, including test accommodations, etc.

There might be any other support in terms of the classes during the day and after school for kids to be a part of getting extra help along the way. A lot of classes are taught by people who have master's or higher. Many of them have training in special education either as a formal degree or through the service programs we provide here, in-service support we provide here.” (T 97)

has about , are in the

. (T 98)

The student is attending the program at this time. Application process includes looking at the student’s record and an interview. (T 99)

Student is described as “…friendly…struggle a lot with learning…a diagnosed

…a diagnosed , … turns

out to be an area of weakness for him…(T 100) … was another that he had specific difficulty, and so we're looking at how to provide him a class that will fit his needs……he really did need something pretty intensive in terms of intervention and support…he has …the inattentive type…he has

…(101)…needing to get a lot more , , and smaller classes really became something that were important for him …He has included…And…he had the , as far as being too--to retain material and the idea of needing additional practice and review became significant in terms of how we dealt with all that…It seemed like he was motivated to really do well and to work hard in the program.” (T 102)

Student profile is similar to other students in the program. (T 103)

Student was recommended to a program focused on comprehension.

He had classes working on comprehension. “We also put him in classes where, for example, history, where he was going to have the teacher work with him, who was a special ed. teacher, who also recommended how to help students to deal with the content history and the of history text and making more sense of that. So, in that regard, that was of the key areas he felt he needed help with. In terms of the attention issues, we knew that smaller classes, in general, are going to be better for him. This is also going to be important in terms of issues that were coming up (T 104) in every quarter. So, smaller class sizes were another thing we factored into his program along the way. And the same thing for , smaller classes, a class that was paced at a level that he could then benefit from, where he had a better chance to get more repetition and review, which these things are going to need and also the chance to get more individualized support and help…the piece was something else that the teachers in the literacy classes and recognized and continue working on.” (T 105)

Witness identified student schedule. (T 105, Ex G)

Witness reviewed student schedule, qualifications of staff and curriculum of student‘s . (T 106-108, 111- 114 & 116-127)

Student’s modified class is “

” (T 116)

Student are grouped by similarities in terms of -based difficulties with comprehension. (T 114)

Modifications to address student’s specific needs include:

(T 125);

Teacher reports student is making good progress and see struggles with comprehension (T 110); student is doing better with comprehension and is better able to identify his difficulty (T 114-115) and student is moving towards the goal of passing his Regents exams (T 118).

Student was recommended , and receives, and in the program.

(T 127-128)

provided to the student includes a . (T 129)

has not been provided as the small classes tend to address a lot of the issues. (T 129)

If student stays with the program he will be more successful and it is successful for the student. (T 130)

PARENT WITNESS PHILLIP

( ), the student’s father, testified.

When in student started not to be on par with his grades, commenced (T 141), in student received a (T 142),

Accommodation, student continued to struggle in junior high (T 142), at the end of student received an IEP and was to be in an Class

( ) (T 143), at times the placement was successful, it was difficult for student to do anything, self esteem dropped when he could not participate in music due to being unable to read the music (T 144), student started to isolate himself and school said they would monitor him (T 145).

IEP of 06/12/2014 was created at the end of student’s year. (T 145)

At the meeting a teacher referenced that the child might have ’s and the mother became alarmed and wanted to look into it. (T 147)

An evaluation was sought and received from Dr. . (T 147, Ex 6)

Report indicated the student had , including and needed more attention “ ” (T 148) Dr.

mentioned an class to help when student was not . Evaluation was brought to the school, (T 148-149)

Student started a new school in an class. (T 150)

Problem in the class was that the student “

” (T 152)

In speaking to Dr. was advised that perhaps a smaller class may be more appropriate as a setting. (T 152-153)

IEP meeting took place 10/01/2014. Parents attended in person and Dr.

via telephone. (T 153, Ex 2)

Concerns about the student were discussed and Dr. contributed to the meeting, including her belief that a smaller class would be “

” (T 154)

responded that the class they did have was not suitable for the student. (T 154-155)

Nothing changed as a result of the meeting, though plans were made to revisit the issue on 11/03/2015, and another IEP meeting took place that day. (T 155, Ex 1)

IEP meeting of 11/03/2015 was basically about the student’s school work and it was reported he was doing fine. (T 155) Work did not seem appropriate for the student. No changes were made to the program. (T 156) Plan was made to meet again within weeks. (T 159) Parent was never contacted to reconvene. (T 160)

questioned the program which was developed. “…I said, basically, I don't know if this is going to work, but I have to start looking for my son's best interest. I need to see what else I need to do at this point.” (T 157)

Student was accepted into . At the 11/03/2015 parent told the team he was going to be looking into other option. (T 158)

Student was accepted in December and papers were signed in January. (T 158-159)

Parent did not feel student program was appropriate. (T 160)

Parent received letter in January, indicating the student was or more classes. Parent felt student was moving backwards and decided to move forward with placement. (T 161, Ex C)

Notice of 01/20/2015 was sent to the DOE advising of the placement. (T 162, Ex B)

On 01/20/2105 parent received an email from that he would like to meet again. (T 162)

Parent called and was told “

” (T 163)

Parent signed contract on 01/30/2015. Contract indicates tuition of and parent is obligated to make payment. (T 164, Ex F)

At the time parent could not afford to pay the tuition. (T 165)

Parent identified signature on 2013 Income Tax return, indicating total income of . Parent could not afford to pay the .00 in tuition. (T 165, Ex I)

said they would delay payment until the impartial hearing proceedings were completed. (T 165)

Parent believed the program would be appropriate from the school visit, discussion with school personnel, seeing the sizes and speaking with teachers. (T 166)

Student began attending when the second semester commenced,

02/03/2015. (T 178)

Parent indicates he has seen progress in the student being more outgoing and his confidence level and self esteem has risen. (T 167)

describes the DOE team members as nice people, but concerns were not addressed. (T 171)

was asked how payment would be made for tuition of unsuccessful at hearing” “

” (T 176)

. (T 177)

DEPARTMENT OF EDUCATION POSITION

( ) Representative, presented the DOE position.

DOE contends the student was offered a FAPE for the 2014/2015 school. (T 13)

DOE WITNESS

( ) reviewed his educational and professional background and testified as a DOE school psychologist, IEP and school witness. (T 23-24)

Student “entered my school in September of this past year, 2014. His mom had contacted me in June, to discuss that (student) was coming, and made me aware of some of this needs, and that he entered school in September, and I’ve been involved with the family for pretty much over the past semester until they placed him in the new school he’s at.” (T 25)

attended the 11/03/2014 IEP meeting. (T 25, Ex 1)

IEP recommended an class for , and (Ex 1-10 & 1-11), weekly, and weekly in a group and weekly individually as well as an and . (Ex 1-12)

Purpose of the IEP meeting was by parent request to follow up to see how the student was doing. (T 27) Parents were concerned the student’s services were not being met. (T 49)

Team decided not to make any changes at the November meeting “at that time I didn’t really have much more evidence than I had at the previous meeting in October.”

(T 28)

Student was having difficulty completing tasks so was provided. Extra time and was provided as well as repeating information and guidelines to help as much as possible. (T 28-29)

Testing accommodations were provided so student can maximize potential in school. . Use of a was added to due to .

(T 31)

. (T 31, Ex 1-12 & 1-13)

Student goals were developed based on updates from related service providers and teachers. (T 33) “…goals were based upon the needs that (student) was showing at the time.“ (T 34)

“

“ (T 34)

Recommendations made were appropriate at the time. (T 35)

Second teacher in the was intended to help focus the student. (T 35)

Student grade level is not indicated on the IEP though instructional and functional levels are lists as for and for . (T 41, Ex 1-15)

evaluation was considered at the time of the October and November IEP meetings. (T 42, Ex 6)

IEP 06/12/2104 was reviewed. (T 43, Ex 4)

Witness was asked if there was any discussion regarding the 06/12/2014 IEP reflecting an instructional functional level of . “ ” (T43, Ex 4-13)

Witness was asked it any goal was included to move student level forward considering the scores reflected in the evaluation that were as low as for fluency - subtraction. (Ex 6-11)

Witness pointed to goal. “

”

” (T 46, Ex 1-9) developed this goal, in conjunction with the teacher. (T 55)

Parent concerns at the IEP meeting in November were noted to include: the student is in the wrong classes, is easily distracted and has tremendous difficulty completing tasks. Parent requested , , -to- , a certified teacher, services to work on tracking, a copy of notes and continued . (Ex 1-2) When asked if any concerns were addressed witness responded “in terms of the , the again provided whatever she could…she had some experience in it, but was not trained, so she did what she could.

Ongoing , (student) was recommended to go to the , in which he can get

.” (T 51)

Recommendations are not included in the IEP. recommendation was made verbally and is for all students in the school. would not be specialized for a special education student. (T 51)

Dr. participated in the 10/01/2014 IEP meeting, but was not included on the attendance sheet. (T 53) Dr. reviewed her findings. (T 54, Ex 6)

Parent concerns also included: student focus, parent is providing outside service, student retention of information, tests and request for a follow up meeting in weeks. (Ex 1-16) IEP was not modified in any way to address these concerns and did not reach out to parents for a follow up meeting. (T 61)

received the parent letter of 01/20/2015. (T 62, Ex 2)

was not aware of letter indicating the student was . (T 64, Ex C)

agrees that a grade is not evidence of meaningful progress. (T 65)

supports the IEP recommendation by stating he was in touch with the teacher weekly and test scores improved. Student was starting to show improvement in class. (T 68)

At the November meeting student poor performance was not because the student could not do the work. It was more of “ “ (T 68)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 unique 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. § 1400[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]).

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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't.

of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June

10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 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 procedural violations are 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 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], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a 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, 142 F.3d at 130; 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 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 (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYC RR

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; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"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 it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A 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). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-

65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. 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).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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 a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-

079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-

71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT

DOE witness described the two most recent IEP meetings relative to the hearing, his attendance and sought to support each IEP as it related to its appropriateness at the time of drafting. (T 35 & 68, Ex 1 & 2)

No appeared to support the IEP of 06/12/2014, which was prepared for the current school year. (Ex 4)

Witness testified he was contacted by the parent and made aware of some of the student’s needs. (T 25)

Witness reviewed the contents of the IEPs of 11/03/2014 and 10/01/2014 and parent concerns noted therein. (T 52-55, Ex 1 & 2)

Witness contends goals were developed based on updates from related service providers and teachers. (T 33) “…goals were based upon the needs that (student) was showing at the time.“ (T 34)

The November IEP “is really just a continuation pretty much similar to the one that was created in October.“ (T 34)

Parent concern included a desire to follow up and meet again for a follow up meeting in six weeks. (Ex 1-16) IEP was not modified in any way to address parent concerns and did not reach out to parents for a follow up meeting. (T 61)

Eventually received the parent letter of 01/20/2015. (T 62, Ex 2)

was not aware of letter indicating the student was (T 64, Ex C) though he does concede that a grade is not evidence of meaningful progress. (T 65)

I find the testimony of fails to support of explain the IEP deficiencies as detailed below.

IEP of 06/12/2014 identifies the student at a level as low as for and performance levels, yet states adequate progress. (Ex 4-1) Despite the low levels only goal appears for and goal for . Each goal is so vague and unrelated to specific needs of the child that they each fail to support a

FAPE.

goal to fully complete homework at a rate of is not measurable nor is it related to any specific skill or need of the student. (Ex 4-7)

goal where student will be able to solve multi-step algebraic equations to find solutions both graphically and algebraically with 70% accuracy is not measurable nor is it related to any specific skill or need of the student. (Ex 4-6)

IEP fails to explain how a student at such low levels is justified as being at a functional instructional level of for and and can be expected to meet standard promotional criteria. (Ex 4-13)

IEP of 10/01/2014 does not indicate any grade level for the student for nor .

Parent raises concerns that are admittedly not addressed by the DOE as indicated by testimony of .

Again the goals are so vague as to be meaningless as applicable to this student. goal on its face is so vague and confusing it is impossible to apply and/or measure at all much less with accuracy. (Ex 2-9)

goal again does not address any specific issue of the student who most recently was indicated to be as far behind as a level. (Ex 2-8)

Without explanation the students services are reduced in the number of period from 20 to 12. (Ex 2-11)

Without explanation the student‘s functional instructional level is reduced grade levels to (Ex 2-15) while retaining standard promotional criteria (Ex 2-16).

Latest IEP was admitted to be “

“ (T 34) IEP continued to fail to identify and address student special education needs.

IEP of 11/03/2014 indicates no grade levels for or . IEP continues to include only and goal which are not appropriate for this student. (Ex 1-8 & 1-9) Services continue at the unexplained reduced level of for (Ex 1-10) and drop in level is not addressed. (Ex 1-

15).

I note that despite the DOE contention that the student was making progress the DOE advised the parent in January of 2015 that the student was at least two classes. Which classes, though it may be all of them, were not identified. (Ex C)

Evaluation of 08/28/2014 included a variety of detailed recommendations which included an . For some reason services were cut by . (Ex 6-4, 6, 1 & 2)

I find each IEP fails to offer a FAPE for the student and the DOE has failed to offer a FAPE to the student for the 2014-2015 school year.

I find that each IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

Parent evidenced the appropriateness of the for the student for the 2014-2015 school year. DOE did not evidence any deficiency of the testimony of the parent’s witnesses as it pertained to appropriateness of services provided to the student nor to student progress.

The at “…was really designed for the students who have different kinds of …with the support they need…mapping out a very individualized Program…a variety of and learning activities…(T 96)

Witness identified student’s special education needs (T 100-103), services to meet those needs (T 104-105, 110, 114, 116, 121, 124-125 Ex G) and indicates progress (T 110, 114-115, 118, & 167).

Student was recommended , and receives needed related services of , and in the program (T 127-128) and is provided to the student in the form of a . (T 129)

Witness notes the has not been provided as the small classes tend to address a lot of the issues. (T 129)

I find the educational instruction at is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2014-2015 school year I find offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefit.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, sought out independent evaluation, communicated concerns to the DOE, and in no way frustrated any attempt buy the DOE to offer a FAPE.

Parent detailed a history of involvement with the student’s education and constant communication with the DOE throughout his testimony. (T 141-145)

Parent sought evaluation, provided it to the DOE and had evaluator attend

IEP meeting. (Ex 2)

Parent noted that the problem in the class was that the student “

” (T 152)

Concerns about the student were discussed and Dr. contributed to the meeting, including her belief that a smaller class would be “

” (T 154)

Instead the services, as previously discussed hereinabove, were cut.

Parent began to sensibly seek out alternatives to the DOE placement, which he saw as insufficient. (T 160)

questioned the program which was developed. “

” (T 157)

Student was accepted into . At the 11/03/2015 parent told the team he was going to be looking into other option. (T 158)

Student was accepted in December and papers were signed in January. (T 158-159)

At the time the parent signed the tuition contract he could not afford to pay the tuition. (T 165)

Parent identified income for 2013 as , testified that he could not afford to pay the .00 in tuition, and that said they would delay payment until the impartial hearing proceedings were completed. (T 165, Ex I)

testified that he would find a way to pay the tuition if he was unsuccessful at hearing though not without foreseen hardship. (T 176-177)

Parent letter of 01/20/2015 advised the DOE of her intent to enroll the student in a private placement at public expense. (Ex B)

I find that the parent cannot afford to pay and receive reimbursement of the tuition and is entitled to direct payment of tuition due for the student attendance in the for the 2014-2015 school year.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2014-2015 school year.

2. The DOE shall directly pay School for student attendance in the for the 2014-2015 school year.

3. Total amount tuition to be directly funded is .

4. DOE shall provide parent and School with any required documentation and forms necessary to facilitate payment within ten days of the date of this order.

5. This decision is subject to appeal and review by the State Review Officer. DATED: June 19, 2015

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 04/22/2015

A Request for Due Process Hearing, 2/9/15, 5pp

B Notice of Unilateral Placement,1/20/15, 4 pp

C Letter from , January 2015, 1 page

D Letter from parents, 8/25/14, 1 p

ENTERED 05/19/2015

E program description for 14-15 school year, 1 page

F enrollment contract, 1/30/15, 2 pages

G student schedule, 14-15 school year, 1 page

H report card, 14-15 third quarter, 3 pages

I 2013 tax return of parents, 4/7/15 2 pages

DEPARTMENT OF EDUCATION

ENTERED 04/22/2015

1 IEP, 11/3/14, 18 pages

2 IEP, 10/1/14, 18 pages

3 Prior written notice, 11/3/14 and 10/14/14, 8 pages

4 IEP from 6/12/14, 15 pages

5 Prior written notice, 6/16/14, 4 pp

6 evaluation, 8/28/14, 13 pages

7 Psychoeducational report, 1/13, 6 pp

IMPARTIAL HEARING OFFICER

ENTERED 04/22/2015

I Notice of Appointment, 2/10/15, 3 pp

ENTERED 05/19/2015

II Grant of Request to Extend Compliance Date, 04/22/2015, 3 pages

ENTERED 06/12/2015

III Grant of Request to Extend Compliance Date, 05/19/2015, 3 pages