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: September 17, 2014

October 29, 2014

Actual Record Closed Date: February 6, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17,2014

Advocate — Parents

Mother — Parents

District Rep CSE — DOE

Teacher Assigned — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2014

Advocate — Parents

Mother — Parents

School Director/ — Parents

District Rep CSE — DOE

Special Education Coordinator — DOE

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 designee and the parent was represented by her advocate

BACKGROUND

The child, hereinafter referred to as is a year old female student with a and is classified with “ ”; the classification is not in dispute in this proceeding. (also referred to as the “parents”) brought this hearing challenging the DOE’s failure to provide the child with a free appropriate public education (“FAPE”) during the 2013-2014 school year.

THE PARENT’S POSITION

Parents allege that evidence will demonstrate that the DOE did not have an appropriate placement for and that the IEP that was developed is not reasonably calculated to allow the student to make meaningful educational progress. Furthermore, all of the academic goals were completely inappropriate.

The parent requested the impartial hearing alleging, inter alia, that her daughter was denied access to a FAPE by the New York City Department of Education (“DOE”)

through the actions of the Committee on Special Education (“CSE”), that the (the “ ”) was an appropriate unilateral placement for her daughter for the 2013-2014 school year and that the parent is entitled to tuition funding.

THE DEPARTMENT’S POSITION

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

THE DEPARTMENT’S CASE

, Special Teacher Assigned, at CSE was present at the IEP review meeting that took place on 05/23/2013 and after being duly sworn stated that he has worked for the DOE for 30 years (page 8, lines 21-24); he hold a New York State and New York City certification in special education and in social studies (page 9, lines 12-

16). Mr. testified that the following persons attended the IEP: the Parent, and himself, , , and from the .

(page 11, lines 2-7). Mr. stated that ’s classification is or and that the IEP team recommended a in a

School, with the related services of , , and and (page 12) (Exhibit 1, page 6). The and was to be provided in a (page 12, line 23); was to be provided and the in a (page 13, lines 2-3).

The witness further stated that the information on ’s academic achievement was obtained from a evaluation conducted on 6/29/2011, written reports from the school and the providers, reports during the meeting from the parent and the school

(page 13, lines 15-16, 20-22, and 25) (Exhibits 3, 4, and 5). Mr. said that the on the IEP contained resources to support and address her disability which was in the classroom. Mr.

testified that required ,

(page 14, lines 14-22). Mr. testified that the IEP contained goals to

(page 15, lines 3-4, 8-9, and 12-16); another goal developed was to help

(page 15, lines 20-25) and a goal was designed to

(page 16, lines 3-6). The team also included a goal to help improve her . It was requested that related service providers submit progress reports which usually contain goals (page 16, lines 18-19 and page 17, lines 8-14). Mr. stated that goals for the IEP are developed by listening to the parent and the witnesses from the school.

The goals were intended to address areas of weakness, including methodologies on how to approach that child’s needs (page 16, lines 23-25 and page 17. lines 1-8).

Mr. ’s testimony was that the school, parent, and related service providers are all included in developing the goals (page 17, line 19). Additionally, the recommendation of a class in a school with ’s educational needs and development. The team first considers a safe environment for the child where learning can take place and then determined that a was required because of her ; the curriculum would need to be . The class in a school would be able to accommodate all of these concerns (page 18, lines 4-18). Mr.

acknowledged that has a or and that she needs . He believed that the would support in being able to in that it would have a . In the , would be able to

(page 19, lines 13-21). Mr. testified that the team had reports from the and and the provider (page 26, lines 10-11 and 17-18) (Exhibits 4 and 5). A goal was developed on the IEP to help address her by level (page 29, lines 23-25 and page 30, lines 1-5). Mr.

stated that based on the feedback from the school, in that was

(page 37, lines 9-10 and 16-17). Mr. said that the child’s then current teacher indicated that could be

(page 28, lines 8 -9 and 12) and that the team actively sought input from the parent and the school in developing the IEP (page 38, lines 20-21).

Mr. testified that if after the parent received the IEP and believed that the child may require additional or and goals, that the team would accommodate the parent’s concerns and discuss them (page 39, lines 5 and 8-12).

He opined that the small special education classes are the most appropriate and therapeutic way to help children with (page 40, lines 1-50). Also, the team did not want to be in a because that environment would have been too restrictive; if possible it is more suitable for the child to be in an environment where she is around typically developing children in order to model their and learn from them (page 40, lines 9-15).The class size was a proper recommendation for because with it is helpful to have an additional adult in the classroom to (page 41, lines 19-25 and page 42, lines 1-2).

Mr. stated that benefits from the less restrictive recommendation of a school because it keeps her in the neighborhood so that she can be close to and to the (page 42, lines 8-10 and page 13-19). Mr. said that as becomes overwhelmed and freezes up that she would benefit from being in a therapeutic environment with a well-trained special education teacher who understands the dynamics of a disabled child and provides consistency and continuity (page 44, lines

11-15 and 19-25).

Additionally, the profile of a child recommended to a class would be that the child’s disability precludes the child from learning in a environment, that the child needs

(page

45, lines 18-25 and page 46, line 1). Mr. said that the feedback that they had from the school was that there had been some improvement in ’s

(page 46, lines 18-20 page 47, lines 20-22 ) (Exhibit 1, page 1). The staff at the reported that was not as (page 47, line

11). Mr. reiterated that the class in a school would be a good fit for addressing ’s as her can (page 48, lines 7, 10-11, and 17-19);

Ms. , Special Education Coordinator, at , the public school recommended for testified that she is in her 34th year at the DOE (page

56, line 12). She has her New York State certification in special education and a DOE license in health conservation (page 56, lines 1-4). Ms. testified that she examines the annual reviews when teachers complete them, assists teachers to complete their IEPs, makes sure that students receive their appropriate services, and mentors teachers to help them with instruction (page 57, l lines 1-5). The special education teachers are supervised by a special education assistant principal and the school principal

(page 58, lines 3-4). Ms. testified that the teachers at frequently receive professional development (page 58). The witness stated that all of the related service providers would be licensed and certified in their disciplines; they have a close relationship with the teachers as well as with the special education assistant principal, the principal, and herself (page 59, lines 9-13). Ms. also stated that has weekly parent meetings. The school also has an online system of grades and a policy that is “open” between the school, the teacher, and the parent to enable the parents to see how their child is doing in major subject areas (page 59, lines 17-24).

Ms. testified that the teacher in the class accommodates for diversity in and levels by examining each child’s IEP to see where that child’s strengths and weaknesses are. The teacher then groups children according to their levels and abilities for both and (page 50, lines 4, 7-13, and 16-17). Ms.

said that with “ ” the parents can monitor the progress of their children on a daily basis and there is open communication between teachers and parents (page 60, lines 21-25). Ms. also testified that the school monitors the safety of children when they are walking through the hallways by having the classroom teacher and/or escort them (page 61, lines 6-8).

Additionally, Mrs. testified that the children in the special education classes may interact with their peers when they have classes

(page 61, lines 20-24) or (page 63, lines 1-3).

The for grades at had openings for additional students at the time that would’ve attended (page 62, lines 26 and page 63, lines 1-2). The students in the class are on an level of grades and levels of to Grade (page 63, lines 21-24). Ms. testified that the profiles of the students were as follows: very much interested in school, educable, and loved learning (page 64, lines 3-5). For the 2013-2014 school year provided the complete mandate of related services for all the students in the class (page 67, line 13).

Ms. , director of the testified that at the beginning of the 2013-2014 school year was on a level in and at a similar level in (page 76, lines 22-25). After the of the year, was placed in a class (page

78, lines 16-19). In November 2103 was introduced to the class and within a month she was experiencing a lot of success (page 91).

Ms. testified that there were approximately students in the class and that ’s skills for the 2013-2014 were near the level and that in the , near the end of the year that the school tried placing her in the class (page 92, lines 11-14). She eased nicely into that class and her skills were approaching grade level but not as strong as her skills (page 92, lines 21-23). Ms.

said that to assess ’s skills that the school used a benchmark assessment associated with the program and teacher made tests and observations (page 93, lines

1-4).

Ms. testified that generally when she meets with the IEP team that they are very responsive to her school’s concerns (page 96, lines 4-5) and that the resources listed under for as stated on her IEP are appropriate (page 97, line 1).

Ms. was not sure if the teacher in the and classes had a certification in special education (page 100, lines 12-13 and page 101, line 5). Ms.

testified that the and classes convene in the morning on but have abbreviated periods (page 101, lines 23-25). Furthermore, the class from is in (page 102); sometimes in the class students will read from a book (page 102, lines 22-23).

The parent testified that the CSE team was responsive to the concerns that she expressed (page 113, line 14). Additionally, that when she visited the recommended public school she had an opportunity to speak with the school representative about how the school would address her daughter’s needs (page

114, line 2). testified that the goals on her daughter’s IEP are appropriate (page 114, line 23).

THE PARENT’S CASE

Ms. , the Director of the “ ” testified that was on a level in and in (Tr. 76). She made a lot of progress and was more confident in her skills; when was unsure of herself or something was difficult, she could become (Tr. 77). The witness stated that ’s issues at the beginning of the school year, indicated difficulties with and was required (Tr. 78). She described as at the beginning of the school year (Tr. 80).

As per Mr. , the CSE team considered various evaluations at the IEP meeting, including a psychoeducational evaluation dated on June 29, 2011; they received information from the parent, the school and the service providers (Tr. 13); however there was no observation of the student performed by the CSE (Tr. 22).

Parent’s Advocate maintained that the recommended program and placement was not appropriate for because they did not have the and were not based on the student’s needs. More particularly, the DOE did not offer services and recommendations on the IEP sufficient to meet the student’s needs. In addition, the Parent maintained that record fails to establish that the recommendation of a class would meet the student’s needs in any event.

The DOE’s school witness, Ms. the special education coordinator at described the recommended program, explained that the teacher was licensed and certified and stated would receive all her related services. She described the instruction offered in the program discussed parent meetings and how often progress was reported to parents (Tr. 59, 60, 61). Parent’s Advocate maintained that there was no testimony from the witness concerning how the student’s needs, as discussed during the IEP meeting, could be met in this program which was being recommended for the child.

Additionally, it is argued that the witness was not provided with a copy of the student’s IEP, therefore any testimony concerning how the recommended placement in a could be appropriate was merely conjecture. The witness conceded that when a parent comes to observe the program and brings an IEP, the only thing that the school personnel look at is if the recommendation is for ; when questioned regarding if anything else is considered in the IEP her answer was “no” (Tr. 66). The Parent’s Advocate stated that the witness failed to explain how the IEP could be implemented in an appropriate manner in the recommended program.

Additionally, Parent maintained that the Annual Goals drafted for the IEP were not appropriate. More particularly it is the Parent’s contention that without consulting with the student’s current special educators concerning the finalized goals it is unclear how the CSE could have determined appropriate goals and objectives for the student.

Mr. testified that the finalized goals are not reviewed during the meeting; he stated that “we’ll tell the parent, we want to improve with her , so we are going to generate goals that the teacher can use to improve her (Tr. 31). It is the Parent’s position that the student’s current special educators who are most able to determine if goals generated by the team are appropriate do not have an opportunity during this meeting to review the finalized goals.

Parent maintained that the annual goals as drafted did not meet the student’s needs; the IEP the annual goals were not reflective of the student’s age, grade level and and the goals used vague wording such as increase and improve.

Furthermore, the annual goals were written without any information regarding the student’s in and as this information is not included in the IEP.

As per Ms. the is a program for students with and and is housed within , a school. Special education teachers are employed by the and the supervisor of the is a special educator (Tr. 71); the provides the students with their mandated related services of and , and (Tr. 73).

The Parent maintained that student’s classes at the met her daughter’s need for a of students with teaching and in areas of need. The student received the related service including and / services.

As stated above it is the Parent’s position that at the beginning of the 2013-2014 school year was on a level in and . was stated to have made a lot of progress emotionally compared to the prior school year; she became more confident in her skills, as an example when was (Tr. 78).

Ms. from the described ’s issues as having in and . Additionally, a social worker from The worked with her both on a basis to provide assistance for her and to provide the reassurance of someone who could reinforce

“if she was doing the right thing, or help her get started if she got nervous. And as she became, you know, more comfortable in the room, she was able to relax and really concentrate on her work “(Tr. 79). Furthermore, ’s would interfere with her being able to “

” (Tr. 79).

The measured the student’s progress, including teacher-based assessments and projects and confirmed that made progress (Tr. 81). The student’s progress is detailed in Exhs. F, I, J & K).

testified that she participated via teleconference at her daughter’s IEP meeting.

She recalled the discussion about her daughter being and agreed that it was problematic (Tr. 107). The parent stated that she did not agree with the recommendation and that the IEP demonstrated that she was “ ”; she concluded that the IEP could not be implemented at the recommended placement (Tr. 109). When the parent observed the recommended public school she brought along a copy of her daughter’s IEP. She recalled that she had spoken to the school witness and that she had commented on how was (Tr.

112).

For the 2013-2014 school year attended the and according to her mother she demonstrated progress. She met with the teachers and related service providers during the school year (Tr. 112). The student’s mother signed a contract with and began paying the school in September 2013 (Tr. 113).

Lastly, the parent maintained that she cooperated with the DOE, participated in the IEP meeting and provided the requisite written notice to the CSE expressing her concerns regarding the recommended placement and her intent to enroll the student in The for the 2013-2014 school year at the DOE’s expense. Parent’s advocate maintained that there are no equitable considerations that should preclude the parent’s request for tuition funding in this matter.

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 (20U.S.C.

section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. 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]

In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Disability, Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532.

A school district provides a FAPE 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. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. 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 it developed a proper IEP.

Parent’s advocate maintains that the DOE failed, procedurally and substantively, to offer a FAPE for the 2013-2014 school year. Decisions regarding IEPs and the provision of related services must be governed by a student's needs, rather than matters of administrative convenience or cost for the district. 34 C.F.R. § 300.116[b] [2]; 8 NYCRR

200.6[a] [2]; see Rowley, 458 U.S. at 203; A dams, 195 F.3d at 1150-51; Reusch, 872 F.

Supp. at 1425-26; see also Placem ents, 71 Fed. Reg. 46588 [Aug. 14, 2006]; Letter to

Clark e, 48 IDELR 77 (OSEP 2007).

I agree with the Parent and find that the IEP prepared for failed to describe in detail the results of her most recent evaluations, as well as an accurate and consistent description of her strengths, then-present levels of academic achievement and functional performance, as well as the concerns of the Parent regarding her educational needs. 20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. §300.324. In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation, the student's strengths, the concerns of the parents for enhancing the education of their child, the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations. 34 CFR

300.324(a); 8 NYCRR 200.4(d)(2).

I agree that that the goals are vague, outdated and fail to address all of the areas in which ’s disability impacts upon her ability to progress; the IEP fails to adequately detail her current

. The IEP does not include adequate information regarding - and needs. The DOE’s failure to have updated evaluations that assessed her needs, to include information from the existing evaluations as well as feedback from the Parent and outside providers in the IEPs, rendered the IEP inadequate and demonstrate the DOE’s disregard for ’s individual needs.

Additionally, an IEP must include a written statement of measurable annual goals, including academic and functional goals tailored to the student’s needs that result from his or her disability, to enable the student to make progress. See 20 U.S.C. § 1414 (d)(1) (a)(i)(ii); 34 CFR 300.320(a)(2)(i); 8 NYCRR 200.4(d)(2)(iii)). Each annual goal must include evaluative criteria, evaluation procedures, and schedules to be used to measure progress. 8 NYCRR 200.4(d)(2)(iii)(b); 20 U.S.C. § 1414(d)(1)(a)(i)(III); 34 CFR

300.320(a)(3).

The CSE team considered evaluatory documents for the IEP meeting; a DOE-conducted psychoeducational evaluation dated on June 29, 2011, information about how was doing from the parent and the school and the providers both in written reports and at the meeting. Notably, there was no classroom observation of the student performed by the CSE (Tr. 22). An observation would have provided a comprehensive picture of the student and her needs. Parent maintains that there is a good deal of information contained in the evaluation that did not sufficiently make it into the IEP. The CSE failed to sufficiently describe the student’s needs in the IEP and how they should be addressed.

I agree with Parent’s Advocate that the IEP and the evidence failed to establish and or describe the ways in which the student’s needs would be addressed by the CSE’s recommendations including the needs as outlined as well as the needs as described by the representative from her current school and her parent during the IEP meeting (Ex. B). The

IEP fails to address how the recommended program in IEP would address the student’s needs.

The ways in which the student’s needs would be addressed must be included in the IEP in the CSE’s services and recommendations instead of relying on what might be offered in the recommended placement. R.E. held that courts and IHOs hearing claims may not consider services the district "would have" provided in determining whether the district offered FAPE. R.E. on behalf of J.E. v. New York City DOE, 694 F.3d 167, (2nd

Cir. 2012).

Furthermore, the DOE did not offer services and recommendations on the IEP sufficient to meet the student’s needs as noted above. The record fails to establish that the recommendation of a class would meet the student’s needs. The DOE’s school witness, the special education coordinator at described the recommended program, explained that the teacher was licensed and certified and stated would receive all her related services. She described the instruction offered in the program, discussed parent meetings and how often progress was reported to parents (Tr. 59, 60, 61).

However, there was no testimony from this witness concerning how the students needs, as discussed during the IEP meeting, could be met in this program which was being recommended for the student. The witness was not provided with a copy of the student’s IEP, therefore her opinion that the class at her school could be appropriate was not entirely credible. The sole school witness admitted that when a parent comes to observe the program and brings an IEP the only thing school personnel look at is if the recommendation is for school program. The witness was further questioned concerning anything else school personnel look at on an IEP for a student who may be attending the school her answer was “no”. The school witness failed to credibly explain how the IEP could be implemented in an appropriate manner in the recommended program.

The present levels of performance and individual needs outlined on a student's IEP serve as the foundation on which the CSE builds to identify goals and services to address the student's individual needs (see 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; see also Office of Vocational and Educational Services for Individuals with Disabilities (VESID), “Sample Individualized Education Program and Guidance

Document,” p. 40 [December 2002]). Without consulting with the student’s current special educators concerning the finalized goals it is unclear how the CSE could have determined appropriate goals and objectives for the student. An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. §

300.347[a][7]).

It is undisputed that the IEP witness testified that the finalized goals are not reviewed during the meeting. As an example he stated that we’ll tell the parent, we want to improve with her , so we are going to generate goals that the teacher can use to improve her comprehension (Tr. 31). The problem here is that the student’s current special educators who are most able to determine if goals generated by the team are appropriate do not have an opportunity during this meeting to review the finalized goals. In the student’s case, the CSE failed to draft appropriate, measurable goals regarding the student’s needs including her needs as a classified and impaired student. The DOE’s witness’ testimony on this point also pointed out that the goals were likely not finalized until after the IEP meeting itself, which would have denied the parent and the other participants a chance to participate in the development of the goals.

Additionally, Parent’s advocate maintained that the annual goals as drafted did not meet ’s needs; the annual goals were not reflective of the student’s age, grade level and and the goals used vague wording such as increase and improve. In addition, the annual goals were written without any information regarding the student’s in and as this information is not included in the IEP.

I find that the DOE failed to satisfy the burden of showing the appropriateness of the IEP and its recommendations. The 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 child's special education needs (see Gagliardo, 489 F.3d at 112, 115; Frank G., 459 F.3d at 363-64; Walczak, 142 F.3d at 129; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]).

An appropriate program is one that is "likely to produce progress, not regression" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], quoting

Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 [5th Cir. 1997], cert. denied, 522 U.S. 1047 [1998]). 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 test for a parental placement is that it is appropriate, not that it is perfect

(Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105). With respect to the appropriateness of a private school placement, "[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 also Gagliardo, 489 F.3d at 112).

The is a program for students with and and is housed within , a school. Special education teachers are employed by the ; the students also receive their mandated related services of and , and . The record is clear that the met the Student’s Special Education Needs and that she made progress during the 2013-2014 School Year The student’s classes at the met her need for a (in this case, students) and teaching and in her areas of need. The student also received the related service of from a licensed provider on staff at the . Her and needs were addressed at the .

At the beginning of the 2013-2014 school year she was on a level in and . She made of progress emotionally from the prior school year and was more confident in her skills. Ms. of The testified that the issues which impacted on her classroom were and , some . A social worker from The worked with her both to work with her through the .

The measured the student’s progress, including teacher-based assessments which established that made progress. The parent stated that she did not agree with the recommendation and that her IEP demonstrated that she was brighter than the students at the school and concluded that the IEP could not be implemented at the recommended program (Tr. 109). When the parent observed the recommended public school she brought along a copy of ’s IEP and recalled that she had spoken to the school witness who commented on “ ”.

For the 2013-2014 school year attended the at the and demonstrated progress. met with the teachers and related service providers during the school year; she signed a contract with and began paying the school in September 2013. For all of the aforestated reasons, the parent has met her burden in establishing that the was an appropriate placement for her daughter for the 2013-2014 school year.

Regarding equitable considerations, the parent has evidenced her cooperation with the DOE. She participated in the IEP meeting and provided the requisite written notice to the CSE expressing her concerns regarding the recommended placement and her intent to enroll the student in The for the 2013-2014 school year at the DOE’s expense.

There are no equitable considerations that would preclude the parent’s request for tuition funding in this matter.

However, Ms. Parish testified that the and classes in the mornings on . Additionally, the class from . Ms. testified that sometimes in the class that students will read from a book.

A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” See N.R., on behalf of T.R., v. The Dept. of Educ. Of the City Sch.

Dist. Of the City of New York, 2009 WL 874061 (S.D.N.Y., March 2009). The Court looks at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. See id. at 16. Both parties’ positions are considered.

See SRO Appeal No. 04-045.

Nothing in this case suggests that the parents ever acted inequitably. The parent continually cooperated with the Committee on Special Education. The parents signed a contract with the for the 2013-204 and paid the full amount of tuition. As they have met the Burlington factors, they have a right to tuition reimbursement. Mr. and Mrs.

A v. NYC Dept. of Educ., 09 CV 05097 (February 1, 2011).

“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 SRO Decisions 05-030, 04-091, 04-049. The parents cooperated with the CSE throughout the process and never obstructed the CSE. Despite the parents’ detailing their concerns about the IEP and placement recommendations, the CSE never remedied the issues or gave the parent an opportunity to discuss an alternate program for , consequently, equity favors the parent.

As it is my determination that the Department failed to offer a FAPE for the 2013-2014 school year. I find that approximately of the school day is devoted to “ ” and accordingly that the tuition to be paid by the DOE be reduced by Therefore the Department shall be obligated to pay the sum of as per my order attached hereto.

Dated: February 23, 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 THE RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date Pages

A. Impartial Hearing Request 2/10/12 4

B. Program Description undated 2

C. IEP 5/23/13 13

D. FNR 6/12/13 2

E. 10 Day Notice 8/12/13 2

F. Student Progress Report 2013-2014 1

G. Class Schedule 2013-2014 2

H. Class Profile 2013-2014 1

I. / Report 03/14 1

J. Report 03/04/14 2

K. Assessment 3/3/14 1

L. Affidavit of Payment 5/28/14 1

M. Enrollment Contract 2013/2014 1

N. Proof of Payment 2013/2014 1

DEPARTMENT’S EVIDENCE

1. IEP 5/23/14 13

2. FNR 6/12/13 1

3. School Progress Report 5/22/13 1

4. Assessment 5/21/13 1

5. / Report May 2013 2