New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165111

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 25, 2017

May 16, 2017

June 12, 2017

Actual Record Closed Date: August 7, 2017

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2017

Attorney Mother — Parents

via telephone — Parents

Attorney — DOE

via — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2017

Attorney Mother — Parents

via — Parents

telephone

via — Parents

telephone

via — Parents

telephone

District Representative — DOE

via — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2017

Attorney Mother — Parents

via — Parents

telephone

via — Parents

telephone

(via telephone) — Parents

Attorney — DOE

On January 9, 2017, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of (hereinafter the Student). The hearing was convened at the request of the parent that was received on January 9, 2017. Hearings were held on April 25, 2017, May 16, 2017 and June 12, 2017. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exhs. I-IV ;V III; Tr. at 98-

99;284;464). The current record close date is August 7, 2017 and the compliance date for issuing a decision is August 21, 2017.

The hearing was requested by the parents to challenge the July 20, 2016 review and recommendation of the Committee on Special Education ("CSE") and to obtain funding for the (" "), a private entity lacking New York State Education Department approval. The parents seek a Final Order for the following: (a)

reimbursement/funding payment for the tuition for the program at for the 2016-2017 school year; (b) ; (c)

reimbursement for if the Department of Education ("DOE") fails to provide

; (d) tuition and costs for ;

(e) ; (f)

; (g) compensatory education for all pendency services that the Student did not receive and (h) compensatory education for all educational services that the Student was entitled to but did not receive (Exh. 25 at 15). The parent submitted proof of payment for in the amount of , (Exh.

U) and submitted proof of payment for an independent evaluation by Dr.

in the amount of (Exh. V). The parents withdrew their request for the following relief: (e) through (g) (Tr. at 427).

The parents claim that the DOE failed to offer a free, appropriate public education ("FAPE") and asserts that the July 20, 2016 IEP was procedurally and substantively defective and that the DOE failed to offer an appropriate placement in an

(Exh. 25 at 6 - 14). Further, the parents claim that the 2016-2017 school year placement they unilaterally provided for the Student at is appropriate and that equitable considerations warrant prospective funding for tuition for and reimbursement for the (Exh. 25 at 14).

By letter dated September 8, 2016, the parent rejected the placement and informed the DOE of her intent to enroll the Student in for the 2016-2017 school year and seek tuition reimbursement for and reimbursement for the costs for the

(Exh. 1 at 4).

BACKGROUND

The Student is a currently attending for the 2016-2017 school year.

On December 2015, the Teacher Report indicated that the Student was attending

(" ") and the Student struggled with

(Exh. 15 at 5).

A Social History was conducted on December 2015 when the Student was and at in during an initial evaluation to determine if special education services were warranted. The reporter noted that the Student struggles with (Exh. 12 at 1).

On January 6, 2016, the Classroom Observation indicated that the Student

" " (Exh. 11 at 1) and "

" and " " (Exh. 11 at 2).

On January 11, 2016, the evaluation was conducted on the Student when he was and at in . The evaluator noted that the Student's weaknesses were "

" (Exh. 9 at

4), and recommended (Exh. 9 at 5).

On February 4, 2016, a report was conducted, an assessment on the Student. The evaluator used the and found when the Student was and attending at (Exh. 8 at 2). The was in the and the was in the and the was in the (Id.. The Student's were assessed by the and the Student scored a grade equivalence

("GE") of , a GE of , a GE of , a GE

of and (Exh. 8 at 4).

On March 30, 2016, the Evaluation was conducted when the Student was and the evaluator noted that the Student received since September 2015 to (Exh. 10 at 1) The evaluator found that the Student continued "

" and recommended with "

" (Id.). The evaluator further recommended "

"(Id.).

On March 30, 2016, a was done by the Student's parent and teachers and the indicated "

" (Exh. 14 at 4). The Student's

fell in the and his fell

in the (Id.).

On April 4, 2016, an Individualized Education Services Program ("IESP") was developed by the CSE and the Student was found eligible for special education services and CSE classified the Student with and recommended related services of

(Exh. 19 at 8;

20 at 2).

, conducted a evaluation on various

dates in June and July 2016, when the Student was in at and assessed on the and the results indicated

(Exh. 7 at

17). She used the and found that the Student scored aGE of , aGE of , aGE of , aGE of , aGE of and aGE of (Exh. 7 at 19).

She noted that the Student was previously diagnosed with and had a history of (Id.). She used and noted that the mother noted and that the teachers noted (Exh. 7 at 13). She

used the and found that the

Student had minimal to no symptoms of (Exh. 7 at 19). She recommended (Exh. 7 at 14). She further recommended an program (Id.).

On July 5, 2016, the parent requested that the CSE develop an IEP not an IESP and offer a public school placement (Exh. 22 at 1).

On July 12, 2016, the CSE meeting notice indicated that the CSE would meet on July 25, 2016 (Exh. 23 at 1).

On July 20, 2016, the CSE met and classified the Student with a and recommended that the Student be placed in an and receive related services of a (Exh. 2 at 12-13).

On September 15, 2016, the parent wrote to CSE to express her dissatisfaction after her visit to the recommended placement at on September 7, 2016 (Exh. 24 at 1). The parent stated that her son struggled in a and that Dr.

recommended and the DOE evaluations noted that her son had

(Id). She stated that the IEP coordinator, Ms.

, told her that the proposed class of about in an was not appropriate and the student population in the environment of the school was not appropriate (Exh. 24 at 2;Tr. at 406).

THE DOE'S CASE

The DOE representative presented the testimony of and for the 2016-2017 school year.

Ms. , and

, testified that she was certified as a for grades and held master's degrees in .

She stated that for the past 18 years she was employed as a Teacher and for the past 3 years she was employed as a Coordinator by the DOE and was currently employed as a at (Tr. at 24). She related that the population at her school was for grades (Tr. at 30). She described the special education classes offered for each grade in her school were either a or an (Id.). She opined that for the 2016-2017 school year there would have been related services of a available for the Student had he attended as well as an (Tr. at 37). She recalled meeting the parent on September 7, 2016, and that the parent gave her the school location letter for her school and recalled her discussion with the parent regarding her son's proposed classroom (Tr. at 40).

On cross Ms. stated that she did not participate in the July 20, 2016 IEP meeting for the Student and that no child in her school was underserved (Tr. at 47). She explained that a meant that (Tr. at 48).

Ms. , a holder of a Master's degree in and certified in NYS as a , employed by the DOE at , a school for grades

grades (Tr. at 111). She stated that she was responsible to assess students and provide for students (Tr. at 112). She noted that she was familiar with the Student as she participated in the July 20, 2016 IEP meeting as and district representative (Tr. at 117) as did his then current teacher and at (Tr. at 118). She recalled that the IEP indicated that the Student had and had

(Exh. 2 at 1; Tr. at 127). She related that the Student had (Tr. at 129), as well as (Tr. at 130). She

reported that the IEP team recommended an as well as (Tr. at 132). She noted that the had (Tr. at 135), and that the was recommended so that the Student would be supported with (Tr. at 136). She recalled that the parent requested a than the (Tr. at 134). She listed the management needs on the IEP that included (Tr. at 141). She stressed that the classification of was appropriate and noted that while the Student was , his deficits were more related (Tr. at 144). She did not recall that the parent disagreed with the classification and that with related services were appropriate as the Student's IEP would have been implemented as written and opined that the Student would have made meaningful progress (Tr. at 146).

On cross Ms. stated that the had a range of to students (Tr. at 147). She recalled that the team reviewed Dr. 's report, (Exh. 7), the Classroom Observation (Exh. 11), the end-year report (Exh. 6) and the Teacher Report (Exh. 15) and that the Classroom Observation indicated that the Student struggled in his then current class of (Tr. at 150). She stated that she did not recall if the team discussed Dr. 's recommendations, but did recall the team discussed a and a and a non-public school ("NPS") program (Tr. at

151). She reviewed the CSE minutes (Exh. 3) and noted that the Student as reported by the Student's then-current teachers and at , who participated by telephone (Tr. at 155). She acknowledged that the minutes reflected that the Student (Tr. at 158). She

stressed that there was no discussion of a versus a at the IEP meeting and that she acknowledged that she was unaware of when the Student would be without (Tr.

at 162-163). She opined that the Student did not require a as indicated on the IEP (Tr. at 166), despite the IEP's description of the Student's and (Tr. at 168). She explained that the IEP mandated a as the Student and (Tr. at 170). She maintained that the Student's would be addressed by (Tr. at 172). She acknowledged that she did not recall a discussion of the frequency of and that she did not recall discussion regarding the Student's need for an provider to address his (Tr. at 176). She stressed that the person who observed the Student was present at the meeting and that there was no discussion of a despite the the Student displayed by noted on the classroom observation (Tr. at

176), and stressed that there was no document considered by the CSE nor any input from the members necessitating the creation of a (Tr. at 188). She acknowledged that the parent cooperated with the CSE (Tr. at 179), and stated that she did not recall a discussion regarding the criteria for the classification of or (Tr. at

184).

THE PARENTS' CASE

The parent,

, testified in support of Case No. 165111

the parent's claim for prospective payment for and reimbursement the for the Student for the 2016-2017 school year. The parents' attorney argued that the district failed to offer the student a FAPE for the Student who required a who struggled with (Tr. at 201). The parents' attorney asserted that the Student struggled in the with and the recommended was a setting (Tr.. at 202). She noted that both the teachers and the parent requested a at the IEP meeting as the Student had and that there was no discussion of goals, or classification and no and that that provided a program to address the student's unique needs (Tr. at 204).

Dr. testified that she had a doctorate in and was a (Tr. at 53) and was employed as a at and was in private practice for students aged (Tr. at 54). She stated that she conducted a evaluation on various dates in June and July 2016 (Exh. 7) and observed the Student in his class at and met with , the and noted that the Student needed (Tr. at 58). She noted that the Student was and required more than the class with a student to staff ratio of (Tr. at 60). She stated that she gave the to the parent and teachers completed the and observed (Tr. at 61). She stressed that the Student had (Tr. at 62), and that he required (Tr. at 63). She stated that her results on tests revealed

, but (Tr. at 64). She noted that the Student had as well as (Tr. at 66), (Tr. at 68). She explained that the Student met the diagnosis of Case No. 165111

. She recommended (Tr. at 69-70). She opined

that the would not be appropriate as the would not support his deficits and (Tr. at 74). She opined that the Student required to address his difficulties with and to address (Tr. at 75). She noted that while the Student had his most prominent difficulty was (Tr. at 87), and that a class of students would be beneficial with a teacher and not a to meet his needs (Tr. at 94).

, the , testified that as an with a student population of (Tr. at

209;217). She stated that the Student attended the in a class with so the staff to student ratio was and that the had master's degrees in and that possessed bachelor's degrees and another attained a master's degree in (Tr. at 218). She stated that the Student's progress was assessed weekly and that the related service providers pushed into the Student's classroom (Tr. at

219). She explained that the Student's rigidity was addressed by the teachers, who used (Tr. at 224). She opined that the Student and , but had many strengths and (Tr. at 214). She explained that was able to address the Student's deficits by his , who were and , and (Tr. at 215). She explained that the Student was placed in the that consisted of (Tr. at 220). She noted that the related service providers developed a matrix of goals for the (Exh. M at 2) and that the goals were reviewed every 6 weeks with the teachers and parents to ensure that the Student's deficits were addressed by successful strategies (Tr. at 222). She stressed that the Student's was addressed by (Tr. at 224). She described that was with so and that because (Tr. at 226). She opined that the Student benefitted from because and that (Tr. at 228;239), and benefitted the Student (Tr.

at 240-241). She further opined that the Student progressed in his goals by and that the Student progressed in his by and in (Tr. at 229). She related that the Student and opined that the Student was appropriately placed at and his needs (Tr. at 230).

, a NYS licensed and certified employed by for the 2016-2017 school year, testified that she provided to the Student along with 20 other children (Tr. at 248). She stated that she provided to the Student (Tr. at 255).

She described that the Student's deficits in were addressed the and such as and noted that and included (Tr. at 249-252;255). She described his progress in in that allowed him to and to and to (Tr. at 253). She opined that the Student progressed in and improved (Tr. at 253).

, a NYS licensed and certified provider employed by for the 2016-2017 school year, testified that she provided to the Student to address (Tr. at

259). She described the Student's deficits in as deficits in (Tr. at 260;270). She opined that the Student made significant improvements in his (Tr. at

261;265). She opined that the Student (Tr. at 264). She

explained that all the would meet every day to discuss the children informally and formal meetings with all the occurred weekly and formal meetings with the teachers twice monthly (Tr. at 266). She noted that the staff emailed with each other and that the parents and the teachers would meet 4 times per year with the reports from the related service providers (Tr. at 267). She stressed that the Student and progressed in his goals and improved so that he did not need (Tr. at 276;281).

Dr. , a holder of a doctorate in and NYS

licensed and certified employed by for 4 years, testified that the Student was enrolled as in at for the 2015-2016 school year and she had observed him frequently in the classroom and in the that focused on (Tr. at 296). She recalled that she participated in the IEP meeting for the 2016-2017 school year in person and shared anecdotal information to the team (Tr. at 297). She recalled that she informed the CSE team that the Student had (Id.). She stated that she conveyed to the CSE team that the Student and that impeded his ability to (Tr. at 298).

She recalled that the team discussed the Student's need for a and a to support the Student (Tr. at 300). She opined that the DOE with was not an appropriate program for the Student (Tr. at 302). She recollected that the Student struggled at by in his class of at (Tr. at 303).

Ms. NYS licensed and certified employed by for the 2016-2017 school year, testified that she was the for the at ,a program for children aged years (Tr. at 310). She stated that she provided to the Student at for to address his deficits in (Tr. at 311).

She explained that she worked on and (Tr. at 312). She described the session started with and opined that the Student (Tr. at 316). She stressed that the Student's were addressed in school, but that the Student required (Tr. at 317). She

explained that worked with the Student

in his and opined that benefited

the Student as he (Tr. at 318). She explained that the Student required different providers so that he could (Tr. at 321). She stressed that she constantly spoke with the Student's parent to learn what the Student worked on school so that the providers could focus on the same goals as the providers to (Tr. at 324-325).

Ms. , a possessor of a Master's degree in and currently employed by as for 2016-2017 school year, testified that the Student was in her class with (Tr. at 329). She noted that the Student was grouped with peers who were and capable of (Tr. at 331).

She described the Student's challenges in and explained that a teacher would provide assistance to enable him to (Tr. at 336). She opined that the Student progressed as he was able to and he progressed in (Tr. at 337;372). She further opined that the Student progressed and in (Tr. at 340), and his improved as he was able to (Tr. at 352). She related that she met formally with the Student's related service providers once a month and informally with the related service providers after a session to carry on in the classroom the strategies the related service providers worked on with the Student in (Tr. at 344;356). She explained that student population for the was with (Tr. at 351). The teaching staff in the Student's class included Ms. , the and another (Tr. at 218) and with educational degrees formally assigned to the class and another who possessed a bachelor's degree who was (Tr. at 363). She stressed that there was as well as and that the Student benefited from (Tr. at 378).

The parent stated that son was placed in a class in for the school year 2015-2016 and that he struggled with , and as well as (Tr. at 384). She recalled that his teachers at attempted to provide , but did not improve (Tr. at 385). She recalled that she had her son evaluated privately and attempted to contact the DOE in April 2016 to request an IEP meeting for a public school placement, but that only an IESP meeting was conducted (Tr.

at 389). She recalled that she requested an IEP meeting and attempted to find a in public school (Tr. at 393). She stressed that during the IEP meeting there was no discussion of the classification (Tr. at 396). She stated that she was not aware that she could question the classification; there was no discussion of the (Tr. at 442); there was no discussion of a smaller class size ratio of or (Tr. at 397; 440).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. A rlington Cent.

Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M .S . ex rel. SS. V . Bd. of Educ. of the City Sch. Dist. of the City of Y onkers, 231 F.3d 96 at 103 (2d Cir. 2000); see W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy'' or "guarantee any particular level of education" (W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In A pplication of the New Y ork City Dept. of Educ., Appeal No.12-087, the SRO held that 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)."

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parents have asserted substantive and procedural defect claims and claim that the procedural deficiencies seriously infringed on the parent participation in the IEP and resulted in a denial of FAPE and also challenge the placement proposed by the DOE. I find the DOE's claim that its program was appropriate was not supported by the district's evidence (Exh. V at 5 -10). I credit Dr. 's testimony of the Student's such as (Tr. at 303). I credit Ms. ' testimony that the Student had and had as (Exh. 2 at 1; Tr. at 127), that the Student had and the (Tr. at 129), as well as (Tr. at 130). I find the with a and related services was not appropriate to meet the Student's special education needs and was contrary to the recommendations for Dr. .

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material (8 NYCRR 200.4[b][4][5][6]). The parents' attorney asserted many procedural flaws in the July 20, 2016 IEP: the team failed to provide the parents with prior written notice; the team failed to include any related service providers; the Student's then current teachers and were denied meaningful participation; the team failed to develop a and a ; the July 20, 2016 was invalidly constituted (Exh. 25 at 8) . The parents' attorney asserted many substantive flaws: no ; the DOE predetermined the program; and the DOE refused to consider a NPS placement (Exh.

25 at 9). The parents' attorney asserted that the goals and objectives were inappropriate and the IEP did not meet the Student's and (Exh. 25 at 10). The parents' attorney asserted that the DOE failed to timely evaluate per Jose P., and failed to timely evaluate the Student and did not conduct its own evaluations and failed to meaningfully consider the private evaluations. the parents and argued that the placement would not enable the Student to progress and maintained that the placement was not discussed at the IEP meeting (Exh. 25 at 12). The parents' attorney asserted that the recommended placement was not appropriate due to the in light on the Student's and the was not appropriate and there were no , no and the would not provide the Student with " " recommended by the evaluations (Exh. 25 at 13).

As to the claim that the DOE failed to follow the requirements to notify the parent under 8 N.Y.C.R.R. § 200.5[a], I find that the parent was never provided with any explanations of why the district refused to provide her son with a more specialized program and she was never given notice of any other programs or services considered.

The parent's attorney asserted that no evaluations were done to identify the student's needs as required and that the CSE failed to consider Dr. 's evaluation or incorporate the results of the in the IEP (Exh. VI at 9).

The parents' attorney argued that the "team had the benefit of Dr. ’s expert clinical opinion ... and they failed to recommend a . In

C.D. and T.B. v. New Y ork City Dep’t of Educ., No. 15-CV-2177, 2016 WL 3453649

(EDNY June 20, 2016), the Court concluded that the IEP’s failure to recommend a small school placement denied the student a FAPE" (Id). I find that both Dr. 's evaluation (Exh 7 at 14) and the Evaluation recommended a "

" (Exh. 10 at 1).

I find it was a denial of FAPE not to consider the evaluation or the evaluation in the IEP. There was no testimony to identify the evaluative data considered to determine that the with a and related services was an appropriate placement. I credit the parent's testimony that she disagreed with the (Tr. at 384). I credit Dr. 's testimony that she disagreed with the (Tr. at 298), and I find the district failed to establish which documents the CSE considered or how the student could be appropriately placed in an

.

As to the claim that the team was not validly composed because there was no related service providers and no parent member I find that assertion was not contested and I find there was no testimony at the hearing to establish that the required members were present. Therefore, I find the July 20, 2017 IEP team was not validly composed.

The parents attorney further argued that the IEP team did not conduct the necessary assessments including a or a to address .

(Exh. V I at 11). I agree and I find that under 8 N.Y.C.R.R. § 200.4[b][1][v] an was required as . I find the record was replete with examples that as documented in the Teacher Report (Exh. 15 at 5), the Social History (Exh. 12 at 1), the Classroom Observation (Exh. 11 at 2), the Evaluation (Exh. 10 at 1) and the Dr. 's (Exh. 7 at 14). I find testimony adduced detailed the (Tr. at 58,68,297-298) and I find that the failure to address was a denial of FAPE. I further find that there was no assessment conducted to ascertain the physical, mental, behavior and emotional factors that contribute to the Student's disability. I find that the team was required to conduct the and then design a to as required under 8 N.Y.C.R.R. § 200.22[b]. Accordingly, I conclude the IEP did not adequately address the and in these circumstances, I find the lack of a was a denial of

FAPE.

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

The parents' attorney asserted that the IEP team ignored the parent's concerns at the July 20, 2016 EIP for a placement with and a with more and that the team could not consider a placement in a . The parents' attorney argued that there were no evaluative materials present at the CSE meeting that recommended that the Student "could benefit from some setting other than a small integrated class. A .M. v. New Y ork City Dep’t of Educ., 845 F.3d 523, 541 (2nd Cir. 2017)" (Exh. IV at 6). I agree and I find that the evidence established that the Student struggled in his class with in a class of , and I find that the CSE did not establish how the Student could progress in an . I find that the CSE team was aware of the need for sufficient support as I credit Dr. 's testimony that she informed the team that and that (Tr. at 298) and I credit her testimony that the team discussed the Student's need for a and a to support the Student (Tr. at 300).

The parent's attorney asserted that the proposed placement had a than the class and did not offer the only a and so the Student (Tr. at 47, 161). I find that the district's witness stated that the Student required as and (Tr. at 170). I find that there was insufficient evidence to conclude that a with with a would enable the Student to make meaningful educational gains and I find that the inappropriate with related and with a caused a deprivation of educational benefits. I credit the parent's testimony that she was not aware that she could question the classification and that there was no discussion of the (Tr. at 442) and there was no discussion of a (Tr.

at 397;440), and I find the lack of discussion of a impeded the parent's opportunity to participate in the decision making process.

I find that the CSE team ignored the parent's request for more support which significantly impeded the parent's opportunity to participate in the decision making process. I find the program recommended was made in contradiction of the parent and Dr.

's request for a (Tr. at 299, 302) for a and in contradiction of the evaluation and the evaluation. I find there was no evidence presented to support the as the Student

.

Because I find the IEP is procedurally defective and FAPE was not provided to the Student for the 2016-2017 school year I could end my inquiry; however, I note the parents made several claims of substantive defects.

I find that the IEP team did not provide for mandatory as required under 8 N.Y.C.R.R. § 200.13[d]. I find that the Student was diagnosed with (Exh. D at 17) and I find that the lack of in the IEP was a denial of FAPE.

The parents' attorney argued that the IEP team ignored the parents concerns since the CSE had already predetermined its recommendation prior to the meeting for an . "'While it is true that '[m]ere parental disagreement with a school district's IEP and placement recommendation does not amount to a denial of meaningful participation,' A .P.

v. New Y ork City D ep't of Educ., No. 14 Civ. 477,2015 WL 4597545, at *8 (SDNY July 30, 2015), the CSE still has a procedural obligation to consider whether a student requires a more restrictive ratio than is available through public schools." J.E. v. New Y ork City D ep't of Educ.,229 F.Supp.3d 223, 237 (SDNY 2017). Failure to do so 'would amount to predetermination'" (Exh. V I at 10). I agree.

The parents' attorney asserted that the goals were insufficient and inappropriate and not developed with the parent. I agree and find that the goal mandated a and an (Exh. 2 at 8) and the IEP did not state how the goal would be achieved. The parents' attorney argued that the there were no goals for and no goals to address (Exh. 25 at 10). I agree.

The parent's attorney argued that the DOE failed to provide an appropriate placement for the Student and noted that the inconsistent testimony of the district's witnesses regarding when the Student would have the "

"

versus no "

" (Exh. V I at 12). I agree and find the lack of specificity of the 's availability for the Student rendered the placement inappropriate.

Therefore, I find the district failed to establish that FAPE was provided during the 2016-2017 school year as I find CSE failed to offer an appropriate program and placement for the 2016-2017 school year.

When a public school system has failed to provide FAPE, the program and "services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park ., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. "Ultimately the issue turns on whether a placement…is 'reasonably calculated to enable the child to receive educational benefits.'

[internal citations omitted] …", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

Parents 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. Id. at 364-365.

See also Gagliardo v. A rlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

Testimony adduced at the hearing clearly demonstrates that the was a and met the Student's needs as recommended in the evaluation. I credit the testimony of Dr. that the Student had and I find these deficits were addressed at due to the with and the of and . I credit the testimony of the and find that the Student's special education needs were met by the program with and as evidenced by his progress. I find that the was able to meet the Student's and were addressed by the teachers, the related service providers and the at (Tr. at 215).

I find the Student's was addressed by (Tr. at 224). I credit the testimony that the Student's was addressed by and I credit the testimony that the addressed (Tr. at 228;239). I credit the Teacher's testimony that with she was able to meet the Student's special education needs and that he progressed (Tr. at 340;352) and that he progressed (Tr. at

337;272). I find special education techniques were used at to address the Student's specific special education deficits in were met with

.

The District representative argued that the did not meet the least restrictive environment requirement (Exh. V at 14 ). The District representative further argued that because it was "

" (Id.). I find the parent's

placement may not be held to certain requirements that Districts are held such as teacher licenses or least restrictive environment requirement ("LRE") under Frank G. and G agliardo and the unilateral placement is a not perfect placement. M.S.. ex rel S.S. v Bd.

Of Ed., 231 F.3d 96 (2d Cir. 2000). I find that there was close coordination between the who had master’s degrees in and (Tr. at

218;329) and the and the related service provides and I find that was appropriate. I find that met the Student's special education needs including his needs. I credit the testimony of the teacher and find that the Student's were addressed by and

.

Testimony and evidence adduced at the hearing established that the Student had issues as

(Exh. 7 at 17; Tr. at 62,64,74). I find these issues were addressed by and I find that the Student's issues were addressed by . Further, I find that LRE was not required to render appropriate.

Testimony adduced at the hearing clearly demonstrates that provided a . The parent asserted that was appropriate because the Student had made progress at . The evidence presented from the parent indicated that were issues for the Student and I find testimony adduced at the hearing established that these special education needs were met by his regular education teachers and special education teachers who provided to ensure the Student's deficits in were addressed. I find that the classroom teachers addressed the Student's deficits using (Tr. at 224). I credit the testimony of the and teacher and I find that the Student progressed . I find the Student's teachers met his needs in . I credit the testimony of the provider and find the Student's improved by (Tr. at 261;265) and improved (Tr. at 264). I credit the testimony of the provider and find that the Student's deficits in were addressed (Tr. at 249-

252;255). I find the Student was grouped appropriately for his needs and his at (Tr. at 263) and I find that the Student (Tr. at 327;373). Accordingly, I find that the Student's needs were met at . Therefore, I find that the parents met their burden regarding the unilateral placement of the Student at for the 2016-2017 school year and the program at met the Student's unique special education needs.

I find that the testimony established that is a program for students aged which focuses on (Tr. at 210). I find that Dr. recommended . I credit the testimony of the and find that the Student's were addressed in school, but that the Student required (Tr. at 317). I credit the 's testimony that worked with the Student and find that the program benefited the Student as he demonstrated (Tr. at 318). I further credit the 's testimony that the Student required different providers so that he could (Tr. at 321).

Therefore, I find that the parents met their burden regarding the unilateral placement of the Student at in each of the three semesters that the Student participated in during the 2016-2017 school year: one for fall 2016, (Attachment A) and one for winter 2016/2017, (Exh. O); and one for spring 2017,( Attachment B).

The third prong of the test for tuition reimbursement is whether the equities favor the parent's position. I find that the parent established the third prong. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his "removal", (3) took actions determined to be unreasonable. 28 U.S.C. Section

1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to enroll the Student at for the 2016-2017 school year when no appropriate program/placement was offered (Exh.1) after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parents' claim for reimbursement and direct funding for and reimbursement for the program. I credit the testimony of the parent and find that she signed the contract after no appropriate public school placement (Tr. at 416) was offered and that she could not afford the tuition of (Tr. at 410) and that she wanted the DOE to provide (Tr. at 423). In this case, I find that the parent fully cooperated with the district to the best of her ability. I credit the parent's testimony that she would have considered a public school placement. I find that the equities favor the parent's position.

ORDER

Therefore, it is hereby ordered that the DOE reimburse the parent for the in the amount of (Exh. IV at 18,21) and to reimburse the parent for and directly fund the balance of full tuition at for the 2016-2017 school year in the amount of upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). It is further ordered that the DOE provide the student with .

Dated: August 16, 2017

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer LA:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 25, 2017

1 Ten-day Notice, 9/8/16, 5 p. District

2 IEP, 7/20/16, 20 pp. District

3 CSE Review Minutes, 7/20/16, 2 pp District

4 School Location Letter, 7/21/16, 1 p. District

5 Prior Written Notice, 7/21/16, 10 pp. District

6 End-year Student Assessment, undated, 9 pp. District

7 , 7/7/16, 19 pp. District

8 , 2/4/16, 6 pp. District

9 , 1/11/16, 6 pp. District

10 Progress Report, 3/30/16, 1 p. District

11 Classroom Observation, 1/6/16 2 pp. District

12 Social History Evaluation, 12/1/15, 3 pp. District

13 , 11/5/15, 5 pp. District

14 Report, 3/30/16, 9 pp. District

15 Teacher's Report, 12/9/15, 8 pp. District

16 Mid-year Assessment, undated, 6 pp. District

17 Family Conference, undated, 3 pp. District

18 , 2/6/16, 2 pp. District

19 IESP, 4/4/16, 11 pp. District

20 CSE Review Meeting Minutes, 4/4/16 District

21 Initial Provision of Services, 6/29/16, 2 pp. District

22 Letter to , , 7/5/16, 1 p. District

23 Meeting Notice, 7/12/16, 3 pp. District

24 Parent Letter to , 9/15/16, 3 pp. District

25 Impartial Hearing Complaint, 1/9/17, 16 pp. District

I Decision on Extension, 3/27/17, 1p. IHO

II Decision, on Extension, 4/25/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 16, 2017

A Omitted Parent

B Omitted Parent

C Omitted Parent

D Omitted Parent

E Interim Report, 2016-2017, 1p. Parent

F Midyear Progress Report, 2016-2017, 16 pp. Parent

G Interim Report, 2016-2017, 2 pp. Parent

H Progress, 11/28/16, 2 pp. Parent

I Enrollment Contract, 8/17/16, 1 p. Parent

J Tuition Affidavit, 2/14/17, 1 p. Parent

K Attendance Report, 3/13/17, 1 p. Parent

L Class Schedule undated, 1 p. Parent

M Program Description, undated, 5 pp. Parent

N Amended Tuition Payment, 7/5/16, 1 p. Parent

O Enrollment Form, 12/6/16, 6 pp. Parent

P Omitted Parent

Q Letter to , ChairpeRSon, CSE 1 with fax

Confirmation, 9/14/16, 3 pp. Parent

R Parent's signed Subpoena, 2/17/17, 2 pp. Parent

S Email from with attached Parent's

signed Subpoena, 3/1/17, 1p. Parent

T Application to the , 4/14/16, 2 pp. Parent

U Proof of Payment for , various dates, 9 pp. Parent

8/9/16, 2 pp.

V Proof of Payment for

, various dates, 4 pp. Parent

W Invoices from , various dates, 4 pp. Parent

Various dates, 7 pp.

X Resume of , undated, 8 pp. Parent

Y Affidavit of , 4/19/17, 1 p. Parent

Z Interim Report, 2016-2017, 1 p. Parent

AA Midyear Report, 2016-2017, 16 pp. Parent

III Decision on Extension, 5/16/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 12, 2017

BB 2016 Tax Return, 3/7/17, 4 pp. Parent

CC School Tuition Affidavit, 2/14/17, 1 p. Parent

IV Decision on Extension, 6/12/17, 1 p. IHO

POST HEARING SUBMISSIONS

V ' Closing Brief, 8/7/17, 16 pp. IHO

VI 's Closing Brief,8/7/17, IHO

22 pp.

VII Attachments A & B, 8/7/17, 13 pp. IHO

VIII Decision on Extension, 7/20/17, 1 p. IHO