New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 160273

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 26, 2016

June 29, 2016

August 17, 2016

September 21, 2016

November 4, 2016

January 6, 2017

March 8, 2017

March 15, 2017

May 19, 2017

Actual Record Closed Date: June 28, 2017

Hearing Officer: Jeanne M. Keefe, Esq

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 26, 2016

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2016

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2016

Attorney — Student

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2016

-STERLING, Paralegal (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4, 2016

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2017

Attorney — Student

Attorney — Student

Parents

Parents

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2017

Attorney — Student

Parents

Parents

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2017

Attorney — Student

Attorney — Student

Parents

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2017

Attorney — Student

Attorney — Student

Witness (Via Telephone) — Student

Witness (Via Telephone) — Student

INTRODUCTION

On April 20, 2016, I was appointed as the Impartial Hearing Officer (“IHO”) by the New York City Department of Education (“the District”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f)

(1) concerning a dispute involving the special education program for (“ ” or “the student”) for the 2015-2016 school year.

BACKGROUND

is a student who was in the and attended the

(“ ”) during the school year at issue. was unilaterally placed at by his Parents for the 2015-2016 school year. His classification of (t.

627) is not in dispute. The Parents assert that the District has failed to provide with a free and appropriate public education (“FAPE”) for the 2015-2016 school year and seek relief including but not limited to tuition reimbursement for for the school year at issue. The District contends that was provided with FAPE for the 2015-2016 school year and that the Individualized Education Plan (“IEP”) and recommended programs addressed his unique needs.

FINDINGS OF FACT

attended from the through the . In the , his

Parents received .

(t. 498) . In the began seeing a and which continued in the . Ms. was ’s teacher for the at during the 2014-2015 school year. The class was a class with approximately . The school day typically consisted of . The consisted of

.

. Ms. testified that she tried to provide

throughout the day. There would be ,

( ) and sometimes

, which would consist of

. The would be (

), as well as , and

. spent 50 to 60 percent of class time in , including the time he spent with the , Ms. . Ms.

testified that in the beginning of the school year had a lot of challenges with , especially in terms of . had difficulty e

.

.

. Ms. used several strategies to help , such as . had a in the and that , Ms. , continued with him in the . received the assistance of the as a . This was on consent of the parents. Ms. would push in to the classroom 2 to 3 times per week during . were between long. Depending on what was being worked on, Ms.

would or she would or she would . The intention of was to address but also to . There were times when

.^[1] is also a teaching method used in an

.

. (t. 73- 78, 108-114, 116-117,

Ex. P) When the school year began but as the school year progressed

.

, which was a strength for

During , . In ,

.

it was very challenging for , especially in the beginning of the year. Also during , , he was . However, when it came to he was . exhibited and his parents had mentioned this to the teacher early in the school year. His challenges were in the areas of and those challenges remained throughout the school year. Even with teacher support and the support of continued to struggle in the areas of . Despite his issues with , Ms. learned from the Parent that

.

. Ms. stated that she saw make progress in the but it was not as evident as it might be on his report card because the expectations increase in the . At some point in the school year Ms.

became aware that was getting . (t. 78-81, 85-86, 114, 123-124, 127-129, Ex. M)

On February 10, 2015, a was sent to ’s parents. The letter advised that . (Ex. O) Ms. testified that at some point in December or January, she and Ms. generated the but that she had also had an ongoing conversation about ’s progress with the team of teachers that she had been working with. They felt that based on the progress he had made from the beginning of the to the point the decision was made that . They considered ’s strengths, as well as challenges and concluded that the areas of concern were dominant. (t. 88-89) In or around the time that the was received, the Parents had hired a to work with as they recognized that the demands in the area of were increasing and it was impacting . The , Ms. , suggested that required and possibly

. Ms. was a who had been providing

for approximately 30 years. She began , at the request of his parents, in the spring of 2015. The evaluated in . Ms.

found that .

. Ms.

described as . The testified that and she

advised the parents that she believed that he needed special education services. (t. 498-

499 533-537) The Parents met with Ms. several times over the school year.

Generally, there are two parent-teacher conferences a year and she had met with ’s parents several additional times as well as corresponding via email and phone conversations. At one such meeting the parents attended with the , Ms. .

The meeting was held towards the end of the school year and was with ’s teacher and the . Ms. had been told by the parent about the and she wanted to attend to voice her opinion that holding back would be detrimental. The teacher stated that there would be no other option because was so far behind. Ms. asked about special education services and the teacher replied that they had tried to do things that were not working so she really felt that . (t. 99, 537-541)

In or around March 2015, Ms. referred for an evaluation for special education.

The referral was made because of ’s “

” Ms. stated that she did

not make the recommendation earlier because she was trying different strategies that she knows and working with the support team prior to making the recommendation. (t. 136,

139-143, Ex. P) A was done in February 2015 by

based on a referral by ’s teacher. Ms. notes that . Ms. did not find that would benefit from services based on the screening but notes “ ” The Parent had a meeting with Ms. and the after the screening was completed and was provided with a copy of the report. The Parent was advised that the finding was that would not benefit from

(“ ”) and at that time stated that she would have a full done so that they could try to understand what the issues were. (t. 143-144, 496-497, Ex. E, P)

A Evaluation of was done by Dr. . The evaluation was done in four sessions of two hours each. The evaluation was made at the request of the Parents. Dr. used many different tests as well as obtained from the parents and teachers and reports from the school and the parents. Dr. observations were . It was her opinion that

. Dr.

found that “

” (t. 558-560, Ex. 3) Dr.

defined as

.

Dr. felt that had the ability to but he did

not have the ability to . His parents

had reported to her that and that

. At the time of the evaluation was entering a grade where were going to be more important and he did not have the skills to succeed. It is her opinion that he was at a crucial poin,t and if his issues were not addressed he could , . The testing reveals scores which are in the range of but Dr. testified that they are not . She stated that the testing and retesting in different areas point to the difficulties that is experiencing and that the does not define him. She testified that . His , which she defines as an , is in the which she characterized as . (t.

570-572, 593-596) Dr. made recommendations at the end of the Evaluation which included . The purpose of the was to provide support in areas of difficulty including . While there is not a recommendation in the Evaluation for Dr. testified that it was an omission and that she believed that it was necessary. (t. 564, Ex. 3)

An was done for by during the time between the Evaluation in late April 2015 and the IEP meeting which was held on June 15, 2015. Ms. did not know the date or time that she observed in his classroom or how long the observation was. Ms. testified that she had between 25 to 30 students on her case load during the 2014-2015 and 2015-2016 school years.

During the 2016-2017 school years she had 25 students on her caseload. During those school years, Ms. was unsure of how many screenings she did but thought it was between 5 to 10 per school year. Ms. did the at the request of the School Based Support Team (SBST) to assess whether an evaluation of was necessary because . As part of the screening Ms. consulted with Ms. and observed in the classroom to determine what the primary areas of struggle are. She stated that she met with Ms. a few times, for 15-20 minutes each time, about but can’t recall how many times. They discussed the best course of action for and Ms. described that the area in which he struggled was . Ms. has a checklist which she uses during a screening which she gives to the teacher to determine areas of deficit and depending on what is on the checklist that is where she focuses her assessment. During the screening

. She also assesses

. She observes the student during different times during the day and watches them . Ms. stated that this is the screening process she used with (t. 351, 363, 188-191, 193, 331-334, 337-340, 345,

347-348) Ms. testified that she did not find that required an evaluation based on the screening. Her decision was based on her observations that . She did not see Case No. 160273

. She testified that she did not look at but rather at . When observing in the classroom there was but it was not because he wa

, she did not find it to be a issue. She did not assess his but did discuss with the teacher that is recommended, not just for but for all students. Ms.

testified that there is an evaluation of but she does not use that as a part of her evaluation. She noted that it is apparent when

.

Ms. stated that in consultation with Ms. they determined that ’s struggle with production was not a issue but that there was some issues that were impacting him. (t. 192-193, 195-196,

198,348) Ms. testified that she reduced her findings to writing in the form of a report. The final report, written notes, her screening checklist and the teachers screening checklist that were used to prepare the final report were kept in her office. Ms.

testified that the report, written notes and her screening checklist and the teachers screening checklist were likely to have been shredded at the end of the 2014- 2015 school year when she had to quickly move from one therapy room to another. The final report was typed but when she moved rooms she changed computers and that computer is no longer in existence. She only printed one copy for herself and the document was never uploaded to the DOE’s system, SESIS. (t. 199-200, 337, 344, 351-352)

An IEP meeting was held on June 15, 2015. A meeting notice was sent to the parents of advising them of the date, time and location of the meeting and the names of the people who would be attending the meeting. The meeting notice advises the parent that they have the right to invite others to the meeting who have knowledge or special expertise about the student. It describes the role of the parent member and their purpose.

It also advises that if the parent has any questions about the meeting notice or understanding the special education process to contact and provides a phone number. (Ex. 6) The meeting was attended by , related service provider/special education teacher; , general education teacher; , district representative/school psychologist; , parent member via phone; the Parent; and , . (Ex. 2) Dr.

testified that as the it is part of her responsibilities to interpret evaluations to assess the need for special education placement or services. The IEP meeting held regarding was an initial educational planning conference. Prior to the meeting she reviewed the private report provided by the Parent and met with the teacher to ascertain the consistencies and inconsistencies between the report and the student’s classroom performance. Her analysis of the evaluation is of a student with . The only score that was was in and the was consistent with ’s classroom performance. The evaluation was used in the creation of the IEP, mostly the testing scores but it was not the only report used. They also relied on the reports from the classroom teacher and noted that the student had received some interventions as well. The teacher requested that be evaluated for special education.

A screening for was reviewed and discussed at the meeting and it indicated that ’s were appropriate for . Ms. shared her finding that an evaluation was not necessary. The Parent did not express disagreement with the finding that an evaluation was not necessary and did not ask any questions.

They discussed that the student’s involved something other than . The Parent attended the meeting and was positive and understood ’s strengths and weaknesses.

. (t. 230-239, 241-243, 370-372, Ex. 3) In the IEP

meeting Ms. provided her observations of during the 2014-2015 school year and what she felt would be appropriate for him in the following school year. She testified that she went over the Evaluation at some point but was not sure if it was before the meeting or during the meeting. (t. 103, 150) A program recommendation was made at the IEP meeting for an . The team believed that needed to be in a where he was getting formal services throughout the school day with the opportunity for . In the would be able to . has at least one per grade. Dr.

testified that she felt that it would be an appropriate setting for because

.

. would be able to be in to work on and then for he would be able to work on . Dr. believed that the would benefit because . The would have approximately students in the classroom. Ms. testified that she believed the would be appropriate for because and the challenges that he was facing could be addressed in an where he would have . In an , there are different types of instruction: ;

;

; and .

Having gives them the flexibility to really design their lessons and instruction in a way that allows them to address individual needs. It was Ms. ’s believe that the Parents were on board with the recommendation of an and liked the idea of . (t. 244-248, 289,

293, 91-98, Ex 2) The goals in the IEP were prepared collaboratively and discussed at the meeting. The goals were based on ’s specific needs such as the need to and also to . The goals focused largely on . A and goal were included, because he would have the benefit of working with a in those areas. (t. 248-250, 299) The Parent testified that he attended the June 15, 2015 IEP meeting and that it was the first IEP meeting that he had attended. He testified that he was unsure how the meetings worked and he did not know that he could have had Dr. or anyone else come and give input. The Evaluation had been provided to the school. The Parent did not recall being provided with any documents. He did not recall there being any discussion about the Evaluation other than to acknowledge that they had the report. He stated that the parent member dialed in but did not contribute anything during the meeting. (t. 608-612) The Parent testified that they discussed the classroom observation and ’s report cards. The evaluation was presented and he did not recall being asked what he thought and did not offer an opinion. (t. 613-616) The Parent did not recall being asked about his opinion on the decision to not recommend . The

Parent testified that he thought that the IEP meeting was for the school to make a proposal of how to proceed with ’s education and that he would take the proposal back to his wife and they could discuss it. (t. 619-621, 647) The Parent recalled that he asked questions about how an would address ’s particular issues and the answer was that they would have to see how things work. (t. 624-626) The Parent testified that the recommended a . Based on that recommendation they had applied to several special education schools including .

The Parent did not mention that they had applied to private special education schools at the IEP meeting. The Parent testified that by the time they received the they were concerned that they would miss out on any options and were unsure about what the right thing to do for was. was accepted to in May and they signed an enrollment contract on May 22, 2015. The Parents signed the contract to ensure that would have a school to attend in the event that the District was not able to provide an appropriate class setting. The Parent testified that the contract was not binding if the District provided an appropriate class. (t. 499- 500, 516, 642-643, Ex. J)

The Parent understood that recommended for would be in so she went to visit the before the end of the school year. The visit lasted approximately 30 minutes. The Parent stated that there were the same number of children in the class as a regular education class and that there were rather than . There were a number of children who were not behaving and one teacher seemed to be focusing entirely on a student who was not behaving. She was concerned that if this was the type of class that was recommended they would continue to see the same issues with that they were already dealing with. She was also under the impression that would be in the for the entire week but when she received the IEP she saw that he was not in an for which concerned her. On

June 23, 2015, a ten-day notice was sent to School Based Support Team at by the Parents attorneys expressing their disagreement with the IEP and recommended program and that they were sending to in the absence of an appropriate IEP and placement offer. (Ex. D) On August 25, 2015, a corrected 10-day notice was sent to the School Based Support Team. (Ex. C) The Parent did not receive a response to either of the two letters. (t. 503-504, 512) The Parent testified that she loved and that her daughter had attended the school throughout school but that the school was not working for (t. 501) The Parent stated that they had tried , and even with Ms. , who the Parent characterized as a fabulous teacher, and was at the point where he did not want to go to school. The

Parents made the decision to send to and they paid the tuition. The Parent believes that is the appropriate placement for He goes to school with no problem even though he had to get up earlier and travel to the school. (t. 505-506)

is an independent school for

. . It is a school for children with with approximately students. Typical classifications for 2 The testimony of advised that the students range from age to while the program description notes the school ranges from to . (t. 384, Ex. F)

the students are , or

. Not all students have been classified or have an IEP. The curriculum focuses on including . The students are placed in a with approximately students with .

The are supervised by the and have a

and assigned. There are weekly meetings with the and the and . The meets with related service providers on an as needed basis. The teachers, related service providers and other staff members participate in professional development training and interventions throughout the year. The training includes at the beginning of the year. (t. 384-388, Ex. F)

Ms. , ’s , testified that at the beginning of the year she did a assessment and , . She stated that his difficulties manifested itself in , particularly in where . She

found ’s greatest academic need was in . A program was individually designed to meet ’s needs for .

He was also given the opportunity to .

received in his

. received and received

as well as

. To address his the teachers and related service providers employed the which focuses on and is provided with pull out and push in sessions of to target his needs. By the end of the 2015-2016 school year was able to . (t. 385, 390-

394, 397-398, 401-402, 408-410, 458, 447-450, 472,479-480, 629-630) received the approach to address , as well as teacher-made materials developed in collaboration with the . The goal was to target .

At the beginning of the school year struggled to . By the end of the school year he was able

to

. Instruction was provided in which were created according to

.

. (t. 390-391, 399, 403-405, 409) had using the and teacher-made materials developed in collaboration with the . There were students in ’s class.

. The focus of the class was on and by the end of the year had made progress in , particularly in . (t. 399, 405-407) Ms. testified that tailored its program to address .

were addressed by providing him with a

. He was also

provided with . There was a to

.

were addressed through

. (t. 392-396, 406-410) At received . was to address needs and to address issues. received to address . (t. 447-449, 472-477)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents.

School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S.

359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony and evidence adduced at the hearing the District has failed to provide FAPE for the 2015-2016 school year based on procedural and substantive deprivations in that they failed to meet ’s unique academic needs. The IEP was not reasonably calculated to confer an educational benefit, the program recommendation was not appropriate and the Parents were not given the opportunity to fully participate in the IEP process.

The State Review Office (“SRO) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.”

(Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007).

FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. (Rowley, 458 U.S. at 203)

In Endrew F. v. Douglas Sch Dist., 580 U.S. __ (2017) the Court found that an IEP should be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” The Court in R.E. v. New York City Dep’t of Educ., 694 F.3d 167, at 191 (2d Cir. N.Y. 2012) emphasized that “even minor violations may cumulatively result in a denial of FAPE”. See also Application of a Student With A Disability., Appeal No. 15-001 where the aggregate effect of procedural violations resulted in a denial of

FAPE.

The testimony and documentary evidence clearly support the Parents position. In the case at hand, the Parent argues that there are numerous procedural violations. They argue that the CSE must consider the results of the initial or most recent evaluations, the academic, developmental, and functional needs of the child and use a variety of assessment tools and strategies to justify its recommendations; that the CSE must conduct a complete evaluation before recommending any significant change in placement; that the CSE ensures that all meeting participants participate meaningfully. The testimony revealed that the SBST reviewed a number of documents and reports at the IEP meeting, including the private Evaluation (Ex. 3), a classroom observation (Ex5), a evaluation (Ex. P) an oral report by ’s teacher and an oral report by the . Dr. , the district representative testified that the private Evaluation was reviewed at the meeting but mostly for the test results but asserted that she had reviewed the Evaluation with ’s classroom teacher to ascertain the consistencies and inconsistencies between the report and the student’s classroom performance. Ms. testified that she went over the at some point but she did not know if it was before the meeting or during the meeting. The Parent testified that it was his recollection that other than acknowledging the existence of the Evaluation there was no discussion about it. There was an and an done for which were discussed at the IEP meeting. The Parent had previously received a copy of the but had not received a copy of the . The Parent testified that the was present at the IEP meeting but he did not receive a copy of the .

Ms. , the testified regarding the screening that she performed and how she came to the conclusion that an evaluation and services were not necessary for The written report was not provided to the Parent or to anyone else for review and use. Ms. testified that she had probably shredded the screening report, her notes, her screening checklist and the screening checklist filled out by the teacher at the end of the 2014-2015 school year when she was moving from one therapy room to another. The report was never uploaded to the District computer program, SESIS, and that it was typed on a computer that no longer existed when she searched for the report. She had only printed out one copy. While I do not find that there is any nefarious purpose on the part of Ms. , it brings in to question her memory of events two school years later. In the intervening school years Ms. has had numerous students on her caseload and has done numerous screenings and presumably full evaluations. Ms.

testified that , yet in the evaluation (Ex. P) it notes under the reason for referral that “

”

The Evaluation recommended that receive based on the testing that was done. The District argues that the is not bound by the recommendations in a private Evaluation and they are correct.

However, given the reports by the classroom teacher of the struggles that was having with , coupled with the Parents reports of ’s struggles and the findings of Dr.

it would seem that doing a full evaluation would have been helpful in getting to the root of ’s issues and provided the SBST with valuable information in crafting an appropriate IEP and making an appropriate program recommendation. The same can be said for the Report (Ex. E) which goes over a number of things related to that was able to complete. The screener does not recommend that would benefit from services despite the fact that “ ” Dr. testified that

. The

SBST’s failure to conduct and consider sufficient evaluations of in order to make informed decisions on related services to address the unique needs of the student is a denial of FAPE. The record also does not support a finding that the SBST fully reviewed and considered the private Evaluation when crafting the IEP or making the program recommendation. The failure to conduct and consider sufficient evaluations or to fully review and consider the private Evaluation as well as failing to provide the Parents, or anyone else, with a copy of the screening is a denial of FAPE which impeded the student’s right to FAPE, impeded the parent’s opportunity to participate in the decision making process and caused a deprivation of educational benefits. The Parent further argues that the SBST was not duly constituted because they did not have Ms. , the for for two years, present at the IEP meeting. attended the IEP meeting and signed in as the Related Service Provider/ . Dr. testified that she was a and had never worked with Dr. testified that she came to the meeting with the perspective of a special educator who works with students on areas of weakness and has an understanding of general education, special education and . (t. 265-269, 312-214, Ex. 2) The Parent argues that the IEP meeting is required to have a special education teacher of the student or a special education provider of the student. §200.3(a)(1)(ii) Ms. as the would have provided input to the SBST which would be crucial to developing an appropriate program for It certainly would have been helpful to have the present given her history of working with for 2 school years.

The Parent argues that the Parents were denied the ability to participate fully in the IEP meeting because they were unsure of how the meetings worked and did not know they could bring people with knowledge of the student to the meeting. I find this assertion to be without merit. The meeting notice for the IEP meeting gives the relevant information to the Parent. (Ex. 6)

The Parent argues that the IEP was substantively inadequate in that the IEP fails to recommend a program tailored to his individual needs or reasonably calculated to provide educational benefit. I find that the record supports the Parents position. While I find that there was a sufficient number of goals that were appropriate, objectively measurable which address ’s needs and assess his progress through the year I do not find that the recommended program was appropriate to address ’s needs. At the time of the IEP meeting was struggling in a class with approximately students.

He was receiving the help of a , had attended and had a . His teacher, Ms. was providing many of the types of and some (with the ) and estimated that he was receiving 50 to 60 percent of the time and still he was struggling, so much so that he received a . I credit the testimony of Ms. and she testified extensively on the efforts that she made to help by providing as much as she could in a class and yet he still struggled in the areas of and as the demands increased his struggles spread to . While it was not an the teacher was using many of the same teaching modalities to no avail. The record supports a finding that the required to make progress in light of his circumstances. There is testimony that the Parent did not object to the or to the decision to not provide with evaluations or services. The mere presence of the Parent at the IEP meeting and the fact that he did not disagree at the time of the meeting is not dispositive especially in light of the fact that the school was aware that the Parent was new to the process. I credit the testimony of the Parents regarding their interactions with the school.

The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original)

A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v. Board of Education of Hyde Park., 459 F3d 356, at 364-65.

I find the parental placement as issue had been reasonably calculated to confer an education benefit to the student. I find that the testimony, and evidence submitted by the Parent support this finding. The testimony supported the Parents position that the student is progressing academically and that the school has crafted an individualized program that meets the student’s academic and social needs. The teacher at testified that the program is individualized to meet ’s academic needs. I find the testimony of the staff at credible. I find the testimony of Dr. credible. The DOE asserts that the school is not the least restrictive environment, however that is a standard that the District is held to not the Parent. In addition, the DOE also states that the head teacher for ’s class does not hold a special education certification and was not trained in . The unilateral placement must afford the student with an educational benefit and does not have to meet the IDEA definition of FAPE. The record supports a finding that while Ms. may not have had the certification or training she was adequately supported by specialists and related service providers in the school and was making progress and receiving an educational benefit at .

The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. I find that the Parent cooperated fully with the IEP process. They provided the CSE with the privately obtained Evaluation and participated in the IEP. They worked with the school, attended the June 15 CSE meeting.

The Parents worked with the school to do the best academically for but when they saw that he was not making progress they reached out to the school with their concerns.

They were concerned that the he was not making progress and did not want to go to school. Ten-Day letters (Ex. C, D) were sent explaining their concerns with the recommended program and of plans to unilaterally place at if the DOE could not find a suitable program. No answer was received. The Parents signed a contract with on May 28, 2015 (Ex. J) in order to ensure that they had a seat for in the fall if the DOE failed to recommend an appropriate program. There was a clause that would allow them out of the contract if the DOE recommended an appropriate program for

There is nothing in the record to support a finding that the Parents were just giving the appearance of cooperation with no intent to continue at a public school. On the contrary, the Parent testified that they loved and . The Parent testified that Ms. was a fabulous teacher but that needed more. The Parents cooperated fully with the process and did everything that they could to keep at . In view of the foregoing the equities favor the Parents.

ORDER

Therefore, it is hereby ordered that that the New York City Department of Education reimburse the Parents in the amount of for the tuition for the 2015-2016 school year at . Payment shall be made within 60 days of the date of this

Orde.r

Dated: July 7, 2017

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer JK:

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 JANUARY 6, 2017

1. Due Process Complaint, dated 4/19/16, 6 pages District

2. Individualized Education Program, dated 6/15/15, 13 pages District

3. Evaluation, dated 4/27/15, 14 pages District

4. Report, dated 3/11/15, 3 pages District

5. Classroom Observation, dated 5/26/15, 1 page District

6. Meeting Notice IEP meeting, dated 5/27/15, 3 pages District

7. Prior Written Notice, dated 6/16/15, 4 pages District

A. Duplicative Parent

B. DOE’s Due Process Response, dated 6/16/16, 3 pages Parent

C. Parent’s ten-day notice (corrected), dated 8/25/15, 3 pages Parent

D. Parent’s ten-day notice, dated 6/23/15, 2 pages Parent

E. Report, dated 2/15, 1 page Parent

F. program description, undated, 1 page Parent

G. class schedule, 2015-2016, 1 page Parent

H. mid-year report card, 2015-2016, 17 pages Parent

I. affidavit of tuition payments, dated 3/24/16, Parent

1 page

J. enrollment contract, dated 5/28/15, 3 pages Parent

K. attendance record, dated 4/1/16, 1 page Parent

L. Parent’s cancelled checks for tuition Parent payment, various dates, 4 pages

M. 2014-2015 report card, dated 1/29/15, 8 pages Parent

N. Parent’s amended request for impartial due process hearing, dated Parent

8/16/16, 7 pages

O. , dated 2/10/15, 1 page Parent

P. Evaluation, dated 5/22/15, 2 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 19, 2017

Q. Subpoena- , dated 12/5/16, 1 page Parent

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page IHO

II. Closing Statement For The New York City Department Of Education, IHO

undated, 17 pages

III. Memorandum Of Law And Closing Argument, dated 6/9/17, 20 pages IHO

Footnotes

[1] Ms. testified that she had worked in an the prior school year and was aware of how they are structured and the expectations for an . (t. 91)