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: October 8, 2010

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 8, 2010

For the Student:

, Representative

,

,

,

, , via telephone)

, , (via telephone)

For the Department of Education:

, , (via telephone)

INTRODUCTION

On October 8, 2010 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 10:00 a.m. at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified as “ ” is years month old and attends in , . On August 5, 2010 the Impartial Hearing Office received a due process complaint for an impartial hearing filed by the child’s . In that request, the maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2010-2011 school year. The complaint asked for tuition reimbursement for as well as reimbursement for to and from school each day and any other costs necessary “to meet the appropriate educational needs” of the child.

THE PARENTS’ POSITION

The parents were represented at that hearing by an , . Mr. alleged that the District did not provide the child with a FAPE for the 2010-2011 school year and maintained that was an appropriate placement for the child.

THE DEPARTMENT OF EDUCATION’S POSITION

, the Department of Education representative at the hearing, maintained that the proposed placement for the child at was appropriate to meet the child’s needs and provided the child with a FAPE. She also asserted that is not the (“ ”) for the child because it services only students with disabilities.

THE EVIDENCE AT THE HEARING

THE DEPARTMENT OF EDUCATION’S CASE

is an at and has worked for the Department of Education for ten years. She has an undergraduate degree in Education, a Master’s Degree in Education and a Master’s Degree in Administration ( : 12-13). Ms. was the for the child’s class during the 2009-2010 school year and she knows the child through classroom visits and the collection of student data ( : 13-14, 23).

Ms. referred to several Exhibits during her testimony. She reviewed the child’s Progress Summary for / ( : 16, DOE Ex. 3). Ms. testified that the document demonstrated that the child showed areas of growth in and and that the provider “continued to identify areas to grow” in which the child would have been serviced during the 2010-2011 school year. She also testified that the child would have had the support of the , which was being offered in the grade - class. That class also used a “comprehensive balanced literacy program” ( : 16, 22).

Ms. next reviewed the child’s “writing piece.” That document was the culminating project of a - study in reading and writing that she designed with the child’s classroom ( : 16-17; DOE Ex. 4). She opined that the project demonstrates that the child acquired a number of the skills that were taught within the reading and writing workshops in that she was able to identify an area of interest that she wanted to explore in non-fiction. She explained that the child was able to write in a “nonfiction genre” including factual information and that she was able to distinguish between fact and opinion. The project also shows that the child was able to “organize and categorize” information ( : 17). The writing piece was about the child and her dog, which shows that the child was able to take a non-fiction topic and make connections to herself and write about it. Ms. also stated that the writing showed the use of “some grammatical mechanics” such as “beginning capitalization and punctuation” and spacing as well as inventive spelling and some knowledge of sight words” ( : 17-18).

Finally, Ms. referred to the Observation Guide for the periodic assessments administered to the child over the course of the 2009-2010 school year ( : 18; DOE Ex. 8). She testified about the child’s reading levels in October 2009, February 2010 and April 2010 and she explained the skills that are generally met by students at each of those levels ( : 18-20). Ms. noted that according to the the child advanced from a level to a level during that time ( : 20). Ms. also referred to the child’s spelling assessments. Those assessments indicated that from May 2009 the child spelled eleven words correctly and that in May 2010 the child spelled 24 words correctly, thereby “demonstrating a growth from one year to the next” ( : 20). She then described the child’s progress in sight word recognition. In May 2009 the child identified 26 out of 135 words, in October 2009 the child identified 26 out or 135 words and in May 2010 she identified 50 out of 135 words ( : 20, 24-25). Ms. pointed out that on the last page of the Observation Guide the child’s noted that the child had ” and that she was “making connections to the and she has seen before” ( : 20).

In response to an inquiry by the hearing officer, Ms. testified that for the 2010- 2011 school year the child would have been placed in a grade class with some of her peers from the grade ( : 22).

THE PARENTS’ CASE

is the child’s (T. : 26). Ms. is a education ; she has an undergraduate degree in education and and a Master’s Degree in special education (T. : 27). She currently works in using with children who have (T. : 28).

Ms. explained that she had when she was with the child. The child had a “ ” in there were “ ,” and the child was on in the for five days (T. : 28-29). The child’s had and the parents were told not to “ ” her “ ” because of the that her would again. She had and she “ ” (T. : 29).

When the child was old she had her and the side of her “never relaxed.” The child’s referred the child to early and after an evaluation the child was diagnosed with “ .” She began to receive when she was about months old and she got to the point where she could turn her freely without or (T. : 30-31). When the child was years old she was revaluated and her cognitive functioning was found to be “age appropriate.” At that time it was determined that she no longer required (T. : 31-32).

The child attended a regular . The knew the school and the and believed that the would be to any the child might have. However, the did not “share” her concerns about the child with the beforehand because she wanted the to be “objective” (T. : 32-33). In the of the child’s year at the school the suggested to the that the child be evaluated for “ .” The went to the Committee on Education and the child was evaluated. At that time the evaluator did not think that the child’s academic were “that great” that the child needed a education classroom. However, the child began receiving , and , all after school. The child also began experiencing “separation ” to the point that she would when the her off at school (T. : 33). However, the child was familiar with the school and the parents kept her there until she was years old (T. : 33-34).

The child’s diagnosed the child with “ ”( : 37). She began in a general education class at the there were students in her class at that time (T. : 34). The child did not do well that year and she learned “almost nothing.” At the parent- conference the told the parents that the child had “attending” and with her handwriting, and that she was frequently. The noticed that when she worked with the child on her homework the child “had no clue of what was being asked of her” (T. : 35). The testified that the child was still receiving her related services and that in addition, the requested because the child’s “ were through the roof” (T. : 35-36). At the recommendation of the child’s the child had taken during that school year. However, the did not help the child “at all” with her attending issues and it caused the child to have ( : 40-41). The child completed at but at the end of the year she was still functioning at a - level (T. : 36).

Prior to the end of her year the parents had taken the child to a , who felt that the child had significant in cognition as well as in coordination and handwriting. She also found that the child had a - (T. : 37; Parents’ Ex. A). Following the evaluation, the parents went to the Department of Education to get the child the help that she needed (T. : 38-39). The Department of Education used the report as the basis for the recommend services and the report is reflected on the June 10, 2008 Individualized Education Program (“IEP”). That IEP classifies the child as “ ” and includes a notation that the child has a diagnosis of and (T. : 39, 54; Parents’ Ex. C). At the IEP meeting the team recommended a (“ ”) class for the child; that class had students (T. : 40). The child’s “argued vehemently against” that placement because the child could not function in her class with that many students (T. : 41). The IEP subsequently recommended a class, which the child attended (T. : 42).

The class was a through grade class and the child did not do well. The , Mr. , gave an “exorbitant” amount of homework, more than two hours each night. The child was in the grade and functioning on a - level. One of the assignments was a “five question requiring a three sentence response per question,” which was much too for the child. The child was also being taught a grade science curriculum that was not “remotely near” the child’s level of understanding (T. : 42-44). The spoke with Mr. repeatedly but did not make any “headway” (T. : 42-43).1The also spoke to the , Mr. and the science . They told her that they would modify the curriculum for the child “as best they could” but that it was “because there’s such a diverse level of students” (T. : 44, 46-47). The testified that when she raised the issue with the the told her repeatedly that the “curriculum is cyclical” and that the child would “get to it eventually” (T. : 47). However, the school did try to incorporate some of the grade lessons into the science curriculum for the child but the never observed a lesson and does not know how it was done (T. : 48).

At that point the child’s reading and writing were described by her as “far below grade level. By the end of grade the child was functioning at “the end of level” (T. : 48-49).

In February 2009 the parents took the child back to the . At that time the child was diagnosed as having a , Mathematics , , – and - , (T. At one point, during the grade testing, the child was taken out of her class and placed in a general education class which was not in compliance with her IEP. Moreover, the child had transition and and was coming home from school each day “terrified” (T. : 44). : 38, 49-51; Parents’ Ex. A at 11). The child’s gave the report to the , the school and the child’s . However, they did not make any modifications to the child’s curriculum (T. : 53).2 Nor did they make any changes to the child’s IEP. Rather, the noted, the child’s June 10, 2009 IEP was almost verbatim the IEP from the prior year (T. : 51-52; Parents’ Ex. D). And, although Ms. signed the IEP, the did not grant her request to change the diagnosis on the IEP from and to . Rather, the just added “ ” to the diagnosis (T. : 53-54; Parents’ Ex. D).

In September 2009 the child was “apprehensive” about re to school but she was “initially kind of happy” to be back with Mr. because she knew him. And, her best friend was also in the class, which “was the thing that mattered most to her” (T. : 54- 55). The child’s believed that the child’s work that year was “ grade level,” which was again what Mr. indicated on her report card (T. : 55).

The child’s referred to an assignment based on the five “ ” as referred to by Ms. . She explained that the child would bring a book home to read and the parents would with her and try to help her. However, the child could never read the complete book without getting because she could not understand the content. After they “ ” through the book with the child she was supposed to write answers to specific questions about the story. However, the child had with reading, comprehension, handwriting and writing. She became “ ” and “got nothing out of these lessons” (T. : 60-61). The child’s repeatedly communicated her concerns to Mr. as well as to the and the school (T. : 61-62). The parents requested further evaluations for the child but that request was denied because the prior testing was not yet a year old. Although the wrote out “a few suggestions” nothing was ever carried through (T. : 62). On January 11, 2010 the child’s wrote a letter to the indicating that a particular assignment was too long and too complicated for the child; she did not receive a response to the note (T. : 62-63; Parents’ Ex. H at 1). However, the school eventually decreased the amount of homework assigned to the child (T. : 64). The child took , another , from February 2009 to June 2009. However, the child did not react well to that ( : 78).

The child’s also testified that the child was “lost” in math. As an example, she attended a “math morning” when the parents are invited into the classroom and they observe a lesson. That day the was trying to have the child add a double digit number by adding the numerals on the left side and “carry[ing] it over.” However, due to the child’s , she would lose her place because she could not follow a left to right or up and down progression (T. : 64-66). Ms. also referred to an example of the child’s handwriting to demonstrate that the handwriting is “almost ” due to her and graphomotor issues and her inability to “separate” (T. : 67; Parents’ Ex. R at 1).

During the child’s two years at the child’s spoke to Mr. every day. The parents shared with the their desire to seek an alternative placement for the child because they did not believe she was making progress; they “assumed” the conveyed their intent to the administration because at that time they were “getting nowhere” with the administration (T. : 70-71).

The child’s attended another IEP meeting on June 9, 2010 (T. : 69-70; Parents’ Ex. E). At that time the child’s , the , the and the were in attendance. No one at the meeting said anything about how the next year’s class would be more helpful to the child. The team reviewed the IEP with the parents but never told them that would have been offered to the child during the 2010-2011 school year (T. : 72-73, 76). No modifications were made to the child’s curriculum at that time. The only new recommendation was to remove from the IEP because they felt the child no longer needed it in school. The explained that the child had and - , and that she was “imploding” at . The team told her that the child was improving in school and that she should seek outside (T. : 74, 80).

The child’s explained that at the IEP meeting she did not want to be “disrespectful” to Mr. , and so she extended the of “ him for his efforts” ( : 76). The child’s had read that there is a “high of ” in and with , due to self esteem and . Mr. shared that concern at the meeting. Specifically, Mr. told the parents that because they were concerned that the child was making a minimal rate of progress, the “ rate for , by the time before she even school,” was going to be an “overwhelming factor” for them (T. : 76).

The IEP developed that day indicated that the child was at a beginning grade level in some areas and at the end of the grade level in other areas (T. : 77-78). Neither the “ ” of the child’s IEPs nor the issues indicated in the IEPS have changed from 2008 to 2010. The child’s stated that the child was not being taught in an “appropriate method” (T. : 78)

The parents based their decision to move the child on what they knew of for the prior to years and what they read about (T. : 74-77). Ms. explained that while academics is the core focus of the school assists with life skills and self esteem issues to support the child (T. : 75).

is the child’s . He explained that the child’s at one point told him that the child was “ and that a in the doesn’t every once in a while” ( : 85-86). At the beginning of the 2008-2009 school year Mr. told the parents that he can “fix” the child. When the parents wanted to put the child back on medication and Mr. “begged” them not to do so. However, halfway through the school year came to the parents and said, “I just can’t do this. You have to do the .” Mr. testified that the only accommodation the gave the child in response to their concerns was to limit the homework ( : 87-89).

has been at for 28 years. She was of the school for ten years and has been the of the school for the past five years ( : 93). She is certified as a education and an elementary school . She has a Master’s Degree in and is certified as a consultant. Ms. also has a Master’s Degree in Administration and is certified as a ( : 93-94). In her position as Ms. oversees the entire program, focusing on admissions, curriculum, and and development ( : 94).

is approved and accredited in New York State and in ( : 101-102). The school has students in grades through , all of whom have IEPs. The students are “within the average range have potential.” However, they all present with either an or a -based . They have , receptive and and some that prevent them from being successful in the mainstream. Many of the students have reading disabilities ( : 94-96). is to work with children who have potential and help them reach that potential by using various types of methods and strategies ( : 95).

Ms. testified that the child is in a class at the school; there are and in the class ( : 102, 104). When the child began at the school she exhibited “some anxiety.” However, the child has “settled in beautifully” and Ms. no longer sees the . Ms. noted that the instructional classes are “so tailored to her needs” that the child is comfortable since the work is “not above her ” ( : 104-105). The homework policy at the school is “very individualized”; the school started the child “slowly” with homework and will “build” on the homework until it is apparent that it is comfortable for the child to do the work on her own and bring it back to school on her own ( : 105).

The child begins the day with in homeroom where she gets organized for her classes, which consist of 40-minute periods. ( : 97, 102-103). One period each day is spent on reading where she works on her Wilson program with other students and ( : 97, 103). The child has math in a group of students with . Social Studies is taught five times a week and science is taught three times a week, both in the homeroom with students and at least . Ms. explained that science is multisensory and “very hands on” ( : 99, 103). The child’s writing class has students and and meets four times a week. The writing reinforces what the child is doing in reading. Ms. explained that the teaching of the various subjects does not rely on reading because not all of the students can read at the same level. The child is grouped in her classes with students who have “very similar needs” to hers. They all present with some language difficulties and also have some anxiety, expressive and receptive language delays and executive and organizational ( : 103-104).3 The child also has twice a week as indicated on her IEP ( : 99-100). Citations to pages 107-108 refer to Ms. ’s cross-examination of the witness. Ms. testified that the school used both the Department of Education’s IEP and its own assessments to determine the appropriate instruction for the child.

Ms. testified that skills are “built into the program.” One of the is trained in Handwriting Without Tears and the child is in a group of students twice a week to work on her skills and her writing skills. The child attends physical education every day in a group and attends two art classes each week, also in a group. The art classes are “very social” and the students work on coordination as well as art. Once a week the child has a computer class where she learns how to use the various application programs, including Microsoft Word ( : 100).

Ms. described “Wilson” as a specialized program that uses a “very structured multisensory approach” to teach reading. The program incorporates visual and writing components and also uses “tiles.” She explained that there are 14 certified Wilson at the school. Those attended a two or three day “overview” in Wilson. That component was followed by training at the school for a year by a Wilson trainer who worked with the as they worked with students. At the end of the year those became certified Wilson ( : 98-99).

Ms. explained all of the know the children in the groups that they teach. Because the understand the needs of the students in their groups, they are able to reinforce the reading skills of the particular students by integrating reading into their classes, such as social studies and science. Thus, the strategies and techniques that are taught to the students are reinforced throughout out the day ( : 101).

On the day prior to the impartial hearing Ms. spoke with the child’s reading . The told Ms. that the child is “really doing nicely” in that class. Ms. testified that the child has become “very comfortable” and that she is asking for more reading homework because she is starting to “feel like she can do it.” Therefore, she opined, the child is “beginning to be able to benefit academically” at the school ( : 106).

has been the of The School for three years and was a at the school for nine years ( : 109-110). She has an undergraduate degree in and is certified in as a of the handicapped. She also has a Certificate of Advanced Standing and is a Wilson certified ( : 110).

Ms. has met the child and is familiar with the child’s type of She explained that the affects the child’s “ skills” and her skills. She noted that the child also has a disability which is why the child “receives the Wilson” ( : 111). Ms. testified that the school tries to alleviate the anxiety experienced by children with these disabilities by teaching them in group settings with other children who have similar needs so that they do not feel intimidated by a group of students who may be performing on a higher level. The school also tries to break up the lessons into “components and parts” that the students are able to grasp before “moving on to the next” skill ( : 112).

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005, citing Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board 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 Board of Education were inadequate or inappropriate;

2) the services selected by the parents were appropriate; and

3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9).

To meet its burden, the Board of Education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits. Rowley, 458 U.S. 176 (1982), and that the recommended program is the LRE for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000).

Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and will not be repeated here.

Under the criterion of the legal standard, I find that the District did not offer the child a FAPE for the 2010-2011 school year. In fact, the Department of Education did not present any evidence at all with respect to the proposed placement for the current school year. Rather, Ms. , the of , simply reviewed documents related to the child’s work during the 2009-2010 school year. The only reference at all to the 2010-2011 school year was Ms. testimony that the third grade inclusion class uses the Wilson Fundations Program for reading and also incorporates a “comprehensive balanced literacy program” ( : 22).

In any event, I find that the documents reviewed by Ms. fail to demonstrate that the child’s needs had been met during her prior years at . Moreover, testimony by the child’s indicated that Mr. , the child’s and grade , clearly believed not only that the school was unable to meet the child’s needs during that time, but also that the parents had reason to be concerned about the child’s emotional stability and her future if her self esteem did not improve.

Therefore, I conclude that the Department of Education failed to sustain its burden of showing that it offered the child a FAPE for the 2010-2011 school year.

With respect to the second criterion, I find that the evidence presented by the parents satisfied their burden of demonstrating that the child’s educational program at The School for the 2010-2011 school year is appropriate in that it is reasonably calculated to meet the child’s educational needs in the . I base that finding on the evidence presented by Ms. , the of the school, and Ms. , the .

It is clear from the parents’ testimony and the documents presented at the hearing that the child was not making meaningful progress at , in part, because of her and stemming from the fact that the class she attended was not appropriate to meet her needs. As detailed above, Ms. explained the methodologies used at and how they address the child’s academic, social and emotional needs. Both Ms. and Ms. explained that the child is taught in groups with students who have needs similar to her own. That system benefits the child in that it reduces her and increases her because she is not intimidated by other students who may be on a higher level than the child in a particular subject. In addition, the work in the classes is tailored to the child’s needs in that it is presented in small parts or components so that the child can understand what she is being taught before she is required to advance to the next component of the subject matter. Similarly, the testimony indicated that homework is presented to the child incrementally, and therefore the child is assured that she will not be required to do work that is too lengthy or too difficult for her to handle on her own.

The benefit to the child is apparent from Ms. ’ testimony that the child does not seem to be experiencing any In addition, Ms. stated that the child’s reading indicated not only that the child is “doing nicely” in reading, but also that she is asking for additional reading homework because she is beginning to feel that she can actually do the work. At the time of the hearing the child had been attending the school for only a little more than a month. Therefore, I find the apparent change in her demeanor and her reading from the prior school year at to be significant.

While the school does not provide the opportunity for the child to interact with general education students, as noted above the parents are not held as strictly to the standard of placement in the LRE as are school Districts. See Rafferty v. Cranston Public School Comm., 315 F.3d at 26-27; M.S. v. Board of Education, 231 F.3d at 96. In this particular case, the obvious benefits to the child outweigh any concern that all of the students in the school are special education students. See Application of a Child with a Disability, Appeal. No. 03-097. Therefore, I find that the parents have satisfied their burden of demonstrating that is appropriate to meet the child’s special education needs.

Addressing the third legal criterion for reimbursement, I conclude that the equities support the parents in their request that the Department of Education pay for the child’s 2010- 2011 tuition at , a school approved by New York State. The testimony presented at the hearing indicated that the child’s attended the IEP meetings for each year that the child attended . And, it is clear that the parents cooperated with the school in every way possible. Indeed, the Department of Education does not argue otherwise.

However, in her Closing Memorandum Ms. asserts, for the time, that the parents are not entitled to reimbursement because they did not give the District ten days notice before they removed the child from the public school as required by the IDEA (Closing Memorandum at 3). At the outset I note that the District did not raise this defense in response to the parent’s due process complaint. Nor did Ms. raise this issue at the hearing. Rather, as noted above, it was presented for the time in her Closing Memorandum after the hearing had been concluded.

It is true that the equities may be held against the parents if, notwithstanding being advised that they should do so, the parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. See 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]; Application of a Child with a Disability, Appeal No. 00-027Application of a Child with a Disability, Appeal No. 03-097. However, while, under this statutory provision, tuition payment may be reduced or denied, such a reduction or denial is discretionary. Application of the Bd. of Educ. of the Northport-East Northport Union Free School District, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-037. Moreover, the statute contains an exception for the otherwise required notice requirements and does not apply when a parent is not notified by the school district of the notice requirement. See 20 U.S.C. § 1412[a][10][C][iv][IV], 34 C.F.R. § 300.403[e][4]).

In this case, the District has presented no evidence that it notified the parents of the applicability of the relevant notice requirement. Therefore, I will not reduce or deny the parents’ request for tuition reimbursement on this basis. Application of the Bd. of Educ. of the East Ramapo Cent. Sch. Dist., Appeal No. 99-038; Application of a Child with a Disability, Appeal No. 03-037. In any event, even if the District showed it had provided the requisite notice, I would still find that the parents are entitled to tuition reimbursement. The child’s testified that she spoke with the child’s every day about her concerns with the child’s lack of progress and the fact that the child was not able to understand much of the work assigned to the class. She also testified that the parents spoke to the about their desire to seek an alternative placement for the child and that they “assumed” that the conveyed their intent to the administration (T. : 70-71). Moreover, it can be inferred from the ’s testimony that at the June 9, 2010 IEP meeting the indicated that the parents were removing the child from for the 2010-2011 school year. Therefore, the notice requirement does not impact negatively on the parents’ position and the equities favor the parents here.

However, I am denying the parents’ request for prospective payment. The 2009 Income Tax Returns provided by the parent show an adjusted gross income of The tuition at The School is $32,758.00. I find that this financial situation is not of the type contemplated in Connors v. Mills, 34 F. Supp. 795 (N.D.N.Y. 1998), which addressed the question of tuition payment for students whose parents did not have the financial means to outlay the tuition and wait for reimbursement.

In sum, I find that the parents are entitled to have the Department of Education pay the tuition at The School for the 2010-2011 school year in the amount of The Department of Education is to provide the child with transportation to and from the school. In addition, the Department of Education is to reimburse the parents for expenses to and from the school from the day of the 2010-2011 school year until transportation is provided for the child. Since I find that the parents are not entitled to prospective payment of the tuition, the Department of Education is to reimburse the parents for the tuition paid upon appropriate proof of payment.

ORDER

In light of the above findings of fact, it is hereby ordered that:

a) within 30 days of receiving a copy of the 2010-2011 tuition contract and appropriate proof of payment by the parents, the Department of Education is reimburse the parents in the amount they paid to the school for the tuition. If the parents pay the tuition in installments, the Department of Education is to reimburse the parents for each installment within 30 days of receiving appropriate proof of payment for each installment.

b) Immediately upon receipt of this Order the Department of Education is to provide the child with transportation to and from ; and

c) the Department of Education is to reimburse the parents for transportation expenses to and from the school from the day of the 2010-2011 school year until transportation is provided for the child

Dated: November 22, 2010

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 ON OCTOBER 8, 2010

PARENT

A Evaluation, April-May 2008, February 2009, 12 pp.

B New York City Department of Education Individualized Education Program, June 21, 2007, 15 pp.

C New York City Department of Education Individualized Education Program, June 10, 2008, 20 pp.

D New York City Department of Education Individualized Education Program, June 10, 2009, 21 pp.

E New York City Department of Education Individualized Education Program, June 9, 2010, 22 pp.

F Reading Goals, Undated, 2 pp.

G Reading/Writing/Spelling Assignment, January 3, 2010, 5 pp.

H Reading/Writing/Spelling Assignment, January 11, 2010, 5 pp.

I Reading/Writing/Spelling Assignment, Undated, 3 pp.

J Reading/Writing/Spelling Assignment Undated, 2 pp.

K Reading/Writing/Spelling Assignment, January 25, 2010, 3 pp.

L Reading/Writing/Spelling Assignment, February 8, 2010, 2 pp.

M Counting and Computing Grades K-12 , March 4, 2010, 15 pp.

(double sided)

N Math Lesson 4-1 Change Number Stories, Undated, 2 pp.

O Math Lesson 4-4 Math Boxes, January 19, 2010, 3 pp.

P Math Lesson, April 21, 2010, 2 pp.

Q Math Lesson 6010 Digital Notation, May 25, 2010, 1 p.

R Math Lesson Addition, Undated, 2 pp.

S Information, September 29, 2010, 8 pp.

T Reservation Form 2010-2011, May 11, 2010, 1 p.

U Contract for Educational Services for School Year: 2010-2011, May 11, 2010, 3 pp.

V Statement of Tuition Paid, September 27, 2010, 1 p.

W Attendance Report: , September 27, 2010, 1 p.

X Profile of School Students in the Primary Group 1: ’s Class, Undated, 1 p.

Y Class Schedule: , Undated, 1 p.

Z Educational Screening: , June 6, 2010, 2 pp.

DEPARTMENT OF EDUCATION

1 Individualized Education Program, June 10, 2009, 20 pp.

2 Individualized Education Program- Annual Review and Final Notice of Recommendation, June 9, 2010, 20 pp.

3 Progress Summary for September 14, 2010, 2 pp.

4 All About Dogs Goal 6, June, 2010, 11 pp.

5 , May 2010, 7 pp.

6 Self Assessment, October 2009, 6 pp. (back to back)

7 Mid Year, March 2010, 11 pp. (back to back)

8 Observation Guide, January 12, 2009, 9 pp.

9 Self Assessment, end of year, 2010, 6 pp.