Impartial Hearing Decision

INTRODUCTION

I was appointed to hear was appointed to hear the matter of pursuant to the Individuals with Disabilities Education Act (IDEA), 20 United States Code §1415(F)(1). A hearing was held on January 7, 2011, and hearing dates were canceled on joint motions of both parties. The hearing was concluded on May 13, 2011. The parties submitted written closing statements and the time line was duly extended. Appended to the record are lists of persons who appeared and evidence that was entered on each date.

BACKGROUND

is a grade student who is classified as . He had been first classified as a CPSE student in 2003 by and he had attended the until second grade. The Committee on Special Education (CSE) met on April 1, 2009 and recommended an integrated co-teaching model for science and social studies. His parents rejected the placement and placed at for the 2009-10- school year for his third grade. The CSE of the District met on June 2010 to recommend a program for for the 2010-11 school year which is now in dispute. The parents were not in attendance at that meeting. Both sides have different versions of why the parents did not attend but the meeting continued. The CSE ultimately recommended a special class setting for language arts, reading and social studies with related services. The CSE mailed a copy of the IEP to the parents on July 27, 2010 and the parents wrote a letter to the District rejecting the placement. The parents claimed that they had no notice of the June 14th meeting and informed the District of their intention to return to and seek reimbursement for the cost of the tuition. In response to the letter, the District scheduled another CSE meeting to review 2010-11 IEP. The meeting took place on September 30, 2010. The team modified .'s present levels of performance, added math goals and recommended for integrated co-taught math. They added a resource room period in his program and recommended therapy. They continued to recommend special education classes in language, arts, reading, science, social studies and therapy. The parents received the IEP on November 22, 2010. The parties agree that both IEPs are the subject of this hearing. The parent through their attorney brought this hearing to request tuition reimbursement for the 2010-11 school year at

DISTRICT'S CASE

The District was represented by their attorney . They maintain that the IEP that was developed for the 2010-11 school year as a result of the June 2010 meeting provided with an appropriate program. They further maintain that the changes that were made as a result of the review meeting in September 2010 were based on new information and that program was appropriate. They question the appropriateness of the program unilaterally selected by the parent. They further contend that the equities favor the District. In summary it is their position that tuition reimbursement should be denied.

has been the assistant superintendent for pupil personal services at for the past three years. She had worked as a special education teacher and provider for twenty years prior to coming to . She oversees the department, chairs initial meetings, reevaluation reviews and program reviews. She reviews and discusses the cases with Ms. , the CSE and CPSE chairperson.

had been classified in 2003 as a CPSE student. He had been placed in School in a self contained program and was in a similar program in first grade. He was in a different and less restrictive program in second grade. Early in the fall they determined that he needed more support and they changed his program.

On April 1, 2009 there was an annual review for this third grade. On June 2, 2009 there was a program review. They developed an IEP dated June 2, 2009. She described as a student who has always struggled with reading. He was inattentive and unfocused and had issues surrounding executive functioning. He had language difficulties and she opined that literacy and language were central issues to his difficulties.

They had conducted a and educational evaluation, evaluation, therapy evaluations and the Wide Range Achievement Test which is reviewed each year and they also used teacher reports. The parent provided them with evaluations by Dr. and .

The team recommended a special class language arts, special class reading, integrated co-taught class for science and social studies and related services of and did not attend School for the 2009-10 school year. His parents placed him at School in .

The CSE met on June 14, 2010 to develop a program for the 2010-11 school year. The meeting had originally been scheduled for June 4, 2010 but .'s father had requested a postponement. The parent did not attend the June 14, 2010 meeting. They called ,the counselor for school and s teacher who were going to participate in the meeting. They called 's father on his cellphone who apologized and explained that he could not attend the meeting. They informed him that was waiting and he told them to go ahead and have the meeting. They informed him that they could hold or cancel the meeting and if they held the meeting, once he got the IEP, they could have a program review, if he wanted a follow up meeting. He was on speaker phone during this conversation and advised her to go ahead with the meeting.

At the meeting she called who is the school psychologist. joined the meeting and Dr. was there the whole time. appeared by speaker phone and provided the team with background information including a letter to the parents discussing s objectives and need for direct instruction. (Exhibit 8) They described . as very much the same way he was when he had left them in second grade. He struggled in reading and had a relative strength in comprehension. Literacy was an area of concern. They described strategies they use, scooping and chunking, the use of a multi-sensory approach, and Orton-GIllingham based Methodologies. Both the strategies and methods are similar to what they use in . They described his comprehension as strong but he required a great deal of direct instruction for word decoding. He was in a small group setting with students with similar abilities. They said he made progress in his writing. He needed graphic organizers and direct instruction for sentence structure and for developing paragraphs. He had writing in small group instruction. They described math as a strength and said he was functioning on grade level. Reading impacted on all his subjects.

With respect to the development of his goals, provided a very detailed report where they broke down all of the goals that they had worked on with She explained the reason for the different goals. They wanted him to be able to complete assignments. The goals were based on conversation with people from his school. The reading goals were broken down The writing goals also came through conversation and written information from Eagle. They focused on 's ability to self correct his errors. With respect to goals they relied on a report from . They were working on articulation and intelligibility.

The CSE recommended special classes for language arts, for reading, for science and social studies. Math would have been delivered in a regular education class and they recommended speech and language services. The special class can be up to twelve students, one teacher, and two teaching assistants. Each student has an individualized program but they all have a special class in reading. All of the students in the special class have literacy needs and there are no behavior programs in the group. They need to have information broken down and work in small groups. The students are capable of learning and are all on regular assessment. would have been provided with therapy. They determined that o therapy as well as was not necessary. did not provide therapy and had fine motor issues that could be addressed in the class. They focused on redirection, repetition, modeling and visual prompts. With respect to testing accommodations he had directions read and clarified, extending time to one and half time and a flexible setting.

She opined that this IEP would have provided with an appropriate program. She explained that had been very cooperative and provided them with a full view of who was.

They sent a copy of the IEP to the parents. They received a letter from the mother stating that they had not received notice of the June 14th meeting. They held a review program on September 30th and invited the parents to attend. Ms. attended and they reviewed the IEP that had been developed but they also had additional testing and information from since June 2010.

was still stronger in comprehension and needed a great deal of support and direct instruction. They revised the reading goals based on the information they learned with respect to the scope and sequence of what would be taught, however, they made no changes as it relates to reading instructions. With respect to his writing abilities they were advised that he was reluctant to write and became overwhelmed. This had not been shared in the June meeting. Based on the new information they revised all of the present levels of performance and added resource room forty minutes a day, which is supplementary instruction, to provide with the additional writing that the needed. They also presented a picture of him needing more help in math because of his reading issues and as a result they added math goals on the September IEP. They added integrated co-taught math which meant that would attend a regular class but the class would be taught by a special education teacher and a regular education teacher. They added because they were told that he struggled with his writing. There was no documentation and had he returned to , they would have done an therapy evaluation.

Ms. did not give any opinion about the program and asked the staff not to give an opinion as to the specifics. (Tr. 16-60)

On cross examination she stated that two members from School participated on speakerphone. One of them asked if they could leave at the end of the meeting, however, they had been asked their opinion on the appropriateness of the program. They came to a consensus that the special class would be appropriate and putting in a special math class would have been appropriate in June. She explained that at the June meeting everyone who participated including the representative all came to a consensus. In September they did not give an opinion as to the actual placement but they were given opportunity to discuss it. She agreed that there was no general education teacher either in June or September and there was no observation conducted that was available to the committee at either meeting. She agreed that the social history was three years and five days old as well as the medical health records. She referred to goal 14 in the June IEP as a motor goal. . She did not agree that there are no goals designated specifically for an occupational therapist. She explained that they had a lack of specific information because did not have an therapist. She agreed that the IEPs had different formats and the need section is expanded in the September IEP. She explained that the information came directly from 's teacher at which caused them to expand the information. They had different information in September and felt that his writing issues were more significant.

The first meeting started approximately at one forty and did not end until close to three. The school provided a lot of detail in June. She explained the reason for the change in goals was because of 's needs. He was not as prepared and they talked about his executive functioning. She explained that all of his reading levels would have been approximately second grade and acknowledged they had no specific grade level. She agreed that there are no math goals in the June IEP. She agreed that they added mathematics, social emotional and motor as new areas and explained that this was as a result of new information including written reports and discussions. She agreed that no one had asked to conduct an observation. She reiterated that the staff at had changed their view point in September. (Tr. 60-82)

On re-direct she agreed that the contents of the evaluation contained information that would comprise a social history. She explained that staff members monitor the goal, collect data on the goals and make sure that the progress note is there. They work in conjunction with staff members that are working on other areas. The primary responsibility is given to the special education teacher but there are other professionals that work on the goals such as the resource teacher or the regular education teacher. She described the differences between what was discussed in June and September. They had been given an opportunity to describe .'s strengths and weaknesses in June. In June they stated that he was progressing through the year. He needed less support but had definite literacy learning issues. He had some inattention but they were not specific about his needs.

She explained that grade level is not important for reading goals because it is the discrete skill that they are instructing and evaluating. The goals were directly taken from the needs expressed at the meeting and the written reports. At both meetings there were discussions about 's pragmatic language and how he loses his audience. (Tr. 82-90)

DR. is currently the CSE and CPSE chairperson and supervisor for special education on the elementary level at . He was a member of the CSE meeting on June 14, 2010 for He was in the room when Ms. called s father and heard him say on speaker phone that he could not attend the meeting, his wife could not attend and they should go ahead and have the meeting. They had the progress reports provided by from December 2009. and Ms. attended the meeting and gave a verbal update .'s progress. Reading comprehension was a relative strength but his decoding was poor. He had a difficult time with the organization of his writing and getting his thoughts down on paper. Math was seen as a relative strength and he was on grade level. They were pleased with his social and emotional performance. The goals were developed based on his needs and the discussions and areas that he required continued direct instruction. They provided the team with a very thorough report as to the skills he had mastered and what skills he needed to work on.

They recommended special classes for language arts, reading, science and social studies. The special class at is a self-contained class that serves students between grades three and five. They use a multi-sensory approach and the the special educator would have been Ms. for all the subjects. The children are walked from one class to another, by either the teacher or support staff. The students transition from one class to another based on their strengths. They recommended therapy based on a progress note from the specialist at . was not recommended because of 's improvement in social and emotional functioning. They thought his fine motor issues could be addressed in the classroom. They gave him program modifications based on the strategies and accommodations that the staff said were important to . He opined that the staff believed that could be successful in he special class program that was recommended.

He was the chairperson for the September review meeting. They had updated progress notes from from June 2010 as well as verbal updates. There were many more concerns with respect to 's academic functioning in terms of his writing. He was shutting down when he needed to write. There were still concerns about his decoding skills. His reading difficulties were having a lot more impact on his mathematics skills. He was more dependent and shutting down more especially when he faced something that was difficult for him. They updated his present levels of performance on the IEP and adjusted his goals to make sure they were aligned with the present levels of performance. They added a study skills goal, adjusted one of his reading goals, added math goals as well as a social emotional goal, and motor goals. They changed the recommendation with regards to his programming by adding resource room and integrated co-teaching for mathematics. The prior recommendation had general education for mathematics and now there is the addition of the special education teacher in the room to support during the whole time. This would not cause him to have to change classes. The purpose of the resource rooms is to give additional instruction in reading and writing as well as to address the study skill goals that were developed at the September meeting. They added the occupational therapy because of problems with pencil grip that were affecting his ability to write. They contemplated counseling because of his coping skills but the parent was uncomfortable with the recommendation.

He opined that the program that was developed could appropriately address 's needs. (Tr. 90- 112)

On cross examination he acknowledged that he had not provided every document to the representatives and did not know if they had them. There was no representative at the meeting. The CSE determined the sessions of based on the goals. There was no therapist from at the meeting and the CSE made the recommendation of sessions based on the goals. They used the current progress report of the last half of the year. The Special education teacher could deal with 's shutting down issues. He explained that they put the graphic organizer under modifications so that it would be used in different areas and not only mathematics. There are no specific goals in writing to eliminate his shutting down. He explained that they attempt to remove the student for resource room during the least intrusive time when it does not interfere with primary instruction.

The class ratio was 12:1:1 and he acknowledged that there was no discussion about the impact of increasing his class size. (Tr. 112-128)

On re-direct he stated that there area a maximum number of twelve students but it could be much smaller. They did highlight his propensity to shut down based on the new information under his needs section.

On re-cross examination he agreed that the regulation for therapy is two times a week but the group size is determined by the committee. (Tr. 128-130)

is a third, fourth and fifth grade special education teacher at School which is an elementary school in the District. Currently she is in her classroom all day teaching special class language arts, reading, math, science and social studies. There are twelve students in her class for special language arts and there had been eleven at the beginning of the year. would have been assigned to her class had he attended for the four listed subjects in his IEP. There are two teaching assistants in her class. All of the students are classified as either or or . There is a wide range with respect to their disabilities. All of the students can do some reading and writing and work across the curriculum. There are limited behavioral problems. Some students have attentional difficulties as well as troubles dealing with frustration. They use a behavior plan across the class. She opined that . would fit right about in the middle with respect to his functioning with the rest of the class.

For reading they split the class into three groups, one per teacher or teaching assistant. She gives the students assessments in September to determine the appropriate group. The group works at the level of the students in that group and focuses on whatever their needs are according to their IEP and assessments. Some of the students focus more on the spelling, decoding and fluency piece, especially students with . Some students have weakness in comprehension.

For small group reading she uses Preventing Academic Failure (PAF)which is multi-sensory, reading, spelling, decoding, fluency and spelling. For writings she uses a combination of the basic writing skills from Windward which incorporates graphic organizers and the Teachers College methodology of reading and writing worship.

She does a full group mini lesson in which she guides the students through in teaching a new point. She then has them practice independently and they they regroup. The three adults float around to help the students while they work independently.

With respect to writing she does a full group mini lesson with all twelve students. They all work on the same teaching points and then she works with them independently. All the adults help each student individually.

The special class science and special class social studies are similar to writing. There are only six students in the science and social studies classes. The other students go to their grade level regular education science or social studies classroom. She previews the vocabulary, gives them the definitions and then they do some reading and writing about that topic. She differentiates the instruction based on the ability of the student. She uses songs about the content area and does some type of assessment where she does study skills and test taking strategies. With social studies she previews the vocabulary, and uses reading and writing to teach and differentiates based on the abilities of the student.

She explained that if a student would not be in her class for math as in s program they go to the regular fourth grade teaching for math class where there is a teaching assistant and support. She schedules math at the same time in her room so that the student would not miss anything in her class.

She explained that she has to be familiar with the goals on the student's IEP and different ways to work towards meeting the goals. She went through goals and explained how she would work on each one in the classroom. With respect to goal one she would set up a check list and observe him to see if he were able to independently initiate. If he had trouble she would work towards making him more independent.

.'s first and second reading goal would fit in appropriately with the PAF curriculum. Within the curriculum there are student workbooks which help monitor progress. She also listens to the students read aloud and does spelling dictations. At the end of each PAF unit there is a proficiency exam. With respect to his last reading goal she would teach the strategy of skipping over the word within the sentence and using other words to figure out its meaning. She uses checklists to monitor that goal.

With respect to the writing goals, she explained that she works on the student identifying and correcting errors in a written assignment by putting up one sentence and moving on to a full paragraph that contains mistakes. The students work as a group and come up to the Smart Board and then the student has independent work to do in these areas which she monitors on an individual basis. She works on all of the goals in her classroom. She uses graphic organizers from the basic Writing Skills Program.

The concepts and skills listed for . are similar to those that she works on with her students. She addresses phonemic awareness and spelling through the PAF curriculum. She addresses vocabulary and comprehension in small groups and in the larger groups. She does one read aloud with the whole class where they focus on comprehension and vocabulary. In the smaller groups she picks a guided reading novel which is individualized towards the level of that group. They tap into vocabulary and comprehension as well as decoding and spelling fluency.

She opined that . would have been in the middle of the three reading groups. He has mastered a lot of the skills that the lowest of the three groups have not even begun yet. In terms of decoding and phonemic awareness he has mastered a lot of the concepts. She does an assessment before she places anyone into a reading. She explained that it looks as though requires work in the writing piece. He needs work in decoding and on some of the rules that come later in the PAF curriculum.

She described the modifications that requires. She previews vocabulary ahead of time in a variety of ways, the students repeat it back and then she gives them the definition. She uses context clues to predict the definitions of unknown vocabulary words. With respect to the comprehension classroom modifications listed for she incorporates them in her classroom. She presents visual cues as well as talking about different comprehension strategies such as visualizing, predicting, and making text to self and text to world connections. They talk about the main ideas and important details.

With respect to writing she addresses the concepts and skills listed for . and opined that he would have been appropriately placed in her class.

requires direct instruction in many areas which is similar to many of the students. In spelling they address that in small group instruction for the PAF programs. There are mini lessons and students work on individual writing pieces in a notebook. They use the graphic organizers to plan. They could have accommodated his three spelling modifications through the PAF program and through the sentence activities as well as paragon and much paragraph writing. She would work on his literature concepts and skills in the smaller groups. With respect to social studies concepts and skills these are incorporated into her special class. She uses a word wall in which they display the words and illustration that go with the vocabulary word. She uses the same type of activities in science for vocabulary.

With respect to classroom modifications there is incorporation of the literacy which she does through reading and writing in the content areas. She uses pictures and images on the Smart Board as well as movies.

She assesses comprehension through reading and quizzes. In summary she opined that would have been appropriately educated in her class and she believed he would have made progress. (Tr. 156-186)

On cross examination she stated that she had not been asked to attend the IEP meeting in June. She acknowledged that there were no special education teachers from at the meeting. She acknowledged that there was no general education teacher at the meeting. There are five core subject areas. would have been scheduled in a special class for four periods a day, language arts, reading, science and social studies. The students also have math, and thirty to forty minute specials such as art or music, physical education and an hour for lunch and recess.

She and one of her teaching assistants is a certified special education teacher. would have been in the regular education math class which has a special education teacher assistant.

She agreed that the progress report was not listed on the IEP. She acknowledged that she has never observed, tested, or taught but she knew the teachers that have taught him. She acknowledged that there was no evaluator at the meeting and she was unaware of how the goals were developed.

She had not been present at the September IEP meeting. She agreed that there was a qualitative difference been the program in September and the recommended program in June. The CSE added resource room and recognition of the need for a special education math class. She had nothing to do with the preparation of these goals and had not seen the IEP prior to the hearing. (Tr. 196-198)

On re-direct she stated that is a special education teacher at one of the other schools in the District. She described the resource room as a supplemental program for students who get instruction in the regular classroom but need some extra help. (Tr. 198-199)

PARENT'S CASE

The parent was represented by their attorney Mr. . They question the composition of both the CSE meetings. They maintain that the June IEP was not appropriate. They argue that the meeting in September was for the purpose of making the June IEP more appropriate. They maintain that the District failed to meet their burden under prong one. They argue that the parent's unilateral placement is appropriate and the equities favor the parent.

Ms. is certified as a special education and an administrator in . She was the admissions director at in the spring of 2009 when .'s family initiated his application. She has observed him in class and has met with his teachers and family.

School has a population of two hundred and fifty students who are divided into a lower school and upper school of approximately a hundred and twenty students each. is a student in the lower school. They are an ungraded program that chronologically serves children aged six through sixteen. The lower school consists of approximately ages six to eleven years old which correlates in public school to first grade to fifth grade. The two schools share buildings and all the students participate in co-curricular activities, art room, gym, music room and the dining room.

is a school for children with It is dually certified in and is recognized in New York in the emergency interim placement program through Albany . There are children who attend who do not have IEPS. She was involved in initial admission to the school. They are unable to accommodate all the students that apply and many children are put on a waiting list. She observed on two separate occasions, during the week of December 7th and 8th and during the week of April 6th , 7th, and 8th, in all of his classrooms.

She described a typical day for . is his adviser and every morning the children and the advisory team meet during the home room period which is about fifteen or twenty minutes at the beginning of the school day. The children are in a team with the adviser and eight teachers. The period is used for getting the child organized for the day, making sure homework is done, and that the student knows where he is going throughout the day.

The children begin their actual academic day at about 8:30am. . has an individualized program and moves from class to class each period grouped with children of similar age and ability. He starts his day with a math class where there are six students and one teacher. Classes are approximately forty two minutes each. Math is a relative strength for and he appears very comfortable with the routine.

His second period class is an oral language class with a five to one ratio. They emphasize pragmatic language skills, language development, and oral expressive language. The teacher, is certified in special education. She does frequency games and activities relating to pragmatic language. required direct questioning for him to be activity engaged. He was reluctant to initialize.

After second period they have a ten to fifteen minute recess period. They have juice available and can go out and play or go to the library or participate in indoor activities.

After recess comes back to his language arts tutorial class which is also taught by s. He works with one other student in this class. The primary emphasis is to work on his reading skills. They use a very structured approach. They use controlled readers with patterns of words that are being instructed and also being reviewed for his spelling. Some of the strategies are tracking and rereading and asking questions. She uses a lot of pre-reading activities and highlights vocabulary prior to the actual reading Comprehension was a relative strength for . compared to his reading accuracy and fluency. Ms. uses the Active Board in the class and she opined that is very motivated by the multi-sensory activities in the classroom. She uses various activities such as calisthenics which particularly helps prior to a challenging activity. He also uses a bean bag cushion on his desk chair which helps his posture for writing activities. His teacher mentioned the importance of positive reinforcement for She does goal setting for him and the goals are measurable step by step.

After the tutorial class there is a period where the advisory team comes back together in a group for about twenty to twenty five minutes, the callback period. This is used for academic support and those who do not require this can go to the gym and play or work on a project. uses this period with to isolate himself in the classroom and initiate homework assignments or complete assignments.

There is a forty two minute lunch period and the two hundred students are divided into three periods. There are six children at his lunch table with two teachers.

After lunch he has his writing class with Ms. . There are six students and one teacher. She observed him being distracted but he was very responsive to Jessica who spoke with him. They work on on the PAF handwriting program. They use a multi-sensory approach to handwriting. He is seated on a cushion which helps him with his posture. He seemed to be very engaged.

After the writing class has for all of his afternoon academic classes or for his core curriculum. His sixth and seventh period is a combination of literature, social studies and sciences which consists of two forty two minute period. His core class is an eight to one ratio which is his largest class during the day. In that class he seemed very actively engaged and excised. The routine is very apparent and the structure is there and appeared very comfortable.

receives services from Mr. who is a certified clinician in a two to one session once a week.

The academic day ends at two and then there are two periods where the student has a selection of co-curricular activities. There is an hour every day of selected activity and an hour every day of structured study hall. The activities are designed so that the child can choose areas of interests and strengths and it is an opportunity to work with peers who have similar interests.

There is a structured study hall at the end of the day which is run like a class. There are six students and one teacher.

Each of the classes has a combination of published materials and teacher made materials as well as activities that were used on the Active Board through the Web.

After she first assessed she opined that he could benefit from placement at . His teachers described him as kind and polite but still reluctant to initiate conversation with peer. He can be somewhat anxious and feels overwhelmed if homework sheets are not broken down. His self esteem is still fragile but his confidence is growing. Academically his teachers described his math computation and concepts and comprehension and background information as a relative strength for Written and expressive language is a challenge for him and he requires teacher intervention for him to make progress. All expressive language and pragmatic language skills are still areas of concern and he is not independent in applying the skills.

Once material is broken down and presented to him in sizable chunks, is more able to initiate and complete an assignment. He is responsive to the direct instruction and strategy instruction. The teachers constantly confer with each other as how much they can push him because he is still in a fragile state.

On Friday the children have all of their academic classes abbreviated from forty five minutes to thirty seven minutes and the callback period is eliminated as well as the lunch period. They are dismissed at twelve thirty. From one to four on Friday the adviser meets with the team of teacher to go over progress and goals share insights and see if anything needs to be adjusted for a particular child to reach a goal. The occupational therapist consults with the teachers during this time to suggest how they can incorporate strategies into the class. The teacher meetings are built into the program every Friday and every morning and during lunch. There are individual meetings during the week.

She opined that requires direct instruction because of his attentional issues and his executive functioning issues. Smaller class are imperative to his learning. This opinion was shared by each of his academic teachers and advisers.

She described the people from who had attended the meeting. was the chairperson. is the guidance counselor and s adviser. She is responsible for coordinating academic goal setting with the teachers for the individual child. The adviser acts as a liaison between school and home. She observes him in his classes. An adviser is responsible for about twenty students per year. was 's language arts tutorial teacher. She did not know Ms. or Ms. .

With respect to the reading goals on the IEP she acknowledged that there are no explicit stated levels for vocabulary or writing. is part of 's program. She described the two to one tutorial at as a highly visualized intense remedial program designed to improve his reading fluency and accuracy. His organizational needs are addressed in all of his classes. It is a common thread for each one of his classes as a team approach. Organizational skills are also dealt with in study hall and home.

The program provides study skills for With respect to the reading goals, she explained that there are no grade levels listed but anyone familiar with the reading process would have a sense of the grade. The program also responds to the writing goals in the IEP. There is a therapist and there is also collaboration in the weekly team meetings. is part of 's program. The two to one tutorial at as a highly visualized intense remedial program designed to improve his reading and fluency and accuracy. It is a very extrasensory approach and it also works on spelling and written expressive language in conjunction with his writing class. His organizational issues are dealt with in all his classes as well as in study hall and in home room. He does not receive occupational therapy directly at . They hired an therapist and he was available to work with students through parent's involvement. There is also a consultant on staff who is available to consult with teachers or advisers about individual students. He sits in on team meeting and observes classes and gives suggestions..

also worked on the first study skills goal. The program responded to the math goals, the social emotional goals, and motor goals, that were added on the later IEP. He could not see any goals in the IEP that is the responsibility of an therapist.

She asked Ms. about documents that she had received prior to the IEP meeting. She did receive a formal invitation from the district for the June 4 meeting and a phone call for the meeting on the 14th. She could not recall receiving any documentation prior to the actual CSE meeting on either day. She could not remember participating in a consensus at the end of the meeting concerning the appropriateness of the recommended placement.

Testing at is done in the last spring. They test incoming students in the fall to have a comparison of results. .'s scores on the Gort and the Slossans had just been administered . He had already taken the Stamford Diagnostic Reading, the Stamford Diagnostic Math Test and the ERS writing test but the scores are not yet available. She met with s adviser and teachers in April to discuss progress that had been made since the December. informed her that has made progress in each of the academic areas and math computation and concepts continued to be quite strong. He improved in his comprehension and drawing background information, there was progress in decoding and in fluency and in the written expression language and oral expressive language areas but they were still a challenge for She described him as having “emerging self esteem, emerging confidence and emerging understanding of himself as a learner. She opined that his number one area of growth was his acceptance of constructive criticism and his willingness to recognize when he needed help. Previously when he was in a difficult academic task he had many avoidance behaviors and became very anxious and frustrated. He has improved in math in particular. He is beginning to develop vocabulary to express his frustration rather than displaying more avoidance behaviors.

She explained that with respect to the contract if a parent has an appropriate program being offered and vacates the spot they will be refunded all the fees if the admissions office is able to fill the spot. There has always been a waiting list at the school.

There are formal and informal assessments that go on throughout the school year. Teachers assess progress towards goals. There are informal assessments done on a daily basis. There are unit quizzes which are incorporated as part of the information that the teacher puts together for the report which the parents receive in December and June. There is a portfolio of work samples from the student. Ms. , the adviser is responsible for the individualized testing each spring. The scores are attached to the child's June progress report and he was told that she had just completed 's testing. He received an email as well as the telephone call. Under the it listed s grade equivalency as as compared to last years (Tr. 206-282)

On cross examination she testified that approximately one third of the students do not have IEPs and were not classified by their school districts. Their curriculum is aligned with and approved by . The classes are ungraded and the students are grouped according to their ability. The students in s group are of average to above average cognitive potential with similar mechanical skills, strengths and needs in the specific subject areas. They may present with some pragmatic issues and attentional issues but no primary behavioral or social issues. The children in his advisory cohort are the same but from that group he is placed with the other five children with similar academic needs. They would vary from writing class, to math class or reading class depending on their skills. At the June 14th meeting the information contained in the school report would have been available to the teachers.

In reading they use a specific Orton-Gillingham based reading program that is multi-sensory in nature. They use PAF approach with the Merrill Linguistic Readers. The PAF handwriting and spelling portion of the program is coordinated in conjunction with the reading tutorial. They use the process writing program that is written by the Staff.

With respect to the goals on the June IEP, she stated that they align with the scope and sequence of the PAF program. She acknowledged that goals two and three are clear for an instructor in PAF but goal four is a little unclear. (Tr. 282-289)

is .'s mother and she testified that he had received early intervention services of speech and occupational therapy. As a preschooler he had a SEIT as well as speech and occupational therapy. They supplemented his speech therapy with private pay speech therapy. At age five he attended a special educational program at the . It was a contained classroom for children in kindergarten, grades K, 1 and 2. He was in that class for kindergarten and grade one. In his second grade he attended and was pulled out for certain classes and services and had a special education teacher or teacher in class. However, unlike kindergarten and first grade he was in a general education class. She had been advised by telephone that his prior classroom was going to be disbanded and the children coming into the second grade had different learning profiles. She described the Kindergarten and grade one class as wonderful and the grade two class as a disaster. She described him as going from a happy well adjusted child to an unhappy boy. She received calls from his then teacher requesting a meeting because of their concerns. He was crawling under the teacher's desk and not returning from the restroom. They made modifications and added services for Another professional person was put into the classroom to assist him. The size of the general education class was larger than his prior classes.

In third grade had attended A meeting was held on June 14 that she did not attend. She did not receive a notice of the meeting for June 14. She had received notice for a meeting that was supposed to take place on June 4. She placed it on her calendar. On June 3rd they had met for a hearing for last school year and they call agreed to reschedule. She did not find out about the June 14 meeting until she received the IEP in the mail sometime after July 27. She did not receive a copy of the notice in advance of the meeting. Neither her or her husband attended the meeting. She was told by Ms. that he husband had been called on the day of the meeting and told them to go ahead without him. Her husband stated that this did not happen.

She received the IEP sometime after July 27 and she wrote to Ms. on August 17, (Exhibit 12) stating that they had no advance notice of the meeting. Ms. From indicated that they were notified by phone of the meeting prior to the date of the meeting. She requested another meeting which took place on September 30 which was a month into the school year. She attended the meeting alone. There was no discussion with respect to the absence of Ms. who would have been 's teacher had he enrolled in the program. There was no regular education teacher, no therapist and no therapists. There was a long discussion as to why the September 20 IEP was now including a special education math component. Her concern was that because cannot read well enough he still had need for services in math. There was a long discussion, which she described as productive, cooperative about more services for and his need for individual attention, encouragement and reinforcement. He needs to be kept on task and to be kept motivated. She stated that she had been told that Ms. had not participated for the whole meeting in June. She elicited a lot of the information from Ms. . She received the IEP from that meeting in October. She wrote to them twice after the September meeting so she would know about s program. She explained that by the time she received the second IEP had already been at for three months.

She acknowledged that the second IEP was a vast improvement over the first one and seemed responsive to his needs. It offered smaller classes with individual attention but not as small as offered.

She opined that the program at covers all the areas dealt with in the September IEP. It offered

, and a specific resource room type program, and acknowledged that he needed special education in math. The June IEP did not offer special education in math or a resource room.

She explained that she was under the impression that had the District offered her an appropriate program there was a likely possibility of the return of monies paid to . She had signed a contract in March but the first payment was not made until the end of July.

She opined that had a successful year at . His self esteem has improved and he loves going to school. She explained that had the District offered her an IEP similar to the one in November27 she would considered their placement. (Tr. 290-322)

On Cross-examination she acknowledged that during the course of .'s second grade his program was made more restrictive in that additional services were put in place. She was unaware if her husband had called the special education office in advance of June 3rd to try and rearrange the June 4th meeting. It was not her understanding that on June 3rd her husband had a discussion with Ms. to find out the date the meeting was going to be rescheduled. She did not receive an invitation to a CSE meeting by the end of June and did not call the district to find out what was occurring.

At the end of the September 30 meeting she knew the CSE was offering more services at least in math. They had indicated that . was being placed in a class that would have a special education teacher as part of that math class. She did not believe anything including a resource room was being formally offered to her. She acknowledged that she had an indication that they were going to make changes. She acknowledged that she knew prior to September that there was an issue with respect to whether or not her husband had been contacted. Her husband told her he never told them to have the meeting without him. She was unaware if her husband had received a phone call on June 4th and was unaware if he got a telephone call from Ms. . (Tr. 322-329)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of the Individuals with Disabilities Education Act ( IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. 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 FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) 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]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal 24No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).

The CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015. This obligation includes providing the parents with written notification within five days prior to the meeting to ensure they have an opportunity to be included in the development of their child's IEP. NYCRR §200.5.(c)(1).

In this case there were two meetings, each of which generated an IEP, that must be considered. The first meeting was held on June 14, 2010. Counsel for the parent argues that the IEP is procedurally invalid because the parents were effectively precluded from participating in the development of .'s IEP. There is no dispute that the parents were not present. There is no dispute that the meeting had originally been scheduled for June 4, 2010. Ms. testified that s father had telephoned her prior to June 3,2010 to reschedule the meeting. .'s mother testified that it was only on June 3, 2010 when the parties were together for a prior impartial hearing that a request was made verbally by the parents to cancel the June 4th date. In evidence is a letter dated prior to June 3, 2010 with the rescheduled date of the meeting. The parent states that they never received this letter. I find it plausible that the District had sent out a letter re-scheduling the meeting to June 14, 2010 and will credit the parent's testimony that they did not receive the letter.

At the hearing there was testimony from Ms. regarding her telephone call to which took place on a speaker phone, on June 14, 2010, the day of the initial meeting. This conversation is confirmed by Dr. who was also present at the meeting. The conversation was detailed at the hearing and the testimony from those who were present at the meeting is clear that the parent waived participation in the meeting. At the hearing, . stated that this conversation never took place. I cannot help but take notice of the fact that .'s father who is the only person who could have shed first hand light on what transpired did not appear on any of the hearing dates and did not submit any written statement into evidence. While I credit 's mother that her husband stated that this conversation never took place, it is unclear if he was referring to any conversation or certain parts of the conversation. I credit the Department's witnesses both who were present at the meeting and had first hand knowledge of any conversation, which they presented in detail, that in fact they did call the parent who advised them to proceed without the parent's presence. I find that the District did in fact send out a letter dated June 2, 2011 which provided the required five day notice of the meeting. I find that the parent waived their participation in the meeting. Counsel for the parents also argues that there was no waiver of a parent member. I find that s father was advised of the members who were present at the meeting and told them to proceed without a parent member. This was certainly not the first meeting that the parents had attended and I find that the lack of a parent member is not a deprivation of FAPE.

Counsel for the parents argues that there was no one present at the meeting that would be responsible for implementing the IEP and no one who was able to speak to the appropriateness of the recommended program. In this case it is undisputed that his teacher from was present and could certainly speak to the appropriateness of any program. There were two members at the meeting Ms. who is Assistant Superintendent for Pupil Personnel and Dr. who is Special Education Supervisor, who were very familiar with the general education program at and could address any issues with respect to the general education issues. I find that the lack of a general education teacher did not rise to the level of procedural error that resulted in a denial of FAPE.

attended the meeting as the school psychologist and appearing by telephone were who is 's adviser and , 's special education teacher at . I find that the meeting was duly constituted.

The team reviewed a report from regarding s progress dated December 2009 (Exhibit D8). They had verbal updates on his progress from his teacher. was still struggling with reading but his reading comprehension was a relative strength. still recommended direct instruction for decoding but fluency had improved. His writing skills had also improved. The staff from reported verbally the scores from the recent administration of the Stanford Math examination on which he scored in the average range. With respect to social and emotional function, the staff noted that he was socially well adjusted and doing well in terms of in class behavior.

The staff from provided the CSE with strategies to which responded to during the course of the year. They use a multi-sensory approach to learning and break down information for ease of comprehension. In writing he needed the assistance of organizers to aid in putting together his thoughts. Ms. opined that he benefited from small group instruction in a classroom with peers similar in reading and writing deficits as him.

There was testimony that the goals were developed based upon the progress report submitted by . The goals concentrated on decoding, reading fluency and writing, initiation of tasks, as well as speech and language goals.

The team recommended a special class setting for language arts, reading science and social studies. The related service of was recommended. They rejected therapy and because the staff from indicated did not need them at that time.

Counsel for the parents argue that because there was another meeting in September which made modifications to 's program this is prima facie evidence that the June 1EP was substantially inappropriate and failed to offer FAPE. There was testimony from members of the team that the changes were made as a result of the input and observations of the staff at . I find that the program that was recommended in June was designed to meet each of 's needs that was identified by . The recommendations that were made in June were made with the information that the team had available in June. I find that the program was appropriate.

Under usual circumstances there would be no need to address anything further, however, in this case even by the District's own account, when they had telephoned 's father, they made it clear that if the parents did not agree with the IEP there would be a program review and that is exactly what transpired.

There was a review meeting held on September 30, 2010 for the 2010-11 school year. It is undisputed that as a result of this meeting there were modifications made to .s academic program which provided him with additional support. The team recommended an integrated co-teaching math class, therapy and supplemental resource room. The team reviewed the prior IEP that was developed on June 14 but they had additional information and testing from . They did not change the program recommendation with respect to reading but revised the goals. The team was told that was reluctant to write and became so overwhelmed at times as to crawl under the table. They had not shared this information at the prior meeting and so they revised his writing levels of performance. They added resource room to support additional writing. Highlighted 's need for more support in math and his need to be in a small setting. As a result they added integrated co-taught math and added resource room. This would provide with an additional forty minutes a day with direct instruction and reteaching. In contrast to the Parent's counsel, I do not conclude that this means that the June IEP was inappropriate but I find that this only provides evidence that September recommendation was appropriate. The September recommendation was made based on the new information and was designed to meet and address unique needs.

The team provided goals that addressed teacher of 's needs in reading, writing, skills as well as social and emotional issues and therapy skills. There was testimony from Ms. how these goals would be measured. The team had wanted to include as a service but the parent did not agree.

The class that would have attended had he returned to the District for the 2010-11 school year would have had no more than twelve students with a special education teacher and two teaching assistants. Ms. was the special education teacher in that class and she testified that all of the students in that class had reading and language issues and no behavioral issues. She testified that would have fit into the middle of the class in terms of academic functioning.

The students are grouped according to their academic and cognitive abilities and needs. They use a multi-sensory approach to instruction specifically the Preventing Academic Failures (PAF) program which is used by . The students are given differentiated instruction based upon their learning needs for content area subjects but they use the same curriculum topics as in regular classes. The related services were put in place or rejected after discussion with . Modifications and accommodations for the classroom and tests were based on 's input. They use the PAF program as does .

The program allowed to interact with his mainstream peers during lunch, recess and specials. The team added more small group instruction and support based on the information provided by . Even 's mother who opined that he required the small classes that were offered at , acknowledged that this IEP “seemed to be responsive, finally, to all of s needs for individualized attention really in every subject, plus some more support.” (Tr. 317-318) I find that the program was substantively appropriate.

Pursuant to the NYCRR § 200.4(e)(1)(iii), “The school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year.” In Tarlowe v., New York City Department of Educ., 2008 WL 2736027, at 6(S.D.N.Y. 2008), the Court held that “an education department's delay does not violate the IDEA so long as the Department still has time to find an appropriate placement for the beginning of the school year in September.” The SRO opined in 08-058 that the District denied the student FAPE because “it did not offer a school site in which the IEP could be implemented.”

In this case it is undisputed that the Department the parents did not receive a written offer of a program until after the school year had begun. Counsel for the Department suggests that a placement offer was made as a result of the June meeting. I agree with Counsel for the parents that the District had an obligation to make an offer after the program review. It is important to remember that not only was this review held to address the parents concerns, but there is no dispute that the first meeting in June was only held with the understanding that if the parents did not agree there would be another meeting. The evidence is clear that the review meeting was held after the school year had begun and the parents did not receive written notice of the program until November. I have struggled with the fact that there were circumstances that led to the untimeliness of the written notice, however, I find that these factors go more to the equities in this case. I find that it was the District's obligation to send written notice prior to 's attending a different school for several months. I find that this procedural error does rise the the level of denial of FAPE.

With respect to prong two, I will address the appropriateness of the unilateral placement. A unilateral private program 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 F.3d 105, 115 (2nd Cir. 2007), quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 359 (2nd Cir. 2006), quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2nd Cir. 1988).

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S.

at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).

is a New York State Approved Emergency Interim placement school for students with disabilities. is in a class of no more than students with a certified special education teacher and in a group that is similar to him both chronologically and in terms of his abilities. Here, has absolutely no opportunity for mainstreaming, or to interact with non-disabled peers. I agree with counsel for the District that there was no evidence presented that needed to be in a special education private school. The District was able to provide many of the supports that he received at . Counsel for the parents argues that mainstreaming must be weighed against the individual needs of the child. The District recommended a special class small group setting for reading, language arts, science and social studies where he would be instructed by a special education teacher with the assistance of two teaching assistants. I agree with Counsel for the District that this could have provided him with the emotional support needed to make sure he remained on task and did not get frustrated. Again it is noted that the parent did not think he required any type of and there is no evidence that his social and emotional state was fragile. In fact, had reported that he was socially well adjusted. Therefore, I find that the unilateral placement is too restrictive.

Plaintiff's burden is to show that the program was properly designed for to progress and is not required to show that in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009). Counsel for the District argues that at the hearing the only evidence of progress was second hand information from Ms. who testified as to her conversations with s teachers regarding his progress during the course of the year. Although I agree with Counsel that the actual progress report may have shed more light and certainly would have given the District their opportunity to question the assertions of progress, this does not mean that the placement was not designed for him to make progress or that it was inappropriate.

The SRO has held that a private placement is inappropriate if it does not provide the necessary related services to address the student’s individual needs, See Application of a Student with a Disability, Appeal No. 08-119 (denying reimbursement where private school did not “provide the level of related services identified as appropriate to meet [the student’s] needs”); Application of the New York City Dept. of Educ., Appeal No. 07-018 (same). In this case at the September review meeting the staff from stated that really struggled with writing. As a result they added a goal of occupational therapy which is not available at . Counsel for the parents argues that there is an occupational therapist on staff to consult with teachers for strategies and suggestions to deliver in the classroom. While it is of concern that struggles with writing. I do not find that the absence of an occupational therapist renders the placement inappropriate.

The most compelling argument for the appropriateness of the parents' unilateral placement, in spite of its restrictiveness, would be that as discussed above, had failed to offer a timely appropriate program for the 2010-11 school year. Counsel for the parent argues that the parents were left with no choice but to place at . I find that this is not really reflective of the situation. The parent acknowledged that during the meeting she had been told that the CSE was recommending and offering an integrated co-taught math class. She knew that would have a special education teacher as part of the math class. She explained that she had an indication of change without knowing the specifics. The parents were familiar with the District and with the school that was being recommended. This is not a situation where the parents could reasonably believe that they had no placement and no choice but to have remain at .

In summary I find that the unilateral placement was too restrictive and not appropriate.

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374. The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.

The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting). In this case the parents signed a contract on March 10, 2010 and made the required ten per cent deposit. They did not make their first tuition payment until July 30, 2010. There was testimony that would agree to refund parents for any tuition payment if the the child was placed in another setting so long as there is another eligible child on the list. I do not find that the prior enrollment in and of itself precludes the parents from reimbursement.

However, there are several other actions or failure to act on the part of the parents that speaks to their intentions and the equities. Even if I credit the parents that they did not receive the notice of the first meeting, acknowledged that she knew the original scheduled date was going to be postponed . I find it telling that they did not contact the school to find out when a meeting would be held. After the parents did receive the first IEP on July 27, they waited until the middle of August to contact the school for an IEP review. Given that they claim that they did not even know about this meeting, I find it surprising that they did not immediately contact the school for an explanation and to schedule another meeting. While it is true that there was still time prior to the beginning of the school year, the parents certainly had an opportunity to make their concerns known much earlier in order to ensure a timely placement. I find that the parents did contribute to the prolonging of the process.

There was testimony that the parent did not want to express any opinion about the IEP that was proposed at the review meeting. The parent did not voice any objections at the meeting. Based on all of the above, including the fact that Ms. had no real substantive issues with the IEP, I find that their actions would have resulted in a reduction any award of reimbursement.

In summary I find that the Department failed to offer FAPE to because of procedural errors. I find that the program selected by the parent was too restrictive and not appropriate. I find that had their been an award of tuition reimbursement the equities would have resulted in a reduction of the amount.

The request for tuition reimbursement at for the 2010-2011 school year for is denied in its entirety.

August 7, 2011 Sharyn Finkelstein Esq. IHO