New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 22

Hearing Requested By: Parent

Date of Hearing: March 31, 2011

April 12, 2011

May 20, 2011

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2011

ESQ., Attorney — Student

Mother — Student

Chairperson's Designee, CSE-6 — DOE

Education Liaison (via telephone) — DOE

Worker (via telephone) — DOE

School Psychologist CSE-6 (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2011

Attorney — Student

Mother — Student

Chairperson's Designee CSE 6 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2011

Attorney — Student

Mother — Student

Principal, School — Student

Chairperson's Designee CSE 6 — DOE

On November 19, 2010 I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(f)(1) in the matter of Ezriel A. (“ ”) The parents, by their attorney, Nathaniel Kuzma, filed the request for an impartial hearing on November 19, 2010. On December 21, 2010, I scheduled this hearing for March 31, 2011. Hearings were held on March 31, 2011, April 12, 2011 and May 20, 2011. The compliance date was extended as a result of the request for post-hearing submissions. Appended to the record are lists of persons in attendance and of documents submitted into evidence. The hearing was requested by the parents to challenge the April 29, 2010 review and recommendation of the Committee on Education (“CSE”) and to obtain funding for or School (“ ”), a regular education day school, located in the Brooklyn, New York and is a private entity lacking New York State Education Department approval. The parents brought this hearing seeking reimbursement of the cost of the secular portion of the program at the . The total cost of is $ 45,000, (Tr. at 109;Exh. B at 2) and the parents request the cost for only the secular portion of the day. The parents submitted cancelled checks dated September 1, 2010 (check # 1202) in the amount of $2500 payable to . (Exh. C at 1),November 1, 2011 in the amount of $2500 payable to . (Exh. C at 1), September 1, 2011 (check # 1173) in the amount of $2500 payable to . (Exh. C at 2), January 1, 2011 in the amount of $2500 payable to . (Exh. C at 3), February 1, 2011 in the amount of $2500 payable to . (Exh. C at 4), March 1, 2011 in the amount of $2500 payable to . (Exh. C at 5) and December 1, 2010 in the amount of $2500 payable to . (Exh. C at 6). The parents submitted cancelled checks totaling $17,000. The parents submitted an affidavit indicating from the indicating the parents paid $ 22,500. (Exh. A) The parents submitted a letter from indicating the cost of tuition was $35, 000 and cost of related services was $10, 000. (Exh. B)

BACKGROUND

is currently an year old boy in grade attending . He is classified by the CSE as a student with other health impairment. (Exhs.2, I) The classification is not in dispute. (Tr. at 90) He had attended for 3 years from through grade for the school years 2008-2009, 2009-2010 and 2010-2011. (Tr. at 88) Prior to he received education services through the Committee on Pre-school Education (“CPSE”) and was placed in an integrated CPSE program. (Tr. at 89) The parent testified that she participated in the April 29, 2010 IEP meeting by telephone and recalled the members who participated in the meeting included his then current teacher, the principal, the school psychologist, Ms.

. (Tr. at 92) She recalled that the team recommended a class with a staffing ratio . (Id.) The parent further recalled that she and the staff at who participated in the April 29, 2010 IEP meeting felt that the staffing ratio was too large for her son because the class size at was 6 or 7 children per class. (Tr. at 93)

On December 6, 2010, Elisheva , M.A., school psychologist, evaluated when he was . years old. She used the Stanford-Binet Intelligence Scales, Fifth Edition and she reported the following results: Full Scale IQ of , in the Average range, Non score was and scores as . She found his Knowledge score fell in the Borderline range (Exh. 2 at 3) Ms. also assessed his academic performance on the Wechsler Individual Achievement Test- Third Edition and noted that the Early Reading Skills subtest score was better than 30 percent of similar age peers. She noted he had difficulty in identifying rhyming words in the Average range on the middle grade level. (Exh. 2 at 4) She noted that on the Word Reading subtest achieved an Average score and placed him in the beginning grade level. She found on the Reading Comprehension subtest achieved an Average score and placed him in the beginning grade level. She found achieved an Average score in Math Problem Solving and placed him in the beginning grade level. (Exh. 2 at 5) She noted that he required questions to be repeated and required well to praise and encouragement. (Exh. 2 at 6)

On February 10, 2010, the and Therapy (“SLT”) provider wrote a progress report and noted that was “a smart boy with good receptive skills. He has trouble with processing, recalling specific details and following complex directives due to his .” (Exh. 4)

On April 26, 2010, the Therapy (“ ”) provider wrote a progress report and note that had “ & low strength in trunk & lower extremities … difficulty negotiating stairs.” The provider noted in the progress report that ’s skills were delayed by 30-33 percent. (Exh. 10)

On January 10, 2010, the counselor noted in the progress report the required in the areas of / and skills. The provider noted that required goals to improve age appropriate / and acceptable s. (Exh. 11 at 2)

On April 29, 2010, CSE met developed an IEP and classified with a disability of Other Health Impairment (“OHI”) and recommended be placed in a class in a community setting with a staffing ratio of . CSE further recommend that receive related service of one period of individual once a week for 30 minutes per session and once a week for 30 minutes per session in a group no larger than 3; individual once a week for 30 minutes; individual Therapy (“ ”) 3 times per week for 30 minutes per session; SLT twice a week for 30 minutes per session in a group no larger than 3. (Exh. 3 at189)

THE DEPARTMENT OF EDUCATION CASE

Dr. , the CSE District 22 Chairperson’s designee, was present on behalf of the Department of Education. She maintained that was not appropriately placed at the School and that a Free and Appropriate Public Education (“FAPE”) was provided to and that the April 29, 2010 IEP meeting was appropriate and the placement was appropriate. (Tr. at 9; IHO Exh. II at 9) The SLT provider for testified that she had masters’ degrees in pathology and education and had worked for the Dept. of Education for 18 years. She stated that she worked with the younger son of the parent who attended the program. (Tr. at 13) She further stated that she was present when the parent observed the proposed class for and noted the class was not completely filled and there were 2 or 3 open spots in the class. (Tr. at 28) She stated the academic levels of the children in the class varied in that some were emerging readers and some were more advanced. (Tr. at 14) She compared the reading levels of the children with the reading levels of listed on the IEP and stated was . years behind in reading comprehension and 6 months behind in decoding. She recalled that she told the parent that the children in the proposed class were more than . behind and some were closer than years behind in reading and math ability. (Tr. at 18) She further stated that she told the parent that she did not know and she only knew his younger brother and she had no evaluative material regarding her son and how his abilities compared to the children in the proposed class. She opined that would have been appropriately placed in the proposed class. (Id.) She did not recall telling the parent that there was a negative plan in the proposed class because she maintained that there was no negative plan in the proposed class. She stated that only praise, sticker charts and rewards were used. (Tr. at

20) She maintained that the mandated related services for would have been met. (Tr. at 26) She further stated that there were 700 to 800 children in the building. (Tr. at 33)

On cross the SLT provider stated that the proposed classroom teacher had a master’s degree in education and was certified in education. (Tr. at 31) She did not know the qualifications of the paraprofessional. (Tr. at 33) She noted that the she was not with the parent and the proposed teacher for the entire observation and the parent and the classroom teacher may have spoken without her. (Tr. at 38) She further noted that the parent always cooperated. (Tr. at 39) She further noted that there was a diagnosis of Disorder (“ ”) as was listed on the page of the IEP. (Tr. at 43)

The school psychologist, Dr. , testified that she had a Doctorate in school psychology and was certified by NYS in school psychology. (Tr. at 47) She stated that the classification of OHI was given because of the diagnosis of . (Tr. at 50) She recalled that she participated in the April 29, 2010 IEP meeting and that the team reviewed the progress report from the classroom teacher (Exh. 9), and the related service provider reports. (Id.)

On cross Dr. stated that she did not recall the class size in ’s then current class. (Tr. at 53) She recalled that the team recommended a class to address ’s issues. (Tr. at 56) She stated that she did not recall if there was a psychological evaluation or an observation. (Tr. at 57) She stated that the goals were developed based on his then current teacher’s estimations and the related service provider reports. (Tr. at 58) She did not recall any discussion of the need for a intervention plan because his then current grade teacher said he was well behaved in class. She recalled there was some discussion of ’s difficulty with adults and peers. (Tr. at 60) She did not recall a discussion of whether 8 pull-out sessions of related services would impact his . (Tr. at 63)

The school worker testified that she was a licensed clinical worker and she provided at-risk . (Tr. at 67) She recalled that she met with the parent in September 2010 to visit the proposed class. (Tr. at 68) She recalled that the parent asked the proposed teacher about the levels of the children in the class. (Tr. at 70) She described the intervention plan utilized positive reinforcement with stickers and progress reports. (Tr. at 71)

On cross the worker stated that the parent contacted her regarding her younger son in and then she scheduled a visited the proposed grade class. She stated that she explained the due process rights to the parent and that the parent had an opportunity to think about the class and then contact her. (Tr. at 74) She did not recall a discussion f the ’s issues. (Id.) She further stated that if there was a Intervention Plan (“BIP”) developed it would be checked off on the IEP and that no BIP was on the IEP.

THE PARENTS’ CASE

The parent and the Principal of the School testified in support of the parents. The parents argued that CSE failed provide FAPE for the 2010-2011 school year because the proposed class size was not appropriate in light of ’s issues and in the proposed class was not grouped with children of similar academic levels and that the negative plan in the proposed class was not appropriate for The parent testified that her son received education services from CPSE. (Tr. at 89;90) She stated that her son attended for the past 3 years from through grade. She stated that she attended the April 29, 2010 IEP and recalled that she and the staff at discussed her son’s academic levels and his teacher and principal discussed to the April 29, 2010 team her son’s serious issues and required frequent redirection. She further stated that she and the teacher and principal disagreed with the placement because the placement was too large. (Tr. at 92) She stated that for the past 3 years her son was in a class at with 6-7 students per class. (Tr. at 93) She noted that her son was creative and inquisitive, but he had very poor listening skills and very poor skills. (Tr. at 94)

The parent testified that she participated in the April 29, 2010 IEP meeting by telephone and recalled the members who participated in the meeting included his then current teacher, the principal, the school psychologist, Ms. . (Tr. at 92) She recalled that the team recommended a class with a staffing ratio . (Id.) The parent further recalled that she and the staff at who participated in the April 29, 2010 IEP meeting felt that the staffing ratio was too large for her son because the class size at was 6 or 7 children per class. (Tr. at 93) The parent recalled that she and the staff at told CSE that a class size of 12 children was too large for her son due to his issues. (Tr. at 93)

The parent stated that after she received the Individualized Education Program (“IEP”) she wrote to CSE on May 11, 2010 (Exh. 7) to express her concern that the class of was too overwhelming and too large and would not address his issues and requested the placement offer and to again inform CSE of her current address. (Tr. at 96) She stated that she had informed CSE of her new address prior to her letter of May 11, 2010. (Id.) She stated that CSE did not respond to her May 11, 2010 letter so she wrote again on August 25, 2010 (Exh. 6) to again request the placement offer and again informed CSE that if she did not receive a placement letter she would place her son at . (Tr. at 97) She stated that she received the final notice of recommendation (FNR) dated July 14, 2010 after her letter of August 25, 2010 and that the FNR (Exh. 8) was mailed to her old address. (Tr. at 99)

The parent stated that she observed the proposed class at on September 8, 2010 and opined that the class was not appropriate because she was told a negative plan such as “time out” was used and her son’s academic levels were more advanced than academic levels of the children in the proposed class. (Tr. at 102) After her visit to the proposed class she wrote to CSE a letter stamp dated September 17, 2010 (Exh. 5) to express her concerns regarding the proposed class and large class size and again informed CSE that she intended to continue her son’s placement at and would seek tuition reimbursement. (Tr. at 107) The parent maintained that she was open to a public school placement as her younger son attended , the public school in close proximity to her home. (Tr. at 104)

The parent described the son’s placement at for the 2010-2011 school year. She stated that he was in a class with 7 children and 1 teacher and 1 paraprofessional. (Tr. at 105) She noted that the small class size allowed her son to receive individual and frequent re ing. She further noted that was a very structured environment and the school had a positive reinforcement program with a token economy system to reward positive s. (Id.) She explained that the class worked on scenarios to remind children what is appropriate and what is not appropriate. (Id.) The parent opined that her son progressed academically in reading, math, writing, and and . (Tr. at 106) She stated that she signed the contract (Exh. B) for on August 15, 2010 because she did not have a placement from the Department of Education. (Tr. at 106) She further stated that the psychological evaluation dated December 2010 was conducted after the April 29, 2010 IEP meeting, (Tr. at 107) and she made her son available for all evaluations including the psychological evaluation. (Tr. at 108)

On cross the parent stated that she was aware of the program because her younger son was in a class. (Tr. at 112) She further stated that she informed CSE by facsimile dated May 10, 2010, but that she had previously informed CSE of her new address at the April 29, 2010 IEP meeting. (Tr. at 113) She maintained that she received the FNR on or about late August 2010. (Tr. at 117) She further maintained that she was familiar with the proposed class at as her younger son attended that school. (Tr. at 118) She recalled that the proposed teacher of the proposed class informed her that she used punishment who children misbehaved. (Tr. at 119) She maintained that her son did not need a negative plan or a punishment system. She further maintained that the 3-letter spelling words she observed on the board were words that her son could spell. (Tr. at 127)

The principal of , testified that she had a master’s degree in education and was certified in education. She stated that she was responsible to interview potential students and placing them in an appropriate class and determining the curriculum. She further stated that she hired the staff and the aides and monitored the student’s progress. (Tr. at 145) She explained that was a education program with 50 boys aged 5 to 13 and there were classes for grades through eighth. (Id.) She further explained the philosophy of was to take children with and difficulties and assist them to join the mainstream population. (Tr. at 146) She stated that all the head teachers were certified in education and that the students in each class were grouped by similar age and academic levels. (Tr. at 147)She explained that received , , and at from licensed and certified professionals. (Id.) She stated she was familiar with as he had attended since . She stated that was a sweet boy and eager to please, but his biggest issue was his and his lack of ability to . (Tr. at 149) She further stated that there were some issues in combination with his issues. (Tr. at 150)

The principal stated that for the 2010-2011 school year there were 7 students aged to years old in ’s class and that his teacher was licensed and certified in education. She further stated that there was 1 assistant teacher who was finishing a bachelor program in education and responsible to assist the head teacher and work with some children in small groups. (Tr. at 153; 155) She explained that because was difficulty with and was unable to the assistant teacher would walk by his desk and prompt him to on the head teacher. (Tr. at 154) She explained that the staff developed a al system for that included checks on a chart when he ed. (Id.)

The principal recalled that she participated in the April 29, 2010 IEP and she recalled his grade teacher participated in the April 29, 2010 IEP meeting. (Tr. at 159) She further recalled that she provided teacher reports and relater service provider to CSE. She recollected that when the team discussed the class size of that she felt based on his issues needed a smaller environment. (Tr. at 161) She maintained that required a small class for grade as well as grade because he had the same issues. (Tr. at 162) She opined that progress with teacher support. She described that plan included a token economy system and the children earn pennies taped to Velcro and the children earn pennies to participate, and answer questions. (Tr. at 163) She explained that this token system motivated to . (Tr. at 164)

The principal explained that the component comprised of 30 percent of the schedule. (Tr. at 166) She noted that developed a plan (Exh. D) on September 2010 for reading and math goals to monitor progress She further noted that goals were developed for his issues and for his and component. (Tr. at 171) She explained that required a very structured program because of his issues in reading and math and that the class was broken into small groups. She stated that the head teacher sat with and 2 other children to work on phonics and comprehension. (Tr. at 174) She opined his progressed in reading and that he was placed in the middle level of small groups for reading. (Tr. at 195;217)

She further stated that the academic goals were updated 3 times during the year to ensure he mastered the goals or required ongoing goals. (Tr. at 175) She noted that math was an area of relative strength and he progressed more in math than in any other subject despite his issues and he was placed in the highest functioning group in math. (Tr. at 178;195;217) She reported that writing was taught to the entire class and a consultant guides the teacher and aides to help the children who need individual help. She opined that when he was able to present good ideas in writing to create a narrative. She explained that the consultant monitored the teachers to ensure progress in writing. She opined that progressed in his writing because his paragraphs were more structured. She further opined that progressed in studies and science. (Tr. at 185)

She noted that the only unstructured time was recess and transitioning to pack up at the end of the day. (Tr. at 186) She explained that had a structured lunch in his class with his teacher and aides. She noted that the tokens and system was used from 9am to 4 pm. (Tr. at 187) She opined that made slow and steady progress in his ability to and his awareness of his need to . (Tr. at 197)

On cross the principal stated that the other children in ’s class were classified as OHI, and impaired and disturbance and . (Tr. at 206) She stated that of the 7 children in ’s class 2 presented with atypical . (Tr. at 208) She opined that the number of students in the class was more important than the fact that some children had issues. (Tr. at 216) She stated that the level of noise of 12 children was different than 7 children and 12 children would challenge and needs.

She further stated that while was mandated for the provider discharged him from . (Tr. at 223;232) She explained that bumped into children because of his inability to and not due to needs. (Tr. at 225) She maintained that if he required would be able to provide . (Tr. at 237)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The U.S. Supreme Court held in Schaffer v. Weast that the moving party bears the burden of persuasion in an administrative hearing brought under the IDEA. 546 U.S. 1145, 126 S.Ct. 528 (2005) Pursuant to Schaffer, the parents bear the burden of proving three prong test that is the legal standard applicable to a request for reimbursement for educational services: (1) the services offered by the Department of Education are inadequate or inappropriate, (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985] Chapter 583 of the Laws of 2007 stated “that the burden of proof in an impartial due process hearing pursuant to §4404(1) of Education Law to challenge the recommendation of a Committee on Education (CSE) or Committee on Preschool Education (CPSE), or otherwise challenge actions or omissions relating to the provision of a free appropriate public education (FAPE) to a student with a disability, is generally placed on the school district (or State agency) providing education to the student.” Chapter 583 took effect 60 days from August 15, 2007. The parents’ demand for due process dated November 19, 2010. Therefore, I find the District bears the burden to establish prong one.

The parents argued that CSE failed provide FAPE for the 2010-2011 school year because the CSE did not have the proper evaluative data, a psychological evaluation, to prepare and develop an appropriate IEP. (IHO Exh. I at 6,7) The parents further argued that CSE did not consider the positions of the parent or the staff at when the IEP was created and a program was recommended. (IHO Exh. I at 7) The parent asserted that the CSE failed to discuss goals. (IHO Exh. I at 7,8) The parents further asserted that the proposed class size was not appropriate in light of ’s issues and in the proposed class was not grouped with children of similar academic levels and that the negative plan in the proposed class was not appropriate for (IHO Exh. 1 at 9) The parents argued that the principal of who observed and worked with since informed CSE that had struggled with problems and an inability to within a class of 8 students and 2 teachers. (IHO Exh. I at 10)

I find that testimony adduced at the hearing established that when CSE met on April 29, 2010 there was no psychological evaluation as the psychological evaluation submitted (Exh. 2) was dated December 6, 2010. I find federal and state regulations required CSE to review existing evaluation data as part of an initial evaluation and must reevaluate each child with a disability not more than once a year and must evaluate every 3 years. 34 CFN 300.305(a)(1) and 300.303(b)(1)(2); 8 NYCRR 200.4(b)(4)

I further find that there was no classroom observation or educational evaluation submitted by the District representative to establish the CSE complied with the federal and state requirements to conduct mandated evaluations for the review. Testimony adduced at the hearing established that the psychologist, Dr. did not recall if there was a psychological evaluation or an observation. (Tr. at 57) I find there was no observation of by a teacher to assess his performance in the classroom. I find there was no psychological evaluation conducted prior to the April 29, 2010 review to establish how his , his problems and his issues impacted on his . I find CSE had his current teacher’s report and his grade teacher participated in the April 29, 2010 so I find that CSE had ’s present levels of achievement, but there was no evaluative data to establish that a class of was appropriate in light of his , his problems and his issues. I further find the April 29, 2010 IEP lacked sufficient goals to deal with ’s problem and problems and difficulties with sensory processing. I find that CSE was aware of these issues as the issues were listed on the page of the IEP and listed in the health and development page (Exh. 3 at 7) I find evidence adduced at the hearing provided ample documentation that exhibited problems and attending. (Exhs. 4,8, 9, 11) I further find there was a goal for (Exh. 3 at 12) to remain on a given task and progress was charted daily by the teacher. I find the sole goal was insufficient and I further find there was no mechanism to determine the success or lack of success in meeting the goals for ing and attending.

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]) I find that the parent and the staff told the April 29, 2010 team that they disagreed with the placement and I find CSE decision to place in a without any evaluative data to support that placement impeded ’s right to FAPE, and impeded the parent’s opportunity to participate and caused a deprivation of educational benefits.

The parent argued that in the proposed class was not grouped with children of similar academic levels and that the negative plan in the proposed class was not appropriate. I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, development, development and management needs. (8 NYCRR 200.6(a)[3]) I credit the parent’s testimony that she was told that the students in the proposed class functioned at a lower level than her son and that a negative plan such as time out was used in the proposed class. I find the district failed to establish that the would have been grouped with children of similar academic levels.

Based on the foregoing I find that parents established that FAPE was not provided during the 2010-2011 school year and I find the April 29, 2010 IEP failed to adequately address his education needs.

The parent has the burden to prove that the services they obtained for is appropriate to meet his needs. In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's education. The fact that the facility selected by the parent to provide educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent’s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]) The parent must prove that will receive an appropriate educational benefit from the paraprofessional they provided at or School. The SRO held in No. 06013 that “the private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01010). The private school need not employ certified education teachers or have its own IEP for (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).”

I note that the district representative argued that 's placement at was not appropriate as he required a less restrictive placement than a : placement. I find the district representative’s position was not consistent with the requirement that children with disabilities be placed in the least restrictive environment (LRE). The SRO ruled in Appeal No. 06-013 that “the LRE requirement (20 U.S.C. § 1412[a][5]) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000], it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]). 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 (M.S. v. Bd. of Educ., 231 F.3d at 105; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]). The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).”

I find that the parents offered substantial evidence to meet their burden of the appropriateness of the : placement. The evidence presented demonstrated that ’s placement in a class of : with a head teacher and an assistant teacher was the LRE and the parents established that progressed academically, and progressed in his ability to . I find the head teacher and the assistant teacher supported his problems and his difficulties. I find that the head teacher and assistant teacher improved ’s and participation. I find the head teacher and assistant teacher developed strategies to cope with his and difficulties and he progressed academically because his ability to increased in the 2010-2011 school year.

I find the witnesses and the parent credibly testified as to the progress made in the class of : during this school year. Therefore, I find that the parents have met their burden regarding the appropriateness of the paraprofessional for for the 2010-2011 school year.

The third prong of the test for tuition reimbursement is whether the equities favor the parents’ position. I find the parent informed the district that she intended to place at for the 2010-2011 school year when she did not receive a timely placement offer in late August 2010 and she informed the district after visiting the proposed placement and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). In this case, the parents fully cooperated with the district to the best of their ability and made available for evaluations. I find the parent established that she would have considered a public school placement. I credit the parent’s testimony that she would have considered a public school placement as her younger son attended , the proposed public school placement. Therefore, I find that the equities favor the parents’ position.

I find testimony adduced at the hearing established that instruction in grade consisted of bible studies and to read and write . The parents argued that to read and write was not and was a foreign . The parents further argued that according to the class schedule only 24 percent of the instruction was instruction. However, I credit the testimony of the principal who stated that 30 percent of instruction was instruction. Therefore I find the amount of instruction at was 30 percent of the total instruction and tuition reimbursement for $35,000 must be reduced by 30 percent.

ORDER

Therefore, it is hereby ordered that the Department of Education shall reimburse the parents for non-portion of the cost of of approximately 30 percent of the tuition cost of $35,000 or $24,000 and it is ordered that the Department of Education shall reimburse the parents for cost of related services of $10,000 for a total of $ 34,000 upon proof of payment (the evidence of such payment must be acceptable to the Department of Education). Dated: July 11, 2011

________________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:dl

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 MARCH 31, 2011

PARENT

None

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request dated 11/09/2010, 1 page 2 Psycho-Educational Evaluation dated 12/06/2010, 8 pages 3 IEP dated 08/11/2010, 18 pages 4 Report dated 02/05/2010, 2 pages 5 Letter from the Parent dated 09/15/2010, 1 page 6 Letter from the Parent dated 08/25/2010, 1 page 7 Letter from the Parent dated 05/11/2010, 1 page 8 Final Notice of Recommendation dated 07/14/2010, 1 page 9 School Progress Report dated 04/29/2010, 1 page 10 Therapist Report dated 04/26/2010, 2 pages 11 Progress Report dated 01/16/2010, 2 pages

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 12, 2011

PARENT

A Affidavit from , President of School, dated 4/5/11, 1 page B Tuition Contract, dated 8/15/10, 2 pages C Cancelled checks, Various Dates, 6 pages D IEP from the School, dated December 2010, 9 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 20, 2011

PARENT

E Class Schedul, dated April 11, 2011, 1 page

DEPARTMENT OF EDUCATION

None