New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Date of Hearing: February 14, 2012

March 13, 2012

March 22, 2012 Actual Record Close Date: April 10, 2012 Hearing Officer: Jean Marie Brescia, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2012

Attorney (via telephone) — Student

Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2012

Attorney — Student

Parents

CSE Representative — DOE

Assistant Principal- (via telephone) — DOE

CSE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2012

Attorney — Student

Parents

Teacher (via telephone) — Student

CSE Representative — DOE

On January 12, 2012, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of K. The parent requested the hearing on January 11: (1) to challenge the alleged failure of the Committee on Special Education for District 22 (the “CSE”) to provide with a free appropriate public education for the 2011-2012 school year and (2) to seek payment of ’s tuition directly to (“JCSE”), a non-public sectarian day school in Brooklyn, for the 2011-2012 school year.

A pre-hearing conference was conducted on February 14. The hearing was conducted on March 13 and March 22. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

The parties requested an extension of the compliance date on the record on March 13 (trans. 59-61). This request was granted, and the compliance date was extended to April 25 (see trans. 63-64; IHO Ex. I [notice to parties re: factors considered and reasons for extension]). The record closed on April 10 upon the receipt by the hearing officer of the transcript.

Background

is a . She attended during the 2010-2011 school year. Her disability is classified as . This classification is not in dispute. The School District’s Case , a certified employed by the Department, testified that she conducted evaluations and classroom observations and participated in CSE meetings (trans. 67). Ms. in January 2011 (trans. 67; Department Ex. 3). She described as a child with “were in the ” with her . “were much higher” than her (trans. 68). At the time of the testing, at Department Ex. 3 at p. 1). During testing, was able to remain on task with redirection and encouragement from Ms. . had difficulties with expressing her thoughts, vocabulary, and receptive language skills, and needed directions repeated, simplified and/ or “visually demonstrated” (Department Ex. 3 at p. 2).

On the WPPSI-III, obtained the following I.Q. scores: verbal, ( ), performance, ( ), processing speed, ( ), for a full scale score of ( ) (Department Ex. 3 at pp. 2-3). On the K-SEALS, attained the following percentile scores: vocabulary, (well ), number skills, %ile (average range); letter and word skills, %ile ( ); and receptive skills, %ile ( With respect to , Ms. Reich observed that ’s “ are adversely impacting ” (Department Ex. 3 at pp. 4-5).

Ms. participated in a CSE meeting on April 12, 2011, to develop an IEP for for the 2011-2012 school year (trans. 68; Department Ex. 6). The IEP team had available for consideration Ms. evaluation, school reports, a progress update and teacher input (trans. 69, 84; Department Exs. 4, 5). The progress update states that demonstrates language delays, has difficulties answering “wh” questions, and has a “very limited” vocabulary (Department Ex. 4). In , she was working on “wh” questions, category skills, listening skills necessary for following directions, increasing her vocabulary and problem solving skills. Her therapist recommended that receive three 30 minute sessions of speech therapy per week. The progress report prepared by ’s teacher indicates that “enjoys participating in group lessons and contributing to class discussion” and “usually complies with classroom rules and procedures when paying attention.” However, she “often gets distracted and doesn’t hear teacher directions” (Department Ex. 5 at p. 1). was improving in her and expressive language, and working on words and basic addition and subtraction.

CSE personnel did not perform a classroom observation of (trans. 83). Ms. Reich did not know whether a social history was conducted (trans. 83-84). The following individuals participated in the meeting with Ms. : the parent, a district representative (who was a special education teacher employed by the Department), a general education teacher, ’s special education teacher from , ’s counselor from and a parent member (trans. 69, 75-76; Department Ex. 6 at p. 2). At the meeting, ’s special education teacher described ’s difficulties with and stated that had made progress “in her ” (trans. 75). ’s counselor described ’s and her (trans. 78).

The IEP developed at the meeting (Department Ex. 6) notes that ’s letter/word and number skills were at a mid-kindergarten level and sets forth the following academic management needs: and a (Department Ex. 6 at p. 3). The IEP describes ’s language deficits (Department Ex. 6 at p. 4). The IEP sets forth goals in the areas of counseling, math, speech and language, reading decoding and comprehension, and writing (Department Ex. 6 at pp. 7-12).

The team recommended that attend an integrated co-teaching (“ICT”) class with a and the related services of (one 30 minute individual session per week and one 30 minute session per week in a group of three) and therapy (two 30 minute individual sessions per week and one 30 minute session per week in a group of three). Ms. explained that the ICT class was “ class” because it “consists of a teacher as well as a teacher” and that the would “help better focus on her school lessons” (trans. 69-70). The class followed the grade level curriculum, and the special education teacher would provide support to the special education students (trans. 95). would address her socialization skills (trans. 88). The IEP goals were discussed and “created” at the CSE meeting; the goals were typed after the meeting (trans. 91). Ms. stated that the ICT program was explained to the parent at the meeting (trans. 95). The team rejected a selfcontained special education class because such a class would not be “academically stimulating” for Brach because she was functioning on grade level (Department Ex. 6 at p. 14).

By Final Notice of Recommendation (“FNR”) dated July 27, the CSE informed the parent that was placed in an ICT class1 at in Brooklyn (Department Ex. 2).

, the assistant principal and special education supervisor at P.S. 191, testified that the school includes approximately 300 students, 50 of whom receive special education services, in grades . There are two self-contained special education classes and two ICT classes at the grade recommended for (trans. 29-30, 33). There was a seat for in this class in September 2011 (trans. 33). There were sixteen students in the class in September, five of whom were special education students with classifications of speech/language impairment, learning disability, other health impairment, and perhaps one student with emotional disturbance (trans. 45-46, 54). One of the students in the class is assigned a crisis management paraprofessional (trans. 48). Academically, the students were functioning at a (trans. 34, 51). The teachers provide the students with differentiated instruction and group students according to their needs (trans. 34-35). Special education students are taught based upon the goals set forth in their IEPs (trans. 35).

1 The FNR denominates the class as a Collaborative Team Teaching class. There is no dispute that the recommended class was an ICT class.

School personnel would have been able to provide with the related services specified on her IEP and a crisis management paraprofessional (trans. 30-31). In addition, the school employs a parent coordinator who conducts workshops for parents (trans. 31).

has a school-wide behavior modification program, and staff also implements individual (trans. 36-37).

Students eat lunch together in the cafeteria (trans. 39). There are approximately 120 students in the cafeteria at one time with ten adults (trans. 39). The Parent’s Case The parent testified that was “ ” and has a (trans. 180). received special education services as a preschooler in the form of two times per week and a SEIT in her preschool (trans. 181). ’s preschool class consisted of 20 students and four teachers. ’s teachers complained to the parent that did not participate in class (trans. 182). attended for kindergarten during the 2010-2011 school year (trans. 182).

The parent attended the April 2011 CSE meeting. At the meeting, the team discussed ’s performance at her distractibility, and her needs for “someone to rein her in, to keep on ” and for a small setting (trans. 183). The parent told the team that was able to work on grade level at because she was in a small setting and received (trans. 184). ’s teacher expressed her disagreement with the ICT recommendation because there were too many people in the class and because needed “help” in a class of seven students. The team then recommended a paraprofessional for (trans. 185). The parent did not believe that a paraprofessional would address the “underlying problem of a big class” (trans. 185).

When the parent received the FNR, she tried to contact but the school was closed for the summer (trans. 186). The parent then wrote to the CSE expressing her concerns about the but did not receive a response (trans. 187; Parent’s Ex. B). When opened in the fall, the parent arranged to visit the school (trans. 188). During her visit, the teacher informed her that there were 29 children in the class. The parent stated that the school and the class were not appropriate for because they were both “too large” (trans. 189). The parent informed the CSE of her concerns about the proposed placement in writing after the visit (Parent’s Ex. C).

The parent stated that made progress at : she is The parent signed ’s enrollment contract on September 1 (Parent’s Ex. F). Tuition for at for the 2011-2012 school year is $39,500.00; related services are billed separately at $9,000.00 (trans. 190-191; Parent’s Ex. F). The parent had paid $2,000.00 of the tuition amount, and she continues to owe the remainder of the tuition (trans. 191, 197; Parent’s Ex. G).

The parent testified with respect to the family’s income and confirmed the income amount set forth in her 2012 joint tax return (trans. 190; Parent’s Ex. J).

testified that she was a certified special education teacher employed at JCSE (trans. 110). There are between 30 and 35 girls ranging in age from five through eleven years at the school (trans. 111). The students have “academic, emotional, and behavioral challenges” (trans. 112). The classes include seven students with three adults. The students are placed in classes based on their academic, social and behavioral functioning (trans. 112). Ms. has been ’s teacher since September 2011 (trans. 113).

Ms. stated that has , social delays in interacting with her peers, and “some behavioral difficulties;” “in a small setting” she “does show academic progress” (trans. 114).

’s class includes seven students, ages five through seven years, all with “language difficulties” and “similar” functioning (trans. 115). The three adults in the class are Ms. (for half the day), an “assistant” and a paraprofessional (trans. 144). Ms. Link did not know the educational levels or the qualifications of the paraprofessional and the assistant (trans. 144-145). Ms. is in the classroom only in the afternoons; she “coordinates” with “another teacher” who is in the classroom in the morning (trans. 152, 176). Ms. did not describe the educational levels of the other “teacher.” The class follows a first grade curriculum based upon the New York State standards (trans. 156).

In class, needs “a lot of support to address her attention.” During group instruction, she “require[s] a lot of just to get her to participate or be involved in the lesson” (trans. 115). has with and needs adult in .

is working on increasing her sight vocabulary and improving comprehension skills, decoding and encoding, and writing (trans. 116). Reading instruction is provided to on a basis by the paraprofessional or the assistant, which Ms. Link claimed allowed for “individualiz[ation of] the curriculum according to what are her specific needs” and minimized distractions (trans. 119, 145-146; Parent’s Ex. E). The class uses a reading program with a phonics component and “multi sensory activities” which increase ’s engagement in and retention of material (trans. 117). Drills are used for sight word instruction and dictation is used for spelling instruction (trans. 117-118).

’s progress is measured through teacher observations (trans. 121). In math, is working on addition and subtraction with regrouping and word problems (trans. 121). Again, instruction is provided by the paraprofessional and the assistant, and not Ms. Link (trans. 146). Ms. is “in contact” with the paraprofessional and the assistant “to find out how [ is] making progress and where she needs extra assistance” (trans. 146). Workbooks and manipulatives are used. There are two other students in ’s math group which assists in reducing distractions and enabling her teachers to monitor her progress. All the students are functioning at the mid-first grade level in math. is “showing progress” in math (trans. 121-123; Parent’s Ex. E).

has been working on handwriting. When she writes sentences, she is able to spell words accurately “90% of the time” (trans. 124). She has improved in her sentence writing since the beginning of the school year (trans. 140).

is easily frustrated and can throw things onto the floor, cry or ignore others when she becomes upset (trans. 125). School staff reinforces (with reward “dollars” that can be used to purchase prizes) when “she’s seen sitting the way she’s supposed to be sitting,” “participating” and expressing herself properly (trans. 126). There is also a behavior program to assist her with social interaction (trans. 127). ’s have improved since the beginning of the school year. She is better able to express her concerns and initiates conversations and interacts with peers with less support from adults (trans. 140-141).

provides with three periods per week of therapy and two sessions per week of counseling (trans. 127-128; Parent’s Ex. H). Ms. collaborates with these providers by discussing the goals they are working on with . ’s schedule includes morning prayer, Bible studies, instruction in holidays during a culture class, and Hebrew language reading that Ms. considered to be religious and for the purpose of Bible study (trans. 136, 172; Parent’s Ex. H).

has lunch in the lunchroom of the general education school in which is housed. There are 70 to 80 children in the lunchroom, and, according to Ms. , needs adult support during lunch and recess in order to interact with her peers (trans. 130).

Ms. opined that a class of 25 to 30 students would not be appropriate for because she would not receive the redirection and individualized attention that she needs in order to “be involved in the lesson” (trans. 132). In addition, there would be “just way too many people there” and would be “just too intimidated” (trans. 167). Ms. opined that was an appropriate special education placement for because it provides her with small classes, adult support, and an individualized curriculum and addresses her language and behavioral needs (trans. 142). Ms. explained that, by this point in the school year, had moved beyond the academic goals set forth in her IEP (trans. 159160, 163-164).

has spent three or four 20 minute sessions in a general education social studies class of 10 students (trans. 135).

Findings of Fact and Decision

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

A. The Appropriateness of the School District’s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-

121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

The parent asserts that the CSE did not review “appropriate documentation prior to making [its] recommendation” (Parent’s Ex. A). In developing the recommendations for a student’s IEP, the CSE must consider “the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations . . . .” 8 N.Y.C.R.R. § 200.4(d)(2). Here, the CSE considered the evaluation, the progress report, and the speech and language update report. A similar line up of information has been found to satisfy the requirements of the regulations. See B.P and A.P. v. New York City Department of Education, 11 Civ. 2141, 2012 LEXIS U.S. Dist. LEXIS 1736 (E.D.N.Y. Jan. 6, 2012). According to the credible testimony of Ms. , CSE also considered the input of ’s teacher and ’s grade level academic functioning. The parent noted that the CSE considered her concerns about ’s by recommending a paraprofessional for .

The parent also argues that the CSE was “invalidly composed” because no one “on the team would be able to implement the IEP” nor “speak to the appropriateness of the recommended program” (Parent’s Ex. A). The former is not a requirement of IEP meeting attendance; the latter is not established by the record. First, the required members of a CSE are: the parents, a regular education teacher, the student’s special education teacher, a school psychologist, a “representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district,” an individual who can interpret the results of evaluations, a parent member, and “other persons having knowledge or special expertise regarding the student . . . .” 8 N.Y.C.R.R. §200.3(a)(1). The meeting was attended by a Department special education teacher—an individual who is qualified to provide special education. Furthermore, Ms. credibly testified that the ICT program was, in fact, explained to the parent at the meeting. As a result, any alleged procedural violation relating to the composition of the CSE as specified in the hearing request did not (1) impede the student’s right to a free appropriate public education; (2) “significantly impede[] the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; nor (3) “cause[] a deprivation of educational benefits” to and cannot be relied upon to invalidate the IEP. 20 U.S.C. §1415(f)(3)(E)(ii).

The hearing request also asserts that the CSE should have prepared for . This claim was not pursued at the hearing. However, since it was raised in the hearing request, it will be addressed in this decision. Under the IDEA, “in the case of a child whose or that of others,” the IEP team shall “consider the use of .” 20 U.S.C. § 1414(d)(3)(B)(i). Here, ’s learning is impeded by her . The progress report from ’s indicated that followed teacher directives when she was . Sometimes, can . The CSE determined that ’s difficulties would be addressed through the support of the special education teacher and the paraprofessional. These interventions were sufficient in this instance. See, e.g., A.M. v. New York City Department of Education, 583 F. Supp. 498, 509 (S.D.N.Y. 2008). These types of supports are appropriate for because they

A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

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 No. 07-010. The IEP sets forth the results of Ms. ’s evaluation, the progress report and the speech progress update. The IEP also includes goals for that incorporate the evaluation, school report, speech progress update, input of her teacher at and of other CSE members and address ’s special education needs in light of her grade level academic functioning, speech and language needs, and socialization deficits. An IEP must include “a statement of measurable annual goals, including academic and functional goals designed . . . to meet the student's needs . . . ; to enable the student to be involved in and make progress in the general education curriculum; and [to] meet each of the student's other educational needs that result from the student's disability.” 20 U.S.C. §1414(d)(1)(A)(i)(II); 34 C.F.R. §300.320(a)(2)(i); 8 N.Y.C.R.R. §200.4(d)(2)(iii). An IEP must also contain a description of “(i) [h]ow the child's progress toward meeting the annual goals . . . will be measured; and (ii) [w]hen periodic reports on the progress the child is making toward meeting the annual goals . . . will be provided.” 34 C.F.R. §300.320(a)(3); see also 8 N.Y.C.R.R. §200.4(d)(2). The goals in ’s IEP include these elements: they meet her identified special educational needs, relate to her progress in the first grade curriculum, and are measurable. While Ms. testified that has moved beyond these goals at the time of the hearing, for the purposes of this decision, the goals must be evaluated as of the time of the CSE meeting. The evidence shows that, based upon the information and participant input at the CSE meeting, the goals relate to and address ’s special educational needs as presented to the team at the time of the meeting.

The IEP also sets forth special education services to address ’s identified special educational needs. demonstrates the following special educational needs: language difficulties in the areas of vocabulary and ; , and . The CSE took care to recognize ’s strength: she was capable of grade level academic performance and did perform academically on grade level. The CSE therefore recommended an ICT class, which, as explained by Ms. , would provide more support to than a general education class through the presence of both a general education teacher and a special education teacher. Such a class would follow a grade level curriculum (in which was capable of participating) and, at the same time, provide her the extra support of a special education teacher. The CSE recommended therapy to address ’s language to address her socialization deficits. The CSE recommended a paraprofessional to address ’s attentional needs and keep her on task and attending to classroom instruction. See S.A. v. New York City Department of Education, 10 Civ. 9056 (March 28, 2012) (paraprofessional an appropriate intervention to provide a student with adult support and “redirection” to address distractibility).

The special educational program described in ’s IEP was reasonably calculated to permit to obtain a meaningful education benefit, particularly in light of her grade level academic functioning. Furthermore, as Ms. credibly testified, the proposed placement at would be able to provide with the ICT class, paraprofessional and related services set forth on the IEP. would be appropriately grouped in a class of first graders functioning approximately on grade level because she was functioning on grade level. Ms. also explained that the teachers differentiate instruction, group students according to their needs, and instruct special education students based upon the goals set forth in their IEPs. As a result, the evidence demonstrates that the proposed placement was appropriate for .

The parent argues that the class was “too large” for and that, as a result, would be ” in the ICT class. While , as explained above, this difficulty would be addressed by the special education teacher and the paraprofessional recommended by the CSE. Furthermore, there insufficient basis in the record to conclude that would be “ ” in the ICT class, even if that class were to include up to 30 students, particularly with the supports of the special education teacher and the paraprofessional.

The IDEA mandates that “to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled.” 20 U.S.C. § 1412(a)(5)(A); P. v. Newington Board of Education, 546 F. 3d 111 (2nd Cir. 2008). Children with disabilities may not be removed from the regular educational environment unless "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A). In Newington, the Second Circuit held that in determining whether a student has been placed in the “least restrictive environment” involves “a flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.” 546 F.3d at 113. The Second Circuit adopted the Third Circuit’s two-pronged test (Oberti v. Board of Education, 995 F.2d 1204 (3rd Cir. 1993)), and described the test as follows: first, whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the child. This first part of the analysis includes consideration of: (a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (b) the educational benefits available to the child in a regular class (with appropriate supplementary aids and services) as compared to the benefits provided in the special education class; and (c) the possible negative effects of the inclusion of the child on the education of the other students in the class. If, based upon the consideration of these factors, the school district properly removed the child from the general education classroom and placed the child in a special education class, the court moves to the second prong of the test: whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. 546 F.3d at 120 (internal citations omitted). Underlying this analysis is the understanding that “[w]hile including students in the regular classroom as much as is practicable is undoubtedly a central goal of the IDEA, schools must attempt to achieve that goal in light of the equally important objective of providing an education appropriately tailored to each student’s particular needs.” 546 F.3d at 122. Here, the CSE created an IEP that sets forth “supplemental aids and services” to support in the general education environment.

The Department thus satisfied its requisite burden of proof that it offered a free appropriate public education in the least restrictive environment for the 2011-2012 school year. As a result, the Department prevails with respect to the first prong of the Burlington/Carter analysis.

B. The Appropriateness of

The parent bears the burden of proof concerning the appropriateness of JCSE for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459

F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at JCSE addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).

The testimony of Ms. does not make for a clear or straightforward determination of the appropriateness of . does provide with a small class in which she can receive support from adults to address her distractibility. However, she receives academic instruction from a paraprofessional or an “assistant.” The qualifications of these individuals were not described because Ms. did not know what the qualifications, if any, were. On the other hand, the paraprofessional and assistant are supervised by Ms. , a certified special education teacher, who did describe in her testimony the strategies used in the classroom to address ’s distractibility (redirection and prompting) and socialization deficits (adult assistance). Ms. also described the academic methods and interventions used during instruction and the specific progress has made to date during this school year. As a result, the parent was able to establish that the “educational instruction” provided to at was “specially designed to meet [his] unique needs.” See Frank G., 459 F. 3d at 364.

It is also important to note that while the restrictiveness of the parent’s unilateral placement is relevant in determining whether the parent is entitled to tuition reimbursement, a placement selected by the parent is not held to the “same strict standard of placement as school districts are.” Frank G., 459 F. 3d at 364. ’s grade level academic functioning does not require a self-contained special educational setting nor one-to-one instruction for reading—there is no evidence in the record tending to show that needs such a restrictive placement or type of instruction. See M.S. v. Yonkers Board of Education, 231 F.3d 96, 105 (2nd Cir. 2000); D. D.-S. v. Southold Union Free School District, 2011 U.S. Dist. LEXIS 100809, 45-48 (E.D.N.Y. Sept. 2, 2011). However, this case is not as extreme as the cited cases. Here, the parents have located a placement for in a special education day school, which would be too restrictive if the standard applied to school districts were to be applied. However, under the less strict standard of the Second Circuit in Frank G. applied to parents, the placement at is not overly restrictive at this time for the 2011-2012 school year.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the parents have met their “prong II” burden.

C. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that the parent cooperated with the CSE by participating in the CSE, expressing her concerns about the recommended program at the CSE meeting, visiting the proposed placement, and then communicating her concerns about the placement to the CSE in writing.

The issue of religious instruction for a portion of the school day can be addressed through discounting the tuition for that portion of the school day dedicated to religious instruction and celebration. See Application of the New York City Department of Education, Appeal No. 11-037 (in reimbursement case, reducing tuition is a proper mechanism to take into account that a portion of the school day is devoted to religious instruction and celebration). If the parent were to prevail in this proceeding, the amount of tuition recovered by the parent would be reduced by 15 percent, which is the portion of the ’s instruction devoted to religious-related activities (prayer, study of religious holidays, Bible study, Hebrew for the purpose of Bible reading) (30 total hours of instruction per week/4.5 hours of religious-related instruction and celebration per week) as described by Ms. Link.

Therefore, for all the above reasons, it is ordered that:

The parent’s request for payment of tuition to JCSE is denied. Dated: April 17, 2012 Corrected Date: May 10, 2012 (Actual Record Close Date Has Been Changed)

___________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JMB:jj

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

PARENT

A Due Process Response, 1/19/12, 3 pp. B Parent Letter with Fax Confirmation, 8/18/11, 2 pp. C Parent Letter with Fax Confirmation, 10/6/11, 2 pp. D IEP, October 2011, 6 pp. E Progress Report, 2/19/12, 2 pp. F Enrollment Contract and Addendum, 9/1/12, 3 pp. G Affidavit of Payment, 3/20/12, 1 p. H 2011-2012 Daily Schedule, 1 p. I Attendance, 3/20/12, 1 p. J 2010 Tax Return, 2 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 1/11/12, 2 pp. 2 Final Notice of Recommendation, 7/27/11, 1 p. 3 Evaluation, 1/24/11, 5 pp. 4 Progress Report, 2/2011, 1 p. 5 Progress Report, 2/2011, 2 pp. 6 IEP, 4/12/11, 15 pp.

IMPARTIAL HEARING OFFICER

I Email to Parties Regarding Extension, 3/13/12