New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: May 17, 2012

June 22, 2012

July 9, 2012

July 18, 2012 Record Close: August 7, 2012 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 17, 2012

Attorney — DOE

Education Teacher (Via Telephone) — DOE

Attorney — Parents

Parents

Parents

Interpreter — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 22, 2012

Attorney — DOE

Special education Coordinator, (Via Telephone) — DOE

Attorney — Parents

Parents

Parents

Director, (Via Telephone) — Parents

— Parents

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 9, 2012

Attorney — DOE

Attorney — Parents

Parents

Teacher, (Via Telephone) — Parents

Interpreter — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 18, 2012

Attorney — DOE

Attorney (Via Telephone) — Parents

— Parents

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) ( ) is year-old student classified as and recommended for a program in a community school with related services of ( ), ( ), , and a / paraprofessional (para). His parents, (Mr. , Mrs. , parents or parent) contested the program as not providing with a free appropriate public education (FAPE) and placed him at Academy ( , or ). They requested tuition payment and reimbursement for the 2011-2012 school year, including payment and/or reimbursement for related services. Request for a portion of the tuition for two evaluations was withdrawn on July 9, 2012. Tr. 233-237

A prehearing conference was held on April 18, 2012. The hearing was held on May 17, June 22, July 9, and July 18, 2012. Extensions were requested and entered in the record as IHO Exhibits III. The record closed upon receipt of transcripts, briefs, and accompanying materials on August 7, 2012.

DISTRICT CASE

testified that she is a special education teacher of a . Tr. 54 She is certified in both general and special education, grades . Tr. 56 Ms. participated in the March 16, 2010 “ ” CSE meeting for , which recommended a class in a community school, , with related services of , and an and (para). Tr. 57-58; Ex. 4 She testified that , the who participated at the meeting, was not listed on the attendance sheet on the IEP. There was no parent member, as the parent signed a declination letter. Tr. 59-60, 101; Ex. 4 On cross examination, she confirmed that was also present at the meeting, although not indicated on the attendance sheet. Tr. 78-79 There were no related therapy providers at the meeting, nor were any teachers from his placement at the meeting, although she did not know why. Tr. 81 She identified the documents reviewed by the team in developing the IEP, including the , , progress reports, teacher interview and classroom observation, evaluation, and educational progress report. Tr. 60-64; Exs. 6, 7, 8, 9, 10, 11, 12 She confirmed that the IEP was prepared for the 2010-2011 school year, but stated that she did not recall if the reports were discussed during the meeting or prior to the meeting. Tr. 64 She stated that the reports indicated that had a , and had . He had himself, more than , and . Tr. 64-65

Asked what was discussed about his academic performance and , she stated that the team discussed his , his , and his and , and his evaluating him, and that he had nevertheless made significant progress in his setting. They also discussed the which was at the core of a lot of his in school, and gave him a classification of . Tr. 66-69 Asked about his levels, Ms. testified that they discussed his in class and and teachers, and that he was able to and for a short period when he was . Tr. 69 His was a concern to the parents, so an and para was added to address the parents’ concerns. Tr. 69 She stated that the goals were done and given to the team by the preschool. goals were provided by the goals by the goals by the . , the school , prepared several of the goals on the IEP, including goals regarding abilities for , , and development. Tr. 70-74, 101

The team considered both general education and a specialized school, rejecting the former as not meeting his needs and the latter as at the time. Tr. 74-75 Ms. confirmed that the recommendation of was discussed at the meeting, and the parents were told that they could make no other recommendation other than the because this was the only program available for bilingual classes. Tr. 75-77 Ms. testified that a class was appropriate to meet needs. Tr. 78 She stated that the parents agreed with the recommendation. Tr. 80 She didn’t recall if the parents asked for a nonpublic school or fulltime special education school. Tr. 80-81 She did not recall if the committee considered deferring the student to the CBST for a nonpublic placement. Tr. 97 When asked is a is the only type of class or the only class the DOE offers, Ms. said she didn’t know. She explained that Ms. and Mr. spoke with someone before the meeting to help guide them through the placement. Tr. 81-82 She said they were familiar with how to do a CSE meeting and Mr. was knowledgeable as to what programs were available, but they were calling to question the programs that were available. Tr. 99, 101-102

The CSE discussed that would be moving from a -person class with adults to a student class with adults, stating that they believed that due to his and with other children, the other children would help him progress in that area. Tr. 84-85 She agreed that the team was concerned that he would be pulled out of class times a week for related services, but stated that the recommendations were appropriate. Regardless of the classroom setting, he needed a group size of one. Tr. 98-100 Asked about the increase in class size, she stated that his peers would have been excellent and would have modeled a lot of the that he needed to work on. Tr. 100

She confirmed that the committee discussed his during the observation, including and and ,, that he was and that his teacher stated he needed a stating that a person class was a class. She was unsure whether his was addressed and did not know why counseling was not recommended as a related service. Tr. 85-86

She confirmed progress reports indicating “ ” by Ms. , although unable to confirm its date, and cited “ ” noted in the bilingual educational progress report, dated May 26, 2009. Tr. 88-89; Exs. 4, 7, 10 She conceded that the reported that would not be able to , even in a small group, but noted that it also said he would need an adult familiar with him to guide his with others through the day. Tr. 92; Ex. 8 She conceded the IEP noted that his with instruction and that a intervention plan for was not discussed, although she did not recall why. Tr. 95; Ex. 4 She did not know why the and needs portions of the IEP were not filled out. Tr. 95 Asked about goals on the IEP mentioning “ ,” Ms. stated that she was not aware of goals and so didn’t know what is. Tr. 97; Ex. 4 She did not know where it was that the and para be the same person. Tr. 98 , Special Education Coordinator at , testified that she is a special education coordinator, with duties involving overseeing teachers, curriculum, parent liaison, and district representation at IEP meetings. She has state certification in special education and bilingual education, through . Tr. 121-123 is a special school for students with intellectual

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disability, a community school-based program for students grades . It is a , or program. She stated that the students, who are, generally , or . Tr. 123-124, 126-127 There are classes, and students are placed according to grade level. Tr. 124-125 The school has related services of , . Tr. 127 would have been placed in the class of , a teacher with general education and , The class had students in September 2010. The students were at . Tr. 130-131 She agreed that levels were . Tr. 143 The class had three paras, all with one-to-one responsibility for a child, one of whom performed as a classroom para in conjunction with that responsibility. Asked to clarify, she testified that the para also had classroom para responsibilities. She was a full-time with classroom duties when possible, but the child to whom she was assigned comes first. of the paras were paras, and one was a . Tr. 133135, 143 She said that the IEP for said separate people would be assigned, but agreed that no other student had a separate orientation para and . Tr. 139-141

She reviewed the March 16, 2010 IEP, and stated that the related services, including the para and could have been implemented for . The goals also could have been implemented.^[2] Tr. 127-128, 132, 136-137; Ex. 4 She stated that based on the IEP, she did not find the recommended class appropriate for , citing that most of the goals on his IEP had already been accomplished by the other students in the class entering in 2010, and stating that he was also coming in with a lot of extra support that the other students didn’t need. Tr. 143-147 She explained that if the school had felt it was not appropriate, the team would have reconvened and assessed the child, perhaps for a different placement. Tr. 144, 148-149

PARENT CASE

testified that she was the director, principal, and founder of , which began in the 2009-2010 school year. Tr. 155, 211 Her duties range from admissions and evaluations to curriculum and scheduling, and liaison with parents. The school is , and has students from age years old. All have IEPs, which are used as a base for their services. The school has students classified with as , . Students are grouped according to evaluations and observations. Tr. 159-161

In the 2010-2011 school year, there were classes and students, with between and students and teachers in a class. All teachers have special education certification, and each student had a special education teacher for the entire school day. Tr. 162-164 The class can change during the day, but it’s basically the homeroom teacher in the classroom, and teachers who would fluctuate between classes, depending on the students’ needs. Tr. 207 The school also provides related services of , , , , and , all from certified providers. Some are , including and one who are Tr. 164-165 was in a class of students, with Ms. as his homeroom teacher responsible for implementing his IEP. He also received related services of ,a , , and . She stated that she was uncertain of the duration of the services, but knowing , she knew he was receiving certain services. Tr. 167-169 In addition to the , his teacher and his paraprofessional were also . Tr. 209-211 The age range is his class was between years old. Tr. 208-209

When asked how his schedule accommodated a total of five hours of related services, she testified that she did not know the particulars. Tr. 214 Asked about academic instruction she said that it was incorporated into the program, and the teacher could best describe how it is done and how it was implemented for . She confirmed that the hours of academic instruction was in the class, or it could be outside the class, depending on the child. Tr. 170-173, 214-215

She explained the tuition cost as a base tuition of $60,000, with the related services for a student, in the amount of $134,320. Tr. 169 She stated that all related services were provided on a pull-out basis, and identified the for , including those responsible for , , and his paraprofessional, whom she described as and . Tr. 169-172, 188-190 Ms. stated that the parents are responsible for the full tuition of $134,320, although she did not know how much was paid. She stated that she was familiar with a “ case,” and acknowledged that she spoke with parents regarding funding. If the parents did not prevail at the hearing, they would be called in and a payment plan would be discussed. If that didn’t work out, the “next step is court, to try to come to a conclusion of an arrangement. If that does not settle, then the next step is civil court.” Her experience is that they have been to court, and the parents did abide by the arrangement; she testified that it was for the full amount of the tuition. Tr. 174-177 She acknowledged that she gets financial information from parents when they apply, and when asked how she thought parent would be able to pay, she stated that “like many of our parents” they would go to quite a few and . Tr. 216-217 She acknowledged that parents owe a balance of $105,720 for the 2010-2011 school year, and have reenrolled their child for the 20112012 school year. Tr. 222-224

She said that in the 2010-2011 school year, the school was not entitled to related service authorizations. She said that the students received their related services from the DOE in its first year, after which parents were told that if they sought reimbursement they are not entitled to RSAs. This happened to all the parents, including parents. Asked whether the school was billing parents for related services regardless of they can get them through RSAs, she stated that basically, “the parents have not come to us with RSAs.” Tr. 217-219

Ms. testified that the school does not provide and it is not associated with a . She identified as a used by parents, and stated that she does not recommend it to parents. Tr. 177 She acknowledged there is instruction at prayer time for children and that some occurs during children’s . She also explained that the children say a blessing before they eat, a skill they come in with. Tr. 178-180 She stated that children can apply, but there were none at the school. Tr. 180-181 She stipulated that the school is closed for holidays. Tr. 202204

Asked about the specific charges on the invoice, she confirmed the $60,000 base fee, and separate charges of $7,200 for , $7,200 for , $7,200 for speech, $22,000 for a paraprofessional, $2,400 for , and $2,700 for , and $24,000 for academic instruction. As for ,. she stated that was using a manual board throughout the day during the year. Tr. 181-184, 221222

Asked about written evaluations during the year, Ms. stated that received informal evaluations in a , called “update notes.” She stated that separate evaluations were done by the specialist and the “ academic person.” When asked for copies of the evaluations, she said she would not have them in the school, but she would have to “request them from the providers,” if they “jotted down notes” or recommendations. She confirmed these were employees providing the work. She stated that usually they would not be written evaluations for a child this low functioning, describing it as an ongoing process She said the providers bill the school separately for the time allotted for the student. Tr. 191-200

Mr. , father, testified3 that was years old during the 2010-2011 school year, which was his first year at Academy. He described his son’s as not having the , not able to express himself, not able to in , special education, and , His strengt were that he adapted and was able to accept and , so he could be taught in all areas. Tr. 317-318

He described earlier , which was paid for by the DOE and where he did “ ” due to the and to needs. Tr. 319-320 Ms. stated that he attended the CSE meeting on March 16, 2010, and that the meeting took an hour “give or take.” The committee discussed need and , trying to work on a program for him. The program plan was for a special education program, as well as . It was a bilingual program, since wouldn’t be able to understand (“it’s

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Mr was somewhat limited in , able to understand and , but not . An interpreter was used on as as-needed basis during his testimony. like for him”), and was the most important part to communicate with him. Mr. stated that he disagreed with the program, saying he knew as did a lot of professionals, and a would not fit his needs. Tr. 320-323 He told the CSE that the program was not for him, that it was too large a class. The was crucial to him information, and they were trying to tell him the only “ ” placement was . Tr. 326, 337-338 He agreed that he signed the placement form, but stated that he didn’t and was under the that’s where they wanted him to go and it was the ting they could do and the only option he had. Tr. 323-324, 338

Mr. stated that he visited , the recommended school, He stated that it seemed very good, but not for . There was “no way” they could address his needs kin a setting so he could be able to learn, citing his , his . He said he and his wife saw that “whoever runs this place didn’t feel that with [ ] this place is good.” Tr. 325-326 He testified that if the DOE recommended program was appropriate, he would have placed there, “one hundred percent, yes.” Tr. 331

Asked about the importance of sending to a school that incorporated aspects of his faith, he agreed it was appropriate for his regular children. For , being that he wasn't able to understand and learn, he was rather trying to get him to be able to learn and the part wasn’t the issue. He cited the fact that he had gone also to the School, a secular school, and initially wanted him to be placed there for . Tr. 349-352

Mr. stated that he signed the contract with on September 1, 2010. He explained his financing at some length, stating that he did not get a scholarship or aid from the school. He has paid $18,600 so far to the school. He has , from ,a that he heard about from other parents. He also . Mr. stated that he understood a case, which gave a person the right to sue for paying the cost of education for a special needs child, and which he heard about from other parents and at another school. He also told Ms. he was bringing such a case and that he was in the of a case; he testified that she didn’t instruct him in or the process. He understood that if he lost, it would be his . He would also have to to as well as his relatives. He has not yet paid back any loans. He conceded that he has signed a contract with for the following 2011-2012 school year, raising his . Tr. 327-330, 339-349; Exs. B, D, He stated that he understood the separate charges for related services, citing his understanding that the services would be covered but things have changed. Asked if he ever asked the DOE to provide the services, he stated that he thought the services were on the IEP. Tr. 352-353

He affirmed that made progress during the 2010-2011 school year, stating that “number one,” most important, he was able to stay calm and focus, and his “ ,” which he described as “ the most exciting part. Tr. 330 He attributed the progress to the amount of personalized work by people with him on his level, not a generalized approach but , a teacher at , described the school as a special education school, specializing in a , support, consultants, and a very individualized curriculum for students. Tr. 243, 249 Classes are ungraded, and students are grouped into classes according to the results of evaluations, observation, and team recommendations. was in Ms. 2010-2011 class, which was comprised of children, age all of whom had IEPs; they were classified as . Tr. 246-249 Other adults in the classroom included two assistant teachers. Tr. 249 Ms. , an assistant teacher, is almost done with a Master’s degree in special education and has applied for certification; Ms. , the other assistant teacher, has certification from as an assistant teacher. Tr. 302 Ms. explained that small class size was important, as gets very with his environment, and needs to for . In an environment that is too , he would engage in - . Tr. 253-254 All the students in the class has a one-on-one para assigned to them. Tr. 284 para is bilingual in . Tr. 306 She stated that it was possible there were times with students and adults in the room, but it depended on the schedule of all the students, whether they were at therapies. Tr. 286-288 She could not describe or estimate the size of the room the students were in, but she described the set-up at length, each child with his own desk, table, working in their corner, each with their won schedule of individualized academics and therapy. Tr. 288-289, 307-308 issues were addressed through consultation with the , who recommended exercises and techniques to help . Also, a approach was applied to , incorporating techniques such as a , , and a approach to keep him engaged. also received for academic learning throughout the day, and with the increased , he learned to and make academic progress. Tr. 252-253

Ms. testified about schedule at length. She described the discrete trial instruction used to impart academic skills to , based on principles of applied analysis (ABA), and divided into short-term objectives; she cited progress in many of the skills, as measured by ongoing observation and data collection. Either she or the assistant teachers under her supervision would be conducting the discrete trail sessions. Ms. also described the rest of his schedule, including arrival routine, which applied and in which . Related services were mostly on a pull-out basis; Ms. explained that with the individualized scheduled, he . Tr. 255-271, 291, 303-305; Ex. E Ms. stated that the school looks at the IEP and tried to implement as much as possible, while also developing their own goals and objectives. Tr. 271-272

Asked what s he exhibited in September 2010, she cited basically being all over the place, not regulated, not being able to and down, and , with and . The school didn’t conduct a assessment, although some track was kept in his . In September he exhibited these s all the time. She gave as example his a to the floor if he had trouble fitting a piece into it; citing progress in his and try again without that . Tr. 297-298 She testified that he has learned to actually , and to . She stressed that he had learned his need with words rather than . He learned to follow , identify , , appropriately with different identify . She stated that she attributed the progress to the individualized attention and structured environment, support, that “being very individualized in a small setting really contributed to the progress.” Tr. 274-275, 298

She explained that he was primarily instructed in , which is his , but they were trying to expose him to the language as well. Tr. 276-277 Ms. described her own training in ABA, and explained that the curriculum is a team approach, including the teachers, assistant teachers, and related service providers. Tr. 275-280 She stated that the curriculum is the program book. Tr. 296 She identified the “consultants” who worked with during the 2010-2011 school year, including , the and , , a curriculum consultant. There were three who worked with him during the year, one doing and the others the more traditional . Tr. 282-283

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

It must be stated at the outset that analysis requires separate review of the school district program and the program chosen by the parents. As far as the law is concerned, the two programs are not in competition. Each program stands or falls on its own merits, depending on the underlying facts and in accordance with the standards applicable thereto.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE).

20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden. I note at the outset that the district presented two witnesses to support its program, yet in its closing brief, submitted after the parties rested, the district conceded that it had not provided the student with a FAPE.

IHO Ex. V

There was no concession made during the hearing. Although I accept the district’s reversal of the previous position its attorney articulated during the hearing, I will briefly summarize my findings concerning this part of the inquiry.

The program recommendation for was fatally flawed, not even attempting to provide a reasonable educational environment to address the multiple needs of this child. There was no dispute that program was the only bilingual program available for the child or that the parents were told that the CSE could make no other recommendation other than the because this was the only program available for bilingual classes. The school was primarily for students who were mentally retarded, or intellectually disabled. Under the circumstances, Ms. ’s statements that the recommendation was appropriate were unsupported by the evidence. I credit Ms. Wasner-Weingarten’s testimony that the recommendation was inappropriate, citing the difference in the academic levels of the children in the lass and their mastery of goals on IEP, as well as the level of extra support to be provided for him. Moreover, in regard to the actual class placement, the DOE was defending a class of that didn’t even qualify as a program. The class had three paras, all with one-to-one responsibility for a child, one of whom given the duties of classroom para in addition to her primary responsibility to her assigned student.

Thus, I find that the district failed to provide a FAPE for .

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that Academy offered an educational program designed to meet special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of for , although not all the services for which funding was claimed.

The school’s fees, as specified on the Service Addendum to the contract, included a $60,000 base tuition fee, and separate charges of $7,200 for , $7,200 for , $7,200 for , $22,000 for a paraprofessional, $2,400 for , $2,700 for and $540 for evaluation, and $24,000 for academic instruction and $1,080 for academic instruction evaluation. Ex. B These are addressed separately below.

In regard to the basic instructional program, I credit the small group setting and the individualized curriculum described by Ms. , and note her explanation of the need for the small class size to address his need for structure to and s or . I also the instructors were , in his of . The child began the year being “all over the place,” not regulated nor able to , , and with and . She described a and approach, with and put in place to help as well as the individual discrete trial instruction he received throughout the day in academic skills. I also note the detailed schedule, which in addition to his academics addressed his .

In regard to progress, there was a long list of progress for the child, of which I will only note some here. Of primary importance, he learned to actually , and to , him to access . His also , in that he learned to his rather than . He learned to sit and learn, to make academic progress in many skills, to , to name, to of time; to play different level games, to tolerate a , look into a , to himself more independently, he learned to attend and sit appropriately with a group, , identify his and put it on . He learned to , , play appropriately with different , identify with them. As described by his father, “ he was able to stay , and amount to “ ,” described by Mr. as the most exciting part of his son’s progress. I credit Mr. s attribution of progress to the individualized with him at .

In regard to related service of , and the paraprofessional, I note that it was also undisputed that the DOE would not provide related services or authorizations for the child when he was attending , , and the child’s para, the school based its service delivery on the IEP mandates, while not including the cost in the base tuition. The were also speaking.

As he was nevertheless recommended for the same level of services by the DOE, I find those services to be appropriate.

Given the ban imposed by the DOE, without any justification offered, is to be congratulated for putting the services together for the child. I note the progress reports from the , and speech provider submitted into evidence, which also attested to the work done with and the progress he made. Ex. N However, Ms. testimony concerning services raised some question. The relationship of the providers to the school was unclear. Although Ms. testified they were employees, she referred to the Service Addendum, provided in advance of the school year, and explained that providers bill the school separately for the time “allotted for the student.” The affidavits of the , and provider contained similar contradictory language, identifying the providers as employees who charged the school for their services. Exs. B, F Given the discrepancies and the lack of any service providers to testify, I find that relief for the services of shall be limited to issuance of RSAs for the 2010-2011 school year. Accordingly, rather than providing payment to the school, I will order authorizations for those services to be issued by the DOE for the school year 2011-2012, and payment pursuant to the terms thereof. The same order will apply to the services of a paraprofessional for .

As for the claim regarding $2,400 for , I note that there was no evidence of the need for such service for , and I am denying funding for that service. To the extent that reflects , funding is denied. Similarly, the claim for $2,700 for must be denied, as there was no evidence of the need for such service for , and I am denying funding for that service. I note that following Ms. testimony, the parents withdrew their request for funding for evaluations, which were never produced. Tr. 233-237 Ms. stated that was using a manual board throughout the day during the year. There was no evidence of the service provided, other than Ms. dubious testimony about the Service Addendum, a document created before the start of the child’s year.

Finally, the claim for $24,000 for academic instruction must be denied. For this as well, the parents withdrew their request for funding for evaluations, and there were no evaluations ever produced. The only explanation for this “service” was general comment by Ms. that it was “incorporated into the program” and could best be explained by the teacher, but there was no forthcoming illumination from that source other than testimony about ABA instruction for the child. I find the additional charge for this service to be excessive, amounting to little more than “double dipping.” There was no evidence that such instruction was anything more than the core program special education program for , for which the base tuition applies. See Application of the Bd. Of Ed., SRO Appeal No. 11-164.

The parents have also asked for direct funding, based on the decision in Conners v. Mills, authorizing payment directly to the school where financial circumstances eliminate the opportunity for private payment for a unilateral placement. 34 F.Supp.2d 795 (NDNY 1998). Moreover, retroactive relief is available under the rule set down in Mr. and Mrs. A v. NYC Dept. of Educ., 769 F. Supp.2d 403 (SDNY 2011). In this case, the parents easily met that criteria, their and requiring the parent to obtain loans to pay even a relatively small amount against the total due. Exs. C. G, I

Finally, I reject the district’s argument that public funding for at is precluded, in whole or in part, due to “ . I agree that the DOE should not be responsible for the portion of tuition that constitutes instruction for the child. Application of the NYC Bd. Of Ed., SRO Appeal No. 11-037, Application of the Bd. Of Ed., SRO Appeal No. 11-015. In this case, however, the school denied attachment to a institution, and there was no evidence of instruction for so as to render payment for that portion not allowed. I note Ms. testimony citing songs sung during circle time and the customary recitation of ; as she made clear, any instruction was limited to children. I find the prayer in singing in circle time to be de minimus, the singing itself only a small part of interactive activity for focused on him being able to sit in a group for that amount of time and relate to his peers. I find the DOE’s objection to the child’s prayer before meals to be entirely without foundation. Prayer before meals is simply that, prayer, something most of the student population at would be doing on their own, and not the same thing as instruction in prayer. There was no evidence that this would take more than the few moments such prayer customarily requires. Certainly, students in public schools may also engage in prayer, before class and before meals, and those who do pray cannot be sanctioned. Student prayer in public school is protected under the Free Exercise clause of the United States Constitution. The ban on school prayer established under Engel v. Vitale, and its progeny applies to government-led school prayer, not individual prayer and not applicable to the facts presented by this case. 370 U.S. 421 (1962).

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. There were several arguments against tuition or full tuition advanced by the district in this case. These included legitimacy of the contract and the parent’s intent to send child to a public school. These will be addressed separately below.

I agree with the district that the parents’ contract with the school must be a legally binding agreement in order for public payment to be provided. Mr. and Mrs. A v. NYC Dept. of Educ., 769 F. Supp.2d 403 (SDNY 2011) I find that the contract between Mr. and Academy was a legally binding agreement, and one that both parties expected to be enforced. I note Ms. plan for enforcement, and the fact that she has gone to the informal court of court to enforce at least one contract. I also note Mr. ’s statements regarding his obligations to pay in the event he does not prevail in this case, and to pay back those from whom he has borrowed the funds that have gone to the school. While his testimony about his obligation to pay back to other sources, or relatives for payment to the school, does not make the contract with binding, it does show his intent in regard to his . Mr. could not be faulted for from nor for . I find the district’s argument that the school has not sought to enforce the parent’s obligation to pay without merit, as it flies in the face of the reasonable expectation of all parties to await resolution of the determination concerning the DOE’s obligation to pay.

I also reject the DOE’s argument that that the parent did not seriously intend to enroll in a public school. I credit Mr. ’s testimony that if the DOE recommended a bilingual program that was appropriate, he would have placed there, “one hundred percent.” I note that he acknowledged the importance of a education for his “regular children,” but understood that the crucial challenge for was to get him to be able to learn, not the dispositive element in that calculation. I note his exploration of the school for .

It must be noted that balancing of the equities entails also a look at the district’s actions. In the first place, the CSE made a recommendation that participants knew was not appropriate for the child, expressly and only because it was available. Moreover, as noted above, it was undisputed that the DOE would not provide related services or service authorizations for the child when he was attending Certainly, that policy alone, potentially denying the child access to needed services because of the school he attends and the parents’ intent to avail their child of the rights afforded under federal law, speaks volumes about the equities in this case, supporting the parents’ claim for provision of services (provided, as noted above, through RSAs).

Accordingly, I find that equitable considerations do not operate to deny or reduce an award of funding or reimbursement to the parents for tuition.

ORDER

1. The DOE shall reimburse the parents for the base tuition fee at Academy in the 2010-2011 school year, upon proof of attendance and payment, at a cost not to exceed $60,000. The parent shall submit proof of attendance and payment for which reimbursement is requested.

2. To the extent that reimbursement to the parent is less than $60,000, the DOE shall directly pay the school for the balance of the base tuition fee, up to but nor exceeding $60,000.

3. The DOE shall issue related service authorizations or other authorizations as may be necessary for the following related services for the 2010-2011 school year:

a. ;

b. ;

c. and

d. paraprofessional services, full-time.

4. Funding or reimbursement for and academic instruction is denied. IT IS SO ORDERED. Dated: August 14, 2012

___________________________________

NANCY M. LEDERMAN, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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 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 - or 35-day period. (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and forms can be found in the Office of State Review website: www.sro.nysed.gov//appeals.htm.

EXHIBITS

DOE Exhibits

1 Due Process Complaint, 3/6/12, 2 pages

2 Due Process Response, 3/15/12, 4 pages

3 Final Notice of Recommendation, 6/8/12, 1 page

4 IEP, 3/16/10, 14 pages

5 Declination Letter of Parent Member, 3/16/10, 1 page

6 Classroom Observation, Teacher Interview, 3/9/10, 8 pages

7 Social History Update, undated, 2 pages

8 Report, 2/1/10, 1 page

9 Evaluation, 6/12/08, 5 pages

10 Educational Progress Report, 5/26/09, 2 pages

11 Progress Report, 5/16/09, 1 page

12 Progress Report, 5/11/09, 1 page

13 Recommended Deferred Placement, 3/16/10 and 3/17/10, 1 page

14 Subpoena and fax confirmation, 4/18/12, 4 pages

15 Educational Progress Report, 6/13/11, 2 pages

16 Program book notes, various dates, 27 pages

Parent Exhibits

A Impartial Hearing Request, 3/6/12, 2 pages

B Tuition Contract, Academy, 9/1/10, 6 pages

C Affidavit of payment, , 12/1/11, 1 page

D Loan application, Loan Fund, 9/1/10, 2 pages

E Class Scheduled, Academy, undated, 2 pages

F Provider affidavits, 11/4/11, 11/9/11, 5 pages

G Checks, promissory notes, and credit card statement, 12/7/10 to 6/10/11, 8 pages *

H Attendance Sheets, 2010-2011, 2 pages

I IRS Tax Return 2010, Mr. and Mrs. S, 3/18/11, 3 pages *

J Final Notice of Recommendation, 6/8/10, 1 page

K Related Service Attendance Record, Academy, 2010-2011, 4 pages

L Program Description, Academy, undated, 1 page

M Notice of Unilateral Placement, 8/23/10, 1 page **

N Therapy Reports, 10/16/10, 5/7/11, 5/9/11, 5/10/11, 8 pages **

* These documents were entered into the record to replace earlier submissions, which were then withdrawn.

** These documents were admitted into evidence, although omitted from the exhibit list in the transcript. Tr. 33-34

IHO Exhibits

I Prehearing Conference Summary, 4/18/12, 1 page

II Subpoena, 4/18/12, 3 pages

III Decisions on Extensions, 5/15/12 to 7/20/12, 3 pages

IV Petitioner Memorandum, undated, 13 pages

V DOE Closing Brief, 8/6/12, 11 pages

Footnotes

[1] The bilingual program was referred to by different witness as the “ ” program.

[2] Several pages of the IEP, as other documents in this case, were , with barely making witness review a , although it did not affect the analysis of the case.