New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 8, 2013

July 24, 2013

August 5, 2013

September 30, 2013

Actual Record Closed Date: October 21, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2013

Advocate (Via Telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2013

Advocate — Student

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 05, 2013

Advocate — Student

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30,

2013

Advocate — Student

Parents

Teacher (Via Telephone) — Student

CSE Representative — DOE

(Via Telephone) — DOE

INTRODUCTION

On May 30, 2013, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence. Transcript of July 24, 2013 includes submission and acceptance of evidence, but failed to include one parent document as a listed Exhibit. Exhibit B was entered into the record is included herein. (T 62, Ex B)

Exhibit I, was identified and dated as September 14, 2013 in the transcript. Enrollment Contract correct date is September 04, 13. Regarding the contract date the Parent representative stated that the date was unclear and could have been read as September 4th or a 7th. I have found that for the purposes of the hearing the document date is read as a September 04, 2013. (T 65, 78 & 86, Ex I)

On August 5, 2013 parties joined in a motion to extend the compliance date by 30 days due to availability of witnesses. Motion was granted and compliance date was extended to September 9, 2013.

On September 9, 2013 parent made a motion to extend the compliance date by 30 days due to availability of witnesses. Motion was granted and compliance date was extended to October 9, 2013

On September 30, 2013 parties joined in a motion to extend the compliance date by 30 days to allow receipt of the transcript and allow for time to submit a closing memorandum. Motion was granted and compliance date was extended to November 9, 2013.

Parties were allowed until October 21, 2013 to submit closing statements. Closing statements were submitted by each party, considered and entered herein. (T 179, Ex I & II)

This matter was instituted by the impartial hearing request dated 05/28/2013 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2012-2013 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2012-2013 school year. (Ex A 1)

Relief sought includes a finding that the Individualized Education Plan (IEP) created for the student is improper to offer FAPE, finding of appropriateness of parental placement, and reimbursement for unilateral placement at the (). (Ex A)

Parent also sought provision of related services and transportation which became moot due to the ending of the school year to be addressed. (Ex A)

BACKGROUND

At the time of the IEP meeting in question.

THE PARENT’S POSITION

and presented the parent’s position at hearing and through closing document. (Ex II)

Parent contends the IEP in question was not created by a duly constituted IEP team. At least some goals were drafted after the meeting had been completed. IEP was drafted without any information from who had direct knowledge of the student. (Ex II 4)

Regarding the equities of the case the parent cooperated with the DOE, participated in the IEP meeting, and provided the requisite written notice to the Committee on regarding her intent to enroll her son in . (Ex II 4)

PARENT WITNESS

, the student’s mother, testified as to the student’s history.

was advised by the student’s teacher in that her child was behind other students. (T 66-67)

At the time the child was were identified. (T 67)

Student received

Parent participated in the August 23, 2013 IEP meeting. (T 68)

Parent visited the recommended placement in September of 2012 and was shown what she believed would be her child‘s class. (T 69-70)

The class was a combination

There were about in the class. (T 84)

believes the class was (T 72)

After the site visit the parent researched and came upon the , and decided to enroll her child. (T 73)

tuition is $3,000.00 monthly for ten months. (T 74)

Tuition has been paid in full. (T 74)

Parent would have considered an appropriate placement for her child. (T 74)

At the IEP meeting FE is sure they reviewed what services her child was receiving at the time. (T 97)

states that she participated in the IEP meeting and raised her concerns. (T 97)

was not advised at the IEP meeting that her child was to be instructed on a for the 2012-2013 school year. (T 94, Ex 1-10)

There are some of the program, such as and prayer. (T 91, Ex G)

Schools end at 1pm on Friday. (T 92)

does not recall discussing goals at the meeting. (T 100)

PARENT WITNESS

reviewed her educational and professional background and testified as the master teacher at . (T 148-149)

described the program: “ is a private education school gearing to children uties include: “…responsible for the curriculum for each child, responsible for everything that goes on in the classroom… responsibility to make contact with the parents and other providers for the children to make sure everything runs smoothly.” (T 150)

The student was part of her 2012-2013 class, which contained teachers. (T 150 & 163)

Students entered the class at a to (T 150)

had a limited ability to express themselves appropriately with their peers. (T 151-152)

The student at times received . (T 157-158)

Class size is a significant factor for the student who needs a lot of attention and support. (T 161)

provided an appropriate education for the student by , curriculum for the student, catering to his needs such as activities to strengthen his hands. (T 162-163)

makes its own goals but does review the IEP goals to see if they are appropriate. (T 167-168)

Regarding an IEP reading goals the witness was asked to review were described it as: “a (T 168-169 & 172-173, Ex 1-5)

Regarding an IEP reading goal the witness acknowledged was working on the skills contained therein. (T 169-170, Ex 1-6)

Regarding an IEP math goal the witness described it appropriate. (T 169, Ex 1-5)

reviewed portions of the class schedule from the 2012-2013 school year. (T 173-174)

described three areas of the class schedule that relate to religious instruction. . (T 171 & 175-177, Ex G)

DEPARTMENT OF EDUCATION POSITION

District Representative, presented the DOE position at hearing and through closing statement. (Ex I).

contends, throughout hearing and in closing statement that testimony established a duly constituted team met and created an appropriate IEP based upon clinical reports, the parent was involved in the construction of the IEP, and the IEP team can revise the document to address parent concerns which may arise after the IEP meeting (Ex I 1 & 2)

points to testimony that the proposed placement would have been able to meet the student’s needs and provide all related services as recommended. (Ex I 2 & 3)

contends equities favor the DOE since parent intended to place the student in a private school and not in a public school. points to the appearance that parent visited the public school and notified the CSE of the intention to place the student in a private school after the contract was signed. )(Ex I 4)

DOE WITNESS

reviewed his educational and professional background and testified as a member of the CSE for Region 7, and participant in the 08/23/2012 IEP meeting. (T 20-21)

Relying on clinical reports, school and parent information, the student was classified as . (T 23-24)

was discussed at the IEP meeting. (T 41-42)

Related service recommendations are made based upon of related disciplines. (T 24-25)

Class size recommendation is made by the team. The team includes the DOE personnel. (T 25 * 48)

Recommendation was made for the student due to his “… environment so that the teacher could give him a lot of individualized attention. Plus there's another adult in the room to supply more individualized attention.” (T 42-43)

could not identify how much individualized attention, except to say it would be more than a general education class. (T 49)

The recommended program would be able to individualize instruction for the student: “By a variety of ways, a trained teacher would modify the curriculum. That's the beginning…they would create a nurturing environment for the child. They would also make it a rich kind of process by the way they would pace the curriculum.” (T 47)

Goals were identified as appropriate for the student. (T 28-29, Ex 1-5)

Goals are created by DOE personnel. (T 48)

Neither the student’s teacher or related service providers participated in the IEP meeting. (T 32-34)

does not recall access to any teacher report at the time of the meeting. (T 43)

Regarding the student’s current support, at the time of the IEP meeting, does not recall. (T 43-44)

does not recall if the student was in a education class at the time of the meeting. (T 44)

DOE WITNESS

reviewed her educational and professional background and testified as a a teacher at the proposed placement. (T 113-114)

is familiar with the student insofar as she has seen his IEP. (T 114)

presented information about the proposed placement, including that teachers are licensed and certifies and that there is parent training available. (T 114 -115)

described a typical day for education students. (T 116)

identified IEP goals and that the school would be able to help the student meet those goals. (T 117-118)

describes a class placement for the student that was a class. (T 126-127)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with have available to them a FAPE that emphasizes education and related services designed to meet their and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). 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][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

An appropriate educational program begins with an IEP that accurately reflects the results of s to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a , Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide education services to the Child had not been approved as a school for children with by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A 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 student's education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a , Appeal No. 07-038; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction ly designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided education, the evidence did not show that it provided education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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 service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction ly designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-

14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-

18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT

DOE witness testified as to the IEP meeting of August 23, 2013 and the IEP created as a result of the meeting. (Ex 1)

The CSE lacked a proper education teacher. The IDEA requires a CSE to include, among others, one education teacher of the student, or where appropriate, not less than one education provider of the student (20 U.S.C. § 1414[d][1][B][ii]-[iii]; see 34 CFR 300.321[a][2]-[3]; 8 NYCRR 200.3[a][1][ii]-[iii]). The Official Analysis of Comments to the federal regulations indicates that the education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP (IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]).

I find this deficiency adversely affected the CSE meeting, and resulting IEP, in a manner that impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process, and caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 CFR 300.513; 8 NYCRR 200.5[j][4]),

Goals created for the IEP were created after the IEP meeting by DOE personnel. These goals were improperly prepared and failed to include the parent. This prevented the parent from fully participating in the development of the IEP. (T 37 & 48)

The IDEA entitles parents to participate in the substantive formulation of their child's educational program, and requires the CSE to consider any "concerns" of parents for "enhancing the education of their child" when it formulates the IEP (20 U.S.C. § 1414[d][3][A][ii]; 34 CFR 300.324[a][1][ii]; 8 NYCRR 200.4[d][2]; Winkelman, 550 U.S. at 524, 530-32). The district is also required to maintain an open mind during the CSE meeting with regard to possible changes to the student's IEP (J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 648-49 [S.D.N.Y. 2011]). Based on the parent's unrebutted testimony, I find that under the circumstances of this case, the district conducted the 08/23/2012 CSE meeting in a manner that significantly impeded parental participation due to its unwillingness to enable the parent to participate in the creation of the goals or consider the parents' concerns regarding class sixe. (Winkelman, 550 U.S. 516, 524; Application of the Bd. of Educ., Appeal No. 07-087; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]; Application of the Dep't of Educ., Appeal No. 11-031). The district's failure in this instance to include the parent in drafting goals, prevented parent concerns with student academics from being addressed. cannot be addressed if the CSE does not include the parent in determining goals which will be used to measure progress. This "significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student" (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]. (Ex 3-1)

I find the CSE team did not provide evidence to defend its 12:1:1 recommendation. DOE witness testified a school and parent information. No evidence was presented to show school or parent information was relied upon or considered information was relied upon. (T 23-24)

DOE witness states that parent concerns are usually reflected on the IEP on page two. No concerns are listed. (T 53-54)

PLACEMENT

documents and testimony from the student’s teacher described the program and appropriateness for the student.

described the program: “ is a private education school gearing to children with learning . It's .

demonstrated an understanding of the student’s . (T 152-153)

acted to address the unique needs of the student by implementing for the student, and catering to . (T 153-157)

Small group and individualized instruction was provided for the student. (T 157-158)

provided testimony regarding student progress in . (T 159 & 164-165, 160-161)

Evidence presented shows that class size was an important and significant factor for the student who needed a lot of attention and support. (T 161)

For the 2012-2013 school year I find offered an educational program which met the student's education needs and such placement was reasonably calculated to enable the child to receive educational benefits.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, visited the recommended placement, corresponded her concerns to the CSE, and acted in no way to frustrate the DOE process. (T 68-70, Ex D)

Parent has already paid the full tuition for the placement.

tuition is $3,000.00 monthly for ten months. (T 74, Ex I)

Tuition has been paid in full. (T 74, Ex J & K)

There are areas of religious instruction that take place at .

described three areas of the class schedule that relate to . (T 171 & 175177, Ex G)

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

In the instant case the parent provided proper notice to the CSE as reflected in two letters. On letter dated August 24, 2012 and another letter dated August 15, 2012. (Ex D & E)

I find that the parent is entitled to reimbursement in the amount of $24,600.00 This is calculated by taking the $30,000.00 and deducting $5,400.00 (18%) as indicated above for non secular activity.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012-2013 school year.

2. The parent shall be reimbursed, by the DOE, for tuition payments made to for 2012-2013 school year tuition, in the amount of $24,600.00.

3. DOE shall provide parent with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.

4. DOE shall reimburse parent within 30 days of receipt of any requested documentation as provided to parent as indicated above.

5. This decision is subject to appeal and review by the State Review Officer. DATED: November 7, 2013

________________________

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA:mv

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 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 Hearing Request, dated 5/28/13, 4 pages B Program Description, 2012-2013, 2 pages C Duplicate D Final Notice of Recommendation with parent response, dated 08/24/2012, 2 pages E Ten Day Notice dated 8/15/12, 1 page F June 2013 , 2 pages G 2012-2013 Class Schedule, 1 page H 2012-2013 Report Card, 1 page I Enrollment Contract dated 9/04/13, 1 page J 2012-2013 Affidavit of Payment, 1 page K 2012-2013 Proof of Payment, 10 pages L 2012-2013 Attendance Record,

DEPARTMENT OF EDUCATION

1 IEP, dated 8/23/12, 13 pages 2 Parent Member , dated 7/31/12, 1 page 3 , dated 7/31/12, 2 pages 4 , dated 7/31/12, 7 pages 5 Final Notice of Recommendation, dated 8/24/12, 1 page

IMPARTIAL HEARING OFFICER

I DOE Closing Statement, dated 10/21/2013, 4 pages II Parent Closing Statement, dated 10/21/2013, 5 pages