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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 19, 2013
Actual Record Closed Date: December 6, 2013
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2013
Esq. Attorney District Representative Department of Education Mother Father — Parents
Teacher — Parents
(via telephone) School
Math Teacher — Parents
(via telephone)
Headmaster — Parents
(via telephone) School
French Teacher — Parents
(via telephone) School
INTRODUCTION
On November 19, 2013, I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the student”). The hearing commenced at 11:00 a.m., and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The student old. She is in the at the (“ ”) and participates in the Program (“ ”). In a letter dated September 5, 2013, the student’s parents, by their , , filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education had not yet offered the student a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year. In particular the parents alleged that the Department of Education did not hold an Committee on Special Education (“CSE”) meeting for the student or develop an Individualized Education Program (“IEP”) for the student and that it did not provide a Final Notice of Recommendation (“FNR”) with a proposed placement. The parents requested reimbursement for the tuition at and for transportation to and from (Parents’ Ex. E).1
I was appointed as the Impartial Hearing Officer on September 5, 2013. The original compliance date was November 19, 2013 and the hearing was held on that date. Pursuant to request by the parents at the conclusion of the hearing the compliance date was extended to December 18, 2013 for the receipt of the transcript and for the issuance of a Decision and Order. That extension was granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.
THE PARENTS’ POSITION
, Esq., represented the parents at the impartial hearing. Mr. alleged that the Department of Education did not provide the student with a FAPE for the 2013-2014 school year, that with the is appropriate for the student and that the equities support the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
represented the parents and stated that the Department of Education conceded that tit did not provide the student with a FAPE for the 2013-2014 school year. At the conclusion of the hearing Ms. asked that if the case is resolved in favor of the parents, that tuition reimbursement be limited to the program.[2]
FINDINGS OF FACT
The Department of Education’s Case
The Department of Education did not present any evidence at the hearing.
The Parent’s Case
is the student’s mother ( 76). is the founder of and has been the headmaster at the school for 45 years ( : 62 is a teacher at the school. She has a Master’s Degree in secondary special education and New York State certification in special education math for grades five through 12 ( : 9, 29). is the student’s math teacher. He has a Master’s Degree in social work and took graduate courses for alternative certification to be a teacher. He taught special education in a public high school for five years and was the IEP and transition coordinator at that school. Mr. was certified as a special education teacher but let the certification “lapse” when he moved from the public school to He was a teacher for five years (Henson: 32-33). is the student’s French teacher. She has a Master’s Degree in French and certification to teach French and Italian secondary education ( : 92-93).
1 The issue of transportation was not pursued at the hearing.
The student’s parents adopted her from Korea when she was five months old ( : 77). The student attended from kindergarten through the third grade. During that time the student’s teachers told the parents that the student with math and reading and the parents noted that the student ( 78). , Ph.D., conducted a evaluation when the student was in the third grade Dr. determined that the student had ”), with reading and math. The student was subsequently given an classification by the Department of Education (MM: 79-80; Parents’ Ex. A).
The parents enrolled the student at the for Children for ; the school was “very supportive” ( : 79). only went up to the eighth grade and after doing some research and speaking to Dr. , the parents enrolled the student at ( : 83).
Dr. conducted another evaluation of the student in June and August of 2013. She determined, inter alia, that the student had a ”) and . Dr. recommended that the student continue in special education in the context of a mainstream program that offers appropriate challenges to a bright child and that the student be provided with the accommodation of extended time (Parents’ Ex. A at 9, 11).
The student has been seeing a , Dr. , once a week for about a year; Dr. addresses the student’s needs ( : 80-81). The student also sees a , Dr. , once a month for “a little bit of therapy” but mainly for her medication, which she takes for ( 8183).
In a letter to the CSE dated February 12, 2013, the parents asked for an IEP meeting and indicated that if an appropriate placement was not offered they intended to send the student to and seek reimbursement (Parents’ Ex. C). No meeting was held and the parents did not receive an FNR for the 2013-2014 school year. The parents did not receive a Final Notice of Recommendation (“FNR”) for the 2012-2013 school year. In a letter dated August 16, 2013 the parents advised the CSE that they intended to re-enroll the student at York for the 2013-2014 school year (MM: 86-88; Parents’ Ex., D).[3] The student is currently in the ( : 77).
Mr. characterized as an “inclusion” school that provides education to students who have learning issues in the least restrictive environment ( : 65-66). The school has a “track system” with three tracks in the , the highest track being “Honors.” Each subject is taught at a different time so that, for example, a ninth grader can be in one track for English and a different track for math without affecting the student’s schedule (Stewart: 63-64; Beyer: 29-30).
The special education component of the school is the . All of the teachers are state certified special education teachers. Some of them are also certified in a particular subject and they teach the “weakest track” of that subject (Stewart: 65-66, 70). The and outside speakers provide staff development to the subject teachers on how to educate learning challenged children. There is both formal and informal interaction between the teachers and the subject teachers. teachers also “push into” the classes to make sure that the subject teachers are offering an appropriate education and that the accommodations for individual students are being carried out (Stewart: 67, 69-70, 73-74; Beyer: 10-11).
The school currently has “just over” 350 students and about 125 of them are in (Stewart: 67).[4] The goal of is to teach the students “techniques” so that they can ultimately continue in the mainstream with accommodations but without the support of Jump Start (Stewart: 68).
The students in have an extended day and are assigned to a small group. They arrive at school at 8:00 a.m. instead of 8:45 am. and leave school at 4:00 p.m. instead of 3:15 p.m. At 8:00 a.m. the students meet with their teacher for thirty minutes in a group. The teacher works with the students to make sure they are organized and prepared for the school day and to help them with any difficulties they had with the work the night before
( : 66). After school they meet with their teacher for 45 minutes in a group and they begin their most difficult homework ( : 10). Twice a week the each student is “pulled out” of a non-academic subject such as gym, art, drama or music for double individual period with the teacher. The students are required to email their teacher “as needed” to check in about homework and anything that occurs outside of school (Stewart: 77-78, 83; Beyer: 10).
Each week the students’ grades (for quizzes and homework) are sent to the parents via “Edline,” a computer program accessible to both the parents and the students. The weekly report also includes any comments that the subject teachers think are relevant. teachers write a “full narrative” explaining “what has been accomplished that week. Edline also has a component by which the students can find out, for example, the homework assignments, the upcoming assignments and the books to bring to class. The students can also access work covered in class ( : 72-73; : 84-85; : 38).
Edline addresses the student’s because she knows that if she missed something in class she can find it on Edline. The system also encourages the student to email her teachers and the student takes advantage of that opportunity ( 84-85; : 38).
Ms. , Mr. and Ms. are familiar with the student from working with her and reviewing report ( : 94). The student is one of nine students in Ms. class. Before meeting the student Ms. and Mr. reviewed her report. While the student is diagnosed with this year is not as prevalent and her written . Mr. , the student’s math teacher, noted that the student has a “very high level of when speaking with adults in general. The student is also concerned about giving incorrect responses in her work because she “doesn’t want to be wrong” ( 11, 14, 21-22; : 35).
Ms. has been able to address the student’s deficits during the current school year by working with her both individually and in a group ( : 11-12). Ms. works with the student on the “pre-writing” part of her writing assignments in order to address the student’s and her feeling of by having to write an entire essay “at once.” Ms. described the methods she uses to do so, ” to help the student “get started” and graphic organizers and outlines to “step-by-step” work through the “plan” of how to structure her writing so that she can write the essay on her own ( : 12-15). After the student completes the essay Ms. works with her on how to revise and edit the work (Beyer: 15-16).
Ms. addresses the student’s reading disorder when they work individually. To address the student’s reading comprehension deficits Ms. makes sure that the student understands the characters and the themes of the stories she is reading and she shows the student how to highlight, annotate and take notes so that the student can check for her own comprehension ( : 17-18). By focusing on what is important to annotate and highlight Ms. can determine whether the student understands the main points of the story. The comprehension questions serve the same purpose ( : 18-19). By “checking in” with the student and “keeping her on top of things” Ms. helps alleviate the about her writing and tests ( : 19). The student is in the Honors track for English, which encompasses reading comprehension (Beyer: 30). For math, Ms. uses a “step by step” method that helps the student get started and work through multi-step problems without or (Beyer: 20-21, 27-28). The student gets the accommodation of extended time (Beyer: 23).
As the student’s teacher Ms. is the “point person” for the student throughout the day and the person with whom the student can discuss her classes and her grades. Ms. gives the student both and positive reinforcement to build her confidence ( : 22-23).
Ms. collaborates with the student’s subject teachers both formally and informally in person and by email, and she reads the teachers’ comments each week on the student’s Edline report ( : 83-84; : 24).
Ms. testified that the student has made progress this year. For the first quarter of this school year the student’s grades were “all over 80 at least” and she is “on top of her assignments and tests” ( : 24-25). , the student has . Ms. opined that the was due to knowing that her teachers are “there for her” and becoming used to the routine of the school ( : 26).
Mr. was the student’s ninth grade math teacher. She did very well in the tenth grade and was scheduled to be either in the Honors track or the second track for eleventh grade. However, after a “brief stay” in a higher track the student was moved to Mr. s Algebra 2 class which is the third, or lowest, math track in the eleventh grade ( 33-34, 46; : 30). All of the students in Mr. ’s class either have “very much with math” or an IEP or that indicates they have a ( : 34). In light of the students the pace of the math class is “quite slow” ( : 46). Algebra 2 assumes that the students already know the first three steps of graphing an equation but the students in his class do not remember and he constantly reviews and “goes back” ( : 47-48). He also uses “scaffolding” ( : 48-49). The math book has many word problems and Mr. uses graphic organizers and varied visual aids to teach the student how to work through those problems which involve “many, many, many steps” ( : 50-53).
Ms. pushes into the student’s math class twice a week and Mr. Henson also discusses the student’s progress with Ms. outside of the classroom (Henson: 35-36; Beyer: 23-24). Ms. helps Mr. with the curriculum and prompts him for things that can be done to address the student’s learning issues and learning deficits. At times, Ms. will take the student out of the classroom if there is a particular thing she does not understand ( : 53-54). After Ms. has an individual session with the student she can tell Mr. what concepts the student did not understand. He can then review the concept with the student in more detail and check with her immediately after the lesson to see whether she learned it (Henson: 53-54).
In math class the student has lapses of attention but does a “decent job of mitigating” those issues ( : 35). Mr. addresses the by repeating things “a lot” in case the student misses what he says the first time. The student always sits in one of the first two rows and if he notices that she is not paying attention he puts a finger on her desk and that cue has worked very well with her. Mr. developed that strategy for the student because if he were to reprimand her in front of the class for not paying attention it might provoke a reaction that would result in her not learning or not stopping to pay attention. The structure of the math class has routines and holds the student “accountable” in that she knows that if she does not pay attention or participate she will “lose points”; she is doing very well with that system ( : 37-41, 45, 59). Anything that the student misses in class she can get through Edline, having a conference with Mr. after school or from Ms. ( 38, 49). Mr. is available to meet with the student between 8:00 a.m. and 8:30 a.m. and between 3:15 p.m. and 4:00 p.m. every day. He can also see the student during lunch or during a 20-minute break between third and fourth periods ( : 55).
The student’s is apparent when she is dealing with other students and with Mr. . The student’s slow processing usually manifests when Mr. is working individually with the student ( : 35). Mr. explained how he addresses the , noting that it is important to speak with her outside of the classroom and to preface a conversation with a positive statement. Because the student working with other students in the room, Mr. tells her in advance if the class is going to group work on a particular day. He gives the student “pointers” about how to manage conflict with peers and gives her “words” to help with it “in the moment.” Mr. also helps the student address about quizzes and tests by reviewing “visualization techniques” and prefacing a test by telling her that it is a test of her knowledge and not whether she is a good or bad person ( : 43). He explained “front loading,” specifically how a preview of the work to come helps the student understand where she is in the process of the classroom, a week or a unit, so that she knows where she has been, where she is and where she is going ( : 43-45). The classroom routines also . When Mr. is going to deviate from is routine he tells the class of the change in advance and checks with the student several times during the day (Henson: 45-46).
The student’s math grade for the first quarter of the current school year was 83 but her average at the time of the hearing was 98 or 99 ( : 56). Since the beginning of the year the student is “much more able” to work in groups and mitigate conflict without ” or simply ending the conversation. She also without and communicates with Mr. in a ( : 57).
Ms. has been the student’s French teacher for three years and the student is one of six in Ms. ’s eleventh grade class. Three of the students in that class have “learning challenges” (Campo: 93). The student experiences about her performance in French class particularly about homework assignments and tests. She has a difficult time remembering vocabulary or grammar concepts that she was previously taught and also has difficulty with written expression in French (Campo: 94).
Ms. ’s goal is to calm the so that it does not interfere with her learning. To this end, prior to an assessment Ms. previews the material that will be on the test or quiz by making a typed review outline and providing the textbook pages and dated class notes that are relevant. Ms. also gives examples so that the students can preview what they will be expected to know. This process reassures the student and reduces her ( : 95). Ms. uses a similar strategy for written assignments (Campo: 99-100).
Ms. ’s classroom is very structured and follows the same daily routines. The predictability of this schedule, the slower pace used in the classroom and the constant reinforcement and repetition of what is has been, and is, being taught also helps the student with to learn the subject ( : 96-97, 101). The class uses an online flashcard system that keeps quizzing the students on the material until they score 100%. The immediate feedback lets the student know how she is doing at any point in time and lets her continue until she scores 100% which reassures her and lessens her anxiety (Campo: 98). Ms. is available to meet with the student outside of class until 4:00 p.m. each day (Campo: 102).
Eleventh grade French is a “very advanced” class. The student received a grade of 81 in the first quarter, which that shows she has been able to keep up with the work. Ms. interpreted the grade as evidence of the student’s academic progress. She also noted the student gave a “fabulous” oral and Power Point presentation in class which demonstrated having more control ( : 102-103).
Ms. believed that is appropriate for the student. She explained that both the small classes in the school and the individualized attention have benefited the student and as has Edline, which allows the student to keep track of all of her assignments and see her grades. Ms. also noted that the student’s subject teachers are “very used to working with” students who have learning needs and they can address the student’s needs in the classroom ( : 25).
Mr. believed that is appropriate for the student. In particular, he opined that the support provided in the morning before school is “very important psychologically” for the student. The student gets a lot of support from her teachers who have training or credentials in learning issues and learning disability ( : 58). He believed that the support from the has had positive results, noting that the student is responding to that support in such a way that some of the “scaffolding” can be removed. Mr. also testified that he would be “very, very concerned” if the student had to survive in a school without those supports, even in a small classroom (Henson: 58-59).
Ms. believed is appropriate for the student because of its small classes, tracking, and the techniques used by the teachers at the school ( : 103-104).
believed that the teachers at are meeting the student’s specific educational needs by using “special techniques in the classroom” to challenge her with “college in mind.” She noted that the teachers understand the student and “give her a pat on the back when she needs it” ( : 85). The student is becoming more and more independent and is talking about college. She is very proud of herself and seems “much more confident” than she had been before ( : 88). The student’s first quarter report card had an average “in the 80s” but in the two weeks prior to the hearing the teachers noted at meetings and on Edline that the student’s work has been about “85” ( : 88-89). “absolutely” believed is providing the student with an appropriate education ( 90).
DECISION AND ORDER
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the student to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182. 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 legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board 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 Parents’ claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053.
I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.
I.
To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).
In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies: (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; R.E, 694 F.3d at 190.
With respect to this criterion I note that Ms. conceded that the Department of Education did not provide the student with a FAPE for the 2013-2014 school year.
II.
Under the second criterion of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child's special education needs. To qualify for reimbursement under the IDEA, parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parent cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as the developing IEPs or employing faculty members that are not state certified. Rather, the parent need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a , supported by such services as are necessary to permit the child to benefit from instruction." Ultimately, the issue turns on whether a placement public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459 F.3d at 364. While parent are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 96.
As detailed above with citations to the record, the evidence at the hearing clearly demonstrated that , is “reasonably calculated to enable the child to receive an educational benefit.” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364.
I find that is an “inclusion school,” meaning a mainstream school that includes students who require, and receive, additional support. Approximately a third of the 350 students at have either IEPs or diagnoses that make them eligible for Jump Start, a program detailed above that provides additional assistance to those students before, after and during school by a certified special education teacher. The subject teachers receive training in working with students who have and the teachers collaborate with them often. The school also has a tracking system that allows the student to be placed in each subject area according to her academic ability and also provides the opportunity to change tracks when appropriate. Taken together, the mainstream program and reflect the recommendation in the evaluation that the student be provided with special education in the context of a mainstream program that offers appropriate challenges to a bright child. The school is also providing the student with the accommodation of extended time, also recommended in by Dr. (Parents’ Ex. A at 11).
Mr. , the two subject teachers that testified at the hearing, both have experience working with children who have special needs. Specifically, Mr. was teacher for five years and three of the six students in Ms. ’s class have learning challenges. Both teachers reviewed the student’s evaluation. They are familiar with her learning issues, , and their small classes – 16 students in math and six students in French – allow the teachers to provide the student with the individual attention she requires. Mr. and Ms. described the strategies they use to help the student academically and to alleviate her anxiety. Specifically, Ms. described how she helps the student to organize her writing in French and to prepare for tests and quizzes so that she about taking them. Mr. detailed the strategies he uses in math, for example the methods he employs to help the student understand and address the written problems in the math textbook. In addition, Ms. pushes in to Mr. ’s class twice a week and advises him on ways to help the student and keeps him apprised of math concepts that the student does not understand. Mr. also explained how he uses a to redirect the student when her and how he , for example by starting conversations with the student with a positive and reassuring statement. Both teachers are available to meet with the student outside of class.
The evidence supports a finding that the strategies used by the teachers have been successful with the student this year. Ms. characterized the student’s oral and Power Point presentation as “fabulous” and noted that the presentation demonstrated a decrease in the . And, while Ms. described the eleventh year French class as “very advanced,” the student received a grade of 80 for the first quarter, which was commensurate with her French grades in prior years and demonstrated that she is able to keep up with the work. While the student was not able to do the work in the math Honors track, with Mr. ’s assistance she was able to raise her math grades in the third track from 83% for the first quarter to 98% or 99% at the time of the hearing. In addition, Mr. related that the student’s ability to work in groups and mitigate conflict has increased.
With respect to , I find that Ms. presented detailed and specific evidence of how the strategies she uses with the student and her involvement with the student’s subject teachers are helping the student succeed in her inclusion classes. Indeed, the Department of Education does not contest the appropriateness for the student (See Hearing: 185).
All of the student’s teachers and the student’s mother testified that is appropriate for the student because , the small classes and the experience of the teachers in working with students who have special needs. As previously stated, I find that the combination of the small mainstream classes taught by teachers who are versed in working with students who have learning issues and the are providing the student with an educational benefit.
In light of the above findings of fact I find that the parents have met their burden of demonstrating that the entire program is appropriate to meet the student’s needs in the least restrictive environment.
III.
The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.
I conclude that the equities support the parents. There is no evidence or testimony to suggest that the parents did not cooperate with the Department of Education in any way and Ms. did not contend otherwise. Indeed, the evidence showed that the parents were concerned about not have an IEP meeting scheduled and that they notified the CSE in February 2013 asking that a meeting be held and indicating that if an appropriate placement was not offered they intended to send the student to and seek reimbursement (Parents’ Ex. C).. They also advised the CSE in August that since no appropriate placement was offered they were re-enrolling the student at York (Parents’ Exs. C, D). In addition, the parents took out tuition insurance so that they would not lose any money if the Department of Education provided an appropriate placement (Parents’ Ex. B at 1).
* * *
In light of the above findings of fact and conclusions of law, I find that the Department of Education is required to reimburse the parents in the amount of $41,200.00 for the student’s tuition and $19,000.00 for the for the 2013-2014 school year (Parents’ Ex. B at 1).
ORDER
In light of the above findings of fact, it is hereby ordered that:
a) Within 30 days of receiving a copy of the tuition contract for the 2013- 2014 school year at , proof of payment by the parent and proof of the child’s attendance, the District is reimburse the parent in the amount of
$60,200.00. If the parents are still making periodic payments to the school the Department of Education is to reimburse the parents within 30 days of proof of each payment. Dated: December 16, 2013
RONA FEINBERG, ESQ.
Impartial Hearing Officer RF:gc
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
Department of Education:
The Department of Education did not submit any documents into evidence.
Parents:
Parents’ Exhibit A Report dated
August 14, 2013 11 pages
Parents’ Exhibit B Contract dated February 5, 2013, 4
pages
Parents’ Exhibit C Parent Letter to Committee on Special Education dated February 12,
2013 with Proof of Delivery, 4 pages
Parents’ Exhibit D Parent Letter to Committee on Special Education dated August 16,
2013 with Proof of Delivery, 2 pages
Parents’ Exhibit E Request dated
September 5, 2013, 5 pages
Parent’s Exhibit F Proof of Payment various dates, 6
pages
Hearing Officer
The hearing officer did not submit any Exhibits into evidence.
Footnotes
[2] Ms. made this request after the last witness finished her testimony and before Mr. gave his closing statement, and it is reflected in the hearing officer’s notes. However, there was a technological problem with the recording device and Ms. ’ request is not reflected in the transcript (See Hearing: 105).
[3] The parents purchased tuition insurance for the 2013-2014 school year so that if the Department of Education offered an appropriate placement for the student they would be able to get back the money that they had paid : 90).
[4] “Just over” 50% of the students at have learning issues but they are not all . In order to be in Jump Start a child has to have either an IEP or a evaluation (Stewart: 67-68).