New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 26, 2012

June 6, 2012

January 16, 2013

Record Close Date: March 1, 2013

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2012

Advocate — Student

Parents

CSE 7 Chairperson's Designee. — DOE

Assistant Principal, (via telephone) — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2012

Advocate — Student

Parents

Principal (via telephone) — Student

Teacher (via telephone) — Student

CSE Chairperson's Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2013

Advocate, — Student

Parents

CSE Chairperson's Designee — DOE

— DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # The hearing was conducted at the impartial hearing office, New York City Department of Education ,at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing through their educational advocate on April 19, 2011. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee, , and the parent was represented by their advocates, .

BACKGROUND

The student is currently ”. On April 19, 2011, the Committee on Special Education (CSE) met to discuss the educational needs to develop an individual educational program, (IEP) for the child, hereinafter referred to as “ ”. The CSE team classified the child as stated above, and recommended placement in a special class in a community school with a staffing ratio of and related services as follows: once a week for thirty minutes in a group of and twice a week for thirty minutes individually, twice a week for thirty minutes individually, and therapy three times a week for thirty minutes individually. Additionally, the team noted that the child would participate in state and local assessments without accommodations and to be promoted, based upon the “standard criteria”.

THE PARENT’S POSITION

The parent alleges that the annual goals as stated on the child’s IEP were not appropriate and do not adhere to the criteria in set forth in part 200.4 (2)(b)(c). More particularly, the parent maintained that the annual goals do not provide for measurement of progress and that the goals were ” utilizing the phrases such as “his/her”, raising the question as to who the goals were written for.

Additionally, the parent concedes that on or about July 14, 2011, she received a letter recommending that her child attend a special class and that she scheduled an appointment to observe the recommended program. While at the school, she determined that the placement would not be a good fit for her daughter, as students were not appropriately grouped. Lastly, the parent maintained that the unilateral placement of her daughter at special education program was appropriate and is seeking reimbursement.

THE DEPARTMENT’S POSITION

The DOE maintained that the child was properly classified; that the IEP set forth the appropriate goals and recommendations for her and that a final notice of recommendation (FNR) was issued to the parent, wherein a placement was offered and reasonably calculated to enable the child to obtain meaningful educational benefit.

THE DEPARTMENT’S CASE

Mr. , after being duly sworn stated that he maintains an Administrative License from the State/City of New York and is currently employed in District at Public School as the Assistant Principal for the building (T. 11). His duties include running of the school, being responsible for special education for grades 3, 4 and 5, along with a plethora of other responsibilities (T. 12). The witness described the special education program as containing ICT classes and self contained classes with student to teacher ratios of . The witness stated that all of the teachers are certified/licensed and receive formal and informal observations by either the principal or himself. Additionally, the school provides related services including occupational therapy, speech therapy, physical therapy and counseling (T. 13).

Mr. stated that he is not personally familiar with , however has reviewed her IEP for 2010/2011 school year. When comparing ’s IEP to other children’s IEPs in the proposed class, he believed that the school could provide a proper placement to meet her goals (T. 15). He described the recommended placement as a “self contained classroom” with one pedagogue / classroom teacher and one classroom professional with 12 students. At the beginning of the school year, the witness stated the teacher would read each child’s psycho educational evaluation in order to ascertain their strengths and weaknesses. As all instruction is differentiated based on the abilities of the students, the teacher would have to modify a lesson to suit the needs of all 12 students (T. 16). The witness stated that the school day ends at 2:40 pm; however there is additional help for general and or special education students wherein the students could avail themselves of extra academic services until 3:17pm (T. 17). Mr. described the school day as being dedicated to reading, math and other core English subjects such as science and social studies. He was not aware if the parent visited the recommended placement.

Upon cross examination of the witness, the witness was directed to the Final Notice of Recommendation (FNR) dated July 14, 2010 and stated that although a specific class was not designated that the child would have been offered a seat in the self contained class and believed that it was the only one in his building (T. 21).

was the teacher assigned to the class; the students were classified as emotionally disturbed and learning disabled. He was uncertain how many children were in the class at the beginning of the school year, but believed that at no time did the class ever have more than 9 students; that one student was classified as ‘emotionally disturbed” and had a crisis paraprofessional (T. 24).

Mr. stated that he was uncertain as to the range of levels for the children however, it was typical for children in a learning environment with a ratio of and would permit the children to be successful (T. 26). The witness stated that reading and math levels are determined by various factors, including electronic class data from lower levels and or assessments. However, as stated above, the teacher would have to look at the child’s psycho educational evaluation to see where the student stands in terms of reading and math levels (T. 28).

Upon further questioning of the witness, he stated that in all likelihood, as the children , they would be at least one year . With respect to a child classified as , he/she could be functioning at an appropriate academic level, however, requires the support of the smaller class setting, and could fit into a class. (T. 31). A crisis management paraprofessional would be necessary to facilitate a child’s needs and to keep that child on task (T. 32). He stated that there are children in the school with plans; he was unfamiliar with details and deferred to the school psychologist. He did not have specific recollection of disciplinary issues for the 2010/2011 school year, however conceded that there may be . (T. 33).

Mr. stated there are approximately 550-600 students at the school. He described a typical class schedule as providing for reading/math blocks, science, social studies, lunch, gym, dismissal and sometimes second dismissal (T. 34). He did not recall the schedule for the 2010/2011 school year, however the students in the class would transition to other areas including computer classes, physical education classes, science and art classes. He conceded that some of the teachers that worked with the children in subjects such as art, music or physical education do not have a special education license, however, they all were licensed in general education (T. 37).

Lastly, he stated that he believed that speech and language serves were provided on a “pull out basis”; generally when core subjects are not being presented. He also stated that his answer would be generally the same, for the other related service providers. In his opinion….”they do a pretty good job of making sure that the students in the school receive all the services that they are entitled too, I have never had a single complaint” (T.40). The witness stated the children all have mainstreaming opportunities such as “school wide enrichment model”, wherein the children in grades 3, 4 and 5 participate in programs, leave the classroom and go to other areas such as clubs (T. 41).

Ms. testified after being duly sworn, that she has a Masters Degree in Education with an advanced certification in School Psychology which enables her to serve as school psychologist for mono lingual English and for bilingual Spanish evaluations. She works at a satellite office of CSE and her responsibilities include conducting psycho educational evaluations, performing observations, outreach for the parents and or their advocates and authors functional behavioral assessments (FBA’s). (T. 46).

The witness recalled serving as the school on the CSE team to create an IEP for . The other attendees included the parent by telephone, Miss a general education teacher, a school social worker, the child’s special education teacher, a parent member and Ms. from EAS Advocates (T. 47). She further stated as per the IEP the student was classified as and recommended to attend a community school with a staff to student teacher ratio with related services including therapy, . She described the conference wherein the team reviewed the child’s progress, determined if the child continued to require services and finalize recommendations for services that would be necessary for the upcoming school year (T. 48)

Ms. stated that to the best of her recollection, there were lengthy general discussions but did not recall disagreements with the child’s’ classifications or recommendations. (T. 49). The witness was directed to page 6A of the IEP and noted that the goal stated that would improve decoding skills within one year and that it was an appropriate goal. This recommendation was based on the findings that the student’s current teacher provided wherein it was noted that the child was functioning at the end of kindergarten range (T. 51). Lastly, the witness stated that she is not involved in placement for the student and has input in only program recommendation (T. 51).

Upon cross examination of the witness, she stated the general education teacher was Ms. and that she was also present at the meeting. The team had a speech report, school report, an observation report and information from the child’s current teacher in order to conduct the conference (T. 53).

The witness was directed to the classroom observation, dated 2/2/10, and stated that although the observers name was not on the report, that it was her recollection that it was completed by Mr . (T. 54). The observation was in a reading class, and noted that the child’s attention span was “average” however, in another portion of the report, it stated that attention span was “very short” and needs consistent redirection” (T. 55).

The witness was thereafter referred to page 3A of the IEP which addresses academic needs and recommended program however, there was no specific recommendations for the child’s attention needs. On page 3B, it noted that the child was friendly, gets , and needs to be , and at times assignment is completed….”(T. 57). The witness stated that while ; the IEP stated management needs can be met in the recommended setting (T. 59).

Upon further questioning of the witness, she stated that parts of the IEP were created before the meeting, such as information provided by the therapist, however “the bulk of the IEP was generated as a result of the meeting” (T. 62). The academic goals were created and generated as a result of the teacher stated at the conference (T. 62). The witness also had recollection that were discussed in detail at the meeting, however, did not recall if the actual goals were read back as part of the meeting (T. 64).

Ms. stated that based on what the IEP noted, it would be her opinion, requires additional work on Additionally, she reiterated that the parent participated by phone, and that every effort is made to include them as much as possible at the meeting, as well as to read to them information which is in front of the team (T. 65).

The witness stated that although there weren’t updated occupational therapy evaluations, the related service was recommended based upon information from the teacher and parents. She had recollection that the parent requested additional occupational therapy however; a therapist didn’t provide justification for same (T. 70).

The witness testified that there were discussions regarding additional services to address the child’s attention issues, however it was found that it would be addressed in the class and that her needs could be met (T. 72).

Upon redirect examination, the witness stated that the parent would have had an opportunity at any time to provide the Department with justification and or updated information in terms of requesting additional services (T. 73). Furthermore, the parent at any time, can reopen the case, wherein it would be readdressed to increase or decrease related services (T. 74).

THE PARENT’S CASE

The parent testified that her child received early intervention services from the Department since she was two (2) years old. She attended the IEP meeting by phone and thereafter visited the recommended placement on September 16, 2010,. She spoke to the school and teacher and stated that the meeting lasted only 2 minutes

(T. 138). The witness stated that after visiting the school, she prepared her notes/observations (exhibit L and sent them to her Advocate the same day. the Parent described the educational progress that her daughter made and stated that her child’s problems were linked to a in a large class, not (T. 150). Lastly, the parent testified that she is separated from her husband and that he took care of finances. (T 152).

Ms. , testified that she has been as a teacher for the past three years and maintains certification in regular and special education. She described as a school for children with and that each classroom varies depending upon the special need of the students. (T. 84). She further stated that she is familiar with and that she was enrolled in her class for the 2010/2011 school year, along with 6 other children . Besides herself, there was a teacher assistant and one paraprofessional (T. 85).

The witness stated in describing the child, that with regards to reading, she didn’t have “letter-sound awareness” and needed to relearn all of her consonant sounds, was not blending words and had very little phonemic awareness at the beginning of the school year. With respect to math, the child was counting by “ones”, but was not adding or subtracting. She described as very friendly, interacted with her peers, albeit on a very

(T. 86). The witness stated that the children ranged in ages from 7 to 9, with similar academic functioning, subject to variation. (T. 87).

Ms. described a program referred to as “Money Math”, wherein the subject matter was taught with life skills, teaching the children to work with counting money

(T. 88). This program was to teach reading readiness and language arts with emphasis placed on encoding and decoding vocabulary building (T. 89). Additionally, there was a program referred to as “ ” wherein the children were provided with experiments including hands on involvement as opposed to lecture style. From 2:00 pm-2:15 pm, the children had snack time, either in the classroom or weather permitting, outdoors. From 2:15-3:00 pm, a mathematics block was provided wherein the children were broken up into smaller groups to work on math instruction in accordance with their needs. In the next period, social studies and citizenship was presented wherein the children were instructed about community life, holidays and news. Additionally, the children had “writing centers and fine motor development utilizing a book called “Handwriting without Peers” wherein there was instruction on the formation of letters.

(T. 89-90).

Upon further questioning of the witness, her recollection was that she taught her class from 11am-1pm on Fridays and from 12:30 pm TO 3:00 pm Monday through Thursday. All instruction provided by her, was academic as opposed to religious instruction. The witness stated in her opinion demonstrated progress during the 2010/2011 school year. More specifically, by the end of the year, the child was adding and subtracting proficiently, knew symbols, built up a “sight word vocabulary” and was able to decode short vowel words (T. 93/94).

Ms. stated that the continued to interact inappropriately at times, however there was improvement and she was able to speak on topic and participate in discussions and conversations (T. 95). She stated that although , she was able to learn due to the small class setting and by breaking out into even smaller groups in teaching academics. (T. 96).

The witness further testified that the school utilizes New York State Standards with modification. Academic progress is measured through formal and informal assessments.

Ms. stated that if there were 12 children in the classroom, she believed the child would be “ ” and could not learn at the same pace (T. 97). She reiterated that it was difficult to be brought in a larger group setting, (T. 98).

The witness testified that she also had an opportunity to review the IEP that was drafted by the Department in May 2010. She was directed to the goals on Page 6 wherein she stated that the goals were appropriate and the child has made significant progress in reaching the goals except that she has not achieved “drawing conclusions from materials that she reads”. She also stated that at least a few of the reading/writing goals were inappropriate; at “too high a level”. Upon further questioning of the witness, she stated that during class, there were times that she taught the small groups and other times her assistant worked with the children under her supervision.(T. 106).

Upon cross examination of the witness, she stated that the children receive a progress report as opposed to a report card, and the are addressed (T. 107).

The next witness to testify was , the . She stated that she is a licensed general education/special education teacher and was employed as a teacher and class coordinator at a school in Brooklyn for 20 years (T. 111). Her present duties include directing teachers, communicating with parents/students and communicating with the whole school/running the daily activities at the school (T. 112).

Ms. stated the school is the , and that there are opportunities for children from the program to be mainstreamed . She also stated the reason was situated in the school was to provide the children with an opportunity to mainstream as much as possible (T. 112).

Furthermore, she stated that runs an elementary and high school for girls and boys and attended the elementary school for 2010-2011 school year. During that year, there were four classes and six teachers in the elementary school. Lastly, the witness identified Exhibit “E” which was a ten day notice to the Department of Education dated August 18, 2010.

The parent provided copies of proof of consisting of two checks in the total sum of $750.00 which are in evidence.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C.section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v, 'Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd' ; FR Section 200-347. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5]a; CFR section 300.13 [a] [2][i], .200. 1.116 [a][2]; 8 NYCRR 200.6 [a][IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent's claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist-Foru v. Carter, 510U.S; 7 [1993]; Cerra v. Pawling Center. School Dist. 427::F. 3d 186, 192 ,[2d Cir. 2005] "reimbursement merely requires a district to; :belatedly pay expenses; that it should have paid all along and would have borne in the first-instance had developed a proper IEP';. : ;

Under the second criteria of the legal standard, the child's parent bears the burden _of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 9334; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were "proper under the act", (IDEA) (Buriingto~47-l U.S. at 370) i.e. that the private school-offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent's private placement is that it is “appropriate” not that it is-perfect (M.S. v Bd. Of Educ. 231 F. 3d 96, lQ5 [2d Cir. 2000] cert. denied 532 U.S. 9422001. The private school need not employ certified special education teachers, nor have its own IEP for the student.

The final criterion for an award of tuition reimbursement is that the petitioners' claim .is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F. .Supp. 2d 402; 4]6 [S.D.N.Y. 2005] affd2006 W]. 23341.2d cir, 2096); Frank G. -.459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. c: v. Voluntown Bd. Of Edu. 226 F. 3d 60,68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required). Such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions and like matters (Wolfe v Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept, of Educ. 736 F.-2ds at773, 801.-02[1st Cir...1984] aff';l471U.S 359 [1985]; with respect to equitable considerations, tuition 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 evaluation by the district or upon fining of unreasonableness with respect other-action taken by the parents 20 D.S.C. section 1412 (a)(lO)(C)(iii) Warren G. v.-Cumbetland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026) However, reimbursement may not be denied or reduced for failure to provide such 'notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a) (C) (iv) (I) (cc) (II) (bb)"

Parents maintain that the Department failed to offer a FAPE that was "reasonably calculated to meaningfully address ’s unique and individual needs, that the unilateral placement of amply conformed to the second circuit’s “reasonably calculated” test for Prong II and that there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III). Accordingly the Parents maintain that for the 2010-2011 they met the recognized test for Burlington/Carter reimbursement relief.

A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised o full evaluations an informed review where the parents is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer, 34 C.F.R. section 300.110.

Ms. stated that the Department offered an appropriate public education. She presented heard two witnesses, to wit, , who is a school psychologist, and Mr. who is the Assistant Principal in , at the proposed site in support the Departments position.

Ms. testified that the IEP team was duly constituted and that all members had an opportunity to participate. The team reviewed school/progress reports and observations.

Furthermore, all the evaluations were done within three years and that the goals that were developed would allow the child to make educational gains.

The second witness was Mr. , who was the Assistant Principal at the proposed site. He testified that there was an available class with ten students, one teacher, and one paraprofessional and that the related services were available, and would have met the child’s needs. Accordingly, it was argued that the Department provided a FAPE and satisfied prong I.

Regarding prong II, it is the Department’s position that IVDU is not an appropriate placement. The Department maintained that as per the testimony of Ms. , who is the teacher, her assistant is often the one teaching the group and that it was unclear how progress is measured. Ms. testified on page 124, that there is , and or therapy provided and these services were recommended on the IEP and they have been available in the recommended placement.

Regarding Prong III, the Department conceded that the Parent visited the school, however, when she was questioned regarding her visit, throughout her testimony, beginning on page 148, she kept indicating that it had to be very, very brief, that she needed to go to work and that did to have time to spend at the school. However, as she continued in her testimony, she stated that she felt as though the professionals in the school did not have the time.

Regarding finances, the Department maintained that there is ambiguity as per the testimony of the mother, the child’s father, is the one who is actually responsible for payment.

The Parent maintained that she requested the Impartial Hearing on April 19, 2011, alleging that her daughter was denied access to FAPE, through the actions of the CSE and that an appropriate placement for , for the 2010-2011 school year, was the self contained special education class at . During the 2010-2011 school year, the student attended the special education program. This program consisted of a special class, in a mainstream school, which was a highly structured environment that offered the student a small class size and individualized attention to address her academic deficits. An IEP meeting was held on May 12, 2010, at which the student was classified with impairment and the CSE recommended a special class with a student to staff ratio, and related services. The parent observed the recommended placement and did not find it appropriate for her child.

Parent’s Advocate stated that a FAPE is offered to a student when the Board of Education complies with the procedural requirements set forth in the IDEA, and the IEP developed by the CSE, through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Although school districts are not required to maximize the potential of students with disabilities, 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. The Parent asserts that the IEP drafted for her daughter is not reasonably calculated to provide meaningful benefit Mrs. , the school psychologist, testified at this hearing stating that she could not confirm that the CSE forwarded the parent a copy of all relevant documents being considered by the IEP team, prior to this meeting. It was argued that these are significant procedural flaws that rise to the level of a denial of FAPE. The Department relied on an unsigned observation; Ms. attempted to state that she knew who observed the student, however Ms. opined that the observation should not be given any weight and that the Department failed to meet its duty to properly evaluate the student.

Ms. maintained that the CSE is charged with affirmative duty to develop an IEP that accurately reflects the student’s special educational needs. Incumbent with the duties, the mandate that the student must be assessed in all areas of suspected disability, the evaluation must significantly comprehensive to identify all of the student’s special education and related service needs. Federal and state regulations require the student— that a child with a disability is fully re-evaluated at least once every three years, to determine the child’s individual needs, and continuing eligibility for special education. Parent’s advocate stated that the evidence in this matter establishes that the CSE did not meet its burden to appropriately evaluate the student. It was argued that Ms. testified vaguely about the documents the team reviewed before drafting the student’s IEP. Nothing in the record shows that the Department met its burden to evaluate and assess the student in all areas of suspected disability. Ms. replied, “I do not know” when asked a question concerning when the student had been evaluated prior to this IEP meeting (T. 60)

Federal and state law requires that the IEP team consider the student’s current evaluative data when making a program recommendation. In this case, the record does not reflect that there CSE met its obligation in this regard. Furthermore, the evaluation information must be made available to all those participating by telephone. Under the Application of a Child with a Disability Appeal No. 01-028. Testimony established in this case, the evaluative information was not shared in an appropriate manner, with the parent and her advocate who were participating by telephone. In addition, testimony by DOE witness, Ms. , indicated that the related service goals were received prior to the IEP meeting and not shared with the parent, which blocked parental participation the IEP process.

Furthermore, testimony by the Department witness, from the recommended school confirmed that placement is based only on the IEP as the assistant principal had never met the GL. Testimony concerning the class that would have been offered to her is a mere description of the class. The Department failed to satisfy the burden of showing the appropriateness of its IEP and its recommendation.

Regarding Prong II, the services provided by were appropriate for the student for the 2010-2011 school year. The student for the 2010/2011 school year. During the 2010/2011 school year , through a licensed, certified special education teacher, provided with personalized instruction, individually tailored to meet her educational needs, in a small class, located in a mainstream school, where there were opportunities for her to be mainstreamed. Her teachers, and the program director, were licensed and certified by New York State, as special education teachers. The program provided a modified curriculum based on the New York State Curriculum standards.

During the 2010/2011 school year, the student demonstrated progress was measured weekly, through teacher /supervisor observations and class tests. The special education teacher, Ms. testified that was a different child academically, at the end of the school year, and had improved in all academic areas.

Lastly, Ms. stated that ’s parents complied with every request for evaluation or assessment made, acted reasonably, and cooperated at every stage. Accordingly, the Prong III equities amply support the parents. Equitable considerations favor the parent. The parent has evidenced her cooperation with the Department. There are no equitable considerations that would preclude the parent’s request in this matter.

I will not repeat the details of evidence where but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all of the witnesses who testified at the .hearing. With respect 'to the issues presented at the-hearing, I make the following findings of fact: (1) that the Department failed to provide a FAPE for the reason as stated above by Ms. (2) that the Parents have met their burden in proving that the school ( ) that they have unilaterally chosen for is appropriate. The testimony from witnesses from provided detailed information about the school and the testimony was credible regarding the educational services provided to and explained how the services meet her identified needs. The Parents have established that the implemented educational program was appropriate and that the child is making meaningful educational progress as stated more particularly above. (3) Equitable considerations for the fact finder to consider in determining whether reimbursement and-related relief is appropriate "include the parties" compliance or non compliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters." See Application of a Child with a Disability Appeal NO.05: 9~7 (quoting Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp. 2d 530,533 (N.DE.N.Y. 2001), in turn citing Town of Burlington v. Dept. of Educ. 736 F. 2d 773, 801-02 (1st Ci9r. 1984) aff'd 471 U.S. 359 (1985).

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement." See supra, Appeal No. 05-087 (referencing Application of the-Board of Edu. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-Q49).

However, as I find that a portion of the school day was dedicated to religious instruction and that the school only provided services for ½ of the day on Fridays, I am reducing the amount of tuition to be paid by 15%. Dated: March 27, 2013 Original Decision Date Rendered: March 7, 2012

______________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GP:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 26, 2012

PARENT

A Impartial hearing request, dated 4/19/11, 4 pages B Program description, 1 page C IEP, dated 5/12/10, 18 pages D FNR, dated 7/15/10, 2 pages E Ten-Day Notice, dated 8/18/10, 2 pages F Student progress report, 2010/2011, 4 pages G Class schedule, 2010/2011, 1 page H Attendance record, 2010/2011, 1 page I Tuition contract, 2010/2011, 1 page J Notarized affidavit, 2010/2011, 1 page K Parents' tax return, 2 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 5/12/10, 18 pages 2 report, dated 1/26/10, 1 page 3 FNR w/comments, dated 7/14/10 & 10/28/10, 1 page 4 School report, dated 4/29/10, 1 page 5 Classroom observation, dated 2/2/10, 2 pages 6 CSE minutes, dated 5/12/10, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 6, 2012

PARENT

L Parent note to advocate, Undated, 2 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 16, 2013

PARENT

M Proof of Payment photocopies of two checks, February 2011, 2 pages

DEPARTMENT OF EDUCATION

None