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

Dates of Hearing: April 5, 2013

May 28, 2013

June 17, 2013

Actual Record Closed Date: July 12, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2013

Esq. Attorney — Parents

Mother — Parents

Dr. CSE Representative — DOE

Unit Coordinator — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013

Esq. Attorney — Parents

Mother — Parents

Principal — Parents

(via telephone)

Dr. CSE Representative — DOE

CSE-Special Education Teacher — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEAREDON JUNE 17, 2013

Esq. Attorney — Parents

Dr. CSE Representative — DOE

On April 5, 2013, May 28, 2013, and June 17, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated October 12, 2012. (Ex. A) I was appointed Impartial Hearing Officer on October 15, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on November 27, 2012, the initial hearing was scheduled for January 23, 2013, the first mutually available date for the parties, their witnesses and the hearing officer in view of Hurricane Sandy difficulties. (T. 5-6 , Ex. I)

The initial compliance date in this matter was December 26, 2012. The parties moved to extend the compliance date on several occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence, the lingering impact of Hurricane Sandy, a school bus strike resulting in witness unavailability and the preparation and consideration of closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions concerning my extensions of the compliance date were provided to the parties. (T.5-6, 11-12, 53, 109, 197-18 , Ex. II)

The current compliance date is July 24, 2013. The record closed on July 12, 2013, upon my receipt of the final transcript.

Background

The student was old at the beginning of the 2012-2013 school year and his disability classification is Emotional Disturbance. (Ex. 1) That classification is not in dispute. For the 2012-2013 school year he was unilaterally enrolled by his parents in ”). is a non-public special education school which has a religious program component and which is not certified by the New York State Education Department as a school with which a district may contract for the delivery of special education services. The student had attended for two prior years, since grade, pursuant to parental placement. (T, 133137)

The CSE had convened on March 6, 2012, to develop a program for the 20122013 school year (“the IEP”) and recommended a special class in a community school (12:1:1), speech/language therapy (“SL”) (two (2) 30 minute periods per week in a group of three(3)), occupational therapy (“OT”) (two (2) 30 minute periods per week ), counseling (two (2) 30 minute period per week and one (1) 30 minute period per week in a group of three (3)) and a one to one full time crisis management paraprofessional. (Ex. 1)

By letter received by the parent in mid-August 2012, the parent was informed as to the recommended placement. (Ex. B) By letter dated August 16, 2012, the parent informed the CSE that she objected to the program but would visit the school when it reopened in September. She stated that the student would be enrolled unless an appropriate IEP and placement was offered. (Ex. B)

The parents executed a contract on September 1, 2012, with a subsequent addendum executed September 5, 2012, by which the student would and receive various related services. (Ex. J

By letter dated September 11, 2012, the parent informed the CSE that she had visited the placement on September 10th and she specified various objections. (Ex. C)

By letter dated October 12, 2012, the instant impartial hearing request was filed.

Positions of the Parties

The parent asserts that the IEP is procedurally and substantively defective, Specific defects alleged relate to the goals, the composition of the CSE, the material on which the CSE relied, the nature of the program proposed and a lack of CSE information concerning the proposed placement. Further, the parent claims that the placement was not appropriate. The parent asserts that the unilateral placement is appropriate and that there are no equitable factors warranting the reduction or denial of DOE funding. The parent seeks prospective funding. (T. 203-214, Ex. A)

The DOE asserts that it provided a free, appropriate public education by issuance of a valid IEP and the offering of an appropriate placement. It claims that parent has failed to establish that the unilateral placement is appropriate. The DOE made no claims with regard to equitable considerations. (T. 214-216)

Cases Presented

A. Lists of documents submitted by the parties are appended.

B. DOE Witnesses

The DOE presented the testimony of two witnesses: AB, DOE special education teacher who participated in the March 6, 2012 CSE review; Unit coordinator of the recommended public school.

participated in the CSE review as a DOE special education teacher (“special education teacher assigned”) and is certified by New York State as a general education teacher and a special education teacher. (T. 58, Ex. 1) She last taught in 1996 and her experience included a class. (T. 59) Other participants were , as school and district representative, a parent member, the student’s special education teacher and the principal of . (T. 61, Ex. 1) It was determined that the student’s behaviors interfered with his learning in the classroom and he was classified with Emotional Disturbance. (T.

62) The team discussed the student’s strengths and weaknesses, obtained information from and the student’s classroom teacher, reviewed progress reports and recommended a program, with related services and a crisis management para. (T. 63, 74) At the review, the team developed an FBA and BIP. (T. 62)

had observed the student on February 28, 2012 when he was in a religious studies class of four with the teacher and a teacher’s assistant who was assigned as another student’s para. After the student was quizzed by the teacher on vocabulary words, he returned to his desk and spent time repairing the cards. When the teacher was turning to another activity the student and a classmate got into a lively discussion about who was better at what, “it got a little out of control” and the teacher decided not to continue the planned discussion and commenced a classroom basketball activity whereupon AB left the room. Her observation lasted about 30 minutes and she concluded that the class was very lively and the student “very active.” (T. 68-72, 101, Ex. 7) AB believed that the school psychologist was unlikely to have ever met this student. (T. 84)

His teacher described the student’s strengths in comprehension and memory but with weak word attack or decoding skills and the teacher and the school progress report put him, at that time in grade, about 1 ½ - 2 years behind. (T. 74, 78-79, Exs. 1, 4) The team was informed by the progress report and participant information, that the student was easily frustrated and annoyed and would sometimes “explode” with verbal or physical outbursts, often required additional prompts to follow directions, could not take responsibility, had difficulty with transitions and refused to comply in certain situations. The team was also informed that he did not like to be different. (T. 92, Ex. 1) An FBA and BIP were developed during the meeting, although perhaps typed later as the day went on, based upon information provided by the teacher, and the parent at the meeting in response to specific questions from the school psychologist and those documents were “mostly their words.”(T. 92-95, Exs. 2, 3) The CSE was informed had a behavior modification positive reinforcement system in the classroom and that the student responded well to that system. (T. 95)

Information concerning the student’s gross and fine motor skills came from the teacher, provider and the parent. (T. 79-80). Academic goals came from the school, and goals were provided by the providers in the progress report and counseling goals came from the school, although a counselor’s report was not included in the progress report and she did not know if one had been separately submitted. (T. 80, 104-105, Ex. 4) At the review, every goal was read and information provided at the meeting about the student’s current ability was considered and goals updated appropriately. (T. 89-91) Testing had been done two years before and the CSE had access to the reports at the meeting. (T. 90-91) The CSE was informed that the student had progressed at Beacon.

(T. 86, Ex. 4)

It was agreed that he would benefit from a small class and the continuation of related services although the representatives expressed disagreement with the program recommendation, asserting that a much smaller class size than that recommended by the CSE was required. (T. 63, 80, 85-86) assumed that the parent agreed with staff. (T. 87) It was discussed that a community school would be bigger than the student’s current program but that the related services, including the para, would be there to help him transition. (T. 97) The CSE considered a smaller class setting in District but rejected it as not appropriate because that was for students who were , requiring a 12 month setting, and there would be no exposure to typically developing students from which it was believed this student would benefit. (T. 81-82, 100) She noted that the student goes to a mainstream setting for lunch and other activities and assumed he did well there with typically developing peers. (T. 99) AB opined that the CSE recommendation was appropriate because it would give the student individual attention within a small group with a para to redirect, refocus and step in if “any situations” arise. (T. 82) AB stated that her expectation is that the student’s would all be functioning at approximately the same ability levels. (T. 106)

stated that the CSE was not informed about any errors in the IEP after it was distributed. (T. 105)

has been the IEP teacher at the recommended school for 10 years and she coordinates the special education unit there. (T. 18-19) She testified that:

The school has 1800 students and self-contained and ICT classes as well as SETSS and some students receive only related services. (T. 17, 38) During the 20122013 school year there was a class for each grade level served at the school - and (T.

18) The school has a very quiet atmosphere. (T. 27) For the grade class to which this student would have been assigned there were 11 students registered in September 2012 and none of classes were full. (T. 18, 30-31) The students in the grade class had similar functioning levels and various learning modalities are utilized but the grade core curriculum is followed. (T. 32, 43) Although the class is not a “disruptive room” there may be one crisis para assigned. (T.40-41) For a student with an FBA/BIP there is a lot of communication and coordination between staff to implement, evaluate and, if necessary, modify it. (T. 33, 42) A variety of behavior plans are utilized at the school, some individual and some class. (T. 46)

Three different teachers teach subject area classes (although in the same classroom), there is a homeroom teacher as well and all hold special education certifications. (T. 18-19, 39) Various have supervisory responsibilities for special education staff. (T. 19-20) Deans are available to respond to teacher requests for assistance and maintain order and help out with that might occur. (T. 20-21) The student’s related service mandates could have been satisfied at the school by appropriately certified providers who are supervised. (T. 21-23) Professional development is provided and paras receive training in behavior management techniques.

(T. 45) Differentiated instruction is provided within the classes by having each teacher evaluate the student at the beginning of the year and grouping is in accordance with student needs. (T 25-26) There are a variety of extracurricular activities available. (T.

27) Parent training is provided and communication is maintained. (T. 27) Mainstreaming opportunities are available at lunch (about 600 7th graders), gym (up to a maximum of 50 students) and enrichment and computer classes (probably about 25 students. (T. 29, 3839)

She opined that the school could meet the student’s needs but acknowledged she had no knowledge of the student other than what was contained in Exhibits 1-6. (T. 34) JG did not provide the parent with a tour and does not know whether she was told the class was full. (T. 36) There was a student who had been enrolled in the school but was not at that time due to cancer treatment but seats are not held. (T. 36-37)

C. Parent Witnesses

The parent presented the testimony of two witnesses: , the Beacon principal; the student’s mother (“the parent”).

GG, who is certified as a special education teacher, monitors the student’s progress and communicates with the student’s teachers concerning him. (T. 142, 146) She described the student as refusing to take responsibility for his actions and blames others. (T. 146-147 162) At the March 2012 review, the CSE was informed about the above opinion that the student needed a lot of teacher attention, the immediate addressing of his need in order to make academic progress and a small class. (T. 148-

149) typically submits reports it generates to the CSE. (T. 149) stated that a counseling report would have been included in the IEP (Ex. 4) sent to the CSE and she had no explanation for its absence in the exhibit. (T. 189-190) The teacher and believed that to function the student needs a smaller class than the program recommended by the CSE and so stated at the review but acknowledged that it has been “quite a few years” since she has seen a class. (T. 150, 168, 182) Further, the CSE was informed of staff’s opinion that the addition of a para would, if anything, be a hindrance because of the student’s opposition and the larger class size would be a overwhelming. (T. 151, 191-

192) GG testified that goals were not discussed at all. (T. 152) However, upon review of the IEP several months later she concluded that the CSE had merely repeated goals sent them by Beacon which would not be appropriate for the student for the next year because some had been mastered. (T. 177-178) Further, with regard to the placement proposed she opined that the student would in a very large setting. (T. 169)

With regard to the testified that in the 2012-2013 school year there were 39 student enrolled who generally had social, and may have some learning difficulties. (T.

144) The school is housed in its own stand-alone building but is associated with general education school, , across the street where the students eat lunch with the general population but at a separate table with , and use gym facilities. (T. 184-188, 195) Mainstreaming opportunities in subject classes are available for students who are able to participate. (T. 185-186) She stated that 36 % of the student’s time is spent on religious subjects which and that Hebrew reading and writing is not included in this student’s instructional program. (T. 169-171) She testified that the providers are employees but she had no knowledge as to the basis for the fee rate specified in the tuition agreement.

(T. 190-191)

Classes range from 4 to 8 students, but generally 6, with a teacher and a teaching assistant depending upon class size. (T. 145) This student’s class had 4 students (between 12 and 13) with similar needs, one teacher and a para for one of the students.

(T. 152, 153) The student’s language arts teacher is a certified special education teacher.

(T. 153) His math, science and history teacher has a bachelor’s degree, is pursuing a masters in special education but has no State teaching certification and is supervised by

GG. (T.153, 179-182) A behavior management system enables the student to function and progress and his behaviors have improved. (T. 154, 163-164,166, 173) The plan is a class plan with individualized goals and data is recorded daily. (T. 173, 195-196) The student receives formal counseling three time per week in 30 minute sessions from the social worker who is staff member and who is available during the day as well if the student needs her. (T. 164-165, 187) are each provided twice weekly for 30 minutes per sesion. (T. 166, 187) Staff meet routinely to review progress and ensure a comprehensive approach. (T. 166-167)

For reading the student is in a group of three and is working on a program to increase fluency. (T. 155) He is working on reading goals specified in the IEP and is making progress as demonstrated by moving to a higher level as assessed by Fountas and Pinnell and being better able to correct himself. (T. 156-157, Ex. E) For math instruction, in a group of 4, the series is used but the teacher breaks down the concept into smaller portions in view of the student’s specific math difficulties. (T. 158) The student is currently at the sixth grade level. (T. 159) He is working on math goals specified in the IEP and has made progress as measured by teacher created testes. (T. 159-160) TOWERR is the writing program used, in a group of two, (T. 161) The writing levels of the class range between grade. (T. 161) Reading and math programs are aligned with New York State common core standards. (T. 174) Beacon does not utilize a formal scale to assess students at the beginning of the school year. (T. 173, 182)

The parent described the student as loving, caring and physically very strong but with a tremendous amount of behavioral issues with diagnoses of and unspecified mood disorder and violent at times. (T. 111, 131) He has had an IEP since about 3-4 years old.

(T. 112) He has been and currently is , . (T. 131-132). Throughout the years he had become more and more aggressive. (T. 115) The student had and a until mid-third grade when the parent concluded that he could not be in a mainstream school (in a class of probably 26-27 students) because , , that he was , teachers and others notwithstanding the presence of a one to one para (T. 112-113, 114, 132-133) The student did not attend school from February through June of his third grade year and the para provided instruction during that period. (T. 112) He for his in a class thereafter was in classes of 4-5 and the 2012-2013 school year is his third year at that school. (T. 133-137)

The parent stated that at the March 2012 review she was asked questions about his background about which she provided information concerning his past experience including the experience when he had a para, and the development of a program for the 2012-2013 school year was the subject of long discussion. (T. 114, 116) GG, who participated by phone, had concerns that would not be appropriate because there would be too many children and the parent agreed. (T. 117) The parent believed that the addition of a para would not work since it had been ineffective during on and off trials since pre-school. (T. 118) She stated that the student was aware that the para was assigned to him and had on occasion indicated that he felt singled out and uncomfortable because of it. (T. 119)

The parent testified that she visited the recommended school in September after a phone call in which she was told that a student with cancer was expected to be the 12th student but would not be returning at the beginning of the school year and that she should come down to the school. (T. 120-121) An informed her about the ill student only that it would be dealt with and not to worry about it. (T. 121-122) She was taken on a tour of the school was told it had 1800 students and considered it tremendous. (T. 122-123) She was informed that there were several classifications in the class the student would attend but none and that no children were . (T. 124) The parent stated that none of the children in the class she observed appeared restless during class as her son did. (T. 125) She wrote to the CSE about her concerns but received no response. (T. 125-126) The parent stated that she would have accepted an appropriate placement from the DOE notwithstanding having signed a contract . (T. 126, Ex. J) Total charges for the student’s educational program (tuition and related services) were of $49,000 which she understands that she is liable for and has been paying down as she is able. (T. 127, , Exs. J, L) Her family income for 2011 was approximately $33,000. (T. 127, Ex. M)

The parent stated that the student has in the current school year academically in both math and reading,, . (T. 128-130) This year she has received no reports of having to physically restrained but she was asked to take him home . (T. 129-130)

Findings of Fact and Conclusions of Law

The information specified in the background section is included herein as Findings of Fact. Further factual findings are stated below. Record references not specified below are stated above.

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

was the sole DOE witness with regard to the development of the IEP. I find her testimony credible and substantially undisputed. The evidence shows that the CSE reviewed reports provided by Beacon as well as information provided by the parent and school staff and records from prior reviews in developing the IEP. conducted an observation which although truncated did provide certain information concerning the student’s behavior in class. The CSE developed an FBA/BIP based upon information provided by the participants and discussion at the meeting and the parent has not contested the appropriateness of those documents. It is undisputed that the parent had the opportunity for meaningful participation at the review and that staff had a full opportunity to express their views. I note that evidence shows that s description of the student is not inconsistent with that stated and that the IEP, FBA and BIP reflect that.

With regard to the parent’s claim of defect arising from the lack of recent teaching experience of AB and/or the fact that there was no CSE special education teacher who might implement the IEP at the review, I note that present at the review were the student’s then current special education teacher as well , who although principal of this very small school, was a special education teacher and familiar with this student. The CSE also considered reports from other teachers. Although there was no special education teacher present at the review who could have personally implemented the proposed IEP, I do not find that a procedural violation, here were the student’s then current special education teacher was present. Further, even were I to conclude that the mere fact that that teacher was from a private school negated the appropriateness of her participation as the mandated special education teacher and therefore that a procedural violation occurred, I find that in the circumstances here that error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.

With regard to the parent’s claims concerning the goals, I find credible the testimony of AB that the goals were discussed. Her claim that they were substantially based upon the information provided by the instructional staff and providers was undisputed and supported by the Beacon IEP. (Ex. 4) Moreover, with regard to the claim that the some skills had been mastered at the time of the review and that therefore goals/objectives were not appropriate at the time of the review or for the 2012-2013 school year, I note that none of those allegedly mastered goals has been identified and there was no claim that they were significant. The evidence is persuasive that the CSE based the goals upon information provided , that they were in accordance with the student’s needs and abilities and that they were generally discussed. I find no procedural defect in connection with the goals. Appeal No. 11-040.

The DOE does not dispute that there were no persons at the CSE knowledgeable about the specific placement and how the IEP would be implemented there. However, it is well established that that is not required. R.E. v. New York City Dep’t of Educ., 694 F. 2d. 167 (2d Cir 2012). The school psychologist also served as district representative and the evidence shows that she had five years experience on the CSE team and that the proposed program was discussed and explained. (T. 61, 96-97) I find no procedural defect arising from the inadequate knowledge of or communication about the proposed program by the CSE.

However, the parent also asserts that the program was substantively defective. Although testified that prior records were available, they are not in the record and have not been identified or described. However, it is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.

Moreover, in this matter, the only CSE team member with personal information about the student indicated was who conducted a truncated and limited observation which I note was not inconsistent with the testimony of GG and the parent. (Ex. 7) But for that, the sole information about this student in the record relied upon by the CSE was provided by Beacon whose staff members all disagreed with the CSE’s recommendation and so stated at the review. The evidence shows that the CSE relied virtually exclusively upon the input, documentary and through the participation at the hearing, from Beacon staff to determine the student’s current levels and needs and to evaluate progress which, I conclude, indicates that the CSE concluded that that contribution was reliable. The fact that opined that always believes that a DOE program is insufficiently intensive, even if true, is not a basis for concluding that she is incorrect in this case. Adequate evaluative material to support the CSE’s rejection staff opinion has been provided.

I find the testimony of credible and persuasive with regard to the student’s he would have notwithstanding the addition of a paraprofessional. While the student’s prior experience with a para was several years ago and in a large mainstream class, in contrast to a special education class, the testimony of GG and the parent concerning his need to not feel different and his adverse response when that is not the case was persuasive and indeed noted and adopted by the CSE in the IEP. (Ex. 1) Although the student’s are currently , it is noteworthy that pined that that check . Absent a program appropriate in , which the DOE has not established it recommended, there is no evidence in the record indicating that he can be expected to make meaningful educational gains.

I conclude, based upon the foregoing that the DOE had failed to establish that its recommended program was reasonably calculated to enable this student to make meaningful educational gains.

Accordingly, I do not address the parent’s other claims concerning the DOE’s recommended placement and program except to note that I find credible the DOE’s claim that there was a placement available and that that was not rebutted by the parent in testimony in this proceeding. Further, various claims concerning the class composition and the school program, among other things, are speculative. R.E. v. NYC Dep’t of Education, 694 F. 2d 167 (2d Cir. 2012).

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I conclude that the parent has established unilaterally provided by the parent is appropriate for this student.

The evidence shows that the instructional methods and curriculum are aligned with the specifications of the IEP. Classroom instruction incorporates the specific needs and goals of their students. His teachers for academic subjects are certified special educators or supervised by such. Staffing ratios provide the opportunity for one to one attention and support this student requires to control his behaviors, participate and make academic gains. are provided, a behavior plan individualized for this student is utilized and data is collected and recorded. Individual formal counseling is provided staff member who is available during the day as well if the student needs her. Related service providers are appropriately licensed/certified. (Exs. G, H, I) Grouping for academic and other subjects is appropriate in view of this student’s needs and mainstream opportunities are available. The student is assessed routinely by a variety of assessment instruments, including those provided in curriculum material and he has progressed academically as well as social/emotionally. Staff meet routinely and a comprehensive approach is ensured. Parental involvement is facilitated.

The sole claim made by the DOE with regard to the program provided is that various formal standardized assessments are not utilized. However, I credit the testimony concerning progress. Further, I note that progress is not required to be established in order to demonstrate a program is appropriate but rather is only one of many factors to consider when determining whether or not a parent’s program is reasonably calculated to enable a student to make meaningful educational gains. Gagliardo.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.

In the instant matter, the DOE made no claim that reimbursement should be barred or limited. Thus the DOE does not assert that the parent failed to cooperate with the CSE in the development of the IEP and, further, I find that there is no evidence to support such a claim. Rather, the evidence shows that she participated and communicated her objections then and thereafter to the program and later about the school. Moreover, a parent’s preference for a private school, should that be established, and even the signing of a contract prior to an IEP review, is not dispositive of a claim for DOE payment. Appeal No. 05-087.

I find no basis for the denial or limitation of DOE payment but for a reduction of 36% of the tuition charged as a consequence of the credible testimony that that is the portion of the program devoted to religious and religion related instruction. (T. 169-171, Ex. D) Further, the parent has established financial inability to pay the full tuition and seek reimbursement and therefore has established a right to prospective payment. (Exs. J, K, L, M)

ORDER

The student is entitled to DOE funding for , including related services, for the 2012-2013 school year reduced by 36%. The DOE shall immediately reimburse the parent for payments made and directly pay the balance of the entitlement upon proof of delivery of the services and that the base tuition is ’s customary charge. Dated: July 26, 2013

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 NYC DOE IEP, 3/6/12, 15 pgs. Department of Education

2 FBA, 3/6/12, 3 pgs. Department of Education

3 BIP, 3/6/12, 2 pgs. Department of Education

4 IEP, December 2011, 10 pgs. Department of Education

5 Notice of Recommended Placement, 3/6/12, 2 pgs. Department of Education

6 Notice of Request for Observation, 1/3/12, 1 pg. Department of Education

7 Observation, 2/28/12, 1 pg. Department of Education

A Impartial Hearing Request, 10/12/12, 2 pgs. Parent

B Parent Let. to CSE and Fax confirm, 8/16/12, 2 pgs. Parent

C Parent Let. To CSE and Fax confirm, 9/11/12, 2 pgs. Parent

D Class Schedule, 2012-2013, 1 pg. Parent

E IEP, 2012-2013,7 pgs. Parent

F Attendance Record, 1/31/13, 1 pg. Parent

G Affidavit and license, 11/12/12, 2 pgs. Parent

H Social Worker, affidavit and lic, 11/12/12, 2 pgs. Parent

I affidavit and license, 11/14/12, 2 pgs. Parent

J Contract and addendum, 9/1/12, 2 pgs. Parent

K Affidavit of Payment, 4/5/13, 1 pg. Parent

L Proof of Payment, various dates, 5 pgs. Parent

M Tax returns, 2011,2 pgs. Parent

I Prehearing Conf. Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer