Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 3, 2013

July 2, 2013

Actual Record Closed Date: July 19, 2013

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2013

Representative Department of Education

Advocate — Parents

(via telephone)

Mother, Teacher Department

(via telephone) of Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY2, 2012

Representative Department of Education

Advocate — Parents

(via telephone)

Mother Department of

(via telephone) Education

Parents

(via telephone)

Administrator — Parents

(via telephone)

INTRODUCTION

On June 23, 2013 and July 2, 2013 I conducted 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 -aged child, (“the child”). The hearing commenced at 12:00 p.m. and 10:00 a.m. respectively and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

At the beginning of the 2011-2012 school year the child, who was classified as having “ ,” was years old and began her final year of school at , where she was placed by her parent. In a letter dated November 26, 2012, the child’s mother (“ ”), by her advocate , filed a due process request for an impartial hearing (“Request”). In that request the parent maintained that for several reasons the Department of Education did not offer the child a Free and Appropriate Public Education (“FAPE”) for the 20112012 school year. Ms. asked that the Department of Education be ordered to pay the school for the parent’s tuition debt for that year and reimburse her for any money that was paid toward that tuition. It also requested that the Department of Education reimburse for the related services mandated on the child’s Individualized Education Program (“IEP”) for that school year (Parent’ Ex. A at 3).

The Department of Education did not submit a response to the parent’s hearing request and both parties declined the opportunity to present closing arguments at the conclusion of the hearing.

I was appointed as the Impartial Hearing Officer on November 26, 2012. After the parties waived the remainder of the resolution period the compliance date was recalculated to January 31, 2013. On December 18, 2012 the compliance date was extended to March 2, 2013 at the request of both parties for the availability of witnesses and a hearing was scheduled for February 28, 2013. On February 26, 2013 pursuant to a request by the parent and without objection by the District the compliance date was extended to April 3, 2013 due to the medical emergency of the child’s advocate; a hearing was scheduled for March 6, 2013. On March 11, 2013 pursuant to a request by both parties the compliance date was extended to May 3, 2013 due to the serious illness of the child’s advocate; a hearing was scheduled for May 2, 2013. On April 30, 2013 pursuant to a request by the parent and without objection by the District the compliance date was extended to June 2, 2013 due to the availability of witnesses; a control date was scheduled for May 6, 2013. On May 6, 2013, pursuant to a request by the parent and without objection by the District the compliance date was extended to July 2, 2013 due to the availability of witness; a hearing was scheduled for June 3, 2013. At the conclusion of the hearing on that date another hearing date was scheduled for July 2, 2013. At the conclusion of hearing on that date pursuant to a request by both parties the compliance date was extended to August 1, 2013 for the receipt of the transcript and the issuance of a Decision and Order.

All of the extensions in this case were 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 PARENT’ POSITION

The parent was represented at the hearing by her advocate, , who appeared by telephone. The parent alleged that the Department of Education did not provide the child with a FAPE for the 2011-2012 school year, that was an appropriate placement for the child and that the equities support the parent.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education was represented by . Ms. maintained that the Department of Education provided the child with a FAPE for the 2011-2012 school year, that was not appropriate for the child and that the equities of the case favor the Department of Education.

FINDINGS OF FACT

The Department of Education’s Case

has New York State certification in education and in grades through . He has state advanced certificates as a supervisor, an administrator and a school district leader. He currently works at (“ ”) as part of the IEP team ( : 10). has a Degree in education and is enrolled in a program for . She has certification in , , school district leader and school building leader ( : 32-33).

conducted an IEP meeting for the child on June 6, 2011 and participated as the District Representative ( : 11). The child was classified as having “ ” and the recommended program was a : class with the related services of an a week for minutes, a week for minutes and a week for minutes ( : 12-13: DOE Ex. 1 at 1, 11 ). The parent’s advocate, , disagreed with the : program on the ground that it would and would ( : 13). Mr. believed the : program was appropriate for the child. The team explained to Ms. and that the only other school class was a which was for students and thus would be too restrictive for the child, as would a District class ( : 13-14, 19-20).1 An integrated - class (“ ”) would not have been appropriate because the child was and years and required . There was no school class and thus the only option was the class ( : 20-21).

The IEP meeting was an annual review. The child was not prior to the IEP meeting but there had been a classroom observation. On May 19, 2013, ,a for the Department of Education, observed the child in her English class. noted in her that the child was able to follow the lesson but “ ” had to be “ ” (DOE Ex. 2).

Mr. was not sure whether the Department of Education is permitted to a child for an annual review if they believe an annual review is necessary ( : 21-22). Mr. did not recollect whether any documents from the child’s file were considered at the meeting ( : 22-23). Upon reviewing the IEP Mr. testified that it “looks like the only thing [the IEP team] went by was ’s testimony, verbal responses at the conference” in which he indicated the child’s reading and math levels ( : 23). Mr. did not write the minutes of the IEP meeting and he did not know who wrote the minutes. He had “no idea” what the comment, “results of testing were explained,” in those minutes referred to ( : 23-24).

Citations to pages 18-24 refer to Ms. ’s cross-examination of Mr. .

Mr. believed that the goals on the child’s IEP were appropriate for the child and he did not recall any disagreements regarding the goals ( : 16).

is the of the department at . She started at the school in February 2012 and thus was not there at the beginning of the 2011-2012 school year ( : 35). There are to classes on each grade level at the school. Ms. did not know how many students were enrolled in the class in September 2011 ( : 38-39).2

The school’s classes include a program. The school has the related services of , , and . When she began at the school in February 2012 the class had students with IEPs similar to that of the child ( : 35-36). Had the child attended the school in September 2011 she would have been programmed into her classes according to her needs as indicated on her transcripts and her IEP ( : 42-43). Ms. did not know how the school’s accommodations for on the child’s IEP would have been implemented in September 2011 ( : 43-44; DOE Ex. 1 at 11). When she began in February the teachers continued implementing in their classrooms as they had been doing prior to her arrival ( : 45-46).

The teachers at use differentiated instruction that is dependent on the needs of the students in each class ( : 36-37). Based on Ms. ’s knowledge of the school she believed that it would have been able to provide a the child with a FAPE ( : 38). The Parent’s Case is the child’s mother ( : 75). has a Degree in and a Degree in . He has New York State certification in ( : 50). is the administrator at ( : 108-109). At the time of the impartial hearing the child was years-old. was “not sure” On In June 6, 2011 and participated in the child’s IEP meeting by telephone ( : 135; : 64; DOE Ex. 1 at 2). agreed with the information on the IEP regarding the child’s present levels of performance but he disagreed with some of the goals. In particular, he opined that several goals in which measurement was indicated as “observation” could not, in fact, be measured by observation but rather could only be determined by having a discussion with the child ( : 65-71, 95-99). He also opined that the math goal on the IEP regarding was not relevant for the child. Rather, he stated that a relevant goal would have been to have her apply computation in consumer math situations since the ability to apply math to consumer situations is “critical” ( : 71-72, 101-102).

The IEP recommended a program for the child ( : 124, 135-136). did not agree with the recommendation on the IEP because there were children in one class. did not think that the child would have “ ” in that environment because she gets “ ”( : 125-126). believed that class size was an important factor in the child’s education. He noted that even with only students in her class the child had to be . A class would her ability to attend and to in the classroom ( : 62-63).

testified that she visited the recommended school but did not recall when she did so ( : 130). However, her 10-day Notice Letter indicates that she was not able to visit the school because it was closed for the summer. When asked about that letter testified that it was “possibl[e]” that she did not visit the school and she stated that she called the school but “could not get through to them” as “nobody picked up.” She did not call the phone number on the FNR. Upon further questioning testified that she reached the school by telephone at the beginning of September and was told that the program had “no room” for the child; she did not recall any information that she provided to the school at that time ( : 130-131, 136-138). She also indicated that she did not visit the proposed placement because of the ( : 132).

testified that she decided to send the child to either after she received the IEP in June and saw that the recommendation was not appropriate or when she received the FNR dated June 28, 2011 ( : 131-132). She did not recall when she signed contract with or when she paid the $100.00 locker fee ( : 132-133).

is the of , a school certified by the New York State Education Department as a school “with the proviso” that it has “permission to modify the curriculum as needed” ( : 52-53, 76).3 The school is for underachieving students. supervises “every facet” of the program. When a student applies for admission screens each

2

Citations to pages 38-44 refer to Ms. cross-examination of Ms. .

Citations to pages 76-106 refer to Ms. . cross-examination of . girl. The process includes about two hours of testing after which analyzes the results and determines whether the child is a candidate for the program. If so, he sets up a curriculum suitable to the child’s needs and implements it with the child’s teacher. The teachers at the school are required to follow that curriculum and do not have the authority to change the program; rather, the teachers’ only responsibility is to implement the curriculum ( : 52). He meets with the teachers on a regular basis and he guides and trains them. He also meets with the students ( : 52, 60).

The school notifies teachers of workshops and different types of training programs. Although attendance is not mandatory some teachers attend some of the programs ( : 54).

hired all of the teachers but he did not know whether all or some of them had state certification. However, all of the teachers have attended “ ” which is a school program attended by students whose families do not send them to because of “ ” ( : 77-78, 81-82). did not know the particular curriculum at the specific that the teachers attended or whether any of the teachers went on to ( : 78-79, 92-93).

Each week the teachers are required to write a report about what was covered in all of the subjects and to make specific comments and impressions about each of the students. discusses with the teachers any issues that arose during the week, what the problems were and how they were handled. They also discuss different approaches for students who were having difficulty in a particular area. At times meets with a particular student for a “full three periods” to analyze how the student is learning so that he can advise the teacher on how to proceed ( : 61). During the 2011-2012 school year met with the child several times about her emotional outbursts and certain personal “home issues” that she was struggling with ( : 62).

For the 2011-2012 school year the age range of the students in the school was from to years-old and the grades included to school ( : 53). That year the school program worked toward the (“ ”) curriculum and it also followed the common core standards ( : 53-54).

There were students in the child’s class during the 2011-2012 school year and believed the students were between and years-old. Some of the students were functioning on a school level while others, such as the child, were on a school level. The class was “ ” for many of the child’s subjects and at those times she was with only or ( : 103-104).

created a program for the child for the 2011-2012 school year. At that time the child was functioning on a to grade level in many of the basis skills such as reading and math, so that she was “approximately plus years .” The child was “ ” and had . There were times that she would have the classroom and the hallways The child’s needs had to be “ ” or she would in the classroom. Thus, the component of her program was “extremely critical to her education.” The child received and spoke to her on an ongoing basis. The child also had “significant” . She would “ ” in the classroom and there was a need to “ ”( : 55-56).

The child’s schedule for the 2011-2012 school year (Parent’s Ex. H) included the academic subjects of literature, European history, American history, science, , current events, computers and consumer math (including ratio, proportions and percentages). There were courses for , which included, for example, preparing and , , how to and do ( : 58, 93-94, 105-105). There was also a class that was - and addressed things such as how to prepare a , how to respond to a and how to ( : 58-59). A” ” was a class in which different classes met together for a variety of activities. The goal of that class was for the to interact and cooperate with each other ( : 60, 91-92; Parent’s Ex. H). The methodology used in the classes depended on each individual student ( : 105).

The child studied as a language, not a subject. However, there were approximately hours of instruction each week that included daily , study and and . The school day ran from 9:00 a.m. to 4:40 p.m. on Monday through Thursday and from 9:00 a.m. to 12:00 p.m. on Fridays ( : 83-85, 106: Parent’s Ex. H).

did not recall which particular teachers the child had for each subject during the 2011-2012 school year ( : 81-89). However, he did recall that speech was taught by the teacher; the speech class was about making speeches in front of the class and was not speech therapy ( : 89-90). The child’s is a licensed ( : 90-91). Although the child’s IEP mandated and the school did not provide those related services for the child ( : 102; : 127-128). believed that the child would have benefited from and and ( : 135).

The child showed progress during the 2011-2012 school year. The programs in the child’s class were “ ” so that it was possible to determine her progress from the beginning of the school year to any point in time ( : 63-64, 93, 105). The child in her reading, math and writing sequences. By the end of the year she had “fairly clear ideas” of what she wanted to do school and was “more ” and “more ” than she had been before ( : 72).

The child graduated in June 2012 ( : 57). She was exposed to the curriculum but received a ( : 88).

believed that the child needed during the 2011-2012 school year because the child had to work on her skills and “ that came up” ( : 127). The child had some private through the for “awhile” but that was given only during the school day. As a result the child missed too much school so had to discontinue that , which was paid for by insurance ( : 139-141); DOE Ex. 3). The related service provider that provided the child’s counseling at school during the 2011-2012 school year does not accept ’s insurance ( : 129). 4 considered getting a different provider who accepted her insurance but those providers would have come after school and the child had long hours in school and had to do homework when she came home ( : 129-130). The child’s provided the during the school day ( : 130).

is the at ( : 109). The child’s tuition for the 2011-2012 school year was $30,000.00 which did not include the cost of the sessions. The contract for that school year had an “addendum” for a Related Service Authorization (“RSA”) for counseling as mandated on the child’s IEP ( : 110, 117, 119; Parent’s Ex. D). The counselor, who is a , was to get paid as an independent contractor through the school and the school was responsible for paying her. However, the school did not have the money to “lay out” and the provider has not yet been paid even though she provided counseling to the child during the 2011-2012 school year ( : 120-121; Parent’s Ex. F). The Addendum to the school contract provides that if the Department of Education does not provide the child with the related service of the fee will be $55.00 per session in addition to the tuition (Parent’s Ex. D at 2). The parents did not pay any tuition for the 2011-2012 school year ( : 119).

Ms. signature is on the contract but there is no date and she did not recall when she signed the contract or whether was present when she signed it ( : 112). 5 did pay the $100.00 book fee and the $550.00 “GO” fee. The child attended the school for four years and each year paid those fees over time ( : 112-114). did not pay the tuition for the years prior to 2011-2012. Rather, the Department of Education paid the tuition after “sued” for reimbursement ( : 115).

Ms. testified that the school did not give scholarships or financial aid for the 2011-2012 school year. However, she later testified that the child received a scholarship for the portion of the tuition which was approximately $7,000.00 ( : 117-119).

has told Ms. that she is “hoping” that the Department of Education will cover the cost of the tuition and the , otherwise, will be “fully responsible” ( : 110-111, 116, 120-121). The school has never had take legal action against anyone for payment but if does not prevail the impartial hearing and if is unwilling or unable to pay, the school will take “all legal action” to make sure that the tuition is paid ( : 121-122).

is a single parent and she has . Before that she worked as a . Her husband is remarried and claims the child as a dependent on his tax return. The adjusted gross income as indicated on that tax return is $ ( : 124, 128-129, 133); Parent’s Ex. J). knows that she owes a debt to the school for the child’s tuition and that she would be expected to pay for the child’s ( : 126). If she does not prevail at the impartial hearing she will not be able to pay the school unless she gets a loan ( : 127).

did not recall when she signed the contract with or when the school told her about the $7,000.00 scholarship for the portion of the tuition; she did not expect to get that scholarship ( : 134).

CONCLUSIONS OF LAW AND DECISION

4

Citations to pages 129-144 refer to Ms. cross-examination of .

Citations to pages 112-120 refer to Ms. cross-examination of Ms. .

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 parent's 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.

This Decision is based on the findings of fact gleaned from 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. Unless otherwise indicated below, I credit the testimony of the witnesses who appeared at the hearing.

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 Education., 694 F.3d 167, 175 (2nd Cir. 2012).

I find that the Department of Education failed to meet its burden of demonstrating that the program offered for the child on the IEP was appropriate. The only participants at the IEP meeting who knew the child were and , neither of whom believed that the child could class and . Mr. , who conducted the IEP meeting, testified that the child had not been prior to the IEP meeting and that there had been only a classroom observation. The entered into evidence by the Department of Education indicates that while the child was able to follow the lesson she had to be “ ” (DOE Ex. 3). What the report fails to note, however, is that there were only other students in the class with her at that time, an omission that is significant when recommending a class triple that size ( : 62-63).

Mr. did not recall what documents other than the observation were reviewed at the meeting or whether any or in the child’s file had been reviewed or considered. Mr. also testified that the child was placed in the program simply because an class was inappropriate due to her academic , a program was for students who were and both the and a District programs were too restrictive. Thus, the only other school class ratio in the Department of Education system was a . I find that this rationale – essentially that the program was recommended by default --is not sufficient to show that the recommended program provided the child with a FAPE.

Moreover, the testimony about the proposed placement, , did not include any information specific to the school or the classes available on the first day of the 20112012 school year. Rather, Ms. , the of the school who testified at the impartial hearing, did not begin at the until February 2012, five months after the school year began. She did not know how many students were enrolled in the classes on the first day of school and thus the Department of Education failed to provide sufficient evidence to support a conclusion that had a place for the child in a class at that time.

For the reasons stated above I find that the Department of Education did not meet its burden of demonstrating that it provided an appropriate program or placement for the child for the 2011-2012 school year and thus I conclude that it failed to provide the child with a FAPE.

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. A 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 handicapped child, 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 parents 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.

With respect to this criterion the testimony by parent’s witnesses as detailed above with citations to the record, demonstrated that the child’s program at for the 20112012 school year was “reasonably calculated to enable the child to receive an educational benefit” and that it provided the child with “education instruction specifically designed to meet” the child’s “unique needs” Rowley, 458 U.S. at 188-189, 207; Frank G., 459 F.3d at 364.

At the beginning of the 2011-2012 school year the child was years-old and in her school. She was in a class with only other students and for several academic subjects the group was broken down further so that the child was in a group with only or other students, settings that addressed her attention and focusing issues. While the child’s academic classes were very her “creative workshop” class which met for a period each week had several classes meeting together to foster skills such as interaction and cooperation. There also were students in the school and thus the child was exposed to students.

The program as described by included academics, social skills and skills. The child’s skills class addressed issues such as preparing a , reading and and for a , all relevant to the child’s age and the fact that she would be school at the end of the school year.

testified that the child made progress during the school year and explained how a student’s progress is effectively measured at any point in time based on the school’s “skill sequenced curriculum” ( : 63-64, 93, 105).

The fact that the school did not provide the child with the and and as mandated on her IEP does not require a finding that the school did not meet the child’s needs. The law is clear that a parent’s unilateral placement need not provide every service listed in an IEP in that it “need not be perfect, [and] need not meet all of the child’s special education needs . . . to satisfy the Prong II standard.” M. F. v. New York City Dept. of Education, 11 Civ. 6526 (PGG) (June 4, 2012); R.E., 785 F. Supp. 2d at 44 (citing Frank G., 459 F.3d at 364). 364). In this case I find that the child’s program at met her needs during the 2011-2012 school year and addressed the transition she would have to make upon school at the end of that school year.

Thus, I conclude that met her Prong II burden in this case.

III.

The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. With respect to equitable considerations, the IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dept. of Education., S.W. v. New York. City Department of Education, 646 F.Supp.2d 346, 362-363 (S.D.N.Y.2009); In Re Student with a Disability, Appeal No. 12-026.

I hold that the equities of the case support the parent and note that the Department of Education did not make a specific argument in support of a contrary finding.

The child’s mother attended the IEP meeting on June 6, 2011 with her advocate, . At that time Ms. objected to the program recommendation on the ground that the program would not provide the child with and would ( : 13). On August 22, 2011 the child’s parent, by her advocate, of the Service, timely filed a 10-day notice advising the that the parent was going to place the child in for the 2011-2012 school year (Parent’s Ex. C).

The FNR was issued on June 28, 2011 at the conclusion of the school year. While I find ’s conflicting testimony about her efforts to contact the proposed placement to be problematic ( : 130-131, 136-139), I recognize that her opposition to the program was the ratio based on the child’s and and her “ .” In light of that fact I find that a visit to the program at would not have had any impact on the parent’s belief that the proposed program and placement were inappropriate for the child and I do not draw a negative inference based on her testimony about attempts to contact or visit the school.

* * *

The tuition at for the 2011-2012 school year was $30,000.00. Ms. , the administrator of the school, testified that $7,000.00 of that amount was toward instruction and that the child had a scholarship for that portion of the tuition. Thus, the parent is asking for payment to the school of $23,000.00. The Department of Education did not dispute this calculation. Nor did it dispute the request that the school be paid directly.

The child’s IEP mandated individual counseling a week for minutes. did not provide this service. Rather, it contracted with a to provide the child’s counseling mandate at the rate of $55.00 per hour. The parent submitted a notarized letter and bills from the , . . The charge for her services to the child for 67 sessions during the 2011-2012 school year totals $3,685.00. Since this service was mandated on the child’s IEP and the parent chose to send the child to a school that did not include the service in the cost of tuition, I find that the Department of Education does not have to provide payment for the in addition to the payment of the tuition.

ORDER

It is herby Ordered that:

Within 30 days of the receipt of the contract for the 2011-2012 school year and proof of the child’s attendance for that year, the Department of Education is to pay $23,000.00 for the child’s 2011-2012 tuition. Dated: August 1, 2013 _________________

RONA FEINBERG, ESQ. RF;mv Impartial Hearing Officer

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:

Exhibit 1

, 17pages

Exhibit 2 Observation dated May 19, 2011, 1

page

Exhibit 3 , 1 page

Exhibit 4 Dated May 1, 2011 to June 6, 2011,

1 page

Exhibit 5 dated June 28, 2011, 1 page

Parent:

Exhibit A dated

November 26, 2012, 4 pages

Exhibit B , 1 page

Exhibit C dated August 22, 2011, 1 page

Exhibit D 2011-2012, 2 pages

Exhibit E dated August 12 2012, 1 page

Exhibit F dated July 9, 2012, 4 pages

Exhibit G 2011-2012, 1 page

Exhibit H , 1 page

Exhibit I dated June 6, 2011, 14 pages

Exhibit J Parent’s 2011 1040 Tax Form, 2

pages

Exhibit K , and dated February 1, 1982

and August 31, 2981, 2 pages

Hearing Officer

The Hearing Officer did not enter any exhibits into evidence.