New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number

Student’s Name

Date of Birth

District

Hearing Requested By Parent

Date of Hearing January 8, 2013

April 24, 2013

July 18, 2013

Actual Record Closed Date September 4, 2013

Hearing Officer Lynn Almeleh, Esq.

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

JUDAH, Advocate, (Via Telephone) — Student

District Representative, (Via — DOE

Telephone) — DOE

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

SUSAN DEEDY, Attorney — Student

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2013

SUSAN DEEDY, ESQ., Attorney for Parents — Student

Parent (Via Telephone) — Student

J (Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

On December 4, 2012, I was appointed to hear the matter of versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C. Section 1415 (f)(1). On January 8, 2013 a pre-hearing conference was held, and a hearing on the substantive merits scheduled for February 13, 2013. At this time, the Parent’s request for an adjournment based upon her recent acquisition of counsel was granted. As a result thereof, hearing on the substantive merits did not commence until April 24, 2013. On this date, the proceedings commenced and were continued to June 17, 2013 when a mutual request for adjournment was granted due to a stoppage of service on the . Thereafter, the matter was heard and concluded on July 17, 2013 and the compliance date for issuing a decision in the above-referenced matter was duly extended.

It is noted that this is a Parental request seeking reimbursement for educational services subject to a unilateral transfer for the 2012-2013 school year. Specifically, the Parent asserts that the Department of Education’s (hereinafter the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) of December 13, 2011, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Exhs. A, 1. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], she is seeking tuition reimbursement for the 2012-2013 school year in furtherance of a unilateral transfer to the School at (hereinafter “”1), a non-public school setting. As a corollary, the Parent contends that there are no equitable factors which militate against her right to relief. S.N. is “a child with a ” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and, although in question, was last classified as “ as that term is defined by 20 U.S.C. § 1401(a)(1). A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

testified as lead witness for the Department of Education. She holds a Bachelors’ in . She is certified by New York State as a school has been employed by the Department for 20 years. As such, she participated in an Annual Review for . on December 13, 2011, with the understanding that the IEP generated from this meeting would be valid from this date through December 2012. Tr. at 26.

Reviewing the student’s IEP, the witness acknowledged that it contained no promotion criteria although the child is in . Similarly, she testified that promotion criteria had not been discussed at her IEP meeting, nor had the input of been included although the child is classified as . Tr. at 61-65, 66. Ms. could not recall how she had developed the child’s goals and testified vaguely about the manner in which the student’s current levels of performance were derived. Tr. at 70-75. Similarly, she observed that the IEP did not reference any classroom modifications although testing accommodations were, in fact, articulated. The witness did, however, observe that a transition plan had been developed for the student.

additionally testified on behalf of the Department of Education where she is employed as a placement officer. Tr. at 29-30. She holds a Bachelors’ degree in criminal Justice and a school certificate . She is certified by New York State as a school and has been employed by the Department for 20 years. As such, she participated in an Annual Review for on December 13, 2011. In furtherance thereof, the witness recalled forwarding a Final Notice of Recommendation (alternatively referenced as “FNR”) to the Parent for a small class at High School. Tr. at 30-42; Exh. F. As such, she testified that the FNR is not required to reference the child’s classroom recommendation, nor must it indicate a start/finish date. Tr. at 43. Rather, the placement was effectuated through herself and the Director of High School Placement, an individual who is not directly associated with High School. Although she was aware that the Parent did not plan to remove from her current placement for the 2011-2012 school year but had requested a placement as of September 2012, she acknowledged that there was no record of any Departmental response. She reiterated, however, that the FNR was valid through December 13, 2013. Exh. C.

On cross-examination, the witness indicated that she relied upon the IEP, as well as other computer-based documents in order to develop a placement for the child. She

Also referred to as “Central” did not know when she had reviewed the , however, nor could she even provide an estimate or specify which assessments they were. Tr. at 51-52, 54.

THE PARENT’S CASE

testified as lead witness on behalf of the Parent. Ms. holds two Master’s degrees in the area of education. She is the Coordinator of the program at and has been employed with for 33 years. In this capacity, she has observed the child, discussed her performance with teachers and participated in administrative meetings in which children are discussed. is a self-contained, Regents’ based program housed within a mainstream school. As such, it utilizes a mainstream curriculum which is modified to address the needs of learning children. ’s instructional staff participates in on-going training, both in-service and otherwise. is additionally provided with small nurturing classrooms in which her educational profile is matched with others in the room. In this manner, personnel are able to offer differentiated instruction for each student depending upon need. Beyond this, Ms. testified that she is working with ’s to assist with post high school transitions. This includes participation in the School’s “ ,” a program which assists students with post graduate planning such as researching college applications, preparing essays and ensuring that will have the necessary credits to attend community college.

Having said this, at the close of the 2011-2012 school year, Ms. testified that she began to seek a placement as of September 2012. The witness testified that, notwithstanding repeated calls to the Department and a visit to the Department’s placement office, she did not receive any call-backs from Department personnel nor did she receive a placement. By the end of the summer, Ms. testified that she had no alternative but to continue placement at . Tr. at 138-140. Ms that she has been pleased with the progress demonstrated by her daughter and attributed this success to the intense supervision receives.

additionally testified on behalf of the Parent. He is the Director of and, as such, was familiar with the facts and circumstances regarding placement. He indicated that the Parent received a Final Notice of Recommendation by letter dated January 12, 2013. Exh.

F. In response, the Parent rejected the 2011-2012 placement as she did not wish to remove her daughter middle of the year. She noted by writing, however, that she was seeking a placement for the 2012-2013 school year. As time elapsed, the witness indicated that the Parent did not receive a response from the Department and, after several unanswered telephone calls to the Department, Mrs. went in person to the CSE’s placement office on July 19. 2012. Following her visit, Mrs. M. continued to hear nothing from the Department and received no placement. Tr. at 158-159; Exh. I. On August 13, 2012, the Parent sent another formal request for placement, as memorialized by letter dated August 20, 2012. Exhs. A, F. Thereafter, attempting the settle the matter at the CSE level as the Parent’s advocate and an administrator at , Mr. testified that CSE personnel informed him that, in fact, no placement had been issued for the 2012-2013 school year. On December 3, 2012 a Due Process Request was filed. Shortly after, the Parent subsequently received a hand-written FNR, dated August 24, 2013, referencing educational program from three years ago. Tr. at 160; Exh. J.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education contends that its recommendation for the 20122013 school year, as memorialized by the IEP of December 13, 2012 is valid and consistent with its IDEIA mandate pursuant to both Educ. Law 4402(2)(a) and 8NYCRR 200.6 §(a)(1). As specifically articulated, the School District asserts that its Individuals with Disabilities Education Act (IDEA) mandate simply requires that, consistent with procedural elements promulgated therein, it provide a free and appropriate public education (hereinafter referred to as a “FAPE”). In furtherance of this, the Department maintains that its educational programs accurately reflect the results of designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. It is not compelled to maximize or optimize the child's educational benefits. Its duty is simply fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child.” Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

The School District additionally asserts that, even if it were determined that the Department of Education had not, in fact, provided . with FAPE, the program is not an appropriate placement for the child. Similarly, it maintains that the Parent has not met her equitable burden consistent with Sch. Comm. Of Burlington v. Dep’t. of Educ, 471 U.S. 359, 370 [1985].

THE PARENT’S POSITION

The Parent, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] asserts that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education during the 2012-2013 school year. As a corollary, counsel maintains that the educational program at is an program and there are no equitable factors which militate against her entitlement to tuition reimbursement.

DISCUSSION

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.Sx.1400 [d][1][A]; see , Mrs.

W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of ized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate education services. Application of a Child with a , Appeal No. 01-105; Application of a Child Suspected of Having a , Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA. Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a . 20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]). In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every service necessary to maximize each child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a " (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990); see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 6970 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a threepronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy (Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point 1 Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the December 13, 2011 IEP reasonably calculated to confer an educational benefit upon T.M. during the 2012-2013 school year?

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private , and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]).

Given the Department’s responsibility to ensure that the IEP is based upon current and accurate levels of performance, I find that the testimony and evidence do not meet the Department’s burden.

Beyond the issue of inadequate evaluative material, I note that the document does not include promotion criteria, nor was it discussed at the CSE convene. Tr. at 61-63. The IEP does not reference the use of any management for Finally, the Department’s witness did not recall drafting goals, nor could she specify how they were developed. Tr. at 70-71. Under these circumstances, one cannot conclude that the IEP goals are even related to needs, a scenario which stands in abrogation of 34 CFR 300.320[a][2] and 8 NYCRR 200.4[d][2][iii]). In fact, the goals are expressed generically in the absence of baseline data (such as grade level) and meaningful criterion for mastery. There is simply no accountability for how the efficacy of these interventions will be quantified. Under these circumstances, I cannot conclude that the December 13, 2011 IEP was appropriate.

With respect to the student’s Final Notice of Recommendation, clearly no “start” or “finish” date is specified. The testimony regarding the use of the IEP to develop a on the FNR is, moreover, jumbled and confusing. Tr. at 44-46; Exh. F. Finally, I am not persuaded that the FNR suddenly forwarded to the Parent in December 2012, immediately following settlement discussions with Mr. , is a credible document given the outdated information it references. Point II Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], was an Appropriate School for T.M. during the 2012-2013 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it Department of Educations not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school Department of Educations not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, Parents need not show that a private placement furnishes every service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction ly designed to meet the needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

At the outset, it is clear that the program offered at correlates well with the student’s educational needs, as identified by credible witnesses and her IEP. Exh. C. She is functionally grouped with students who share a similar educational and receives a great deal of individualized and differentiated instruction along with academic accommodations and modified curricula, even with the small class setting. The evidence indicates that provides a small, nurturing environment which offers a self-contained, Regents’ based program housed within a mainstream school. As such, it utilizes a mainstream curriculum which is modified to address the needs of its children. ’s instructional staff additionally participates in on-going training, both in-service and otherwise.

Point III Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2012-2013 school year?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Although the Department suggests that the Parent did not “cooperate,” it is clear that she forwarded two letters to the Department requesting a placement for the 20122013 school year. Exhs. A,F. In addition to these efforts, she personally went to the CSE’s placement office, requesting the same. There is no claim that the Parent has not participated in all CSE meetings and it is unreasonable to expect a parent to continue exerting unilateral efforts to secure a Department placement, while not reserving a seat at in the event that the recommended placement was inappropriate. Although the Department maintains that its IEP and FNR were valid for the period extending from December 13, 2011 through December 13, 2012, it is clear that this was not the Parent’s understanding, an inconsistency ignored by the Department despite the Parent’s efforts to clarify the situation. Under these circumstances, I see no equitable factors which militate against the Parent’s right to recovery.

CONCLUSION

The Parent’s request is granted, with the proviso that only secular studies are reimbursable. Under these circumstances, I have determined that classes in Navi, Chumash and Halacha are religious courses which constitute non-reimbursable studies. I have additionally reviewed the Parent’s income tax returns and, consistent with Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998), I find that the Parent is entitled to direct and prospective payment of outstanding tuition fees incurred at during the 20122013 school year. Wherefore, it is hereby ordered that Within thirty (30) days of the date of this Order and upon due proof of payment and an affidavit of attendance from for the 2012-2013 school year, the Department shall make direct payment of $29, 888.00 to the School, a division of University High School for Girls. Payment of $2926.00 shall additionally be made directly to the Parent, representing the amount of tuition she has already paid directly to for the 2012-2013 school year. These sums reflect a reduction of the Department’s liability based upon the religious component of ’s program. Dated September 5, 2013

_______________________

LYNN ALMELEH, ESQ.

Impartial Hearing Officer LAmv

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

PARENT

A Notice of Rejection, 8/20/12, 3 pages B Impartial Hearing Request 12/03/12, 2 pages C IEP, 12/13/11, 12 pages D Letter to CSE3 with So-ordered Subpoena and fax receipt, 4/02/03, 4 pages E 2011 Tax return, 3 pages F Final Notice of Recommendations, 1/11/12, 1 page G Teacher , 12/17/12,1 page H Tuition Contract, ,9/14/2012, 1 page I Handwritten Note by 7/23/12, 1 page J Handwritten FNR, 8/24/12, 1 page K Goals for ,12/16/12, 1 page L Affidavit of Payment, 6/17/13,1 page M Report Card, undated, 1 page N Progress Report of ,undated, 2 pages O 2012/2013 Schedule, undated,1 page

DEPARTMENT OF EDUCATION

1 update, 12/19/12 2 pages 2 Teacher , 12/19/12, 2 pages 3 , 11/26/12, 1 page 4 , 12/17/12 , 1 page 5 , 12/07/12, 6 pages