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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 4, 2013
May 6, 2013
May 22, 2013
Actual Record Closed Date: July 9, 2013
Hearing Officer: Elise Kestenbaum, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2013
Parents
Jenna Pantel, Esq. Attorney for Parents — Student
District Representative — DOE
(via telephone) — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2013
Parents
Jenna Pantel, Esq. Attorney for Parents — Student
(via telephone) — Student
(via telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 22, 2013
Elissa Goffman, Esq. Attorney for Parents — Student
District Representative — DOE
INTRODUCTION: — DOE
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the Parents (“Parents”) on behalf of the student (“Student”), through their attorney, Jenna Pantel, Esq. from the Law Offices of Neal H. Rosenberg by filing a Due Process Complaint dated January 25, 2013 with the District.
The Parents are alleging that their daughter, was denied a for the 2012-13 school year and are seeking tuition reimbursement for her unilateral placement at the for said year.
There were three days of hearings in this matter. Hearings were conducted on April 4, May 6 and May 22, 2013. Extensions were granted in this case making the final compliance date July 16, 2013. A list of Exhibits is attached as Exhibit A. The Parents and the District submitted exhibits.
BACKGROUND
This case involves student. During the 2012-13 school year, attended the Program (“ ”) at where the Student was unilaterally placed by the Parents.
With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on June 19, 2012. Pursuant to the June 19thIEP, the following recommendations were made:
1. Integrated services in a community school for per week; times per week; times per week; times per week; and times per week.
2. , two times per week for30 minutes each time, .
3. per week for 30 minutes each time,
4. , two times per week for
The District issued a Notice of Recommendation which was received by the Parent on June 29, 2012. It stated that the offered school shall be A letter dated October 18, 2012 was sent to the District indicating that the Parent had observed and determined that it was not appropriate for and indicating that will continue at unless an appropriate program is recommended and will seek tuition reimbursement. P-B.
The Parent entered into an Enrollment Contract with dated May 30, 2012. P-C.
The Due Process Complaint is dated January 25, 2012 and was received by the District at that time. P-A. I was appointed as an impartial hearing officer on January 28, 2013.
POSITION OF THE PARTIES
District’s Case
The District called two witnesses, and placed twenty-three (23) documents into evidence. D-1 – D-23.
The first witness for the District was . She is a certified with a Master’s degree in education and a certificate in school . Tr. 42. She has been working for the DOE for eight years as a at . She is responsible for doing evaluations of students, formulating IEPs , conducting review and IEP meetings, making recommendations for services, developing plans, etc. Tr. 43.
She knows because she conducted an IESP meeting and an IEP meeting and an observation for her. Tr. 43. Ms. conducted the first meeting on March 21, 2012, when was transitioning from CPSE to CSE and they were formulating a school aged IEP. Tr. 43. Ms. testified that at the time of the meeting, was to attend a private school so they put together an IESP and recommended related services at the she was planning on attending. Tr. 44. At the time of the meeting, they had her observation and progress reports from the related services providers and teacher from preschool. Tr. 44. She stated that “an IESP is a plan for a child who will be attending a private school where we recommend appropriate services that are available to the child to support her in the educational program that she’ll be attending at the private school.” Tr. 45. She stated that an IEP is a recommendation for a public school program. Tr. 45. She testified that the related service reports were the same at both meetings although the report was updated for the June meeting. Tr. 47. She also indicated that the March 20, 2012 observation was used at both meetings. Tr. 48; D-17. At the March and June meetings, the same parties were present except that at the June meeting, Ms. , a general education teacher was included. Tr. 49. The other parties at the June meeting included , ’s teacher; , the District representative and teacher; the Parent; and Ms. , the school . Tr.
51. There was no parent member at the meeting. Tr. 52. They did additional testing for the June 2012 CSE meeting in early June because the Parent requested an IEP meeting for a school based program and they thought the testing would give them additional information in order to make an appropriate recommendation. Tr. 52; D-6.
Ms. stated that the Student’s overall IQ came out within the average range on the and she also scored within the average range in both the verbal and nonverbal areas. Tr. 53. She testified that based on the , does not have a . Tr.
53. Ms. stated that some of In this regard, the Parent had provided the CSE with a copy of a letter from the indicating that she . D-18. No one at the meeting disagreed with the classification. At the June meeting, the updated report from indicated continued concerns regarding her . D-9.
Ms. testified that at the CSE meeting the teacher’s report indicated that made progress in terms of . She was . Tr. 61. In terms of her . With respect to her , the teacher reported that she had made nice progress, is friendly . Tr. 62. She can be and needs prompting to transition because of . Tr. 62. Between March and June, the teachers noted some and also indicated that she . Tr. 63. During pre-school, she was in an integrated class. Tr. 63.
is familiar with through her IEP. Tr. 128. The Parent came to visit the school in late September or early October. Tr. 129. She came with the Parent advocate. Tr. 129. The Parent asked the teacher if she used in the classroom and the teacher did not know what it was, however, the knew what it was and stated that if it needed to be implemented in the classroom, the would meet with the teacher and give her different prompts as to what she would know what she needed to do with the student. Tr. 130.
For the 2012-13 school year, the general education teacher is Ms. and the teacher was Ms. . Tr. 130. Ms. is the teacher in there at the time the Parent visited and she is presently the cluster teacher. Tr. 131. Ms. has been a teacher since 2001 and Ms. been at this school for 2 years . Tr. 131. She in and general education. Tr. 132. Ms. says that she regularly observes the class and in and students but the registry had not been equalized. Tr. 132. They try to equalize the kindergarten classes by the end of September since students were still registering at the beginning of the year. In the beginning of September, there were 25 students and education students. Tr. 133. When the class was equalized they had education students. Tr. 134. There is only one ICT class so the only students that move are the general education students. Tr. 135.
Ms. stated that both teachers are caring, giving and patient. They explain things in detail and take time to review and work with or in if they benefit from that. Tr. 139. She said that they are a great match.
Ms. stated that they test the students with the so that they know what levels they are at and in between, there are other tests built into the core knowledge program as well to measure their different abilities. Therefore, when the student begins kindergarten in September or October, the teachers know whether the student is on level ‘ . When the student leaves kindergarten, they should be at a or above. Tr. 144.
Ms. testified that they used the which is a scripted reading program. Tr. 145. In the class they follow the program, however, if a child is not progressing, then they may drop back in the areas where they need support. This program has been successful for both the students and general education students. She stated that there is no great difference between the general education students and students with this program and in fact the strongest students in kindergarten class are two of the students. Tr. 149.
The is another scripted program called . Tr. 150. There are whole group components and small group components. The teacher introduces the lesson step by step, she models, she demonstrates, then there are components where the students model. The program provides assessments so that you’re clearly able to see whether the students understand the concepts. Tr. 150. It’s a , hands-on, with etc. Tr. 151. The reading program is also . Tr. 152.
For specials, the class has gym. Tr. 151. For each class, there are always two teachers in the room. Tr. 153. There is also only one gym class in place at a time. Tr. 154.
Ms. stated that she had reviewed ’s IEP and would have been able to receive her related services of at the school. Tr. 154. The would have been able to push-in to the classroom. The related service providers consult with the classroom teacher to make sure the student is not missing important components of the day. Therefore, they consult when creating the schedule in order to institute what is best for the child. Tr. 155. The related service providers meet with the teachers on a regular basis and give the teachers suggestions so that the work with the provider can also occur in the classroom. Tr. 155. The schedule is created to minimize missing core subjects and , the teacher is still doing academics – it’s . Tr. 156.If they are in a group, the provider tries to take students that are all kindergartners and, if possible, the providers take students from the same class at the same time. Tr. 156.
Based on the IEP, Ms. testified that the thing that stands out is ’s Tr. 157. She stated that it’s not an issue that can’t be resolved in the classroom with cues. Tr. 157. . Tr. 157. Ms. testified that “In a kindergarten class, the average task does not last for more …You’re trying to constantly mix it up to keep them focused in the first place because they’re four and five year olds”. Tr. 157. She stated that ’s description seems typical of a child currently in the class because their attention spans are not that long and they are , they don’t stay at their desk or sit on the carpet, etc. Tr. 158. She indicated that there are appropriate peer models in the class. Tr. 159. They have a school wide sale ticket program for behavior where if you are doing the right thing you get a ticket and can purchase something from the sales store. She said that based on the ticket program she has seen a great improvement in all students since they are receiving positive reinforcement for positive behavior. Tr. 160.
Ms. stated that there are presently Tr. 161. At lunch, the kindergartners and first graders sit together. Each class has a boys and girls table. Tr. 161. The class sits next to the class, so if they need a , one is there. The and three school aides, and a teacher or provider will be in the lunchroom as well. Tr. 161. She stated that the kindergarten and first grade lunch group is a group, although it’s not realistic to say a hundred percent of the students behave at all times. Tr. 162.
In the ICT class, the teachers involve the parents in what is going on in the classroom by sending home a homework sheet or letter each week. Tr. 162. Since the parents get to see the teacher at pick up, there is communication. If there are any concerns, the teacher calls or sends a note home to the parent. Tr. 163. Ms. testified that there are . Tr. 163-164. If students are classified and do not pass the test, they are in the pull-out program. Tr. 164.
The classroom itself is with room for a , five , etc. There is also a section in the back with a couch and a computer area. Tr. 165. It’s a safe classroom , it is not cluttered and there is space to move around. Tr. 166.
Based upon review of the goals on ’s IEP, she feels that the teacher would be able to meet these goals. Tr. 168. She believes that would be appropriate for the class and for the school. Tr. 169.
On cross examination, stated that she does not have a degree nor taught in a class, however, she has taken for credit and those given by the Board and has supervised classes. Tr. 170. She is an assistant principal and supervises grade three, four and five and all cluster teachers and is also the supervisor for . Tr. 171. She stated that the principal, assistant principals, and teachers choose the curriculum for the school. Tr. 173.
She observes the classroom formally and informally; it could be anywhere from five minutes to an hour each time. Each teacher gets two formal observations a year and Ms. gets four because she is not tenured under her license. Tr. 176. Ms. does the and the other does and they both do the informal observations. Tr. 176. Ms. testified that each kindergarten class is capped at 25. Tr. 176. There were 26 on the first day and if had entered one general education student would have been taken out. The reason there was an extra child on day one was because they had not evened out the classes yet. They wait and then equalize the registers. Tr. 177.
The teacher usually starts with a whole group component on the carpet because she uses the dry erase board and then the students do group work. Tr. 180. There are typically 3 groups based on ability or whatever their needs are. Tr. 181. There are not an equal amount of students in each group since it’s based on ability. Tr. 182. There was a student that didn’t belong in the class in September and he was reevaluated and moved. Tr. 179. The student required a more based on a number of factors. Tr. 182.
Most of the students in the class are on a level. She is aware of their levels as a result of their IEPs and the assessments they do at the beginning of the year. Tr. 183. The students in the class are all of kindergarten age. Ms. stated that there are approximately at lunch. Tr. 185.
Ms. stated that her knowledge of stems exclusively from her IEP. Tr. 187. She testified that the share a room, however, most of the work the does is done outside the room in the small gym, at the stairs, etc. Tr. 189. If attended the school on the first day, stated that she would be able to receive all of her related services. Tr. 192.
Parent’s Case
The Parent called three (3) witnesses, and the Parent and placed eight (8) documents in evidence. P-A – P-H.
The first witness was . She received her Master’s degree , she also received her certification in . Tr. 206. She has permanent New York State certification in . Tr. 206. She also has two post graduate certificates, one called school administrator and supervisor and one , school district administrator. Tr. 206. She tutored students from kindergarten through ninth grade with special needs for many years and coordinated in a resource room for eight years. Tr. 206. For the past 21 years, she has been working at first as the Educational Coordinator and then as a Program Director. Tr. 207. Presently she serves as Program Director at and she is responsible for hiring, for supervising the students, and testing the students for the program. She is also responsible for supporting the parents and attends parent-teacher conferences. She communicates with the mainstream schools where the classes are housed and the teachers and administrators. Tr. 207. She also supervises the . Tr. 207-208.
Ms. described as a program (not a school) for children who have learning Tr. 208; Tr. 209. is responsible for running in several . Tr. 211. Within a given year, they could have classes in eight or more locations. Tr. 211. The program is for students from kindergarten through high school and students can be placed in self contained or classes (in the high school).Tr. 209. She stated that “ Tr. 209. There are 101 students in the program this year and the 18. Tr. 209. The students are grouped by age and grade level. Tr.209.
She is familiar with since she currently is in a self-contained class in the Program. Tr. 210. She was placed at the Tr. 210. incorporates the students from into their school. Tr. 211. There are and it services kindergarten through fifth grade. Tr. 214. The Program is included in grade level activities and whole school activities. The students in also go on class trips with the mainstream kindergarten classes. Tr. 215. Also participates in the in the building so in some cases the students attend classes with mainstream students. Tr. 215. hires its own teachers and Ms. supervises them. Tr. 216.
is mainstreamed for music, . Tr. 216. She also receives the following related services: related service providers’ schedule so there is the least Tr.
217. The teacher communicates with the related service providers frequently and they coordinate goals so that the related service providers are all aware of the goals for the week and they are all working together to meet those goals. Tr. 217. In providing the services for , they are using the mandates of her IEP. Tr. 218. They also meet with the district of location to review the IEP. If changes are needed, will go back to the CSE to try to make changes. Tr. 219.
In ’s class, the same teacher is there all day, Mrs. , and there are eight students in her class. Tr. 220-221. Ms. estified that other than the time from 9:00 to 9:10 she does prayer, and the studies are taught during the , the program is secular. Tr. 223. Although there is also she believes that is secular because the students are really studying the language. Tr. 225. In terms of how much of the day is secular education, she said, “I can’t even give you a number maybe 90 percent. I don’t know.” Tr. 223.
Ms. testified that gets small group instruction throughout the day. Tr. 226. She stated that is a tuition only school which means they collect for the tuition but not for related services. Tr. 226.
On cross examination, Ms. testified that for admissions, they do informal testing. Her and Ms. will meet with the student, do an informal evaluation and also go and observe the student at their home school and meet with his/her teacher and sometimes service providers when he/she applies for admission. Tr. 227. ’s Parent showed interest in the program in the spring and requested that they come and observe the student in the school setting and discuss the program with her. Tr. 227. Ms. is the Educational Coordinator. She is not certified . Tr. 228.
Although Ms. said that the program is grouped by grade and age, they take into account the functional level of the student. If the student is not ready for the next grade, they will have that child repeat a grade. Tr. 229. They have one kindergarten and one first grade class at and ’s class is all kindergartners. ’s class can go up to 12 students and there is one teacher and one assistant currently. Tr.
229. Presently, there are eight students in class, three who are classified with and five with . Tr. 230. It is a coed class with approximately 3 boys and 5 girls. Tr. 232. The class is mainstreamed for gym and music and there are 22 students in the mainstream kindergarten class. Tr. 232. The teacher and assistant go with them to the specials. The students eat lunch in their classroom and are mainstreamed for recess. Tr. 233. The reading program they use is called and the math program , . Tr. 235. Ms. is not sure whether is using the same programs but she thinks so. Tr. 236 . has no related service providers on staff so the District reimburses the district of location for services. Tr. 237.
Ms. testified that they use the IEP as a starting point then they see how the child presents in the classroom and the teacher determines goals. Tr. 238. Ms. uses the core curriculum. Tr. 239. If a class moves to another school, the students will stay together as a group. Tr. 239. does its own report cards but they follow the schedule of the school they are in for distribution and at it’s twice a year. Tr. 241.
The next witness was . She has a Master’s degree and has a New York State license, kindergarten through 12th grade for general and . Tr. 245. She presently teaches the self-contained class for the Program at Tr. 245. She has been at for 18 years and also taught in the . Tr. 245.
She is familiar with because she is in her class. Tr. 245. She has eight students in her class and an assistant teacher who is going for her Master’s degree in . Tr. 246. The age range in her class is five to seven. Tr. 247.
Ms. stated that she communicates with the related service providers to enable everyone to be on the same page. She emails her lesson plans every Sunday night to the related service providers so they know what she will be doing in the classroom. Tr. 256. She is also familiar with the goals and skills the providers are working on. Tr. 257.
Ms. Harris stated that she modifies or enriches the curriculum based on the children’s abilities and she doesn’t keep pace with the other classrooms. Tr. 334. She does not use , she uses her program which is a general education program but is better for a child who needs a to learning. Tr. 334. They use balanced literacy not a phonics driven program. Tr. 335.
At the June CSE meeting, the Parent told the committee based on her discussions with the in the preschool she was attending and that she had had and her preschool teacher that she would not be able to be in a mainstream program the following year. Tr.
346. At the time, was in an integrated class at which is a New York State approved private school she attended for two years. Tr. 347; Tr. 348. They had Tr.
347. The Parent testified that the teacher was trying to push for what had this year in – felt that based on her she would not benefit from a self-contained class be higher than most of the kids in the class. Tr. 350.
After the meeting, the Parent testified that she received a placement notice for the school around June 29, 2012. Tr. 363. She said she knew the public school was closed and that she wouldn’t be able to observe the class. Tr. 364. She couldn’t remember if she called the school over the summer but she made an appointment as soon as school started. Tr. 365. who has in an environment like this. Tr. 365. She was told they Tr. 366. She went to the and the services for both were given in the same room. Tr. 367. They explained that they don’t both work in the room together, one may be in the . Tr. 367. She thought this would Tr. 367. They also met with the and there were two in the room. Tr. 368.She stated that she was then taken to the classroom and there were only a few students present and three teachers. She said there were 26 students in the class and the room was cluttered with five or six tables. Tr. 369. There was also a carpeted area in a corner. Tr. 371. She felt that would have a hard time with the space and feeling squished. Tr. 370-371. The Parent asked about a and the teachers indicated that they didn’t know what it was but if would explain to them what to do, they would do it. Tr. 371.
The Parent did not feel that the class appropriate for because she didn’t have a good experience in the class the year before, the lunchroom would make her uncomfortable, and the size be too much for her. Tr. 372-373. She advised the CSE about her concerns with the placement through a letter. P-B.
The Parent testified that is doing well at this year. Tr. 374. She and her family have seen a difference in this year.
The Parent testified that although she wanted her child in a mainstream class but was told by everyone that she needed more support. Tr. 385.
On cross, the Parent testified that the pre-k teacher went with her to see the class but not the . Tr. 391. At the March CSE meeting, the Parent stated that the teacher from was not completely on board with mainstreaming her but said, “I think she might be okay with related services…” Tr. 392. She said that after several months at . Tr. 383. She stated that “[ ] had really benefitted in the beginning of the year in the classroom, and then all of a sudden they started and when they started seeing it [the teacher] mentioned something to me.” Tr. 393. They moved two doors down from where they lived for that period because they were doing construction. Tr. 395. The school felt this but the Parent testified that nothing had changed. Tr. 395. The Parent testified that after they moved back into the house the regression and ’s continued. Tr. 396.
FINDINGS
Two purposes of the IDEA (20 U.S.C. § § 1400-1482) are (1) to ensure that students with have available to them a FAPE that emphasizes and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee Of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Issue 1-Appropriateness of District Program
The purpose of the IDEA is to ensure that all children with have ) which addresses their education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.(Rowley, 458 U.S. at 206-07; Cerra , 427 F.3d at 192.) A school district offers 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. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F,3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, ... affords the student with an opportunity greater than mere 'trivial advancement' (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ.,103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The recommended program must also be provided in the . (34 C.F.R. §300.550[b]; 8 NYCRR § 200.6[a][1].)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007).
The Parents allege that the District did not comply with the procedural requirements of the IDEA. It is clear from the hearing record and the testimony of the parties that the mandated members of the CSE were present at the June 19th, 2012 CSE meeting. The appropriate including a new , progress reports from teacher and the related service providers, an observation and a letter from ’s were considered at the meeting. The team also carefully considered the information presented by the CSE members at the meeting. Therefore, the CSE team relied on sufficient data to create an IEP that completely and accurately reflected ’s needs. The goals are appropriate as are the management needs which were reviewed at the meeting and agreed to by the parties. The goals on the June 19th IEP target ’s appropriate areas of need, contain specificity by which to , and contain her needs. They included
In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its June 19th meeting provided with a FAPE and that the placement in an integrated co-teaching class at was appropriate. The hearing record as well as the witnesses provided testimony that the program for was . It is clear from the hearing record that at both the March 21, 2012 IESP meeting and June 19, 2012 IEP meeting, was classified as This decision was based on the fact that focusing and were ’s main impediments and she did not present as a child with a . Tr. 57. There is no indication on the Impartial Hearing Request, at the CSE meeting, on the IEP or otherwise that this classification was being challenged. P-A; D-4; D-14.
It was clear from the record that an ICT class in a community school would meet ’s needs in the and allow her to make progress and receive educational benefit.
It is also clear from the testimony of the Assistant Principal Ms the recommended program at P would be The kindergarten class has two teachers and a There were approximately , ten of which had IEPs during the 2012-13 school year. Ms. testified that the students which have enrichment and . Tr. 147; Tr. 150 As a result of the student of the class, the teachers will be able the instruction as needed by as well as deal with her Tr. 157. Ms. clearly indicated that would be appropriate for the school and the class and her goals could be met in the classroom. Tr. 168. Although will be an issue, regardless of the , testimony was presented that she reacts well to prompting and to task. Tr. 300; D-6.
For all of the foregoing reasons, I find that the District provided FAPE for Hence it is not necessary to consider Prongs 2 and 3. See Application of a Child with a , Appeal No. 02-092. However, I will do so to complete the record. Issue 2-Appropriateness of Parental Placement
Under the second prong of Burlington , the Parents bear the burden of proving the appropriateness of the services they seek for In order to meet that burden, the Parents must show that the program provided by the Parents offered an educational program designed to meet ’s needs . Burlington, 471 U.S.at 370; M.S. v. Board of Education of the City of Yonkers, 231 F. 3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…”( Frank G. v. Bd. Of Educ., 459 F3d at 364 (2d Cir 2006)(quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a , supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F. 3d at 112, See Frank G., 459 F3d. at 364-65) See also A.D. and M.D. v. Bd. Of Educ., 690 F. Supp. 2d 193 (2d Cir 2010).
The Parents have met their burden in showing that would have been an appropriate placement for had she not been provided with FAPE under Prong 1. The hearing record provides sufficient evidence regarding the kindergarten program and how the services provided at meet the needs of It is clear from the testimony of Ms. and that is provided with the she requires to meet her needs but also provided with opportunities to interact with typically developing peers. Tr. 216. Specifically, she is mainstreamed for music, physical education, recess and school wide related activities. There are eight students in her class, one teacher who is certified in general and and an assistant teacher who is working on her Master’s degree in . They use general education programs for reading, math and writing and the curriculum is modified to address S needs. Her management needs are also addressed with respect to and the pacing of her work . It is clear that she is receiving all of the related services that were mandated on her June 19th IEP. Ms. testified that is making progress this year in letter , In addition her has improved. Tr. 275; Tr. 279; Tr. 286; Tr. 288
There was no evidence or testimony provided on the part of the District to counter the Parent’s evidence in connection with the program; however, it is clear that the only part of the program that could have been reimbursable would have been the secular portion of the curriculum.
For all the foregoing, I find the Parents would have met their burden in proving the appropriateness of for in the event the District had not provided the Student with FAPE under Prong 1. Issue 3-Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.
The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).
I find that the Parent participated in the June 19th CSE meeting. Although she received a placement notice on June 29th, she made an appointment to visit the school as soon as school started in the fall and sent a letter to the District advising them that she didn’t think that the was appropriate and notifying them that she would be keeping at and would seek tuition. P-B.
According to the Burlington criteria, I find that the Parents met the criteria, and I would not rule against them on this prong. However, it is not necessary to reach Prong 3 since the District provided the Student with FAPE, hence I need not reach the issue of whether equitable considerations support the Parents’ claim for tuition reimbursement. (see Burlington, 471 U.S. 359, Gagliardo, 489 F. 3d at 115; M.C. v. Volutown Bd. Of Educ., 226 F. 3d 60, 66 [2d Cir. 2000])
Accordingly, I find that the District provided the Student with FAPE under Prong 1.
THEREFORE, IT IS HEREBY DECREED that the Student is not entitled to tuition reimbursement and/or payment of tuition directly to , transportation or related services for the 2012-13 school year. Dated: July 16, 2013
ELISE B. KESTENBAUM, ESQ.
Impartial Hearing Officer
EK:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO RECORD
Parent Exhibits
No. Date Document Pages
A 1/29/2013 Impartial Hearing Request 3
B 10/12/2012 Parent Letter to [5]
C 5/30/2012 School Contract 2
D 4/30/2012 Affidavit 1
E misc. dates Credit Card Statements [8]
F 3/2013 Attendance Record [1]
G 2012-13 Class Schedule [2]
H 4/29/2013 Teacher Report [3]
District Exhibits
No. Date Document Pages
4. 6/19/2012 IEP 12
6. 6/8/2012 4
7. 12/2011-3/2012 2
9. 12/2011-3/2012
Provider Progress Report 2
10. 6/4/2012 Notice of IEP Meeting 5
11. 6/1/2012 2
12. 3/21/2012 Parentally Placed Final Notice
Of Recommendation 1
13. 3/21/2012 IESP 10
14. 3/21/2012 1
15. 2/3/2012-2/12/2013 Events 3
16. 3/21/2012 Letter 1
17. 3/20/2012 Interview 5
18. 3/22/2012 Letter 1
19. 9/2011-11/2011 Teacher Quarterly
Progress Report 1
20. 9/2011-11/2011 Progress Report 1
21. 9/2011-11/2011 Report 1
22. 3/14/2012 Notice of IEP Meeting 5
23. 6/19/2012 Conference Agenda Sheet 4
Footnotes
[1] 2/6/2012 Due Process Response 3
[2] 1/302012 Resolution Session Response Form 1
[3] 1/29/2013 Notice of Schedule Resolution Meeting 3
[5] 6/19/2012 1
[8] 12/2011-3.2012 1