NY IHO #2013-ih-935: New York City...

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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: May 1, 2013

May 21, 2013

Actual Record Closed Date: June 10, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2013

Attorney (via telephone) — Student

No appearance by the — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

Attorney — Student

Parents

Law Clerk — Student

Teacher (Via Telephone) — Student

Program Director (Via Telephone) — Student

District Representative — DOE

INTRODUCTION

On March 27, 2013, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

On April 22, 2013 parties were notified of a Pre hearing conference scheduled for May 01, 2013. No party appeared from the Department of Education (DOE). Hearing was conducted and hearing scheduled to commence.

On May 02, 2013 parties were notified of hearing scheduled to commence on May 21, 2013.

On 05/13/2013 a request for adjournment was made by the DOE due to a scheduling conflict with another hearing that day. Adjournment was denied. contacted Impartial Hearing Officer (IHO) to ask if he could consider extending timelines. An actual request to extend the timelines was not made. was advised that a lack of availability resulting from scheduling conflicts would not be considered for extending the timelines or adjourning the hearing. [Regulations of the Commissioner 200.5 (j)(5)(iii) Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, settlement discussions between the parties or other similar reasons. Agreement of the parties is not a sufficient basis for granting an extension.]

On May 21, 2013 parent made a motion to extend the compliance date by 30 days to allow receipt of the transcript and allow for time to submit a closing memorandum by either party. Motion was granted and compliance date was extended to June 24, 2013.

This matter was instituted by the impartial hearing request dated March 20, 2013 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2012-2013 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2012-2013 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the Jewish Center for Special Education (JCSE) and a declaratory finding that the student’s right to a FAPE was violated for the 2012-2013 school year. (Ex A)

BACKGROUND

Student is a female, currently years old, with a classification of Disability, recommended at most recent Individualized Education Plan meeting to a Special Class setting Yiddish instruction with related services of Therapy (Speech) twice weekly, individually for thirty minute Yiddish sessions, Occupational Therapy (OT) twice weekly, individually for thirty minute sessions and Physical Therapy (PT) twice weekly, individually for thirty minute sessions. (Ex A, B & P).

THE PARENT’S POSITION

( ) presented the parent’s position at hearing and by Closing Statement and Memorandum of Law submitted, considered, and included in the hearing record. (Ex III).

sets forth that the IEP is inappropriate, without sufficient evaluations, and was predetermined, as is evidenced by the IEP being dated and completed on April 04, 2012, when the IEP meeting took place on April 16, 2012. (T 96, Ex. III-3)

appropriately meets the students needs, as shown in testimony regarding the student and program. (Ex III 4-10)

Equities favor the parent who complied with committee on special education (CSE) requests, attended the IEP meeting, visited the recommended placement, and corresponded with the CSE regarding her concerns with the IEP and placement. (Ex III 10-11)

Prospective funding is appropriate due to parent’s financial condition. (Ex III 12-13)

PARENT WITNESS

) reviewed her educational and professional background and testified a student teacher for the 2012-2013 school year. (T 17-19)

described the student as “…is a -old child. She has . She's extremely skills. She responds well to positive reinforcement and verbal praise, concrete behavior modification system.” (T 19)

described student skills at the start of the school year. She did not know any . (T 20)

Student had , trouble expressing her thoughts coherently, questions, and limited vocabulary. (T 22)

the student is described as having “…a hard time with turn taking, whether it's a conversation…When she wants to share information, she'll just blurt it out, not waiting for her turn, not paying attention if anyone's looking at her or listening to her…a hard time …At the beginning of the school year, she was not aware of any social--she did not prefer to play with a peer…It would just be the toy by herself, had to be told that she needs to play with someone else. She didn't care what the other children thought of her. She would just sit on the side alone, had to be taught to play with the other children, which progressed. Now she likes to play with the other children.” (T 22-23)

Student is described as bi-lingual. (T 22)

Prewriting and fine motor skills are described as weak. (T 20-21)

Student works on tracing, cutting, copying straight lines and dotted lines. (T 21)

Student needs modeling and role playing for appropriate interaction. (T 23)

Academics are addressed through the following: one on one for reading and math, small group size for letter and number recognition, multisensory activities, circle time, repetition, games and activities, and physical activities throughout the day. (T 23-24)

Student progress is indicated by the student having mastered numbers 1 through 8, ability to count until 20, and having learned a new concept of top, bottom and middle, and learned to sequence. (T 25)

In science and social studies everything is made very interactive, visual cues are used, vocabulary is pre-taught, and everything is hands on. (T 25-26)

Student is extremely . Student is (T 26-27)

A chart and timer is used to address student . (T 27)

Transitioning difficulties are addressed with a structured schedule known to the student s and hung on the wall as well as a token system. (T 27-28)

A Dino Desk with is used to help . (T 29)

At the beginning of the year the student ”. This was addressed with the speech therapist and behaviors have diminished. Student does need to be reminded constantly not to .(T 29-30)

Language needs are addressed in the classroom: “…there's lesson time, academics, problem solving, a lot of visual cues - - we pre-teach. The vocabulary lessons are interactive and concrete. She can actually see what we're learning. Simple sentence structure helps her speak slowly - - information is presented in full amounts. We give her the words she needs to express herself.” (T 30)

described reading and math lessons. (T 33-35)

Student is taught in a group of one for reading to help . (T 35)

continued regarding group size: “Everything is geared to her, her needs, what she needs, multi-sensory and the repetition in the games, activities that she enjoys. The small group size helps her and the other child in the group. For math, it's also on the same level. They're working on the same things that they work well together. There's also good work and social skills. She's able to-we have one time during the day she'll work one on one. The other time we're working on the social skills during math. She'll take turns - - counting just to improve her - working with another child.” (T 38)

Student class currently has six students aged five and six. (T 37-38)

Class has a teacher, assistant and para. (T 38)

Academically students began the year at a beginning kindergarten level and presently are in the kindergarten first grade range. (T 38-39)

Some student have language delays. (T 38)

Student is more comfortable speaking Yiddish. There are two other Yiddish speaking children in the classroom. Teachers all speak Yiddish. (T 38-39)

At the beginning of the year the student presented lower than the rest of the class. (T 40)

does not agree with the program recommendation: “I do not think that's appropriate when she gets overwhelmed easily. She really needs a one on one in a class of

12. That would be hard to give to her since there are no paras to give the one on one throughout the day. She really needs the one on one attention just to focus and just to stay involved in the lesson.” (T 41)

Student has her own one on one paraprofessional in the current class for transitioning help throughout the day. (T 41-42)

Before the school year began JCSE determined the student would not be appropriate for the class without a para. (T 47)

Student needs a lot of positive reinforcement and sometimes will copy negative behaviors. (T 42)

Student is not on grade level and it is not appropriate for her to take standardized state assessment. (T 43)

identified the JCSE Educational plan entered as Exhibit G. (T 44)

identified progress in the areas of phonological awareness, student mastered approximately 15 letters, can recognize units of sound, is segmenting sentences, and can locate parts of a book. (T 44-45)

In reading comprehension student can sequence three main events. (T 45)

In math student understands the concept of more and less with objects and can sort activities by morning afternoon and evening. (T 45)

Social progress is described as “…she loves playing with the other children…she still needs the teacher intervention, but she's playing with toys more appropriately, more maturely. She has learned when speaking to peers or adults, maintain appropriate distance is still ongoing. She needs to be reminded, but she got better at that, too. She's more aware of those behaviors.” (T 46)

believes is appropriate for the student for the current school year: “We look at what she needs, what her deficits are, and choose goals…target those behaviors…and she made a lot of progress in various areas…and social skills instruction, the small class size, the - - one on one and multi-sensory. All these things helped her.” (T 46-47)

PARENT WITNESS

( ), reviewed her educational history and qualifications and testified as Program Director of . (T 50-51)

supervises the students program and is in the student classroom almost every day. (T 51-52)

described program. “We are five self-contained classrooms in a building that's connected to a small private girls' school here in Brooklyn trying to provide as much mainstream experience for our students. They have lunch together. They will have recess together. They go to special performances both ways. When they perform, they come; and when they perform, we go. We have a monthly special assembly where a student of the month award is given out, and our students participate in that, as well. They wear the same school uniforms; so, there's a sense of belonging to a larger school.” (T 52)

The program currently has 33 students ages five through twelve. (T 52-53)

described the student and her challenges, (T 53-54)

Student is sociable and responds well to behavior modification techniques. (T 54-55)

Student receives services of a para, speech twice weekly in Yiddish, OT three times weekly and PT twice weekly, each for thirty minute sessions. (T 55-56)

Services providers and teachers have regular contact and conference regarding students. (T 56-57)

Student has two teacher, one in the morning and one in the afternoon. (T 58)

A curriculum director supervises the teachers. (T 58)

reviewed how the student’s needs are addressed relative to language needs, including visual cues and pre-teaching vocabulary. (T 59-60)

Behavioral issues play skills are addressed using a reinforcement chart, role modeling and reinforcement. (T 60-61)

notes progress in the student being better able to sit, better able to focus, touching other students has decreased and play skills improved. (T 61-62)

IEP does not accurately address the full range of the student’s needs. “…you don't get any sense from this IEP in the first couple of pages that this is a child who presents with serious ; and just looking at this, you would never know just how significant her speech and language deficits are. In general, there just seems to be, also, a lot of discrepancy about the behaviors. For example, on the first page where it says student strengths, preferences, and interests, it says, "…loves to learn and play. She usually follows the classroom routines and transitions smoothly from one activity to another." And then following that, social development, she's usually able to attend a group lesson probably 20 minutes; and then in the next paragraph, it says, "She has difficulty maintaining regulation and self-control. She needs redirection. She needs to have boundaries set for her." That, to me, was…(the student)…I don't know what the other two paragraphs are talking about, but that's not what…(the student)…was.” (T 63)

“She wasn't . She . This was more--some are for her it says on the bottom of the first page, and that was …(the student)…I don't really understand--it seems to me there was no--two different sides--there were two different aspects of the child, and one is - - in terms of the description. On the second page on the bottom, it says that the student needs strategies, including positive behavioral intervention support and the strategies to - - the student's learning - - and it said no, or does she need a behavioral intervention plan. It said no. Clearly, this child was in desperate need of supports and and a plan. So, that wasn't appropriate…” (T 63-64, Ex P 1-2)

CR does not feel the goals in the IEP are appropriate for the student. (T 65)

points to several goals as being out of reach for the student . (T 65-66, Ex P 3-4)

did not see goals in the IEP to address the student needs relating to phonological awareness, behavior or social interaction. (T 66-67)

believes the recommended program was too large for the student and that she would not receive the needed attention. (T 68)

believes the program is appropriate for the student: “Because evaluated her.

We looked at her deficits. We looked at--all across all areas from social and emotional and academic and we established short term goals to address all those areas, and we decided on methods and strategies to achieve those goals, and we provided her with the therapy that she needed to move forward, and she's made very nice progress here.” (T 69)

PARENT WITNESS

) testified as the student’s mother and reviewed the child‘s early history. (T 71)

noticed a possible disability at about six months of age, had her child evaluated, was initiated. (T 71)

and educational services began about six months later and continued as home services until the student was three, at which point she began to attend a special school recommended by the DOE. (T 71-73)

Child attended this program until she was five. (T 73)

In August of 2012 began to discuss her child’s next program with the school and CSE. was not asked for any new evaluations or classroom observation. (T 76)

attended an IEP meeting on April 16, 2013. (T 77)

identified parties at the meeting, which lasted about 20 minutes. (T 77)

recalls that the parties could not reach a conclusion. One party felt the student needed special education, another felt that she needed a program that had a behavioral program special for her needs, and the teacher thought maybe she needed a para. (T 77)

was told she should go check out the recommended program. (T 77)

was told if she brought notes reflecting negative behavior she may qualify for a para. sent the notes, but was told a supervisor would not allow it. (T 78-79, Ex I)

Goals were not discussed at the meeting. (T 79-80)

visited the recommended program but felt it was not appropriate. The students were very low functioning, and not what was needed by her daughter. (T 80 83)

advised a person at the recommended site of her concerns. (T 83)

identified her letter of July 17, 2012, which raised concerns regarding her placement visit. has not received a response. (T 84, Ex K-1)

identified her letter of August 23, 2012, which raised concerns regarding her placement visit, the IEP, and notified the school that she would be enrolling her child at and seeking public funding. has not received a response. (T 85-86, Ex L-1)

identified JCSE 2012-2013 enrollment contract. (T 86, Ex M)

understands she is liable for the tuition amount, however, if provided with an appropriate placement by the DOE she would be responsible for any time her child attended (T 86-87)

identified her cancelled checks as payments towards the tuition, totaling $8,000.00. also notes that she has paid an additional $100.00, which check has not been returned as of the date of hearing. (T 87, Ex O)

is not in a financial position to pay the balance of the tuition. She was able to send in the additional $100.00. (T 88-89)

identified the 2012 tax return as accurate, representing her entire household income. (T 89, Ex N)

does not own a home or any property. (T 89-90)

has seen progress in her child through her learning the ABCs, body awareness, her socializing and being able to verbalize her feelings. (T 90-91)

feels is appropriate: “…they work a lot of positive reinforcement, which is very important…charts and giving food and anything to make her sit still or to follow certain directions that they ask her to do, and they basically made her aware of certain punishments that can come, and they basically showed her how to socialize with her peers, which is very important, because she's a very social girl. She just didn't have that social skill--teach her how to interact with other kids.” (T 91-92)

DEPARTMENT OF EDUCATION POSITION

Dr. ) District Representative, appeared at hearing, briefly on 05/21/2013, for the Department of Education.

noted that he had requested an adjournment of the hearing due to his having another hearing scheduled simultaneously and excused himself to attend the other hearing. (T 11-12)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[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]).

A student is offered a FAPE 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).

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 "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, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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]). 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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards 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]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "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 special 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 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 does 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 specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. 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 handicapped 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).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to 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 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 Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 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 Hills 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).

The IDEA allows that reimbursement may be reduced or denied if 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 C.F.R. § 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, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT

DOE presented no witness or evidence to defend a proposed placement.

DOE failed to meet its burden of proof establishing a FAPE was offered to the student for the 2012-2013 school year.

Despite the lack of a DOE case presentation the Parent presented evidence indicating the inappropriateness of the IEP and program for the 2012-2013 school year.

sets forth that the IEP was predetermined, as is evidenced by the IEP being dated and completed on 04/04/2012, when the IEP meeting took place on 04/16/2012.

(T 96, Ex. III-3)

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation"]; Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]). The consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K, 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see M.R. v. Scarsdale Union Free Sch. Dist., 615

F. Supp. 2d 283, 294 [S.D.N.Y. 2009]).

I find that the CSE denied the parent meaningful participation as evidenced by the IEP being completely prepared and printed out twelve days prior to the meeting. Parent indicates some level of discussion and disagreement regarding the program recommendation, on the day of the IEP meeting. recalls that the parties could not reach a conclusion. One party felt the student needed special education, another felt that she needed a program that had a behavioral program special for her needs, and the teacher thought maybe she needed a para. None of this information is reflected in the IEP indicating consideration of parent concerns or any input by any party the day of the meeting. Other programs considered indicate Special Education Teacher Support Services (SETSS) and Integrated Co-Teaching (ICT), neither of which are evidenced to have been discussed at the IEP meeting. (T 77, Ex P-10)

does not agree with the program recommendation: “I do not think that's appropriate when she gets overwhelmed easily. She really needs a one on one in a class of

IEP does not accurately address the full range of the student’s needs. (T 63)

does not feel the goals in the IEP are appropriate for the student. (T 65)

points to several goals as being out of reach for the student . (T 65-66, Ex P 3-4)

did not see goals in the IEP to address the student needs relating to phonological awareness, behavior or social interaction. (T 66-67)

believes the recommended program was too large for the student and that she would not receive the needed attention. (T 68)

Goals were not discussed at the meeting. (T 79-80)

I find the DOE failed to create and appropriate IEP and failed to offer a FAPE to the student for the 2012-2013 school year.

PLACEMENT

Parent and staff detailed an understanding of the student’s needs and the appropriateness of the program for the 2012-2013 school year.

Student class consists of six students who began the year at beginning kindergarten level, aged five and six, a teacher, assistant and para. The student has her own para. (T 37-39, & 47)

Some , there are two other Yiddish speaking children in the classroom and all teachers all speak Yiddish. (T 38-39)

Student was described the student had a hard time , did not prefer to play with a peer, didn't care what the other children thought of her, would just sit on the side alone, weak prewriting and . (T 20-23, 26-27 & 53-54)

Student academic needs were addressed through modeling, one on one for reading and math, small group size for letter and number recognition, multisensory activities, circle time, repetition, games and activities, physical activities throughout the day, instruction that is interactive and hands on, visual cues, vocabulary that is pre-taught, repetition, and activities the student enjoys (T 23-26 & 38)

Behaviors and transitioning are addressed through a food, a token economy system, a chart and timer, a structured schedule and sensory input. (T 26-29)

Educational Plan was identified and is included as Exhibit G. (T 44)

Student receives services of a para, speech twice weekly in Yiddish, OT three times weekly twice weekly, each for thirty minute sessions. (T 55-56)

Student progress is indicated throughout hearing testimony. Examples of progress include student having mastered numbers 1 through 8, ability to count until 20, having learned a new concept of top, bottom and middle, and student is better able to focus. (T 25, 46-47 & 61-62)

has seen progress in her child through her learning the ABCs, body awareness, her socializing and being able to verbalize her feelings. (T 90-91)

believes the program is appropriate for the student: “…evaluated her…looked at her deficits…established short term goals…decided on methods and strategies…provided her with the therapy that she needed to move forward, and she's made very nice progress here.” (T 69)

feels is appropriate: “…they work a lot of positive reinforcement...showed her how to socialize with her peers…teach her how to interact with other kids.” (T 91-92)

For the 2012-2013 school year I is an educational program which meets the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, complied with CSE requests, visited the recommended placement and communicated her concerns to the DOE. (T 77-84, Ex K & L)

identified her letter of 08/23/12, which raised concerns regarding her placement visit, the IEP, and notified the school that she would be enrolling her child at and seeking public funding. (T 85-86, Ex L-1)

identified 2012-2013 enrollment contract. (T 86, Ex M)

understands she is liable for the tuition amount, however, if provided with an appropriate placement by the DOE she would be responsible for any time her child attended (T 86-87)

is not in a financial position to pay the balance of the tuition. She was able to send in the additional $100.00. (T 88-89)

identified the 2012 tax return as accurate, representing her entire household income and testified that she does not own a home or any property. (T 89-90)

Evidence shows is not financially able to afford the tuition.

I find that the parent cannot afford to pay and receive reimbursement of the tuition balance and is entitled to reimbursement of funds paid and direct payment of any balance due for the 2013-2013 school year

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012-2013 school year.

2. The parent shall be reimbursed for any payment made for 2012-2013 school year tuition, up to $8,100.00.

3. The DOE shall pay shall directly the tuition and addendum amount due or to become due for the 2012-2013 school year as ordered.

3. Tuition amount payable by DOE in the amount of $31,400.00.

4. Addendum to enrollment contract amount payable to JCSE by the DOE for related services shall include, for services rendered during the 2012-2013 school year:

at a rate of $54.00 per 30 minute session up to $4,320.00; at a rate of $45.00 per 30 minute session up to $5,400.00;

Physical Therapy at a rate of $45.00 per 30 minute session up to $3,600.00.

5. This decision is subject to appeal and review by the State Review Officer. Dated: June 21, 2013

________________________

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;mv

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 Impartial hearing request, dated 3/20/13, 3 pages B Due process response, dated 3/25/13, 4 pages C Progress report, January, 2013, 2 pages D Speech progress update, February, 2013, 1 page E update, January, 2013, 1 page F Physical therapy progress report, February, 2013, 1 page G Education plan from JCSE, October, 2012, 12 pages H Social history dated 4/20/2010, 3 pages I Anecdotal record, 2012, 2 pages J Special education service delivery report, January, 2012, 1 page K Letter from parent to CSE, dated 7/17/12, 2 pages L Letter from parent to CSE, dated 8/23/12, 2 pages M Enrollment contract dated 8/30/12, 3 pages N Tax returns, 2012, 2 pages O Copy of a check, August, 2012, 4 pages P IEP dated 4/16/12, 11 pages

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I Subpoena to ,dated 5/7/13, 2 pages II Subpoena , dated 5/7/13, 1 page III Parent Closing Statement and Memorandum of Law, dated 06/07/2013, 1

New York City Department of Education, Impartial Hearing Decision