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: Parents

Dates of Hearing: May 21, 2013

June 5, 2013

June 18, 2013

Actual Record Closed Date: July 10, 2013

Hearing Officer: Judith Schneider, Esq.

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

Esq., Attorney — Parents

Dr. CSE Chairperson Designee — DOE

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

Esq. Attorney — Parents

Esq Attorney — Parents

Father — Parents

Mother — Parents

Coordinator- — Parents

(via telephone)

DOE Representative — DOE

DOE

(via telephone)

CSE-Teacher Assigned — DOE

(via telephone)

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

Esq. Attorney — Parents

Esq. Attorney — Parents

Father — Parents

Dr. Director- — Parents

(via telephone)

DOE Representative — DOE

On May 21, 2013, June 5, 2013 and June 18, 2013 , I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated February 22, 2013 but transmitted to the Impartial Hearing Office on March 26, 2013. I was appointed Impartial Hearing Officer on March 27, 2013. I was available to conduct a hearing within 14 days. On April 24, 2013, at a telephone conference, the initial hearing was scheduled for May 21, 2013, the first mutually available date for the parties, witnesses and hearing officer.

The initial compliance date in this matter was June 10, 2013. The parties moved to extend the compliance date on several occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing argument, and to provide an opportunity for review of the record and issuance of a decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 6, 19, 128, Ex. 1)

The current compliance date is August 9, 2013. The record closed on July 10, 2013, upon my receipt of the final transcript.

Positions of the Parties

The parents assert that the DOE failed to provide a FAPE for the 2012-2013 school year, claiming that the IEP was procedurally and substantively defective and charging among other things, improper composition of the CSE team, failure to obtain/consider formal evaluations or objective testing, the absence of a BIP despite behavioral and intentional issues that impede learning, inappropriate and vague goals, inappropriate promotional criteria, inadequate descriptive information and the recommendation of a program not reasonably calculated to enable this student to make meaningful education gains. Further, the parent asserts that the recommended placement was not appropriate. The parents unilaterally enrolled the student , a private school, claim that equitable considerations support DOE funding for the secular portion of that placement. The parents also claim inability to fund the program and seek reimbursement and seek prospective funding. DOE funding is sought only for the portion of the day taught by the special education teacher. (T. 163-166, 335-351, Ex. A)

The DOE asserts that its IEP and placement were appropriate, that the parent had an opportunity to participate in the development of the IEP and that it provided a FAPE. Further, it claims that the unilaterally selected placement is not appropriate and asserts that staff lack appropriate credentials, there is a lack of educational continuity between disciplines, there are inadequate Occupational Therapy (“OT”) services and inadequate student progress in the program has been demonstrated. The DOE also asserts that the parents would never have sent the student to a public school and, further, that they have not established an obligation to pay the tuition and therefore claim that equitable considerations do not support DOE funding. (T. 11-14, 351-354)

Background

At the commencement of the 2012-2013 school year in September (10 month program), the student was almost old and was classified as a student with (Ex. 1) That classification is not in dispute.

The student attended during the 2011-2012 school year pursuant to unilateral placement by the parents. (T. 325-326) is, a non-public program that is located in various and is not approved by the New York State Education Department as a program with which districts may contract for the delivery of special education services. (T. 229)

The CSE convened for an annual review on March 13, 2012 (“the review”) and recommended a program (10 months) in a community school with related services (Speech/Language Therapy (“SL”) 2x30 ( ), OT 2x30 ( ) and Counseling 2x30 ( ) – all to be provided in a separate location (provider office). (Ex. 1)

By letter dated July 25, 2012, the CSE offered a placement. (Ex. 3) The parents visited the placement on two occasions, concluded that it was not appropriate and so informed the CSE. ( Exs. B, H, I) The CSE responded to the first communication by again recommending the same placement and there is no indication in the record that it made any response thereafter. (T. 309-310) By letter dated September 30 and October 16, 2013, the CSE was informed that the parents would re-enroll the student and seek DOE funding. (Exs. H, I)

The parent executed an enrollment contract with on September 23, 2013 which required, among other things, the submission of monthly post-dated checks (referred to therein as “head checks”) and specified that the total tuition of program was $41,750.

(T. 317, Ex. C)

Cases Presented

A. DOE

The DOE presented the testimony of two witnesses: , a DOE teacher who participated in the March 13, 2012 CSE review as a special education teacher; , an Assistant Principal at the recommended school.

is a certified special education teacher and was the “teacher assigned” as well as the district representative for the review. Also participating was a DOE general education teacher, a DOE school psychologist, a parent member, special education teacher and the student’s father. (T. 83-86) and the general education member last taught some three years ago. (T. 99) The team determined that the student . (T. 87) That was based, as far as he could recall, solely on the information provided by at the meeting. (T. 119-120) could not recall the specifics of the meeting but created minutes very shortly afterward. (Ex. 2) He never met or observed the student and could not recall whether anyone else on the team had. (T. 94, 123) He acknowledged that there was no indication on any DOE document in evidence that any evaluation was considered in conducting the review and could recall none. (T. 94-96, 120) At the time of the was aware that the student was in a small classroom but could not recall whether he knew the class size or the student-staff ratio. (T. 99-100) He assumed that the student had been receiving her related services at that time and in the absence of reports would have relied on teacher and parent reports to determine current needs. (T. 100-102) He acknowledged had been reported by the teacher as well as a classroom behavior management system but that a CSE BIP was not created. (T. 102-105, Ex. 1) However, he did not recall receiving any anecdotal or documentary information indicating a level that required a BIP. (T 113-114) stated that the IEP reported reading and math grade levels generally and that although sub area skills levels and writing grade level were not discussed, that was not uncommon. (T. 105-106, 116-117, Ex. 1) He opined that a class would have been too restrictive for the student. (T. 122)

is an Assistant Principal at the recommended school who supervises the special education teachers but is herself not special education certified. (T. 24, 72) She testified that the school had and ICT classes for each grade but had no classes. (T. 24, 71) The students generally are classified as learning disabled, or . (T. 56) The student’s program would have been departmentalized but she would have traveled with the same students.

(T. 49) Not all teachers of the grade core subject teachers at the recommended school are special education certified, including two of the teachers in the student’s designated class, and specialty teachers are generally not special education certified. (T. 25, 38, 51-

55) Students are grouped within classes based upon behaviors and functional levels, differentiated instruction is provided and there are assessed routinely with standardized tests. (T. 26-27, 42, 66) There are three girls in the grade classes, all in the same class.

(T. 28) In September 2012 the students were functioning about three grade levels behind although the student was functioning somewhat higher in some math skills. (T. 29, 41-42) The school could have fulfilled the student’s OT and SL mandates in September 2012 but was unable to fulfill the counseling mandates for all of its students until April so some students did not receive, in any manner, the services they were mandated to receive. (T. 29, 74-75) The students are routinely mainstreamed for lunch and physical education and in certain specialty classes in various “sub” schools within the program and there are mainstreaming opportunities in subject classes. (T. 32-33, 44-45) There are a total of about 850 students in the building and each grade is kept together on the same floor, whether special education or not. (T. 36) A 37 minute 9th period is provided for educational support. (T. 37, 76)

B. Parents

The parents presented the testimony of: special education teacher; director; the student’s father (“the parent”)

is a New York State certified special education (elementary) teacher who is coordinator of the student’s program, located in Beth Jacob Day School (“Beth Jacob”), and is in the student’s classroom frequently. (T. 131-133, 153, 179, 211-212) Mainstream opportunities are provided socially and academically with Beth Jacob students. (T. 179-181) There are 25 students in the P’tach program at Beth Jacob, from third through 8th grade and all classified as learning disabled. (T. 179-180, 198, 213) Staff meetings are officially at least once a month with additional meetings if needed and staff development is provided. (T. 195-197) She described and artistic but struggling with various , primarily language, with poor vocabulary, word retrieval and memory, a high degree of disorganization, a big problem with attention span, spacing out and getting distracted and not working well independently, with poor attention to detail and requiring scaffolding and various material aids. (T. 131, 134, 140, 143-144) She opined that the student required more one to one and redirection than could be provided by one teacher in a class of 12. (T. 150-151)

For the 2012-2013 school year, the student was deemed grader and placed in a class grade students. (T. 133) She uses a 5th grade text book for math with a modified special education program but may be grouped with grade” students who are functioning at the same level. (T. 189-193) She is in a , all functioning within 1-1 ½ years of each other and this student in the middle, with a teacher and an assistant. (T. 151) The student was tested at the end of the 2011-2012 school year and, according to her teacher, achieved an end 3rd grade level in reading. (T. 133-134 with the Woodcock assessment for reading and mid chapter tests in the reading and math texts used as well as teacher observation. (T. 157-158, 214-215) The student commenced the next school year at levels for reading and math according to her teacher. (T. 134, 139-140) MZ characterized the IEP’s listening and reading comprehension goals as vague and/or generic. (T. 136,

139) With regard to the decoding goal, she said the student required more work on phonetic multi-syllabic word decoding. (T. 137) the math goals as good goals but insufficiently detailed because they don’t indicate the specific teacher interventions that would be required and the writing goal as being too advanced for her without a lot of direction. (T. 141-144, 146) The student has “some fine motor issues” which are addressed with knitting and guitar. (T. 147)

testified that during the 2011-2012 behavioral issues involving destruction and anger were addressed with an individualized behavior plan. (T. 148, 150) An individualized plan was in place at the beginning of the 2012-2013 school year but had been modified and included contracts regarding anger, putting her head down and class disruption. (T. 149) Those improved after three months and contracts then focused on eye contact and paying attention which did not involve the guidance counselor. (T. 149, 203-208, Ex. J-2) The contracts, developed by the teacher and guidance counselor, provide rewards for appropriate behavior. (T. 150, 201) The student receives counseling through the DOE. (T. 170-171) progress reports include a section on social/emotional issues and are submitted to the DOE but no other reports concerning social emotional issues are submitted by (T. 170-171)

stated that the student also made progress in reading and math and by the end of the 2012-2012 school year was at a mid-fourth grade level for reading and at a beginning firth grade level for math. (T. 152) She opined the student had made progress in writing as well as socially. (T. 152-153, 213) Her handwriting has improved dramatically. (T. 173)

Judaic studies and Hebrew language is taught in the morning by a teacher who had experience in teacher seminary and with but has no state certifications and did not attend college. (T. 159-160) Reading, writing, math, social studies and science are taught later in the day by a special education certified teacher. (T. 158, 161) An aide who has a Regents high school diploma and at least a year of a non-accredited teacher seminary is present throughout the day. (T. 162) A computer class is provided with mainstream students by a teacher hired by . (T. 167) The New York State approved curriculum is followed with Scott-Foresman text books, with various levels, used. (T. 157, 192-193) The music teacher, who teaches guitar, is a licensed speech language pathologist. (T. 167-168, Ex. F) The art teacher, who teaches knitting, does not have a teaching degree or certification. (T. 167-168, Ex. F) Related services are provided by licensed and certified speech therapist and guidance counselor in pull-out sessions but did not know what times those pullouts occurred. (T. 171, 182-183, Ex. F) has concluded that the student’s OT issues are appropriately addressed by knitting and guitar and her handwriting is improving as well as by the teacher in the classroom. (T. 173, 177)

testified that he is a NewYork State licensed speech/language pathologist, has a doctorate in supervision and administration with a specialty in special education and teaches various courses focusing on learning disabilities and pathology and has been director of for 30 years. As director he supervises the educational program and oversees the financial and business aspects. (T. 226-228, 258) His last experience teaching children occurred over 30 years ago (T. 258-259) operates some three to four classes at each of five schools at four sites to provide special education services in selfcontained classes of some eight to nine students with opportunities for mainstreaming where appropriate. (T. 229, 261-262) visits each program about twice a month and each program has a program coordinator who has the primary responsibility for supervising teachers. (T. 262-263)Texts and materials utilized by are New York State approved. (T.

260) There are some 300 mainstream students, kindergarten through eighth grade, at Beth Jacob. (T. 230, 231) JW testified that there are nine children in the student’s class but some students are mainstreamed during part of the day so the class is functionally smaller. (T. 232) The student has attended P’tach for several years. (T. 234)

reviews all progress reports sent to the CSE and testified that they were provided in advance of reviews. (T. 236) He reviewed a progress report he testified was dated May 4 and which corresponded as he discussed it to Exhibit M whose dating is unclear in the document submitted. (T. 238-239) The report discussed describes the student’s anger in class as well as , indicated that a behavioral plan utilizing individualized prompts, was in effect and said that issues for discussion included social training interaction with adults and anger management with peers. (T. 239-241, 264-265, Ex. M) Data is collected regarding the utilization of prompts. (T. 29293)JW testified that the CSE asked only asks for that progress report, a speech progress report and sometimes a counseling report abut he could not recall whether related service reports were requested for this student. (T. 242, 294) No other reports concerning progress are prepared for P’tach. (T. 293-294) With regard to strategies generally, he stated that an approach based upon “demystification” helped the students understand and appreciate learning differences and to develop optimism and decrease frustration. (T. 270-271, Ex. J-2) He stated with regard to the student’s program that religious studies, prayer and Hebrew were taught by a teacher with a post high school seminary/teaching degree who has some 20 years of experience in special education and who has been receiving special education training from MS. (T. 243-244, 245, 273, 275-276) The teaching assistant for those and all other classes during the day is a high school graduate with no other credentials. (T. 244-245, 247, 273-274) The music class has ratio and the art class the ratio is . (T. 245) s provided twice weekly in 30 minute sessions believed to be and was provided twice weekly in 30 minute sessions (T. 249-250) OT is not provided as a related service but fine motor issues are addressed in the art/knitting class and by the afternoon class teacher.

(T. 251, 287) Neither the or counseling provider is funded by the DOE but rather are paid by P’tach. (T. 251, 290) The sole English academic course on Friday is one hour.

(T. 278, Ex. F) follows the mainstream school schedule which is in conformity with New York State requirements with regard to days of instruction per year. (T. 278-279)

With regard to the tuition contract, reviewed a contract dated October 1, 2012, and stated that that was the only one he had. (T. 252-254) He had no explanation for the discrepancy in dates between the contract he was reviewing and Exhibit C, submitted by the parent which is dated September 23, 2012 but speculated that perhaps the original contract was misplaced and the parent had to sign another copy. (T. 254, 288-289) stated that the parent was obligated to pay a total of $42,500 (including the $750 registration fee) and that the parents had made a payment of $350 to enable the student to commence school and had provided postdated post-dated checks for the balance. (T. 254255, Ex. C) Additional payments of $350 each for May and June have been made pursuant to the plan. (T. 255, 283) The parents are required to pay the tuition in full and pursuant policy of which they have been informed, the student may not return for the 2013-2014 school year unless they fulfill their obligations and continue to pay. (T. 254) Bills are sent to the parents each month detailing their obligation has commitments from family members concerning this matter. (T. 256, 282-284) Tuition for the 2011-2012 school year has been partially paid by the parents but a balance remains and is permitted pursuant to policy that it will carry a balance for two years. (T. 284-285)

The parent testified with regard to the student’s strengths and weaknesses that she was “perfect” in math but had problems with reading, science and attention. (T. 297) The student initially attended a play group with some 15 students but then attended a large private school class associated with a yeshiva with one teacher and was not successful at which time the parents initially contacted the DOE. (T. 297-300, 306) He believes the student has progressed in the . (T. 319-320)

The parent had no specific recollection of what occurred at the review but said he had been able to give his opinion that he had objected that a program had too many students and not enough adults. (T. 302-305, 321-323) The parent visited the proposed placement and was shown by what he was told was a class and formed he opinion that the students were functioning at a higher grade level than his daughter, appeared older and were all boys, and that the school was noisy. (T. 306-310, Ex. B) After he wrote the CSE stating his concerns, he received another FNR with the same placement and made similar observations. (T. 310-312) He was also told that one of the student’s related services could not be provided at that time. (T. 313) The parent testified that he would have accepted a secular program if an appropriate one had been offered. (T. 315)

With regard to the contract, he stated that he recalled signing two contracts because the school had misplaced the first and that he intends to pay the tuition required either with post-dated checks or loans from his family. (T. 317) The parent had no recollection as to how much money is still owed for the 2011-2012 school year. (T. 317,

333) The documents show that he made a $2000 payment on October 23 although he initially testified that he gave a deposit of $2500 when he signed the contract on September 23, the first day of school, and later provided post-dated checks. (T. 330-331 Exs. C, D, E) Loans were obtained from family members to pay tuition for the period prior to the 2011-2012 school year. (T. 331)

Findings of Fact and Conclusions of Law

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

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

Prong 1

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

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. In the instant matter, the DOE has not demonstrated that the CSE relied upon adequate evaluative material. Although the minutes indicate that materials were reviewed by the committee (Ex. 2), there was no identification of what was reviewed and what it provided and the testimony of SZ suggests that no written materials were reviewed. The undated 2011-2012 progress report submitted by the parents, and which in any event I find to be cursory, was created on May 20, according to the testimony of , well after the CSE review. (Ex. M) Although the IEP referenced “3/12/12 report” from the teacher testified that it was an oral report at the review and could recall virtually no details. Further, had no knowledge as to the program the student was then receiving and had never met the student, there was no indication that any DOE participant at the review had met the student and there was no observation. I find credible the testimony of concerning the student’s .

I conclude that the DOE has established no basis on the record here to support its conclusion that the program it recommended, which, I note, was substantially less intensive than what the student was receiving, was reasonably calculated to enable this student to make meaningful educational gains. In view of the foregoing findings, I do not address the parents’ other claims with regard to defects.

Further, the DOE has failed to establish that it provided a placement that would implement the IEP. I note that the CSE recommended a program and the program at the recommended school which would have been provided to this student was , which the CSE had concluded would be too restrictive. There is no claim or indication that the placement was in response to the student’s observed needs even had that been permissible. I note that the DOE may not rely on a deviation from the IEP presented to the parents to support a placement. See, R.E., M.E., et al v. NYC Dep’t of Education, 694 F. 3d 167 (2d Cir. 2012). Rather the evidence supports the conclusion that the student was placed in disregard of the CSE’s recommendation in the program available at that selected school. I also note that the evidence shows that the school did not meet the counseling needs of students, whether through in school services or through issuance of RSAs until April, when the school year was substantially over and that the parent was informed when he visited that this student would not receive counseling when she started school. Here, the CSE noted certain and the testimony of staff concerning destruction and anger issues during the 2011-2012 school year, which continued into the 2012-2013 school year, was persuasive. Further, the CSE recommended counseling as an aid to support the student’s transition which it was expected would result in greater stress. There is no basis for a conclusion that necessary and mandated counseling would have been provided to this student during the major part of the 2012-2013 school year and in the circumstances here I conclude that that is not a de minimis implementation failure. In view of the foregoing findings, I do not address the parents’ other claims with regard to the placement.

As set forth above, I find that the DOE has failed to establish that it provided a FAPE for the 2012-2013 school year.

Prong 2

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

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

I find the parents have met their burden to establish that the program provided was reasonably calculated to enable the student to make meaningful educational gains. The parents’ witnesses testified credibly concerning the student’s instruction in academic subjects as well as certain other courses. The persuasive testimony shows that the student was appropriately grouped, that the afternoon academic subjects were taught by a special education teacher aware of the student’s and that the student’s academic needs were addressed with the added help of a teaching assistant. Further, an individualized behavior plan was developed and utilized. Mainstreaming opportunities were available to the extent that the student was able to appropriately utilize them. Further, I find the testimony with regard to the student’s progress credible and find that that testimony supports the claim that objective measures were used. (See also Ex. N) The student received related services of . Although the DOE notes that OT was mandated by the CSE and that OT was not provided, it is well established that a private placement is not inappropriate merely because it does not provide all the services the CSE recommended. M.H. v. NYC Dep’t of Educ., __ F.3d__. (10-2181-cv, 10-2418-cv) (2d. Cir. June 29, 2012) Further, in this matter, no OT evaluation was submitted to the CSE to indicate the student’s need and the parents’ witnesses credibly testified that the student’s fine motor difficulties were effectively addressed programmatically through knitting and guitar playing.

The parents do not seek reimbursement for the morning portion of the student’s program. Therefore, I address neither the claims by the parents’ witnesses that the Hebrew language portion of the program should be considered part of the student’s secular academic program nor the DOE’s claims concerning the evidence that the Hebrew language teacher is not a certified teacher for either general or special education and indeed does not have a college degree. In this matter, the parents have specified that with regard to academic instruction they are requesting DOE payment only for that provided by the special education teacher. Based upon the testimony and evidence presented, I conclude that entitlement to DOE funding, if not denied or limited pursuant to equitable considerations, is limited to 40 % of the program cost. (See Ex. F)

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. The parents’ preference for another placement, if that is the case, and/or entering into a contract with a school is not dispositive of a claim for reimbursement. Application of a Child with a Disability, Appeal No. 05-087. The evidence shows that the parents cooperated with the CSE with regard to the development of the IEP, visited the school and timely communicated their objections to the program and the school. There is nothing in the record indicating that they were unreasonable in their interactions with the CSE. The uncertainty of the parent concerning the extent of his financial obligation does not require a conclusion that there was none. Further, I find credible the testimony of JW concerning the parents’ obligation.

Accordingly I find no basis for a denial or limitation of DOE funding based upon equitable considerations. Further, the parent has established by credible testimony and evidence inability to pay the full tuition and seek reimbursement.

Order

The student is entitled to DOE funding for the 2012-2013 school year for 40 % of $42,500. The DOE shall reimburse the parents upon evidence of payments made by them and directly pay the balance to

Dated: July 24, 2013

______________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

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

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 3/13/12, 12 pgs. Department of Education

2 Minutes of CSE Review, 3/13/12, 1 pg. Department of Education

3 FNR, 7/25/12, 1 pg. Department of Education

A Impartial Hearing Request, 2/22/13, 2 pgs. Parents

B Letter from CSE to Parent, 9/14/12, 2 pgs. Parents

C Enrollment Contract, 9/23/12, 1 pg. Parents

D Attendance Record, 5/20/12, 1 pg. Parents

E Affidavit, 5/20/13,1 pg. Parents

F Class Schedule, undated, 1 pg. Parents

G Program Description, 1 pg. Parents

H Letter to CSE from Parent, 9/30/12, 1 pg. Parents

I Letter to CSE from Parent, 10/16/12, 3 pgs. Parents

J Prog Rept. (as rece’d by par.), 2012-13, 2 pgs. Parents

K Parental Tax Return, 2/23/12, 2 pgs. Parents

L Woodcock Results, 2012, 1 pg. Parents

M Prog. Rept (signature cut off), 2011-12, 1 pg. Parents

N Woodcock Results, 2013, 1 pg. Parents

I Prehearing Cong. Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer