New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 2, 2014

May 2, 2014

Actual Record Closed Date: June 23, 2014

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ONAPRIL 2, 2014

Esq. Attorney — Student

Esq. Attorney — Student

Esq. Attorney — Student

Parents

Director of Elementary School — Student

(via telephone) — Student

Dr. Psychologist (via telephone) — Student

CSE District Representative — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO ONAPPEARED MAY 2, 2014

Esq. Attorney — Student

Esq. Attorney — Student

Esq. Attorney — Student

Head Teacher at — Student

CSE 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 Disabilities Act (“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 parent (“Parent”) on behalf ”) ,through her attorneys, , Esq., and Esq. from the law offices of , by filing a Due Process Complaint dated December 20, 2013 with the District on January 7, 2014, and an amended Due Process Complaint dated March 10, 2014 with the District. I was appointed on February 6, 2014 after recusals by other hearing officers. At the hearing, the Parent was also represented by , Esq., an attorney from The Parent is alleging that her son, ., was denied a free and appropriate public education (“FAPE”) for the 2013-14 school year and is seeking tuition for his unilateral placement at ”) for said year.

There were two (2) days of hearings in this matter. Hearings were conducted on April 2, 2014 and May 2, 2014. Extensions were granted in this case making the final compliance date June 30, 2014.^[1] A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND

This case involved an eleven (11) year old student. During the 2013-14school year, where the Student was unilaterally placed by the Parent.

With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on November 26, 2012. Pursuant to the November 26thIEP, the following recommendations were made:

2. Special Class, math, , five times per week, one period each time;

3. Therapy, , two times per week, 30 minutes each time; and

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. (IHO-I; Tr. 281).

4. Occupational Therapy, two times per week, 30 minutes each time.

The Parent entered into an Enrollment Contract for the 2013-14 school year on August 9, 2013.

The Parent filed a Due Process Complaint dated December 20, 2013 on January 7, 2014 (P-B) and then an Amended Due Process Complaint on March 10, 2014. P-C. I was appointed as an Impartial hearing Officer on February 6, 2014 after recusals by other hearing officers

POSITION OF THE PARTIES

District’s Case

The District called one witness, Frances Leung and place eight (8) documents in evidence. D-1--D-8.

Ms. is a certified bilingual school psychologist. She works for the District and is assigned in District . Tr. 97. Her main responsibilities at are to conduct evaluations, assessments, do classroom observations, teacher consultations, facilitate IEP meetings and write IEPs. Tr. 98. She was a school psychologist at during the 2012-13 school year and is familiar with the Student and has known him . Tr. 99. He was initially referred to the CSE for an evaluation before he started second grade. Tr. 99. The evaluation was conducted over the summer. Tr. 99. She became familiar with him when he started

In the fall of the 2010-11 school year, he was mandated to receive speech services only, however, the teacher became concerned with his reading and a reevaluation was done. Tr. 100. During the 2012-13 school year, the Parent wrote a letter requesting another reevaluation. Tr. 101. The Parent also submitted a visual efficiency evaluation. Tr. 101. Ms. did not do a reevaluation because she had done one on November 22, 2011. D-8. A CSE meeting took place on November 2012 and the Teacher’s Report (PS), the visual efficiency evaluation report submitted by the Parent (D-2), the November 2011 evaluation (d-8) and report conducted by Dr. on August 18, 2011 were submitted. P-F; Tr. 109.

Ms. testified that after receiving the outside evaluation from Dr. , she administered the Wechsler Individual Achievement Test and determined that . was performing at an age appropriate level for math and listening comprehension. Tr. 105. She determined that he was, however, struggling in reading comprehension and decoding. Tr. 105. She stated that Dr. performed an assessment of his cognitive functioning and determined that he is a child of average intelligence. Tr. 106. Ms. testified that the academic implications of having average intelligence are that given the appropriate support, the student would be able to acquire skills at a similar pace as his peers. She stated was making progress after they provided him with the phonics program he needed. Tr. 106. In the IEP dated November 2012, there is no specific name for the program listed; however, on the Present Levels of Performance section she stated that it sets forth “his need to build on his phonetic and word attack skills”. Tr. 107; D-1. She stated that the team recommended a setting so that the teacher is able to provide individual instruction in phonics Tr. 108. The teacher used the Wilson Program, which is a phonics based, multi-sensory reading program, to address .’s phonics difficulties. Tr. 108.

Ms. stated that there was a duly constituted CSE meeting. There were two special education teachers, one was his SETTS teacher from September and the other was Ms. Cristello, the special education teacher from the class. Tr. 110-111. In September, he was partially in the class for phonics. Prior to that, he was in a regular class and received SETTS. Tr. 111. She stated that an IEP was done in November 2012 so another IEP should have been done in November 2013 but she doesn’t know if one was done because . is not in her building. Tr. 113. Ms. testified that in November of 2012 he was recommended for a setting for ELA and math even though he was found to be age appropriate for math because math was getting harder and he needed more support for work problems. Tr. 114.

With respect to a Final Notice of Recommendation being issued after the November 2012 meeting, Ms. testified that she filled out the recommendation and gave it to the Parent at the meeting. Tr. 114. She stated that the Parent signed the Final Notice of Recommendation at the meeting. Tr. 114.

Ms. testified that she was familiar with a letter sent by the Parent on March 20, 2013 requesting a deferral to CBST. Tr. 115; P-S. She stated that the letter was addressed to the principal and she contacted the special education administration and a meeting was held with the principal, the Parent and her advocate, the assistant principal, and the special education administrator from the network. Tr. 115. This was not a CSE meeting, just a principal/parent meeting. Tr. 116. The special education teacher indicated that . was reading on a DRA Level of 34 at that time which is considered beginning/med third grade. Tr. 116. She stated that at the start of the year, he was reading at a DRA Level of 18 to 20, which is the end of first grade. Tr. 117. Ms. wasn’t sure what response was given to the Parent at the meeting concerning her request for CBST. Tr. 117.

Ms. testified that the Student had received a letter stating that his promotion was in doubt. P-2. She stated that even though he was making progress, he was still performing on level and it is “just policy” to send out promotion in doubt letters when a child isn’t performing level. Tr. 118.

After the CBST request from the Parent in March, 2013, no IEP meeting took place. Tr. 119. The Parent was not asked for any materials to support the CBST request. Tr. 119. Prior to that, during the November 2012 IEP meeting, Ms. did not believe . needed a private school setting. Tr. 119. She said this was because he was receiving the phonics program in the school and making progress. Tr. 119.

On report card for the 2012-13 school year, Ms. testified that although has ones across the board in his academics, Ms. stated that this doesn’t mean he is not making progress. Tr. 120. She stated that “He has level one because he is not reading on a level. The report card is done towards the end of year so if a student is not reading on level, it’s not even considered as approaching grade standards so that’s why he gets a level one. Tr. 120. . was receiving Wilson in the class during the 2012-13 school year. Tr. 121. She stated that was receiving 45-90 minutes of individual instruction per day in the class even though there was only one teacher and one paraprofessional. She stated that the paraprofessional was working with the other 11 children while he had instruction then they rotate. Tr. 122. She was not sure how many of the students in the class also had Tr. 122.

Ms. testified that she did not remember receiving any documents indicating that the Parent objected to her report or needed an independent assessment. Tr. 123. She said that the District usually allows the Parent independent assessments when no one else in the school building can do the assessment. Tr. 124. Ms. Leung also indicated that at the end of the year, . was promoted to . Tr. 124.

On cross examination, Ms. testified that she performed a psychoeducational evaluation of . in November of 2011 as an update since it’s not a comprehensive evaluation because she did not do the cognitive assessment. Tr. 125; D- 8. She hasn’t done any evaluations . since that time. Tr. 126. She stated that her November 2011 incorporated Dr. ’s results. P-F; Tr. 126.

The number of IEP meetings Ms. conducted this year was 105. She stated that no one left early from the CSE meeting in November. Tr. 125. After the November IEP meeting, . was in a general education setting with approximately 31 students and one teacher except for reading and math when he would be in a class. Tr. 129-130. He was expected to keep up with the other fourth graders for all of his classes except reading and math. Tr. 131. In November, his reading level was at an end of first grade level. Tr. 131. In a given week, based on the description of .’s program on the IEP, the student would be taken out of his general education setting 24 times. Tr. 133. He would be taken out 15 times for ELA, five times for math, two times for special education and two for occupational therapy. Tr. 133. He is mainstreamed into the general education class for five periods of math a week so he has five in the class and five in the regular class since they do ten periods of math a week. Tr. 134.

Ms. testified that she doesn’t know if Ms. .’s 12:1:1 teacher is certified in Wilson but she has received Wilson training. Tr. 134. On Ms. ’s report (D-8), it states that he was reading at a percentile rank of and for mathematics, it was a percentile rank of For reading this means that if there are 100 students his age, he would be scoring higher than four of them. Tr. 137. Ms. stated that the evaluation indicated difficulty with . Tr. 137. She stated that that was information she got based on Dr. evaluation and she incorporated it into her report. Tr. 137-138. Her evaluation also stated that . had deficits in visual perception reasoning that would significantly impact his ability to read and spell. Tr. 138. She also indicated that she used her report and Dr. ’s evaluation in the creation of the IEP, yet no vision supports were provided on the IEP. On page 11 of the IEP where recommended special education programs and services were listed, vision therapy was not listed. Ms. stated that is not a related service. She stated that it is not one of the common recommendations so it is not listed there but is listed in the “physical development” section. Tr. 141.

The 12:1:1 ELA program offered by is a graders. Tr. 142. There is no specific fourth grade ELA 12:1:1 program. Tr. 142. There was one other fourth grader in the 12:1:1 ELA program. Tr. 143. There were also students in the 12:1:1 program with behavioral problems, specifically two, one of whom is classified as emotionally disturbed. Tr. 143. Ms. was not in any .’s classes each day. Tr. 144.

Ms. testified that reading is a foundational skill for academic progress and fourth grade students should be reading for content. Tr. 144. For social studies and science and other non-ELA subjects, was supposed to keep up with the other fourth graders in a general education class. Tr. 146. Yet, she testified, that he could not read at a fourth grade level. Tr. 147. In the promotional criteria section, Ms. stated that it indicates that must meet 25 percent of the fourth grade New York State standards so that he did not need to meet fourth grade expectations to be promoted to fifth grade. Tr.

148. At the end of the 2012-13 school year, according to his report card, . was being promoted . Tr. 149. Ms. testified that “it is expected for him to have access to the fifth grade general education curriculum”. Tr. 149.

On redirect, Ms. testified that in November 2012, . was reading at an end of first grade level and that in May 2013, he was reading at a beginning to mid third grade level. Tr. 150. She based this on the assessment done by the classroom teacher with the DRA but she had no knowledge of his progress in the Wilson program. Tr. 150. At the end of the meeting in May, no referral was made to the CBST and Ms. Leung did not remember if a determination was made with respect to this. Tr. 152.

Ms. also stated that for the recommended services and programs on Page 11, there is a drop down selection menu including . Tr. 152. She has never recommended vision therapy in that drop box on the IEP for a student. Tr. 153. Ms wasn’t sure if an RSA was issued for vision . Tr. 153. It says on the IEP that he shall receive vision therapy but it does not indicate the number of times per week. Tr. 154. Ms. testified that vision therapy is provided for a finite number of sessions (i.e. 12, 16, or 20 sessions); it’s not something you get year after year. Tr. 154.

Ms. testified that pushed into the special education classroom for occupational therapy. Tr. 156. She is not sure if he was pulled out for speech in the general or special education classroom. Tr. 157. On his report card, . received a three for both science and social studies which indicates that he is on grade level. To address his needs in social studies, Ms. . could take the reading back to the 12:1:1 class where the teacher could work with him individually or in a small group. Tr. 160. Ms. could not explain how ’s periods in ELA worked and whether he was missing ELA when receiving instruction. Tr. 166. Parents’ Case The Parent called three witnesses, the Parent; and placed twenty-seven (27) documents in evidence. P-A – P-AA.

The first witness was the Parent. She has three children and is employed as a special education English teacher at . Tr. 170. She discovered that . was having learning difficulties at the end of kindergarten. Tr. 170. He was attending school at the time. Tr. 170. He wasn’t able to articulate or recognize certain sounds and letters, . Tr.

171. In order to address , she put him in because they have resources that can help him like . Tr. 171. She waited to have him evaluated to see it from teacher’s perspective. Tr. 171. The teacher stated that he was not able to read and was the lowest student in the class. Tr. 172. The Parent asked for an evaluation towards the end of the year and it was completed over the summer of 2011. Tr. 172. There was a continuous dialogue between the teacher and the Parent during the school year and she indicated . might also need speech. Tr. 173. The test results indicated that he and that he needed speech and had trouble articulating certain sounds. Tr. 174. As a result, . received an IEP to address his speech and language issues for the 2010-11 school year. Therefore, for the second grade (2010-11), pursuant to an IEP that was prepared in December of 2010. Tr. 176. The Parent asked for an ICT class or a class but the District indicated that they didn’t have one at Tr. 176. She did, however, indicate that other schools in the area had ICT classes. Tr. 177. They rejected ICT because they didn’t offer it in school but offered him SETTS in bridge class, and the rest of the day he was in a general education class. Tr. 177-178. He was out for one period a day for SETTS. Tr. 178. At this point, he and wanted to be able to read and move with the rest of his class. Tr. 179.

For the 2011-12 school year, for third grade, the Parent testified that she asked the District to retest . and that was the that was done by Ms. in November of 2011. D-8. The Parent also had . tested privately by Dr. in August and provided the District with the evaluation. P-F; Tr. 179. Dr. recommended an ICT class. Tr. 179. She had Dr. ’s evaluation done because she wanted another opinion since her son wasn’t reading. Tr.

180. The Parent had sent a request for an evaluation in September to the District and the evaluation took place in November. Tr. 180. When the CSE met in November of 2011, they changed his classification from . Tr. 180. The CSE recommended for him to stay in a general education classroom with SETTS. Tr. 180. The Parent indicated that she requested an ICT class and was told that one wasn’t available at the school. Tr. 180. She said she didn’t see any progress during the remainder . Tr. 181.

The Parent provided outside tutoring to the Student from first to third grade. Tr.

181. She took him of school and to a reading and continued with the reading specialist thereafter. Tr. 182. She wanted to give him the foundation he had missed since was just moving him along. Tr. 182. was . Tr. 182. By the end , started to hate school and it was hard to get him there. Tr. 183.

For the fourth grade year (2012/13), the Parent had . tested again. She took him to an eye specialist who evaluated him and also had him evaluated by another reading specialist. Tr. 183. The vision examiner found that he had a visual tracking disorder. Tr.

183. As a result, the Parent took him for visual therapy for 24 sessions. P-O. The reading evaluation was done by P-F. It was recommended by Dr. , the eye specialist and it indicated that Tr. 184. The November 2013 IEP for fourth grade placed him in a general education class and also pulled him out for SETTS. At first, they put him in a second to third grade class but moved him class in the middle of the month because it wasn’t working. Tr. 185. The Parent testified was very confusing since he was consistently leaving his class and the other students were aware of it. Tr. 187. started out in a separate location and then after the November IEP, she started going into the classroom. Tr. 187. The Parent testified grade teacher stated that she didn’t know how to help him and would sometimes let him sit with another student to copy the work because he wasn’t quick enough to copy it off the board. Tr. 188. She told the Parent . belonged in an ICT class with a special education teacher. Tr. 188.

After the November 2012 IEP, she never received another IEP Tr. 189. At the November IEP meeting, the SETTS teacher who had him at the beginning of the year stayed for a couple of minutes and stated that she didn’t “know him well because he was only in her class for a short time”. Tr. 189. In addition, the general education teacher, Ms. had to attend a class so signed her name and left after ten minutes. Tr. 190. She indicated that was having difficulty and was unable to read on grade level. Tr. 190. The speech therapist stayed but didn’t say much and then left; stayed the whole time. The special educational teacher, Ms. stayed the majority of the time (20 to 25 minutes) but then had to go to class. She said she didn’t well enough to give any information. Tr. 190-191. The CSE members that made the placement recommendation were Ms. and Ms. (a SETTS teacher for the younger grades). Tr., 191. After the November 2010 IEP, she did not receive an FNR in which the District recommended a school placement for . Tr. 191.

The Parent stated that during the year, became and gave up. Tr. 192. When . took the State tests, she received a phone call from that they couldn’t get him to stop crying. Tr. 194. The Parent never found out how the Student did on those tests. Tr. 195.

. started to have during his fourth grade year. Tr. 195. She started getting phone calls after she asked to be referred to the CBST indicating that he refused to do his work which was unlike him. Tr. 195. The request for a referral to the CBST was made in March 2013. P-S. No one was responsive to the letter. Tr. 196. She tried to call the assistant principal or principal two or three times a day starting in April and they wouldn’t take her calls. Tr. 197. Ms. helped set up a meeting on May 28th for the Parent, however, it was not designated as a CSE meeting and she did not receive a notice that it was going to be a CSE meeting. Tr. 199-200. She asked the parties could be put into another school and they responded that he could not because they were a Title I school and they needed to accommodate their students. Tr. 201.

After that meeting, she began contacting other schools for the 2013-14 school year. Tr. 202. She contacted and that she should just tell her school to do the paperwork and no one did anything. Tr. 203. two blocks from her home. Tr. 204. After she filled out a placement form, she received a rejection letter a month later. Tr. 204; P-Q; P-R. told her they had a and she visited and spoke with an admissions officer. She visited the classroom would have attended. It had twelve students with two special education teachers. Tr. 205. was with her for the visit. Tr. 205. She stated that during her site visit, she was told that there were programs that focused on dyslexic students and that most of the students or . Tr. 206. For certain subjects, she was told that they break up into smaller groups (i.e. reading, math, etc.). Tr. 207. For reading, she was told that they would use Orton-Gillingham which was used and it was a multisensory approach. Tr. 208. After her visit, the Parent believed that would be an appropriate placement . because they had the resources for his disability. Tr. 209. . also loved the school. Tr. 209. Prior to her visit, she had sent in an application with all of the evaluations and IEPs and other documentation she had. Tr. 210.

After her visit, she . She never was contacted by the CSE to set up an IEP review meeting. Tr. 210; P-A. She notified that she was placing her child through a ten day notice. Tr. 210. . is in a with other students and two teachers. He is getting the service he needs. He is making playdates with the students. She doesn’t know if he has a scribe at but his handwriting has improved drastically. Tr. 214. In addition, he is learning the fifth grade curriculum and receiving reading support and learning the proper skills for like how to write an essay. Tr. 213. is modifying curriculum and breaking it down so it is in a form that is on his level and easier for him to understand. Tr. 214. She gets frequent updates from the teachers including a full page summary every week. Tr. 214. She has seen a drastic change in .’s reading, writing and math skills. Tr.

214. She doesn’t have to help him with his homework; he does it by himself. Tr. 215. He is able to read on his own and he is writing paragraphs. Tr. 215. In addition, there are social-emotional changes as well. Tr. 215. He enjoys going to school and is not anxious anymore. Tr. 215.

The Parent testified that tuition at was $51,000 and she was obligated to pay it. She has attended all of ’s IEP meetings and has made . available for all testing and observations requested by the school. The tutor working after school is certified in the Orton-Gillingham Method. The Parent used her the whole fourth grade year (2012-13). Tr. 222. She works and is a special education teacher. The Parent was referred to the tutor by the eye specialist, Dr. who indicated that works with . Tr. 223. The Parent stated that the tutor would tell the school was working on. Tr. 224.

The Parent testified that she requested a private evaluation from Dr. Roze in order to get a second opinion. Tr. 226. She said that she doesn’t remember if she put the request in writing but she told Ms. she was going to have him evaluated. Tr. 227. She felt that the only service he was getting as a result of Ms. ’s evaluation was special education though he was reading on a . Tr. 227. The Parent testified that she did not disagree with Ms. s November 2011 evaluation and she had Dr do an update in September of 2013. She just wanted to find out if something was missing since her son still couldn’t read. Tr. 228. Prior to Dr. s August 18, 2011 report, the Parent requested an evaluation Tr. 229. The District did an evaluation of . in July of 2010.

At the May 28, 2013 meeting, the school asked if the Parent would consider counseling for R.M. Tr. 230. She stated that there was no need for counseling since his frustration was coming from his inability to read. Tr. 231. She spoke with Ms. and Ms. regarding services for the 2011-12 and 2012-13 school years. Tr. 231. During the 2011-12 school year, she spoke with Ms. . She agreed that he needed an evaluation. Tr.

232. The Parent indicated that she was looking for an ICT program for her son and was presently a teacher in an ICT class. Tr. 233. Her other children go to Islamic school. Tr. 236.

On redirect, the Parent indicated that although Ms. . needed a visual evaluation, she didn’t provide one. Tr. 237.

The next witness was . She is employed at as director of the elementary school. She was a teacher at for six years, then she left for ten years and returned, first as a social worker and then in her present position. Tr. 242. She has Master’s degrees in general education, special education and social work. Tr. 242. She is also a certified special education teacher. Tr. 243. Her general duties include overseeing the day to day activities of the elementary school including supervising teachers, making the classroom, reading and math group assignments, overseeing classroom budgets, running faculty meetings, developing and modifying curriculum and working with parents and children. Tr. 243.

is a Quaker school for children with learning disabilities from kindergarten through twelfth grade. There are three separate schools, elementary, middle and high school. Tr. 244. There are currently 130 students in the elementary school. . is in the with 12 students and two teachers. Ms. is the head teacher and Ms. is the assistant teacher and they are both certified. This is important because they both have the capacity to teach the educational program since Ms. is certified in special education and Ms. is certified in elementary education. Tr. 245. Most students at have some kind of and they also have students who or executive functioning disorder. Tr. 246.

The general approach to teaching student in the room is highly interactive and multisensory for all subjects. room is equipped with an FM system which helps students with auditory processing. Tr. 246. They also use an interactive white board. Tr. 247. One of the methods used to teach reading is Orton-Gillingham, which is a multisensory approach to teaching decoding and encoding, which is spelling and the reading of words. Tr. 248. There are a maximum of six students in a reading group. Tr. 248. For math, a multisensory approach is also used. Tr. 249. The students in the Frey room are all fifth graders. Tr. 250. For reading and math the students are grouped according to their instructional level and the type of methodology they benefit from. Tr. 250. Therefore, in a typical reading or math section, all kids would be on the same level. Tr. 251.

Ms. is familiar with and met him when he first started school. Tr. 252. She is in and out of his classroom on a regular basis. Tr. 253. He was assessed for reading and math when his first began fifth grade. Tr. 253. His reading group includes four students and his math group has six. Tr. 254. At the present time, he is reading at a mid-second grade level and his math is at the end of third/beginning level. Tr. 255. The reading is based on the Orton-Gillingham assessments and his math performance is based on informal assessments. Tr. 255. Most of his classes on his schedule (P-M) have 12 students but social studies get broken up into two groups of six. There are also times when a language therapist is the third adult in a room. Tr. 257. With respect to reading and math, there is some fluidity so students move from group to group depending on progress. Tr. 258.

math teacher is . She has a Master’s degree in special education and is certified. Tr. 258. .’s reading teacher, Ms. also is certified in special education. Tr. 259.

also receives occupational therapy, first through a rotation. Tr. 259. He also sees once a week in a group of three for 30 minutes each time. Tr. 259. The occupational therapist and the teachers meet at a regular time to consult and discuss various tools and methodologies used in the classroom to meet individual student’s needs. Tr. 260. Specifically, the occupational therapist has been working to get control over his handwriting. Tr. 261. He uses a slant board; they highlight writing lines and give him different line lengths to help . Tr. 261.

Ms. testified that he is responding well in the classroom. Tr. 261. He has integrated very smoothly and has developed nice friendships. Tr. 262. She stated that the goals in the IEP are all reasonable .; however, they are very long term and require a great deal of support in order for to reach them. Tr. 264; D-1. She has consulted in general education schools and has children of her own in the New York City public schools and does not believe he would be able to achieve these goals in a general education setting. Tr. 265.

At , they look at the IEP goals and incorporate those goals they feel are appropriate but also develop their own goals. Tr. 266. Ms. testified that she believed being pulled out of .’s general education class 24 times a week would be very demoralizing. Tr. 266. She believes provides a program for that will meet his needs. Tr. 266.

On cross examination, Ms. testified that is not an approved private school by the New York State Education Department. Tr. 268. Ms. is New York State certified and has her certification in Illinois and Indiana. Tr. 268. All students at do not have IEPs, however, 97-98% do. Tr. 269-270. In Orton-Gillingham, . started at a level 100 and is now at level 147. He went from end of first grade to . Tr. 271. In his reading group there are fourth and fifth graders who are nine and ten year olds since Mary is ungraded. Tr. 271. The Orton-Gillingham program is a very sequential program and there is a lot of review and repetition as they move through the levels. Tr. 273. For math, they use a key math assessment and he started with a mid-third grade math group. Tr.

275. He is presently at a high third, beginning level and is working with a fourth grade curriculum. Tr. 275. Everyone receives typing but does not therapy in a small group unless they need it. Tr. 276. He required it with visual perception and handwriting. Tr.

276. . is not receiving vision therapy; however, he is receiving speech twice a week in a group of three or four. Tr. 277. . also receives testing accommodations . Tr. 279.

The last witness was Ms. . She is certified as a general education and special education teacher. Tr. 290. She has been at for three years and is head teacher in the Frey room. Tr. 291. There are 12 students, ages 10 and 11 in the class. Tr. 291. The students in class perform between a grade level in math and reading. Tr. 293. Social studies, language arts and current events are the large classes and there are smaller subjects like journal, quiet time, morning meeting and closing circle. Tr. 294. . is in a small group of four students and one teacher for reading and his group is an OrtonGillingham group. Tr. 294. He is a different group for math with six students and one teacher. Tr. 295.

Ms. stated that has adjusted well to the classroom structure and routines; he has formed relationships with his peers; and has improved academically. Tr. 296. He is thriving in the supportive learning environment and is comfortable advocating for help when he needs it. Tr. 296. At the beginning of the school year, he was more shy and reserved. Tr. 297. With respect to writing, in September, . was asked to complete a paragraph response, he wasn’t able to formulate the paragraph. He is now able to complete a paragraph with a topic sentence, concluding sentence and at least three supporting details. Tr. 298. Generally, in reading, .’s abilities have improved. He is now able to decode multisyllabic words and read with awareness of punctuation with the help of verbal cues. He is also able to stay on topic when answering a question and is performing better on spelling quizzes than he had in September. Tr. 298.

In Journal, benefits from handwriting lines and highlighted lines to help with his handwriting. He also needs reminders to check over his work, support to read and understand the assignment, use of an editing checklist when writing, use of a transition word and to diversify his writing, and use of an outline before writing a paragraph. Tr.

300. The handwriting lines help with his graphomotor difficulties and vision difficulties. Tr. 301.

In reading, the groups are fluid so if a student starts to outpace his peers, the teachers and administrators will meet and switch students when appropriate. Tr. 303. The students have two different teachers for science but stay together for that subject. Tr.

303. In social studies, from preferential seating, reminders when prompting before being called on so he can prepare his answer and use of fidgets to keep his hands busy while he is listening. Tr. 305. Language Arts is also classroom. Tr. 306. In the beginning of the year, and could not write complete sentences. He has improved in both of these areas. Tr. 307. . requires one on one support to be able to make sure he understands the question, to discuss his response, to create a cohesive paragraph, to edit details, etc. Tr. 308. In reading group, . uses an EZO reader which highlights lines he is reading. Tr. 309. He is working at a mid-second grade level in reading. Tr. 310.

Math is taught by Ms. and there are six students in her class. In math, is working at an end of third grade level. Tr. 310. His group uses a modified fourth grade curriculum. Tr. 311. In Healthy Choices there are four different rotations: community service, occupational therapy, social . Tr. 315. gets pulled out in a group of two once a week for occupational therapy. Tr. 315. Some of the occupational therapy tools uses in the classroom are fidgets, highlighted and handwriting lines, EZO reader and typing lengthy assignments. Tr. 316. . is more reserved in a large group than in a small group. also receives speech therapy twice a week in a group of three. Tr. 317.

Ms. testified that . benefits from having two teachers so he can receive individualized support which he needs in order to be successful. Tr. 318. She did not feel that the Orton-Gillingham program could be effectively administered in a group of 12 with only one teacher and one paraprofessional. Tr. 321.

Based upon Ms. ’s understanding of .’s abilities, she does not feel that he would be able to meet the goal on his IEP which states “He will produce four to seven simple and compound sentences that are grammatically correct in response to literature and/or about a given topic” in a class of 31 students and one teacher being pulled out for ELA five days a week in a 12:1 setting. Tr. 329. She stated that requires individualized attention and would find it extremely difficult in a class of 31 students and one teacher and also getting pulled out will affect his self-esteem and his academic performance. Tr.

330. On his IEP it states that “ . is an intelligent youngster with his academic progress and is developing a negative, unmotivated attitude towards learning”. Tr. 330. Ms. stated that that is not how the Student is at the present time. He has a positive attitude towards school, takes risks, etc. with some of the tasks he is given, with encouragement, he tackles them. Tr. 331. His confidence level has improved since September. Tr. 331.

The school sends out two reports to the parents and the parents communicate on a regular basis as well. On Fridays, the parents receive notes which are sent home in a binder. In addition, once a month, the parents get a curriculum note about what they have been covering for the month and also an individualized note about the student’s progress. Tr. 333. The parents also get a reading and math note approximately three times a year and notes for all other subjects. Tr. 334.

Ms. testified that since the mid-year report, . has improved in all his abilities in all academic areas. Tr. 334. Based on her knowledge she believes that is appropriate for the Student. Tr. 335.

On cross examination, Ms. testified that she meets .’s other teachers and related service providers on an informal basis frequently but has formal consultations with the related service providers. Tr. 337. According to Ms. his listening comprehension is higher than his reading comprehension and he comprehends at a Tr. 342. His math computation and problem solving is at an end of third grade level. Tr.343. . has just completed standardized tests in math and reading, but the results have not been generated at this time. Tr. 344. With respect to testified that with the supports that are offered at , his self-esteem has improved.

FINDINGS

It should be noted that with respect to certain issues on the amended Due Process Complaint, the parties have agreed to remove and/or resolve them. P-C; Tr. 74-86.

First, the Parent is no longer seeking round trip transportation between the Student’s home and in accordance with item number “2” on the amended Due Process Complaint under “Proposed Resolution” since that is already being provided by the District. Tr. 75; P-C. Second, the Parent has agreed to remove their request for payment for .’s breakfast and lunch at in accordance with item number 3” on the amended Due Process complaint under “Proposed Resolution”. Tr. 76; P-C. Further, based on the fact that vision therapy was mandated as a service .’s November 2012 IEP and not provided (even though it was not included in the related services section of the IEP), the District has agreed to reimburse the Parent for the services she received and also the cost of the evaluation in accordance with item numbers “4” and “5” on the amended Due Process Complaint under “Proposed Resolution”. P-O; Tr. 78. According to the Parent, the vision therapy services were $517 and the evaluation for the services was $235. Tr. 81. Therefore, in accordance with the amended Due Process Complaint, in the “Proposed Resolution” Section., items 2,3, 4, and 5 have been resolved. Accordingly, the other issues will be discussed herein.

Two purposes of the 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 individual 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. 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 92d Cir. 2005]). Prong 1 – Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special 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 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 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 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 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma CitySch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2dCir. Aug. 16, 2010]; 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]).

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 disabilities (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, not regression,’ and …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, 20007 WL 465211, at *15). 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 (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; 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]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 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 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 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 Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

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).

I have reviewed all of the testimonial and documentary evidence in this matter. Clearly a review of the hearing record indicates that the CSE, at its November 26, 2012 IEP meeting, did not with FAPE and that a special education class for ELA, , 15 times per week for one period each time, and a special education class for math, , five times per week for one period each time, in addition to a general education program for the remainder of the time together with Speech and language therapy and occupational therapy is not appropriate and is not reasonably calculated to benefit educationally from the instruction. On Ms. evaluation report (D-8), it states . was reading at a percentile rank of 4, yet he was placed in a general education class of 31 students for all of his classes except reading and math and was “expected” to keep up with the other fourth graders in the general education class. Tr. 131; Tr. 146. Ms. Leung testified that at the time of the November 2012 CSE meeting, he was reading on a first grade level. Therefore, it was incongruous for her to testify that at the end of the 2012-13 school year, he is expected to have access to the fifth grade curriculum.

It is clear that . was during the 2012-13 school year. Both Ms. and the Parent testified that . was at risk of being held back for the 2012-13 school year. I do not find Ms. ’s testimony credible where she indicated that it is “just policy” to send out promotion in doubt letters when a child is not performing on grade level. Tr. 118. There was also discrepancies in her testimony regarding what his actual grade level was and what his phonics program at entailed. It didn’t seem credible that in the 12:1:1 class he was receiving 45-90 minutes of individual instruction per day even though there was only one teacher and one paraprofessional in the room. Tr. 122. With respect to program, Ms. testified that she didn’t know if ’s teacher was certified , she didn’t know if any of the other students in the class were receiving Wilson and when discussing progress, was not able to discuss progress in the Wilson program itself. It is also clear that as a result of his Report to Families for the 2012-13 school year, his grades in reading and writing, his areas of deficit, remained “1”s consistently throughout the year indicating that he was “far below grade level standards.” P-AA.

On the November 2014 IEP it indicates in “Other Programs Considered” that a full time self contained special class (12:1:1) in a community school was considered and rejected at that time because it would be too restrictive. Integrated co-teaching (ICT) program was considered but the child’s current zoned school did not offer such a program. An ICT program can be considered for the future. At this time, [ requires the support of a part-time self contained special class with five periods of mainstreaming in a general education class for math.” First, I credit the testimony of the Parent that the CSE team was not all present when the placement recommendations were made. First, the general educator that was . stayed for a short time only and indicated was having difficulty and was unable to read at grade level. Tr. 190. In addition, one of the special education teachers at the meeting indicated that she did not . well enough to give information and left early, while a SETTS teacher for the lower grades, Ms. made the placement decision with Ms. Tr. 191. With respect to the proposed placement in special classes for 20 periods a week and related service periods outside of the general education classroom, the Parent testified ’s schedule was very difficult and confusing for him and he was constantly leaving his class. Tr. 187.In addition to the lack of continuity this created self esteem issues since his classmates were aware of it. Ms. indicated that she believed that of a classroom so many times would be demoralizing for him. Tr. Tr. 266. I credit the testimony of the Parent that the fourth grade teacher told her that she didn’t know how to help . and that she believed that belonged in an ICT class. Although, on his November 2012 IEP, it indicated that he was having some difficulty in math, he was placed in a special class for five periods of math and a general education class for another five periods of math, This, in itself would be confusing since the curriculums would be different for the two classes and a student with global delays would be moving from one curriculum to the other. In this regard, there was no indication what coordination was provided to . With respect to the other subjects he was receiving in the general education environment, the fact that he “could” take his reading in those subject area back to the teacher to work with him (since he was reading on a first grade level), would not give him sufficient support to enable him to receive academic benefit. Tr. 160.

In this regard, Dr. a psychologist who evaluated in August of 2011 (P-E) and then again in September of 2013 (P-F) and diagnosed him with a reading disorder and disorder of written expression, stated in the reevaluation that “ ….has significant difficulties with basic reading and writing strategies. The DOE has failed to address his needs appropriately, and his lack of progress due to lack of appropriate support strongly affected his self esteem and did not lead to academic progress…Therefore, he is currently in need of a highly specialized school setting (currently not available through the DOE) that will be able to address his specific learning disability as well as address his ever eroding self-esteem. The DOE has been unable to address his needs in spite of parent’s repeated attempts to engage in a discussion with his school re: appropriateness of services provided by the DOE…” P-E.

It is clear from Ms. s testimony should have received vision therapy due to his vision issues and its impact on his reading and that it was set forth on his November 2012 IEP, though not listed as a related services. The fact that he did not receive the vision therapy is a violation of his right to FAPE since it was a mandated service.

During the 2012-13 school year, the Parent requested a referral to CBST since . was not progressing. Tr. 115; P-S. Based on the letter, no CSE meeting took place nor were reports or recommendations requested from the Parents or conducted by the District. An informal meeting was held on May 28, 2014 and a referral to the CBST was not made. The Parent also asked if the child could be placed in an ICT class in another school where it was offered and was informed that they would not put the Student in another school since they were a Title I school and needed to accommodate their students. Tr. 201. At the start of the 2013-14 school year, the November 2012 IEP was in effect, however as of this date a CSE meeting has not taken place and a new IEP has not been developed for RM for the remainder of the 2013-14 school year despite the request from the Parent. P-S.

Based on the totality of the evidence, I do not believe that the District met its burden in showing that the recommended program was appropriate to meet the Student’s needs and provide him with academic benefit. Therefore, for all of the foregoing reasons, I find that the District did not satisfy the requirement to prove Pong 1 and therefore, FAPE was not provided to . for the 2013-14 school year. Prong 2 – Appropriateness of Parent Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of . In order to meet that burden, the Parent must show an educational program designed to meet .’s special education 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 consideration 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 F.3d 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 F.3d 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 handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].

The Parent has met her burden in showing that was an appropriate placement for . In order to meet her burden, the Parent must show that offered an educational program that enabled the child to receive educational benefit but not one that it furnishes every special service necessary to maximize their child’s potential. is a special education private school for students with from kindergarten through twelfth grade. Most children at have some kind of like is in the Frey room with twelve students, all fifth graders, and two teachers, both have certifications, one in special education in New ) and one in general education out of state. The general approach in teaching the students in the Frey room is highly interactive and multisensory for all subjects. They room is equipped with an FM unit and an interactive white board. He is in a reading group consisting of four students and his math group has six students. Tr. 254. In his reading group , they are using the Orton Gillingham methodology which is a multisensory approach to teaching decoding and encoding including spelling and the reading of words. Tr. 249. He is grouped with students on his instructional level and according to the methodology they will benefit from. Tr. 250. He is also and at to address his deficits. Ms. testified that his classes are appropriate for him and he is well matched with students with similar disabilities who require similar accommodations. According to , he has made progress in all academic areas and his self esteem has improved with all the supports offered . Tr. 334; Tr. 344. In reading, he started at a level 100 in the Orton Gillingham program and is now at a level 147 and went from an end of first grade level to mid second grade. Tr. 271. His listening comprehension is slightly higher and he is functioning at an end of third grade level in math. Tr. 343. In reading, . is now able to decode multisyllabic words and read with awareness of punctuation with the help of verbal cues. Tr. 298. In writing, he was not able to formulate a paragraph in September and is now able to complete a paragraph with a topic sentence, concluding sentence and supporting details. Tr. 298.He is being provided with appropriate accommodations in all of his classes including an EZO reader, fidgets, highlighted handwriting lines, review and repetition, etc. According to Ms. Grazi, he also requires one tone support to facilitate his learning in order to be successful. Tr. 308.

Based on the foregoing, it is clear that . with education instruction specifically designed to meet his unique needs and he is receiving educational benefit. Therefore, I find that the Parent has met her burden in proving the appropriateness of for Prong 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 they’re 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 November 26, 2012 CSE meeting. Prior to the meeting, they provided the CSE with whatever reports and evaluations they required .Ms. indicated that the Parent cooperated with the CSE at the meeting. Because ’s placement was not meeting his needs, the Parent, on March 20, 2013, requested that IEP be reopened for a deferral to CBST. Following this, on August 23, 2013, the Parent sent a 10-Day Notice to the District indicating that she was unilaterally placing and seeking tuition reimbursement and bus transportation. P-A.

Based upon her actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District did not provide FAPE for the 2013-14 school year (Prong 1), the Parent’s placement of is appropriate (Prong 2), and the Parent cooperated with the District and analysis of equitable considerations offers no basis for ruling against her (Prong 3). Accordingly, the District shall, provide direct funding /or provide tuition reimbursement to the Parent, upon submission by the Parent of proof of payment for for the 2013-14 school year.

With respect to the request for reimbursement for the August 18, 2011 Psychoeducational evaluation by Dr. (P-F) and the reevaluation dated September 6, 2013. Parents have the right to have an IEE conducted at public expense if the parent disagrees with an evaluation conducted by the district unless the district requests a hearing and establishes the appropriateness of its evaluation (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]). Under the circumstances of this case, this is not a situation where the Parent is disagreeing with an evaluation that was done by the District, accordingly, no reimbursement is warranted.

With respect to request for compensatory education for the tutoring services that R.M. received during the 2012-13 school year (P-P), the Parent has not met her burden in this regard. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F. 3D 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008]). Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speechlanguage therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04054). When devising an award of compensatory education, the award need not be a dayfor-day award—"the inquiry must be fact-specific" and to accomplish the purposes of the IDEA, "the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place" (Reid v. Dist. of Columbia, 401 F.3d 516, 524 [DC Cir. 2005]).

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

1. The District shall, provide direct funding and/or provide tuition reimbursement to the Parent, upon submission by the Parent of proof of payment for for his tuition at for the 2013-14 school year; and

2. Based upon an agreement between the parties, the District has agreed to reimburse the Parent for the vision therapy services in the amount of $517 and the evaluation for the services in the amount of $235, upon submission by the Parent of proof of payment for the evaluation and the services. Dated: June 30, 2014

Elise B. Kesteinbau,. Esq. gc

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer EBK: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 THE RECORD

Parent Exhibits

No. Date Document Pages

A. 8/23/2013 Ten Day Notice 4

B. 12/20/2013 Hearing Request 6

C. 3/10/2014 Amended Hearing Request 5

D. 3/25/2014 Subpoena 4

E. 9/6/2013 Evaluation 8

F. 8/18/2011 Evaluation 6

G. 9/21/2012 Visual Efficiency Evaluation 2

H. 10/2/2012 Letter from Parent 1

I. 9/12/2013 Letter re: 1

J. 8/9/2013 Contract 2

K. 1/15/2014 Affidavit 1

L. 9/2013-2/20/14 Attendance Records 1

M. 2013-2014 Schedule 1

N. 2013-2014 Curriculum Overview- 4

O. 3/27/2014 Invoices for 10

P. 3/29/2014 Invoices for Tutoring 1

Q. 9/11/2012 Placement Exception Request 2

R. 10/2012 Placement Rejection Letter 1

S. 3/20/2013 Letter to Ms 2

T. 3/20/2013 Mid-year Report- 20

U. 2012 and 2013 Tax Return 4

V. 11/22/2011 Update 4

W. 11/29/2011 IEP 18

X. 11/26/2012 IEP 16

Y. 2012/2013 IEP Progress Report 15

Z. 1/31/2013 Letter 1

AA. 2012/13 Final Report to Family 4 District Exhibits

1. 2012/13 IEP Progress Report 16

2. 9/21/2012 Visual Efficiency Test 2

3. 11//2012 Annual Report 2

4. 3/20/2013 Waiver of IEP Meeting 1

5. 11/2012 Teacher Report 4

6. 9/2012-6/2013 Report to Families 4

7. 11/29/2012 Progress Report 2

8. 11/22/2011 Evaluation 4

IHO Exhibits I misc. dates Compliance decisions 4

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Footnotes

[1] Special Class, ELA, 15 times per week, one period each time;