NY IHO #2014-ih-1035: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 12, 2014

March 3, 2014

March 18, 2014

Actual Record Closed Date: April 1, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12,

2014

Attorney — Student

No Appearance — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 03, 2014

Attorney — Student

Parent (Via telephone) — Student

Title — DOE

A.P. (Via telephone) — DOE

CSE-7 Teacher Assigned (Via telephone) — DOE

Special Ed Teacher (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 18, 2014

Attorney — Student

Parent (Via Telephone) — Student

Witness (Via Telephone) — Student

CSE Representative — DOE

INTRODUCTION

On January 17, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

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

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

Pre hearing conference was conducted on February 12, 2014 and hearing date was set.

On March 18, 2014 parties joined in a motion to extend the compliance date by 19 days to allow receipt and review of the transcript. Motion was granted and compliance date was extended to April 15, 2014. (T 232-234)

This matter was instituted by the impartial hearing request dated January 17, 2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2012-2013 and 2013-2014 school years. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2012-2013 and 2013-2014 school years. (Ex A 1)

Relief sought includes prospective funding for unilateral placement at the )., for the 2012-2013 and 2013-2014 school years. (Ex A 2)

BACKGROUND

Student is currently thirteen years old. Two IEPs have been entered into evidence for the student, and information from each appears below: Date of IEP 04/02/2012 02/27/2013 Exhibit #6 #1 School Year at time of IEP In 6th for upcoming 7th In 7th for upcoming

8th Classification Learning Disability Learning Disability Evaluation Grade Levels Broad Reading None

Broad Math

Academic Skills

(of 05/25/2011) Academic Achievement Reading Reading Levels Math Math Instructional/ Math Math Functional Levels Reading Reading Promotional criteria grade ELA grade ELA grade Math grade Math Management Needs Repetition & rephrasing, Repetition &

rephrasing,

Instruction broken down into Instruction broken down into discrete units of learning, discrete units of learning,

Use of multi-sensory materials, Use of multi-sensory materials,

Praise and encouragement, Use of graphic

organizers,

Use of graphic organizers Multi-sensory

approach,

Spelling reminders,

Punctuation

reminders,

Clues and prompting

as needed,

Praise and encouragement Recommendations: Special Class Special Class

Speech Group 2x30 Speech Group 2x30

Speech individual 1x30 Speech individual

1x30

OT individual 2x30 OT individual 2x30

Counseling Group 1x30 Counseling Group

1x30

THE PARENT’S POSITION

), attorney, presented the parent’s position.

In closing, for the 2012-2013 school year, contends, the IEP was invalid, witness recollection is limited to the actual document, the establishment of a special education teacher at the meeting was not established, sufficient documentation was not considered, student needs are not reflected in the IEP and it does not include appropriate supports, and recommendation is too large. (T 219-220)

In closing, for the 2013-2014 school year, JE contends, the IEP was invalid, appropriateness of the goals were not established, recommended program was not shown to be appropriate for the student, how the student would transition to the DOE program was not established. And the IEP did not reflect student needs nor provide appropriate supports in the classroom. (T 220-221)

For both school years the DOE failed to show the placement as appropriate. No testimony was presented regarding curriculum or instruction for the student. (T 221-222)

Parent placement was shown to be appropriate for both school years. Curriculum is tailored to the student and student supports are provided. (T 223)

Equities favor the parent who attended the IEP meetings, expressed her concerns to the team, attempted to visit the proposed placement each year, and advised the Committee on Special Education (CSE) of her concerns. (T 223)

Parent is entitled to funding for the secular portion of each school year. (T 224)

PARENT WITNESS

reviewed her educational and professional background and testified as an educational supervisor “I do a screening on the kids that come, to determine whether or not they would be appropriate for . I'm part of a team that establishes the curriculum, and I supervise the teachers on a constant basis…” (T 114-115)

Screening includes informal assessments. (T 143-144)

has 43 students, ages 5 to 14 who need an academic setting but cannot learn in the mainstream, there is curriculum development and teacher training. (T 116)

Curriculum is developed at the school. (T 147)

is familiar with the student in that he was in a class which she supervised last year, the 2012-2013 school year. (T 118)

observed the student, worked with the student and monitored progress. (T 119)

Student is outgoing, friendly, likes sports, can apply himself and learn. (T 119-120)

“ are that he does not believe in him, you know, naturally. He is . He has , also needs concepts broken down into very, very small pieces in order to learn new concepts.

And then he needs things to be constantly reviewed in order to maintain and hold on to the progress that he's made.” (T 120)

Student was in a class of nine learning disabled students some of whom are language impaired, ages 11 to 13, a teacher and a para. For reading another three paras came in and for math another two paras came into the classroom. (T 120-121)

Teacher is certified in special education. (T 121)

Students in the class have needs similar to the student in question, such as attention needs. Students were equal in learning academics and “needed concepts broken down to smaller pieces and they need it to be constantly reviewed…” (T 121 -122)

Student instructional level for reading and math was , with information broken down into very small pieces, watched, scaffolded and constantly reviewed. (T 162)

Regarding reading instruction the student’s interests are limited and he has a difficult time becoming engaged in the story. “So we would work with him to get the topic that he wanted to learn more about and find a book that will be appropriate for him and grade level. The reading was done every day of the week… in small groups and he was able to be constantly refocused…” (T 122)

Reading group was two student and one teacher. Student also had individual reading instruction with the reading specialist. (T 123)

Some of the reading programs used for the student are outlined in Gesher program description. Graphic organizers are used, program is multi-sensory, visual and interactive aids are used. (T 125-126, Ex E 2)

Student’s specific needs were addressed by using a program that was a very, very step by step approach to reading, with a lot of decoding. (T 126-127)

Goals included decoding various syllable types, fluency, summarizing, and “wh” questions. (T 128)

Student needs a small group so he can get a lot of teacher attention, feedback and constant refocusing. Student has a difficult time in a large group setting. (T 126)

Functional level of the reading group was about 3rd grade up to 6th grade. Student was in at the time. (T 127-128 & 157)

Student reading level at the beginning of the year was the very beginning of 3rd grade. At the end of the year student level was at the end grade. (T 162-163)

Progress was seen in student moving up in reading level, being able to engage in reading activities successfully relating to main idea, improved fluency, decoding more difficult words, and an ability to solve higher level thinking skills. (T 129 & 140)

Math instruction was in a group of two. (T 130)

Student needed “…has a hard time learning new concepts but when they're broken down to small enough pieces and he's able to get constant encouragement he's able to learn the new math.” (T 129)

And then hopefully that this results in him really feeling good about himself and his math skills

One day a week math was in a large group setting. (T 130)

Math support included material to be modified, scaffolded, taught piece by for the student, and constant review. (T 131)

Functional math level of the group is grade. (T 131 & 157)

Student “…was actually performing and doing the equations in the book but it was done in such a modified way. In other words, no opening the book and just do the pages without the lessons--breaking down the lessons and teaching it piece by piece and constant review.” (T 131)

Math goals include “…that he would finish multiplication of like four digits by three digits. He went on after to integers; learn to add, subtract, multiply, and divide integers…adding, subtracting, multiplying, and dividing a fraction.” (T 131)

Chapter assessments indicate progress. (T 132)

Math progress also included that “he learned how to add, subtract, multiply, and divide integers…learned how to add, subtract, multiply, and divide fractions…learned about long multiplication.” (T 140-141)

Student was able to complete level instruction. (T 163)

Student had significant , is constantly , a in a group of nine, very , relies on a lot of system. (T 132-133)

Behavior modification system is a point system used to earn privileges. (T 133)

are also assessed through seating preference, small group size, keeping the student motivated, and having a behavior psychologist on staff. (T 133)

Student received . (T 134)

Lunch and recess are supervised. (T 134)

Teachers and therapists meet to review student progress. (T 134-135)

Time spent on non-secular studies amounts to about 19 hours a week, and starts at 1:35. (T 136-137)

Additional progress was noted: “…at the beginning of the year he used to write like a few sentences and they were disjointed and they didn't stick to one topic and in writing made a lot of progress and at the end of the year he was able to write an 11sentence structured paragraph with a topic sentence and a conclusion sentence. In social studies we had focused on the note taking and he learned that also. And in science he just enjoyed it a tremendous amount and he learned about the human body.” (T 141)

Social progress was described: “Over the year we actually watched him emerge a little more as a leader…in the beginning of the year he was a player always in the games because he always loved sports. And as the year went on by the end of the year he was organizing a lot of games and was running more of the games…” (T 141-142)

met the student’s needs for the 2012-2013 school year. Student “needed to learn in a small class environment, which he got. He needed specialized instructions and concepts broken down into small pieces, which he got. He needed constant review in order to maintain the progress. He got that. And he really did very, very well.” (T 142)

PARENT WITNESS RACHEL GINSBERG

) reviewed her educational and professional background and testified as the master 8th grade teacher at . “As an eighth grade teacher, I am teaching a modified version of the core curriculum.” (T 164-165)

“I teach all the secular subjects; reading, math, writing, science, history, vocabulary, spelling.” (T 166)

Curriculum is created with the supervisor. (T 166)

For the 2013-2014 school had about 45 students. (T 166)

participates in professional development. (T 166-167)

is the student’s 2013-2014 teacher. (T 167)

described her student: “As for strengths, he's technologically savvy. He likes to do well. When he's comfortable, very personable. And when the concepts are broken down and things are reviewed, he can work independently. As , Isaac is . He has difficulty focusing. He . He has He has difficulty expressing emotions. High level thinking questions are difficult for him. He doubts himself and his lack of self esteem impedes his learning.” (T 168)

Student class has ten students, a teacher, a para and two additional paras for reading and math. Students in the class have similar needs, including being are language impaired . (T 168-169)

Student reading difficulties include multi syllabic words, reading with tone and inflection, main idea, comprehension when reading silently and sequential order. (T 169)

Support includes small groups, starting a story with background information, going through vocabulary words which are difficult to decode, introduce characters and setting, asking pointed questions, a lot of multi-sensory things, visual aids, graphic organizers and constant review of the story. (T 170)

Support addresses student needs in that they help keep the student focused and organized and the small group has less distractions. (T 170)

Small group has two total students. (T 170)

Class reading level is from grade. (T 185)

Student started the year at the beginning of the level. (T 171)

Goals included decoding, retelling the story in sequential order, main idea, silent reading and analyzing characters. (T 171)

Progress is described as: “in the beginning of the year he did not like silent reading at all. He is now able to read short passages and fill out a graphic organizer on them. He was not comfortable reading out loud in the beginning of the year and now he volunteers to read out loud. And he's made improvements in identifying the main ideas and summarizing the story.” (T 172)

Regarding student math needs: student does not like math, looks uncomfortable, and lacks confidence that impedes his learning. Student needs to be constantly refocused, needs a lot of encouragement, needs constant review, needs concepts broken down into very small simple steps and needs one-to-one when he learns something new. (T 172-173)

Math instruction is in a group of two students. (T 173)

Math class uses an text book, broken down for each student. (T 185)

Math goals include making the student feel comfortable with math, place value, decimals, fractions, and introduction to algebra and integers. (T 174)

Progress is measured with chapter tests. Student has moved on through several chapters. (T 174)

Student has difficulty with written expression. This includes difficulty writing details and organizing information to write an essay. (T 175)

To address these issues a program used is a systematic was of writing informal outlines to help organize ideas before essays are written. (T 175)

Progress is noted in that: “…in the beginning of the year he had difficulty writing a detailed one-paragraph essay. And now he is up to three paragraphs. We're working on that right now.” (T 175)

Student receives related services of . (T 175-176)

Teachers, therapists and administrators meet during the year to review student progress and difficulties. (T 176)

Teacher is present during lunch. Student requires support to sit and eat. (T 177)

Approximately 18 hours weekly are devoted to non-secular studies. (T 178)

Progress is noted in that student reads out loud, student can silently read full passages and answer questions, improvement in analyzing characters, length of writing has improved to a three paragraph detailed essay, note taking an study skills have improved. (T 179)

Socially, at the beginning of the year the student would only interact with one student at a time and he could not sit at a table with a lot of kids. He can now do this. He makes presentations to the school about once a month. (T 179-180)

meets the student’s needs: “Because needs to constantly be refocused and he needs a lot of encouragement. And he needs to work in small groups, that's is able to provide.” (T 180)

PARENT WITNESS

), the student’s mother, describes her child as friendly, loves sports and being outside. (T 198-19)

Child is weak in math and reading, has a low attention span, moves around a lot and lacks confidence in academics. (T 199)

Parent participated in the 04/02/2012 IEP meeting. (T 199, Ex 6)

At the meeting reading and math was discussed as well as his inability to sit down, need for a small classroom, goals and services. (T 199-200)

recalls a recommendation. felt a smaller classroom and more individualized attention was needed. (T 200)

Parent received a placement letter, wrote the CSE, and did not receive a response. (T 200)

called the school and was told school was out so there was nothing to see. asked for some information and was told there was a class with 12 to 14 kids, some were , but she could not visit. (T 201)

has concerns with the classroom described by the school. (T 201)

participated in the02/27/2013 IEP meeting. (T 202, Ex 1)

Reading, math and classroom size were discussed. (T 202)

Recommendation was for a and parent raised concerns of class size and the need for more individualized attention. (T 202-203)

received a placement letter for the same school as the previous school year. called the school and was told they did not allow parents to come to the classrooms due to the safety of the children and faculty, so she could not come and observe. ( T 202)

would have considered an appropriate placement offer for either school year by the DOE, even if it was a secular program. (T 204)

provided copies of tax returns to their attorney, which were submitted into evidence. SC has four children. (T 205)

Tuition for the 2012-2013 school year is $30,000.00. (T 206)

Tuition for the 2013-2014 school year is $32,000.00. (T 206)

signed a contract for both school years and has made small payments. (T 206)

believes that, , her child is moving forward in the right direction, is more focused, able to sit better, reading skills improved, math skills improved and self esteem has improved. (T 206-207)

meets the student’s needs with “…a small school environment, he gets individualized attention. I think he feels safe and secure…You know, he's in a small school setting, so he's not overwhelmed. And just the teachers are compassionate, compassionate and very patient with him.” (T 207)

does feel she was able to describe her child’s needs and learning issues at both IEP meetings. (T 208)

DEPARTMENT OF EDUCATION POSITION

( ) District Representative, presented the DOE position.

contends the evidence will show the student was offered a FAPE for the 2012-2013 and 2013-2014 school years, appropriate IEPs was developed, proposed placements were able to meet the needs of the student, parent placement is not appropriate, equities favor the DOE, and tuition reimbursement should be denied. (T 7-10)

) District Representative, presented the DOE position.

In closing statement included an outline of the recommended services offered the student for each school year and that the services recommended each year were available at the recommended placement. (T 226-227)

Recommended placement is inappropriate for the student since the educational supervisor is not certified in school administration, informal assessments are used, training is not specifically detailed regarding reading instruction, students are not administered standardized tests, progress made is vague, the nature of the Hebrew skills curriculum was not detailed, no documentation was provided regarding staff meetings, and parent intended to keep the student privately placed. (T 227-232)

DOE seeks dismissal of the parent’s claims. (T 232)

DOE WITNESS

(NP) and testified as a DOE Director of Special Services at IS 228. (T 21)

“Some of my duties include making sure that all the students are in their proper programs, making sure that all the students' needs are met according to their IEPs; working with teachers; mentoring teachers.” (T 22)

Information provided for the 2012-2013 and 2013-2014 school years, about the school includes: teachers are licensed and certified, a program exists, related services are available in the building, and parent coordinator provides training workshops for parents. (T 22-23)

does not have a record of the parent visiting the school either school year. (T 37-38)

Witness testimony regarding the 2012-2103 IEP included: a seat was available for the student and student’s in the available class had similar levels of functioning compared to the IEP. (T 27-28, Ex 6)

Levels of functioning are similar: “Because students who are placed in self contained classes are students who are not yet prepared to receive educational benefit from a full-sized class with that many students. And it's usually the students who have the lowest grade levels, okay, 2.4, 3.4, 2.8. There are students with maybe a 3.1 grade level.

There could be a student with a first grade level, there could be a student with a fourth grade level but with severe academic deficits in mathematics. So very often recommendations for students in a self contained class mean that that student requires the attention of a teacher with no more than 11 other students in the class, with the assistance of a classroom paraprofessional.” (T 29)

Reading and Math levels can be anywhere from grade. (T 29-30)

Based upon student IQ of , emerging writing skills on a kindergarten grade level, difficulty with abstract concepts, and struggle with problem solving, the student would fit into the environment. (T 30)

IEP reflects a student working with “very, very basic knowledge” on a grade level.(T 31)

Witness continued: “Well, I just would like to say that the expectation of this student, the team who developed these goals, mathematics and reading, have an expectation that it would take one year for the student to achieve this goal, which is in and of itself quite below, far below his age and grade.” (T 32)

Witness is not familiar with the classroom student’s IEPs from the 2012-2013 school year. (T 34)

Witness testimony regarding the 2013-2014 IEP included: a seat was available for the student, and functioning levels would be between 1st and 4th grade for English and Math. (T 35-37)

Upon cross examination witness stated the functional levels for the class were the same for both school years, grade for English and Math. (T 39-40)

For the 2012-2013 school year, witness was asked what information she based her testimony upon when she testified that the student would be appropriately placed.

Witness referred to the IEP evaluation results reflecting Broad reading grade level,

Broad Math grade level and Academic Skills at a grade level. (T 43-46, Ex 6-1)

Witness was asked what grade level the student would work on in the classroom. “The student would be working at his grade level from the common core, but with scaffolding, teaching techniques to bring the student up closer to what his grade level is, rather than sitting on a year after year.” (T 44)

When pressed for an actual grade level witness responded: ”Why are you asking me, when I don't even know the student?” (T 52-53)

Witness does not meet with every parent that comes to the school. (T 55)

Witness meets with special education parents if they ask. (T 58)

Witness has a sign in book for parents she meets and school has its own sign in book. (T 58-59)

DOE WITNESS

) reviewed his educational and professional background and testified as a teacher assigned, employed by the DOE for the Committee on Special Education (CSE), Region . (T 63-64)

participated in the 2013-2014 IEP meeting of 02/27/2013. (T 64, Ex 1)

confirmed parties in attendance as indicated on the attendance page. (T 65, Ex 1-13)

Student was classified with a and recommended to a 12:1+1 special class for all subjects, counseling services in a group once weekly, OT individual, twice weekly, and speech individual once weekly and Speech in a group twice weekly. (T 65-66, Ex 1-1, 1-6 & 1-7)

All participants had an opportunity to express concerns and opinions about the meeting. (T 66)

Goals were developed through a verbal report from the teacher, of the student’s strengths and weaknesses. (T 66 & 71)

Goals address student deficit areas and are appropriate. (T 67)

Student was having difficulty with reading comprehension with answering inference questions, which is why first goal was developed. (T 67, Ex 1-2)

Goal was developed to address student difficulty with multiplication and division. (T 67, Ex 1-4)

Goal was developed to address student difficulty with writing about personal experiences. (T 67, Ex 1-4)

referred to IEP and set forth additional goals contained therein relating to counseling, speech and believes these goals are appropriate. (T 68)

referred to the IEP to set forth student areas of weakness. This included difficulty focusing on a story, with higher order thinking questions, abstract concepts, and unsure of what operation to performs in math word problems. (T 71, Ex 1-1)

Student needs a lot of review, repetition, redirection and was granted graphic organizers and use of multi-sensory material. (T 72, Ex 1-2)

Student had . (T 72)

classes are usually six to nine students. (T 72)

Regarding attention : “He had difficulty focusing for extended periods of time. He needed redirection, back on task. Because of his inattentiveness, he needed review of material.” (T 73)

The recommendation was appropriate because a is for mentally retarded, . “The only other class we could have put him in would be a class, and that would not give enough support.” (T 74)

does not recall if the student’s current teacher, or parent, agreed with the recommendation. (T 74)

Parent participated in the meeting, was cooperative and provided information. (T 74)

described his input at the meeting: “I took the minutes of the meeting. I gave the parent her rights at the meeting. I told the parent that we had no parent member at the meeting, that she had the opportunity to reschedule. The parent chose to go on with the meeting and waived the parent member at the meeting. And I--during the classroom-- during what Ms. divulged on the phone, there's many times I asked Ms questions in the areas of reading, writing and math.” (T 76)

Goals were “not transformed into the IEP until after the meeting.” (T 78)

Goals were discussed at the meeting. (T 79)

is not sure who wrote the related service goals. (T 79)

“…we do give the parent a general idea that we are going to do reading comprehension goals for answering inference questions, and main idea in detail. We gave the parent a general idea that we were going to do math computation goals for multiplication and division, and word problems. And we gave the parent that we would write goals to address…writing needs.” (T 80)

We refers to . (T 79)

was conducted in March of 2011. Results are not included in the IEP. (T 81)

Documents reviewed at the meeting included the school progress report, the counselor progress report, and the progress report. (T 82)

believes he used the goals from the speech report. Service provider goals were used for the IEP. (T 83-84)

DOE WITNESS

) reviewed his educational and professional background and testified as a special education teacher assigned, employed by the DOE, who attended the 04/02/2012 IEP meeting. (T 92-93)

Student was given a classification of and recommended to a class, with related services of (T 94)

Goals are usually discussed at the meeting. (T 94)

does not recall any disagreement with the classification of recommendation. (T 94)

has no independent recollection outside of the IEP document. (T 95)

did not know what size class the student was in at the time of the meeting. (T 99)

was asked to identify the author of the CSE minutes. “I don't know. I see my name on it. I would guess, by just looking at it, it might have , but I'm not that familiar with her handwriting.” (T 102, Ex 8)

does not recall reviewing the School Progress Report or Psycho Educational Update. (T 103, Ex 9 & 10)

FINDING OF FACTS AND DECISION

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

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 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 (LRE) (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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with 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. 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).

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, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

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

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

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

DOE IEP and PROPOSED PLACEMENT for the 2012-2013 SCHOOL YEAR

DOE presented a witness from the proposed placement. Witness testified that the services included in the IEP were available at the school. (T 37-38)

Witness continued that the class student levels in the recommended class were to grade for reading and math. (T 29-30)

In testifying as to the appropriateness of the placement the witness states that the IEP reflects a student working with “very, very basic knowledge” on a grade level (T 31); witness is not familiar with the IEPs of the students in the proposed class (T34); and witness relies on the evaluations results listed on the 04/02/2012 IEP (T 43-46, Ex 6-1).

When asked what actual grade level the student would be working on the witness offered up the following testimony: “Why are you asking me, when I don't even know the student?” (T 52-53)

Testimony contradicted DOE reported levels and recommended class. This included that for the 7th grade school year the student instructional level for reading and math was 6th grade, with information broken down into very small pieces, watched, scaffolded and constantly reviewed. (T 162) 7 While the school may indeed have the services offered in the IEP, there is no evidence offered as to why the actual placement recommendation would be appropriate.

testimony consisted of reiterating the contents of the IEP. (T 64-73)

testified that the academic and related service goals were appropriate. (T 67-68)

No evidence was offered regarding any related service goal.

states that documents reviewed at the meeting included the school progress report, the counselor progress report, and the speech and language progress report. Neither a speech nor counselor report were provided. (T 82)

does testify that the goals were discussed at the meeting, though they were “not transformed into the IEP until after the meeting.” (T 78-79)

I find this testimony is not credible. No reasonable explanation is offered as to how the goals can be discussed prior to being written. Additionally, is not sure who wrote the related service goals. (T 79)

Math goals are not evidenced to be appropriate for the student.

One math goal has the student solving division problems of a 3 or 4 digit dividend by a 2 digit divisor, with 80% accuracy. (Ex 6-4) Student progress report already shows the student, at the time of 01/2012, already completing this goal. (Ex 9-1)

Another math goals has the student working on multiplying 2 digit numbers by a 1 digit number, with 80% accuracy. (Ex 6-4) Student progress report already shows the student, at the time of 01/2012, already multiplying 4 digit numbers by 3 digit numbers. (Ex 9-1)

Regarding Reading, the student progress report notes difficulty: decoding unfamiliar words, reading with proper tone and inflection and answering questions that require higher level thinking skills. (Ex 9-1)

These difficulties are not addressed in the reading goals.

Reading goals include are not evidenced to be based on student need or in any way appropriate for the student. (Ex 6-4)

Information regarding student behavior is not included in the IEP. This includes that the student is easily distracted, short attention span, often acts silly, impulsive, and difficulty sitting still. (Ex 9-1)

Student instructional level for math is 5th grade and reading 2nd grade, matching teacher reported levels. (Ex 6-1 & 6-11)

No explanation is offered as to how the student is perform and meet promotional criteria of 30% of 7th grade in ELA and 40% for math. (Ex 6-10)

I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

I find the IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

DOE IEP and PROPOSED PLACEMENT for the 2013-2014 SCHOOL YEAR

DOE presented a witness from the proposed placement. Witness testified that the services included in the IEP were available at the school. (T 35-38)

Witness continued that the class student levels in the recommended class were to grade for English and Math. (T 35-37)

When asked what actual grade level the student would be working on the witness offered up the following testimony: “Why are you asking me, when I don't even know the student?” (T 52-53)

Upon cross examination witness stated the functional levels for the class were the same for both school years, grade for English and Math. (T 39-40)

While the school may indeed have the services offered in the IEP, there is no evidence offered as to why the actual placement recommendation would be appropriate.

DOE IEP witness, , set forth the recommendation contained in the IEP. (T 94, Ex 1)

states that goals are usually discussed at the meeting and does not recall any disagreement with the classification of recommendation. (T 94)

also has no independent recollection outside of the IEP document. (T 95)

does not recall reviewing the School Progress Report or Psycho Educational Update. (T 103, Ex 9 & 10)

DOE did not evidence an appropriate IEP was drafted at a properly conducted meeting. (Ex 1)

In reviewing the IEP document several deficiencies are brought to light.

No evaluations are included as part of the IEP.

Student levels are reflected as 3rd grade for reading for math. (Ex 1-1)

Student progress report indicates the student is working in math text. This contradicts the information in the IEP. (Ex 5-1)

The reading level is one grade below the prior IEP which indicated the student was at a level in math. (Ex 6-1)

No explanation is offered as to how this occurred or what affect it has upon the student.

Testimony included that, for reading, the student entered the 2013-2014 school year at the beginning of the 4th grade level. (T 171)

Student instructional functional level for math was reduced from the current 5th grade level to a level for the coming year. On its face this appears to project the student doing worse than the previous year, or in other words, projected to regress. (Ex 6-11 & 110)

Projected promotional criteria of material for ELA and Math are not set upon any basis relative to the student. (Ex 1-11)

Despite the above contradictory information the recommendation remained the same as the previous year.

Speech therapy report goals not appearing in the IEP include goals related to syntactical language, answering “wh“ questions based on level passages with

ACCURACY. (Ex 4-1)

included are not evidenced to be appropriate for the student. (T Ex 1-5)

Report includes goals not appearing on the IEP. This includes goals related to positive self statements in a group and outreaches rather than using silliness, intrusive or teasing to interact. (Ex 3-1)

C g goals are not evidenced to be appropriate for the student. (Ex 1-5)

No basis for the OT goals was presented.

Student Progress Report lists that are not addressed in the IEP goals. This includes , inflection, . (Ex 1-4)

Evidence was not presented establishing the appropriateness of the Math goals.

One math goal remains the same as the previous IEP, multiplying 2 digit numbers by a 1 digit number in 20 examples. (Ex 6-4 & 1-4)

Another math goal from the previous year additions related to a 2 digit divisor. (Ex 6-4) This goal was simplified to a 1 digit divisor. (Ex 1-4)

I find the IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

PLACEMENT 2012-2013 SCHOOL YEAR

Witnesses evidenced an understanding of the student’s needs and the appropriateness of for the student for the 2012-2013 school year.

description details that students are provided with individualized curricula, and provides information regarding academic instruction, social skills, and related services of . (Ex E)

43 students, ages 5 to 14 who need an academic setting but cannot learn in the mainstream, there is curriculum development and teacher training. (T 116)

Prior to admission students are screened. This includes informal assessments. (T 114-115 & 143-144)

Witness reviewed student weaknesses, including being impulsive, distractible, need for things to be broken down into very small pieces, need for constant review, and difficulty maintaining focus. (T 120)

Student needs were addressed through services that included: a small class of nine students, one teacher, one to three paras, and being grouped with students with similar attention and academic needs. (T 120-122)

For this school year the student instructional level for reading and math was , with information broken down into very small pieces, watched, scaffolded and constantly reviewed. (T 162)

These levels were beyond the IEP levels included in the IEP of 5th grade for Math and 2nd grade for Reading. (Ex 6-11)

reading program addressed student lack of interest in reading and decoding issues. (T 122-123 & 128)

Reading supports included small group and individual instruction (T 123); graphic organizers, a multi-sensory program, visual and interactive aids. (T 125-126)

Student was shown to progress in that his reading level at the beginning of the year was the very beginning of 3rd grade. At the end of the year student level was at the end of third grade. (T 162-163)

Student also was able to engage in reading activities successfully relating to main idea, improved fluency, decoding more difficult words, and an ability to solve higher level thinking skills. (T 129 & 140)

Witness detailed student math needs, including breaking down new concepts (T 129-130); supports including instruction in a group of two, encouragement, modified material, scaffolding, and constant review (T 130-131); and noted progress through chapter assessments (T 132); and student being able to multiply and divide fractions (T 140-141); and complete level instruction. (T 163)

Student was noted to have significant attentional issues that were addressed through a behavior management system, seating preference, small group size, keeping the student motivated and having a behavior psychologist on staff. (T 132-133)

Student received related services of , as indicated on therapy schedule. (T 134, Ex J)

Witness detailed additional student progress in writing and social skills. (T 141-142)

Progress is also indicated on report of 01/2013. (Ex K & L)

Witness testified met the student’s needs for the 2012-2013 school year. Student “needed to learn in a small class environment, which he got. He needed specialized instructions and concepts broken down into small pieces, which he got. He needed constant review in order to maintain the progress. He got that. And he really did very, very well.” (T 142)

Parent testified that, , her child is moving forward in the right direction, is more focused, able to sit better, reading skills improved, math skills improved and self esteem has improved. (T 206-207)

I find the educational instruction is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

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

PLACEMENT 2013-2014 SCHOOL YEAR

Witnesses evidenced an understanding of the student’s needs and the appropriateness of for the student for the 2013-2014 school year.

For school year is “teaching a modified version of the core curriculum.” (T 164-165)

detailed student weaknesses and strengths which included: “he's technologically savvy. He likes to do well. .. As for weaknesses … and …

Testimony included that the student is in a class of ten students, a teacher, a para and two additional paras for reading and math. Students in the class have similar needs, including being are language impaired or learning disabled and attentional needs. (T 168169)

detailed student that included multi syllabic words, reading with tone and inflection, main idea, comprehension when reading silently, sequential order, decoding, retelling the story, silent reading and analyzing characters. (T 169-171)

detailed student supports to keep . This included small group instruction of two, starting a story with background information, going through vocabulary words which are difficult to decode, asking pointed questions, a lot of multi-sensory things, visual aids, graphic organizers and constant review of the story. (T 170-171)

Student started the year at the beginning of the level. (T 171)

Progress is described as: “in the beginning of the year he did not like silent reading at all. He is now able to read short passages and fill out a graphic organizer on them. He was beginning of the year and now he volunteers to read out loud. And he's made improvements in identifying the main ideas and summarizing the story.” (T 172)

Witness detailed student math needs, which included: student looks that . (T 172)

addressed student needs with supports that included: student was constantly a lot of encouragement, needs constant review, concepts broken down into very small simple steps, one-to-one when he learns something new, and instruction in a group of two. (T 172-173)

Student is instructed using an text book, broken down for each student. (T 185)

Math goals include making the student feel comfortable with math, place value, decimals, fractions, and introduction to algebra and integers. (T 174)

Progress is indicated in that the student has moved on through several chapters of the 8th grade text. (T 174)

Progress is also included in report of 01/2014. (Ex S)

Witness detailed student difficulties, supports and regarding written expression. (T 175 & 179)

Student receives related services of , as included in therapy schedule. (T 175176, Ex R)

Witness testified that meets the student’s needs: “Because Isaac needs to constantly be refocused and he needs a lot of encouragement. And he needs to work in small groups, that's what is able to provide.” (T 180)

I find the educational instruction is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-2014 school year I offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

EQUITABLE CONSIDERATIONS 2012-2013

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, communicated her concerns to the DOE, and in no way thwarted any DOE attempt to offer the student a FAPE.

Parent participated in the 04/02/2012 IEP meeting. (T 199, Ex 6)

Parent received a placement letter, wrote the CSE, and did not receive a response. (T 200)

attempted to visit the recommended placement, and was put off by the school staff. (T 201)

wrote the DOE on 06/25/2012 advising of her concerns with the recommended program and asking for another recommendation to address her child’s needs. Parent also advised of her intent to keep the and seek reimbursement. (Ex C)

would have considered an appropriate placement offer for either school year by the DOE, even if it was a secular program. (T 204)

signed a contract for both school years and has made small payments. (T 206, Ex F & V)

Parent has thus far paid $1,000.00, towards the 2012-2013 tuition. (Ex V)

provided copies of tax returns to their attorney, which were submitted into evidence has four children. (T 205)

Tax return for 2011 includes income of about $33,000.00. (Ex G)

Tax return for 2012 includes income of about $30,000.00. (Ex O)

Parent seeks direct funding, or prospective payment, of tuition for the DOE. Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of the 2011 & 2012 tax return. No evidence is provided as to any resources or assets available. Income and resources for 2013 are not presented. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2012-2013 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004. (Ex G & O)

Class schedule includes 2,040 minutes weekly. An amount of 697 minutes weekly are devoted to non-secular studies. This amounts to 34% of the school week. (Ex H)

Enrollment contract reflects a tuition amount of $30,000.00, inclusive of related services. (Ex F)

Tuition to be reimbursed to parent is reduced by 34%, resulting in a reimbursement amount of $19,800.00.

EQUITABLE CONSIDERATIONS 2013-2014

participated in the 02/27/2013 IEP meeting. (T 202, Ex 1)

received a placement letter for the same school as the previous school year. again attempted to visit the placement was put off by the school staff. (T 202)

wrote the CSE on 08/22/2013 advising the CSE of her concerns with the recommended placement, the goals, requesting additional information about the placement, and providing notice of the intent to continue placement and seek funding. (Ex U)

would have considered an appropriate placement offer for either school year by the DOE, even if it was a secular program. (T 204)

provided copies of tax returns to their attorney, which were submitted into evidence. has four children. (T 205)

Tuition for the 2013-2014 school year is $32,000.00. (T 206)

signed a contract for both school years and has made small payments. (T 206, Ex N & W)

Parent has thus far paid $450.00 towards the 2013-2014 tuition. (Ex W)

Tax return for 2011 includes income of about $33,000.00. (Ex G)

Tax return for 2012 includes income of about $30,000.00. (Ex O)

Class schedule includes 2,040 minutes weekly. An amount of 725 minutes weekly are devoted to non-secular studies. This amounts to 35% of the school week. (Ex P)

Enrollment contract reflects a tuition amount of $32,000.00, inclusive of related services. (Ex N)

Tuition to be reimbursed to parent is reduced by 35%, resulting in a reimbursement amount of $20,800.00.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012-2013 and 2013-2014 school years.

2. For the 2012-2013 school year the DOE shall reimburse the parent for tuition payment(s) made in the amount of $19,800.00.

3. For the 2013-2014 school year the DOE shall reimburse the parent for tuition payment(s) made in the amount of $20,800.00.

4. DOE shall provide parent with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.

5. This decision is subject to appeal and review by the State Review Officer. Dated: April 21, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ. DA;mv Impartial Hearing Officer

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

ENTERED 03/03/2014

A Impartial hearing request, 1/17/14, 2 pages B Parent letter to CSE, 4/12/13, 2 pages C Parent letter to CSE, 6/25/12, 2 pages

ENTERED 03/18/2014

D Letter to CSE dated 4/18/12, 2 pages E 2012-2013 Program Description, 2 pages F Enrollment Contract dated 9/10/12, 1 page G 2011 Tax Statement, 5 pages H 2012-2013 Class Schedule, 1 page I 2012-2013 Record, 1 page J 2012-2013 Therapy Schedule, 1 page K 2012-2013 Progress Report, 1 page L 6/13 Progress Report, 1 page M 2012-2013 Report Card, 1 page N 2013-2014 Enrollment Contract, 1 page O 2012 Tax Statement, 4 pages P 2013-2014 Class Schedule, 1 page Q 2013-2014 Attendance Record, 1 page R 2013-2014 Therapy Schedule, 1 page S 2013-2014 Progress Report, 1 page T 2013-2014 Report Card, 1 page U Letter to CSE dated 8/22/13, 1 page V 2012-2013 Affidavit of Payment, 1 page W 2013-2014 Affidavit of Payment,^[1] page

DEPARTMENT OF EDUCATION

ENTERED 03/03/2014

2 Final Notice of Recommendation, 5/28/13, 1 page 3 progress report, 2/20/13, 1 page 4 progress report, 1/12/13, 1 page 5 School progress report, January 2013, 1 page 6 IEP, 4/2/12, 14 pages 7 FNR, 6/12/12, 1 page 8 CSE minutes, 4/2/12, 1 page 9 School progress report, January 2012, 1 page 10 update, 3/25/11, 6 pages

IMPARTIAL HEARING OFFICER

ENTERED 03/03/2014

I Hearing Officer's email, 1/17/14, 3 pages

ENTERED 03/18/2014

II Grant of Request for Extension of Time, dated 03/18/2014, 3 pages

Footnotes

[1] IEP, 2/27/13, 14 pages

New York City Department of Education, Impartial Hearing Decision