NY IHO #2014-ih-1054: 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: March 7, 2014

March 28, 2014

April 7, 2014

April 25, 2014

Actual Record Closed Date: May 2, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2014

Attorney — Student

CSE District Representative — DOE

Retired Unit Coordinator (Via telephone) — DOE

Psycho-educator (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2014

Attorney — Student

Sister/Guardian — Student

Principal- (Via Telephone) — Student

CSE Representative — DOE

DOE Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 07, 2014

Attorney (Via Telephone) — Student

CSE- District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2014

Attorney (Via Telephone) — Student

District CSE- Representative — DOE

Psychologist (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

INTRODUCTION

On January 24, 2013 I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

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

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

, DOE representative, at 8am on the hearing date of March 28, 2013 Department of Education (DOE) representative requested an adjournment of the hearing. had taken ill that morning. Adjournment was denied. DOE representative David Mark (DM) appeared in her stead. (T 48-49)

At hearing of March 28, 2014, noted that he had another hearing at 10am and that he would have to leave the hearing at that time to attend the other hearing. Hearing for this matter commenced at 9:21, though scheduled for 9am. again requested an adjournment on the record, which was denied. referred to a medical emergency which was not detailed, beyond being ill the morning of the hearing. (T 49-50)

IHO noted on the record that the DOE is responsible for allowing for vacation or sick days in their calendar and the DOE is responsible for having someone appear on their behalf. (T 50-51)

continued his request for adjournment, which was again denied. (T 80-81)

did call in after had left the hearing, to again make an adjournment request. Request was denied. stated that she felt the DOE was being prejudiced in the matter. IHO reminded that the parties could appear by phone or have some other staff member attend. (T 92-95)

Pre hearing conference was conducted on April 07, 2014 and hearing date was set to allow for rebuttal witnesses requested by the DOE. sought to present rebuttal witnesses regarding the mainstreaming at and the curriculum. alleges there is no mainstreaming at the school in that to be mainstreaming classes would need to be taken with general education students. contends that a witness will show that special and general education students do not interact during the day. also contends that a witness will dispute the existence of the curriculum. (T 170-173, 177 & 179-180)

On April 07, 2014 DOE made a motion to extend the compliance date to allow for rebuttal witnesses. Motion was granted and compliance date was extended to 05/02/2014.

(EX IHO III)

At hearing of March 28, 2014 IHO allowed time for written closing statements and set an actual record close date of April 08, 2014. (T 153)

This matter was instituted by the impartial hearing request dated January 24, 2013 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Guardian alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 20132014 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at ( ). (Ex A 1)

I note that the transcript of 04/25/2014 refer to the IHO o as Ms. . (T 229 L 16)

BACKGROUND

IEP of April 08, 2013 includes the following information, student was fifteen years old, with a classification of Intellectual Disability, recommended services included a Yiddish Special Class, D75 special class in a specialized school, a ratio of , ) services in a group of three for 3 thirty minute sessions weekly, Occupational Therapy (OT) in a group of two for 2 thirty minute sessions weekly, 12 month program, instructional functional levels for reading and for math, no promotional criteria is reflected, management needs include small class setting, frequent repetition, more time reviewing lessons, frequent verbal praise and encouragement throughout the day with task analysis and use of manipulatives. (Ex 1)

THE GUARDIAN’S POSITION

(GC) , attorney, presented the Guardian’s position.

made a closing statement that included allegations that the DOE failed to offer the student a FAPE for the 2013-2014 school year, s an appropriate placement, and funding should be provided by the DOE. (T 154)

“The record is devoid of any evidence establishing the appropriateness of a special class with a staffing ratio in District .” (T 155)

“A plain read of the IEP makes clear that the document is entirely flawed, and fails to provide a comprehensive description of…needs, appropriate supports to address his needs, appropriate goals and an overall appropriate recommendation.” (T 156)

DOE failure to provide a vocational assessment and adequate transition plan are flaws in the IEP. (T 159)

Recommended placement could not provide appropriate peers. (T 159)

provides the student an education specifically designed to meet the student’s needs. (T 159)

At student is afforded small classes and mainstreaming opportunities. (T 161)

Testimony reflected the student is making progress at BONIM. (T 161-162)

Equities favor the student in that the guardian acted in no way to thwart DOE efforts to deliver a FAPE, HF visited the recommended placement and communicated her concerns to the DOE and . (T 162)

Guardian seeks 82% tuition to be paid, allowing for reduction for the portion of the day allotted to religious instruction. (T 164)

GUARDIAN WITNESS

reviewed his educational and professional background and testified as principal . (T 61-62)

Duties include “interviewing and evaluating students, and hiring and hiring teachers, supervising and coaching the teachers, providing professional development for the teachers, and creating individualized curriculum for each student with the help of the teachers. And basic day-to-day operations.” (T 62-63)

is a special education school, housed in a regular school, serves “ students and other special needs…mission is that all of the students to become independent and productive and contributing members of the community…we provide each student individually with their individualized curriculum, a full-fledged educational curriculum which includes the core subjects such as reading, reading comprehension, spelling, grammar and math, addition and subtraction, telling time, money skills, and ADL skills, hygiene, safety…our prevocational and vocational program…And the…socialization component. Our students have to be taught every single step of the way how to Social…we have first of all a condensed social skills program….“ (T 63-64)

Social skills program includes interaction daily with the regular education students. “They have constant interaction all through the day by running the same schedule.” This includes lunch, recess, and study periods. (T 64-65)

Buddy time is also part of socialization. Each student is assigned a regular education student who they see twice weekly. (T 99-100)

is “a bilingual program so we speak in Yiddish and in English. So because there are many things and the way I explain it is we want that they should learn English but when it comes to new subjects we definitely feel that they still need that, the Yiddish speaking and extra words that is their mother language in order to teach them the new skills.” (T 119)

Student does not have a para . (T 119)

Student functions at a much higher social level compared to student academic level. (T 120)

has three classes with a total of 40 students for the 2013-2014 school year. Classes have a teacher and assistant teacher. (T 66 & 68)

“The role of the teacher is first of all to individualize the curriculum, which we sit down together and we individualize for each student exactly where he is up to in every single subject. And based on that evaluation, that's how we create the goals. And for each student individual or individually. And he supervises the assistant teacher. When we split it up, we split the class into small groups…the assistant teacher also teachers one group and he supervises that as well. And he evaluates each student on every subject while it's being done in order to be able to know if they, if they grasp the skills or not.”

Mainstream school has about 125 students. (T 66)

Staff consists of teacher, assistant teachers, related services of OT, PT and speech, and a job coach. (T 66-67)

has professional development. (T 67)

Witness and teachers developed the . (T 70, Ex C)

is familiar with the student, who entered the program in 2009. “…ever since them I am involved with his education and all of the social needs.” (T 71)

Student was evaluated upon in 2009, and found to be appropriate for the program. (T 71-72)

While students are evaluated three times a year. Evaluations include a Brigance Assessment. Evaluations are used to create goals for the following year. (T 73-74)

Student was accepted for the 2013-2014 school year. “Because I definitely feel that he has been making tremendous progress academically and social and behaviorally. And I definitely feel that with our tools and our Intervention…turning him into an independent and confident person. So I definitely feel that he is appropriate to continue in our program.” (T 76)

Witness identified evaluation of September 2013. Evaluation goes through every skill and has a grade level. (T 76, Ex F)

Witness identified evaluation of January 2014. Evaluation goes includes where the student is up to for the staff and Guardian. (T 77, Ex G)

Witness mid year report, which is a narrative of the mid year evaluation. Subjects are listed in the narrative detailing student needs and goals. (T 82 -83 & 8788, Ex I)

Report includes that the student needs constant repetition and learns well using many manipulative and concrete methods. (T 83)

Methods employed include many different curriculums, visual curriculum, Touch Math “which is very touch and, as I said, that these students have to learn basically auditory, visual and kinesthetic. They have to feel it. They have to feel it concrete in order to teach them. So this method uses a lot of textiles. They're able to feel the numbers and it's works as, for example, four, the number four has four dots so they can feel the four dots. It goes into their hands. It's four and they can add based on that. The same is with telling time and money…” (T 83-84)

Real money is used in lessons, including behavior modification. (T 84-85)

Students have their own time on their table and methods are utilized throughout the day to teach time. (T 85)

Concrete hands on methods have benefited the student who has progressed in all areas. (T 86)

Student has benefited from the reward system in that he is motivated to be independent and builds self esteem. (T 86-87)

Student class has 12 students, a teacher and an assistant. Staffing ratio is appropriate for the student. This setting allows for teaching of social skills. Class are split up, for core subjects, in smaller groups to individualize as much as possible. (T 78)

Setting is appropriate for the student who has the same needs as the group. (T 79)

Reading group has four students and is on a level. (T 79-80)

is used for the student’s reading curriculum wherein reading skills like spelling and grammar are taught through reading a story. (T 101-102, Ex I 2)

Accommodations for the student include specific grade level stories for skills such as grammar, spelling and phonics. (T 102-103)

Progress is noted in that the student has almost finished work through the grade. (T 103)

For Math the student is at a level for time and money and a level for subtractions. Student is appropriately grouped and is making improvement. (T 8182)

Several different books are used in the Math curriculum. Hands on concrete activities are needed in order to teach the student individually. This includes Touch Money. Accommodations include repetition and colorful visual materials. (T 103104, Ex I 3)

A focus is made for each particular skill the student is working on, such as two digit addition with regrouping. (T 105)

Student has responded well to the Handwriting Without Tears curriculum. This is taught hands on with manipulative, such as sand. (T 106)

Student pre-vocational training includes a vocational component. Prevocational is the curriculum obtained from Young Adult Institute (YAI), and taught in house . This includes punctuality, appropriate action if late, and role play. (T 8889)

Student was taken in to the vocational program twice a week and loves it. “…he joins the vocational program Monday and Wednesday from 1:00 until around 4:00 and we take him to many different sites in order to work in different sites and learn what we have taught him and to actually put it into action and see how he's doing. And so we wanted to start even when old, we feel that he's capable to move into that direction and provide him the many skills that he's going to need in order to function in the community.” (T 90-91)

Witness identified student school year schedule. Schedule is developed by ZH and teachers. (T 107, Ex D)

Witness identified student summer schedule for 2013, in which the student participated. “…the summer program is a continuing program from the ten months of the school year. As you can see in the schedule, the majority of time is as we run the same schedule as the rest, as through the year. It also has an additional positive component that they're there for much more hours and are able to interact more with the regular kids even more hours than through the year. And they go on until 9:00 interacting with the regular kids as well.” (T 113-114, Ex P)

believes the student requires a 12 month program to maintain progress. (T 114)

Student receives therapies in the summer. (T 119)

Religious instruction takes place until 9:45 each morning. (T 114-115)

Therapy schedule is developed from student mandates. (T 107-108, Ex E)

OT report of the student accurately represents student work and progress. (T 109, Ex J)

Speech report of the student accurately represents student work and progress. (T 109-110, Ex K)

Witness communication log. (T 110-113)

is appropriate for the student for the 2013-2014 school year. “ definitely feel that it's very, very appropriate. He's in the right place…he feels so good about himself. He's progressing academically, socially and behaviorally and vocationally. He's progressing in all areas and him, as a person, he really moves up to become independent, very confident…feels good about himself…I'm confident that he's going to be…as much as possible to be an independent person in the community. I definitely see with all of the interventions that we're providing him it's working and we're seeing the progress.” (T 115)

participated in the April 19, 2014 IEP meeting. (T 115)

The Committee on Special Education (CSE) did not review any programs, they just recommended the D75, 12:1:1 program, with a bilingual para. (T 116)

H did not feel this was appropriate: “with a para he's definitely going to lose out academically because if the teacher is teaching something in English they need a para to repeat and review what the teacher is saying. While he's doing that the teachers are way ahead already so he's losing--the majority of lesson he's losing…Student) definitely needs a program that has a bilingual teacher in class and is able to teach him in Yiddish and in English and this should be the language. And this is what I stated.” (T 117)

There was no opportunity to discuss the recommendation. did state that he could not agree unless the was opportunity to interact with regular kids. (T 117 -118)

GUARDIAN WITNESS

the student’s sister, testified. Student comes from a family children, and has lived with his sister since he was two years of age. (T 125-126)

Student is well loved and part of a large family, with over 70 nieces and nephews. (T 127)

Student has received services since early intervention, and at eleven years of age. (T 128)

Student has very a desire to feel like his nephews, and like everyone else. (T 130-131)

Student has grown while . “we accept his limitations and we love him for what he is and he's definitely and he is learning. But his, he's definitely becoming a mature, understanding person, which is the main thing we need in life.” (T 131)

Academically the student’s: reading level has improved, addition has improved, and subtraction . (T 132)

works on safety and hygiene is areas like . (T 132-133)

Student responds well to the behavior reward system in . (T 133)

Supports in place allow the student to make progress. Student has grown socially, emotionally and . (T 134)

signed the enrolment contract for the 2013-2014 school year. (T 134, Ex M)

hopes the DOE will pay the tuition, if not she will have to pay. (T 136-137)

has not yet paid any tuition. is waiting to see if the DOE will be paying. (T 136-137)

HF identified 2012 tax return reflecting an income of about $14,000.00. (T 137, Ex N)

Husband’s income is presently about $800.00 monthly. (T 137)

Additional income includes $1,300.00 monthly received by for the student‘s room and board. (T 139)

Family rent is $1,870.00 and is subsidized by Section Eight. (T 141)

There is no trust established for the student. (T 141)

attended the IEP meeting of April 2013. (T 141)

At the meeting HF advocated to continue speech services. (T 142-143)

recalls the 12:1+1 recommendation was made for the student. (T 144)

F does not remember any other program being discussed. (T 144)

did like the class size, but believed he needed more interaction. (T 145)

had no problem with the recommendation, “I did say that I feel it is very important that he should be in a Yiddish speaking class. His teachers, his peers…all of them should be familiar with Yiddish…that's by far his best learning language.” (T 142)

Regarding her request for interaction with mainstream students, she was told her request would be forwarded. (T 145-146)

sent letter, dated 06/28/2013, with her concerns. HF did not receive a response to her letter. (T 146 & 150, Ex 5)

received a Final Notice of Recommendation (FNR). (T 147, Ex 2)

visited the program and believed it was well run, but not appropriate for the student. “Because there didn't seem to be any Yiddish speaking teachers or any Yiddish speaking peers. And more than anything, I felt he has no, no chance of integrating with a regular, you know, the regular ed. children there.” (T 147)

notes that is the student were to integrate with the regular education student he could not communicate with them, due to the Yiddish language barrier. (T 148)

raised concerns at the meeting, though the IEP notes their were no concerns. (T 151, Ex 1-2)

Though IEP states that other programs were considered, such as home instruction, HF does not recall any such discussion. (T 152)

DEPARTMENT OF EDUCATION POSITION

( ), District Representative, presented the DOE position.

contends that document reflecting curriculum is not a curriculum. (T 225, Ex C)

Regarding contends: “I'm saying that the only legal responsibility is the fact that they say they do have a curriculum. If they say they have a curriculum, then they should have a curriculum. So what they proffered here as a curriculum isn't a curriculum. If they call it class description, then I would be okay with that, if they call it something else, but because they called it a curriculum, then is it a curriculum.” (T 236)

No evidence was presented evidencing a definition of a curriculum was obligated to provide, in providing an education to the student in question.

contends the student was offered a FAPE for the 2013-2014 school year, IEP meeting was held, appropriate IEP was developed, placement recommendation was made, Guardian rejected the placement, is not appropriate, and Guardian has not evidenced any payment of tuition. (T 261-267)

DOE WITNESS

( ) reviewed her educational and professional background and testified as a DOE related unit coordinator, (T 6-8)

School has a bilingual Yiddish program for student 14 to 21, with certified bilingual teachers and paraprofessionals. (T 8-9)

There was an opening in July of 2013. (T 9)

DOE WITNESS

reviewed her educational and professional background and testified as a DOE school psychologist, at CSE 6. (T 14-16) has not worked with or observed the student. (T 16) participated in the IEP conference of 04/09/2013. (T 16)

believes the team relied upon a evaluation, teacher and service provider reports. (T 17-18, Ex 4)

reviewed some information contained in composite score was low. (T 19, Ex 4.4)

At the meeting student was classified intellectual disability. (T 20)

The Recommendation was based upon available reports, which included cognitive level, academic level, functional and life skills. (T 20)

Recommendation was appropriate. (T 20)

does not recall the student’s current class size placement at the time of the meeting. (T 21)

Guardians and school provided information at the meeting regarding the student. (T 21)

Management needs were included in the IEP. (T 25, Ex 1-2)

reviewed what were identified as measurable post secondary goals. “So education training is instructionally based on functional levels. So it has to be targeted to where the student is up to. Employment…will maintain and develop current gains in order to be part of the community as much as possible. Independent living skills;…will reside at home or live independently with or without outside supports.” (T 27)

Transition activities were generated based upon conversation with the school, providers and parents. (T 28)

School’s input and the psycho-educational evaluation were used to develop goals. (T 29)

Life Skills were created “Generally for a student who's functioning adaptively in the low range, we would generate life skills goals, because it's important to improve their adaptive functioning, and life skills goals reference that. That's where adaptive functioning is generally indicated, or areas that need to be improved or can be worked on are indicated.” (T 30, Ex 1-6)

goals were generated by the provider. (T 31-32)

Team recommended alternate assessment. “Alternate assessment is generally recommended when we have a student whose cognitive and academic functioning is so low that it's not appropriate or indicated that they would participate in standardized testing.” (T 33, Ex 1-11)

Instructional and functional levels came from the school. (T 33-34, Ex 1-12)

Goals were created specifically for the student. (T 34)

Math goals appear in the IEP. (T 36, Ex 1-5)

was could not clarify the conflicting dates of the IEP. The signed attendance page indicates a meeting date of 02/28/2013. The IEP information and unsigned attendance page indicated a date of 04/09/2013. Witness did not have the actual signed attendance page available to her when testifying. (T 38-39 & 41-42, Ex 1-12, 1-13 & 1-14)

SG does not have independent recollection of the meeting in question. “I don't have independent recollection of this meeting. I know what our procedure is.” (T 40)

DOE WITNESS

( ) reviewed his educational and professional background and testified as a DOE school psychologist, at CSE 6. (T 213-214)

observed the student in November of 2013, and was part of the IEP review meeting group. (T 214, Ex 14)

reviewed his observation. (T 215-216)

could not recall how many students were in the class. (T 216)

DOE WITNESS

) reviewed her educational and professional background and testified as a DOE teacher. (T 217-219)

attended the IEP meeting of 04/09/2013. (T 219)

did not have available curriculum, which was then faxed to her from the hearing. (T 222)

was asked if she was familiar with the curriculum. “No. I'm not familiar with their curriculum. I've only seen what, I do classroom observations, particular lessons.” (T 223)

states that “I would say that's not a curriculum. It is a--it's like when a book company says this book is good for a particular grade, and then when you open it up it will tell you, you know, Chapter 1 deals with this--” (T 223)

reviewed portions of the curriculum. (T 246-248, Ex C)

does not know if the curriculum reviewed is being followed . (T 256)

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 2013-2014

DOE testimony included that the proposed placement had a seat available, for the 2013-20124 school year, for a bilingual Yiddish program for student 14 to 21, with certified bilingual teachers and paraprofessionals. (T 8-9)

The IEP does not recommended a bilingual program. The IEP program recommendation includes: Language of Service: “Yiddish.“ (Ex 1-9 & 1-12)

IEP also includes that “The student should be placed in an interim monolingual class.” Again, this is not the bilingual class placement evidenced as offered by the DOE. (Ex 1-12)

provided testimony regarding general procedures at the IEP meeting, and did not have independent recollection of the meeting in question. “I don't have independent recollection of this meeting. I know what our procedure is.” (T 40)

reviewed some information contained in the IEP, such as the recommendation. (T 20)

testified that the recommendation was appropriate, but did not provide any specifics related to the student and the program recommendation. (T 20)

The IDEA, to the extent appropriate for each individual student, requires that an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living (20 U.S.C. § 1401[34][A]; see Educ. Law § 4401[9]; 34 CFR 300.43; 8 NYCRR 200.1[fff]). Transition services must be "based on the individual child's needs, taking into account the child's strengths, preferences, and interests" and must include "instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation" (20 U.S.C. § 1401[34][B]-[C]; 34 CFR 300.43[a][2]; 8 NYCRR 200.1[fff]). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills, as well as transition services needed to assist the student in reaching those goals (20 U.S.C. § 1414[d][1][A][i][VIII]; 34 CFR 300.320[b]; 8 NYCRR 200.4[d][2][ix]).

Postsecondary goals in the IEP are vague and immeasurable. Goals include: “Instruction will be based on functional level…Maintain and develop on current gains in order to be part of the community as much as possible…will reside at home or live independently with outside supports” Each goal is vague and immeasurable and without any relation to the unique needs of the student. (Ex 1-3)

GS testifies that transition activities were generated based upon conversation with the school, providers and parents. (T 28)

No evidence was offered as to why the transition activities were appropriate for the student. They appear generic and without relation to the student in question. (Ex 1-10)

No evidence was offered as to the appropriateness of the academic goals for the student.

The sole document entered into evidence regarding the IEP meeting, is the Psychological Evaluation, of 01/08/2013. Information from the report was included in the IEP. (Ex 4)

IEP includes that the student can add and subtract multi digit numbers without carryovers. Goal is included that the student will subtract single digit numbers, and add and subtract two digit numbers without regrouping. Since the student can already add and subtract multi digit numbers without carryovers, this goals i s not appropriate. (Ex 1-5 & 1-6)

The IEP includes deficit areas of vocabulary, sight word recognition, spelling, oral reading and comprehension. Goals included do not address vocabulary, sight words, oral reading or spelling. (Ex 1-1 & 1-4)

No evidence was offered as to the appropriateness of the goals. (Ex 1-6 & 1-7)

Evidence was not presented to establish that the IEP meeting and IEP created as a result of the meeting, were appropriate.

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.

PLACEMENT FOR THE 2013-2014 SCHOOL YEAR

Witnesses detailed the program in general and as it applies specifically to the student in question.

is a special education school, housed in a regular school, “…we provide each student individually with their individualized curriculum, a full-fledged educational curriculum which includes the core subjects such as reading, reading comprehension, spelling, grammar and math, addition and subtraction, telling time, money skills, and ADL skills, hygiene, safety…prevocational and vocational program…socialization component…a condensed social skills program….“ (T 63-64)

social skills program includes: interaction daily with the regular education students. This includes lunch, recess, and study periods (T 64-65); and Buddy time whereby each student is assigned a regular education student who they see twice weekly. (T 99-100)

The program is a bilingual program which includes Yiddish and English. “…when it comes to new subjects we definitely feel that they still need that, the Yiddish speaking and extra words that is their mother language in order to teach them the new skills.” (T 119)

Witness notes that the student functions at a much higher social level compared to student academic level. The social components of the , outlined above, address this unique characteristic of the student and the special education need related to thereto. (T 120)

Student was evaluated upon in 2009, and found to be appropriate for the program. Students are evaluated three times a year and are used to create goals for the following year. (T 71-74)

For the 2013-2014 school year, the student was accepted to BONIM due to academic, social and behavioral progress. “I definitely feel that he is appropriate to continue in our program.” (T 76)

program includes detailed evaluations, such as that of September 2013. Evaluation goes through every skill and includes grade levels. This includes readiness skills, self help skills, reading, writing, math, listening and speech skills of the student. (T 76, Ex F)

mid year report, a narrative of the mid year evaluation, details student needs and goals. This includes Speech, OT, academics, socialization, reading, math, handwriting, prevocational and vocational training, and mainstreaming. (T 82 -83 & 87-88, Ex I)

Weaknesses and supports detailed in the report include: receptive and expressive language and articulation delays supported by speech goals as detailed in speech report (Ex I-1 & K); upper extremity weakness and decreased fine motor skills, decrease attention span and frustration tolerance as supported by OT goals detailed in OT report (Ex I-1 &J); academics supported by constant repetition, manipulative and concrete methods (Ex I-2); stubbornness and control issues supported by playing games and taking turns (Ex I-2); reading supported by small homogeneous groups, and a curriculum which includes reading comprehension, decoding, spelling and vocabulary and with specific grade level stories for skills such as grammar, spelling and phonics (T 102-103, Ex I-2); math supports of TouchMoney, worksheets, hands on activities, small individualized groups (Ex I-3) and other supports as detailed regarding handwriting, prevocational and vocational training and mainstreaming. (Ex I-4 & I-5)

Witness detailed general BONIM methods beyond those included specifically for the student such as a visual curriculum, use of real money is used in lessons, an d behavior modification. (T 83-85)

Student class has 12 students, a teacher and an assistant. Testimony includes that the staffing ratio is appropriate for the student and allows for teaching of social skills. Class are split up, for core subjects, in smaller groups to individualize as much as possible. (T 78)

Student is recommended for a 12 month program. Witness identified student summer schedule for 2013, in which the student participated. Summer program is a continuing program from the ten months of the school year and includes therapies. ZH believes the student requires a 12 month program to maintain progress. (T 113 -114 & 119, Ex P)

Witness believe the program is appropriate for the student. (T 115)

Student progress is noted behaviorally, in reading and in math. (T 86-87, 103 & T 81-82)

Guardian notes that the student has grown while . “…and he is learning….he's definitely becoming a mature, understanding person, which is the main thing we need in life.” (T 131)

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.

PREDETERIMINATION/PARENT PARTICIPATION

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice."]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]).

Moreover, the consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P., 554 F.3d at 253; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. Of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 333-34 [E.D.N.Y. June 13, 2012], aff'd, 2013 WL 3868594 [2d Cir. July 29, 2013]; D. D-S v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-11 [E.D.N.Y. Sept. 2, 2011], aff'd, 2012 WL 6684585 [2d Cir. Dec. 26, 2012]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K., 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D. D-S., 2011 WL3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009], aff'd, 2010 WL 565659 [2d Cir. Feb. 18, 2010]).

Credible testimony evidences that the CSE did not review any programs and just recommended the D75, 12:1:1 program, with a bilingual para. At least insofar as the parent understood. Evidence does not include the provision of a para, though referred to throughout testimony. (T 116)

Credible testimony included that there was no opportunity to discuss the recommendation. (T 117-118)

Credible testimony from the Guardian included that she did advocate to continue speech services. (T 142-143)

Guardian also testified that she recalls the 12:1+1 recommendation was made for the student and does not remember any other program being discussed. (T 14)

raised her concern regarding interaction with mainstream students, she was told her request would be forwarded. No response was offered by the DOE to address the Guardian‘s concerns. (T 145-146)

also sent a letter, dated 06/28/2013, with her concerns. did not receive a response to her letter. (T 146 & 150, Ex 5)

Though IEP states that other programs were considered, such as home instruction, HF does not recall any such discussion. (T 152)

gave credible testimony regarding her attempt to provide input at the IEP meeting. However, the IEP includes that the were no parent (Guardian in this case) concerns relative to Social Development (Ex 1-2); no concerns regarding physical development (Ex 1-2). The failure of the IEP to include any parent concerns, evidences the IEP team did not properly consider parent input or the role of HF as a team member.

DOE witness provided no specific information about the meeting in question beyond the IEP document. states: “I don't have independent recollection of this meeting. I know what our procedure is.” (T 40)

I find the parent was not afforded an opportunity to “participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]).

I find the evidence does not support that the CSE understood that changes may occur at the CSE meeting.

EQUITABLE CONSIDERATIONS

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

Notice of unilateral placement was made via letter of 06/17/2013. Letter included concerns regarding the IEP process and IEP and included notice the student would be placed at BONIM. (Ex B)

Guardian letter of 06/13/2013 reflects Guardian visit to the recommended placement and notifies the DOE of her concerns as well as intent to place the student at . No response was issued by the DOE to the correspondence. (T 146 & 150, Ex 5)

Guardian testified as to some of her concerns regarding the placement. She visited the program and believed it was well run, but not appropriate for the student. “Because there didn't seem to be any Yiddish speaking teachers or any Yiddish speaking peers. And more than anything, I felt he has no, no chance of integrating with a regular, you know, the regular ed. children there.” HF notes that is the student were to integrate with the regular education student he could not communicate with them, due to the Yiddish language barrier. (T 147-148)

signed the enrolment contract for the 2013-2014 school year and hopes the DOE will pay the tuition, if not she will have to pay. Tuition is $39,800.00 for the ten month school year, $7,900.00 for additional for the two month summer program and $8,000.00 for speech and OT services. Total tuition is $55,700.00. (T 134 & 136-137, Ex M)

has not yet paid any tuition. is waiting to see if the DOE will be paying. (T 136-137)

identified 2012 tax return reflecting an income of about $14,000.00. (T 137, Ex N)

Husband’s income is presently about $800.00 monthly. (T 137)

Additional income includes $1,300.00 monthly received by for the student‘s room and board. (T 139)

Family rent is $1,870.00 and is subsidized by Section Eight. (T 141)

There is no trust established for the student. (T 141)

Amount of tuition Guardian is entitled to shall be based upon a five day school week. While Guardians 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. An additional sixth day of schooling is not evidenced to be necessary for the student to receive a FAPE.

Witness acknowledges that Religious instruction takes place until 9:45 each morning, as indicated on student schedule. (T 114-115, Ex D)

Ten month school year tuition is $39,800.00. Entire schedule includes 345 minutes on Sunday and 225 minutes during the rest of the week, which shall be excluded from reimbursement. Entire week includes 2,445 minutes. Excluded are 570 minutes. This amounts to 1,875 minutes to be reimbursed. 76% of the tuition, or $30,248.00. (Ex M & D)

OT and speech services shall be reimbursed in full in the amount of $8,000.00. (Ex M)

Summer program tuition is $7,900.00. Entire schedule includes 690 minutes on Sunday which shall be excluded from reimbursement. Entire week includes 3,795 minutes. Excluded are 690 minutes. This amounts to 3,105 minutes to be reimbursed, or 81% of the tuition, $6,399.00. (Ex M & P)

Guardian seeks direct funding, or prospective payment, of tuition for the DOE. Guardian 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. 11-106; Application of a Student with a Disability, Appeal No. 11-041). The Guardian provides a copy of six pages of their 2012 tax return, indicating 2012 income. Husband’s income is presently about $800.00 monthly. (T 137)

Additional income includes $1,300.00 monthly received by HF, for the student‘s room and board. (T 139)

Family rent is $1,870.00 and is subsidized by Section Eight. (T 141)

There is no trust established for the student. (T 141)

No evidence is offered contesting the financial incapability of the guardian.

I note that if tuition reimbursement commenced early in the school year it may be possible for the guardian to reuse funds towards tuition as it came due. At this late date in the school year that does not seem possible taking into account the guardian’s income.

I find that the guardian sufficiently established entitlement to direct funding of the student's tuition costs for the 2013-2014 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.

Total amount to be directly funded includes ten month school year tuition $30,248.00, OT and speech services in the amount of $8,000.00 and summer program tuition in the amount of $6,399.00. Total is $44,647.00. (Ex M & P)

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 2013-2014 school year.

2. The DOE shall directly the tuition due or to become due for the 2013-2014 school year in the amount of $44,647.00.

3. DOE shall provide Guardian with any required documentation and forms necessary to facilitate payment within ten days of the date of this order.

4. This decision is subject to appeal and review by the State Review Officer. Dated: May 9, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 03/07/2014

A Impartial Hearing Request dated 1/24/14, 6 pages B Notice of unilateral placement dated 6/17/13, 4 pages

ENTERED 03/28/2014

C Curriculum '13-'14 school year, 12 pages D Student Schedule '13-'14 school year, one page E Therapy Schedule '13-'14 school year, one page F Evaluation Progress Report, 09/03/13, 12 pages G Mid Year Evaluation Progress Report, 02/12/14, 12 pages H Career Interests Checklist, 09/03/13, one page I Mid Year Education Report, 02/17/14, seven pages J OT Report, 03/02/14, one page K Speech Therapy Report, 03/18/14, one page L Call and Meeting Log, September 2013 to January 2014, one page M Enrollment Contract, 07/07/13, three pages N U.S. Tax Return 1040, 2012, 02/22/13, six pages O Summer Program Description, Summer of 2013, one page P Summer Program Schedule, July and August 2013, one page Q Staff Credentials, 16 pages R Excluded

DEPARTMENT OF EDUCATION

ENTERED 03/07/2014

1 IEP dated 4/9/13, 14 pages 2 Final Notice of recommendation dated 6/11/13, 1 page 3 Notice of IEP meeting dated 2/13/13, 3 pages 4 evaluation dated 1/11/13, 7 pages 5 Parent letter dated 6/28/13, 1 page

ENTERED 04/25/2014

6 EXCLUDED

7 EXCLUDED

8 EXCLUDED

9 EXCLUDED

10 EXCLUDED

11 EXCLUDED

12 EXCLUDED

13 EXCLUDED

14 Classroom Observation dated 11/26/13, 1 page

IMPARTIAL HEARING OFFICER

ENTERED 03/07/2014

I Notice to parties of IHO appointment email dated 1/30, 3 pages II Denial of extension request dated 3/6/14, 7 pages

ENTERED 04/25/2014

III Grant of extension of time dated 4/8/14, 14 pages

New York City Department of Education, Impartial Hearing Decision