New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 2, 2014

June 6, 2014

June 11, 2014

Actual Record Closed Date: July 31, 2014

Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2014

Esq. Attorney — Student

Parents

Parents

District Representative — DOE

Teacher Assigned — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 6, 2014

Esq. Attorney — Student

Parents

Parents

Director of School (via telephone) — Student

Advisor, via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 11, 2014

Esq. Attorney — Student

District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State commissioner of Education. This matter was brought by the Parents (“Parents”) on behalf the student (“Student”) through their attorney, Esq. by filing a Due Process Complaint dated February 12, 2014, and an Amended Due Process Complaint dated May 30, 2014 with the District.

The Parents are alleging that their daughter, was denied a free and appropriate public education (“FAPE”) for the 2013-14 school year and is seeking tuition for his unilateral placement ”) for said year.

There were three (3) days of hearings in this matter. Hearings were conducted on June 2, June 6, and June 11, 2014. Extensions were granted in this case making the final compliance date August 11, 2014.^[1] A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND:

This case involved student. During the 2013-14 school year, where the Student was unilaterally placed by the Parents.

With respect to the 2013-14 school year, an Individualized Education Program (“IEP”) was developed on June 18, 2013. Pursuant to the June 18th IEP, the following recommendations were made:

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

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found

3. Special Class, five times per week, one period each time, social studies;

4. Special Class, five times per week, one period each time, science; and

5. Occupational Therapy, , two times per week, 40 minutes each time.

The District issued a Notice of Recommendation dated July 18, 2013. D-2. It stated that the offered school shall be ). The Parents sent the District a letter on August 28, 2013 indicating that their daughter was not offered an appropriate placement and that they were placing her for the 2013-14 school year and seeking reimbursement. P-F. The Parents then visited the school in October and were advised that the placement did not have a 15:1 class in the school. The Parents rejected the IEP placement and advised the District on December 20, 2013 that they would keep for the 2013-14 school year and seek reimbursement for her tuition. P-C.

The Parents entered into an Enrollment Contract for L.C. with Mary McDowell on February 15, 2013. P-B.

The Parents filed a Due Process Complaint on February 12, 2013 (P-A) and then an Amended Due Process Complaint on May 30, 2014. P-AA. I was appointed as an Impartial Hearing Officer on February 13, 2014.

POSITION OF THE PARTIES

District’s Case

The District called one (1) witness, Ann Parise, and placed three (3) documents in evidence. D-1 – D-3. She has Master’s degrees in special education and administration and supervision from kindergarten through age 21 and general education from kindergarten through sixth grade. Tr. 22. She is currently working at CSE 8 as a special education teacher, and attends CSE meetings, writes IEPs and conducts observations. Tr.

22. She usually works with charter schools, private schools and non-approved out-ofstate schools. Tr. 23. She works and stated that it is a non-approved special education school. Tr. 23. She has sat on CSE meetings for . 23. She was present at the June 18, that the requests were in accordance with the requirements of due process. Accordingly requests for 2013 CSE meeting. Tr. 23; D-1. The parties that were present were: the Parent; the psychologist, Ms. ; the classroom teacher from . Tr. 24. She sat as the special education teacher. Tr. 24. She stated that the school sends teachers reports that the CSE receives before the meetings; they are sent in bulk two times a year. Tr. 24; Tr. 32. They did not review dated November 28, 2011 because it was two years old and had already been discussed at a previous IEP meeting. Tr. 25. She said that normally they review a teacher’s report at the meeting but she has no recollection of the specific teacher’s report in this matter Tr. 32.

She stated that they placed program because her academics were several years behind and they didn’t feel that she was ready for an Integrated Co-Teaching program (“ICT”), which is a larger grouping of children. Tr. 32. Besides the ICT and the 15:1 program, no other programs were discussed. Tr. 33. They didn’t recommend the ICT program because they thought it was too big. Tr. 33. Based upon the Parent’s concerns on the IEP, the Parent indicated that she felt . could not function in a public school and that both she and the teacher agreed that the ICT class was too large and that she has progressed in her small classes at Tr. 34; D-1.

On cross examination, Ms. said she did not know what academic levels the students in the class that was recommended were. Tr. 36. She states that the next program on the continuum would be a District program. Tr. 37. Ms. indicated that they didn’t talk about a referral to CBST because they didn’t think it was fitting for Tr. 37.

On redirect, Ms. that students in a special class would have similar discrepancies in academic She said “that’s why they’re in the special class”. Tr. 40. She stated that the District considers for , , and . Tr. 40. Ms. is classified with a . Tr. 40. Ms. because she had in the past. Tr. 44. Ms. that there was a Smart Board up at the meeting and the goals were typed as they were discussed. Tr. 45. Parents’ Case extensions of the case compliance date were granted. (IHO-I).

The Parents called three (3) witnesses, and the father and placed ten (10) documents in evidence. P-A – P-J.

The first witness . He has a Master’s degree in education and educational leadership. He is certified in New York State and has a professional certification in school administration. Tr. 57. He is the upper school and has been there for five years. Tr. 57. There are 110 upper school students and all of them have IEPs. Tr. 58. The students all particular challenges get in the way of their being able to learn in a general education environment. Tr. 58.

Mr is familiar was history teacher and tenth grade Quaker history teacher as well. Tr. 59. She just finished Tr. 59. Although Mr. an administrator, it’s the practice that all administrators teach at least one course. Tr. 61.

At , they do class placements at the beginning of the school year based upon the placement recommendations from the previous year’s teacher. Tr. 60. However, during the year, they keep tabs on the students and if the placement needs to be changed, the student is moved. Tr. 60. has staff meetings regularly. Tr. 52. They also have meetings where individual students are discussed. Tr. 62. has particular challenges constant review of material. Tr. 65. It will sometimes take her longer to recall something. Tr. 65. She processes slowly so things need to be slowed down and simplified. Multi-step tasks can be difficult so they need to be broken down and sequenced and larger material or tasks need to be chunked. Tr. 66.

In order for her to believes she needs a small environment where the faculty knows her and are patient, to give her the time to let her ideas come out, and to give her the support to develop them. Tr. 66. He stated that she could be misunderstood in another environment and be treated as if she’s not bright, when in fact, in the right environment she can develop as a learner. Tr. 67. Mr. stated that she is hardworking, keeps up with most of her work (as much as she can independently), and is developing socially. Tr. 67. He believes she will be promoted since she is doing well in all of her classes. Tr. 68.

With respect to testing accommodations, the school offers a wide range of accommodations including extended time, a scribe, a reader, testing alone if very distractible, laptops, instructions read, etc. Tr. 68. . is offered the accommodations she has been approved for. Tr. 69.

Mr. stated that every student in the upper school has a unique schedule. Tr. 71. She has two people in her English class and six in her biology class. Tr. 71. There are 27 students in the 11th grade. Tr. 71. In math, she probably has five or six students in her class. Tr. 73. She is not in all classes with students in the same grade as her; it depends on the class. Tr. 73. Mr. testified that math and English are taught in track classes, which means that students are with kids with similar functional levels. For English, the 11th graders would only be with 11th and 12th graders and the 9th and 10th graders could be grouped together. Tr. 74. Science and social studies are done by chronological age. There is only one teacher, unless the class size is ten or more. Tr. 75. She believes she may have 11 students in her social studies class with two teachers. Tr. 75-76. Many of the teachers are certified, but an independent school is not required to certify teachers. Tr. 76.

On cross examination, stated that most of the students function within a normal range and functions in the lower end of average but they believe she is able to be within the school cohort comfortably. Tr. 81.

Although the program is a college prep program, there are kids that are not college bound. Tr. 80. Individual courses can be modified for students including simplification of the work or the level of expectation. Tr. 81 stated that they work hard to differentiate their curriculum for the full range of students. Tr. 81. is in a class of two students for English and the other student is functioning at her level. Tr. 81. Mr. indicated that in social studies, she is in with a range of students and most are not at grade level. Tr. 82. He testified that although she may not perform on standardized measures at grade level, she has great observations and makes good connections. He believes that keeping her with students at her level on academic testing . Tr. 83.

There is a transitional/college prep course that . takes during her junior and senior year and a full-time director of guidance that works with families regarding two and four year college programs, transition and alternative programs. Tr. 84. The families and the school discuss the transitional steps for the student before decisions are made. Tr.

86. Their decision does not impact on the curriculum because the curriculum is designed to meet their needs as learners. Tr. 87. Mr. is graduating its first senior class this year. Tr. 88. In terms of what is going to do when she graduates, her and her Parents are exploring a wide range of options including college. Tr. 89.

In order to graduate requires four years of English and social studies, three years of mathematics and laboratory science, two years of a second language and fine, visual or performing arts, four years of physical education, one year of health, a college seminar and a Quaker history class. Community service is also required. Tr. 92.

The next witness was . She has a Master’s degree in education and is certified in English in Pennsylvania for grades seven through twelve. Tr. 97. She taught special education students in Pennsylvania and has been as head English teacher and an advisor for three years. Tr. 98. Her English classes are small and range in size from five to eight students. With the small classes, she is able to individualize assignments and provide 1:1 support. Tr. 98.

Ms .’s advisor and taught her English in 9th grade. Tr. 99. As her advisor, she makes sure . stays on top of her assignments, she acts as a liaison with her teachers and checks in with her three times daily. Tr. 99. She also has meetings with all of her teachers fairly regularly (usually multiple times a week). At morning advisory, Ms. checks to make sure . has completed her homework and to see if she is missing any assignments. Tr. 101. In pre-algebra, directions and submits her homework promptly. She is able to work independently, reaches out to the teacher for support, and selfadvocates. She is successful working with her. Tr. 102. In Global Studies, at the beginning of the year but now is trying to stay on top of assignments. She participates in class and takes risks. She uses audio books, she is provided with a preview of vocabulary, she receives modified assignments, extended time and access to a reader for assignments and tests. Comprehension is supported by repetition, previewing, frequent review of material and chunking. Tr. 103. For English, she is a strong participant in class discussions and she is very interested in the literature she is reading. Her writing has improved over the course of the year as has her comprehension so she can make accurate connections and formulate more complex ideas. Tr. 105. She also has become a lot more independent in editing her work. Tr. 104-105. In Spanish, her homework completion has improved and she is determined to do well. Tr. 106. In biology, they have seen a big increase in her self-advocacy skills; she is working on recall and works best with repetition and visual aids. Tr. 106. She also receives modified notes and homework. She has a reader for when she takes exams and her exams are modified. Tr. 106-107. She receives 1:1 support during class assignments and she participates at structured review sessions before an exam with a study guide. Tr. 107. There are six students in her biology class. Tr. 107. In biology, she needs the language broken down so she can understand it and sometimes she needs the material modified. Tr. 108. In universal study hall, she meets with Ms. and her other teachers. Tr. 108. There is also an advisory after school where Ms. checks in and her other advisees. Tr. 110.

Ms. testified has made great improvements in doing her homework independently. Her participation has increased across the board. In English, her comprehension has increased and as a result, she is making more accurate connections and she can formulate independently to proofread longer assignments. In math, she has a stronger sense of numbers and has improved in knowing her facts involving multiples; she has developed an to perform operations on fractions. Tr. 111.

On cross examination, Ms. stated that there were no formal assessments done at the beginning of the year but assessments were done by her teachers. Tr. 113. She stated that she reviewed the IEP but the school is not required to follow it. Tr. 113. At the beginning of the school year, Ms. stated . was functioning in terms of her English and ELA skills. Tr. 115. Her she believes it has increased and she is functioning at a sixth grade level. Tr. 115. Also in math ; however, at the beginning of the year, it was late fourth grade, early fifth. Tr. 116. In Global History and biology, she is provided audio support and is much more successful in understanding the information. Tr. 119. The other students are functioning at a similar level for reading. Tr. 118. Her writing skills are about . Tr.119.

The next witness was the mother. She attended the IEP meeting for the 2013-14 school year where they in a public school. Tr. 129. She stated at the meeting that she didn’t think it was appropriate for L.C. She also stated that the formal IEP was not completed during the meeting. Tr. 126. The Parent testified that she knows what the class would look like because she visited the class in the past but the school offered this year did not have . Tr. 128. Her husband was the one who visited the school this year. Tr. 128. She wrote a letter to the District indicating not be attending the school that was offered. Tr. 128; P-F. She stated that she signed the contract in February because they were required to do so at that time. Tr. 131; P-B. She stated . did not they would be reimbursed. Tr. 131. The Parent testified that the public schools that were recommended in the past were not appropriate. Tr. 133. She stated that she was always recommended for a class. Tr. 133. At the CSE meeting, the mother stated that the CSE did not discuss New York State approved private schools or a referral to CBST. Tr. 135. If the CSE had offered a private state approved school similar would have looked at it and considered it, if it were appropriate. Tr. 135. She stated that she doesn’t think there is an appropriate public school stated that her other daughter is in public school and she has observed all the classes for her. Tr. 136. 2013-14 school year on February 14, 2013. His understanding was that the contract was a placeholder for the 2013-14 school year. Tr. 138. The father stated that he believed that if for whatever not that he would have no problem getting the money refunded or partially refunded. Tr. 138. The father visited the have attended twice, early in September and again in the middle of the year to see if there were any changes in the placement of the classes. Tr. 139. He stated that at both times, they said they did not offer in this period. Tr. 139. The previous year they looked at a placement in another school and there there either. Tr. 139. The class that he was shown had 20 plus students and one teacher. Tr. 140.

On cross examination, the Parent indicated that, after looking at the letter he sent to the District, that he visited the placement in October not September. Tr. 144; P-G. He also indicated that he didn’t check the box regarding tuition reimbursement because it would be more expensive. Tr. 146. He not be contractually obligated to pay him back if he had found the public school appropriate in October, but because of his long term relationship with the school, he thought they would give him some money back. Tr. 147. His idea of an appropriate program one that is a similar type of Tr. 148.

The Parent testified had attended public school and they tried multiple times to work with the District before looking at other schools and placing her at Mary McDowell. Tr. 149. The Parent stated that they are looking at colleges that do not require SAT scores because she is working well with her accommodations and she is learning and wants to continue to learn. Tr. 150.

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Prong 1-Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; 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]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

It should be noted that in the Parents’ closing statement, the attorney for the Parents indicated that the District conceded Prong 1. Tr. 162. This is not the case. The District did not concede Prong 1, however I find that, in any event, the District did not meet its burden in showing that the District offered an appropriate placement for the 2013-14 school year.

Substantively, Ms indicated that prior to the meeting she reviewed the Teacher’s Report, however, when questioned about it, she could not recall the report spe in bulk twice a year. She also testified that she did not review the Pscyho-educational evaluation (D-3) at the CSE meeting since it was two years old and would not be relevant. Accordingly, it is not clear what evaluative data was reviewed at the meeting. Ms. Parise did indicate that the oral input from the classroom teacher at the meeting was used to assess the Student’s Present Levels of Performance. In determining where the Student belonged the reason the CSE placed him class was because ’s academics were several years behind and they didn’t feel that she was ready for an ICT class. Although both the Parent and the indicated that L.C. would not be able to nor an ICT class, the Student was placed in a 15:1 class anyway. In this regard the Parent and teacher stated at the CSE meeting that they thought the classes would be too large and was making progress in her small . It also states that” in a class .” It was clear that she could not meet her burden in explaining why would be appropriate except to indicate that she had trouble learning academics and the other students would have similar discrepancies since they were in the “special class”. She also was not able to explain why Occupational therapy was being continued except to indicate had it in the past. Accordingly, the District has not met its burden in would be provided with personalized instruction with sufficient support services, based on her needs, to enable her to benefit educationally from class.

In addition, the District failed to offer testimonial evidence regarding the assigned public school site and failed to present evidence that the school had for the Student for the 2013-14 school year and that it could implement the June 18, 2013 IEP. D-1. At the hearing the father testified that he visited the school on two different occasions during the school year and was told that there was . Tr. 139. In the father’s letter dated December 20, 2013, he was also advised the special education coordinator at the recommended placement that the school does not offer 15:1 placements. P-G. Although the Parents sent a Ten Day Notice on August 23, 2013 (P-F), they were waiting until school started to visit the proposed placement since they received the FNR on July 18th and school was not in session. D-2. According to the Parents’ Ten Day Notice and the father’s testimony, the school did not have This was not a situation where the school had a program but did not have a seat in the 15:1 classroom. No testimony was provided by the District as to whether they could recommendation as set forth on the June 18th IEP and in the FNR dated July 18, 2013.

For all of the foregoing reasons, I find that the District did not provide FAPE to L.C. for the 2013-14 school year. Prong 2-Appropriateness of Parent Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parents’ unilateral placement . In order to meet that burden, the Parents must show offered an educational program designed education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].

The Parents have met their burden in showing appropriate placement for the 2013-14 school year. The Program offers an educational program designed to meet .’s needs and enables her to receive educational benefit.

It is clear from the testimony of Mr. that is providing instruction specifically designed to and that she is benefitting from the instruction is a special education school. There are 110 students in the upper school all of whom and have learning disabilities and issues that get in the way of the students being able to learn in a general education environment. Tr. 58. Every student in the upper school has their own unique schedule to accommodate their needs. Tr. 71.Mr. that they work hard to differentiate instruction for each of their students. Tr. 81. There are two students English class, six in her in her biology class and five or six students in math. In math and English her classes are taught in track classes ad she is placed with others at her functional level , she is only . If there are less than ten students, there is one teacher and over ten students, there are two teachers. There is a transitional college prep taking and a full-time director of guidance that works with families regarding college, transition and alternative programs. Tr. 84.

Specifically, described the advisory program and how it by providing her with individualized support to keep up with her schoolwork. In addition to small classes, among other things, she is provided with specialized instruction, use of manipulatives in math, modified assignments and extended time and access to a reader for assignments and tests in Global Studies and biology as well as repetition, previewing, frequent review of material, chunking and audio support. Tr. 103. In biology, she also participates in structured review sessions before an exam with a study guide.

Ms. has made progress in her program. She has made great improvement in her ability to do her homework independently. Her participation has increased in all areas. In English her comprehension has improved, and as a result, she is making more accurate connections and can formulate more complex ideas. In math she has improved in knowing her facts and has developed an understanding of fractions and a stronger ability to perform operations with fractions. Tr. 11

In considering the testimony as a whole, I find the Parents witnesses credible and I find that offers an appropriate education one that is individually tailored to meet her special education needs and provide her with educational benefit. Based on the foregoing, I find that the Parents have met their burden in demonstrating the Prong 3-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding they’re being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C)(ii).

I find that the Parents participated in the June 18thCSE meeting. They contacted the District after they received the Final Notice of Recommendation (D-2) and visited the program after school was in session. They put the school on notice over the summer that they were in accordance with their Ten Day Notice. P-F. Following the father’s visit in October, he sent another letter to the District rejecting the placement and requesting reimbursement for the tuition -G. Although both Parents were concerned about the proposed placement in a 15:1 class, they both indicated that would have considered another placement if they found it to be appropriate their testimony in this regard. Tr. 135; Tr. 148. They also indicated that their other daughter was attending public school. Tr. 136.

In terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based on the foregoing, I find that the District did not provide FAPE the 201314 school year (Prong 1), the Parents’ placement of L is appropriate (Prong 2), and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them (Prong 3). Accordingly, the Parents are entitled to tuition reimbursement for the 2013-14 school year

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the District shall, upon submission by the Parents of proof of payment tuition costs for the 2013-14 school year and proof of attendance, reimburse the Parents for the tuition paid for the 2013-14 school year in a sum not to exceed FiftyOne Thousand three Hundred and Ninety ($51,390) Dollars. Dated: August 11, 2014

Elise B. Kestenbaum, Esq. gc

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 3 pages, dated 2/12/14 AA Amended Impartial Hearing Request, dated 5/30/14, 3 pages B School Contract, dated 2/15/13, 2 pages C School Program Description, 2 pages D Class Schedule, 1 page E Attendance Record, 9/2013-3/2014, 1 page F Notice Letter, dated 8/23/13, 2 pages G Rejection Letter, dated 12/20/13, 1 page H School Affidavit, dated 4/21/14, 1 page I Parent's Payments, 9 pages

PARENT

J Report Card with Teacher Comments, 1/29/14, 8 pages

DEPARTMENT OF EDUCATION

1 Dated 6/18/13, IEP, 10 pages 2 Dated 7/18/13, FNR, 1 page 3 Dated 11/28/11, Psychoed Assessment, 7 pages

Footnotes

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