New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 23, 2014

May 14, 2014

June 19, 2014

Actual Record Closed Date: July 25, 2014

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2014

Esq. Attorney for Parent — Student

CSE 7 District Representative — DOE

NAMES AND TITLES OF PERSONS WHO ON APPEARED MAY 14, 2014

Esq. Attorney — Student

Mother — Student

Father — Student

Principal (via telephone) — Student

Director (via telephone) — Student

CSE District Representative — DOE

School Psychologist (via telephone) — DOE

IEP/ teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2014

Esq. Attorney — Student

Parent/Mother (via telephone) — Student

CSE District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State commissioner of Education. This matter was brought by the Parents (“Parents”) (“Student”) through their of the law by filing a Due Process Complaint dated February 28, 2014.

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

There were three (3) days of hearings in this matter. Hearings were conducted on April 23, 2014, May 14, 2014, and June 19, 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 a thirteen (13) year old student. During the 2013-14 school year, attended the Student was unilaterally placed by the Parents.

With respect to the 2013-14 school year, an Individualized Education Program (“IEP”) was developed on May 28, 2013. Pursuant to that IEP, the following recommendations were made:

2. Counseling, 1:1, one time per week, 30 minutes each time;

3. Counseling, 3:1, one time per week, 30 minutes each time; and

4. Physical Therapy,1:1, two times per week, 30 minutes each time.

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

The District issued a Notice of Recommendation dated June 18, 2013. D-2. It stated that the offered school shall be The Parents sent the District a letter on August 22, 2013 indicating that they were told to visit the program after school started in September. They stated that in the interim, they would continue placement at and would seek reimbursement for the placement. P-E. On October 10, 2013, the Parents sent a letter to the District advising them that they were rejecting the IEP placement since they found it to be inappropriate and advising them that they would be keeping at and would seek reimbursement for the tuition at P-D

The Parents entered into an Enrollment Contract for the 2013-14 school year on September 16, 2013. P-I.

The Parents filed a Due Process Complaint on February 28, 2013. P-A. I was appointed as an Impartial Hearing Officer on that date.

POSITION OF THE PARTIES

District’s Case

The District called two (2) witnesses, and placed four (4) documents in evidence. D-1 – D-4. The first witness was . She has a Master’s degree and New York State certification in school psychology. She has worked for CSE 7 for two years but has been working for the Department of Education for 13 years. Tr. 29. Her present responsibilities include performing evaluations, reviewing reports and evaluations, and creating IEPs and program recommendations as part of a team. Tr. 30.

is familiar with because she was present at his CSE meeting. Tr. 31. Both and the mother appeared at the meeting by phone. Tr. 32. Ms teacher from the District was there as well. Tr. 32. She has special and general education certification. Tr. 33. She stated services, five periods per week and related services of counseling and physical therapy. Tr. 34. She recalls reviewing teacher reports meeting. Tr. 34. She doesn’t recall whether there was a discussion about the at the meeting, however, she tried to do an updated evaluation and made several appointments that the Parent did not show up for. Tr. 35. Ms. stated that they had made three attempts to come in to be tested. Tr. 37; D-4. She requested testing because he hadn’t had any since 2010. Tr. 39. They did not, however, need the testing for the annual review. Tr. 39. They wanted to do the testing to get more current information to help in terms of program recommendation. Tr. 39.

Ms. testified that she doesn’t recall specifically what reported but they usually include the teacher’s input in the present levels of performance section of the IEP. Tr. 40. At the time of the IEP meeting, he level in math and reading. Tr. 40. The teacher also reported that spelling was grade level and and there were overall difficulties with writing and written assignments. He was with class lessons; ; and he had difficulty managing school materials. Tr. 40. The teacher report indicated that in class, they helped him with word lists, visual aids, and charts to assist him during lessons. His areas of struggle are spelling, comprehension and sequencing skills. Tr. 41. She also indicated that based on the teacher’s report, it was indicated that he with his peers. He was making inappropriate remarks and he was having with overall social skills. Tr. 41. The Parent participated at the meeting. Tr. 42. In the social development section, it indicates that the mother stated . and has a low tolerance for frustration and tends to shut down. Tr. 42. With respect to his , she remembers the Parent indicating that he can have some difficulty with gross motor tasks (i.e. not being able to ride a bike). Tr. 42.

The first goal on the IEP dealt with improving writing skills and sequencing and Ms stated that he would receive educational benefit from this goal. Tr. 43. The next goal deals with comprehension and is targeted to deal with answering questions, identifying main ideas and a general understanding of the material read. Tr. 44. The next goal dealt with improving his math skills and the last two dealt with counseling and physical therapy. Tr. 44. She stated that the goals were discussed at the meeting and would provide educational however, she didn’t’ know if they were discussed at the meeting. Tr. 44. She doesn’t remember how the goals were written up at the meeting. Tr. 45.

On cross examination stated that the May 28th 2013 CSE meeting was the first time she attended a meeting Tr. 47. She believes she contacted the mother concerning an updated psycho-educational evaluation in mid-April by sending a letter. Tr. 49. She said that she sent a packet containing a letter stating that the annual review was due, a letter stating that additional testing was required, and a consent form for the evaluation. Tr. 50. She does not recall receiving a consent form back from the Parent. Tr. 50. She followed up with the Parent on two occasions by phone. Tr. 50.

With respect , there was no explanation or evidence as to why he was designated impaired since prior IEPs merely indicated that he . The Parents agreed to the diagnosis based upon his physical limitations. Tr. 51.

was based on the teacher’s report and what was discussed at the meeting. She stated that “he was a little bit below in some areas” and they felt that it would best address his needs, particularly in reading and math. Tr. 59. She doesn’t remember if D.W.’s teacher agreed or disagreed with the placement recommendation. Tr. 60. The cap on the SETTS class is eight students does not recall what the cap on the general education class was. Tr. 60. She testified would be working on IEP goals in the general education classroom. She indicated that she didn’t during the 2012-13 school year, but she didn’t think so or else she would have continued it as a service for 2013-14. Tr. 65. They would have only discontinued it if they had supporting evidence and the mother didn’t want it. Tr. 66. She wasn’t sure if she made draft goals before the CSE meeting or at the meeting this time. Tr. 67.

The next witness . She has a Master’s degree in special education and has been certified by New York State for 31 years. Tr. 72. Ms. , a junior high school, and is presently an IEP . Tr. 73. At the school they have ICT classes for grades six, seven and eight, , as well as other related services. Tr. 73. The related services they have are education. Tr. 74. Ms. remembers the Parent calling and discussing the program with her and she is aware that someone came in and program. Tr. 75. Ms. testified that the school would be able to provide five periods a week in accordance with the IEP. Tr. 75. The school would have also provided counseling and physical therapy. Tr. 76. After reading the academic section on the IEP, Ms. is just like the other students receiving . Tr. 77. He would be departmentalized for his classes. Tr. 77. She would supplement learning in English and math in his regular classroom. Tr. 77; D-15. He would also have been able to fulfill the goals on the IEP. Tr. 78. Ms. that the goals on the IEP would not be the only goals he was working on because she follows what his class does and she also follows what he needs so if the class is working on an additional goal, he would get assistance in that area as well. Tr. 78. Ms. at the beginning of the year individually and puts them in groups. The groups are fluid and can change. Tr. 78. At the beginning, she likes to see the students in their classrooms and in the SETTS room and she works with them to see where they will fit before the year gets underway. Tr. 79. When they come to her room, they are missing a non-academic class; however, it is not always the same period so they are not missing full instruction. Tr. 80. She never takes them out of academic subjects. Tr. 80. For the Student may see a psychologist or guidance counselor depending on who is assigned to service him. The teachers are observed and their work is monitored during the school year. Tr. 82. If Ms. would be better serviced with a push-in model of SETTS she will do so. Tr. 83.

On cross examination, Ms. stated that she teaches five per day. Tr. 84. She has three different periods where she would see seventh graders. Tr. 84. In one class, there is one student who comes two times a week alone and three times a week in a group of three. There are approximately 900 students in the school and 300 per grade. Tr. 86. There are eight periods in a day and there is also extended day. Tr. 87. She stated that may be placed in an ICT class with two teachers as a general education student even if he wasn’t given an ICT placement or in a regular general education class. Tr. 88. In her groups, one seventh grader is in a class of 26 students and another student has 21 students in his class. Tr. 89. Multiple classes are grouped together for lunch, recess, assemblies, etc. Tr. 85. Ms. testified that the Parent spoke to her about visiting the SETTS program. Tr. 90.

On redirect, Ms stated that she presently has five seventh grade students in and there is one in an ICT class and the rest are in general education classes. Tr. 90-91. She also said that range from and that based on the IEP level in both. Tr. 91. Therefore, she stated that he would fit in but she also differentiates instruction for each child. Tr. 92. Parents’ Case The Parents called three (3) witnesses, Dr. and the Parent and placed eleven (11) documents in evidence. P-A – P-K.

The first witness was Dr. . He has a Master’s degree in speech and language pathology and a New York State license as a speech and language pathologist. He also has a doctorate in supervision and administration with a specialty in special education. Tr. 96. He is currently the director of and a professor at the graduate program in speech and language pathology in . Tr. 96. He has been the director 33 years. Tr. 96. He supervises all the educational programs, provides staff development, oversees the progress of students and oversees the financial department. Tr. 97. The student population primarily of students . Tr. 97. There are programs at four different sites as part of mainstream schools. There are two elementary schools in Brooklyn, one in Manhattan and one in Queens. For non-academic subjects, the students are mainstreamed, and where appropriate, mainstreamed in academic classes as well. Tr. 98.

Dr. testified that the criteria for admission that “the child have a classification of speech and language impaired or learning disabled or a clear demonstration that they are struggling academically and struggling learning in a large group and that they can benefit from a program where we have licensed special education teachers teaching them in a small group with specialized teaching methodology”. Tr. 98. For students that attended in a prior school year, the ongoing admission criteria would be demonstrating that they are making sufficient progress but still need to be in smaller classes with a goal towards continued mainstreaming. Tr. 99.

Dr. keep up with his peers and they felt that given the academic, emotional and supportive environment at they could help him progress. Tr. 99. Dr . was getting in 2013-14 because he demonstrated that he can benefit from the services that they offer and that he was making progress. Tr. 100. Dr. felt that he still needed the level of support they offered. Tr. 100.

He stated . Tr. 100. Dr. that falls in the and relates to functioning, his , and ”. Tr. 101. Dr. stated that he came to and he continues to have an IEP from the Board of Education. Tr. 101. He stated report in order to . Tr. 101. unit tests and testing by teachers and then at the end of the year, they do their own baseline testing. They do both the Woodcock Reading Mastery Test and the Key Math on students. Tr. 102.

Dr. . for the 2013-14 school year in the amount of $43,000 includes related services. Tr. 101; P-I. The Parents did not sign a contract until they made their visit to a public school or attemped to make their visit to a public school. .’s contract was signed on September 16, 2013. Tr. 103. Dr. does not know when the Parents visited the public school. Tr. 103. Dr. stated that the Parents are fully obligated to meet their tuition obligation of $43,000 and that they have always met their obligation in the past. Tr. 104-

105. Dr. indicated that he is not on site with the Student but visits the program on a regular basis. Tr. 103. He visits the classes, speaks with the teachers and works with the program coordinator, , who is the on-site coordinator. Tr. 104.

On cross examination, has four sites and site in Brooklyn. Tr. 105. Dr. goes there twice a month. Tr. 105. He speaks to the teachers when he is there but speaks to the program coordinator on a daily basis. Tr. 106. At present, . is in a special education self-contained class of seventh and eighth graders. There are eight students in the class; two seventh graders and six eighth graders. Tr. 107. At there are 21-22 students. There are three classes; a third/fourth, fifth/sixth and seventh/eighth. Tr. 107. There is also a regular education school for grades kindergarten through Tr. 107. He stated that there are approximately 400 students , maybe more and three seventh grade general education classes. Tr. 108. The program is not departmentalized and they have one main teacher, not different subject teachers. Tr. 108. The class is considered an 8:1:1 because there is one teacher and one assistant. Tr. 109. Nine students is their max number. Tr. 109.

The next witness was . He has a Master’s degree in curriculum and learning disabilities. He also has a New York City special education certification. Tr. 111. He is program coordinator at has been there for three years. Tr. 112. He is responsible for the supervision of teachers and students and the daily operation of the school. He coordinates related services and implements mainstreaming and acts as liaison between mainstream and self-contained classes. Tr. 113. Both Dr. do training and they participate in Hidden Sparks webinars. Tr. 113. They also have training with a reading specialist. Tr. 113.

testified that there are 21 students at P’TACH in grades three through eight and they all have IEPs from the Department of Education. Tr. 114. He stated that the students classifications at disabled, and OHI. Tr. 114. He indicated was in an 8:1:1 class last year and he progressed steadily. Tr. 113. Mr. teachers from last year and he participated .’s IEP meeting on May 28, 2013. Tr. 115. The teacher’s report (P-G) was signed by Mr. ’s other teacher from the 2012-13 school year. Tr. 116. For the 2013-14 school year, he has Mr. as teachers. They do not co-teach, they split up the day. The assistant is Ms. . Mr. teaches the religious component as well as the Hebrew language component and Mr. Silverberg teaches the secular subjects. Tr. 117. Last year, Mr. taught the religious portion and Hebrew language component. Tr. 118.

conducted a Woodcock Mastery and Key Math as well as informal assessments and determined that D.W. made more than one year’s worth of growth in the past year. In May of 2013, he was mid to upper fifth grade for reading and now in May 2014, he is mid to upper sixth grade. Tr. 120. In math, he was at a mid-fifth grade level last year and he is presently at an upper sixth grade level. Tr. 120. At the start of 2013-14 school year, he identified as reading and science. Tr. 120. His greatest challenges were expressive language, including sequencing his thoughts and arranging them in a conversation or on paper. He is and not . He has satisfaction regulation difficulties and requires constant direction to stay on task. He redirection. also said he has difficulty with “spatial awareness which really affects his material management and his sense of time and management and responsibility”. Tr. 121.

This year, there are eight students in , with classifications of speech and language impaired, learning disabled . Tr. 121. The other students level. The students are like typical middle school boys with a few more social skills and interpersonal difficulties. Tr. 122. With respect to social and interpersonal ” and , however, when you add the academic pressure, and conflict resolution. stated that he requires intervention and social skills training. Tr. 122.

testified that Mr. teachers is a certified New York State special education teacher, however Mr. doesn’t have a license and he doesn’t know if he has an undergraduate degree. He did state, however, that he has years of experience working with this populations and he has taken the school’s special education training. Tr. 123. testified that the and provides him with one-to-one and individualized instruction which fits his needs. Tr. 123.

. is mainstreamed for all non-academic activities like lunch, recess and assemblies. Tr. 124. He is also in one mainstream class for science with extensive support before and after and a lot of communication with the mainstream teacher. Tr.

124. There are 26 students in his science class. Tr. 125. Once a student does well in a mainstream class, they remove the support and scaffolding and if they are up to it, they can add another mainstream class. Tr. 125. By scaffolding, the teacher gets the material before, breaks it down and then post teaches him so they make sure he understands what went on in class. They also help him manage his homework. Tr. 125. This takes place during the focus period which allows for one-to-one instruction. Tr. 125. Science, math and social studies are from 3-5 on .’s schedule which allows 35 minutes for each subject. Tr. 126. Since time will vary, he will need to make up whatever he missed while out of his self contained classroom. Tr. 126. indicated that he will have one-toone instruction to catch him up. Tr. 126. They also have a special education teacher who is licensed that works in the office and helps him with what he misses in class. Tr. 127.

testified that science class and they have had to work with him negotiating incentives to get him to recommit and he has been maintaining an 80 average. Tr. 127. D.W. has a behavior plan which was not brought to the CSE meeting. Tr. 127. It is informal and involves negotiating with him, when necessary, and providing incentives. Tr. 127. The behavior plan was just developed exclusively to help . with his mainstream class as this is his first time in such a class . Tr. 129. The behavior plan was developed in November and then revisited three or four months later. Tr. 129.

stated that he has observed SETTS programs in the past although he has never worked at a public school. Tr. 130. He does not think that D.W. could handle only five periods week. They feel that they are providing additional support for the one mainstream class he is taking and it’s approximately four periods of extra help a week just for that class. He does not think he could handle a full day of mainstreaming. Tr.

131. He also feels that based on the volume of the material, the rate it would be coming in and the complexity, it would need to be broken down . Tr. 132.

At . Tr. 132. and issues with pragmatics as well as difficulties with social skills. Tr. 132. He receives speech, twice a week for 30 minutes each time, and 2:1 the other time. He is pulled out once in the morning and the other time in the afternoon. Tr. 133. Also, he once a week individually and once a week in a social skills group and it is usually in the mornings. Tr. 133. The social skills group is either all eight students or two groups of four, depending on the issues being addressed. Tr. 133. All the students at , though they receive different amounts. Tr. 134. They do not have a physical therapist on staff. Tr. 134. stated that they discussed the physical therapy with the Parent and they decided it wasn’t something he should be missing classes for and it’s something that could be done after school. Tr. 134. With respect to the physical therapy, does not see any physical difficulties except for some tiredness and that could just be lack of sleep. Tr. 138.

In speech, they are articulation, pragmatic skills and social skills. Tr. 135. has made progress in his expression, in his ability to have a conversation. In addition, he is more socially appropriate and his vocabulary has expanded. Tr. 135. The speech pathologist is licensed in New York State. Tr. 135. He is receiving counseling from a school psychologist. In individual counseling, he is which involves making him understand his , what his learning differences are, and how he can compensate for them and how he can navigate and negotiate school and life in general. Tr. 136. that he has made significant progress and is aware of his and is also more collaborative and is able to have a negotiation better than he was earlier in the year. Tr. 136. is pull out for individual and push in for group. Tr. 136. The students go to speech and counseling at varying times throughout the day. Tr. 137.

In connection is no secular basis for prayer and religious studies. Tr. 139. his decoding, vocabulary and encoding. Tr. 139. The afternoon (secular) “reading/writing/spelling” is based on the New York State Standards and it is modified for the students. Tr. 140. Although there . Tr. 141. They differentiate instruction and change the trade books as each child improves. Tr. 141. In math and social studies, it is also differentiated for the students. Tr. 142. In social the curriculum at a good rate and is performing well on tests and quizzes and all assignments. Tr. 143. In language arts, he has an 85-90 average. Tr. 143. In math, . Tr. 144. Report cards are given out and they use the Key Math and Woodcock Mastery for reading to track them and they also use teacher generated worksheets and informal assessments and assignments. Tr. 144.

early on Fridays. As a result, the students have class on Sundays to make up for the time they miss on Friday. Tr. 144. made over a year’s worth of progress in math and reading. Although he is being mainstreamed and is struggling, he is also making progress with the supports provided. Tr. 145. They have parent/teacher conferences twice a year and phone contact on a regular basis. Tr. 145. that he believes an appropriate placement for . since he needs that level of support. Tr. 146.

On cross examination, stated that the behavior plan would be for his “behavior in academics meaning how well he is able to participate and stay on task”. Tr. 148. The behavioral plan is mostly for attentional regulation. He does not need it in the selfcontained classroom, just for science. Tr. 148.

testified the teacher and assistant. Tr. 148-149. Mr. afternoon teacher does not have a license in New York State but has training in “All Kinds of Minds”. Tr. 150. teaches in the morning and he is licensed. Tr. 150.

After eighth grade, some students are mainstreamed into regular education programs and others go on to which is in a different location. Tr. 151. The Woodcock Mastery and Key Math are standardized tests but were not given to the CSE. Tr. 152. reading because of his difficulty in sequencing and breaking things down. Tr. 153. In math, there is a standardized curriculum he is using and it involves algebra and prealgebra. Tr. 153. A textbook is not used for writing; it is based on the reading curriculum. Tr. 154.

With respect to SETTS, knows what the services are but he doesn’t know how a student qualifies and what they get. Tr. 158. mainstreamed for gym in a class of approximately 26, he is not mainstreamed for art or music. Tr. 160. For recess and lunch, be mainstreamed with all seventh and eighth graders, which are over 100 kids. Tr. 160.

testified that he never notified the Department of Education need speech and language therapy. Tr. 162. He believes OHI is an appropriate classification since his reading and math levels are high, but he needs the support and can’t perform without it. Tr. 163. When , .

With respect to the religious part of the day, testified that everything after 10:30 is language and secular studies. Tr. 164.

The last witness was the mother. She . She testified that he was in a regular until he was in fourth grade and he was not receiving special education and that he was never in a public school. Tr. 195-196. Ms. had him evaluated when he was five years old through the District. Tr. 197. At that time, she believes he was classified by the District but she doesn’t recall what his classification was. Tr. 197. In second grade, he was in a private special education program for a couple of months, but the Parents didn’t go through the District at that point. Tr. 198. She couldn’t remember if he had an IEP in first, second or third grade. Tr. 198. At that time, he was only getting support for his Hebrew studies which he didn’t have an IEP for. Tr. 198. She then stated that she didn’t remember if he was classified and whether he had an IEP. Tr. 198-199. Prior to attending was evaluated by the District in 2010 and received an IEP. Tr. 199-200.

The mother indicated that his but focuses more on understanding the words than the details of the story. Tr. 201. His greatest and 201.

The Parent testified that she doesn’t remember receiving a request from the District to conduct a evaluation prior to the May 2013 IEP meeting. Tr. 202. She stated that “Sometimes she has issues with the mail…” Tr. 203. She also did not remember if she received a notification of the May 28 CSE meeting. Tr. 204. She remembers having a phone meeting this year. Tr. 205. The Parent testified that she received a phone call telling her that she missed an evaluation and it caught her off guard because she didn’t remember scheduling it. Tr. 206. On the phone, she scheduled another appointment and she missed that as well. Tr. 206. She stated that it was an oversight and was not intentional. Tr. 207. She stated that she has, since that time, taken him for an evaluation. Tr. 207.

The Parent testified that she attended the May 28th CSE meeting by phone. Tr.

207. She indicated that they changed his OHI because that’s not what his issues were. Tr. 210. She stated that even though he was classified with an Orthopedic Impairment, he had academic difficulties and challenges as well . Tr. 212. The Parent testified that at the meeting, they discussed taking away services because his issues sounded more emotionally based and they wanted to Tr. 214. She stated that the CSE said they would give him five sessions of SETTS services for reading and math a week. Tr. 215. She could not recall if she or Mr. teacher objected to this. Tr. 215. The Parent testified that she did not invite Mr. Silverberg to the meeting, but he was there. Tr. 216. The Parent testified that she didn’t think that one session of SETTS a day was sufficient for D.W. Tr. 216. She is not aware of what level he is in for reading or math, but math is a big problem for him. Tr. 217. She stated that although he may read books on or above grade level, he doesn’t understand what he reads and isn’t able to retell the story. Tr. 217. The Parent does not recall if they discussed goals at the meeting. Tr. 218. She said that she recalled the CSE discussing counseling; however, she indicated that although it is a valuable service, they can’t counsel away his learning disabilities. Tr. 218. She based her statement that he has learning disabilities on her experience as a mother and the fact that he doesn’t perform academically to what she thinks his intelligence is. Tr. 218.

The Parent stated that the their own assessments the year and she meets with the staff twice a year unless concerns crop up at other times. Tr. 219.

The Parent stated that after the May 28th CSE meeting, she received a Final Notice of Recommendation. Tr. 220. The Parent testified that met with Ms 221. Ms. class with four students in it. Tr. 221. She said Ms there could be as many as 30 students in his general education class. Tr. 222. had nine students in his class. Tr. 222. She felt that the school environment would have been . Tr. 223. In her letter dated October 10, 2013, she asked the District to recommend other programs or placements. Tr. 223; P-D. She stated that no one responded to her letter but she would have considered other placements.

The Parent testified that she signed the before she visited the school because she didn’t visit the school until October. She stated that with respect to the tuition, she owed $26,000 as of April 10, 2014, and it is her understanding that they are obligated to pay the balance of the tuition. Tr. 225. She thinks she has paid additional sums for April, May and June but isn’t sure since her husband handles the payments. Tr. 222.

The mother testified that since the beginning of the year she has seen progress in and willingness to work and to not give up. Tr. 225. She stated that he is learning and his weaknesses are being addressed. Tr. 226. She believes that that getting very individualized instruction. Tr. 227. She thinks that although he has nine students in his class, for math and reading they are broken into smaller groups. Tr. 227. The Parent testified that she doesn’t know how much of the day is religious but she knows it is in the morning. Tr. 230.

The Parent testified that she doesn’t know but his related services are not just based on his IEP but and own judgment. Tr. 229. She stated that he is not receiving physical therapy at P’TACH and she doesn’t think he needs it. Tr. 229. She said they used to have someone coming to the house and sometimes individually. Tr. 230.

On cross examination, the Parent stated secular subjects in the afternoon. Tr.

231. She doesn’t know whether he did a Woodcock Johnson Assessment at the beginning of the year. Tr. 232. She stated told her that comprehension is an issue. Tr.

233. At the beginning of the year, he was also very resistant to math. Tr. 234.

The Parent testified that none of her four children ever attended public school. Tr.

236. She stated that if the public school would have been the best thing would have pulled him . Tr. 237. She did not like the public school because the building itself was big, the kids were rowdy, and she unsafe. Tr. 237. She thought that the kids in the SETTS class were around the same had different skill levels. Tr. 237.

The Parent indicated that there are mainstreaming opportunities at P’TACH because it is housed in a building with a regular mainstream yeshiva and when a student is ready, they will be mainstreamed in a class with additional supports. Tr. 239. This year . was mainstreamed for a few months in science. Tr. 239.

The Parent testified was discussed at the CSE meeting, specifically his low frustration tolerance, his acting-out and the fact that . Tr. 241. She said a behavior plan was not suggested because his behavior was not extreme. Tr. 241. She testified that the she was aware of was redirecting him because of his . She stated that he was not a behavior problem. Tr. 241. When the behavior intervention plan was brought up, she explained that it’s the academic issue that is at the root of everything and that is what’s issues. Tr. 243. She said that she thought counseling could be a good thing but stated that she didn’t think . Tr. 244. She thought help with his feelings but didn’t know if counseling can help with attention and focus. Tr. 244.

The Parent also testified Impairment to OHI. Tr. 245. She indicated that previously, a physical therapist that the District provided through an RSA, stated that Tr. 246. A physical therapist came to the house but he stopped coming was uncooperative. Tr. 246. She was discussed at the meeting and whether she thought it should be continued. Tr. 247. She thought that a given to the Parent at the CSE meeting. Tr. 248.

On redirect, the Parent to be in a special education class for the majority of his day and she believes he needs more academic support than the District is providing. Tr. 251.

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).

First, the Parents claim that the May 28, 2013 CSE was improperly constituted since it did not include a regular education teacher. The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be participating in a general education environment (20 U.S.C. § 1414[d][1][B][ii]; see 34 CFR 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; 34 CFR 300.324[a][3]; 8 NYCRR 200.3[d]). In this case, a review of the May 28, 2011 IEP and the testimony of Ms. Armetta at the hearing indicate that the attendees at the meeting included Ms. Lijoi, who is a certified general and special education teacher. Tr. 33. Therefore, the CSE was properly constituted.

Although the Parents allege that the IEP “is reflective of impermissible policy and predetermination elevated over [D.W.’s] individual needs”, a review of the hearing record supports the District’s position that the Parents participated in the CSE meeting and that predetermination was not an issue in this case.

Among the elements of an IEP is a statement of a student's academic achievement and functional performance and how the student's disability affects his or her progress in relation to the general education curriculum (20 U.S.C. § 1414[d][1][A][i][I]; 34 CFR 300.320[a][1];8 NYCRR 200.4[d][2][i]; see 8 NYCRR 200.1[ww][3][i]). In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations .However, neither the IDEA nor State law requires a CSE to "'consider all potentially relevant evaluations'" of a student in the development of an IEP or to consider "'every single item of data available'" about the student in the development of an IEP (T.G. v. New York City Dep't of Educ., 2013 WL 5178300, at * 18-*19 [S.D.N.Y. Sept. 16, 2013], citing M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *8 [S.D.N.Y. Mar. 21, 2013]; see F.B. v. New York City Dep't of Educ., 2013 WL 592664, at *8 [S.D.N.Y. Feb. 14, 2013]). In addition, while the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it (20 U.S.C. § 1414[d][3][A]; see M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *8 [S.D.N.Y. Oct. 12, 2011]).

In this case, the hearing record demonstrates that the only evaluative information that the CSE considered in the development of the Student’s May 28th IEP was “teacher reports”. The only teacher report included in evidence is the two page teacher report from April 18, 2013 (P-G). It should be noted that Mr. the Parent participated at the CSE meeting, although Ms. recall what he contributed at the meeting. Tr. 40. Ms. although testing wasn’t required for the May 28th CSE meeting, they tried to do an evaluation of prior to the meeting due to the fact that no testing had been done since 2010 and it as she testified, it would have been helpful in terms of the program recommendations at the CSE meeting. Tr. 39.^[2] . Therefore, regardless of the cause, the CSE did not have sufficient evaluative information to develop the student's IEP and therefore the present levels of performance section on the IEP do not accurately reflects the student's needs.

In addition to the foregoing, at the meeting the Student’s classification was changed from . Although the change in classification was not raised as an issue in the Due Process Complaint (P-1), the fact that the classification was changed is an issue since this may have impacted the program recommendations. In this regard, the Due Process Complaint states that “Without a clear sense of , the NYCDOE was not in a position to develop a proper IEP or make a program recommendation , evaluative information would have been especially important given that this IEP marked a change in classification for [D.W.].”

The Parents also asserts that the in the May 2013 IEP were not sufficient to meet the Student’s needs and that the Student required additional supports which could not be provided in a general education class one period a day. The Parents assert that the Student’s deficits would not be appropriately addressed, and the recommendation for one period a day and general education the remainder of the day would not be appropriate since the Student was having difficulty mainstreaming in one subject without extensive support and was making progress as a result of his placement in classroom with supports to meet his individualized needs. Both felt that continued to need the level of support they offered which included contained classroom environment for all of Student’s academic classes except for science. Tr. 100; Tr. 131. specifically stated that he did not . could handle only five time periods a week of SETTS services since he was providing almost four periods of support for the one mainstream class he was taking. Tt. 131. In addition, in order to motivated, they needed to institute an informal behavior plan, which they were using with incentives to help him keep up with the work in the mainstream class. Tr. 126. In this regard, the Parent agreed that one period of SETTS a day would not provide the appropriate amount of . in order to address all of his needs. Tr. 216.The only options considered on the IEP were general education which the CSE determined would not class which the CSE determined was not warranted at this time. Despite the fact at for the 2012-13 school year and and with the supports he had, no other options were considered.

Although . was provided with the related service of physical therapy, there was no physical therapist at the meeting and no one knew why he was receiving physical therapy at the meeting. In addition testified that there was no indication as to why he was previously designated as Orthopedically Impaired since the prior IEPs merely indicated that . Tr. 51. indicated that with respect to physical therapy, he does not see any except for could have simply been caused by a lack of sleep. Tr. 138. did not during the 2012-13 school year at Both the Parent agreed that he shouldn’t miss classes for physical therapy, and if physical therapy were necessary, which they didn’t think it was, it should be done after school. Tr. 134. In this regard, the Parent testified that she didn’t think . needed it, and in the past when he received it, it was counterproductive. Tr. 229.

With respect to speech, Ms. that she did not during the 2012-13 school year on his IEP os she would have continued it as a service for the 2013-14 school year. Tr. 65. She further stated that she would only have discontinued it if they had supporting subsequently take place. Regardless of the cause of the delay in doing the evaluation, there was not sufficient evaluative data at the May 28th 2013 CSE meeting to make a placement recommendation. evidence and the mother didn’t want it. Tr. 66. I do not credit the testimony of Ms. in this regard since she did not recollect details of what she reviewed at the meeting and what the IEP specifically stated. It must be pointed out that there is no IEP from the 201213 school year in evidence to show whether speech was offered as a related service and no evidence that a report from reviewed at the meeting. It is clear, however, from the record that D.W. had been receiving for the 2012-13 school year and the 2013-14 school year. P-H; P-C. In addition indicated that he had social and pragmatic issues stated that he had issues as well. Tr. 100; Tr. 132. testified that in speech therapy they were targeting vocabulary expansion, pragmatic skills and social skills and he was receiving speech once a week in a group and once a week individually.

In connection with the goals, an IEP must include a written statement of measurable annual goals, including academic and functioning goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student’s other educational needs that result from the students disability (see 20 U.S.C. §1414[d][1][A][i][II]; 34 CFR 300.320 [a][2][i]; 8 NYCRR 200.4[d][2][iii]). In the instant matter, the Due Process Complaint indicates that the IEP fails to include sufficient goals levels of performance on the IEP, among other things, it indicates that span is limited and he has difficulty managing his school materials, yet no goal was created to address this. In addition there is no indication where the goal for physical therapy came from.

The Parents assert that the assigned school was not appropriate because the classes were too large, as is the school itself, and the placement did not offer sufficient special education and support. The Parent also had specific objections to the SETTS class at the placement itself and the levels of the students in the class. It should be noted that in this regard challenges to an assigned public school site are generally relevant to whether the district properly implemented a student's IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district's offered program must be determined on the basis of the IEP itself (R.E., 694 F.3d at 18688). The Second Circuit has explained that the parents' "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *14-*16 [S.D.N.Y. Oct. 16, 2012]; Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 [W.D.N.Y. Sept. 26, 2012] [finding the parents' preimplementation arguments that the district would fail to adhere to the IEP were speculative and therefore misplaced], adopted, 2012 WL 5473485 [W.D.N.Y. Nov. 9, 2012]; see also K.L. v. New York City Dep't of Educ., 2013 WL 3814669, at *6 [2d Cir. July 24, 2013]; Reyes v. New York City Dep't of Educ., 2012 WL 6136493, at *7 [S.D.N.Y. Dec. 11, 2012]; R.C., 906 F. Supp. 2d at 273 [explaining that "[g]iven the Second Circuit's recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom a student would be placed in where the parent rejected an IEP before the student's classroom arrangements were even made"]; Peter G. v. Chicago Pub. Sch. Dist. No. 299 Bd. of Educ., 2003 WL 121932, at *19 [N.D. Ill. Jan. 13, 2003] [noting that the court would not speculate regarding the success of the student's services where the parent removed student from the public school before the IEP services were implemented]).

As explained more recently, "[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented" (A.M. v. New York City Dep't of Educ., 2013 WL 4056216, at *13 [S.D.N.Y. Aug. 9, 2013]; see R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *17 [S.D.N.Y. Sept. 27, 2013]; E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *26 [E.D.N.Y. Aug. 19, 2013]; M.R. v New York City Bd. of Educ., 2013 WL 4834856, at *5 [S.D.N.Y. Aug. 14, 2013] [finding that the argument that the assigned school would not have been able to implement the IEP is "entirely speculative"]; see N.K. v. New York City Dep't of Educ., 2013 WL 4436528, at *9 [S.D.N.Y. Aug. 13, 2013] [citing R.E. and rejecting challenges to placement in a specific classroom because "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan'"]). Therefore, since the Parents uliaterally placed the Student before the time the District would have been obligated to implement the IEP, the placement needs to be judged on the face of the IEP and not in the testimony of how the IEP might have been implemented.

Based on the totality of the evidence, I do not believe that the District met its burden in showing that the recommended placement was sufficient to meet the Student’s needs and provide him with academic benefit. Therefore, for all the foregoing reasons, I find that the District did not satisfy the requirement to prove Prong 1 and therefore, FAPE was not provided 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 to meet D.W.’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].

Based on the hearing is a small special education program housed in a mainstream private yeshiva. There are programs at four different the School. The students are integrated into the mainstream school for certain nonacademic classes and programs, and, where appropriate, are mainstreamed into academic classes as well. Dr. indicated that the classifications or or demonstrate group. Both Dr. testified that students with a classification of OHI may be admitted into the program if they have issues similar to the other students in the program. Tr. 98; Tr. 113. There are approximately 21 -22 students site and approximately 400 students at school Tr. 107. There are three classes: a third/fourth, fifth/sixth, and a seventh/eighth. Tr. 107. All teachers receive training and are who oversees all four programs.

specifically is in with two teachers, Mr. , one in the morning and one in the afternoon, with a full-time assistant throughout the day. Tr. 117. Mr. a certified special education teacher. Tr. 123. Although is not a certified teacher, testified that he has extensive experience working with this population and has taken the school’s special education training. Tr. 123.

The special education supports in the classroom are tailored to meet D.W.’s needs. testified that they provide him with scaffolding, chunking, pre and post teaching in connection with his mainstream class, and where necessary in his other classes, and differentiate instruction in his academic subjects to meet his individualized needs Tr. 139-

144. They also provided him with a behavior plan with respect to this class with incentives to help him succeed in his mainstream class.

Dr. benefits from the supports at nd is making progress but still needs the level of support he is receiving. Tr. 100. has made more than one year’s growth during the 2013-14 school year. He stated that in May 2013, he was at a mid to upper fifth grade level in reading and he is now mid to upper sixth grade. Tr. 120. In math, he was at a mid fifth grade level last year and is presently at an upper sixth grade level. Tr. 120.

with a small group setting where he can receive individualized support and instruction. testified that with respect to significant progress, is aware of his strengths and weaknesses, is more collaborative and is able to have “a negotiation better than he was earlier in the year.” Tr. 136. In , he has made progress in his expression and his ability to have a conversation. In addition, he is more socially appropriate and his vocabulary has expanded. Tr. 139. Although he is not given physical therapy , that he does not see and the Parent also testified that he didn’t require this type of intervention at this time. Tr. 138.

Based on the foregoing, the Parents have met their burden in showing that was an appropriate order to meet their burden, the Parents must show offered an educational program that enabled the child to receive educational benefit but not one that furnished every special service necessary to maximize the child’s potential. Based on the hearing record, it is clear with educational instruction specifically designed to meet his unique needs and his is receiving educational benefit. Prong 3 – Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

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

I find that the Parent participated in the May 28th 2013 CSE meeting. After receiving the Final Notice of Recommendation, the Parents contacted the school and were told to visit the program once school started in the fall. In the beginning of the October, the Parent visited the program and met with teacher. On October 10th 2013, they sent a letter to the CSE rejecting the program recommendation for the 2013-14 school year and advising the District that the Parents would be unilaterally placing the Student at and would be seeking reimbursement

There was an issue raised by the District with respect to the Parents availability in connection with scheduling the evaluation. I credit the testimony of the Parents that they were not aware of the first scheduled date for the psycho-educational evaluation. There is no evidence that they were in receipt of the letter from the District. It is also clear that the Parent did in fact, miss the second meeting and I credit the mother’s testimony that it was an oversight and was not intentional. Tr. 207. The psycho-educational evaluation was in fact subsequently conducted and should be included as part of the evaluative data when the IEP is developed for the 2014-15 school year.

I credit the testimony of the Parent that she would have considered other public school placements if any had been offered to the Parent for the 2013=14 school yuear despite the fact that none of her other children attended public school. Tr, 236. In fact, the Parent stated that she would have if the public school had been appropriate for him. Tr. 237.

With respect to the award of tuition, the schedule provides that prayer and religious studies are from 9 am to 10:15. Testimony was presented that language from 10:30 to 12 is Hebrew language and that is not religious. I credit the testimony that everything after religious studies and prayer is language and secular studies. Therefore, runs from 9-5 from Monday through Thursday and on Friday and Sunday it runs from 9-

12. Therefore, there are 38 hours of instruction, 30.5 of which are secular and 7.5 are religious (since there is 1 hour 15 minutes of religious instruction per day for 6 days). Therefore, since a portion of the week is spent on religious instruction (7.5 hours out of 38), I subtracted 19.7% of the total tuition for the 2013-14 school year ($43,0008,471=$ 34,529). Therefore I order the District to reimburse the Parents the sum of $34,529 for tuition 2013-14 school year, upon proof of payment attendance at for said year.

Based upon their actions, 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 upon the foregoing, I find that the District did not provide FAPE to for the 2013-14 school year (Prong 1), the Parents’ placement of is appropriate (Prong 2), and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against him (Prong 3). Accordingly, the Parents are entitled to reimbursement for for the 2013-14 school year in the amount of $ 34,529.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

The District shall, upon proof of attendance and proof of payment of tuition for the 2013-14 school year, reimburse the Parents in the amount of $34,529 for tuition for for the 2013-14 school year. Dated: August 7, 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

Parents’ Exhibits

No. Date Document Pages

A. 2/28/2014 Demand for Due Process 6

B. 1/30/2014 Findings of Fact and Decision by IHO 27

C. 5/28/2013 IEP 13

D. 10/10/2013 Letter from Parent to 3

E. 8/22//2013 Letter from Parent to 2

F. undated Class Schedule 1

G. 4/18/2013 Teacher’s Report 2

H. 5//2013 Progress Report 2

I. 9/16/2013 Enrollment Contract 1

J. 4/10/2014 Affirmation of Tuition Payment 10

K. 4/10/2014 Attendance Record 1

District’s Exhibits

1. 5/28/2013 Individualized Education Program (IEP) 12

2. 6/18/2013 Final Notice of Recommendation 1

3. 7/8//2010 Report 10

4. misc. dates Events for 3

Impartial Hearing Officer’s Exhibits

I. misc. dates Compliance Decisions 4

Footnotes

[1] Special Education Teacher Support Services ”) for reading and math, group service, five times per week, one period each time;

[2] In this regard, the District indicated that they sent a letter to the Parent with a consent form for an evaluation. I credit the testimony of the Parent that she did not remember receiving it and was taken aback when the District called regarding an appointment. The Parent did however state that she missed the evaluation appointment that was made by phone and that this was inadvertent, and an evaluation did