Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 11, 2013

February 25, 2014

Actual Record Closed Date: March 19, 2014

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11,

2013

Attorney, Ph.D. Chairperson’s Designee Department of CSE Education Mother — Parents

Headmaster — Parents

(via telephone) School

Parents

(via telephone) School

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,

2014

Attorney, Ph.D. Chairperson’s Designee Department of CSE Education Mother — Parents

History Teacher — Parents

(via telephone) School

Fundamentals of Reading and — Parents

(via telephone) Writing Teacher School

INTRODUCTION

On December 11, 2013 and February 25, 2014, I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, Nicholas M (“NM”). The hearing commenced at 10:28 a.m. and 12:00 p.m. respectively, and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

DECISION AND ORDER

BACKGROUND

. He is in at the ”) and participates in the ”). In a letter dated September 19, 2013, s parents, by their advocate, , filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education had not yet offered a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year in that the ”) was no longer appropriate for him. The parents requested reimbursement for the tuition at and for Assessment completed at the They also requested Related Service Authorizations (“RSAs”) and reimbursement for any related services they had paid for as well as transportation to and from York (Parents’ Ex. A).^[1]

I was appointed as the Impartial Hearing Officer on September 20, 2013. The original compliance date was December 3, 2013. On October 28, 2013 pursuant to a request by the parents for the availability of witnesses and without objection by the Department of Education the compliance date was extended to January 2, 2013 and a hearing date was scheduled for December 11, 2013. At the conclusion of the hearing on that date and at the request of both parties for the availability of witnesses the compliance date was extended to February 1, 2014 and hearing dates were scheduled for January 23, 2014 and February 25, 2014. On January 21, 2014 pursuant to a request by the parents for the availability of witnesses and without objection by the Department of Education the compliance date was extended to March 5, 2014. At the conclusion of the hearing on February 25, 2014 and at the request of both parties for the receipt of the transcripts, the opportunity for the parties to review the transcripts and for the issuance of a Decision and Order, the compliance date was extended to April 4, 2014.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.

THE PARENTS’ POSITION

, Esq., represented the parents at the impartial hearing. Mr. alleged that the Department of Education did not provide with a FAPE for the 2013-2014 school year, that program is appropriate and that the equities support the parents (Hearing: 183-184).

THE DEPARTMENT OF EDUCATION’S POSITION

Ph.D., represented the Department of Education. Dr. conceded that the Department of Education did not provide with a FAPE for the 2013-2014 school year. However, he argued that not an appropriate placement and that the equities favor the Department of Education. Thus, he asked that the parents’ request for tuition reimbursement be denied or, partially denied (Hearing: 165-166).

FINDINGS OF FACT

mother ( is the founder and has been the headmaster at the school for years ( 5). Teacher.^[2] ’s history teacher.^[3] is the Head of the Reading and Writing Department at and is also a history teacher and a teacher. She teacher for his Fundamentals of Reading and Writing class (Gleeson: 142-143)^[4]

At the time of the -old and in : 47 at which time the parents realized that he had a leaning problem. They had valuated and he was found to have not able to read at the end . For the second grade the Department of Education gave the parents a Nickerson Letter and from the but as he approached the age for high school the parents determined that a completely special education environment may no longer be appropriate 48).

The parents began to look at schools and ask questions.^[5] They looked at because they knew about the program and believed a lot of support ( 48-49). The parents applied in January 2013. for a site visit in “late winter” of 2013; hought it was “most likely February.” The acceptance letter was dated March 11, 2013 (AM: 66-67; Stewart: 26-27).

On April 15, 2013 NM’s father attended an Individualized Education Program (IEP) meeting for the 2013-2014 school year. He did not sign the Final Notice of Recommendation (“FNR”) at the end of the meeting because the parents were still not sure about “what to do” for the ninth grade, and he told the Committee on Special Education (CSE) they were going to “think about it” ( 49, 58-59). explained that the parents were “on the fence” about to a mainstream school because he had been in a special education environment since the second grade ( 51-52). After the IEP meeting the parents met with , the a less restrictive environment would motivate” to try to be more successful ( : 50). At that point the parents contacted York and sent a letter to the CSE asking if they could consider some public options ( 50-51; Parents’ Ex. G). The parents heard back from the CSE. Ultimately, they placed in but it was “past the deadlines” for enrollment ( : 51-52). They signed the on May 13, 2013 and paid the deposit on that date. The parents also participated in the tuition refund : 52-53; Parents’ Ex. D).

In a letter dated May 23, 2013 advised the CSE that the parents signed the contract and that if the Department of Education offered an appropriate placement in a timely manner they would in that placement ( : 54-55; Parents’ Ex. G).

testified “really well” his first . She explained that the most significant improvement has writing and that he now is motivated to do and complete his homework (AG: 55). believed one to one sessions with during which the teacher explains concepts not understand, is a “huge benefit” and that the remedial writing program is extensive and all of his classes ( 55-56). In addition, the lower tracks seem to “work really well” the teachers have experience with students who have language based disabilities. testified that she feels good about himself” and “less labeled” in the mainstream environment ( : 56). oes not or ( 64).

Mr. an “inclusive” school that provides education to students who have learning issues in the least restrictive environment (“LRE”) (Stewart: 9). The school has a “track system” by which each subject is taught at a different time so that, for example, can be different tracks for different subjects without affecting s schedule (Stewart: 5-6, 10-11). The weakest track in a subject is for those students who are below grade level in that subject. There is also a “Fundamentals of Reading and Writing” program, which is a remedial program taught by teacher for those students, such , who have an accommodation waiving the student from taking a foreign language; the students in the class are generally those in the lower tracks because of their language based difficulties and need for “a lot more scaffolding” ( 15; : 143-144, 158). was exempted from taking and because the specifically recommended the exemption ( : 158-159). The school also and language teacher for those students who need that service ( 15).

Every Friday the teachers send the grades, homework, missing homework and upcoming tests via “Edline,” a computer program accessible to both the parents and The weekly report also includes any comments that the subject teachers think are relevant. teachers write a narrative explaining what has been accomplished ( 12-15).

The special education component of the school is . The school currently has 352 students and about 125 of them, including : 8). The are state certified special education teachers and they teach one subject : 8, 10). The goal “techniques” so that he can ultimately continue in the mainstream with accommodations but without the support of All of the teachers continual training on learning disability techniques ( : 11-12).

is one of seven students in Mr. class ( : 74, 94). has a and a written expression ( : 144). Specifically, he has difficulty with decoding and with comprehension and ” to find abstract meaning in English and history assignments. also has a “lot of” and is disorganized both in his writing and in his binders and papers as well (Kornberg: 75, 98-99; Buckley: 118).

students have an extended day and are assigned to a small group. They arrive at school at 8:00 a.m. instead of 8:45 am. and leave school at 4:00 p.m. instead of 3:15 p.m. At 8:00 a.m. with Mr. for thirty minutes in a group. After school for 45 minutes in a group. Twice a week is “pulled out” of a non-academic subject such as gym, art, drama or music for a double individual period with the Mr. : 9-10; : 69-70, 96-97). Mr. is also available to meet with “as needed” ( : 69-70; 10).

The students email Mr. each night with any issues they have with their homework. In the morning session he helps them with those issues before they go to class. During the afternoon group session Mr. checks the students’ planners and gets them organized for their homework ( 71-72). The group sessions focus on executive functioning, planning and organizing, addressing questions about homework and helping the students become “vocal self-advocates” so that they reach out to their subject teachers on their own to help them understand their work. Mr. also remediates any issues that arise with respect to specific homework or long term projects for students ( : 70-71). has Mr. ’s cell phone number and email address. Mr. will communicate with by Skype as well in order to help him understand his work assignments ( : 72-73).

Mr. is in contact with ’s subject teachers on a daily basis and they have regular meetings about each student every marking period. He also “pushes into” classes twice a week to make sure that the subject teachers are offering an appropriate education and are being carried out ( : 73, 87). ( : 73, 87).

Mr. s a trained literacy expert. He works by “chunking” material and using graphic organizers. He teaches annotation strategies and checks understanding. Mr. addresses issues with by “a lot of talking things out,” for example by working together to find examples in a text that show a particular character is “mentally weak,” and then having NM explain how that particular example : 77).

To address s written expression issues Mr. uses “prewriting” and outlining. “benefits greatly” from having Mr. break down the writing into “much smaller chunks” or “components,” which breaks down the writing process into “sentence by sentence pieces” ( : 77-78). In that process sees what is meant to be organized and that there is a “place for everything.” The result is a more cohesive, more organized and much more analytic piece of writing had been doing before ( 78-79).

Mr. opined that s writing has “definitely improved” based on his and Fundamentals of Writing classes. He explained that now is beginning to understand the basics of writing, the “next step” is to help make his language more “beautiful” and “academic” ( 80).

With respect to comprehension, Mr. explained that reads a complete page he can reach the end and have “no idea” what he just read. Mr. uses the theory of “reciprocal teaching strategies” The four skills involved in those strategies are “predicting, inferencing, clarifying, and summarizing,” which can be used for both fiction and non-fiction reading. Mr. works on a “small piece of text that [they] chunk along the way” and he explained how it understand the content of what he is reading ( : 8183). s decoding issues manifest in oral reading but because Mr. works “slowly” s able to stop and monitor himself ( : 84).

also has in that he is disorganized. Mr. addresses that issue with him daily. When has a long term assignment Mr. monitors him by meeting with for “checkpoints” along the way, for example, by first working on editing the introduction and then going on to other parts of the assignment ( also helps organize his work and has seen improvement in that area as well ( : 86-87).

is in the lowest track in most of his subjects except for math and history, and he is grouped with students on his academic level in each subject. teacher pushes into his English class is getting a lot of reading and writing remediation in his Fundamentals of Reading and Writing class, which is taught by a special education teacher. All of teachers know special education techniques and he receives individualized attention when necessary (Kornberg: 87-88; 137-138). gets the accommodations of extended time, the use of a computer and re-reading of directions as necessary : 88-89; 133). Mr. is in contact with s parents “at least” three or four times a week, by email, telephone and Edline and they can contact him on an “asneed basis” ( : 74, 89).

has made progress academically this year. He has gone up two levels in math, from the lowest track to the “one” track, and his report card showed an 82 average, which Mr. opined was a good average for him ( : 90-91). is also learning a lot of important skills from all of his teachers that he is using on a “regular basis” and he is succeeding because of those skills ( 91). Because has so many supports in place for English, reading and writing Mr. did not believe therapy ( 88). is doing well socially and emotionally and Mr. did not believe that he needs counseling at this time. However, there is a counselor available at the school see her if he wishes to do so ( : 91).

Mr. believes that is appropriate because there is a positive school environment, the classes are small and he gets individualized attention from all of his teachers. He also has support from his peers and is doing well on the basketball team ( 91-92). Mr. s ’s history teacher. is in the third track for history, which is next to the lowest track and is appropriate for : 116-117). At the time of the hearing there were 14 students in the class, all of whom have disabilities similar to those of : 117-119).

Because with reading comprehension he can have difficulty accessing or understanding materials in the textbook or in the primary source materials used in class. To help with his issue Mr uses materials that are either at s reading level or which he has edited to bring them to an appropriate level. He also uses visual materials such as artwork, artifacts or graphic novels ( 119-120). In addition, he uses multisensory projects with the class such as creating an art object or presenting a play related to the subject matter ( 122-123).

Mr. uns his class with a “predictable routine,” beginning with an opening multiple choice question related either to the reading or something that was discussed in class. By that strategy Mr. is able to determine whether understood the lesson and the reading material. If not, Mr. will re-teach, rephrase or repeat to ensure that reaches the appropriate level of mastery. The question is followed by a “daily agenda” which is repeated and updated throughout the lesson ( 121-122). Mr. explained that when students are given a predictable routine and know the agenda ahead of time it diminishes anxiety and enables to focus on the skills and subject of the particular lesson (Buckley: 122).

For reading, Mr. s class is working on identifying key information from paragraph or brief passage of textbook reading and on taking notes “based on the five W’s” : 124-125). He testified that the technique has been beneficial for Specifically, ’s notes have shown improvement in his ability to pick out key information and then “distill it in the few words or sentences.” In addition, ’s tests have shown steady improvement ( : 125-126). Mr. has been providing with direct instruction in writing, including lessons in paragraph structure, thesis statements and topic sentences and he assigns homework related to those lessons. At the time of the hearing the class was working on a research paper. Mr. was chunking the work into individual steps and incorporating teaching outlines with graphic organizers ( 126-127). ’s writing has improved over the course of the school year. While he still needs a “fair amount of support” the amount of support needed to start the process has diminished ( : 127).

At the beginning of the school year had a number of missing and late assignments. With help from Mr. and Edline communication parents, has shown a “real improvement” in that area ( : 133). Mr. is available to meet before school each day and after school until at least 4:00 p.m. has come to meet with Mr. during those times ( 134). Mr. explained that the ’s history the second quarter because the work during the second quarter was “a great deal more difficult than the first quarter” ( : 135). Mr. is an appropriate placement because he fits within the cohort very well, gets the support that he needs and can function very well in the school environment ( 136-137).

In Ms. s “Fundamentals of Reading and Writing” class has difficulty with comprehension and the type of issues in the text that involve “higher level thinking.” She testified that s decoding is “pretty well right now” and that he is reading with good inflection ( : 145). To address comprehension issues Ms. uses a “very appropriate text,” one that has a high interest level but below grade level for decoding and with a vocabulary that is not too intense so that the focus can be on comprehension (Gleeson: 145-146).

The class goes at a very slow pace and a lot of the reading is done in class. Ms. checks to see that all of the students comprehend the material and if they do not, she repeats it. She also charts and tracks what is happening in the reading material to model for the students how they should keep track of their comprehension within the text ( : 147). The charting helps because it repeats and reiterates things in the story, such as character traits, and enhances his comprehension when he has to write about the topic ( : 147-148). Ms. also teaches s class an “interactive annotation system” that uses visuals to mark things in the text including what does not understand, his thoughts or insights about the characters’ motivations reaction to what he is reading. Ms. always models how to use the system and pastes the symbols for the system on the front of the books so that can eventually implement the system on his own ( 147-148).

comprehension has improved over the course of the year. He is “much better” about speaking up in class and asking question. More and more frequently he is able to answer questions that Ms. raises in class and he is “very engaged” and “actively thinking about what” the class is reading ( 151). Ms. writing program which is structured way to teach basic writing skills and the basic elements of writing. She also has instructed s class “explicitly on grammar and how to create compound, complex, and compound-complex sentences, and how to use things like appositves to make the writing more explicit and more detailed” ( 152). When is working on an assignment Ms. conferences with him to help him recognize the strengths and weaknesses in his writing ( 153). There is a weekly current events writing assignment using a specific outline from the Hochman program. s class also has writing assignments based on the reading for the class, such as a thematic essay or using textual evidence to support a particular argument based on the text he is reading. The class also does research based writing and expository writing ( 154).

Ms. is also teacher and she is the head of the Reading and Writing department. She communicates “very closely” with Mr. : 155, 159-160). sometimes comes to Ms. s office during session with a question about something in class ( 156). Ms. progress in class and by quizzes, tests, homework and his writing ( 156). The child’s grade improved from an 80 for the first quarter to an 82 for the second quarter ( : 156-157).

’s writing has improved over the course of the school year. He has “internalized” the five paragraph essay and is writing sentences in a more complex way with correct punctuation than he did at the beginning of the year (Gleeson: 155).

CONCLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet NM's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit NM to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet NM's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit NM to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parent, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parent were appropriate; and 3) equitable considerations support the Parents’ claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053.

I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. I.

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). With respect to this criterion I note that Dr. conceded that the Department of Education did not provide NM with a FAPE for the 2013-2014 school year. II.

Under the second criterion of the legal standard parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parents must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which special education needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as the developing IEPs or employing faculty members that are not state certified. Rather, the parents 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." Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459 F.3d at 364. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 96.

I find is an “inclusion school,” meaning a mainstream school that includes students who require, and receive, additional support. is such a student. Mr. a literacy expert who will be certified as a special education teacher by the end of this school year. The subject teachers receive training in special education techniques and provide with individualized attention when necessary. The child is able meet with his subject teachers outside of class and he has done so. Mr. collaborates with them about has a tracking system that allows o be placed in each subject area according to his academic ability and also provides the opportunity for him to change tracks when appropriate. ’s program provides him with the accommodations of extended time, the use of a computer and the re-reading of directions as necessary for tests. Based on his reading and writing disabilities is excused from taking a foreign language and attends a remedial reading and writing class instead. All of these accommodations reflect recommendations in report (Parents’ Ex. C).

With respect to I find that Mr. ping succeed in his inclusion classes. Mr. addresses his work on long term assignments. Mr. uses specific strategies using graphic organizers. Mr. addresses difficulties by prewriting and outlining as well as by breaking down the writing process into small “chunks” or “components” that organize his thoughts. He also spends time with NM working on figurative and abstract concepts by finding examples in a text that support a particular conclusion.

Ms. s Fundamentals of Reading and Writing teacher, is a certified special education teacher and is in experienced working with children who have special needs. She is also a Jump Start teacher and is head of the help him with both his reading and his writing skills. She explained how she uses a text that is of high interest level to the students but at the same time is below grade level for decoding so on comprehension. The “very slow pace” that Ms her class enables her to make sure NM comprehends the material and enables her to repeat and have NM re-read when necessary. The pace also to ask questions about the material. The system of tracking character analysis on charts provide a reference ” when writing and the organization of the charts helps ( : 147-148).

Ms. into specific skills, in conjunction with her explicit instruction in grammar and individual conferencing with organize his writing and begin to revise and edit his work ( : 152-153). Mr. history teacher, abbreviates the texts and primary sources so that they are at a level appropriate to decoding and comprehension. He also uses visual presentations such as artwork, artifacts or graphic novels so “understand and absorb the factual historical information” without the effort and frustration that he may experience when he has difficulty with reading comprehension. Mr. explained how he assesses achieves the appropriate level of mastery and understanding ( : 120-122).

The evidence supports a finding that the strategies used by the teachers have been successful with this year. All teachers who testified at the hearing explained the progress that made during the current school year. In addition to moving up two levels in math from the weakest math track to the “one” track, his writing has improved in that, while he still needs support, the amount of that support has diminished over the year ( : 90-91; 127). In addition, Ms. comprehension has improved over the year, that he is “much better” about asking questions and that more and more frequently he is able to answer questions that Ms. oses in class ( 151).

Mr. believes that is appropriate of the positive school environment, the small classes and the individualized attention that he receives from his teachers ( : 91-92). Mr testified that s functioning very , that he fits within the cohort at the school and that he gets the support that he needs ( : 136-137 that “really well” his first semester at York and that the most significant improvement is in his writing, which she attributed to Mr. explaining concepts to that he does not understand and Ms. s extensive remedial writing program that supports in all of his classes ( 55-56). The evidence at the hearing clearly demonstrated that , together with , is specific special education needs and is “reasonably calculated to to receive an educational benefit” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. Moreover, this education is being provided in a mainstream environment which is clearly the , whose prior school years were at a special education school.

Dr. argued in his closing that is not appropriate for the child and he provided several cases to support that position. In most of those cases the propriety was not reached because the respective judges or the SRO concluded that the Department of Education had provided the child with a FAPE. In R.B. and H.Z. v. New York City Dept. of Educ, 713 F. Supp 2d 235 (S.D.N.Y. 2010), the was not appropriate because the record was “sparse” with respect to how the student’s regular education teachers “specifically addressed the Student’s special education needs.” Id. at 246). In sharp contrast here, as indicated above in the Findings of Fact and the Discussion, Mr. gave specific and detailed testimony about the strategies they use address his specific special education needs and how those strategies are providing an educational benefit.

The fact that with the speech and language therapy or counseling indicated on his IEP does not render the school inappropriate (Hearing: 163). parents were not required to establish that York provided those related service in order to prevail. See G.R. v. New York City Dept. of Educ., 2009 WL 2432369 (S.D.N.Y. Aug 07, 2009). Moreover, Mr. Kornberg explicitly testified that the supports in place for the child in English, reading and writing are sufficient to service. He also stated was doing both socially and emotionally and that he did not require counseling at this time (Kornberg: 88, 91). In any event, both services are available to if his teachers think that they are required (Kornberg: 91; Stewart: 15).

In light of the above findings of fact I find that the parents have met their burden of demonstrating that the entire program appropriate to in the least restrictive environment. III.

The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. I conclude that the equities support the parents. There is no evidence or testimony to suggest that the parents did not cooperate with the Department of Education in any way. Indeed, the evidence showed that s father attended the IEP meeting on April 15, 2013, and that he advised the CSE at that time that the parents were not sure whether they wanted to keep or move him to a mainstream school for the ninth grade. After the IEP meeting the parents consulted with the who advised them that a mainstream environment might be beneficial for the 2013-2014 school year. Although the parents applied in the school year, credibly testified that they did not decide to to a mainstream environment until after that meeting and that they did not sign the contract for York until May 13, 2013 (Parents’ Ex. D at 3). s father sent a letter to the CSE on May 23, 2013, stating both that the parents was no longer appropriate for they signed a contract at to ensure a placement the event that the Department of Education did not offer an appropriate placement. He indicated that the parents would accept an appropriate public school placement of if one were offered in a timely manner and if not, they would place the child and request tuition reimbursement (Parents’ Ex.G). The parents participated in the tuition refund plan in the event that the Department of Education offered an appropriate placement to : 52-53; Parents’ Ex. D at 1). For these reasons, the equities support the parents.

In any event, the equities clearly support the parents since the Department of Education conceded that it did not a FAPE for the 2013-2014 school year. N.R. v. Dept. of Educ., 2009 WL 874061, at *7 (S.D.N.Y. March 31, 2009). * * *

In light of the above findings of fact and conclusions of law, I find that the Department of Education is required to reimburse the parents in the amount of $41,200.00 for and $19,000.00 for for the 2013-2014 school year (Parents’ Ex. D at 1).

ORDER

In light of the above findings of fact, it is hereby ordered that: a) Within 30 days of receiving a copy of the tuition contract for the 20132014 school year at York, proof of payment by the parents and proof , the District is reimburse the parents in the amount of $60,200.00. If the parents are still making periodic payments to the school the Department of Education is to reimburse the parents within 30 days of proof of each payment. Dated: March 31, 2014

Rona Feinberg mv

RONA FEINBERG, ESQ.

Impartial Hearing Officer

RF;mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

EXHIBITS

Department of Education:

Exhibit 1 Counseling Report dated April 2013, 1 page

Parents:

Exhibit A Due Process Complaint dated September 19, 2013, 7 pages

Exhibit B Individualized Education Program dated April 15, 2013, 13 pages

Exhibit C Comprehensive Neurodevelopmental Assessment dated September 4,

2013 and September 7, 2013, 47 pages

Exhibit D dated May 13, 2013, 3 pages

Exhibit E Contract dated May 7, 2013, 1 page

Exhibit F dated May 13, 2013, 1 page

Exhibit G Parent Letter to Committee on Special Education dated May 23, 2013 with

Proof of Delivery, 2 pages

Exhibit H First Quarter Report Card dated November 1, 2013, 1 page

Exhibit I Second Quarter Report Card dated January 7, 2014, 1 page

Hearing Officer

The hearing officer did not submit any Exhibits into evidence.

Footnotes

[1] The issues of reimbursement for the evaluation, related services and transportation were not pursued at the hearing and thus were waived.

[2] Mr. has undergraduate degrees in communication and in English with a minor in secondary education and youth services as well as a Master’s Degree in literacy. At the time of the hearing he testified that he was one class away from getting state certification in special education and that he will be certified in special education as of this spring ( 69, 99).

[3] Mr. has undergraduate degrees in government and a Master’s Degree in secondary social studies education ( 116). He is not certified in special education ( : 137).

[4] Ms. a Master’s Degree in social work and a dual Master’s Degree in general and special education. She has New York State certification as a special education teacher for grades one through six and as a general education teacher for grades five through nine ( 143).

[5] Ms. whether the parents had looked at any “public options” but the transcript does not include her complete response. Rather, the response is indicated in the transcript as: “We began to look at, just ask questions … and … “ ( : 48-49).