Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 22, 2013

February 10, 2014

Actual Record Closed Date: March 26, 2014

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2013

Esq. Attorney, Ph.D. District Representative Department of — Parents

(via telephone) Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10,

2014

Esq. Attorney, Ph.D. District Representative Department of Education Mother — Parents

Headmaster — Parents

(via telephone) School

Teacher — Parents

(via telephone) School

Teacher — Parents

(via telephone) School

Teacher — Parents

(via telephone) School

INTRODUCTION

On October 22, 2013 and February 10, 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, ”). The hearing commenced at 9:45 a.m. and 10:30 a.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.

BACKGROUND

is old. He is in the ”) and participates In a letter dated September 24, 2013, parents, by their advocate, filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education did not offer Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year. The parents alleged appropriate for the child and that the equities favor them. They requested reimbursement for the tuition at the cost of evaluations and reimbursement for related services and/or Related Service Authorizations (“RSAs”) (Parents’ Ex. A).^[1]

I was appointed as the Impartial Hearing Officer on September 24, 2013. The original compliance date was December 9, 2013. A pendency hearing was held on October 22, 2013. On December 9, 2013, at the request of the parents for the availability of witnesses and without objection by the Department of Education, the compliance date was extended to January 8, 2014 and hearing dates were scheduled for January 3, 2014 and February 10, 2014. On January 2, 2014, at the request of the parents for the availability of witnesses and without objection by the Department of Education, the compliance date was extended to February 7, 2014 and another hearing date was scheduled for February 1, 2014. On February 5, 2014, at the request of the parents for the availability of witnesses and without objection by the Department of Education, the compliance date was extended to March 9, 2014. Following the hearing on February 10, 2014 and at the request of both parties for the receipt of the transcripts, the submission of

Closing Briefs and for the issuance of a Decision and Order, the compliance date was extended to April 8, 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. Brown alleged that the Department of Education did not a FAPE for the 2013-2014 school year, that York with the Jump Start program is appropriate that the equities support the parents (IHO Ex. II: Parents’ Closing Brief).

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 is not an appropriate placement and that the equities favor the Department of Education. Thus, he asked that the parents’ request for tuition reimbursement for the general education portion of the tuition be denied (IHO Ex. I: Department of Education Closing Statement).

FINDINGS OF FACT

mother ( : 46). is the and has been the headmaster at the school for 45 years (Stewart: 5). Start Teacher .^[2] is s English teacher (LU: 54-55).3 teacher for his

4 Fundamentals Writing class ( )

has a : 38). The parents first noticed that when he . He attended preschool for three days and was “whole difficulties. When he old he was receiving a range of different therapies and attended an days a week with a Special Education Itinerant Teacher (“SEIT”) services ( : 39). was eventually classified by the Committee on Special Education (CSE) as .” The Department of Education did not find an appropriate public school for WF and he was placed School, a special education school with small classes and a behavior modification program. He attended the school through : 40). In 2008 .D., who now works at the Child Mind Institute, issued a neuropsychological report update. He changed s diagnosis to a mixed receptive expressive language ( 43). Dr. ecommended that s classification be changed to a Speech and Language Impairment or . s Individualized Education Program (“IEP”) was changed and the CSE recommended a non-public day school. attended the Community School in Teaneck, New Jersey at Department of Education expense through the eighth grade ( 40-41; Parents’ Ex. F).

When was at the Community School the parents were told that he had the potential to do well. are “ .” He can do well once he learns the material but learning it is challenging because of his auditory processing disorder ( : 45-46). The formal achievement tests administered when at the indicated that he was reading at a twelfth grade level (EK: 46).

Dr. administered another neuropsychological evaluation in 2012 and he believed the WF’s primary difficulty was his mixed ; he also noted disorder ( : 44). did not recall whether she provided that evaluation to the CSE ( : 48-51). When the CSE met in 2012 it classified ( : 44-45). began for the 2012-2013 school year ( 41).

The CSE did not develop and IEP for or the 2013-2014 school year ( 41). never got a letter from the CSE scheduling an IEP meeting for the 2013-2014 school year or asking her for any documents for that school year (EK: 51). if one was offered to him (EK: 41-42).

at noted that the school had recently . ” thought the school may evaluate him and decide to provide him with that service ( 51-52).

Mr. S as an “inclusion mainstream school” that provides education to students who have in the least restrictive environment (“LRE”) for grades six through twelve ( :

4 Ms New York State certified in teaching students with disabilities in grades K through six and grades six through twelve ( : 94-95). 16-17). He opined that the inclusion program with its supports benefits a student a y ( : 31).

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 schedule ( 15-16). The weakest track in a subject is for those students who are below grade level in that subject (Stewart: 16). More than a third of the state certification in teaching students ( 17).

: 55). He receives the accommodations of extra time for quizzes and tests and an exemption from foreign language (Stewart: 26). Although has the language accommodation he wanted to try taking Spanish and he did so for the first semester. However, due to his language processing issues he was not able to understand what was being said in class. After the fall from Spanish to a Fundamentals of Writing class (Stewart: 29-30; 77-79; Parents’ Ex. J).

The school has a contract with a service but a Mr. did not know was receiving that service (Stewart: 28).

(Stewart: 35; Parents’ Ex. J). Mr. testified is successful due to his “tenacity and hard work.” He characterized “difficult” and noted that he has some “strong strengths” and is doing well ( 35).

The school has “Edline,” a computer program and to his parents. Through that program teachers can send the students Power Point presentations, the class calendar or any work that the student has missed or does not understand ( 24-25). Every Friday the teachers send the parents a report on Edline, which includes WFs’ grades, homework, missing homework and upcoming tests and long term assignments. teachers write a narrative that week. (Stewart: 25).

The special education component of the . The school currently has 352 students and about 124 of them, teachers and they teach one subject. Some subject teachers have gotten certification in special education and now ( 21-22). The goal to techniques” so that he can ultimately continue in the mainstream with accommodations but without the support of : 18-19). All of the subject continual training on techniques to use with students who have ( 21-23).

The subject teachers address the needs of the Jump Start students by annotating – underlining and taking notes – and by scaffolding and chunking material into “small bits” to make sure all of the students in the class understand before progressing in the lesson (Stewart: 23-24).

WF is one of twelve students in Ms. class; the students are in grades six to eleven (D’Angelo: 69, 80-81). The 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 for thirty minutes in a group. After school meets with Ms. for 45 minutes in a group. The group sessions are not instructional. During that time Ms. addresses specific questions that the students may have, helps them organize for the day and reviews for any tests and quizzes. If any of the students have a skill that needs to be addressed at that time she will do so ( 83-84).

During the sessions Ms. gets organized, clarifies any questions he may have about his homework and reviews with him for any tests or quizzes. The afternoon session is a “study hall” during his most difficult homework (Stewart: 20; D’Angelo: 69). On Fridays Ms. checks and makes sure he has his books and whatever else he needs for his homework ( : 69).

“pulled out” of a non-academic subject such as gym, art, drama or music for two individual 42-minute periods to work with on his skill-based needs ( 9-10; D’Angelo:

69). Ms. works with on skills to help him best address his homework, on study skills and on reviewing for tests and quizzes : 80).

If math and English teachers are not learning specialists teacher will push into those classes twice a week to make sure that students have the proper accommodations and are being taught appropriately ( : 20-21).

. His primary educational deficits are anxiety, executive functioning, time management, working memory, slow processing and writing. : 69, 89-90). At the beginning of the school year about his classes, which were “very challenging” for him in terms of workload and content, ” with the amount of work; writing was “a lot” for him ( 69-70). To address these issues, Ms. works with WF to help him prioritize his assignments and to take notes. Edline every day to check on his assignments and see the requirements for each particular assignment. Ms. has the requirements of each assignment to her so that there is no confusion about what is expected. Midterms were another source of anxiety for Ms. created a “midterm study calendar” for him so that he knew what to study each day ( o: 70, 72-73). Ms. opined that “overall,” WF is less anxious and is more able to prioritize independently. If eels overwhelmed he will say so and he is now able to “handle his work easily” ( 70-71).

has executive functioning issues in that he is disorganized. As a result, he does not always have his materials organized and thus is not consistent with his assignments or prioritizing his work effectively : 71). To address this issue Ms. to create dividers for each of his class binders so that he can date all of the material which makes it easier for him to find his work and materials. She and also set “time limits” for his assignments in his planner so that he does not overwhelm himself or remain on one or two details ( 71-

73). Ms. break down his assignments and set deadlines for longer term projects so that he does not leave all of the work until the “last minute.” She also formats a large part of tudy guides into chart form so that he can see the questions on one side of the page and type his answers on the other side, which helps him organize the graphic organizers.

Organizing is still a “work in progress” has to but he is becoming more independent in that area and homework has been more consistent and completed on time ( : 72, 87).

still asks for help managing his time for long term assignments but he is independently setting time limits for himself and taking less time to complete assignments ( 73).

s slow processing issues – difficulty understanding a lot of information at once – also affect his ability to plan and organize himself. He and it will cause behind” (

74, 79-80). To address this issue concepts and materials must be broken down into small pieces to make it manageable for him. Ms. tried different study skills to find the best way review material. One strategy is a calendar and daily checklist of should be doing to prepare for exams. Graphic organizers make it easier remember details and the reformatting of the study guides into charts the materials. Ms. reviews vocabulary used throughout the curriculum including synonyms to make the connection and facilitate recall. She uses also uses prompts with : 75).

Ms. benefitted from these strategies in that his note taking has improved since the beginning of the school year. They are still working on reducing his notes from a narrative to bulleting information without using full sentences. has been seeking help when he needs more assistance ( 75-76, 87).

has many “great ideas” for his writing assignments. However, his writing is often “vey lengthy” and so the organization can “veer off topic.” He requires structure and has a lot of difficulty with “open ended” assignments ( : 76). Ms. uses outlines and rubrics to determine what he needs to write. When s given a particular assignment Ms.

reviews the requirements of the assignment with him and helps him to structure it into an outline which in turn helps him to organize and sequence his ideas. To keep him focused,

Ms. discusses the thesis or topic and has him refer back to the thesis to make sure his writing relates to it. now better at monitoring whether what he is writing is supporting his thesis ( 77).

If orally in class Ms. works with him to develop bulleted lists of the main points so that he is prepared. If has to go to a teacher to ask about an assignment or something else and is not sure about how to approach the teacher, Ms. will coach him to do that ( :

88).

Ms. did not believe . She was not “sure” who would make the decision to that service and would have to consult the director . As teacher her opinion would be considered in that determination ( 90-91).

Ms. opined able to make : 89).

Ms. Fundamentals of Writing teacher and is also . entered the class in January 2014, after the winter break. There are thirteen students in the class, all of whom have a language based disability and language exemption on reports : 95-97, 102; 22). The class has a “lab” twice a week ( 102).

processes information very slowly and needs a lot of support. He can tend to spend an “enormous amount of time on just one question.” To address that issue Ms.

consistently monitors and checks in to break down the writing process, scaffold for him and prompt him to use his writing tools and resources ( : 99).

has bright and insightful ideas but he needs a lot of structure and outlining (

100). Ms. uses writing program which is very beneficial for students with language-based and has several transitional outlines. The outlines help because he knows what is being asked of him and how it will be organized. Even then, seeks support to make sure that he is meeting expectations ( 100).

Ms. deficits by breaking down the writing process, beginning with annotations and then using the annotations for an outline as well as using checklists and writing tools to edit and revise ( : 96). Writing skills are “isolated” and the class spends a full week on an essay and the “lab” ( : 97). Ms. uses a lot of scaffolding as well ( 98).

Ms. believed that the slow pace of her class addresses . She provides with supplementary writing aids and when he perseverates on a question she gives him a lot of attention to help him “overcome those boundaries” ( 98). She also provides the class with “Power Points” for reference and she posts information on Edline ( 99).

In a “big essay” assignment an outline, took all of the feedback Ms. provided to him on multiple drafts and participate in peer editing. However, he still needs to work on skills and transition words ( : 100-101). Ms. able to target the challenging area and isolate a particular skill the other students in her class, all of whom have the same learning profile (Logan: 101).

also has difficulty managing his time. To address this issue, Ms. and the other students time limits with prompts along the way so that knows how much time is left and what point he should be at in his outline. If he is not at the appropriate point Ms.

help him speed up the process (Logan: 101). This strategy has helped manage his time more appropriately 101-102).

Ms. frequently and with before and after school. She opined that s “really benefitting” from the pace of the class, which is much slower than an English class, and from the one-on-one directing that she provides to him ). He is also “coming out of his shell more” and when he first came to the class that the techniques she uses in class are helping facilitate his processing ( : 99).

tenth grade Honors English class and one of four or five students in the class who has a learning disability ( 54-55). He is succeeding in the class and making “really good progress” academically ( 55). Ms. opined that all of the students in the class, including those , benefit from the “same kind of instruction.” The issue that her class is with . He needs to be directed “a lot” when he is starting assignments on his own :

56).

Ms. by trying to redirect and refocus him and by meeting him for one-to-one conferences WF has made progress with because was able to produce more writing at the time of the impartial hearing than he had been able to produce at the beginning of the school year ( 57).

is a “strong writer” but has difficulty “gathering his thoughts and then putting them into coherent sentences ( : 57, 60). To address this issue, at the beginning of each week Ms. reviews a “weekly sheet” with the class that keeps the students focused on what they are doing each day and what the homework will be each day. That routine addresses and helps ( : 58). is able to go on Edline and see the weekly writing assignment beforehand. Ms. believes that that strategy eases because he is able to make a brief outline and bring it to : 58). has writing assignments in class and at home; his writing at home, when he is not under a 42-minute time constraint, is “a little bit stronger” than his writing in class ( : 60-61).

Ms uses a strategy in class called “paragraphs” which is a paragraph with a quote for literary analysis. The class volunteers sentences and constructs the paragraph together, which Ms. opined, lessens . The process ” and he can recognize mistakes in other students’ writing that he may be making in his own ( : 61).

testified that riting has improved “a lot” since September. That improvement is the result of the meetings that she has had after class or after school when she reviews with him the feedback that she gave in class. lso seems to be “a lot more self-assured” with respect to areas he knows he needs to strengthen, such as adding details ( 62.)

processing information. Ms. tries “”really hard” to keep him on task and give him one-to-one attention ( : 59-60, 64). If the class is assigned to complete two paragraphs only one, Ms. accepts that as long as he really spends time proofreading and editing that paragraph 60).

Ms. lot of “positive feedback” and she opined that his ability to self-advocate has increased over the course of the school year as has his confidence, which is seen by him making the time to see Ms after school and after class if there is something he wants to review ( : 57, 59). He also is more comfortable in the class, knows Ms. expectations and is “starting to feel a little bit more adequate in terms of meeting those expectations” : 59).

Ms. has not read any documents about Rather, she communicates with Ms keeps her abreast of any deficits : 65). Ms has benefitted from the strategies she uses with him in class because his grades have been going up and he seems “a lot more positive, happier and less anxious” than he had been before ( : 60).

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 WF'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 WF 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 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 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 Dr. conceded that the Department of Education did not with a FAPE for the 2013-2014 school year.

II.

Under the second criterion of the legal standard, 's parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for WF 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 the educational program is one which met WF's 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.

To begin, unless otherwise indicated below I credit the testimony of the witnesses who appeared at the hearing. My Decision is based on the Findings of Fact detailed above with citations to the record and for the most part, will not be repeated here.

I find that an “inclusion school,” meaning a mainstream school that includes students who require, and receive, additional support. is such a student. The program provides with additional assistance before, after and during school by who has a Master’s Degree in literacy. The subject teachers receive training in special education techniques and with individualized attention when necessary. The child is able meet with his subject teachers outside of class and he does so ( : 57, 59, 62; : 97). Ms. collaborates with them about : 65; 97). has a tracking system that allows to 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. Based on his language disorder from taking a foreign language. Although wanted to try taking Spanish the first semester his language difficulties made the class too difficult and he now attends a remedial reading writing class instead.

With respect , I find that Ms. presented specific evidence of how the strategies she uses with succeed in his inclusion classes. Ms. addresses by helping organize his binders and by setting time limits in his planner so that he does not remain working on just one or two details. She also breaks down his long term assignments by setting deadlines. Ms. formatting his study guides into a chart so that he can view the questions and his responses side by side. Ms. The daily calendar and checklist of what doing to prepare for exams helps to . The graphic organizers Ms. it easier for him to remember details. Ms explain the requirements of each assignment to her so that there is about what it expected of him. These strategies also work to alleviate

To with writing Ms uses outlines and rubics to help . By discussing the thesis and topic of his writing assignments and then having him refer back to see if his writing pertains to the thesis, his writing to make sure that he stays on topic.

Ms. of Writing teacher who teacher, detailed the specific strategies she uses to help . In particular, Ms. tendency to spend an inordinate amount of time on one question by breaking down the writing process, scaffolding and monitoring the pace of his work. When on a question she him move forward. Ms. by addresses language based learning disabilities by using, for example, various outlines which organize his writing. She , checklists and writing tools to edit and revise. She teaches writing skills one at a time which the material. And, she provides WF with one to one instruction as needed.

The slow pace In helps to alleviate The prompts that she uses with the class work to keep on track and Ms. monitors and consults he is not keeping up with the expected pace of the work. Although began in her class in January after the winter break, participating more in class than he did at the beginning and he seems less anxious and more relaxed.

Ms. Honors English teacher explained that at a very high grade level and is a “strong writer,” he has issues with the organization of his writing and with anxiety. She addresses these issues by redirecting and refocusing and by meeting with him individually after class and after school to review the feedback that she gave in class. Ms. weekly routine of presenting the work for the coming week need to and in advance what is expected of him in the days to come. She also in his assignments, for example if an assignment is to write two paragraphs only one, she will accept it provided that the proofreads and edits that paragraph. Ms. with positive feedback that she believes .

The evidence at the hearing showed progress during this school year. Ms. testified over the course of the school year in that he is better able to prioritize more independently and he is opined that he when he ” and will ask for assistance from a teacher when his needs it ( 70-71, 88-89). Ms. that the level in that he when he first came to the class the amount of writing he is doing in the lab and he is participating more frequently in class ( ). Ms testified made progress in her class this year. Specifically, she his grades have been “going up” in her class and he appears to be much less anxious than when he first entered the class. s inappropriate because it is not providing educational instruction “specifically designed to meet [ unique special education needs, supported by such services as are necessary to permit [him] to benefit from instruction” and thus that tuition reimbursement should be denied or limited to the cost of Jump Start (IHO Ex. I at 4, 9-10). I find this argument to be without merit.

The Department of Education posits that the evidence shows an “extremely bright student with above average academic skills” (IHO Ex. 1 at 4). It bases this statement on the February 14, 2012 IEP that was developed two years ago while n the eighth grade in a special education program at , a special education school (Parents’ Ex. F at 1). I note that despite the academic accolades reported on that IEP the CSE nevertheless recommended at for is now at in the tenth grade an inclusive mainstream school with special education supports and a different cohort and different expectations. The Department of Education’s recitation strengths while he was at the Community School support a finding is able to take classes with mainstream students while receiving support for his special education needs, is, in fact, the LRE for WF. See

P. v. Newington Bd. of Educ., 546 F.3d 111, 120 (2nd Cir. 2008)

In any event, what the evidence at the hearing demonstrated is that WF is an aboveaverage reader for his age. There is no other testimony or evidence to support a finding that all of his academic skills are “above average.” Indeed, his report card for the first half of the year does not reflect stellar grades in all of his academic subjects (Parents’ Ex. J). Rather, the witnesses who testified at the hearing provided a picture a student who struggles with organization and has difficulty writing and processing material. Ms. problems with writing organization, staying on topic question and understanding what is expected of him in a writing assignment. The testimony also indicated that WF was not able to succeed in Spanish because of his language disorder and the he no longer takes a language but is in what is essentially a remedial writing class. While the Department of Education refers to to incorporate his “rich vocabulary” into his writings (IHO Ex. I at 4), Ms. , testified that she reviews that is used throughout the curriculum, including synonyms, in order to ( : 75).

The Department of Education pointed out in its Closing Statement that Ms. testified that the morning and afternoon are not designed for instruction but rather to assist students to organize materials for the day and for homework assistance (IHO Ex. I at 7) and it cited to dicta in a decision by of the Federal District Court of the Southern District of New York, J.P. v. New York City Dept. of Educ, CV 10-3078 (S.D.N.Y. February 2, 2012), in which Judge Korman in turn cites Stevens ex. rel. E.L. v. New York City Dept. of Educ, 2010 W:1005165 (S.D.N.Y. March 18. 2010) to note is not an appropriate program for a special needs student. In Stevens Judge Denise L. Cote held that was inappropriate for the particular student because the evidence offered by the parent: showed that the did not provide a curriculum or individual goals for the Student. It did not provide any of the specialized services, such as , that the Student had previously needed and received. There is also no detailed information about how the Student's deficits impacted his ability to function effectively in the classroom. Nor is there any information on what strategies or exercises [the teacher] implemented to address the Student's deficits. Instead, [ teacher] apparently served as a general trouble-shooter and tutor.” Finally, the record lacks any objective data that would provide benchmarks for measuring the Student's progress. Id at 9.

Here, however, as detailed above, each of the teachers testified about the strategies they use meet his unique special education needs. Ms. and Ms. all testified about the how . And, they each explained how their specific strategies are with an educational benefit. It is apparent from Ms. s testimony as related in the Findings of Fact and Discussion that she meets with for two periods a week and that she provides with considerably more instruction than simply organizing his materials and his homework. s report card provided an objective measurement of how he has progressed over the course of the current school year.

The fact did not provide or counseling indicated on his IEP does render the school inappropriate (IHO Ex. I at 6). 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). See Frank G., 459 F.3d at 364. Moreover, provider at the school so that the service can be provided if his teachers deem it to be appropriate. And, since aware that the school now provides the service she can request that the school offer the services address what she believes to be “ (: 28; 51-52).

I conclude that the evidence supports a finding that the strategies used by the teachers have been successful with year and that they addressed his unique educational needs which relate , . All of who testified at the hearing the progress made during the current school year.

I find that the parents met their burden of with 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 LRE who attended a special education school through the eighth grade

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. The Department of Education’s argument in its Closing Statement that the parents did not cooperate with the Department of Education because they “did not provide the CSE with a privately obtained n evaluation” (IHO Ex. I at 9), is unavailing. At the outset the Department of Education conceded that it did not provide WF with a FAPE for the 2013-2014 school year, a fact that, by itself, indicates that the equities of the case clearly support the parents. N.R. v. Dept. of Educ., 2009 WL 874061, at *7 (S.D.N.Y. March 31, 2009). Moreover, EK credibility testified that the CSE did not schedule an IEP meeting for the 2013-2014 school year and that the CSE did not request any documents from the parents ( 51). Thus, it is disingenuous for the Department of Education to suggest that the parents’ failure to provide any particular document to the CSE weighs against them in considering the equities of the case.

In any event, in a letter dated March 6, 2013 advised the CSE 10 Chairperson that a CSE review had not yet been scheduled and that they obtained a placement at in the event that the Department of Education did not provide an appropriate program or placement for him in a timely manner. She also stated that if such a placement is offered she would placement. asked that an IEP meeting be scheduled “as soon as possible” (Parents’ Ex. H). The parents did not receive a response to that letter. In a letter dated July 15, 2013 again advised the CSE 10 Chairperson that the CSE had still not scheduled an IEP meeting, that she obtained a placement for that the parents would send the seek tuition reimbursement if an appropriate program is not offered.(Parents’ Ex. I). In a final letter to the CSE 10 Chairperson dated August 16, 2013, once again indicated that the CSE had still not scheduled an IEP meeting and that she was going to unilaterally place and seek tuition reimbursement (Parents’ Ex. K). I note that the parents participated in the tuition insurance (Parents’ Ex. C at 1). As evidenced by the fact that the Department of Education conceded that it did not provide with a FAPE for the 2013-2104 school year it is clear that no IEP meeting was scheduled.

For the reasons stated above I find that the equities in the case support the parents.

* * *

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 and $19,000.00 for for the 2013-2014 school year (Parents’ Ex. C 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 2013-2014 school year at , 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: April 4, 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

Department of Education:

The Department of Education did not submit any documents into evidence.

Parents:

Exhibit A Impartial Hearing Request dated

September 24, 2013, 6 pages

Exhibit B Findings of Fact and Decision dated

January 3, 2013, 13 pages

Exhibit C dated February 8, 2013, 4 pages

Exhibit D Proof of Payment/Credit Card

Statement dated February 2013, 2

pages

Exhibit E First Semester Schedule dated 2013-

2014, 1 page

Exhibit F Individualized Education Program

dated February 14, 2012, 14 pages

Exhibit G Corrected Impartial Hearing Request dated October 18, 2013, 5 pages

Exhibit H Parent Letter to Committee on

Special Education dated March 6,

2013, 2 pages

Exhibit I Parent Letter to Committee on

Special Education dated July 15,

2013, 2 pages

Exhibit J Report Card dated January 7, 2014, 1

page

Exhibit K Parent Letter to Committee on

Special Education dated August 16,

2013, 2 pages

Hearing Officer

Exhibit I Closing Statement for the

Department of Education, 10 pages

Exhibit II Parents’ Closing Brief 12 pages

Footnotes

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

[2] Ms. lo has undergraduate degree in inclusive elementary and special Education and a Master’s Degree in literacy. She is state certified for grades one through six in elementary education and for students with disabilities and for grades one through six in literacy ( 68, 84-85). Ms. as certification for secondary English education grades seven through twelve (