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: February 26, 2014

April 1, 2014

Actual Record Closed Date: April 25, 2014

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2014

Attorney — Student

DR., Education Director, Telephone) — Student

District Rep. — DOE

Assistant Principal (Via Telephone) — DOE

Teacher Assigned (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014

Parent Attorney — Student

Parents

Parent (Via Telephone) — Student

P'Tach Director (Via Telephone) — Student

District Representative CSE- — DOE

This is case #148069. On February 26, 2014 and April 1, 2014, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3) concerning the special education of Pinchas W.at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , Esq, represented the Parents, and , CSE representative, represented the Department of Education (DOE). The Parents did not appear on February 26, 2014, but their attorney waived their right to be present. (Tr. 4) The Father appeared at the hearing on April 1, 2014, and the Mother testified by speaker telephone that day. A list of witnesses who testified and documents received into evidence is attached to this decision.

THE PARENT’S POSITION

The Parents claim that the Department of Education failed to offer a “free and appropriate public education” (FAPE) to Pinchas W. for the 2013 – 2014 school year. They contend that their continued unilateral placement of ) constitutes an appropriate placement for him, and that equity favors their request for prospective reimbursement.

DEPARTMENT OF EDUCATION’S POSITION

The Department of Education (DOE) contends that it did offer Pinchas W. a “free and appropriate public education” (FAPE) for the 2013 - 2014 school year. The Department of Education claims that is not an appropriate placement , and that equity does not favor the Parents’ claim for prospective reimbursement. (Tr. 8-9)

FINDINGS OF FACT

is a student who has been and anxiety. (Ex. 5 at 4) He sees a psychiatrist every few months, and he for these conditions. (Tr. 243) Dr. the director of the program in five locations, has seen symptomology of , but he has not seen any formal diagnosis of . (Tr. 132)

also . A May 2, 2013 IEP indicates that . (Ex 1 at 1, Ex. 8) The Mother testified that she thinks that the and that . (Tr. 243-4; Ex. 8) does . (Tr. 243-4) In the past, school, but he stopped using it a few years ago because he believed that it was stigmatizing. (Tr. 57; Ex. 1 at 1) No one is working with him to get unit or other technology again. (Tr. 244-5) A May 2, 2012 “Committee on Special Education” (CSE) referred an assistive technology assessment to , but the DOE failed to conduct it. (Tr. 58, 87; Ex. 6)

The DOE conducted February 28, 2012. A Wechsler Intelligence Scale for Children – fourth edition (WISC-IV) established the following cognitive scores:

Verbal Comprehension

Perceptual Reasoning

Working Memory

Processing Speed

Full Scale (Ex. 5 at 2) The evaluator used selected subtests of the Kaufman Test of Educational Achievement (KTEA-II) and the Weschler Individual Achievement Test (WIAT Iii) to assess Pinchas’ academic skills. His was on was within the average range. The evaluator concluded that Pinchas’ reading skills were grade appropriate. (Ex. 5 at 4) Pinchas “refused to complete multiplication and division examples . . . “and “refuses to write his math down to figure out a math equation.” (Ex. 5 at 4) Pinchas:

“. . . became very telling the evaluator how much he hates has a very difficult time when writing. He . . .” (Ex. 5 at 1)

With these refusals, math skills fell within the borderline range. His Math Calculation was on the 2.4 grade equivalent level and his Applied Problems score was in the borderline range. The evaluator could not assess ’ writing skills because he refused to write. (Ex. 5 at 4) I note refusal to complete the math section of this assessment invalidates his math score so that it is not a reliable measure of his math skills. His reading scores are reliable. In an interview assessment, also reported that peers tease him, that he has no friends in school, and that everyone bothered him in a previous school too. (Ex. 5 at 1)

The CSE reconvened exactly one year later on May 2, 2013 to develop an IEP for Pinchas for the 2013 – 2014 school year. As was already , the CSE requested a teacher report and related service provider reports prior to the meeting. The only document the CSE received from the private school was a two-page teacher report. (Ex. 4; Tr. 60, 90-1, 102-3) At that time, the CSE did not know, and could not have known, whether Pinchas was receiving related services at P’Tach. (Tr. 91-4) The CSE could only have known what related services the CSE had previously . During this impartial hearing, the Parents established that developed its own IEP , and that it too was not provided to the May 2, 2013 CSE. (Tr. 129) Furthermore, the P’Tach IEP for Pinchas is not in evidence in this impartial hearing.

program coordinator who oversees the program at , serves as a liaison between the special education and general education programs there, and also serves as the liaison to the New York City CSE. (Tr. 153, 192) But does not forward reports directly to the CSE. Instead, Mr sends reports to Dr. who directs P’Tach programs in five locations. Then Dr. may forward them to the CSE.

HEARING OFFICER: Are you the

person who ensures that reports from the private school get to the CSE?

MR. : That I don't do. I forward

it to Dr . Dr. does that. I tell

him, he asks me for them, and I give them to him.

HEARING OFFICER: So you don't

give them directly to the CSE? Is that what

you're testifying?

MR. No, I have them run through

Dr.

HEARING OFFICER: So you take

the reports from the private school, give them to Dr. is the person responsible for forwarding them to the CSE, is that correct?

MR. KAMIN: Correct.

HEARING OFFICER: And the case

of this child, what reports did you give to Dr.

for the CSE in time for the May 2nd, 2013

CSE meeting?

MR. : What reports?

HEARING OFFICER: Yes.

MR. : Which is progress report.

HEARING OFFICER: Okay, a

progress report, a general progress report, is that like a report card?

MR. : Yeah, and the teacher's

report.

HEARING OFFICER: Okay.

MR. : And the related services report.

HEARING OFFICER: What related

service reports did you provide Dr. to give to the CSE?

MR. I cannot remember, it was last year, I think it was the report, that's what we usually give him.

HEARING OFFICER: What about

counseling?

MR. : The counseling report, I

don't know if that was given in.

HEARING OFFICER: Does this

child receive ?

MR : He does.

HEARING OFFICER: Was there an occupational therapy report provided to the CSE?

or provided to Dr. to give to the CSE?

MR. The, I don't know. As far

as--I don't remember seeing one.

HEARING OFFICER: I need to

clarify the record. You're the person who

gathers these reports and forwards them to Dr.

for the CSE, is that correct?

MR. : Yes.

HEARING OFFICER: And you're

testifying that you don't know whether those reports exist? Or are you testifying you don't—

MR. (Interposing) That they were not given in. I don't think they were given in.

(Tr. 192-6)

I find that did not provide any related services reports concerning . to the May 2, 2013 CSE as a matter of fact.

The Mother participated in the May 2, 2013 CSE meeting by speaker telephone for approximately twenty minutes, and she answered questions about (Tr. 229) The Mother informed the CSE that (Tr. 243) She testified that the May 2, 2013 CSE asked her about her and that at that time, :

“. . . was getting . He with some things that had gone on in his personal life between him and his other family members. . . . He was very difficult. He . He would sometimes get physical with his siblings. He was The May 2, 2013 IEP states that:

“Pinchas has , he gets upset if things are out of order. At times he around. . .

. .” (Ex. 1 at 1)

But there is no evidence that she informed the were escalating. To the contrary, notes from the CSE meeting clearly indicate that the Mother as “somewhat better at home.” (Ex. 3 at 1; Tr. 97)

The Mother testified missed three to four weeks of school in the spring of 2013 due . (Tr. 240) She explained that has “ . . . ” and “he's under the care of a gastroenterologist.” (Tr. 233) But she admitted that she did not inform the May 2, 2013 CSE of this medical problem because she did not think that it was relevant. (Tr. 246) The notes from the CSE meeting indicate that was in “overall good health.” (Ex. 3 at 1; Tr.

97) There are no medical hearing.

Based upon the evidence in this impartial hearing, I find that the Mother did not inform the May 2, 2013 CSE treatment and kept him out of school for two or three weeks as a matter of fact. Furthermore, she did not inform the needed a bathroom near his classroom.

The May 2, 2013 CSE developed an IEP that provided a special class with counseling twice per week in a group of three; individual hearing services once per week, individual occupational therapy twice per week, and individual speech language therapy twice per week. (Ex. 1, Ex. 2) The Parents received a “final notice of recommendation” (FNR) dated May 30, 2013 that at K099. (Ex. 2) The Mother did not visit this program until September 2013 when the school opened after summer vacation. (Tr. 232) The Mother expressed two concerns about the school. First, that there was no bathroom near the classroom needed a bathroom near his classroom due to his gastric problems. Second, that the class was too

The Parents rejected this proposed public placement, and they provided ten-day notice of their intent to continue their unilateral placement in a letter dated August 20, 2013 before they visited the public program. (Ex. K) The Parents continued their unilateral placement of . The Parents signed a contract with the private school on September 16, 2013. (Ex. H) The Parents of $500. in two checks dated October and November 2013. (Ex. I)

is a nonprofit organization that establishes special classes in conjunction with yeshivas and Jewish day schools throughout the United States, Canada, and Israel. (Ex. F) runs a non-approved private sectarian school for twenty-three boys that is housed in , a private school for over five hundred boys. (Tr. 109, 131) There are twenty-three special education students in three classes there. (Tr. 160) Although the school offers opportunities for academic mainstream experiences, only attends special education classes because he cannot handle being in a mainstream academic class. (Tr. 184) is only in the general education environment for lunch and recess. (Tr. 115)

Although some teachers have New York State certification, not all the teachers who work are certified. (Tr. 156) Mr. teaches Hebrew language in the morning, may have a degree in reading or special education and hold certification in special education. (Tr. 122, 197-8) Mr. , who teaches Language Arts (reading, writing, and spelling) for an hour and forty-five minutes four days a week, is not a certified teacher. (Tr. 123-4,

198) Mr. teacher for at least two years. (Tr. 94) Mr. s educational background is not in evidence in this impartial hearing. has a teaching assistant who may be a college student, although there is no evidence of her educational background or training in this impartial hearing. (Tr. 199-200)

There was much inconsistent testimony about program. First, there was inconsistent testimony about the disability classifications of the other students in the program. testified that is the only student in the program with the disability classification of “ ). The other students in the program have disability classifications of “learning disability” or “speech language impairment”, except for one other student who may have the classification “autism.” (Tr. 140) Mr. , program coordinator, testified that there are two or three other students whose disabilities are also classified with “ . (Tr. 155,197)

Second, there was inconsistency between testimony and written documentation about Pinchas’ . Although the class schedule indicates that school ends at 4:30, there was testimony that it ends at 5:00 pm four days per week. (Ex. G; Tr. 138) closes before lunch at noon on Fridays. (Tr. 139, 218) There was testimony has physical education every morning, and Mr explained that the physical education period is during recess. (Tr.

201) Exhibit G establishes that recess is a fifteen minutes period, but testimony was that it is “a bit longer than fifteen minutes.” (Tr. 202)

The Parents filed an impartial hearing complaint requesting prospective reimbursement of tuition dated October 21, 2013. (Ex. A) The DOE responded on September 18, 2013. (Ex. E) I issued an interim pendency order on December 20, 2013 based on a January 14, 2013 Findings of Fact and Decision relating to a previous school year that ordered the DOE to pay tuition and prospective payment of remaining monies owed for the , reduced by 20% (which represented the amount of time spent by the child for religious studies).

CONCLUSIONS OF LAW

The Department of Education may be required to pay for educational services obtained for a student with a disability by his or her parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the private school selected by the parents to provide special education services to the child is not State approved as a school for children with is not dispositive of the parents' claim for reimbursement of tuition. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

FIRST CRITERION

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. 34 C.F.R. § 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), and establishes annual goals related to those needs. 34 C.F.R. §300.320[a][2]; 8 NYCRR 200.4[d][2][iii] An IEP should provide for the use of appropriate special education services. 34 C.F.R. § 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 Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014 The IEP must be "reasonably calculated to provide 'meaningful' benefit" to the child. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192. Classification

On May 2, 2013, the Mother attended the CSE meeting via speaker telephone. The Committee developed an “Individualized Education Program” (IEP) . with the classification of his disability ). The Mother does not agree with that classification, and claims that the May 2013 CSE changed the Student’s classification from “hearing impaired” (HI) to “emotionally disturbed” (ED) without her input or knowledge. (Ex. A at 2) In their complaint, the Parents claim:

“Alarmingly, the CSE changed Pinchas’ to without the requite evaluations to provide a rationale for such a change and without apprising the parent . .

. .” (Ex. A at 2)

and

“Such a perfunctory and unsupported change in classification constitutes a flagrant denial of FAPE.”

The Mother testified:

MR. : Okay. Now do you recall

whether or not there was a discussion during the CSE meeting regarding a change in classification of your child from hearing impaired to emotional disturbance? Do you recall if that discussion took place?

MS. .: Not at all.

MR. : What was your reaction when

you received your child's IEP for the 2013/2014 school year when you noticed that the classification had been changed from hearing impaired to emotional disturbance?

MS I was very upset. I found

it very disturbing.

MR. Okay. Were you surprised?

MS. : Very. (Tr. 229)

But the May 2, 2013 CSE did not change the Student’s disability classification. All documentary evidence establishes that the previous May 2, 2012 CSE disability as “ ” when he was in seventh grade. (Ex. 7 at 1, Ex. 8) The previous CSE discussed the Student’s “emotional problems” and that he “can learn and do well but emotional issues impede his learning.” (Ex. 8) The CSE minutes of the May 2, 2012 CSE meeting state that was classified as “ as does the resulting IEP. (Ex. 8) The DOE response to the current impartial hearing request indicates that “the student had previously been classified with emotional disturbance and the team had no reason to change this classification.” (Ex. E at 1) I find that there was no change in disability classification at the May 2, 2013 CSE meeting as a matter of fact. I find that the Mother’s testimony was moving, but not credible.

Furthermore, the New York State Commissioner of Education regulations define ” as:

“ means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance”

(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.

8 NYCRR Section 200.1(zz)(4)

The witnesses and the Mother testified about Pinchas’ problems with interpersonal relationships with peers. The Mother testified that:

MS. .: So if in terms of his peers, he gets on their nerves. He loses his filter. He says things that will bother them because he feels that what they're doing is bothering him, even though it's really harmless.

He just gets very distracted. And he just can't-

- he just cannot do anything else then. He just builds himself up into a very high frustration level where he just gets more and more and more angry. (Tr. 234)

Dr. testified that . . . is very rigid in terms of his, his approach to life. That affects him academically and affects him socially. He has , and .” (Tr. 109-10; 112-3) Mr. testified displays rigid thinking that leads him to be critical of others. His peers perceive him as judgmental.

MR. : In the classroom and outside, he is--he will be--it goes, the cognitive rigidity is what really affects him socially. He'll respond very matter of fact, in the way that's not, you know, not taking in the other person's perspective, and he'll get into arguments and fights with other students in his class in the program or in the school. He'll be, he'll come across as being judgmental. He'll come across as being--or he'll be critical. (Tr. 165)

still has “arguments and fights” with other students a few times a week now. (Tr. 206) He can easily say inappropriate things to his peers. (Tr. 112) The Teacher Report states that Pinchas:

“In the classroom: may often exhibit ; ; ; , not too many friends, needs conflict resolutions skills . . . “

With adults, he is generally respectful, but he “may be disrespectful if feels adults are not allies or feels mistreated.” (Ex. 4 at 1)

These social problems can impede his own learning and the learning of other students in his class. The Mother testified that”

MS. has OCD. And he gets

very distracted when he'll see something of somebody else's. And he can't concentrate.

It'll go over and over in his head that that person's nap sack is open or that person did this or this person's humming. And it becomes an extremely distractible influence. And then he can't learn.

MR. : And what happens when he has this distractible--when this distraction takes place? How does it manifest itself, to your knowledge, within the classroom?

MS. It becomes a real behavior

problem. And it's a serious issue right now.

(Tr. 231)

His Mother admits has behaviors that interfere with his learning and the learning of the other students in his class.

“Right now we're trying to regulate

his medicine because it has become a tremendous problem when the class that he's in now, which has a much smaller ratio with many teachers in the room where he is really having a hard time and causing major disruptions in the class where the other kids aren't learning because certain things are bothering him and he's really, really acting out right now. “ (Tr. 235-6)

All of these descriptions establish has difficulty building and maintaining satisfactory relationships with peers, and that he or feelings under normal circumstances. They also establish that these issues have a major negative impact on his educational performance.

I find that an inability to build or relationships with peers and he displays inappropriate types of behavior or feelings under normal circumstances as a matter of fact. Although Pinchas also has a hearing loss, it is his relationship with peers and his inappropriate behavior and feelings under normal circumstances that impede his educational performance. I find that the classification “emotional disturbance” is still appropriate for Pinchas W.’s disability, and that the May 2, 2013 CSE did not change his disability classification. Composition of the May 2, 2013 CSE

The Parents claim that a school psychologist was a mandated member of the May 2, 2013 CSE, and there was no psychologist present at , the DOE member at the May 2, 2013 CSE, admitted that there was no psychologist at the meeting, but she does not believe is always a necessary member of the CSE. (Tr. 63)

New York State requires a school psychologist as a member of every CSE meeting pursuant to 8 NYCRR Section 200.3(a)(iv). However, a sub-committee of the CSE may perform many of the functions of the CSE.

A sub-committee of the CSE may perform the functions of the committee on special education . . .except when a student is considered for initial placement in:

(i) a special class; or

(ii) a special class outside of the student's school of attendance; or

(iii) a school primarily serving students with disabilities or a school outside of the student’s district.

8 NYCRR Section 200.3(c)(4)

In the case before me, the previous CSE in a class in a community school. (Ex.

7 at 6) The May 2, 2013 placement recommendation for the 2013 – 2014 school year was the same. (Ex. 1) I find that the May 2, 2013 CSE did not for an initial placement in a special class, or a special class outside his school district. Although the IEP indicates that it was a CSE meeting, it functioned as a sub-committee meeting. See Application of a Student With A Disability, SRO 11-042

A sub-committee of the CSE must include a school psychologist only when a new psychological evaluation is reviewed or when there may be a change to a program to a more intensive staff/student ratio pursuant to 8 NYCRR Section 200.(c)(v). In this case, the May 2, 2013 CSE for not review a evaluation, or even a counseling report, and did not recommend a program with a more intensive teacher/student ratio. The hearing record supports the conclusion that the DOE could have convened a CSE sub-committee to conduct the May 2, 2013 meeting, because Pinchas was not being considered for initial placement in a special class or a school exclusively for students with disabilities.

Moreover, the hearing record does not support the suggestion that the absence of a school psychologist deprived the student of a FAPE for the 2013 - 14 school year. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009) Procedural violations give rise to a denial of FAPE only if they impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); and 8 NYCRR §200.5(j)(4)(ii)

In this matter, none of those factors are present. The evidence establishes that the Mother actively participated in the May 2, 2013 CSE meeting by speaker telephone, answered questions , and that she had an opportunity to share whatever information she wanted to share with the CSE. There is no evidence that anyone limited her participation, limited the time for the meeting, or that there was a loss of educational benefit to Pinchas. In view of the foregoing, even a required participant under the federal and State law, I do not find that the evidence contained in the hearing record supports the Parents' contention that the absence of such a participant impeded the student's right to a FAPE.

I find that the May 2, 2013 CSE . was sufficiently constituted. School Location

The DOE issued a “final notice of recommendation” (FNR) that in a in Brooklyn. (Ex. 2) Ms. , the assistant principal for eleven years, testified about the program there. (Tr. 20) The class has a certified teacher and an assistant teacher. (Tr.

21) The program has regularly scheduled provided in the school by licensed providers who regularly communicate with the teacher. (Tr. 23) There are supports and training for parents included in the program. The students in this class have disabilities of “ (Tr. 40) Students in this program have reading skills between the fifth and eighth grade levels, but their math and writing skills are on the fourth to eighth grade levels. Students in the class have IQ scores either similar to those higher than his. (Tr. 40)

The class works toward the New York State standards with a modified curriculum. (Tr. 34) The students have two periods per day of reading, and one period per day of math. (Tr. 25) Math and English Language Arts instruction is individualized so that students work on their own levels in small groups. (Tr. 24-5, 29, 34) They have lunch and recess with regular classes so there is interaction with typically developing peers. (Tr. 30, 59-60) Although the class is a 12:1:1, Ms. believes that there were only ten students in the class in September 2013. (Tr. 31-2)

The Mother testified that Pinchas needs to be close to a bathroom because of his gastric problems, and the boys room is too far from the classroom in the offered school. This is one of the two reasons she gave for rejecting the public school placement. But she also testified that she did not discuss this matter with the CSE because she thought it was not relevant. Now she uses this matter as a reason to reject the offered placement. If this issue was sufficiently important to reject a public placement, then it was sufficiently important for the Mother to provide this information to the CSE. Had the Mother informed the CSE of this problem, the DOE would have had an opportunity to address this issue with his placement in another school or provide use of a teacher’s bathroom on the IEP. I find that the Mother precluded the CSE from addressing this medical issue by withholding this information from the CSE as a matter of fact. Program:

There was a suggestion at this impartial hearing that the public program math class was too difficult for because the students work toward the New York State curriculum. I note that lso uses pre-algebra materials in preparation for ninth grade math (Tr. 127) I find that the academic levels of the private and public math programs are similar as a matter of fact.

At this impartial hearing, the Mother expressed concern that a 12:1:1 class is too big for Pinchas because is having problems in his current , and that class only has eight students in it. (Tr. 230) While the offered public placement may have a few more students than the P’Tach classroom, it also provides more Even the Mother admitted that it is a “very nicely set up public school.” (Tr. 233) It also has certified teachers, differentiated instruction, and it offers substantial regularly scheduled related services with qualified providers to support instruction. The public program offers Pinchas individual speech-language therapy twice per week for thirty minutes; individual occupational therapy twice a week for an hour, individual hearing services once per week for thirty minutes, and group counseling twice per week for thirty minutes. Even if Pinchas continues to refuse to use a for his hearing loss, hearing services are important to teach him strategies and skills to deal with his hearing loss.

Lastly, the Mother also claimed that Pinchas would be overwhelmed and shut down in a large school. There is no evidence concerning the size of the public school offered for the 2013 – 2014 school year in this impartial hearing. Testimony establishes that and that there are over five hundred students there. (Tr. 233) has lunch and recess in the general education environment there. There is no evidence that the size of the school impacts Pinchas who is in a self-contained special education class.

I find that the Department of Education offered an appropriate IEP and school location for the 2013 – 2014 school year. The DOE offered FAPE.

SECOND CRITERION

With respect to the second criterion for an award of tuition reimbursement, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. R.E. v. New York City Dept. of Educ., 694 F.3rd 167, 184-5; (2d Cir., 2012); M.G.P. v. New York City Dept. of Educ., 2010 W.L. 3398256 at *7 (S.D.N.Y., Aug. 27, 2010) In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85 The private school need not be approved by the state educational agency to provide instruction to children with disabilities Florence County School District Four et al. v. Carter by Carter, 510 U.S.7 (1993), nor must it employ certified special education teachers, or have its own IEP for the student. Application of a Child with a Disability, Appeal No. 94-20. 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. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”)

provides Pinchas with a small class with seven other students, a teacher, and an assistant teacher. Despite this small class size, Pinchas still has to be pulled out of the class three or four times per day because of his difficulties there. (Tr. 196)

MR. When the teachers--if a student is having difficulty in the classroom, the teacher will pull, will do pull-outs with the assistant. There is--we have someone that works in the offices also, special education teacher will pull someone out for some support on the side, math or something like that, whatever the area is. There's people around to help out.

HEARING OFFICER: So when you

say pull out, you mean pull out of the classroom?

MR. : Yes.

HEARING OFFICER: And where do

you take the student?

MR. Into the--there's a pull-out

room.

HEARING OFFICER: Okay, and

how often pulled out in the course of a week?

MR. : I'd say three, four times a day. (Tr. 196) The Parents have not established provides sufficient support and services for to remain in his academic classes.

The witnesses testified that there are related services available at P’Tach, and that Pinchas receives related services there. (Tr. 153, 158, 167, 183) As related services are not regularly scheduled at , they do not weekly schedule, and his schedule is full without any related services. (Ex. G) None of the witnesses could identify when Pinchas receives related services, the frequency and duration of those related services, the goals of his related services, or whether is making progress in related services. Dr. did not know whether receives occupational . (Tr. 130) Mr. believes that does receive occupational therapy at P’Tach. (Tr. 164) There was testimony therapist and a psychologist work with . 117-8, 121) is also supposed to be seeing a school counselor who is a social worker at least once a week and receiving group counseling at school. (Tr. 166-7) In testifying schedule, Exhibit G, Dr. testified:

MR. : Okay. At the very, very

bottom of the schedule it talks about related services, speech and language given on Mondays and Wednesdays in the morning. Do you happen to know whether or not when the is given is it given during the religious studies portion of the day, or do you know whether or not it's given during--only if you know--if it's given during the, the language portion of the morning?

DR. : I do not know.

MR. Okay. And would the same be held--would the same be true for counseling, would you know that information?

DR. : Generally it's once in the morning and once in the afternoon.

MR. Okay. But you don't know

exactly when it's being given? Is that correct?

DR. Correct. (Tr. 142) The witnesses all agreed that Pinchas does not receive any hearing no one is working with him to get him to accept hearing services, a hearing aide, or use the FM unit. (Tr. 183)

There were no related service reports provided to the May 2, 2013 CSE, and no related service reports in evidence in this impartial hearing. No related service providers participated in the May 2, 2013 CSE meeting, and none testified in this impartial hearing. There was a suggestion may have a behavior intervention there was no documentation of it at the May 2, 2013 CSE meeting, and no behavior intervention plan was in evidence in this impartial hearing. (Tr. 112) Furthermore, IEP that might describe related services was not provided to the May 2, 2013 CSE and it is not in evidence in this impartial hearing.

The Parents did establish counseling, services, occupational therapy, and hearing services. Based upon the record before me, I cannot discern the frequency of related services, duration of related services, goals worked toward in related services, or whether is making progress in related services at teacher report refers to “meetings with school psychologist for parenting support” and “weekly class conferences among teachers to discuss progress and set goals”, but there are no references to any related services provided . (Ex. 4 at 1) Based on the record before me, I cannot even discern whether this Student actually receives any related find that the Parents did not establish that Pinchas receives related services at uring the 2013 – 2014 school year.

It is difficult to discern whether s making academic progress at P’Tach. Although two administrators testified about in this impartial hearing, none of Pinchas’ teachers testified. When , the DOE conducted a that concluded skills I found these reading scores to be reliable. complete the math and writing sections of this evaluation renders the math results unreliable. There are no writing scores.

A few weeks after the DOE conducted its psycho-educational evaluation, the CSE drafted the May 2, 2012 IEP that includes a teacher estimate level to be on level and his math level to be on level. (Ex. 7 at 1) Mr. conducts reading and math testing and “plugs” the scores into the teacher’s report, but does not generate written reports. (Tr. 195-6) This suggests that the teacher estimates may be based on some unreported testing. It is unclear what evaluations were conducted , by whom, when, and the qualifications of the evaluators. The teacher estimates are equally unreliable as it is not clear which teachers made this estimates and their qualifications.

The reports reading and math levels in 2013 are no more reliable that those reports in 2012. The 2013 P’Tach teacher report indicates that Pinchas was reading grade level and doing math on level on April 8, 2013. (Ex. 4 at 2)^[1] Mr. testified that he spoke with Mr. who reading and administered a “Woodcock Mastery” test to Pinchas in May 2013. Mr. testified scored on the seventh grade level in reading at that time. (Tr. 168) It is unlikely made almost a year’s progress in reading in one month. This “Woodcock Mastery” test was not provided to the May 2, 2013 CSE and it was not offered into evidence in this impartial hearing. I find that hearsay testimony about the results of testing someone else conducted is not reliable evidence without written documentation. Lastly, students do not take the New York State math or ELA tests, so that potential source of evidence to establish academic progress is also missing in this case. (Tr. 127-8) I find that the Parents did not establish that Pinchas is making academic progress at P’Tach during the 2013 – 2014 school year.

Upon the record that is before me, I find that the Parents have not carried their burden to establish that their continued placement as for the 2013 – 2014 school year is appropriate under the Act.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. See Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 374 (1985) and M.C. v. Voluntown, 226 F.3d 60, 68 (2d Cir. 2000). "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(c)(iii) See Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402,

417-18 (S.D.N.Y. 2005)

On the surface, it appears that the Parents cooperated with the Department of Education because the Mother attended the CSE meeting on May 2, 2013 via speaker telephone and visited the offered program in September 2013. But the Parents made a blatantly false allegation that the May 2, 2013 CSE changed Pinchas’ disability classification without their participation, and the Mother gave emotional false testimony about her response to something that did not happen.

In addition, the Mother limited the May 2, 2013 CSE’s information about Pinchas. She admits that she withheld medical information concerning a gastric condition from the May 2, 2013 CSE because she did not think that it was relevant. Then she used that same unreported and as a reason to reject the public school placement because she now claims that the classroom is not close enough to a bathroom. That was unreasonable.

also limited the May 2, 2013 CSE’s information. It did not provide the May 2, 2013 CSE with any related services reports or even inform the CSE whether Pinchas was regularly receiving any related . Now in their closing statement, the Parents claim that the DOE should have included related service providers as participants in the May 2,

2013 CSE. (Ex. L)

Lastly, the Parents are divorced, and they share financial responsibility for Pinchas. (Tr. 225) The Parents provided the Father’s 2012 tax form in this impartial hearing to establish a need for prospective funding. (Ex. J) The Father testified that the exhibit J represents the “familiy’s income.” (Tr. 222)

MR. And does this tax return

fairly and accurately describe your family

finances during the taxable year of 2012?

MR Yes. (Tr. 221) But that is not an accurate representation. The Parents did not provide any financial records of the Mother who works as an administrative assistant at a school. (Tr. 224) I only have testimony from the Parents that the Mother does not earn enough to pay the tuition . (Tr. 22) There is no testimony or documentation that the Parents cannot afford the tuition together. In addition, the Father is remarried and he and his wife file their income taxes separately. While a New York step-parent only as a secondary support obligation under N.Y. Fam. Ct. Act §415 and N.Y. Soc. Serv. Law §101, the step-mother’s income may be very substantial and that would permit the Father to use his income and assets to pay the tuition . I find that the Parents did not establish that they cannot afford to pay the private school tuition as a matter of fact.

I find that equity does not favor the reimbursement of the parents, and that they have not proven that they qualify for prospective payments..

SUMMARY

The Department of Education offered a “free and appropriate public education” to for the 2013 - 2014 school year. The Parents failed to establish that they provided an appropriate education for . Equitable considerations do not favor the parents’ request for reimbursement and the Parents have not established that they qualify for prospective payments. I find that the Department of Education is the prevailing party.

ORDER

There is no order. Dated: April 29, 2014

Barbara J. Ebenstein, Esq. gc

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, dated 10/21/2013, nine pages B Omitted C Final Notice of Recommendation, dated 05/15/2013 D Final Notice of Recommendation, dated 05/30/2013 E Due Process Request, 09/18/2013 F Information, one page G Schedule, undated, one page H Signed Enrollment Contract, dated 09/16/2013, one page I Notarized Tuition Affidavit, one page, 11/26/2013 J Mr. 2012 Federal Tax Return, two pages, 03/17/2013 K Parent Intention Letter to the CSE, with proof of delivery, 08/20/2013, two pages L Parents Closing Statement, dated April 25, 2014, unpaginated.

DEPARTMENT OF EDUCATION

1 IEP with a Parent Member Declination, 05/02/2013, 13 pages 2 FNR, 05/30/2013, one page 3 CSE Minutes, dated 05/02/2013, two pages 4 Teacher Report, dated 04/08/2013, two pages 5 Evaluation, dated 02/28/2012, five pages 6 Assistive Technology Evaluation Referral, 03/27/2012, six pages 7 IEP, dated 05/02/2012, 13 pages 8 CSE Minutes, dated 05/02/2012, one page 9 DOE Closing Statement, dated April 25, 2014, unpaginated.

Footnotes

[1] I note that 2012 psycho-educational evaluation found that Pinchas read on sixth grade level two years earlier so the 2013 score does not show progress.