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 27, 2014

March 25, 2014

Actual Record Closed Date: April 11, 2014

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2014

Esq. Attorney, Ph.D. Chairperson’s Designee Department of Committee on Special Education Education Father — Parents

Co-Director, — Parents

(via telephone)

Teacher, — Parents

(via telephone) School

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2014

Esq. Attorney, Ph.D. Chairperson’s Designee Department of Committee on Special Education Education Father Social Worker Department of — Parents

(via telephone) Education

Psychologist Department of

(via telephone) Education

INTRODUCTION

On February 27, 2014 and March 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 ”). The hearing commenced at 2:00 p.m. and 1:00 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.

BACKGROUND

old and attends the ). In a letter dated October 7, 2013, HB’s parents, by their advocate, Susan Luger, filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education did not offer HB a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year. The parents alleged that is appropriate for the child and that the equities favor them. They requested reimbursement for the cost of tuition , the cost of evaluations and for “door to door” special education or suitable transportation from (Parents’ Ex. A).^[1] The Department of Education did not file a response.

I was appointed as the Impartial Hearing Officer on September 24, 2013. The original compliance date was February 25, 2014. On February 24, 2014, at the request of both parties for the availability of witnesses the compliance date was extended to March 27, 2014 and a hearing was scheduled for February 27, 2014. At the hearing on that date a second hearing date was scheduled for March 25, 2014. At the conclusion of the hearing on that date and at the request of both parties for the receipt of the transcripts, review of the transcripts and the issuance of a Decision and Order, the compliance date was extended to April 26, 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 with a FAPE for the 2013-2014 school year, that is appropriate and that the equities favor the parents.

THE DEPARTMENT OF EDUCATION’S POSITION

, Ph.D., represented the Department of Education. Dr acknowledged that the Department of Education did not provide with a FAPE for the 2013-2014 school year. However, he posited that the Department of Education was not able to offer a FAPE in a timely manner because the parents “undermined the process” and contributed to that failure by not making available for psychological testing by the Department of Education, by not providing the private evaluation report to the CSE for over four months, and by not being available during the summer for further testing or to participate in the decision making process regarding a placement (DOE Closing Statement: 152-155). Thus, he asserted that the equities favor the Department of Education. Dr. also maintained is not an appropriate placement for because it cannot address her “ .”

FINDINGS OF FACT

The Department of Education’s Case

The Department of Education did not present any witnesses on its direct case. The Parents’ Case is the one of the co-directors of the : 5).^[2] is the head teacher at ( 25).^[3]

father. in September 2012 and the parents were satisfied with her progress at the school during the 2012-2013 school year (MB: 64-65, 72).

On February 15, 2013 was contacted by Supreme Evaluations (“Supreme”) about administering a neuropsychological evaluation and a psychoeducational evaluation and conducting a social history. testified that ’s mother told the person who called that the parents already scheduled for a private evaluation and that the person said, “that’s fine, go ahead and do that.” testified that the “organization expressed no interest in doing their own evaluation” ( : 73-74, 76-77). In a letter dated March 11, 2013, HB’s mother advised the CSE 10 Chairperson that a CSE review had not yet been scheduled for HB and that she was waiting for the completion of the independent testing and the subsequent scheduling of an IEP meeting. She also advised the Chairperson that she had obtained a placement for HB at Gaynor in the event that the Department of Education did not offer an appropriate program or placement, that requiring the parents to sign a contract and pay a deposit, and that if the Department of Education offered an appropriate placement in a timely manner the parents would enroll the child in that school (Parents’ Ex. E).

After the neuropsychological evaluation report was completed at the Institute (“ ”) by , Ph.D., the parents had a consultation after which the report was sent to the parents (MB: 79; Parents’ Ex. J at 11). The report was mailed the parents on April 22, 2013 after which the parents requested that the word “integrated” be removed from the evaluation. The updated report was sent to s mother by email on May 6, 2013 and a hard copy was mailed to the parents on that date (Hearing: 151-152; Parents’ Ex. L). HB’s mother sent a copy of the test results to the CSE via email on May 13, 2013 (Parents’ Ex. M).

attended the CSE meeting held on June 12, 2013 and ’s mother attended by conference call. At the meeting disagreed with being classified as having and emotional disturbance. The parents believed that the testing and the remedial work done with over the years has been based on the theory that has an disorder and that all of her other issues are the result of her not being able to process information properly ( : 65, 69, 71).4 At the end of the meeting the parents asked for “a report” and they were told that they would receive one “in due course.” The parents were also told that the case would be “sent up” to a different committee for review ( 68-69). The “Draft” copy of the IEP developed on that date indicates that the IEP team deferred the case to the Central Based Support Team (“CBST”) for a non-public school therapeutic placement (Parents’ Ex. B at 12, 16-17).

The parents received the “Draft” IEP after the meeting but never received a final IEP ( : 66-67; Parents’ Ex. B). The “Draft” IEP reflects some of the concerns expressed at the meeting ( : 69-71). MB testified that the concerns about developing friendships and were based on a “processing standpoint.” The parents discussed how ’s inability to understand the language and process it correctly caused her frustration that resulted in having tantrums at home ( : 71; Parents’ Ex. B at 3).

In a letter dated August 17, 2013 s mother advised the CSE Chairperson that she had previously informed him in a letter dated March 11, 2013 the parents to sign a contract and leave a deposit. She also noted that at the CSE review on June 12, 2013 the case had been referred to the CBST but that as of the date of her letter the parents had not yet been contacted about an approved non-public school placement. The letter also indicated that the parents would consider any appropriate recommendations by the CBST but that due to the “late date” she would place for the 2013-2014 school year and seek tuition reimbursement. She also asked that the CSE arrange for busing to and from Gaynor (Parents’ Ex. C).

On August 29, 2013 HB’s mother wrote another letter to the CSE Chairperson advising him that she was not given a final copy of the IEP that was drafted at the June 12, 2003 meeting. The letter also noted that the case had been referred to the Community Based Support Team (“CBST”) but that the parents had not yet been contacted about a proposed placement. The letter asked that the parents be provided with a copy of the IEP as soon as possible ( 66; Parents’ Ex. D). testified that had the Department of

Citations to pages 69-87 refer to Dr. Quiros’ cross-examination of MB. Education offered an appropriate placement the parents would have accepted it (MB: 6768).

The neuropsychological report by Dr. indicates that meets the criteria for a diagnosis of and depressive disorder NOS. It recommends that “remain in her current school placement as she requires a special education school setting that provides a specialized, integrated educational setting that has interventions, curriculum and programming for children with similar language based weaknesses and concomitant writing problems.” Dr. also recommended that HB receive ongoing psychotherapy to and to continue to help her parents develop effective ways of managing moments of distress, noting that the incidents of the most profound upset “affect the entire family.” In addition, the report recommended continue to receive her current program of therapy (Parents’ Ex. J at 10-11).

does not receive psychotherapy. Rather, she currently attends a weekly social skills workshop with Dr. where she is being taught communication skills with other children ( : 69, 89-90). In addition, s parents have begun attending parenting skills sessions to learn better ways to communicate with when she tries to express her frustrations or thoughts to them. language skills have improved she and her parents are better able to communicate and the incidence of her tantrums and outbursts has abated over the past year (MB: 90-91).

At the beginning of the 2013-2014 school year was prescribed the generic equivalent ” ( 87. 101-102).

has 174 students ranging in age from five to eleven years-old. The classes are ungraded and the students are grouped by age ( 11). The students have a “range of disabilities” but are in the category of language based . The maximum number of students in each class is eleven ( : 12). is not designed as a therapeutic setting for children who have emotional difficulties ( 43).

This is ’s second year at : 12). receives therapy from a certified pathologist, . meets with Ms. individually once a week and in the classroom twice a week ( : 13-14). does not receive counseling or therapy at the school. The school psychologist works with the students in groups. Ms. , s homeroom teacher, communicate “quite frequently” with ’s outside therapist, who works with on social skills, and the school uses Dr. s ideas to help integrate socially, particularly during lunchtime and times when she would need her ( : 42, 49-51). ^[5]

In her capacity as a supervisor Ms. has observed over the past year and a half in several of her groups and at lunchtime ( 15-16).^[6] Ms. is aware of how “acts and interacts” at school but is not aware that she has been diagnosed with a ( : 17). Ms. reads all of the evaluations of the students, including s evaluation, but at this point would have to re-read the evaluation to recall the diagnosis ( : 18-19). However, Ms. is aware that ( : 20-21). She did not know whether ( : 21-22). Ms. did not read the IEP that program was developed for on June 12, 2013 ( : 22).

Ms. is a head teacher at She was s teacher for the 2012-2013 school year and is one of eleven students in her homeroom class for the 2013-2014 school year. The coteacher in the class is ( 25, 42, 49). 7 The students in the class have a range of classifications but the main classifications are learning disability and speech and language impairment (Klausner: 42).

. Her primary educational deficits are in reading comprehension, writing and math ( : 25-26).

Ms. is familiar with through reading reports that have been provided to the school, including her , as well as her observations of ( 35-36). ’s parents told her that and a : 38- 39). Ms has not read 2013-2014 “Draft” IEP ( : 47). The school psychologist conferences and supports the teaching staff. While in the classroom, the teachers are able to “handle it” and it has not been a significant issue in the classroom, as participates and is able to complete her work. does not receive one-on-one counseling but she participates with the class in a group session once a week with the school psychologist. Ms. arranged for the group session because of the makeup of the class and the needs of her students ( 43-44, 56-58). In that group the class discusses relationships and friendships ( : 43).

. She often begins telling a story in the middle of the story, and the teacher has to stop her and ask her to explain who, what and when she is talking about ( 31). Due to her what she wants to convey and thus she is either misunderstood or the other students do not understand the “full picture” of what she is trying to say. HB struggles socially interacting with her peers; she would rather be by herself reading a book than talking with friends ( 33, 41). Ms. opined that of a combination of her issues ( : 44-45). For example, while her to engage with her peers is connected to language, it is sometimes connected as well. The combination manifests itself by her sitting alone at lunchtime ( : 49). The school, in collaboration with Dr. has instituted a plan to improve ’s social skills and decrease her : 48-51; 14-15). The school has also been in contact with ’s parents when necessary and with Dr. : 50-51).

s reading fluency is at grade level but her comprehension is moderately to significantly below grade level ( : 26). is in a small reading group with students on the same comprehension and fluency level so that her needs can be met ( 27). The issues with s writing are two-fold. She will either write something very basic that lacks detail or she will write a very lengthy piece that that it “very tangential” in which “the ideas do not connect” ( : 28). ’s math skills are . She is in math group with four other students who at a math level similar to : 32-33). Since the beginning of the school year has learned multi digit multiplication and long division. She has also learned how to break down word problems using model drawing techniques and at the time of the impartial hearing was studying fractions (Klausner: 33).

Ms. participated in ’s IEP meeting for the 2013-2014 school year She did not recall the program recommendation made for the child at the meeting ( 39-40). Ms. agreed with the statement that, “ presents as an who has historically had social emotional issues that impact on her functioning, both in school and out of school” (Klausner: 40; Parents’ Ex. B at 4). Ms. Klausner did not recall having seen HB “hoarding food” or, this year, asking to return to her prior school (Klausner: 40-41). The Department of Education’s Rebuttal Case^[8]

is a licensed master social worker. She has a Master’s Degree in social work with a bilingual extension and works at CSE 10 (Plasencia: 112-113). is has an undergraduate degree in school psychology, a Master’s Degree in therapeutic interventions and a professional degree in school psychology ( : 131-132).

Ms. is the Department of Education social worker assigned to Her responsibility is to case manage and obtain documents for CSE review meetings (Plasencia: 113-114). In that capacity she has had contact with s mother for the 20132014 IEP process (Plasencia: 114-115). The Special Education Student Information System (“SESIS”) documents the events that took place with respect to s case for the 2013-2014 school year. Those events include any communication with the parents or a school, outreach attempts or attempts to get information about HB. Ms. memorialized some of the entries in the document (Plasencia: 116; DOE Ex. 1).

The February 15, 2013 SESIS entry indicates that on January 28, 2012 at about 9:00 a.m. Ms. mother about obtaining the psychoeducational evaluation, that HB’s mother told her that it would be a private evaluation, that the evaluation would be completed by mid-March and that she would have the results and the report by the first week of April ( 117-118; DOE Ex. 1 at 2). 9 The private evaluation was administered on January 25, 2013, February 2, 9 and 22, 2014 (Parents’ Ex. J at 1). Sometime between January 28th and February 15th Ms. spoke to Ms. the case manager at Supreme, to follow up on a request to evaluate . The entry indicates that Ms. told Ms. that the parent complied with the request for a social history update but that she would not make the child available for because the parents were having tested privately ( : 117, 124125; DOE Ex. 1 at 2).^[10]

Ms. received the evaluation report from the parent on May 13, 2013. Ms. Plasencia testified that the parent informed her that they could only make a 9:00 a.m. appointment for an IEP meeting and that the meeting had to be scheduled prior to June 17, 2013 because the parents would not be available “the week of the 17th or after” (Plasencia: 120-122). The May 13, 3013 SESIS entry indicates only that “the parent expressed that neither she nor her husband would be available the week of 6/17/13” (DOE Ex. 1 at 2). When asked about the discrepancy Ms. responded that she does not “have time to write every single thing that a parent tells” her ( : 122).

The last day of school was June 12, 2013 and the school agreed to have the IEP meeting on that day ( 122-123). The SESIS document and the “Draft” IEP indicates that the case was referred to the CBST and set to “final” status on July 24, 2013 ( 236; Parents’ Ex. B at 16-17; DOE Ex. 1 at 1). Ms. did not know whether anything took place between June 12th and July 24th that would have finished the packet for the CBST; nor did she know why a placement was not offered between July 24th and August 15th (Plasencia: 127).

Ms. is a school psychologist for CSE 10 (Alvarez: 132-133). She conducted ’s annual review in June 2013. Ms. recalled that she reviewed evaluation, evaluation and progress report, and that the team had the input from parents and her teacher . The IEP team “spoke extensively” about functioning and the parents and ’s teacher were concerned about ” with her peers, her “ ” in school and the fact that her were impeding her from socializing with her peers and finding an appropriate peer group at school. They also discussed the results of the evaluation that showed a “clinically significant” score in areas related to “ and : 136, 139-140). 11 The team also discussed ” at home when she

9 The “turnaround time” for the completion of an evaluation administered by Supreme is two to three weeks (Plasencia: 123). was in that she tended to “ ( : 136-138). Ms. recalled that at the time of the review on ( 138).

Ms. explained that although the parents indicated home, in school was “more than in school” ( 141). Although a Functional Behavioral Assessment (“FBA”) and a ”) can quantify and address withdrawn types of behavior, respectively, neither was included in the IEP. Rather, the team felt that a recommendation of a “therapeutic type of setting along with counseling” might better address than would a BIP ( : 141-143).

Ms. believed needed a “smaller type setting” to deal with her issues but she did not recall whether Ms. believed equired a language-based school or an emotionallytherapeutic setting ( 145). The parents thought needed a language-based school ( 145146). The report also recommended a language based school and recommended that she remain at : 144, 146; Parents’ Ex. J at 10). The IEP team (Ms. , the Department of Education related service provider/special education teacher at the IEP meeting) determined were coming from the “social realm” and the recommendation for an emotionally-based school was determined by considering in which the only category not in the average or high average range was for which the team recommended . ( : 146147). At the conclusion of the meeting Ms. and Ms. deferred the case to the CBST to find an appropriate non-public school for . Ms. left for the summer on July 15th and she understood that the Chairperson monitored her case load over the summer ( 134-135).

Ms. acknowledged that child is classified as having an “emotional disturbance” when the child has emotional issues in school rather than at home. However, program recommendation was based on the conversation at the IEP meeting with both the teacher and the parent ( : 147-148).

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 HB'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 HB 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. 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 on the additional facts recounted below, also with 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. Quiros acknowledged that the Department of Education did not provide HB with a FAPE for the 2013-2014 school year.^[12] II.

Under the second criterion of the legal standard, HB's parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for HB 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 HB'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.

The testimony and the evidence showed , along with an NOS and a NOS. She also in that she prefers to . Dr. who conducted the neuropsychological evaluation, recommended, among other things, that and continue to three times a week, once a week individually, once a week in a group and once a week as “push in services in the classroom.” He also recommended attend a social skills group with Dr. Doft to promote her social competence (Parents’ Ex. J at 10-11). Ms homeroom teacher, detailed the specific strategies used with the child to address both her unique academic and social/emotional needs and explained how the child has during the current school year.

At the outset I find that, based on Ms. ’s explicit testimony, in the classroom, the teachers are able to “ and it has not been a significant issue in the classroom at since participates and is able to complete her work ( : 43). HB’s expressive language disorder manifests itself in her difficulty to verbally convey her thoughts or relate a story in an organized manner. As a result, her classmates often do not understand what she is trying to say. s teachers address this issue by asking questions and by prompting before she tells a story, to make sure that she is giving the listener sufficient information to be able to understand what she is talking about. Ms. explained that with those prompts can often include enough information for the listener to understand the story ( : 31). Ms. opined that although still requires “reminders,” she is more able to include sufficient information to explain herself than she was at the beginning of the school year ( : 32). s language difficulties are also being addressed by a certified speech and language therapist once a week individually and twice a week in the classroom, closely reflecting Dr. ’s recommendation in the neuropsychological report. (Miller: 13-14; Parents’ Ex. J at 11). HB’s significant difficulty in is due to a combination of her expressive language difficulties, her : 44-45). Since she has often : 33, 41). Thus, she prefers to sit alone at lunchtime. To address these issues Ms. and Ms. the co-director of school, collaborated with Dr. therapist, and developed a plan to help her engage with her : 42, 49-51; 1415). The individualized plan for several days during the week. Two days a week the teachers prompt with a topic that she can talk about with her peers and she eats lunch with them. Once a week during snack a day is designated for to play board games in the classroom. On that day chooses a game which helps her to initiate conversation about the game. Ms. testified that with those activities in will talk to her peers about a topic and will play and talk about the game she has chosen ( 34, 48-49, 51). Thus, the cooperation between the school and Dr. has resulted in a strategy that is having a positive impact on s ability to interact with her peers and the evidence did not indicate any heightened anxiety when she does so. In addition, the school counselor works class as in a group session once a week in which the students discuss relationships and friendships ( : 43).

Ms. ’s testimony also explained unique academic needs. Specifically, is in a small reading group with students on the same comprehension and fluency level so that her needs can be met ( 27). The teachers are addressing ’s reading comprehension issues by having HB re-read texts multiple times and engage in role playing where can assume character perspective. Specifically, is given a different role each week that focuses on a particular comprehension skill. Ms. explained that has made progress in this area since the beginning of the school year in that she is now able to recall factual information ad sequence events and, after discussions, is able to make inferences about how characters are feeling and make predictions about what characters “might do next,” all skills that were much more difficult for her at the beginning of the school year ( 2728).

The testimony also explained how the teachers are addressing ’s writing issues. To help focus on a particular topic with details rather than veering on a tangent in her writing, the teachers have use different multisensory reminders to think about the “wh” questions in her sentences. If she has not answered the questions she can go back and add the relevant information to her work ( 28-29). When has done “too much writing” Ms. conferences with the teacher and re-work back to her. They will have refer to the topic sentence and then read through each sentence and ask whether that sentence refers back to the topic sentence. If it does not, removes that sentence from her writing ( 29). Ms. opined that has been benefitting from these activities. In particular, ’s writing has improved in that she is now adding more detail to her writing and when she uses the strategies the teachers have put into place will “think about” whether the information she is including is tangential or not. If so, and with teacher support, is able to take out the extraneous information and “refine” her writing, something she was not able to do at the beginning of the school year ( 30-31).

To address the deficits in ’s math skills she is grouped with other students on her level. The teachers uses a lot of manipulatives and pictures with ’s math group and to facilitate understanding s group discusses what they are learning rather than having the teacher use rote instruction for math skills ( 32-33). The testimony showed that HB has made progress in this area as well. Specifically, since the beginning of the school year HB has learned multi digit multiplication and long division and also learned how to break down word problems using model drawing techniques ( 33).

The Department of Education attempted to rebut the parents’ evidence about the propriety of , the school psychologist who was present at the IEP meeting, testify about the and then could not address these issues (DOE Closing Argument: 152-154). This argument is without merit. It is clear from the testimony of the parents’ witnesses and Dr. s evaluation report that the do not dominate her or her . Dr , who conducted the evaluation, did not refer to any type of therapeutic program for Rather, as noted above, he recommended that continue at and that she continue to receive and (Parents’ Ex. J at 10). ”s parents believed that stemmed from her and her teacher, Ms. testified that indeed, the were a combination of her Ms. is not a significant factor in school in that the teachers can “ as evidenced by the fact participates in school and is able to complete her work ( 43).

Neither Ms. , the Department of Education related service provider/special education teacher who participated in the IEP meeting, know Thus, their determination that are predominant and their decision to recommend a therapeutic placement for the child despite the parents’ concerns and a specific recommendation by Dr. Cruger that the child continue , are not supported by the evidence or testimony at the hearing. Indeed, the testimony and evidence as detailed above showed that not impact on her education and that the strategies in place for the child to improve her communication skills and her socialization are resulting in progress in those areas. Indeed, Ms. herself testified that the child’s outward emotional issues manifest at home rather than in school.

In sum, I find that the parents met their burden of demonstrating that Gaynor is “reasonably calculated to enable to receive an educational benefit.” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. Moreover, I find is the LRE for at this time. 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 support a conclusion that the parents failed to cooperate with the Department of Education in the development of an IEP. The Department of Education’s position on this issue is that the parents contributed to the failure of the CSE to offer a FAPE to HB for the 2013-2014 school year. Specifically, the Department of Education argues that the parents delayed the process by not making available for evaluations by Supreme, the agency contracted by the Department of Education, by not providing the private evaluation report to the CSE until May 13, 2013, and by not being available to attend an IEP meeting or any other meeting after June 17, 2013 (DOE Closing Argument: 154155). None of these arguments have merit.

The SESIS entry for February 15, 2013 indicates that Ms. Plasencia called HB’s parent about an evaluation on January 28, 2013 (DOE Ex. 1 at 2). The evaluation report indicates that the first day of testing was on January 25, 2013 (Parents’ Ex. J at 1). Thus at the time of the call the testing had already begun. testified that when Supreme, the agency contracted by the Department of Education, contacted mother on February 15, 2013 about conducting an evaluation, she told them that the parents were having evaluated privately. The February 15, 2013 SESIS entry indicates that Ms. , the CSE social worker, had already spoken to someone at Supreme, that the parents had complied with the request for a social history update, that the parent “declined” a psychoeducational evaluation and that the parent would provide the private evaluation report during the first week of April.

There is no question that parents are entitled to obtain private independent evaluations of their child. See 8 N.Y.C.R.R. §200.5(g)(1)(vi)(a). There is no evidence or testimony to support a finding that Ms. Plasencia or anyone else at the Department of Education advised the parents that their private evaluation would not suffice or that they asked the parents to let Supreme evaluate the child in addition to the private evaluation. I find that the parents exhibited their good faith by arranging for the evaluation to begin in January 2013 and be completed by February 22, 2013. The parents did not unduly delay providing the report to the CSE. Rather, the evidence showed that the Institute did not provide the parents with Dr. s evaluation report until April 22, 2013 and that after the parents requested a one-word change they did not receive the final report until May 6, 2013. The SESIS document indicates that the CSE received the report on May 13, 2013, shortly after the parents’ received the final report (Hearing: 151).

The Department of Education also alleges that the parents delayed the process because they told the CSE they would not be available after June 17, 2013 and that they could only attend a CSE meeting held at 9:00 a.m. prior to that date (Plasencia: 120-122; DOE Closing Argument: 154-155). I note that the May 13, 2013 entry on the SESIS document does not indicate that the parents would be unavailable after June 17, 2013. Rather, it indicates only that the parents would not be available “the week of 6/17/13” (DOE Ex. 1 at 2). In any event, as Ms testified, an IEP meeting was held on June 12, 2013 and at that time the case was deferred to the CBST for a non-public school placement. However, the SESIS document shows the CBST did not receive the case until July 16, 2013 and at that time “more information” was needed from the CSE. The SESIS entry by the CBST on July 24, 2013 indicates an “insufficiency of required documentation” (DOE Ex. 1 at 1). The parents were never contacted by the CBST and no schools were offered for HB. wrote a letter to the CSE Chairperson on August 17, 2013 and again on August 29, 2013, both letters advising him that the parents had not yet been contacted by any schools or by the CBST. In the August 17th letter HB’s mother advised the CSE Chairperson that she would consider any appropriate recommendations by the CBST but that due to the “late date” she would place for the 2013-2014 school year and seek tuition reimbursement. She also asked that the CSE arrange for busing to and from Gaynor (Parents’ Ex. C). In the August 29, 2013 letter HB’s mother advised the Chairperson that that the parents had not received a copy of HB’s IEP and asked that a copy be sent to her as soon as possible (Parents’ Ex. D). I note that had the Department of Education provided an appropriate non-public school placement that was accepted by the parents prior to September 5, 2013, would have relieved the parents from paying the remainder of the tuition due and reimbursed the parents for all payments made by that date (Parents’ Ex. G at 2).

In light of the foregoing I find that the parents did not unduly interfere with the Department of Education’s obligation to provide a placement for HB. The case was referred to the CBST at the June 12, 2013 IEP meeting and thus the Department of Education had more than two months to recommend a placement, which they did not do. Indeed, the SESIS document indicates that by July 24, 2013, six weeks after the IEP meeting, the CSE had not yet provided the CBST with all of the necessary documentation (DOE Ex. 1 at 1). That delay was in no way attributable to the parents. I also find that the parents provided the CSE with the requisite 10-day notice that they were placing HB at for the 2013-2014 school year.

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 $52,100.00 for for the 2013-2014 school year (Parents’ Ex. G 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 , proof of payment by the parents and proof of s attendance, the District is reimburse the parents in the amount of $52,100.00. 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 23, 2014

Rona Feinberg, Esq. gc

RONA FEINBERG, ESQ.

Impartial Hearing Officer RF:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

Parents:

Exhibit A Impartial Hearing Request dated

October 7, 2013, 6 pages

Exhibit B Draft Individualized Education

Program dated June 12, 2013, 18

pages

Exhibit C Parent Correspondence to

Committee on Special Education

dated August 17, 2013, 2 pages

Exhibit D Parent Correspondence to

Committee on Special Education

dated August 29, 2013, 2 pages

Exhibit E Parent Correspondence to

Committee on Special Education

dated March 11, 2013, 1 page

Exhibit F Class Schedule undated, 1 page

Exhibit G Contract dated February 27, 2013, 4

pages

Exhibit H Proofs of Payment, Check dated May

1, 2013, 2 pages

Exhibit I Progress Report dated February

2014, 19 pages [Marked for

Identification Only; Not Admitted

into Evidence]

Exhibit J Confidential Neuropsychological and Educational Evaluation dated May

2014, 19 pages

Exhibit K Signed subpoena dated March 3,

2014, 1 page

Exhibit L Email from to dated May 6, 2013,

2 pages

Exhibit M Email from parent to Ms. dated May

13, 2013, 2 pages

Department of Education:

Exhibit 1 SESIS Events dated September 21,

2012 – July 24, 2013

Impartial Hearing Officer

Exhibit I Case Follow Up sheets indicating

extensions of the timeline, 2 pages

---

Footnotes

[1] The issues of reimbursement for evaluations and transportation were not pursued at the hearing and are considered withdrawn.

[2] Ms. has an undergraduate degree and a Master’s Degree in Special Education for elementary grades. She has taken post-graduate courses in testing and evaluation ( : 10-11, 16-17).

[3] Ms. has an undergraduate degree in Psychology in Education and a Master’s Degree in Childhood Special Education. She is certified in both New York and Massachusetts as a teacher of General and Special Elementary Education ( : 24).

[5] Citations to pages 35-the first question on page 43 and pages 55-58 refer to Mr. ’ cross-examination of Ms.

[6] Citations to pages 16-22 refer to Dr. ’ cross-examination of Ms. Ms. was also s teacher during the 2012-2013 school year ( : 49).

[8] The Department of Education asked to present witnesses to rebut the parents’ testimony that Gaynor is an appropriate placement for due to her allegedly “deep seated emotional issues” (Hearing: 94, 130) and to rebut the testimony that the equities support the parents by showing the parents were partially responsible for failure of the Department of Education to provide with a FAPE in a timely manner (Hearing: 7-9, 93). While I find that testimony on the latter issue could have been presented on the Department of Education’s direct case, I admitted the testimony as part of the record. As explained in my Conclusions of Law and Discussion, the testimony by the rebuttal witnesses does not support the Department of Education’s position on either issue for which it was offered.

[10] Citations to pages 124-128 refer to Mr. s cross-examination of Ms. Citations to pages 139-the first response on page 149 refer to Mr cross-examination of Ms.

[12] Dr. explained that was not “conceding” Prong I because he believed that the parents hindered the process and thus contributed to the Department of Education’s failure to provide with a FAPE for the 2013-3014 school year (Hearing: 59).